Restitution of Land Rights Amendment Bill: hearing

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Meeting report

AGRICULTURE AND LAND AFFAIRS PORTFOLIO COMMITTEE
25 August 2003
RESTITUTION OF LAND RIGHTS AMENDMENT BILL: HEARINGS
 


Chairperson: Mr N H Masithela (ANC)

Documents handed out

Commission on Restitution of Land Rights PowerPoint Presentation
Restitution of Land Rights Amendment Bill [B42-2003]
Transvaal Agriculture Union of SA Submission (Appendix 1)
Nkuzi Development Association Presentation
Nkuzi Development Association Submission (Appendix 2)
Comment by Nkuzi Development Association (Appendix 3)
COSATU Submission
Western Cape Land Restitution Forum
AGRI South Africa
National African Farmers Union
Programme for Land and Agrarian Studies UWC Submission
South Coast Land Association Submission

 


SUMMARY
The Committee was briefed by the Commission on Restitution of Land Right on the purpose and importance of the proposed Bill. The Committee heard joint submissions from Transvaal Agriculture Union of SA Delegation and Agricultural Employers Organisation who totally opposed the Bill. The Nkuzi Development Association supported the Bill saying that the landowners should not be allowed to dictate the pace of the process.

MINUTES
Commission on Restitution of Land Rights Submission
Mr T Gwanya, Chief Land Claims Commissioner, noted that the main purpose of the Bill is to empower the Minister so that she would be able to purchase, acquire or expropriate lands for the restitution process and any other land reform purposes. The proposed amendment addresses the inadequacies experienced in the current legislation, especially those of Section 35(5A) and Section 42D(1)(d) of the Restitution Act. Section 5(5A) requires that there should be agreement between all parties concerned when expropriation is to be effected and they feel that this is not a standard practice for expropriation. On the other hand Section42D(1)(d) requires that there should be a court order and the Commission feels that this a long route, which normally derails the expropriation process enshrined in the Constitution. He said that there were public hearings called with regard to this proposed amendment and the Bill was referred to the State Law Advisors who endorsed it. Cabinet also endorsed the Bill (see document).

Discussion
The Chair requested members to only ask questions of clarity on the presentation and not necessarily engage it since a opportunity for such would be afforded at the deliberations stage.

Mr A Botha (DA) noted that there seemed to be a contradiction between what the Commission had presented and the reality on the ground. He asked that, as statistics demonstrated that as 36,000 cases of restitution had already been resolved, how could they reconcile this fact with the allegation that it was taking too long and was very difficult to reach agreements on this matter. Were there any other expropriation cases taken to court other than the two well known cases. He asked the Commission if they understood the reasons that led Parliament to opting for the present clauses since he believed that an expropriation, as it involved the right to property, should be legally determined. Finally, he asked if it would be in the public interest to take the court procedures out of the Act and give them to people who were not trained as a Judge to exercise them.

Mr Gwanya acknowledged that negotiation settlements worked sometimes as there were about 40 323 restitution claims that had been settled to date, outside the realm of the proposed amendment. The negotiation settlement had given rise to the claims being settled, however many difficulties had been experienced in the process. Practice differed from theory and thus while Parliament saw it necessary to include the court clause in the Act, however the Commission had found such impeding in their process of realising the objects of the Act. He thereafter cited a case of Limpopo farmers in the area of Livubu as an example and noted that out of hundreds farmers only 23 were willing to cooperate with the Commission. The rest ignored the meetings of the Commission and as the result this has made it difficult for them to reach negotiated settlements as the situation was not productive. In other cases farmers had demanded exorbitant prices for their agricultural land thus resulting in negotiations being prolonged. He said that they did not want to take away the rights that the owners enjoy over their properties.. However what the Commission proposed was that the whole expropriation process should be in line with the expropriation process exercised world-wide. People should only be allowed to take the administrative decision of the Minister on review especially if they were not satisfied with it, either with regard to the process itself or the compensation received. The Commission proposed a simple amendment and that is the court process should not precede the expropriation process.

Mr Botha noted that the whole process of restitution was to return properties and rights to those who were arbitrarily dispossessed of them in the past. However, he said that what the proposed amendment seeks to do is that which the Act sought to avoid, namely removing someone from land and thereafter affording him to challenge such in the court since such removal might not have been legal. He said that this is unacceptable since even though such person would still be able to approach the court afterward but he would do so without a collateral which to pay the court case as he had already lost his property. He said that the present Act is proper as it is since it required the State to take any case to court when it was deemed to be a case. The State had failed to do that in the nine years period the since Act had been in existence. There were only two cases that had been taken to court. It was therefore necessary to introduce the proposed amendments. The statistics given by the Commission show clearly that the proposed amendments would be against public interest as there was no reconciliation between it and the present restitution process.

Dr A Schoeman (ANC) raised a point of order and noted that Mr Botha had no right to argue on the presentation as the Committee had previously been briefed by the Commission. He said that in that presentation members were afforded an opportunity to question the proposal. Therefore any further interrogation in this regard would definitely lead to discussion since other parties would also feel compelled to argue their views regarding this proposed amendment. He reminded members on the purpose of public hearing and requested that the Committee should proceed to hear the submissions of various stakeholders and the discussion follow thereafter.

The Chair sustained the order and appealed to members not to discuss the presentation. However he requested the Commission to clarify its understanding of the concept "public interest".

Mr Gwanya said that the Constitution clearly defined public interest as an interest to ensure that there was equitable access to land by all citizens. This equitable access to land was aiming at addressing the inequities of the past in order to ensure that everybody had equal access to land. He said that therefore by means of land reform all those people who had been denied their land rights or access to such lands would be allowed to access those lands. It should be understood that public interest as defined in the Constitution also included land reforms, which in turn included land restitution, redistribution and tenure reforms as outlined in the policy document.

