Implications of Constitutional Court Judgement on Land Tenure Rights Act, 1991; Legacy Reports; Planned Oversight visit with Deputy Minister

Agriculture, Land Reform and Rural Development

20 August 2019
Chairperson: Nkosi Z Mandela (ANC)
Share this page:

Meeting Summary

The Committee was briefed by the Department of Rural Development and Land Reform (DRDLR) on the implications of the Constitutional Court judgment on the Land Tenure Rights Act, which had indicated that a section was unconstitutional.  It also considered the legacy reports of the previous Portfolio Committees on Agriculture, Forestry and Fisheries, and on Rural Development and Land Reform.

The DRDLR said that the Concourt had found that Section 2 (1) of the Land Tenure Rights Act was constitutionally invalid insofar as it automatically converted holders of any deed of grant or any right of leasehold, as defined the regulations for the administration and control of townships in black areas, into holders of rights of ownership in violation of women’s rights in terms of section 9(1) of the Constitution. An action plan had been drawn up for the processing of a draft Bill by the Department to provide a constitutionally compliant process for the conversion of Schedule 1 rights in land into ownership rights.

The Committee asked if the Department knew how many cases could be affected by the Concourt decision. How many people had been upgraded since the law became public? Was it possible to get a legal opinion from senior counsel because of the concern around the case in the Eastern Cape about the constitutionality of the former homeland states of Transkei, Bophuthatswana, Venda and Ciskei. It did not make sense to deal with only one part of the legislation that might be unconstitutional, while they may be dealing a bigger issue. While there was a need to change the situation constitutionally, it seemed like South Africa would always have challenges because many communities still believed the eldest son was the heir. The Chairperson emphasized the importance of acknowledging that this matter had to be dealt with speedily – by the end of the year.

The legacy report of the former Portfolio Committee on Rural Development and Land Reform indicated that the key focus areas over the five-year period from 2014 to 2019 included the Restitution of Land Rights Amendment Bill, the Extension of Security of Tenure Amendment (ESTA) Bill, the Communal Property Association (CPA) Amendment Bill, the Restitution of Land Rights Amendment Bill, and the Electronic Deeds Registries Bill.  There had also been emphasis on oversight on CPAs and trusts. Among the recommendations were timeframes for the submission of reports or briefing documents to the Committee in order to avoid late submission which affected its ability to critically and effectively engage in discussion about the subject matters under consideration.

The legacy report of the former Portfolio Committee on Agriculture, Forestry and Fisheries described the obligations conferred on it in terms of the Money Bills Amendment Procedure and Related Matters Act, and legislation that established entities. Key recommendations included the promotion of cooperative governance through joint planning sessions and briefings with other relevant committees on cross-cutting matters such as agro-processing, job creation, transformation, and the blended finance model. The Committee needed to oversee the development of a long-term sector plan to ensure effective development, transformation and growth in the sector, and should engage the Department in collaborative efforts with academic institutions to ensure that agricultural qualifications from the country’s higher education institutions addressed the socio-economic needs of the country, including specific skills shortages.

Members said the legacy reports indicated very clear problems among the issues that had been highlighted. The Committee needed to deal with them and take them forward. This new amalgamated department needed to be held accountable by the Committee for completing the Fifth Parliament’s unfinished business. The Chairperson asked all the content advisors to meet and draft a list for the Committee to consider in order to populate its programme for the fourth term.

Meeting report

Chairperson on land reform challenge

The Chairperson, reflecting on the work that lies ahead of the Committee, commented that in 1958 Chairman General Mao of the People’s Republic of China had said “…the speed of land reform should be determined according to the circumstances, the level of political consciousness of the masses and the strength of the leading cadres.” South Africa was faced by increasing pressure from the people to speed up land reform, redistribution and restitution. The task before the Committee was commensurate with the urgency. As the Committee mandated with oversight of this important task, they needed to understand the context and circumstances under which they were called upon to advance land reform, redistribution and restitution. President Cyril Ramaphosa, since his State of the Nation Address (SONA), had repeatedly emphasised that land reform was about both historical redress as well as unlocking the latent value of the land and property assets. It was both restorative and economic. They would delay it at their own peril, at the expense of the landless and those that languish in poverty, especially in South Africa’s rural areas, and those that suffer trauma and for whom restorative land justice was an important part of healing, transforming and growing.

The Parliamentary process was a participatory democracy, and Parliament should therefore play a pivotal role in creating mass consciousness as a key driver on the effects of land reform, redistribution, and restitution. Land reform had been a key area of focus in the campaign of the 2019 national elections. The Committee had to make its best efforts to reach out to all affected stakeholders. Together, they could advance the agenda of land reform and fulfil the aspirations of all the people, and in so doing, give expression to the founding father of our democracy and a global icon’s vision of national reconciliation, nation-building and social cohesion. They were also duty bound, in the face of growing mass consciousness for land reform, redistribution and restitution, to release pressure by ensuring that the government delivered on its mandate, no matter how difficult or complex it was. They had to seriously address the historical legacies that had retarded the pace of land reform, whether that had resulted from systematic issues, capacity constraints, or the reluctance by some land owners to positively engage the national agenda of land reform, redistribution and restitution. No further delays in dealing with this crucial matter could be afforded. President Mandela had once remarked that “sometimes it falls upon a generation to be great. You could be that generation.” These were not just words to stoke peoples’ egos, or to conflate the enormity of the task that lay ahead of them.

Chairman Mao had regarded leadership as a pivotal element in advancing the agenda of land reform. As a Portfolio Committee, they were a forum representing the diversity of the country’s political spectrum. Therefore, while everyone brought individual party political perspectives to the table, they were all accountable to the people of South Africa. There were those, such as the Cato Institute, who believed that the land reform agenda could be stymied by appealing to the likes of Donald Trump of the USA as a means of protecting property rights. The US government was no friend of South Africa, particularly since they had been complicit in President Mandela’s arrest in 1962.

