Gelukwaards Farm invasion; Committee Reports: Canada Study Tour & MalaMala; Legacy Report; with Deputy Ministers

Rural Development and Land Reform

13 March 2019
Chairperson: Ms P Ngwenya-Mabila (ANC)
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Meeting Summary

In the presence of two Deputy Ministers, the Department of Rural Development and Land Reform (DRDLR) gave a status report on the illegal invasion of the Gelukwaarts Farm Project on the West Coast.

The Gelukwaarts Farm was upgrade by the Department of Agriculture with piggery infrastructure to the value of R10.4 million.  Thereafter DRDLR acquired the farm for R4.1 million taking the investment of the Department of Agriculture into consideration. Beneficiary selection took place on 2 February 2018, with a site inspection prior to the selection process. A Ms Ngxumeshe came forward indicating she was living on the land while this was disputed by the caretaker. After the selection process Ms Ngxumeshe produced a lease agreement. The owner disputed the legality of the lease. Damage to property and related charges were laid with SAPS. The farm was invaded by three adults and a minor. Mr Cloete and his helper were attacked. A security company was appointed by DRDLR and deployed to the farm to safeguard the state property.

Committee Members expressed their disappointment at how the Department of Rural Development and Land Reform (DRDLR) handled this matter. They did not understand why the South African Police Service (SAPS) was not taking action against the occupants of the farm. Members noted that DRDLR officials were not speaking with one voice about the lease agreement between Ms Ngxamashe and the owner which was not mentioned in the presentation. They asked why DRDLR was not aware of the lease agreement. The Committee made suggestions on the way forward.

The Committee adopted its Legacy Report and Committee Reports on MalaMala and its Canada Study Tour.

Meeting report

The Chairperson welcomed the two Deputy Ministers and noted apologies from the Minister and Director General.

Gelukwaarts Farm Project: Status Report
Ms Candith Mashego-Dlamini, Deputy Minister of Rural Development and Land Reform, said that the Department officials will brief the Committee on the progress with regard to the tensions and the current status of the farm.

Ms Juanita Fortuin, Chief Director: Department of Rural Development and Land Reform (DRDLR) spoke about farm's land use, purchase price, beneficiary selection; factors leading to the current challenges, interventions by Department and other state agencies to resolve tensions; monitoring and possible interventions.

Overview of the Farm
Farm Gelukwaarts, measuring 35.9865 hectares, is situated in the Bergrivier Local Municipality within the West Coast District Municipality. It is a commercial farm and pigs and 12 guavas are the commodities being farmed. It was supported by the provincial Department of Agriculture (DoA) with a R10.45 million upgrade to the piggery infrastructure.  The property was valued at R10.45 million and DRDLR acquired the farm for R4.15 million taking the DoA investment into consideration

Beneficiary selection took place in February 2018 with a site inspection prior to the selection process. The Selection Committee comprised of the Chairperson of the District Land Reform Committee (DRLC), a member of the commodity organization applicable to this farm, organized agriculture, the provincial DoA and as well as a DRDLR member to provide a secretariat function.

Background to Farm Gelukwaarts Project
A joint allocation was made of Farm Bellevue to Mr I Cloete and Mr T Sibeko, which formed a joint entity. The two farmers agreed that each will pursue their own interest. Tension emerged between them so a sub-division was requested. Progress made by Mr Sibeko with a RECAP allocation escalated the tension. The former DRDLR DG and Acting DDG: Land Acquisition and Redistribution advised relocating Mr Cloete and re-allocating him land. DoA and Mr Cloete brought the sale of Gelukwaarts Farm to DRDLR’s attention. Ms Ngxumeshe came forward indicating she was living on the land while this was disputed by the caretaker. She was included in the selection process. After the results of the selection process Ms Ngxumeshe produced a lease agreement between the owner and herself. The owner disputed the legality of the lease. Legal opinion was sought.