Mr D Dlali (ANC) asked clarity on the kind of cooperation that the Commission had received so far in relation to this process.

Mr Gwanya said that the lack of cooperation that they had received from places such as Livubu Area, Baphereng Area, Kafferskraal area and others revolved, amongst other things, around the issue of the validity of the claim. Some farmers wanted to adjudicate and decide on the validity of the claim while others would raise some other issues. However in most of those cases the Land Claim Court ruled that the claims were valid and some of them included cases were claimants had valid titles or others beneficiary occupation to such land.

Transvaal Agriculture Union of SA Submission (TAUSA)

Transvaal Agriculture Union of SA Delegation consisted of Mr P Grobbelaar, Director: Philip Du Toit Incorporated and Mr J Lageenburg, Manager: Labour and Property Rights TAUSA

Mr P Grobbelaar, Director: Philip Du Toit Incorporated, noted that he acted on behalf of TAUSA and Agricultural Employers Organisation, which both had a collective membership of no less than 12 000 commercial farmers. He said that his clients had an international acceptable minority right to oppose any process or action in a court of law where their fundamental rights to their properties were threatened and this right had also been enshrined in Section 34 of our Constitution. It was important that any restitution or land reform be economically driven in a sustainable manner and not just based on emotional political decisions. He therefore challenged the proposed amendments and said that they were not justifiable in an open and democratic society. He then proposed, amongst other things, that the market force be allowed to dictate the process of restitution. Further that the principle of willing buyer and seller be applied so that the government could be able get the cooperation and support of the commercial farmers. It was important that government should maintain and support its commercial agriculture since this would be in the best interest of the economy of the country and its people. Therefore all the suitable candidates, who choose to farm in a commercial sector, should be supported and trained irrespective of their race or creed or colour (see document).

Discussion
Mr D Maluleke (DA) asked if the current owners would agree to continue farming the land which was the subject of the claim. The claimants, when they had succeeded and decided to enter into lease agreement with the previous owner based on the fact that such farming would benefit the community. The current owners then become the lessee and the new owner the claimant the lessor.

Mr Grobbelaar said that all options would have to be considered so as to determine whether such would be fruitful. If it was determined that production would not suffer as the result of such agreement then they would indeed not have a problem with it.

Dr Schoeman inquired since the Act provided a cut off date for all land restitution claims, what was meant by this proposed amendment leading to an open-ended process. He also requested them to provide the Committee with the documentation substantiating the allegation that millions of State owned hectares were not affected by the restitution process since this allegation was unfounded.

Mr Grobbelaar acknowledged that while the Act provided for the 31 December 1998 as a cut of date for restitution claims, the proposal that empowers the Minister to expropriate land for "any other land reform purpose" would result in an open-ended process. With regard to State owned land, their research findings show that these lands were not being utilised for restitution or land reform purposes in a sustainable manner. They would like to see these million hectares of lands owned by the State utilised fruitfully in a productive manner. He said that if that could happen then the demands of those communities or people alleging to need land would be met.

Dr Schoeman noted that he could deduce from the response that Mr Grobbelaar conceded that State owned lands were being used for restitution process although this may be not to his satisfaction. He thereafter asked whether they were opposed to land reform and thus would have supported the amendment if it were aiming at restitution only and not on the land reform in general.

Mr Grobbelaar replied that as the land right could not be taken away from the owner then they were opposed to the land reform process as practised in South Africa.

The Chair asked whether this meant they were completely opposed to the land reform process.

Mr Grobbelaar replied that if the land reform process could be conducted in a responsible manner in line with their suggestions then they would support it. However with the manner with which it was practised at the moment they were completely opposed to it.

The Chair asked if they accept the Constitution of the country and especially Section 25 which dealt with the land reform process and redistribution.

Mr Grobbelaar affirmed the belief in the Constitution and noted that they accepted it in its entirety.

The Chair then said that as they opposed a process which is enshrined in the Constitution, which they said they accept, it would be better if they were to come up with the solution as to how the Committee could move forward. However if their opposition related to the manner in which the land reform process was undertaken in the country then they should tell the Committee about those significant cases which caused them to be so negative regarding this constitutional process. He said that such explanation would assist the Committee to understand their concerns and take them into account when deliberating on the Bill. He said that their presentation as it stood seemed to imply that should the land reform process take place then disadvantaged communities would automatically be given lands. Thus if the lands were taken from their current owners and given to the disadvantaged community then the economy of the country would lead to decline.

Mr Grobbelaar said that he apologised if that was what could be read in their presentation, because what they were saying was that the restitution process should be done in a justifiable and responsible manner. The fact that a person was given land that does not mean that he is wealthy since there were lost of costs that a farmer should contend with after receiving land. It would therefore be futile to return a land to someone who could not produce from it and hence it was important that all those who wanted to be farmers should be fully trained. He said that by this he should not be understood as saying that land would be undermined if black people possessed it.

The Chair said that although that might not be his intention however his statement seemed to infer that. It would be the responsibility of all South Africans to help whoever happened to get those commercial lands to be used in a profitable manner.

Mr Grobbelaar said that they were concerned that the present white farm worker would loose their employment should the expropriation take place.

Mr Dlali asked how would the contention that the proposed amendment would make mockery of the Act and other acts concerning land reform be linked with the provisions of Section 25(5) of the Constitution. He said that in so doing they should also take into account the judgement of the Constitutional Court in Grootbloom where it was decided that the Constitution of the Republic guaranteed equal access to land to all the citizens. With that in mind he requested them to link the case of Livubu farmers where hundreds of them refused to cooperate with the Commission and then inform the Committee who was making mockery of the Constitution.