The protection of property rights was enshrined in the Constitution. 25 years of democracy had proved how seriously the ANC government was about protecting property rights. This must be balanced out against mass landlessness effected in 1913 through the notorious Land Act and in 1936 through successive legislative land grabs that make the Zimbabwean experiment seem amateurish. ANC founder member Sol Plaaitjie had described this as “overnight the native became a foreigner in the land of his birth.” If one believed the likes of Fox News and the Cato Institute, one would swear that South Africa was teetering on the brink of collapse, and the worst land grab in history was imminent. Anybody with any iota of intelligence knew that this was far from the truth. One just needed to study the Presidential High Panel on Land Reform report which had been released and made public to know that one was in good hands and that they were proceeding in all their endeavours with wisdom, maturity, and in best nation interest. The report was an important and critical contribution to the agenda of land reform in South Africa, and had made interesting findings and many valuable recommendations. Over the coming weeks and months, the Committee would find opportune times to deliberate more profoundly on the details of this report.

The Chairperson said everyone had been shocked by the arson attack which had caused serious injury to a farm manager in KwaZulu-Natal. The matter was now public knowledge. The land reform process was unstoppable. Furthermore, wherever there were contested claims and counter claims, the law was the sole arbiter of the legitimacy of such disputes. This incident was a cautionary note on how quickly such contestations could result in violence, trauma and a breakdown in civil order. There was an immense responsibility on Members of this Committee to ensure that the flames of civil discontent were not stoked, especially where communities still had full recourse to the legal justice system. While the 2019 elections had dealt a death knell to those advocating illegal invasions, as a collective they had to advocate for the rule of law, following due procedure and exhausting all the legal avenues.

Finally, how this incident is dealt with would set an important precedent of how future illegal invasions and acts of criminality would be dealt with. There was a need to proceed with caution in dealing with such matters. This Committee had its work cut out, as the jury was still out on the proposed Constitutional amendments to cater for land expropriation without compensation. He trusted that Members would take up their tasks in all earnestness, and that they could look forward to robust, intense and meaningful engagements. President Mandela had once said: ‘It is always impossible until it is done.’ He believed that they could apply their minds to ensuring that this became a reality and it was done in due course.

Implications of Constitutional Court Judgment on Land Tenure Rights Act

Mr Mcebisi Skwatsha, Deputy Minister: Rural Development and Land Reform, thanked the Chairperson for the inspiring opening remarks, saying that these words were a guide to the work confronting the Department, which was here to give some comfort to the Committee.  

Mr Thami Mdontswa, Deputy Chief Land Claims Commissioner: Department of Rural Development and Land Reform (DRDLR), described the implications of the Constitutional Court judgment on the Land Tenure Rights Act, 1991.

He said Section 2 of the Upgrading of Land Tenure Rights Act (ULTRA) provided for the conversion of land tenure rights mentioned in schedule 1 of the Act. In the case of Rahube v Rahube and Others 2019 (2) SA 54 (CC), the Constitutional Court had stated, among others: “Section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 is declared constitutionally invalid insofar as it automatically converted holders of any deed of grant or any right of leasehold as defined in regulation 1 of Chapter 1 of the Regulations for the Administration and Control of Townships in Black Areas, 1962 Proc R293 GG 373 of 16 November 1962 (Proclamation R293) into holders of rights of ownership in violation of women’s rights in terms of section 9(1) of the Constitution.”

Mr Mdontswa addressed the review of ULTRA, and said the draft Bill simply proposed:

  • A constitutionally compliant process for the conversion of Schedule 1 rights in land into ownership rights;
  • A constitutionally compliant process that was to be followed in the review of transactions affected by the retrospective declaration of section 2(1) of ULTRA as unconstitutional

He concluded by addressing the action plan for the processing of the Bill and the management by the Department of the steps, progress and the estimated time of processing.


The Chairperson said the Constitutional Court judgment raised concerns, especially around the timeframes. It would be taken to Cabinet by 20 February 2020, and brought back to the Committee by March next year. The Court deadline was April 2020. The Department would, however, be applying to the Constitutional Court for indulgence on this matter so that Parliament could be afforded more time.

Ms Daksha Kassan, Parliamentary Legal Advisor, giving guidance to the Committee, explained, that the implications of a retrospective application would be wide, should the Constitutional invalidity come into effect, because those people who would have been granted tenure rights would now need to be subject to a review process. If the Bill was not processed within 18 months, there would be an unconstitutional provision in the statute books. There would also be a group of people who would have been granted ownership rights, but who would be in a situation where those rights were no longer valid and those transactions would be void. There would be a gap in the law where there would not be provision for a review mechanism.

The Department’s notion to approach the Constitutional Court for an extension had been supported. Should the Bill reach Parliament only in March, there was no way Parliament would be able to process it. Parliament was also under an obligation to facilitate public involvement in the Bill by making sure public hearings were held if the issues were so controversial. Even if the Bill reached Parliament by January, all of Parliament’s recess periods needed to be taken into account as well. The Bill should not be rushed, because it really had far-reaching implications. In approaching the Constitutional Court, the Department was also best placed to inform the Constitutional Court of all the work that they had done thus far, as well as all the issues that they needed to engage with.

Ms A Steyn (DA) asked whether the Department knew how many cases there were that could be affected. How many people had been upgraded since the law became public? Furthermore, was it possible to get a legal opinion from Senior Counsel, because of the concern around the case in the Eastern Cape about the constitutionality of the Ciskei, Transkei and Bophuthatswana. It did not make sense to deal with an issue that represented only one part of the legislation that might be unconstitutional, while they may be dealing a bigger issue. They may need to prepare themselves for dealing with a bigger issue. Had the Department looked into this, and could the Committee get information from the Eastern Cape so that the issue could be looked at more broadly? This was not the only court case that the Department had had to deal with. There were other pieces of legislation that had been found unconstitutional. Was it possible for the Committee to receive a list of all these scenarios while it dealt with the broader picture, and some of the recommendations that had been made by the Land Panel? 

The Chairperson supported Ms Steyn, saying that the Committee and the Department would need to apply themselves to discovering what the bigger problem was and try to understand it before contemplating issues involving senior counsel.

