The Presidential Advisory Panel on Land Reform briefed a joint meeting of the Portfolio Committee on Rural Development and Land Reform, the Portfolio Committee on Agriculture, Forestry and Fisheries, and the Portfolio Committee on Water and Sanitation. The Advisory Panel had asked for a roundtable, not to provide a report to Parliament, but to discuss issues relating to land, water and agriculture with those Committee Members who engaged with constituencies, had oversight over relevant departments and had to ensure that there was appropriate legislation to guide the departments. Committee Members had insights and knowledge, but more importantly, they would be the ones to deal with the legislative processes once the Advisory Panel had made its report. The Panel had decided to present to the meeting a few of its proposals so that there could be a discussion on them. Once completed, the report would be presented to Parliament.
The Advisory Panel focused on specific areas in the meeting. The first area was beneficiary selection and land holding entities. That area was very important in the success or failure of land reform. The second issue was that of land tenure models, for both urban and rural areas. The 1997 White Paper on Land Policy in South Africa referred to land restitution, land redistribution and land tenure but was hopelessly outdated. The land holding entities included the Communal Property Associations, the Trusts and others. The panel had recognised that, at community level, the Communal Property Association structures were a source of erosion of social capital and needed a serious relook. The third issue of discussion was the water sector. Land reform had not been successful because of the misalignment between land rights and water rights. Simply put, water rights had undermined land reform. The Panel was concerned about the issue but wanted to take it a step forward and look at the water structures in the water sector.
The Panel had six workstreams linked to the key areas in land reform: expropriation without compensation and compensation models; beneficiary selection; land tenure models; source of land and public and private acquisition strategies; land reform linked to agrarian reform, and the social aspects of land reform dealing with women and youth, infrastructure, and climate change.
The High-Level Panel led by Kgalema Motlanthe had found that the decision-making about who got land was opaque and there was field-based evidence to show elite capture of land by non-farmers, urban-based wealthy businessmen and the politically connected. There were people with no background in farming being allocated big farms while local farmers with livestock were not getting land. Currently less than 25% of beneficiaries were women and they were in the smaller categories of land allocation. Simply put, land reform was benefiting well-off men. Policy, data gathering, and monitoring were required to deal with the land question.
The Presidential Advisory Panel made particular proposals regarding eligibility, prioritisation, gender. The prioritisation of beneficiaries was a key issue. There were several main questions for debate, including whether there should there be a limit on how much any individual could get from government to curb elite capture. Should people from the locality be given preference? Should only farmers be given land, and should people with no farming experience get land? The Panel questioned whether there should be an equivalent land reform policy for urban land reform? Should some state employees be eligible for access to land?
The question of the model of land tenure was an important issue, as was implementation. Land occupations had also become a vexing question.
The Panel indicated that the mixed tenure model seemed well-supported. The chiefs or traditional leaders were calling for their rights as per the Traditional Council and wanted the state to move forward with proposals for long leases. The big issue had been around the homestead having communal rights but allowing for entrepreneurs, and other uses of the land. The Panel was analysing the “permission to occupy” and how local communities could be bankable without giving title deeds to each person as that model was not popular in traditional areas.
Section 26 of the Constitution dealt with issues of housing, rural and urban, and that had to come to the fore when talking about land reform. The discussion had to include municipalities which had to enable land reform. Statistics showed that 65% of the population resided in urban areas but a more liberal definition of urban land would put the population at closer to 85%. The issue of land reform was not limited to the Department of Rural Development and Land Reform, but crossed a number of departments. It was worrying that 80% of urban dwellers had non-legal and non-recognisable tenure rights.
Members had many and varied questions and suggestions. Several Members asked why there was a total absence of reference to mining land. Was there a law that prohibited township dwellers from getting title deeds, or was it simply that Government had not gone so far as to issue title deeds? How did the Panel propose to entice the private sector to participate in the land reform beneficiation process?
A policy issue raised by a group of Members was the question of why the government had been consistent on the market-led and market-based approach. Why had that not been changed when other aspects of policy had changed? Why had women had been mentioned as a category and not the youth, or people living with disabilities? Was there a category for farm workers? What was meant by “black, non-state employees”?
Members asked if anyone looking at the issue of the current land audit, as the previous one had shown so much land where the ownership was unknown. Other members questioned whether there could be a title deed system alongside leasehold tenure. What was the meaning of redistribution if there were two systems in one country? Where was the equity? What was the view of the Panel on the Amendment of the Communal Property Associations Act in addressing the challenges that had been identified regarding the operations of those Associations? Was there an intention that communities would hold title deeds temporarily until there was evidence that the community was using the land for production as agreed?
As requested, Members also contributed their views. One Member could not agree with a special method of returning land to the rightful owners. It had to be immediately returned to the people who originally owned the land. Another Member recommended that an audit be done of who was occupying what and how payments were determined. One Member suggested that the issue of the mega-farms be looked at. The state should not pay any money to the megafarms. That money was needed to upscale the provisions made for small scale farmers because there were so many of them that they would get really small amounts of money. One Member strongly supported the inclusion of non-farmers as beneficiaries as history and scientific studies had shown that even a non-farmer could become a very successful farmer.
Members advised the Panel to review the mistakes made over the past 25 years and recommended that the Panel should address the Water Reform Strategy.
Ms Ngwenya-Mabila informed the meeting that she was Chairperson of the Portfolio Committee on Rural Development and Land Reform invited the Portfolio Committee. She invited the Chairpersons of the other Portfolio Committees present to introduce themselves.
Ms Semenya introduced herself as Chairperson of the Portfolio Committee on Agriculture, Forestry and Fisheries while Mr M Johnson (ANC) introduced himself as Chairperson of the Portfolio Committee on Water and Sanitation.
The Presidential Advisory Panel on Land Reform panellists present introduced themselves: Dr Vuyo Mahlati, Chairperson, Professor Ruth Hall, Bulelwa Mabasa, and Thato Moagi.