As they alleged that the process would lead to an open-ended process, then what suggestions could they come up with which would be able to assist the government in dealing with the provision of Section 25(5). Since they spoke about the protection of the rule of law at all time and all cost, do they question the capacity of the Constitution?

Mr Grobbelaar answered that the Act as a legal framework provided a platform under which a person could institute a claim, in certain circumstances. However the proposed amendment wanted to take away what a person would normally be entitled to and that was to prove their case in a court of law. In terms of the amendment the Minister would expropriate the land if she felt necessary and hence the contention that this makes mockery of the present Act. The present Act stipulated that the restitution process should stop at a particular stage, which is at the finalisation process and that was not the case with the proposal, in their understanding. Hence the Livubu farmers refused to cooperate because there was no substance in the claims as they were not valid and failed to meet the requirements of Section 2(1) and Section 2(2) of the Act. Anyone who wanted to challenge the validity of a claim was within his/her right to do so in a court of law. While they did not have a problem with the provisions of Section 25 of the Constitution, they did not believe that the Minister had the discretion to interpret the law.

Mr Botha requested them to supply the Committee with evidence substantiating the allegations made in par 1.

Mr Nketu asked if Mr Grobbelaar thought that the ownership pattern would befit the economic and developmental situation of the country.

Mr Grobbelaar answered in affirmation and noted that he believed that this would be the case.

Mr S Abram (ANC) reproved the tenure Mr Grobbelaar used during his presentation and noted that it was not conducive to good relations between various people of the country as it had the effect of bringing in racism on this matter unnecessarily. Based on his tenure he wandered if the argument noted in par 8 was not just a smoke screen and that there was an underlying object regarding their opposition to the amendment. Were they aware that the present Act also provided for an expropriation of lands for any public works purposes.
What was intended in terms of the present proposal was only to extend those powers.

Mr Grobbelaar replied that their main area of concern was the economy of the country and thus their arguments were not based on a smoke screen. They were concerned of the effect that these proposed amendments would have on the livelihood of all South Africans. With regard to the present provision of the Act, he said that these powers could only be exercised if such expropriation would be for the public's benefit.

Dr Schoeman said that it should be understood that the whole purpose of the restitution process as set out in the Constitution was to rectify the injustices of the past. This was therefore part of the healing process and it concerned property which was lost due to discriminatory legislation. Thus for one to oppose it on the basis that the one who receives back what he is entitled to will not be able to farm the land properly, is absurd. The Constitution of the country, which they say they accept, guarantees them the right to access to court of law and thus no Minister of his action may prevent someone his right of access to court.

Mr Grobbelaar said that they did not have a problem with the restitution process per se but with the manner in which it was applied in the country. Thus if a court decided that the merits of the claim were in order and orders an expropriation of such that land there was no problem so long such was not done by the Minister. He said that the land regarding the restitution claims were lands allegedly lost due to racial discriminatory practices of the past and therefore anyone who is entitled to restitution and is able to prove it, is therefore allowed to prove it in a court of law. This does not mean that the current owners entitlement to contest the validity of such claim in a court of law should be taken away. If that is the case then this would be similar to the past practice where land was expropriated from the owner without recourse to courts or legislation protecting the owner. The current owners would therefore be dispossessed of their land and only afterwards be given a right to challenge the legitimacy of the process.

Mr Maluleke (DA) asked what was Mr Grobbelaar 's views and his client towards the Group Areas Act and the previous laws that were legislated to the disadvantaged the majority of people in the country. As someone who believed in the Constitution of the country then he should also believe in the restitution process since it is part of the constitutional provisions.

Mr Grobbelaar reiterated that they did not have a problem with the process so long it is driven by the courts in accordance with the basic rule of law. He said that they believed in the Constitution but however, although he has his personal views regarding the discriminatory legislations of the past, he was not in the position to comment on the views of his clients since he was not given instructions to do such.

The Chair noted that as Mr Grobbelaar had said it repeatedly that they believed in the Constitution of the country then it should be understood that the Committee would deliberate this proposal based on the provisions of the preamble and those of Section 25(2)(a). He said that based on that it was therefore important for the Committee to get an understanding of the term public interest since that would be the basis of its deliberations. Further he noted that it should be borne in mind that the powers given to the Minister were not given to an individual since he would be exercising them in consultation with the Cabinet since this was a policy matter.

Mr Grobbelaar said that they did not believe that the Cabinet would play any role in deciding the individual decisions to expropriate land for restitution purposes should the amendment be promulgated. He said that they believed that this power would be vested solely in the Minister of Land Affairs as it was the case with the powers vested in the Minister of Public Works to expropriate lands for public purposes. He referred to the preamble and noted that its provisions also stipulated that every individual was equally protected by law and thus the amendment proposed would take away the balance given by the court in the process.

The Chair asked if they were opposed to the current provisions of Section 42D of the Act.

Mr Grobbelaar said that since the way the section was formulated at the moment at least safe guards their right of access to the court of law then they were fully behind it.

Dr Schoeman asked if they perceived this proposed amendment as being unconstitutional and if so, would they contest it in the court of law should Parliament pass it.

Mr Grobbelaar said that they consider it unconstitutional and as such would challenge it should it be passed.

The Chair noted that the Committee would try to upheld the spirit and the purport of the Constitution in dealing with this matter.