Mr N Capa (ANC) asked what the implications were of the extension that the Department sdought. These needed to be known and addressed. To what extent was this process linked to common law? While government wanted to change the situation, constitutionally it seemed like South Africa would always have these challenges because many communities still believed the eldest son was the heir, and therefore this was not going to change. Legally, who was a ‘person’ when one spoke of a ‘traditional community’? Moreover, what was the rationale of excluding the former bantustans – Transkei, Bophuthatswana, Cenda and Ciskie (TBVC) -- in this situation? The prospect that, at a later stage, an exclusion had been found by the Eastern Cape court to be inconsistent, was worrying.

Ms M Tlhape (ANC), also echoing Ms Steyn, said that it was vital that the Committee gain an understanding of how big the problem was, based on the fact there was an indication by the Department that they would also need to appeal and bring the retrospective application to the attention of the Constitutional Court. In as much as the Committee would want to deal with the section of the Act at hand, if the problem was bigger than this, the Committee would find itself amending most of the sections in that Act. Were there no other parts of the Act that, as and when the Committee addressed it, would attend to this challenge? The Department needed to request an extension and, in the meantime, determine what other sections had an impact or a bearing on the retrospective application in terms of the three categories that were there. Did this Act need to be repealed or were there other sections that also needed to be considered?

Department’s response

Mr Mdontswa, in response to Ms Steyn, explained that the socio-economic impact study that was currently being conducted was a study that would give the Department an indication of how many people were affected. The law had been passed in 1991, and had been found unconstitutional effective from 27 April 1994. The study would look at how many conversions had been done before between 1991 and 1994 which were safe, and how many were done after 1994. Parliament would then come up with a way of determining the details in relation to those that had been effected by the declaration of invalidity -- in other words, those where the conversions had been done and perfected in the deeds office after 1994. The Department could provide the judgment by the High Court detailing the Eastern Cape case. However, it had been told that the Constitutional Court had returned from recess and it was now handing down judgment for cases that were held around that time. Hopefully, when the Eastern Cape judgment was provided, it would be accompanied by the judgment of the Constitutional Court, which would give the Department the final order in that matter. The Department filed its legislative plan through the Leader of Government Business, and all of the legislation that the Department was dealing with would be contained there. There was also a process now where the Department had been requested by Parliament to update that list and through that process, this Committee would be able to get the list of legislation which would include instances where, if any, there may have been declarations of invalidity of legislation that the Department was responsible for.

In response to Mr Caba, he said the implication was that there would be a vacuum if the extension was not granted. There would be rights of ownership that would be voidable in law. The decision for the people who had tenure rights when they went to the deeds office would remain binding in law in terms of certain Court of Appeal judgments until set aside. When the Bill was brought to the Committee, the Members would see that the Department could set aside confirmation of ownership in terms of those who were granted title deeds only after a review by the courts, as part of a review process.

To come up with a solution to all of this, the Department had had to look at other avenues of correcting the information and making sure that those people who had not been heard were provided with the opportunity to be heard. Senior counsel had confirmed that this could be done only through a court process. The linking of this process to common law would not be an issue if provision for conversion could be accompanied by primogeniture (the right of succession belonging to the firstborn child). However, this should be provided that everybody had an opportunity to be heard before the final decision was taken. In the event that there were multiple people who may claim they had been excluded because of past laws from qualifying for tenure rights, all that was required was for a process to be set out that allowed them to make a presentation if they wished. It was the failure of the process in not providing an opportunity to be heard before a final decision was taken that was the problem. It was not primogeniture, or the fact that a family could sit and decide that the head of the household was a female or male.

To the extent that common law would not permit a situation where everybody must be heard before decisions of this nature must be taken, the Constitution requires that the courts develop the common law so that it is implemented in a manner that is consistent with the Constitution. Moreover, the bill recognises in section 19 the ‘traditional community’ as a legal entity. The ‘person’ in this setting becomes a ‘traditional community.’ Section 19 of the Act explains that those traditional communities are recognised as legal entities for the purposes of the Act. Section 20 empowers the Minister to transfer the land that is occupied by traditional communities to those communities, to the exclusion of the Transkei, Bophuthatswana, Ciskei and Venda.

Mr Mdontswa continued that the reason for the exclusion initially was because South Africa, as defined in law, in 1994 excluded the TBVC states. In 1998 -- when ULTRA was amended to make all of its provisions applicable throughout the Republic, except for sections 3, 19 and 20 – this was because of the many different laws that were passed in the TBVC that still were in the statute books that were very difficult, if not impossible to combine into a single unitary system of dealing with communal tenure.

What was done, after sections 3, 19 and 20 were still not applicable in the whole Republic, was that a process was started to deal with communal tenure. In 2004, the Communal Land Rights Act was passed. Unfortunately, it was found to be unconstitutional in 2010. The Department had been working on a different bill to provide for communal tenure. As a mechanism to give them ownership, this tenure bill was required to address the vacuum that existed where traditional communities occupied land outside the TBVC states. Furthermore, there were other sections that were questionable. This exercise, and the bill that was being produced, attempted to deal with all of this. The homework had to a very large extent been done to determine what the most cost effective way of dealing with the upgrading of tenure rights that were given to people was. It was this homework that had resulted in the delay, with the Department being able to come back only in February or March next year.   

Adv Vela Mngwengwe, Chief Director: Property Management and Advisory Services, DRDLR, wanted to make two additions to what had been said by Mr Mdontswa. Firstly, concerning the extent of the problem, the difficulty with the rights envisaged in section 21 was that it empowered the holder of a right to approach the deeds office and get it upgraded. It did not require any kind of public process where a public body would be approached, where the deed could be properly recorded. The second issue was that the register of these rights during the pre-1994 governments were not reliable. There was not a single record throughout the country where one could go and find all the leaseholds that had been issued. What needed to be done was to talk to the Chief Registrar of Deeds to look at. whether there was an easy mechanism of identifying how that particular ownership came about when the holder of a right approached a deeds registry. The Department could go to the deeds office to check this with the Chief Register of Deeds so as to get an accurate estimate.