Ms Ngwenya-Mabila welcomed everyone to the meeting. The Committees had been invited by the Advisory Panel to come together to discuss issues relating to land, water and agriculture. As Members of Parliament, their role was oversight over various departments, to ensure that there was appropriate legislation to guide the departments and to ensure that there was public participation in the legislative processes.
Through her Committee’s oversight of Rural Development and Land Reform, Members had learnt that there were various challenges and successes in the programmes related to land reform, such as land redistribution, land restitution and security of tenure. Some of the challenges would be discussed in the meeting so that Members could share their information and hear about the information that the Advisory Panel members had gathered. She was aware that a high-level panel had been appointed by the Speaker’s Forum, headed by former President Kgalema Motlanthe. That panel had already given input and had made recommendations.
Ms Ngwenya-Mabila explained that the meeting was intended as a discussion and she encouraged all Members to participate and to raise their views. She was aware that Departments were meeting on a daily basis to discuss the issues and that there were also issues from constituency offices that would be discussed in the meeting.
Ms Ngwenya-Mabila welcomed the Panel and invited Dr Vuyo Mahlati to brief the Committees and to share her information. She hoped that the discussion would be fruitful and what is discussed would be implemented for the benefit of all South Africans. She urged people to work together to make South Africa a better country and to make sure that people benefitted from the land reform processes for economic growth and to alleviate poverty.
The Chairperson of the Panel
Dr Mahlati thanked the Chairpersons for facilitating the meeting. She was pleased to have such a good turnout from Members on such a busy day. She welcomed the Director-General from the Department of
Agriculture, Forestry and Fisheries, Mr Mike Mlengana, and the DDG for Climate Change and Air Quality of the Department of Environment, Dr Tsakani Ngomane, who was assisting the Panel as secretariat, as well as Mr Siyabonga Radebe from the Office of the Deputy President. The Panel had brought along one of the experts assisting it, Dr Maureen Tom.
She clarified that the panel would not be reporting as a whole but would report on three key areas that specifically related to the three Committees. The first area was beneficiary selection and land holding entities. That area was very important in the success or failure of land reform. Beneficiary selection was critically important but had been neglected, and the Panel had had discussions with communities but needed to talk with the Members. The area of land holding entities also talked to the issues of the Communal Property Associations (CPAs), the Trusts and others. The Panel had recognised that, at community level, the CPA structures were a source of erosion of social capital. The structures needed a serious re-look in the opinion of the Panel, but it was important to have the discussion with Members.
Dr Mahlati assured Members that the Panel would return to Parliament to present a full report if the President allowed it, once the panel had presented its report to him.
The second matter was that of land tenure models. Models for both urban and rural land required urgent attention. The 1997 White Paper on Land Policy in South Africa referred to land restitution, land redistribution and land tenure. The area of land tenure required special attention and the Panel wished to share its thoughts on that matter.
The third issue item was the water sector. Land reform had not been successful because of the misalignment between land rights and water rights that had undermined land reform. The Panel was concerned about the issue but wanted to take it a step forward to have a discussion on the water structures in the water sector.
Dr Mahlati told the meeting that the Panel Report might say something like: The current Land Reform Policy was inadequate to address the past, the present and the future and the changes that the country was experiencing. Part of the legislative proposals would be a National Land Reform Framework that began to pull together all the issues including the three areas mentioned as well as climate change and land expropriation without compensation. The Panel was working towards that National Land Reform Framework. The Panel would not discuss the framework in the meeting but would indicate some of the issues that the framework would contain. The Panel was aware that, as far as legislative implications were concerned, there was quite a number of Bills in the past and in the present that had been presented and that had relevance to the work that the Panel members were doing. Their work would only deal with the policy proposals, but the House would do the actual work on the legislation. The Panel had decided to present to the meeting a few of its proposals so that there could be a discussion on them. That was the intention of the round table.
Dr Mahlati announced that the Panel was holding a colloquium on 22 and 23 February 2019 at St Georges Hotel in Gauteng where Panel members would discuss proposals across the board. It would be the second and last colloquium. The Panel had also held roundtables because it had become clear that it needed to have very specific discussions with very specific leaders. Those meetings had included the round table on land tenure with the House of Traditional Leaders from all provinces on 14 January 2019. The Panel had held another session on land tenure in Johannesburg. The following round table had been on land administration because at the centre of the Panel’s proposal on a national land reform framework was the issue of land administration as a fourth leg. Land administration was in a crisis mode in the country. The meeting had been very instructive, as with all the roundtables. What was coming out is that not addressing land tenure was not just a disadvantage of the majority of the people, but a denial of their rights and identity.
Dr Mahlati informed Members that 80% of the population resided in rural and township areas and that 83% of the urban population resided on 2% of the land. Together with the issues of family titles and communal titles that were not registered, one found that only one third of the population was registered in terms of a title deed. Two-thirds of the population were not recorded in terms of title deeds. Land reform was broader than just ownership. All of those issues were at the centre of the denial of land rights, humanity, identity and social justice. The Panel would share some proposals that would guide the discussion. The Panel would share issues that were emerging from the conversations the members were having with the NGOs that were involved in the land space, together with the Nelson Mandela Foundation, and also with the banking sector to deal with the issues of bonded land. The colloquium allowed everyone to participate. The Speaker had allowed representation by the political parties on the Friday to engage with the Panel and the issues. The Panel was keen to open the engagement with political parties.
The Panel had six workstreams linked to land reform:
- Expropriation without compensation and compensation models
- Land tenure models
-The issue of where the land comes from and public and private acquisition strategies
-Land reform linked to agrarian reform
-The social aspects of land reform dealing with women and youth, infrastructure, climate change.
The new land reform framework had to be strong on infrastructure. The African Union guidelines on land reform were very specific about what the shift was about in property structure, land use and infrastructure.
The focus of the Panel’s work was to address those areas of land reform.
Presentation on Beneficiary Selection - Prof Ruth Hall
Prof Hall thanked the Committees for the opportunity to present emerging perspectives from the Panel.