Nkuzi Development Association Submission
Mr M Wegerif (Executive Director) noted that Nkuzi had worked closely with communities on land claims processes since 1997 and as such had played a pivotal role in a number of the land claims settlements. He said that they fully supported the proposed amendment since it was aimed at strengthening the Minister with powers to settle lands and noted that if it is applied within the prescribed structure there would be no question of its unconstitutionality. He said that current landowners should not be allowed to dictate the pace of the restitution process and thus proposed some guidelines in speeding up the process (see Appendix 2).

Discussion
Mr Botha commended Nkuzi's involvement in the land restitution and reform processes and said that they had full government support in their endeavour to right the wrongs of the past. The presentation alleges that the sellers requires the government to pay excessive prices and to enter into unreasonable conditions and requested them to supply the Committee with such statistics. He said that it was important for the members to examine such since such a behaviour could not be allowed as it was indeed counter-productivity. He enquired if the current owners of the land were not allowed to dispute the validity of the claim but only that of the fairness of the compensation received. He also requested them to provide the Committee with evidence substantiating the allegations that the DA and NNP blocked the transformation process.

Mr Wegerif apologised to the Committee saying that the document handed out to the Committee was not intended for this discussion and thus not the one he referred to in his presentation. Therefore the reference to the DA and NNP were meant to be a response to another newspaper article. He undertook to make copies and submit a proper document, which was intended for the discussion. The current practice of getting a commercial value did not take into account the measures stipulated in the Constitution regarding restitution process since any compensation in this regard should be just and equitable. As a result of this problems always arise, during the negotiations settlement, if farmers do not agree with a particular issue then proceedings should take place regarding such claims. This seems to confuse the real issue which what would be the best solution in trying to accommodate the individual interest of farmers. Further noted that the current land owners should not be given any particular priority or preference to contest the legitimacy of a claim. He said that the reasons for such proposal was that there seemed to be no logic claim that a person was not the one who took away such land but claimed, at the same time, that he acquired it legally. He said that it should be the Commission, itself, that investiged the validity of the claims, since it was appointed for such and was in a better position to decide such issues. He said that all those who were not satisfied could review the process. Therefore it was important for the people to bear in mind that restitution dealt with an exceptional situation that was created by land disposition.

Mr Botha acknowledged that the document might not have been intended for the meeting but since it had been distributed then a document substantiating it should be submitted to the Committee for further examination.

The Chair noted that Mr Wegerif affirmed that he would give the Committee the date of the said article for record purposes.

Mr Dlali also appreciated Nkuzi interest on the land restitution matters, however noted that the Committee would appreciate it more if they were to come up with their own proposals on the proposed amendments. He asked them to comment on the statement made by TAUSA representative that this proposal declared a war against the white farmers.

Mr Wegerif said that notwithstanding the fact that the large land holdings services a small group of people, the amendment did not necessarily identify any particular group of land owners as a target. It should be understood that it would not only be white owned lands affected by the land restitution process but also those lands owned by the State. The land restitution process had been identified by the Constitution to be in a broader public interest. Therefore a minority group could not be allowed to own 80 per cent of the land while the majority of the country was still landless. It should be understood that the inequality in the ownership of land was not accidental but as the result of deliberate policies of the past.

Dr Schoeman asked if they do not realise the emotional implications of using massive expropriation to achieve the goals he proposed.

Mr Wegerif said that they did acknowledge that expropriation on its own would not be a massive tool in solving the problem. But however if it was applied, in conjunction with other reform processes such as negotiation settlements, it could be a vital tool in the restitution process.

The Chair noted that they seemed not to be comfortable with the principle of a willing buyer and willing seller approach and then asked what was their views of the property right clause.

Mr Wegerif said that they were very concerned since the pace of the land restitution process seemed to be dictated by the willingness of current owners to sell. He felt that this approach should be rejected since restitution process was there to rewrite the wrongs of the past and above all there was no constitutional provision warranting the use of such principles. He said that they believed that the provisions of the property clause also allowed for an expropriation since Section 25(5) empowered the government to take reasonable measures in realising equitable access to land by all citizens. They therefore believed that any compensation given should be given in line with the provision of the property clause.

The Chair said that the Committee noted the views noted by Nkuzi, both those they agreed with and those they did not agree with and thus when they deliberate on the Bill they would take them into account in seeing how best they can speed about the process.

Western Cape Land Restitution Forum Submission
Mr Neville Hendricks from the Western Cape Land Restitution Forum (WCLRF) addressed the Committee. He introduced his delegation: Ms Mzana, Dr. Fredericks and Mr Blignaut. He said that thousands of people still awaited restitution and that financial, technical and marketing assistance should be provided with land granted to the claimant. The Government should reopen the claims process to allow those who had not yet submitted claims to do so.

Discussion
Mr Abram (ANC) asked about the exact numbers referred to.

The Chair asked when WCLRF had known about the cut-off date.

Mr Hendricks replied that exact numbers were not known as they did not want to give people false hope by taking names.

Mr Botha (DA) asked if WCLRF had an earlier date in mind for restitution to go back to.

Dr Fredericks said that people were forcibly removed since the late nineteenth/early twentieth century. He said people did not believe that land restitution would be implemented and so did not make claims.

Mr Schoeman (ANC) said that the deadline had been extended by means of a transparent process. He made a statement, saying that the Government's will to resolve this matter was seen as an opportunity for certain organisations to climb on the bandwagon in the hope of receiving something.

Mr Hendricks replied that his organisation had no such vested interest. There were people who did not know that they were entitled to restitution.

Mr Maluleke (DA) pointed out that people were not educated and that the message should be made clear to them. What prompted the WCLRF to be formed? Why had they not taken stock at their meetings of people who were entitled to claims?

Ms Mzana replied that the Government had not properly marketed Land Restitution as there were people who did not understand what it entailed.