Secondly, regarding the extent to which this was related to common law, the Constitution empowers courts to develop common law. Indeed, common law is gradually changing as a consequence of cases getting to court. Some of these cases were related to traditional leadership -- whether, for example, a female person could assume the role of a traditional leader. There had been cases before the Constitutional Court where rulings had been made. To that extent, common law had changed. The same applied to this case, because it tampers with common law to the extent that the head of the family is perceived to be a male. Gradually, common law would change as and when cases get to court and are decided.  

The Chairperson concluded that the Department should be enabled to engage further with the Constitutional Court in getting an extension of the dates. The Committee must also be updated on the enormity of this issue by looking into the details of each case, and establishing how many cases there were.

Ms Steyn agreed with this directive. The Department should also be given a deadline. At the end of the day, it was not the Department that would be found wanting but Parliament -- and this Portfolio Committee -- which did not pressure the Department. The Committee could itself make legislation if it had to wait for the Department for years and years. This was not the only case where the Department had been found wanting. There must a strict deadline so that even the Department knew that it must come back to the Committee before a certain date. This could drag on for another two years before there was any movement again.

Mr Capa added that the Committee must not discover at a later stage that certain things could not be done because there were not enough human and other resources. If there was that possibility, it should be handled as soon as possible.

The Chairperson said the hope was that the Executive could consider the importance of this issue and see how quickly it could be brought back to Parliament and the Committee. It was important to acknowledge that this matter had to be dealt with speedily. The Committee look at its programme and timelines and allocate a date to call the Department on this matter before it was wrapped up this year. Within the next two months, the Department should come back and update the Committee so that it could be assured that it would not be found wanting in terms of the Constitutional Court’s already set deadline, April 2020. The application must be made in good time so that the Constitutional Court’s appetite could also be ascertained. Sometimes applications had been declined, so there was enormous pressure to run with this.

Legacy Report: Former PC on Rural Development and Land Reform

Dr Tshililo Manenzhe, Content Advisor: Portfolio Committee on Agriculture, Land Reform and Rural Development, dealt with the Legacy Report of the former Portfolio Committee on Rural Development and Land Reform.

The key focus areas over the Committee’s five-year term from 2014 2019 had included the Restitution of Land Rights Amendment Bill, the Extension of Security of Tenure Amendment (ESTA) Bill, the Communal Property Association (CPA) Amendment Bill and the Electronic Deeds Registries Bill. Oversight had been carried out on CPAs and trusts.

Critical areas had been human resource (HR) concerns, the geospatial and cadastral service, rural development, restitution through the Commission on Restitution of Land Rights (CRLR), land reform in terms of farm tenure, communal tenure, redistribution, CPAs, the Office of the Valuer-General (OVG) and the Ingonyama Trust Board (ITB).  

Some of the key achievements of the former Committee’s oversight had included a focus on legislation passed during the Fourth Parliament, such as the reopening of land claims lodgements and the implementation of the Spatial Planning and Land Use Management Act (SPLUMA). It had overseen the completion of the land audit by the DRDLR; and the DRDLR had begun to consider areas of overlap with the Department of Agriculture, Forestry and Fisheries (DAFF), an example being a memorandum of agreement signed by the Departments and the Land Bank to coordinate funding of land reform.

After expanded on the challenges faced by the former Committee in respect of law-making (policy and legislation) and oversight of the Executive, Dr Manenzhe turned to its recommendations. It was insisting on timeframes for the submission of reports or briefing documents to the Committee in order to avoid late submission which affected its ability to engage critically and effectively in discussion about the subject matters under consideration. Furthermore, it was important to ensure that oversight visits should be followed by follow-up activities to ensure that the findings of the Committee were dealt with by the Department/entity. Such follow-up activities could include return visits to the same sites to ascertain progress made by the government.

Possible focus areas for the Sixth Parliament were restitution, redistribution, tenure, post-settlement, the Comprehensive Rural Development Programme (CRDP), overarching policy and the Department’s entities.

Legacy Report: Former PC on Agriculture, Forestry and Fisheries

Ms Nokuzola Mgxashe, Content Advisor: Portfolio Committee on Agriculture, Land Reform and Rural Development, addressed the Legacy Report of the former Portfolio Committee on Agriculture, Forestry and Fisheries.

Oversight areas of focus during the 2014/19 Medium Term Strategic Framework (MTSF) had included food security, food safety, financial and technical support, mechanisation, the commercialisation of 450 black farmers, Operation Phakisa, job creation, climate change and disaster management, disease outbreaks and sector transformation.

In the field of legislation, the referred and processed bills had been the Plant Breeders Rights Bill, the Liquor Products Amendment Bill, the National Forests Amendment Bill, the National Veld and Forest Fire Amendment Bill, the Plant Health (Phytosanitary) Bill, the Agricultural Product Standards Amendment Bill, the Animal Protection Amendment Bill, and the Aquaculture Development Bill.

Ms Mgxashe described the former Committee’s oversight visits and the ensuing issues. The main focus of provincial visits had been on the provision of support to smallholder and subsistence producers, including land reform beneficiaries through conditional grants; mechanisation support and infrastructure development; implementation of the Fetsa Tlala food production programme; the Agricultural Policy Action Plan (APAP)/Revitalising Agriculture and the Agro-processing Value Chain (RAAVC); the compulsory community support (CCS) programme for veterinarians; the small scale fisheries policy; and aquaculture development.

A key issue stemming from the visits to entities was the situation at Ncera Farms (Pty) Ltd, which was not fulfilling its mandate. It was recommended that the entity be deregistered and transferred to the Agricultural Research Council (ARC).

During the Fifth Parliament, public participation and stakeholder engagements had focused on:

  • Public hearings for all legislation that had been processed.
  • Introductory policy training and strategic planning.
  • Briefings in PC meetings – invited by the PC, or requested by stakeholders. An example had been the poultry crisis and the impact of poultry imports on industry growth and employment.

Ms Mgxashe elaborated on the obligations conferred by legislation on the Portfolio Committee in terms of the Money Bills Amendment Procedure & Related Matters Act, 2009 (Act No. 9 of 2009), and the legislation that established entities.