She was sharing the current thinking of the Panel based on its consultations, presentations by various government departments and the Panel’s own research and experiences to that point. She was focusing on beneficiary selection because the focus had been on land expropriation without compensation, but the panel believed that there was a prior question and that was that one needed to know who the land was for and who should be prioritised. Once one knew who the land was for, one could know which land to go about getting.
Section 25(5) was the Constitutional mandate to do land redistribution. It was a very far-reaching mandate and the state had failed to deliver on it. Legislation allowed for land restitution and secure tenancy but there had never been a law on redistribution of land since the Constitution had been written. The meaning of Section 25 had not been tested. Citizens above the age of 18 and who were not state employees were eligible for land but in practice very few would be getting access to land, so the question was: Who should be getting the land?
The state had had three different policies to land reform that aligned to each presidency: The Mandela period, the Mbeki period and the Zuma period. Acquisition had remained market-based throughout, even though that was not a constitutional requirement. Initially, the policy had been to transfer titles. Since 2011, the state had become the willing buyer and was leasing land. There was no transfer of property, but the state was making land available on leasehold. The means test was removed in 2000. The change reflected a change in the class agenda. In the first reform, it was pro-poor with a means test. From President Mbeki’s term of office, the means test had been removed. So, what was the class agenda? Initially land was a place to live, to have business and so on. In the third phrase, land was for agriculture only, with a focus on commercial farming.
Parliament had received high level information from the Department of Rural Development and Land Reform, but the Department could not provide an overview because the figures had not been broken down. No one had any idea about how farms were allocated and who was getting the land and how much was given to each person or group. There was no policy or an appropriate reporting format. In addition to policy, there had to be disaggregated data and monitoring and evaluation of land reform so that the process could be tracked and evaluated. Parliament was currently unable to perform its oversight function.
The High-Level Panel had found that the decision-making about who got land was opaque and there was field-based evidence to show elite capture by non-farmers, urban-based wealthy businessmen and the politically connected. There were people with no background in farming being allocated big farms while local farmers with livestock were not getting land. Currently less than 25% of beneficiaries were women and they were in the smaller categories of land allocation. Land reform was benefiting well-off men. Policy, data gathering, and monitoring were required to deal with the land question.
Legislation was inadequate. The first legislation on land redistribution was in 1993, the Land and Assistance Act, that empowered the Minister to use state funds to acquire land or to allocate subsidies. It was permissive but not prescriptive. A Land Redistribution Bill was needed to say who should benefit, how prioritisation should take place and how scarce public resources should be rationed. Baseline studies were needed.
Presidential Advisory Panel Proposals:
Eligibility: Citizens above the age of 18 and who were not state employees, i.e. remains as is.
-30% of land beneficiaries would be households with no or very limited access to land;
-30% of land beneficiaries would be small-scale farmers using land for the purpose of subsistence agriculture;
-30% of land beneficiaries would be medium-scale commercial farmers with the aptitude to expand but who are currently constrained by limited land; and
-10% of land beneficiaries would be large-scale farmers who have been farming at a reasonable commercial scale and have real potential to grow but are disadvantaged by “location, size of land and other resources or circumstances”
Gender: 50% of beneficiaries should be women and 50% of the budget should go to women.
The main questions for debate were:
Should there be a limit on how much any individual could get from government to curb elite capture?
Should people from the locality be given preference?
Should only farmers be given land, and should people with no farming experience get land?
Should there be an equivalent land reform policy for urban land reform?
Should there be categories of state employees who could be eligible for access to land?
What should be the model of land tenure?
Should there be an implementation model so that there was consistency in applying land reform policy?
How should land occupation be handled in the light of beneficiaries identified themselves by occupying land?
The agrarian question was only part of the land question.
The 1997 White Paper was far out of date and there was no overarching land reform policy or plan.
Redistribution should be demand-led and pro-active.
Equitable access meant that those who were poor and needed land had to get priority.
The Panel was proposing a Land Rights Protector.
The Panel was promoting land donations, particularly for farm workers.
Dr Mahlati indicated that there were various views, of which the mixed tenure model seemed well-supported. The chiefs or traditional leaders were calling for their rights as per the Traditional Council and wanted the state to move forward with proposals for long leases. The big issue had been around the homestead as communal rights but allowing for entrepreneurs, and other uses of the land. The Panel was analysing the “permission to occupy” and how local communities could be bankable without giving title deeds to each person as that was not popular in traditional areas.
Presentation on Land Tenure Models by Bulelwa Mabasa
Ms Mabasa stated that her starting point was section 25 of the Constitution. It was important to link the urban and rural tenure issues. Tenures had to be looked at holistically, but the models needed to be treated differently. Urban land had not taken central stage to land reform up to that point. Land had been understood as a farming or agricultural issue, but policy proposals were needed to address the urban land question.
The statistic showed that 65% of the population resided in urban areas but a more liberal definition of urban land would put the population at closer to 85%. The issue of land reform was not limited to the Department of Rural Development and Land Reform, but crossed a number of departments. It was worrying that 80% of urban dwellers had non-legal and non-recognisable tenure rights. Land reform had, incorrectly, been treated as an issue separate from spatial planning and spatial disparities. In urban land, the system still favoured the transfer of land and freehold, to the exclusion of the majority. In urban areas, the majority of people fell outside the system because their tenure rights were not recognised.
There had been issues around CPAs, the land holding bodies that operated on land where there were other forms of governance. Chiefs governed on the same land as councillors. CPAs were not functioning as well as they should. A roundtable discussion had been held with the traditional leadership in January 2019 around land tenure in rural areas. There was a need for a revitalised position and a clear intention of the state in terms of endorsing ownership rights or land tenure.
Research shows that the freehold title deed was not a magic bullet. In Mozambique, communal communities had ignored land titles because it was not what they wanted. The Panel’s position was that people and communities should be given choice and not a one-bullet system. Communities should be able to opt in and opt out of a land tenure system.