Interventions by DRDLR and other state agencies to resolve tensions
Ms Ngxumeshe approaches Black Farmers Union (BAFU). BAFU abandons Ms Ngxumeshe. Intimidation started and Ms Ngxumeshe laid several charges with SAPS including that of fraud for forging her signature. DRDLR approached SAPS in January 2019 as Mr Cloete is the allocated beneficiary. The State Attorney postponed dates to help resolve the matter. Damage to property and related charges were laid. When Ms Ngxumeshe became aware of the lease agreement to be issued to Mr Cloete, the farm was invaded by three adults and a minor. Mr Cloete and his helper were attacked.

SAPS was deployed on a regular basis. Security company was appointed. Further monitoring of the stability and functioning of the project continued. Support was sought from the State Attorney to resolve the matter. Ms Ngxumeshe is refusing participation in the selection process. She was offered support from other branches of DRDLR. There are possible interventions to address the land needs of the “invaders”. Ms Ngxumeshe is on the database of the DRDLR for future lessee selection processes.

State Attorney advised that the Lease Agreement with Mr Cloete should be enforced. Counsel will bring an urgent application in March before court for the eviction of Ms Ngxumeshe and all those residing after her on the farm without the consent or approval of DRDLR on the basis of damage to state property.

The security company appointed by DRDLR will continue to safeguard the state property. DoA has assigned engineers to the farm to sort out the guava tree irrigation challenge that was disrupted. Porterville police and Department of Safety and Security were called in to the farm to assess it and conduct risk assessment.

Discussion
The Chairperson said listening to DRDLR she is starting to worry about the way DRDLR is addressing this problem. It is creating a tendency for people to break the law without action being taken against them. Instead of addressing the problem, DRDLR keeps allocating farms.

She asked why Ms Ngxumashe cannot simply be arrested for wrongdoing. If Mr Cloete is the one that has been allocated that farm, why cannot they evict people illegally occupying the farm, instead of removing Mr Cloete to another farm? DRDLR is not addressing the problem because DRDLR is saying Ms Ngxumashe can continue to break the law as long as she wishes.

Mr A Madella (ANC) agreed with the Chairperson. DRDLR is creating more problems than solving them. He suggested that when DRDLR allocates farms it must first ensure that people living on that particular farm are consulted before anyone is brought onto the farm to avoid tensions and conflict.

Ms N Magadla (ANC) agreed that DRDLR is not solving the problem especially with the escalation of tensions on that farm. Why is Ms Ngxumashe allowed to do as she pleases and the South African Police Service is doing nothing to stop her? How come DRDLR was not aware of her lease agreement?

The Chairperson said the previous farm owner disputed that lease agreement. Why can DRDLR not just evict the people who are illegally occupying that farm?

Mr P Mnguni (ANC) asked for clarity on the R10 million from the Department of Agriculture, and the R4 million from the DRDLR. Was that collateral to make it R14 million?

Ms Fortuin replied that the Department of Agriculture constructed a huge piggery facility to the value of R10 million as the farm did not have enough space for a biometric area. DRDLR valued the property at R7 million, and subsequently paid the owners R4 million because they factored in the investment made by DoA. Since DRDLR bought the land, it takes full responsibility for the farm infrastructure.

Ms Fortuin replied that they take note of the comments by Members and they assure the Committee they will not leave this matter hanging, the legal route will continue. It has just taken a little longer than they anticipated in getting this matter to court. There is reluctance from SAPS to support them. They have laid cases and provided affidavits but SAPS has not taken action as yet. However they have made an agreement with SAPS to do patrols at the farm so that there is some surveillance while security is deployed. As already indicated, they will continue with the legal process.

Adv Vela Mngwengwe, Acting Deputy Director: DRDLR, replied that they cannot just evict people illegally occupying the farm. The situation as he understands it when DRDLR bought the farm the previous owner told DRDLR that there is a lease agreement on the farm. The previous owner also said the lessee has no problem with the sale transaction of the farm. The first error DRDLR committed was not to follow up on that when it was raised prior to the farm acquisition when the previous owner accepted their proposed offer.