Reports referred by the Speaker had included the report of the South African Human Rights Commission (SAHRC) on the national investigative hearing into safety and security challenges in farming communities; the Public Protector’s Report No. 31 of 2017-18 on an investigation into complaints of maladministration against the Free State Department of Agriculture in respect of non-adherence to Treasury prescripts and a lack of financial control in the administration of the Vrede Integrated Dairy Project; and the High Level Panel (HLP) Report on the assessment of key legislation and the acceleration of fundamental change.

Some of the key recommendations were the promotion of cooperative governance through joint planning sessions and briefings with other relevant committees on cross-cutting matters such as agro-processing, job creation, transformation and the blended finance model; overseeing the development of a long-term sector plan -- an HLP recommendation -- to ensure effective development, transformation and growth of the sector; and engaging the Department on collaborative efforts with academic institutions and involvement in curriculum determination and review to ensure that agricultural qualifications from the country’s higher education institutions address the socio-economic needs of the country, including specific skills shortages.

Implications for future work were that with the right support, there were provinces which also had potential for agri-tourism, which was currently practised mainly in the Western Cape (WC) and Gauteng Province (GP), and to some extent in Limpopo Province (LP) and KwaZulu-Natal (KZN). Furthermore, with the reality of climate change, the Department needed to put more focus and resources into the development of conservation agriculture and agro-ecology, as well as recognition of indigenous knowledge systems. Non-governmental organisations (NGOs) had done quite well in this regard, particularly in KZN and to some extent in the WC. There was also a need for the re-evaluation of the mandates and roles of entities and their alignment with Department’s programmes.


The Chairperson explained that the legacy reports had been with the Committee since its last meeting, but consideration had been postponed to this meeting. There were issues that this Committee needed to take forward as the successors in title. This did not limit the Committee from looking into certain recommendations.

Ms T Breedt (FF+) said very clear problems and issues had been highlighted. The Committee needed to build on them and take them forward. This new amalgamated Department needed to be held to account by the Committee, which needed to ensure it completed the changes that the Fifth Parliament could not actually finish.

Ms P Tshwete (ANC) said the problems that were still outstanding from the previous administration were quite clear. This Committee needed to follow up and monitor the existing the projects that were still on-going. It was very concerning that top management in both Departments were in an acting capacity. This was probably one of the reasons that they did not understand the pressure that the current government was under when it came to certain issues. To even propose that they would come back in March 2020 to present the database was out of order. Why would it take seven months to have the database? They were talking about people who had title deeds already. Could the Committee get the latest statutory appointments because in the report, the statutory appointments had not been updated? One of the challenges highlighted in the report was that the Committee was informed a bit late about the appointments, and this was causing delays. How far was the process of transferring the Ncera Farms to the ARC?

Mr M Montwedi (EFF) said there was a ConCourt judgment on the labour tenant matter, and the legacy report said it should be finalised. The Court had said it must be adjudicated by a special team instead of the Department. What was the current situation so that the Committee could make sure that it was indeed finalised? The report had indicated that it should be finalised as soon as possible. The only thing that had been holding them back was that court judgment. Now that the judgment available, how soon could those things be finalised? It had been said there were conflicting cases around the issue of claims in the North West and Mpumalanga. When had those been identified? What were they? What communities were involved? The Committee needed to know what actually was causing the delay in finalising some of those issues. When was the need for comprehensive post-settlement support identified? How soon could it come into effect? If there were comprehensive post-settlement support, it could actually solve a lot of problems that existed, where farmers had had to knock on different doors.  

The Chairperson commented that the high vacancy rate was troublesome. The Portfolio Committee must be very specific about the timeframes given to the Department to recruit and fill vacancies, whether internal or external. The high vacancy rate was a big obstacle. It was not only at the national level, but even at the provincial level. All the recommendations had been summarised by Ms Breedt, and the Committee must be able to say to the Department that it expects certain goals to be reached within three months. The timeframes would inform the Committee’s schedule. She added that Ncera Farms had been transferred to the ARC.

Rural Development and Land Reform: Content Advisor’s response

Dr Tshililo commented that the Constitutional Court order was part of trend where the courts were introducing judicial oversight over the performance of the Department. Because of the failure of a department to do what it was meant to do, people would go to the court and the Court would rule that it would oversee. For example, the Court had demanded that the Land Claims Commission report to it biannually in terms of the settlement of claims. The Portfolio Committee should be worried whether it was doing what it was meant to do, taking into account the extent to which the courts now want it to do oversight. It was calling on this Committee to strengthen its oversight.

Secondly, there were about 11 000 labour tenants who had lodged labour tenants claims -- not restitution claims -- in terms of the Labour Tenants Act. The Department had been very slow. Very few had been processed. The labour tenants had gone to the Land Claims Court to ask the Court to compel the Department to implement them. What the Land Claims Court had done was to say that it would appoint a Master to oversee the settlement of this claim. The Department had challenged this and had gone to the Constitutional Court. Today, the Constitutional Court had confirmed that appointment and said that the Land Claims Court was right to say that the Master must now oversee the settlement of these claims.

What were the implications? It was for this Committee to say to the Department that it had labour tenant claims, and to ask it to state what its programme of action was, provide the roadmap towards settlement and finalisation, and indicate the role of the Master. It was yet to see what the Department was going to do.

Dr Tshililo recommended that the Committee requested copies of the reports that were being sent to the Court so that it was aware of the information that was being given to the Court. Another piece of legislation where there had not been any progress was the Transformation of Certain Rural Areas Act. This Act provides that areas that were former Coloured areas must be transferred either to municipalities or to entities. The Department had been very slow in implementing this legislation. The Court might once again oversee this process. These were the matters which the Committee should emphasise.

The budgetary constraints also had to be recognised. During the annual performance plan (APP) briefing, the Minister had made a commitment to brief the Committee on some of the concerns. This could be put on the agenda. Statutory appointments were mostly made for agriculture, and the Committee dealt with the Land Claims Commission only when there was process and procedure around the Chief Land Claims Commissioner and the Deputy.

There were valid concerns about top management. Until the end of the previous Parliament, only three occupied ‘normal positions,’ the rest were in an ‘acting’ capacity.