There was legislation on tenure reform but there were questions that had to be asked around the future. Labour tenants were vulnerable even with current legislation. Land reform should not exclude section 26 of the Constitution which was an enabling section that had to be read together with section 25 of the Constitution. Section 26 dealt with issues of housing, rural and urban, and that had to come to the fore when talking about land reform. The discussion had to include municipalities which had to enable land reform. There were currently instruments for dealing with land reform in the National Development Plan and the Integrated Urban Framework, but they had not formed part of the land reform narrative.
The principles of spatial integration, access to services and opportunity, growth and governance would have to form part of the solution to achieve an integrated national land reform programme.
The Land Redistribution Act needed to address both rural and urban land reform. A Land Records Bill would take account of different forms of land holding and a system that would govern how people and their tenure was recorded.
Ms Mabasa added that financing was not part of the discussion that day, but the Panel did have proposals for the financial institutions.
Ms Semenya took over the Chair for the session. She asked Members to engage with the presentations and discussions. Members had to be succinct and to speak for a maximum of five minutes so that all Members could have an opportunity.
Mr M Filtane (UDM) thanked the Panel for the presentations and the opportunity to engage with them. He asked why, in the preamble, there was a total absence of reference to mining land. Why did it not appear in any of the presentations? Ms Mabasa had stated that urban land seemed to favour the issuing of title deeds. Was there a law that prohibited township dwellers from getting title deeds, or was it simply that Government had not gone so far as to issue title deeds? How did the Panel propose to entice the private sector to participate in the land reform beneficiation process?
Mr N Capa (ANC) appreciated the rich and useful presentations that would enable Members to engage with a lot of things to provide a solution. There were two terms that seemed to be used interchangeably by people, communities and traditional leaders. It did not seem to him that there had been consultation with the communities themselves. The traditional leaders seemed to be recognised as representatives of all communities. He was looking for the opportunity for the communities themselves to be consulted and not be represented by the traditional leaders.
Mr S Matiase (EFF) stated that on behalf of the Economic Freedom Fighters, he welcomed the presentations. He noted some glaring policy weaknesses had been identified, particularly policy shifts over the past couple of years. Government had been consistent only about the acquisition of land, based on market-related prices. That was the only thing in which the Government had been consistent. Why had the government been consistent on the market-led and market-based approach? Government should have seen that it was untenable and unworkable and should have changed it in the way that Government had changed other processes. Why had that not been changed? At the end of the process, through the Presidential Advisory Panel, the EFF had proposed that land reform could not be piecemeal – identification, acquisition and transfer had to be part of the plan. A comprehensive strategy was required. There should be an answer from the Panel that said how much of the 122 million hectares of land in the country from Musina to Cape Town and from Saldanha Bay in the West to KwaZulu-Natal was state land and how much was in private hands?
Mr Matiase stated that, at the end of the process, his party wanted Parliament to pass legislation on the
Agrarian Bill as well as the Land Reform Act to respond to exactly what the Panel had identified. As much as Government had paid attention to tenure as well as land restitution legislation, it had done nothing about land distribution and now was the time to pay attention to that to respond to the land demands of the people.
Mr S Mncwabe (NFP) greeted everyone in the meeting. He required clarity from Prof Hall. In one of the slides, she had spoken about the categories of beneficiaries, which were commercial farmers, women and the aged. This was good but he had not seen anything about youth being beneficiaries. The women category might include young women but if that was not clearly articulated, it would not motivate the young people to work the land, and the youth were the future workers on the land.
Mr Mncwabe had a sense, in both presentations, that when speaking about land, it was for human settlement and agriculture, including farming, but there was nothing about mining or the land that had mineral resources. What had happened to that category? There might be land where people did not want to build houses and it was not good for farming but there could be mining of the land. Land could be used for mining and should not be overlooked.
Ms A Steyn (DA) thanked the presenters. She could see a lot of thought had gone into the processes although Members were looking for answers and hoped, at some stage, to get more clarity. She agreed that there was a need for a Land Distribution Bill which would include all of the concepts of categories of women and youth, etc. She hoped that the Panel would give Members almost a guideline for the beginnings of the Redistribution Bill. Was anyone looking at the current land audit? The previous day, the Department of Public Works had given the Portfolio Committee on Public Works a presentation on the restitution of land that had already been finalised. In the presentation, the Department had shown categories of land in different provinces such as private land, etc. but there was a big category of unknown ownership of land. That was her concern: the unknown ownership of so much land when a process of distribution was about to begin.
Ms Steyn told the EFF that, at one stage, the Department of Rural Development and Land Reform had given a presentation to the Portfolio Committee on Agriculture, Forestry and Fisheries which had seemed to dispute the belief that the total amount of land in the country was 122 million hectares. Members had to make sure that those keeping records were recording correctly so that land was not lost or added. For her, the baseline assessment was very important. No one knew who had benefitted from land redistribution and where they were situated. Were they women, were they youth? There was total ignorance at the moment.
She suggested that the issue of sub-divisions had to be discussed very seriously because sub-division would mean massive infrastructure costs for boreholes, water infrastructure, roads, etc. It was the way to go but could it be afforded? In South Africa and across the world, many farms were growing precisely because of the issue of infrastructure bringing exorbitant costs. That had to be considered.
Mr M Zwane (ANC) welcomed the presentations but he assumed that because of the time constraints, the Panel had been unable to give Members all the information. He knew that there had been an audit of who owned the land, including a racial breakdown. At some point, Members needed to be given the nitty-gritties of who owned the prime land that had water and so forth. In the process of redistribution, barren land without water could not be distributed as agriculture could not thrive on such land. The Freedom Charter said that land should be shared equally amongst those who worked it. Prime land should also be shared equally.
Mr Zwane agreed with the leasing system as presented but the country could not have two systems where some owned land privately and could do what they pleased with it and another system where land would be redistributed on leasehold. What was the meaning of redistribution if there were two systems in one country? Could one system not be applied throughout? Equity meant the same system for all. How could the Panel say that it was addressing the imbalances of the past, when those who had had all the benefits in the past, retained their benefits while the new incumbents would actually pay the State. That was not fair.