Adv Mngwengwe said that in South Africa if someone buys a property and there is a lease on it and that lease has not expired, the new owner is bound by the terms of that lease. What seems to have happened here is that someone provided a legal opinion that the lease is not valid. If there is a lease on a property a third party cannot ignore it and regard it as invalid. One has to go to court and have it declared that it is not valid. This was another mistake that occurred when DRDLR purchased the farm.

Therefore, after realising that was the case, DRDLR should have resolved the matter of the lease before bringing in Mr Cloete. It is unfortunate that Mr Cloete is mixed up in this. The reality is that there is a lease that expires in 2027, and for some reason DRDLR believed for quite some time that lease is not valid. The only solution for this mess is to go to court and the lease declared as invalid. They cannot bring a new agreement without cancelling the other one, which is the reason they are where they are.

Adv Mngwengwe said on the eviction of the illegal occupants that they need to know who those people are. The assumption that they are illegal occupants is problematic as they need to establish why those people are there. One should not mix the Ms Ngxumashe matter with this matter of the lack of security due to the illegal occupants. It is unfortunate that they brought in Mr Cloete prior to dealing with this.

The advice of the state attorney, which he supports, is they need to deal with the contract and get it terminated properly, and then deal with the security situation of Mr Cloete. Unfortunately, they cannot wait that long. This is why they should consider giving Mr Cloete another farm so that he does not remain in that unsafe situation, while they are dealing with the contract of Ms Ngxumashe.

The Chairperson asked if this is additional information that Adv Mngwengwe is coming up with as it does not appear in the presentation. Is Adv Mngwengwe part of DRDLR or another department?

Adv Mngwengwe replied that he is trying to place the facts before the Committee so that the Committee can properly engage on the matter. The fact that the presentation does not mention the lease agreement should not preclude him from divulging that information to the Committee so that they could have a proper discussion with all the facts on the table.

Mr Madella said his difficulty with the explanation by Adv Mngwengwe is that the Committee expected DRDLR to present the problems and causes with one voice. The information now given by Adv Mngwengwe should have been discussed by DRDLR prior to coming to the Committee, and even before the advice of the state attorney had been sought.

The Chairperson asked if DRDLR was aware that there was a lease agreement with Ms Ngxamashe.

Ms Fortuin replied she had told the Committee that when they started with the selection process, Ms Ngxumashe came forward and she went through the selection process. After the outcome of selection process, Ms Ngxumashe told DRDLR that she has a lease agreement with the former owner of the farm. When that lease agreement was brought to their attention, they contacted the owner. The owner then gave them that letter which indicated that she will move from the property when the owner received money from the state. However, she moved back on the property.

She told the Committee that DRDLR had sought legal advice from the state attorney, who indicated that DRDLR continue with legal action for damage to property and to enforce the contract, which will take them 21 days to do so. Therefore, on that basis they have taken a decision to relocate Mr Cloete due to the tension on the farm and until this legal process is finalised. The Committee has also advised that they go through the legal process so they do not create the impression that they are condoning the behaviour of Ms Ngxamashe.

Deputy Minister Mashego-Dlamini replied that the presentation presented to the Committee is the one that they have interacted with and discussed with the Acting Director-General, and is the one that was presented by Ms Fortuin. If there was additional information, changes to the presentation should have been done so that it has all the information required by the Committee. Their understanding was that Adv Mngwengwe is joining the presentation as DDG and they did not know that he has additional information, which is also confusing for the Department.

Deputy Minister Mcebisi Skwatsha agreed and apologised on behalf of DRDLR for this. They should be guided by what DRDLR has presented and any other person who has other information other than that presented should have advised DRDLR before coming with that to the Committee.

Deputy Minister Mashego-Dlamini said that if they had had the information about the lease agreement at the right time, she would have proposed cancelling the farm purchase. The purpose of the purchase was for distributing land to communities.