Regarding the competing land claims, the reports of the public hearings should be made available to the members of the community so that communities could hear what the issues were, especially in the North West, and particularly where there was a lot of friction between land buyers and the claimants. Because the previous Committee had set up a process where the Commission across the country did come to present a progress report, perhaps a written report was required as to the state of affairs with regard to some of these claims. There had to be a push towards finalisation of these issues.

Regarding the comprehensive post-settlement support, the Portfolio Committee had held public hearings on the Recapitalisation and Development Programme (RECAP) in 2014,. One of the recommendations from the Department of Performance Monitoring and Evaluation (DPME) after it had done its evaluation of RECAP was to recommend that since there was money across government Departments -- Agriculture, Rural Development, Trade and Industry, Social Development – which dealt with agriculture, why could a comprehensive programme for support not be established to avoid, among others, double dipping. The discussion that had ensued late last year around the blended finance model was the result of this discussion. That model was still not finalised. The good thing was that rural development and land reform were now under one Minister. It would probably be easier for this Committee to oversee developments around this. The Committee needed to develop a programme.

Mr Montwedi commented that the content advisor had spoken about the tenure legislation, saying that they did not have this. One could not go on like this without having this very important legislation in place. Was there restitution legislation?

Dr Tshililo responded that there was restitution legislation. There was an amendment, however, that had reopened the lodging of 140 000 claims. That legislation had been declared unconstitutional in 2016. The Court had interdicted the Commission from dealing with those new claims that had been lodged since 2014. This meant that there were a number of claimants that did not know about the status of their claims. What the Court had said was that the Department must finalise the pre-1998 land claims, and Parliament must then finalise the amendment, which would give direction on how these new claims would be dealt with.

Parliament had to clarify the matter of prioritization. One of the issues was that priority must be given to the old claims. There was no clear legislative guidance, and Parliament had to give it. As we speak, there was no Restitution Amendment. Last year, a Private Member’s bill had been sent to this Committee. It had been too late and the previous Parliament could not continue. Various organisations had gone back to court to deal with that matter. The Court had said Parliament was not doing what it was meant to and had not presented a strong case as to why this matter had not been finalised. The Commission must report on the settling of all existing claims.

With regard to tenure legislation, Section 25(6) states that a person or community whose tenure was legally insecure as a result of past racially discriminatory laws was entitled to the extent provided by an Act of Parliament either to tenure, which was legally secure, or to comparable redress. The country did not have comprehensive legislation. What it had was an interim measure -- the Interim Protection of Informal Land Rights Act -- which was very weak and dealt with people living in the former homeland areas. At this time, people were being moved off their land without compensation. Nobody took their rights seriously. The Constitution states that Parliament must provide that legislation. As it stands, it did not have comprehensive tenure legislation to deal with tenure security in the communal areas of this country. There was strong legislation in terms of tenure for commercial farms by way of the Extension of Tenure of Security Act (ESTA).   

Mr Montwedi asked if two pieces of legislation could be finalised as soon as possible by the Department. These would be the Restitution Amendment, where there were about 143 000 claimants whose claims were in limbo as a result of the Constitutional Court judgment, and the comprehensive legislation of the Land Tenure Act. If there was anything else that was required, it must be forwarded to the Department so that they could deal with it as a matter of urgency. On a quarterly basis, the Committee should be briefed by the Department on its progress in this regard.

Further discussion

Ms Breedt said that the researcher had done a very good job in stating what the shortcomings in the previous Committee had been, what the outstanding documentation was, and what this Committee needed to focus on going forward to keep the Department in check, specifically with the amalgamation, and to focus on the projects that were now shared.

Mr Montwedi said that in the agriculture sector, the finalisation and review of policies had been addressed. Could these policies be identified so that pressure could be put on the Department to ensure that they were actually finalised? The Food Control Agency had not been established yet -- why was this the case, when clearly there was a need? The Department knew there was duplication in respect of people who went and got grants from government. Those who got grants were able to stand on their own and continue because of the funding. Each and every financial year, they made it on to the list of grants from government. However, they reinvested whatever revenue they derived from those grants somewhere else, and not in agriculture. The Department required a database that captured all those that had benefited from their grants. The contradictions on project information compared to the actual work performed posed a serious problem.

In contrast to the report of the Fifth Parliament, no agriculture scheme had been established in Taung. The only irrigation scheme that was there was long established, and had very old infrastructure. There was a report that had spoken about the expansion of the irrigation scheme, but it had never happened. Where was the development of the irrigation scheme in Taung, as reported in this legacy report? Regarding the commercialisation of black farmers, it had been announced by former President Zuma that his government was going to commercialise back farmers. At the last APP meetings with the Ministers, it had been said that guidelines were being developed -- how far was this process? Commodity associations and farmers in general should be able to contribute to solving this problem.  

Mr Capa said that there had been an issue in the Eastern Cape where people had been made to pay before they could be assisted by the government. There was much at fault with this system where the poorest were the ones who were made to pay R1 800 to be assisted. Last year, it had been R2 700 per person. There were many who were economically excluded because they did not have this money. An explanation that always came from the Department was that in the Eastern Cape this was what the farmers wanted. This was misleading because there were so many people who said that because they were poor the Department could do anything for them. This was somehow irregular. Furthermore, concerning the issue of the many animals in these poor provinces, there was possibly not enough effort being made to ensure that these people understood that animals were assets. If they kept animals which were supposed to be kept for three years for eight years instead, there would be a large number of cattle and useless animals which were not doing anything for the economy of the province.

He said it was important that in future, there should not be discussion on forestry and fisheries in this Committee. Were the conditional grants serving the purpose for which they were designed? There had been many instances where the Department was not doing what it was supposed to be doing, perhaps because there were not sufficient mechanisms to control the use of the conditional grants. If a conditional grant went mainly to service providers or project implementers, who benefited from the grant? A lot of money went to infrastructure, but how much of this funding benefited the people they were talking about? There were cases where a lot of money was spent, but no farm existed. When people came with ideas, the Department would begin processing the grant proposal before checking on the primary production and other factors. When it was said that money had been used on infrastructure, for example, was it really that? The Committee had to make sure that the Department helps it to keep track of all the recommendations.