The Chair said that it was uncalled for the Land Claims Commission (LCC) to establish another organisation and not inform it of the cut-off date.

Dr Fredericks informed the meeting that the District Six organisation had been established in 1997 by a High Court ruling. They had known about the cut-off date but people did not believe in the process.

The Land Claims Commissioner said that claimants were encouraged to form community structures to facilitate the passing of information to the LLC. Television and radio space had been bought for advertising purposes and the deadline had been extended.

AGRI South Africa Submission
Mr Bosman, Agri South Africa introduced his legal support team, Ms Fazel and Mr Van Rensburg from Hofmeyr, Herbstein and Ginwala.

Mr Van Rensburg said that the function of the judiciary could not be ousted. He and Ms Fazel pointed out cautionary notes regarding amendment, particularly grammatical structure where "and for any other land reform purpose" could be misconstrued. The phrase was described to be in conflict with the origin, scope and purpose of the Act. Practical difficulties with the Act were also pointed out. The exclusion of the Administrative Justice Act would lead to protracted proceedings should landowners take the decision to expropriate land on review.

The Committee asked for a view on government imposing a ceiling price on farms.

Concerning prices, Mr Bosman said that the issue had been extensively discussed. Developed land would have a higher price than undeveloped land.

Mr Dlali (ANC) asked if there were any practical suggestions for the difficulties of amendments. How could the process be accelerated to meet the deadline?

Mr Bosman said that the pace so far had not been sufficient to reach the deadline and extra capacity was necessary. Mostly urban claims had been dealt with and the cost of land was to be considered. Other land reform programmes could be used to accelerate the process. Various issues like the labour tenant claims were still on the table, and there were various ways to redistribute land. Housing needed to be addressed as not all people wanted to become farmers as it was a high risk business.

The Chair commented that there could not a situation where were only white commercial farmers and black subsistence farmers. Could the Act, as is, assist with speedy land restitution?

Mr Bosman replied that most cases like these were settled out of Court for a speedy settlement.

Mr Dlali said that AGRI South Africa was a constituency and asked what capacity-building measures it had in place.

Mr Bosman explained that their affiliates had structures for capacity building which included training and supplying of livestock to assist people with getting into the business sector.

National African Farmers Union (NAFU) Briefing
Mr Matlala, Deputy President of NAFU, said that expropriation should not used to circumvent the laws of the country, but to optimise land restitution. It was difficult to become a successful commercial farmer if the market was hostile. Black farmers could make worthy contributions to agricultural growth if the right environment was created. Other organisations that claim the Minister would have too much power presented no solutions to the problems. A number of farmers were in full support of land restitution. Sustainable solutions should emerge from this process.

Mr Botha suggested that Mr Matlala read the Budget Debate.

Mr Dlali asked if amendments could assist NAFU members as they were the beneficiaries.

Mr Matlala said that NAFU could express certain views at another meeting as this was not the correct forum to do so. He added that NAFU felt the Commission's deadline should be extended. NAFU wanted to be part of the solution even though it was not subsidised by Government. Investment should be channeled towards emerging farmers, not those already established.


South Coast Land Association Submission
Mr D Levendal, South Coast Land Association requested a further opportunity be given for potential land restitution applicants to forward their applications for consideration. The state should increase its assistance to poor and illiterate communities with their application process.

Mr S Abram (UDM) asked what was the education and poverty levels of the potential claimants?

Mr Levendal said the people concerned did not even know where Cape Town was let alone how to access the required information on the land restitution process. He added that these communities often suffer mass illiteracy.

Mr Abram asked for suggestions on how the state could reach these communities, should they be allowed to forward land restitution applications during the envisaged window period.

Mr Levendal said the best way to inform people was through direct 'word of mouth' communication.

Hon. Tooley RWN (Northern Province Provincial Legislature) said in Bushbuckridge a similar situation existed where thousands of people had missed the application deadlines.
Mr Masithela said it was important to know exactly how many land restitution claims still needed to be considered as this would affect the financial considerations of an extended application period.

Mr Levendal said it was up to the State to assess what a reasonable timeframe would be to consider outstanding applications. He urged the relevant authorities to consider the difficulties experienced by poor people in accessing the necessary information and submitting it to the state.

Ms C Modingwana (Councillor Rustenburg Municipality) Submission
Ms Modingwana said she hoped this amendment would fast track the Land Restitution process. She thanked the committee for their open and transparent manner and added the previous regime simply expropriated land without any consultation or regard for people's rights.

Mr Abram asked, apart from land owners delaying the restitution process what other difficulties had she encountered.

Ms Modingwana said there was initially a lack of communication between the Commission and local municipalities.

Mr M Ngema IFP asked Ms Modingwana to explain exactly why she believed the new amendments would fast track the restitution process.

Ms Modingwana said currently many cases were stuck in various Court processes she believed the new amendment would alleviate some of this congestion.

Programme for Land and Agrarian Studies UWC (Plaas)
Dr E Lahiff (Plaas) said the state needed to find negotiated solutions to land restitution delays, however the state should also not fail to take decisive action when necessary. The state needs be allowed to expropriate land when necessary.

Discussion
Mr A Botha asked whether Dr E Lahiff thought large scale land expropriation would be required to resolve land restitution difficulties.

Dr Lahiff said ideally expropriation would never be used or only in isolated cases, he, however added that it was important that the state had this option.

Mr Botha asked for clarity on the matter of replacing the courts with the minister as the deciding authority.

Dr Lahiff agreed that there was a substantial debate on this matter and there were clearly different perspectives.

Mr Botha reiterated a request he made earlier for a written submission from Dr Lahiff explaining exactly which land owners were obstructing the restitution process.