Mr Zwane added that he had not heard the Panel talk of displaced farm workers. History showed that there were farm workers who had left farms, not because they wanted to, but because they had been forced off the farms. Was there such a category? The issue of women had to be encouraged but there had to be an audit of the current farm workers. Were they women or youth? It would be necessary to deal with the land of the state but an overall picture of the land in South Africa was necessary.
Ms M Khawula (EFF) spoke in isiZulu. Her input was followed by an argument between her and the Chairperson about whether there would be a translation of Ms Khawula’s input. After a discussion between them, it was agreed that the translator could translate very briefly.
Translation: Ms Khawula had a problem with the land issue. She could not agree with a special method of returning land to the rightful owners. It had to be returned to the people who originally owned the land, regardless of whether the original owner had used the land for agriculture. It did not matter about agriculture because even their grandfathers had had livestock and the land had been forcibly removed without any compensation and their livestock had been taken away from them. They had land that contained grave yards, but the people had been removed from those areas. In Majuba there still was an outcry by people who had been deprived of their land. People had been removed to allow the building of dams. Under the dams were graves. In Ballito, the land was owned by the Gumede clan. Government was making a joke of headmen. There was no one instance where the traditional leaders were given control over their land. Instead, they were informed about their land. They could not take decisions but had to be mum all the time. Wrong things were happening about returning land to the rightful owners. Corruption was the order of the day in the Department of Rural Development and Land Affairs and they were not doing justice to the land. She saw no purpose in that exercise. People were ready for their land. Give it to them.
Ms Ngwenya-Mabila welcomed the presentations. She noted that when listening to the presentation on land holdings, only the CPA had been mentioned. It had not addressed the challenges of land trusts. It was true that there was no Land Distribution Bill. She had been told that the Department of Rural Development and Land Affairs was busy with it and would present it to the next Parliament as there were only a few days left of the current Parliament. What was the view of the Panel on the Amendment of the CPA Act that addressed the challenges that had been identified in the operations of the CPAs?
Ms Ngwenya-Mabila asked Prof Hall to clarify the point about beneficiaries being removed and replaced with others. The Panel had spoken about the role of the municipality in relation to land allocation and had mentioned SPLUMA (Spatial Planning and Land Use Management Act). She understood that inter-governmental relations meant that local municipalities could engage the Department of Rural Development and Land Affairs regarding issues related to land. She also noted that ESTA (Extension of Security of Tenure, Act) was clear that when a person was being evicted, the eviction order had to be given to the Department of Rural Development and Land Affairs and then to the municipality as the municipality had to allocate land to that evictee. That meant that the Department had to work with municipalities. When looking at expropriation without compensation, the current legislation said that the State could expropriate for public purpose or public interest which meant that one could expropriate for land reform, restitution or redistribution or for infrastructural development such as a school or railway line.
She added that every SA citizen had the right to land, but there was a need to prioritise this in the way that the Panel had categorised people who should be beneficiaries. It was the same as the right to housing. Everyone had the right to housing but one had to prioritise. A colleague had mentioned youth. She thought that women- headed or children-headed households should be prioritised as if there was no one looking after them, they could survive if they had a piece of land to work.
Ms Ngwenya-Mabila said that looking at the recommendations, many were the same as those contained in the High-Level Panel Report, such as the Land Records Bill. She agreed that the first stage of the land audit had been done and that it stipulated clearly who owned what, i.e. the percentage of state land, private land and the unknown land, as Ms Khawula had indicated. The second audit was intended to categorise land according to nationality, race and gender, and that process had begun. She believed that there had been movement in land restitution but there were challenges. She recommended that an audit be done of who was occupying what and how payments were determined.
Finally, Ms Ngwenya-Mabila addressed the issue of communal areas – RTOs (rent to own) and PTOs (permission to occupy) - that made it easy for even traditional authorities to enter into agreements with mining companies and take the family land. Because the family did not have any proof that it was their land, they were unable to go to court. Those people were not legally recognised. She requested copies of the presentations in either a soft or hard copy.
Mr A Madella (ANC) expressed his appreciation for the presentation. In respect of the categories, he supported the inclusion of youth but was worried that the disability sector had not been identified and, and were therefore invisible and not catered for. The current message was that disabled people were banned from farms and confined to urban areas. He did not think that that was the kind of message that the Panel wished to portray.
Mr Madella asked that the issue of the mega-farms be looked at. That category of 10% had to be removed. If 10% of the available funds were utilised, it would be R 1 billion, and that was still a lot of money. There were very few mega-farms and they were owned by very rich people. The state should not pay any money to the megafarms. That money was needed to upscale the provisions made for small-scale farmers. Because there were so many small-scale farmers, they would get really small amounts of money. That categorisation had to be re-looked at. Was there any thinking about capping the size of the farm?
Mr R Cebekhulu (IFP) thanked the presenters for their presentations. He thought that Prof Hall had said that the state was buying land for the communities that were beneficiaries as groups, such as the CPAs and the trusts but the state was handing over title deeds to the CPAs and the trusts. He asked for clarity on the issue. Prof Hall had correctly said that the land belonged to the state and it paid for it. Was there an intention that communities would hold title deeds temporarily until there was evidence that the community was using the land for production as agreed? That would leave the beneficiaries without land.
Secondly, Mr Cebekhulu asked about the Land Audit Report. Communities were hoping to get finances from the produce grown on the land, but they produced far less than the number of beneficiaries. How should the finances be distributed to the communities on those farms?
Mr E Nchahabeleng (ANC) thanked the Panel for the input. His worry was that the hatred in the country was going to bury everyone alive. The problem was not the laws passed in Parliament but how people related to one another; those who owned land and the landless; those worked on the farms and the farm owners. Many farmers believed in the protection of human rights but did not see workers’ rights as human rights. Workers had to come and work and when they were tired, they were kicked off the land.