Ms K Mahlatsi (ANC) said the challenge of dealing with the legacy report long after addressing the APP was that it tended to repeat exactly what the Committee had dealt with in the reports that it had adopted. Many of the issues that were flagged in the legacy reports had been flagged in the reports which the Committee had adopted. However, there were two issues. In the legacy report, the Department had admitted that the R500 000 irrigation scheme programme was impossible, given the reasons indicated. What then was the Department’s plan? They were almost at the end of the national development plan (NDP), based on its indicators, targets and timeframes.

While the legacy report states that blended funding was meant to bring all the funding together, there was no clear indication where the blended funding would be located. The reports were not speaking to each other. This must be fixed. Additionally, in terms of reporting, agriculture was a concurrent function. It involved the provinces. What were the implications of bringing the respective departments to Parliament? For the entire past five years, there had been an issue about provinces reporting and not being able to report. There was a feeling that the same problem would re-emerge in the next administration precisely because of the amalgamation process. Since agriculture was a concurrent function, money gets transferred from national to provinces. If Departments are unable to report on what has been done, there will be a problem. Given the financial constraints that had been indicated, the Committee may not be able to do oversight. When the quarterly APP report is delivered by the national Department, would it be possible for the provinces to be here as well so that they could also report?  

Ms Tshwete asked whether the Committee could get a clear indication as to who had been in an acting position at a certain time, and what was meant to have been done and was not done. This was so that they could safely recommended appropriate measures if there had been no progress on the reports they were given.

Ms Tlhape commented that there many issues confronting the Committee. Regarding issues that could be followed up going forward, Makhathini Flats (KZN) and Taung (NW) had been revitalised but there were still challenges with the utilisation, maintenance, management and water licensing. The presentation had used the word ‘development,’ but Mr Montwedi had been right that there had not been development -- it could be attested that in the 2016-2017 financial year the Member of the Executive Council (MEC) had presented a R50 million budget for the revitalisation of the Taung Irrigation Scheme. When it did its oversight, the Committee would face certain management challenges. Members of the Irrigation Scheme would even lease some portion out to white farmers. In 2017-2018, the province had not budgeted anything for the Taung Irrigation Scheme. After the revitalisation, some of the members had on their own accord agreed with a certain company to plant barley, and they had been ripped off. They had planted barley and, without giving the members any economic opportunity, had taken everything and left with it. The barley had not even been stored in the province. The scheme had had to be bailed out because it owed money, even after selling to the company. When it cames to oversight, these were some of the issues that needed to be dealt with.

Furthermore, the presentation addressed the matters according to StatisticsSA (Stats SA), which benchmarks or measures the Department on food security. One of their key indicators was to ask people whether they had ever had a day when they went without a meal. The Department’s argument was that every house received a grant and people should be able to buy. Food security was about having access and the ability to afford. In KZN, there were times when farmers would get a harvest, but because of the price of the crops, they would not sell at that moment. It would be suicidal to look only at production – one had to look also at accessibility and affordability of food, because those were the indicators of food production.

She said game farms fell under biodiversity. Even if it was a farm that was for livestock, when a farmer turned it into a game farm, it fell under biodiversity. Moreover, even though the Land Bank falls under the Department of Treasury, the Committee would have to meet with them to understand the issues of common interest that exist. It needed to address them as the custodians of the farmers they were supporting. There were issues that needed to be followed up on pertaining to the workers of the companies mentioned in the report. The provision of phytosanitary measures to prevent the introduction, establishment and spread of regulated pests in the Republic had raised when the Committee was discussing the APP, and this would have to be considered when it dealt with the Act.

Ms Thlape said that from reading the report, the Land Bank should submit to the Committee a comprehensive plan for the transfer of 10% of its shares in the Cavalier group to the company workers. The plan should also indicate whether the transfer of shares to workers and black economic empowerment (BEE) personnel formed part of its agreement with Cavalier when it bought shares in the company, and whether the 1 400 workers at the company were eligible for shareholding. This was something that had been funded by the Land Bank and was geared particularly towards the commercialisation of black farmers. When the Committee engaged with the Land Bank, there were pertinent issues which should be raised, otherwise it would be failing the workers.

The Committee would need clarity on how nominated candidates could serve on the ARC board for one year. All these issues needed to be categorised, given timeframes, and decisions made on which would inform the programme of the Committee. It should not try to reinvent the wheel. There were issues that had been identified, and it was important to elevate them, do follow up and intervene when necessary.   

Mr Montwedi said there were still major differences between Ms Tlhape and himself that needed to be reconciled. Why had the sugar industry not been mentioned? The Portfolio Committee on Trade and Industry were making many pronouncements around this, but where did this Committee stand on the transformation of this industry? There had been a serious outcry over the 1978 Act which had actually prohibited the entry of black farmers. This Committee should be allowed to assist the sector in transforming.

The Chairperson said the Committee was looking into the legacy reports to formulate its own programme for the Sixth Parliament. It would need to follow up on the issues of the Fifth Parliament. Echoing Ms Tlhape, he said the Land Bank could reside within Treasury, but there were inconsistencies in the issues that it reported on, especially Cavalier and Majesty Oils. If funds were being allocated that had not been applied for, this was something that needed to be followed up by this Committee.

Regarding some of the work that had been carried out on oversight in the provinces, there were also issues that involved expired leases and excessive rental amounts for some of the farms. This could be followed up by the Committee. Ncera Farms was also not fulfilling its mandate and the recommendation had been to have it deregistered and transferred to the ARC. Was it still in existence and what was its position today? This farm was meant to empower the community of Ncera in the south of East London, outside the airport. Now it had gone to the ARC. What did this mean for this community? These were some of the issues that would need to be addressed by this Committee in its programme. The ARC itself was said to be making limited progress due to lack of funding, yet it was still being given the additional responsibility Ncera Farms.