Dr Lahiff said he believed Commercial Farmers could play a significant role in resolving the land issue, he recommended farmers and the state communicate more effectively on resolving land issues.

Mr Abram asked what could be done to remedy the price distortions often found in the 'Willing buyer, willing seller' formula.

Dr Lahiff said the 'willing buyer, willing seller' formula had many merits and was supported by the World Bank. Under this formula landowners practically had a veto over negotiations. He said restitution was a constitutional requirement and the constitution was a rights based document. He said it was a policy error to import the 'willing buyer, willing seller' formula into the restitution process. Dr Lahiff said the question of market value was an ideological and subjective matter and suggested a 'fair price' be considered.

Dr H Mateme (Limpopo Provincial Legislature) asked if the high staff turnover was negatively impacting the functioning of the Commission.

Dr Lahiff said amending the law alone would not resolve the land issue, the technical, field and post settlement support and other resources matters need to be addressed as well.

Mr D Dlali (ANC) asked whether the proposed amendments would deal with the 'inadequacy' Dr Lahiff referred to earlier.

Dr Lahiff said he believed the land issue would only be resolved in one or two generations. Many cases would still require the Courts' intervention and the proposed amendments would not change that.

Dr Lahiff said the state should attempt to reach a negotiated solution first, but take decisive action when required to do so. The state needed to have powers of expropriation.

The Gugulethu African Farmers Union
Mr M Cakijana asked the committee to intervene in its discussions with various actors concerning their Land Restitution claims.

Mr Masithela said the matter would be forwarded to the Department of Land Affairs and not addressed in the hearings.

The meeting was adjourned.

Appendix 1
COMMENTS ON THE RESTITUTION OF LAND RIGHTS AMENDMENT BILL PUBLISHED ON 25 JULY 2003

We act on behalf of TAUSA, formerly known as the Transvaal Agricultural Union, as well as the

Agricultural Employers Organisation. We have been instructed to comment on the Restitution of Land

Rights Amendment Bill which has been published in the Government Gazette on 25 July 2003.

We confirm that we also commented on the previous Restitution of Land Rights Amendment Bill ("the Bill) which was published on 9 May 2003.

We have studied the Amendment Bill together with the memorandum on the objects thereof and have been instructed to comment as follows:

  1. In the memorandum on the objects of the Bill, it is stated that the present procedure whereby land claims could be resolved by way of settlement agreements outside of court, in terms of section 42D of the act, is insufficient and causes unnecessary delay in the finalization of the restitution process. Our clients are of the opinion that any delay which is being caused, is due to the fact that a large number of outstanding land claims in terms of the Restitution Act, is invalid and of no substance whatsoever. Our clients have been criticised in the media for being persons who "unnecessary" take matters to court which "they known are valid". This is devoid of all truth. Our clients have the right to test any Act which causes a threat to their property rights in a court of law.
  2. The current provisions in the Restitution Act, and more particularly sections 35(5) and 35(5A) read together with the provisions of section 42D, provides the minister with the powers to expropriate under the circumstances as contained in those provisions. Up to date the minister has not once exercised her powers of expropriation. The current provisions also protect the property owner's right to object to the validity of a land claim in a court of law and make provision for, where an agreement in terms of section 42D has been reached, the land owner to be involved in that process. Our clients are highly concerned about the proposal that sections 35(5), 35(5A) and section 42D(1)(d) be deleted from the Restitution Act. We perceive the proposed deletion as to take away the land owner's right to test the validity of a land claim in a court of law.
  3. Our clients are further highly concerned about the draconic powers that the minister would have in terms of the Bill with regards the expropriation of land for purposes of restitution as well as for any other land reform purpose. The Restitution Act is the legal framework whereby any person who aver that he has been dispossessed of rights in land, under the circumstances as envisaged in sections 1 and 2 of that Act, can take part in the process to claim the restitution of such land rights. The Act provides for certain cut-off dates which means that the restitution process in terms of that Act needs to come to an end at some stage. Once all land claims lodged in terms of this Act has been finalized, the Act would not have any further effect and would in all probabilities be scrapped. The proposed section 42E(1) of the Amendment Bill, provides for the powers of the minister to expropriate land for any other land reform purpose. This provision makes a mockery of the Restitution Act and for that matter for all the other acts concerning land reform in general such as the Extension of Security of Tenure Act as well as the Land Reform (labour tenants) Act. Should these powers be conferred on the minister as envisaged in section 42D(1), it would mean that she would have the power to expropriate land as an open-ended process. This could never have been the intention of the legislature with regard to the Restitution Act.
  4. The other main area of concern to our clients, is that the Amendment Bill proposes that the minister will have the sole discretion to decide which land will be expropriated, for restitution purposes or for any other land reform purpose. Our clients feel that these proposed powers are draconic in nature and cannot be sustained. It poses a serious threat to our clients' property rights and to all other property owners throughout the Republic for that matter. If the proposed amendments be interpreted as that the minister would have the power to decide on the merits of a land claim, this would be a serious violation of our clients' rights in terms of section 34 of the Constitution of the Republic of South Africa, in terms whereof they would have a constitutional right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court. In this regard we are of the contention that the provisions of section 42E(1) will be found unconstitutional if tested in the appropriate court.
  5. With regard to the proposed section 42E(3), our clients are concerned about the application of section 24(3) of the Constitution. One interpretation is, in respect of the application of section 25(3) of the Constitution, with regards an expropriation in terms of the Restitution Act, when a balance needs to be found between the public interest and the interests of affected land owners, it could mean that a person being expropriated would receive no compensation at all. If this is what is intended by the proposed section 42E(3), it would be a serious violation of our clients' property rights.
  6. As we understand the reference to the term "for other land reform purposes" means that any person who did not lodge a land claim or any person who lodged a land claim but did not qualify for restitution under the Restitution Act, or any other person who have a need for land, can be a beneficiary of an expropriation by the minister. This could never have been the intention of the legislature at the drafting of the Restitution Act. The intention of the Restitution Act is to provide for the restitution of rights in land to persons or communities dispossessed of such rights after 19 June 1913 as a result of past racially discriminatory laws or practises and to establish a Commission on the Restitution of Land Rights and a Land Claims Court and to provide for matters connected thereto. The Restitution Act has its origin in the Constitution. It can never be an open-ended process.
  7. We are further of the opinion that any expropriation, as proposed in the Amendment Bill, cannot be in the public interest and will not pass the test of constitutionality.
  8. Finally our clients are greatly concerned about the effect that the implementation of the proposed amendments can have on the economy, the generation of employment, the production of food, the internal stability of the country as a whole as well as constitutionally entrenched right to ownership of property.