He added that, in Mpumalanga, there was talk of a farmer who had water rights but just decided to block the water to another farmer and now he wanted payment for the water. Everyone thought that that farmer was getting water, but he was not. When the Portfolio Committee on Water and Sanitation went to the site, the Water Board knew about the situation. Only white people were sitting on the Board. There would be many other cases like that one. Even the crimes committed by the people who had land did not end up in the courts. When he had stayed in Marble Hall as a young man, a lady had been shot by a farmer who mistook her for a baboon, but he was acquitted because doctors could not take the bullet out of her skull as that would cause her death. Also, farmers evicted people without a court order. Labour inspectors should add value to the quest for human rights on the farms.
Ms N Magadla (ANC) welcomed the report and supported the principle of categorisation. Members had covered a wide raised a wide range of issues, but she asked that the environment not be forgotten. Her colleagues had covered her on the issue of consultation. When she had been in a very rural area, she had always been left behind when there was consultation. The rural people were always left behind.
Ms T Mbabama (DA) said that she would like to address Dr Mahlati and the panel team members. She asked them to be as non-partisan as possible. She knew that if there was a DA government, there would probably be a DA Chairperson heading up the important Presidential Advisory Group. The Panel had a task to do that was very important for all South Africans. She asked the Advisory Panel not to politicise the matter. She assured Dr Mahlati that it would not be easy, and she was not saying that it had been politicised, but asked her to try to avoid politicising it as best she could.
Ms Mbabama stated that she had been involved with land reform since 1995 and she pleaded with the Advisory Panel not to take a top-down approach. Many mistakes had been made over the past 25 years and many of those mistakes had been simply throwing the baby out with the bathwater. Those involved in land reform had not looked at the mistakes that they had made as the years had gone by so she would like the Advisory Panel to review the mistakes made by South Africans over the past 25 years. In terms of the solutions, could the Panel show that each solution mitigated a mistake of the past. In the past, they had not looked at the needs of the people but had found top-down solutions, such as Commissions. Whenever the people were involved, everything had been politicised. Even with the Constitutional Review, each and every party was trying to push its own agenda. People who really cared about things in SA would put the political agenda aside and really try to do the job that the Panel had been appointed to do. She said that although there had been mistakes, good things had also been done and the Panel should not try to fix what was not broken.
Ms Mbabama added that while looking at rural tenure, she would like the Panel to look at the issue of real chiefs, and not tinpot dictators. One of the solutions should address that issue and find a different solution to the ownership of the land. She asked that the solutions not take the country back to the 99-year-old leases. Her grandmother had never had the opportunity to own her own land. As a black person she wanted to have the opportunity to own her own land. If people wanted to nationalise and have government own the land, that could be done in 200 years’ time, but coming from the history that she had, she wanted the papers for her own land, be it a farm or residential property. It was like the vote. Those who had never had the privilege of voting in the past had wanted to vote. So why should anyone want to deny their own people the pleasure of owning their own land?
Mr P Mnguni (ANC) thanked the presenters for their presentations. He said that there had to be equity and redress in terms of the allocation of water. On oversight visits by the Portfolio Committee on Water and Sanitation, Members had seen how the majority of black farmers were still having a problem with water rights. The land had been given to the farmers through the land redistribution programme, but they had no right to water. He had hoped that the Panel would address the matter of the Water Reform Strategy. In 2008, there had been a plan for water rights and distribution from 2014 until 2024. The Land Reform Bill had to form part of the strategy for water distribution.
Mr Mnguni noted that the Panel had spoken of categorisation and his colleagues had come up with other categories, but the Panel had asked whether non-farmers should be included in the distribution of land. History and scientific studies had shown that even a non-farmer could become a farmer. Even today one saw collaboration between farmers and non-farmers which had led them to achieve success in farming. He did not think that non-farmers should be excluded.
Mr Johnson thanked all the Members for their input, but he asked himself exactly what the roundtable meeting wanted to achieve. Granted the Panel wanted to get some ideas and to get MPs to contribute to the bigger discussion relating to land acquisition without contribution but that question still had to be responded to. Policy makers should not just be asking questions, but should put up concrete proposals going forward. Likewise, what were the Members trying to achieve by engaging in the exercise?
Mr Johnson liked the class question in such a debate. It was a critical question in the debate around what government wanted to achieve through land expropriation without compensation. Did they want to build a new peasant in SA, a seriously industrialised country? If the country could go back and create a new type of peasant, what would that peasant be? He liked the point made about the church land. He was not sure what that meant but assumed it was land acquired by churches. Anyone wanting to make easy money in SA these day, simply started a church. It was so easy to make money by opening a church. He had been told that land was sold at 1% of its market value if the land was for a church. That was what he had been told.
Mr Johnson stated that the water rights issue was real. The legislation had been initiated that was supposed to bring equity to water rights, but it had taken so long that it was the end of the Fifth Parliament and the legislation had not gone through Parliament. That legislation would have done away with the 1956 Water Act, not only in Mpumalanga, but throughout the country. Riparian rights were still very active. The land reform programme had given black farmers access to farms but where water had been accessible on a farm, suddenly the water was not coming through the farm and had been distributed elsewhere, and the new owners would struggle to make ends meet. In broad terms, the new African owners of the land would not succeed until the issue of water was resolved. Unfortunately, the Department of Water and Sanitation had been very intransigent on that issue. Africans who got access to land suddenly found that water was traded separately.
He asked that the Panel specify what was meant by “black, non-state employees”. One needed to be very specific when talking about black so that there was no ambiguity.
Ms Semenya noted that there were two things that the Members from the Portfolio Committee on Agriculture, Forestry and Fisheries had not raised. Firstly, the issue of nation building was critical for land distribution and land reform. There were two prongs: the hatred towards people and government that was re-distributing land to owners without seeing the value of that asset. Nation building was key to achieving land reform. Secondly, she agreed with Ms Mbabama about learning from mistakes made in the past. Some of the programmes were very good programmes but had been incorrectly implemented. The President had spoken of government land that would be the first to be released but she asked that farmers be given agricultural land. Agricultural land should not be redistributed for anything except farming as one had to remember that the country had to produce food for the people.
Ms Semenya added that the issue of capping ownership was important because a lot of foreigners owned land in SA. A lot of agricultural land was being used by foreigners for game reserves. That issue could be resolved by the Land Administration Act. Things like that could be implemented immediately. Even as the Members were engaging with the issues, others were making plans to use land for malls, etc. There had to be a balance between land for mining and land for agriculture.