The Chairperson said this whole thing was messed up from the beginning.   

Adv Mngwengwe replied he was responding to why DRDLR cannot just evict the occupants of the farm. It is unfortunate that his answer is not part of the presentation. The only additional information he provided is about the existence of the lease agreement. When acquiring property, one is bound by the terms of a pre-existing lease which is brought to one’s attention. Indeed in this case the lease was brought to DRDLR’s attention. They were told that there was a lease on that property. It is just unfortunate they found out about the lease after the property was allocated to Mr Cloete. It was a mistake on the side of the Department not to enquire more about the lease at the beginning so that they did not involve Mr Cloete in a problem that already existed on that farm. He had seen the presentation but was responding to a question raised by the Committee.

The Chairperson said this problem started when the farm purchase started because one cannot buy a farm where there is a lease that expires in 2027. They are being told that when DRDLR paid, then that lease will come to an end, which is not correct. The two Deputy Ministers and the DRDLR officials must therefore go back and see how they are going to address this problem. What Adv Mngwengwe is saying is correct. Deputy Minister Mashego-Dlamini’s proposal is correct as this problem is caused by the owner and DRDLR did not realise it but simply gave the owner the purchase price.

This is the after effects of the lease Ms Ngxumashe has with the previous owner has and that is why the Committee proposed that the illegal occupants must be evicted because the Committee thought that they were entering the farm forcefully and illegally. After the explanation, the Committee realises that Ms Ngxamashe is not wrong as she has a lease on the farm. DRDLR paid the owner and the owner has gone. There is now a problem for Mr Cloete who did not go of his own accord to that farm; but due to the agreement he signed with DRDLR. Therefore, the Committee agrees with the DRDLR proposal that Mr Cloete must be taken from that farm and be allocated another farm by DRDLR.

Also the DRDLR and SAPS heads must meet and engage to resolve the safety and security issues on that farm. DRDLR needs to address this lease agreement, and if needs be, the former owner, Ms Ngxumashe and DRDLR must all come before the Committee to explain this matter once and for all. The Chairperson thanked the two Deputy Ministers and officials for the presentation and responses.     

Legacy Report
After the Chairperson requested him to go through the recommendations, Mr Tshililo Manenzhe, Committee Content Adviser, said that the recommendations are proposed to assist the Sixth Parliament Committee to resolve operational and procedural concerns encountered this term:

▪ Coordinate efforts for those parliamentary committees with overlapping mandates to provide comprehensive oversight of activities of government departments, and deal with cross-cutting issue, for example, the Blended Funding Model, Agri-Parks and Wallmansthal.
▪ The Committee should consider oversight visits to MalaMala, Riemvasmaak, Rama and Wallmansthal.
▪ Oversight visits should be followed by to ensure the findings of the Committee are dealt with by DRDLR andentity. Such follow-up activities may include return visits to ascertain progress made by government.
▪ The Committee should consider an agreement with DRDLR and its entities about the timeframes for submission of reports to avoid late submission which affects the Committee’s ability to critically and effectively engage in the subject matter under discussion.
▪ Greater attention should be given to the Ingonyama Trust, especially as it relates to disbursements of funds, land administration, general governance and administration of communal land and Permission To Occupy (PTO).

Ms Magadla said that the Committee should also recommend that DRDLR strengthen its monitoring and evaluation system.

Thereafter, the Committee adopted the report with this amendment.

Report on Oversight visit to Nwandlamhari Communal Property Association (CPA)
Mr Manenzhe said the Nwandlamhari CPA in Mpumalanga owns 13 184 hectares of land, including the MalaMala Game Reserve, which was restored in terms of the Restitution of Land Rights Act. This report accounts for the Committee fact-finding visit to DRDLR in Pretoria, the MalaMala Board of Directors and to the members of the Nwandlamhari CPA.