Our clients have instructed us to place on record that should the proposed Amendment Bill be promulgated, it will be challenged in the highest courts with all means at their disposal.

P. GROBBELAAR (Director)

PHILIP DU TOIT INCORPORATED

Appendix 2

Nkuzi Development Association - August 2003

    Appendix 3

    Comment by Nkuzi Development Association On the Restitution of Land Rights Amendment Bill, 2003 In terms of General Notice 1331 of 2003


    We welcome the opportunity to comment on these important proposed amendments to the Restitution of Land Rights Act, 1994. We write as an NGO that has been working with communities on the land claims process since 1997. We have played a direct role in the settlement of a number of claims, have done validation work on nearly two thousand claims and deal on a daily basis with numerous communities still waiting for their land claims to be settled.

    The intention of strengthening the hand of the Minister to settle claims with return of land even where there is no agreement is welcomed.

    We believe that if properly structured these amendments remain within the guidelines of the constitution. We further believe that if these amendments are hilly used they can contribute to a speedy resolution of land claims and a further redistribution of land, which in the long run will be in the interests of the whole country.

    It has become clear that if we are to settle land claims in South Africa the government cannot be tied into having to wait for agreements to be reached with current owners. While there have been successes in settling claims administratively over the last years, this has only been where the owner has been a willing seller. As such claims are settled we will increasingly be left with those claims where the current owner is intransigent and unwilling to co-operate. Even where owners are willing to sell, they are only willing to sell at certain prices and often on certain conditions. The time involved in negotiating such settlements is also long. Without the ability to efficiently by-pass such negotiations if sellers are unreasonable the government is forced to pay excessive prices or agree to conditions that they may not otherwise deem in the best interests of the claimant.

    Difficulties, delays and high costs of restoring land to claimants can also lead to easier options such as cash settlements being resorted to. This is unfortunate, as it does not address the legacy of apartheid land dispossession and the inequitable land holding that we are left with today in South Africa.

    Court processes in terms of the Restitution Act have proven to be lengthy and expensive. The court is therefore not a viable option for settling claims at the scale required by public demand and the targets announced by the State President.

    It is also unfortunate that in terms of the current legislation a person, simply because they currently own a certain piece of land, can go to court and argue at length about the historical validity of a certain claim. We believe that if the Commission for the Restitution of Land Rights (CRLR) has investigated and found the claim to be valid the claim should be settled and the current owner should only be entitled to go to court to argue as to whether the compensation they received was fair.

    As well as supporting the proposed amendments we would encourage that the powers of
    expropriation conferred by these amendments be used. While we would still advocate, as I am sure the government does, for attempting to reach negotiated settlements, there must be decisive action if such negotiations are going to unduly delay the settlement of valid claims.

    We would further encourage that the constitutional provisions for compensation be tested to the limit to reduce the very high cost to the state of land purchase. Of the five factors to be considered in determining just and equitable compensation, according to section 25(3) of the constitution, only one is market value, yet land is currently bought at market value (The valuations done are also highly questionable and appear to be very high in some cases). We believe that taking into account the other four factors compensation of considerably less than market value could be paid, while still complying with the constitution.

    SPEEDING UP LAND RESTITUTION is BEING RESPONSIBLE
    Current landowners can no longer be allowed to dictate the pace and nature of land restitution. The pace at which land claims are being settled, especially where the return of land is required, is currently extremely slow. It falls far short of the expectations of claimants and the pace needed to meet the target set by the State President for the resolution of all claims. Unresolved land claims continue to hamper other development initiatives and create uncertainty for landowners. It is therefore the responsibility of the Minister for Agriculture and Land Affairs to find ways that this important programme can be speeded up. Attempting to reach agreement with current landowners is fine and I am sure the Commission for the Restitution of Land Rights will continue to do so. However when landowners make unreasonable demands, delay the process or completely block restoration of land to the rightful owners the government must act and expropriate.

    The Minister is not proposing to act "without any recourse to the law", or launching any "assault on the rule of law", as alleged in the article '"Minister irresponsible about land" (Sowetan 2 June 2003). She is going through the correct process to make amendments to legislation that will allow more efficient expropriation within the framework of the law and the constitution. Expropriation is not unconstitutional, provided that it is done as part of a law of general application and that "just and equitable compensation" (not necessarily market value) is paid. The draft Restitution Amendment Bill proposes to do both of these.