Ms Semenya asked the Panel to respond.
Response by the Presidential Advisory Panel on Land Reform
Dr Mahlati addressed the issue of consultation which was a very sensitive issue for the Panel. It did not have enough time, but it had tried through the colloquia to make sure that various stakeholders from the communities were involved, directly as well as from structures, such as CPA, traditional leaders, NGOs and CPOs. The Panel had attempted to involve as many stakeholders as possible. It had met with the South African Council of Churches. The efforts to involve stakeholders had been commendable. The Panel was specifically avoiding making the decisions on behalf of people. From a rural perspective, the Panel had done its best to include all constituencies. It had had one engagement with women’s formations. Consultations had cut across various areas to ensure that the Panel did not see just one perspective. All proposals were being tested across the board.
Dr Mahlati explained that the Panel’s mandate and terms of reference were distinct from the land expropriation without compensation process. The Panel’s processes were quite distinct from the work that Parliament was doing. The panel is mandated to review, research and suggest models for government to implement a fair and equitable land reform process that redresses the injustices of the past, increases agricultural output, promotes economic growth and protects food security. Mining was a form of land use and was being tackled from that perspective but not the perspective of land ownership. The Panel’s engagements had included the mining houses and part of those engagements had been looking at where land would come from. The Panel had also approached churches, corporates and property owners and landowners. Mining and minerals, however, had a different legal perspective from land ownership. It had a different dispensation from a licensing perspective. The Panel was not excluding mining land from a land usage perspective.
Ms Mabasa explained that in relation to minerals, the Panel’s dispensation was that mineral rights were licensed by the state and to hold minerals as a licensee, one did not have to be a land owner. When talking about mining houses owning land, it was true that there were mining houses that did own land, but one did not have to be a land owner to have mineral rights. There were communities that had had their land restored to them but that were compensated by the mining houses for the right to mine on that land. That was the preserve of the Minerals and Petroleum Resources Development Act (MPRDA).
In response to the question about the issuing of title deeds, Ms Mabasa stated that there was no law preventing it, but it touched on succession laws in the country and the fact that the cultural, social and lived experiences of most black people was that they did not recognise a single individual as a landowner. That meant there had to be a caution around simply handing out title deeds in a way that could cause conflict in households. There was a caution that if a single person were given title deeds, family conflict would be rife. There had to be a clear and coherent policy that took into account black township homes that allowed the communal structure to recognise a home that was not owned by a single individual. If title deeds were handed out willy-nilly, one could be faced with the situation where the person with the title deeds could sell the house, displacing everyone else in the family and undermining the entire household.
Ms Mabasa responded to the question about how to entice the private sector to become involved in land reform. She stated that where there were huge projects to do with land development, one was seeing the inability of municipalities to provide infrastructure because of financial and economic realities and the private sector was taking on the role of government in paying for bulk infrastructure. Land reform solutions were not just going to come from government, or Parliament. Interaction between the public and private sector would become crucial. The same applied to managing sub-division. There would be a capital-intensive issue in the bulk structure requirements of sub-division that could not just be managed by government.
As far as trusts were concerned, the questions and challenges were the same issues that one found with CPAs. Both systems had proven to be difficult. The trust system on its own was archaic regardless of land reform. The reform measures that were needed to deal with CPAs applied equally to trusts. She apologised for not being able to deal with all questions in detail.
Prof Hall thanked the Members for the wide-ranging comments and questions. She assured everyone that the Panel had taken detailed notes so nothing would go unattended, even if the Panel could not immediately respond. She was pleased that, generally, there seemed to have been a positive response from the meeting in relation to categorise, prioritise, redirect and clarify purpose and targets.
Prof Hall acknowledged the criticisms that she had been silent on youth and disability. Consultation with rural communities was acknowledged as being important. It was also important to keep track of all the legislative implications of the proposals. One of them was the Interim Protection of Informal Land Rights Act of 1996 (IPILRA). It was very weak as it was meant to be a holding mechanism but had been re-promulgated every year. The need was for a stronger and a permanent form of IPILRA, as promoted by the High-Level Panel.
Prof Hall responded to Mr Matiase’s point about the policy shifts and the adherence to market-based acquisition. Willing buyer, willing seller was a policy choice. It was not in the Constitution. The property clause assumed that land reform would proceed, at least in part, by expropriation. She was pleased that he had suggested a complementary approach and the Panel was working on that. In addition, to a permanent version of IPILRA, the Panel saw the need for a Land Redistribution Bill and Land Records Bill. They would work in tandem because the Land Redistribution Bill was about promoting equitable access and the Land Records Bill was about promoting security of tenure. Both were necessary.
Prof Hall noted that several people were concerned that no one knew who owned what and they had mentioned the inadequacy of the land audits of 2013 and 2017. AgriSA had also done its own land audit, but all of them were incomplete and so there was still some way to go to find out what should be done. She suggested that the Panel should be promoting a new White Paper, looking at land tax and at clarifying the processes around sub-division. Several issues raised were already addressed in the Regulation of Agricultural Land Holdings Bill, including the ceiling on how much land one could hold and the self-declaration of race and gender as well as a limit on foreign ownership. All of that would come back to Parliament in the next term. She pointed out that it was necessary to think very carefully about a ceiling on land as, for example, a small farm in the Northern Cape was very different to a small farm in the Winelands. The Regulation of Agricultural Land Holdings Bill had to be debated very heavily.
There were contradictions with the Preservation and Development of Agricultural Land Framework Bill (PDALF) which aimed to apply a floor rather thana ceiling. That meant that two different departments had different ideas about whether to keep farms intact versus subdivision. There was no clarity on the matter.