The Committee recommendations are:
▪ The Minister must request the President to institute a forensic investigation on the settlement of the MalaMala claim, including member verification and the affairs of the Nwandlamhari CPA. During the fact finding visit by the Committee, it was evident that Parliament does not have the capacity to conduct an investigation of the magnitude and complexity of MalaMala and the Nwandlamhari CPA. Terms of reference for the investigation, amongst others as may be deemed necessary, should include:

- The justness and equitableness of the final settlement cost of the MalaMala land claim, especially in light of the Minister’s decision to withdraw from the Constitutional Court.
- The authenticity of the 950 members, as opposed to 250, the CPA Interim Committee suggests is an authentic number of beneficiaries for the settled land claim. Did DRDLR inflate the numbers? Is there a connection between increased number of beneficiaries and justification for the land claim settlement cost?
- The flow of funds from the MalaMala Game Reserve to Mondzo Pty (Ltd) and the CPA, and disbursement from CPA to accounts of various CPA members. The financial reports of the CPA, Mondzo and Mintirho Trust are to be analysed to track all expenditure. The CPA constitution was followed by the Interim Committee when making decisions on using CPA resources.
- Access the section 86 Trust Account and track the CPA funds where funds have been transferred to the CPA account or any other account.
- All affairs of the CPA must be in line with the CPA Act and the CPA constitution. Against these documents, assess the legality of transactions, financial and/or otherwise, of the CPA Interim Committee.

▪ The Commission on Restitution of Land Rights should reconsider the merging of different land claims as a means to speed-up settlement of overlapping settle land claims. Often, the settlement is unsustainable because different groups may find it difficult to cooperate under the CPA or any other communal ownership legal entity.

▪ Adequate research should be done to ascertain land rights lost, interrogate notions of communities, which often suggest homogenous groups whereas in practice there are differences and subsets which do not cohere.

▪ The Commission should, as a final attempt to the resolution of the problem, facilitate conflict resolution between the Mavuraka and Nwandlamhari groups, and ensure that there is equitable distribution of dividends to members of Mavuraka group who did not receive their share of dividends. If the agreement is not reached, the Commission should consider approaching the relevant courts to unbundle the settlement.

▪ The process should be managed in a manner that does not put the business in danger. The process may entail putting the CPA under administration for the duration of the process to allow the Commission to find most appropriate settlement.

▪ The Commission should, without delay, research and settle the remaining portions of land claimed by the Mavuraka group. Further, adequate resources should be made available to assist the group to have proper verification, setting up of legal entities, and capacity building of members of the legal entity and the leadership structures.

Mr K Robertson (DA) moved for the adoption of the report. Mr Madella seconded the move.

The Committee adopted the Report with amendments.

Committee Report on a Study Tour to Canada
Mr Manenzhe said in view of the observations of the Committee on key lessons and implications for land and agrarian reform discussed in the Report, the Committee made the following recommendations:

▪ The National Assembly should consider ensuring the legislative review, starting from the High Level Panel Report and the constitutional review and amendment of Section 25 is linked to clear policy review that could result in the development of a revised Comprehensive Land Policy.

▪ The Committee has observed how the Department of Justice in Canada is in the forefront of legislative and policy review so that the Government of Canada can deal with historical injustices. South Africa, with the comprehensive review commissioned by the Speakers’ Forum, the report of the Constitutional Review Committee regarding review and amendment of section 25, has adequate evidence and empirical material to shape the long awaited Land Policy in the form of a White Paper.

▪ The Minister of Rural Development and Land Reform should coordinate relevant ministers and departments, especially Water and Sanitation, Agriculture and Small Business Development, to develop a whole Government comprehensive strategy for settlement support to land reform beneficiaries and other producers.

The Committee adopted the Report with amendments.

The Committee adopted the minutes of 27 February 2019 and 6 March 2019

The Chairperson thanked Members of the Committee, the support staff for their dedication and hard work through the whole term of the Committee.

Members of the Committee also thanked the Chairperson for her leadership skills and how she has united the Committee during the years of the existence of the Committee.

The meeting was adjourned.

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