    The DA and NNP are irresponsible in their efforts to block transformation and their continued support of a privileged minority of the white minority who still own 80% of agricultural land in South Africa. Restoration and a fundamental redistribution of land are constitutionally mandated and essential for justice and development in the country. All steps to speed this up should be welcomed.
  1. We welcome the opportunity to comment on these important proposed amendments to the Restitution of Land Rights Act, 1994. We write as an NGO that has been working with communities on the land claims process since 1997. We have played a direct role in the settlement of a number of claims, have done validation work on nearly two thousand claims and deal on a daily basis with numerous communities still waiting for their land claims to be settled.
  2. The intention of strengthening the hand of the Minister to settle claims with return of land even where there is no agreement is welcomed.
  3. We urge the Portfolio Committee to keep in mind those who have already lost land rights and suffer today because of this. In such debates, where current landowners are vocal in arguing for the securing of their land rights and claim that their rights are under threat, the plight of hundreds of thousands of South Africans who have already lost their land is sometimes not given adequate attention. The hundreds of thousands who were removed from their land under apartheid with no compensation, many of whom live in poverty today because of this dispossession are not faced with a possible weakening of their rights, their rights have long been trodden on and the government has a duty to remedy this situation.
  4. We believe that if properly structured these amendments remain within the framework of the constitution. We further believe that if these amendments are fully used they can contribute to a speedy resolution of land claims and a further redistribution of land, which in the long run will be in the interests of the whole country.
  5. It has become clear that if we are to settle land claims in South Africa the government cannot be tied into having to wait for agreements to be reached with current owners. While there have been successes in settling claims administratively over the last years, this has only been where the owner has been a willing seller. As such claims are settled we will increasingly be left with those claims where the current owner is intransigent and unwilling to co-operate. Even where owners are willing to sell, they are only willing to sell at certain prices and often on certain conditions. The time involved in negotiating such settlements is also long. Without the ability to efficiently by-pass such negotiations if sellers are unreasonable the government is forced to pay excessive prices or agree to conditions that they may not otherwise deem in the best interests of the claimant.
  6. Difficulties, delays and high costs of restoring land to claimants can also lead to easier options such as cash settlements being resorted to. This is unfortunate, as it does not address the legacy of apartheid land dispossession and the inequitable land holding that we are left with today in South Africa.
  7. Court processes in terms of the Restitution Act have proven to be lengthy and expensive. The court is therefore not a viable option for settling claims at the scale required by public demand and the targets announced by the State President.
  8. It is also unfortunate that in terms of the current legislation a person, simply because they currently own a certain piece of land, can go to court and argue at length about the historical validity of a certain claim. We believe that if the Commission for the Restitution of Land Rights (CRLR) has investigated and found the claim to be valid the claim should be settled and the current owner should only be entitled to go to court to argue as to whether the compensation they received was fair.
  9. As well as supporting the proposed amendments we would encourage that the powers of expropriation conferred by these amendments be used. While we would still advocate, as I am sure the government does, for attempting to reach negotiated settlements, there must be decisive action if such negotiations are going to unduly delay the settlement of valid claims.
  10. We would further encourage that the constitutional provisions for compensation be tested to the limit to reduce the very high cost to the state of land purchase. Of the five factors to be considered in determining just and equitable compensation, according to section 25(3) of the constitution, only one is market value, yet land is currently bought at market value (The valuations done are also questionable and appear to be very high in some cases). We believe that taking into account the other four factors compensation of considerably less than market value could be paid, while still complying with the constitution. A clear formula for this needs to be worked out and if necessary tested with the Constitutional Court.
  11. We would further urge that options such as government bonds be investigated as a method of payment for land acquired for land reform purposes. The payment of cash immediately, often quite long before the claimants even get on the land and benefit, is a burden that risks making land restoration unviable. In most major land reforms implemented around the world and considered to be successful (for example: Japan, Taiwan and China) compensation was not paid in full immediately. It has been common practice to pay a percentage immediately and the balance in some form, such as bonds, redeemable over time.
  12. We recommend amendment to add to the proposed 42E to make clear that the expropriation action by the Minister would be considered where a Regional Land Claims Commissioner has investigated the claim in conformity with the Act and after applying her mind and considering all submissions has found it to be valid. One could also add a clause such as the current 14 (1)(b) where the Commissioner certifies that she does not believe it will be settled through negotiations. We believe these amendments would help to clarify the process and assure people that there will be a due process.
  13. We are concerned with the proposed amendment 42E(3) referring to section 3 of Administrative Justice Act. This may add unnecessary constraints on the process and we would understand the provisions of the Administrative Justice Act to be applicable anyway should someone want to challenge the process. The current wording of the proposed section 42E(3) links the agreement or determination of the price to be paid for the land with the Promotion of Administrative Justice Act and says these provisions shall "apply before such land, portion of land or right in land is expropriated". This appears to imply that the price would have to be agreed or determined before land could be expropriated which seems to defeat the intention of ensuring the land claims can be settled even if the issue of valuation is still being negotiated or taken to court.
  14. Proposed section 42E(5) makes the former owner no longer "a party interested in the claim". This appears to remove their right to take decisions or actions of the Commission on review to the Court as per section 36(1). We believe that such right of review should remain. Removing it will create an inconsistency in the Act and may be unconstitutional. The important thing is that the Minister should be able to act and if a person has a dispute they can take it on review, but it has to be on their initiative and expense.
  15. In summary we support the intentions of the proposed amendments. We believe these and other changes need to be made to speed up implementation of the restoration of land among them using the power to expropriate, provision of adequate resources to the CRLR and a reduction in the amount paid for land. The Minister should have the power to expropriate after a proper investigation and gazetting of the claim and should not have to wait for a court order before acting. All parties must have a right to take decisions on review, but these and any disputes about the value of compensation must not delay expropriation and restoration of land.
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