Prof Hall informed Inkosi Cebekhulu that the state used to provide subsidies for people to acquire private title which could not be revoked but the change in 2011, under then Minister Nkwinti, was for the state to buy land and lease it out, initially for three years. The 2013 State Land Lease and Disposal Policy meant that the lease could be held for 30 years and could be renewed for another 20 years, i.e. 50 years in total, after which one could apply for transfer of title. There was no such thing as holding titles temporarily, but it was about leasehold, which might, or might not, become a title later. What was the purpose of the state trying to extract rent? Sometimes people made very small profits but had to pay rent out of that money. It was a very small amount of money in terms of the larger fiscus.
Prof Hall thanked Mr Johnson for raising the point about the need to address the expropriation without compensation question and the matter of church land. During colonialism and under apartheid, many people had acquired land but, because they were not legally allowed to own the land, the church owned the land on their behalf. The mission stations was a good example of churches owning land. In 1990, the churches had promised to distribute land, but it had not happened. The country was in a new moment and should be pressurising the churches and private land owners. Development agencies were proposing to bring in private sector funding to promote land reform. In the past year, people who had resisted land reform had come to the table to be part of land reform, which was quite productive.
Prof Hall added that in all the Panel’s statements, black was used as in SA legislation and policy, i.e. black in an inclusive sense and not black African.
Dr Mahlati thanked all Members again for their questions. She addressed the question by Mr Johnson about what the Panel was trying to do. The purpose of the roundtable had been to bring in three Committees that were specifically dealing with the issues of rural development, agriculture and water to suggest how the Panel members could begin to think about the issues in a more integrated way. The Members from the three Committees were specifically dealing with matters relating to land tenure and beneficiary selection. The intention was not to come up with resolutions from the meeting, but to get ideas. She encouraged Committee Members to make written submissions to the Panel.
Dr Mahlati noted that the important issue raised by Mr Nchahabeleng of hate and how people had been divided by the land question. Nation building was important, and the Report had to address that as well as worker rights. The centre of the land reform had to be nation building, while also addressing workers’ rights.
Referring to the question about market-based prices, Dr Mahlati explained that the Panel had received a presentation from the Valuer-General. The Panel would be raising questions about the legislation that directed the work of the Valuer-General and how it related to the Constitution as, in practice, the Valuer-General followed a very clear market approach that did not adhere to the fair and equitable provisions of the Constitution.
The comprehensive strategy was what the Panel was actually working on. Dr Mahlati added that the issue of recording did not have to wait for the long-term process. People needed to be registered and recorded and that should be commenced immediately. The Panel was recommending a drive for people to go and record. That would be proposed to government. Another area raised by the Inter-Ministerial Committee was foreign-owned land issue. She assured Ms Khawula that the issue of giving land to the people was an issue that everyone was seized with, but a lot of work had to be done. A lot of lessons had been learned and they need to continue learning as far as land restitution was concerned. She was learning that it was important to assist communities.
Dr Mahlati said that one of the reasons for proposing a Land Ombudsperson and Rights Protector was because the Panel had recognised the level of conflict that had resulted from dispossession. The lack of registration created conflict even within a household. Communities had to talk amongst themselves to try and minimise the level of conflict that had been seen with the land restitution process. The prioritisation of youth and child-headed households would be addressed.
Dr Mahlati addressed the class issue that Prof Hall had discussed. She stated that Panel members had various views on the matter because land was a class issue. Land was a race issue. Land had issues around gender and inequality. It was the Panel’s responsibility to come up with mechanisms in the strategy to address the issues. The shift from the means test was part of the process of battling with the class issue and giving land to the poorest of the poor. But, on the other side, inequalities at the top levels of land ownership, particularly the commercial and big farms, were being entrenched. Less than 5%, or even 1%, of commercial farmers were black. The poorest of the poor had to be protected and one had to prevent the elite gaining all the land, but the big farms could not be untouchable or years later the country would sit with the big commercial farms still in the same hands. It was a racial issue, but the most vulnerable had to be protected.
Dr Mahlati said that there was a concern about the water issue. As Members had said, the lack of access to water was a real issue. The intention was to look at an alignment of land and water so that water was transferred along with the land. The 1956 Water Act would have to be reviewed.
Dr Mahlati concluded by informing Members that a lot of the work being done by the Panel would have legislative implications, from water to land restitution, the proposed Land Administration Bill, the Community Property Bill, and making the IPILRA permanent. More concrete proposals would be submitted, but the Panel might need the Members’ assistance for tightening the process.
She added that Institutional arrangements were critical. The re-arrangement of departments had been raised by the President in the State of the Nation Address. The Panel had indicated proposals and concerns about how the departments addressed the issues and that should be part of re-organising departments. Inter-departmental relations was another consideration for the Panel.
Prof Hall explained that there were a lot of opportunities for looking at the land reform process. The universities of Western Cape, Rhodes and Fort Hare had held a conference to look at three different models of land restitution: market-based model, a smallholder model and a radical approach. A policy brief from that discussion was available.
Ms Semenya requested Mr Johnson to close the meeting.
Mr Johnson thanked the MPs, the Panel, and departmental officials. He thought that the Panel should consult with the Department of Public Works as it held state properties. The Panel needed to think of others who were important to the question of land reform. It was an emotional issue and Members would have to deal with it for quite some time. He asked that MPs avoid being emotional. The issue dealt with realities. He was calling for maturity as the matter was dealt with. The Portfolio Committee on Water and Sanitation was going to go through a similar exercise. There were many stories about water as it was a very thorny and emotional issue. Water was life. During the drought in Cape Town, two white farmers had given water to the City of Cape Town. Government could account for no more than 400 dams, but private farmers had enough to provide to a city.
The meeting was adjourned.
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Johnson, Mr M
Ngwenya-Mabila, Ms PC
Semenya, Ms MR
Basson, Mr LJ
Bilankulu, Ms NK
Cebekhulu, Inkosi RN
Filtane, Mr ML
Khawula, Ms MS
Madella, Mr AF
Magadla, Ms NW
Matiase, Mr NS
Mbabama, Ms TM
Mncwabe, Mr SC
Mnguni, Mr PJ
Nchabeleng, Mr ME
Shelembe, Mr ML
Steyn, Ms A
Walters, Mr TC
Zwane, Mr MJ