Both content advisors should be requested, having read the Legacy Reports, to indicate what the outstanding issues were and what the Committee could start prioritising. It did not yet have a programme for the fourth term. The way forward was to identify the issues for each sector which could then be followed up on. In Agriculture, Forestry and Fisheries, the biggest challenge was that both Forestry and Fisheries had now been put into the Portfolio Committee of Environmental Affairs. This Committee would focus only on agricultural matters. 

Content Advisor’s response

Ms Mgxashe, in response to Ms Tshwete, said statutory appointments became relevant to the Committee only when there was a vacancy in any of the entities’ boards or when the term of the board had expired. Usually, the list of board members of each entity was listed in the APP or annual report that it tabled in Parliament. There was nothing stopping the Committee from requesting the Department for the list of board members for each entity.

Regarding Ncera Farms, there were two issues. There was the centre which was called Ncera Farms Pty Ltd, which consisted of the offices, workshops and livestock. It had been established to assist the neighbouring communal villages. There were also Ncera farms which surrounded the actual service centre. There were many questions as to whom these farms belonged -- Rural Development or Public Works? These were leased to farmers, who had to apply. They had nothing to do with agriculture. If Ncera Farms was fulfilling its mandate, it had to assist rural villages surrounding the centre and also those farms. What needed to be deregistered was Ncera Farms Pty Ltd, which was only the area where the service centre was. There was vegetable production taking place. It also had livestock. The deregistration had been approved last year already, but what was outstanding was for Treasury to ensure that when the budget was issued, no money was transferred to Ncera. From this year’s budget, the approximately R6 million that used to be transferred to Ncera was being transferred to the ARC, according to its APP. The staff had also been transferred -- about 30 workers. Only the chief executive officer (CEO) and chief financial officer (CFO) of Ncera had been absorbed into the Department. A question that the Committee could raise with the ARC was how they were making use of the facility -- the offices, the workshop and some livestock.

In response to Mr Montwedi, she said the main legislation that needed to be finalised had been mentioned in the report. There was very old legislation that went back as far as 1935 that had gone through a lot of amendments, and which needed to be reviewed. The main legislation was the Preservation and Development of Agricultural Land Framework Bill, whose main purpose was to prevent the loss of agricultural land to mining, or for other purposes. This was still outstanding. One of the urgent policies was the Comprehensive Producer Development Support, which was very crucial and was expected to address the fragmentation in of financial and technical support, mechanisation and all kinds of support required by producers, including capacity building or training.

Regarding the Food Control Agency, the Department had reported earlier this year that due to some technical issues -- which were unfortunately not specified -- the Agency had not been established. This was one issue which should be considered by the Committee when it formulated its programme for the following terms. The task team should be asked to explain the reasons for the delay in its establishment.

With conditional grants, the question of databases was an old issue. There had been talk of a farmer register, but there was no database, particularly of smallholder farmers. This meant that the Department did not even know how many smallholder farmers there are. There was a figure that was floating around of 250 000, but the source was uncertain.

The Taung Irrigation Scheme did not involve the establishment of new schemes, but the revitalisation of the existing one. Taung and Makhathini Flats had been revitalised in previous terms. During the last term, the resources were mainly used on the Vaalhaarts, which was also not a new scheme but the revitalisation of an existing scheme.

The Department tended to link the commercialisation of black farmers with blended funding. This was why the Committee in 2017 had requested a concept document on how the Department would be carrying out this task or programme. Instead of a concept document, the Department had come up with the blended funding scheme, which had been developed to commercialise farmers. There had not been any more detail on this. In the last Parliament, the only presentation that both Committees of Agriculture and Land Reform had received jointly on had left them both unhappy because there were so many questions and issues that the Departments, including the Land Bank, could not respond to. It had been put in the recommendations as an outstanding issue for follow up by this Committee.

In response to Mr Capa, she said it was shocking to learn that the amount farmers had to pay for assistance had increased to R2 700, because previously the Committee had not beenhappy with the R1 800 that was expected of people that were mostly dependent on social grants.

Regarding livestock production, there were both social and economic aspects. There was an argument of people in communal areas not necessarily wanting to sell their livestock, and being happy with the idea of a kraal full of cattle. This was not necessarily the case. Some people did not have the necessary knowledge and information as to how they could make money or get rich from their livestock.

Ms Mgxashe claimed that the existing government programmes were not sufficient. There used to be trucks from as far as Bloemfontein would go to Peddie in the Eastern Cape to collect livestock from the rural areas. The livestock considered to be not in a good condition were headed for feedlots in Bloemfontein. They would be sold in three months for double or triple the price. The mere fact that farmers were willing to sell their livestock indicated was that they had a business orientation, but they lacked support and information to create profit with what they had.

With conditional grants, the Department usually focused on infrastructure because it was easier to measure in terms of delivery, rather than spending time in training people and ensuring that they acquired skills. It was also not that easy to show an impact on skills within a five-year timeframe. Implementing agents had also been focussing on infrastructure. In this regard, the problem was also the top-down approach of the Department in always deciding for the beneficiaries what they thought they needed without consulting with them. Even the implementing agents were imposed on them. During its oversight in the North West Province, the Committee had visited one of the projects, a piggery that was doing well. For expansion, the Department had funded him for a better structure which was reported to have cost R2 million. The farmer had said that if he had erected that same structure by himself, it would have cost R800 000. This was one of the many issues the Committee had over the use of implementing agents, and the fact that the Department was not engaging the beneficiaries on their needs.

There were no implications in respect of bringing provincial departments to Parliament. The last Committee, on realising the challenges of the Department, had already resorted to calling the provinces to Parliament to account.

Game farming had been included because there was uncertainty about its placement. There was a time when it was dealt with by the Department of Agriculture. It supported the conversion of livestock farms into game farms as an adaptation measure, as some game was more adaptable to arable or marginal lands. The Committee could look into the responsibility of the respective Departments further. When the game industry was invited by the Fourth Parliament, the indication was that they would rather be under the Department of Agriculture, not Environment.

The Chairperson asked all the content advisors to meet and draft a list for the Committee to consider in order to populate its programme for the fourth term.     

Committee matters

Minutes of the meetings of 3 and 10 July 2019 were proposed, seconded and adopted.

After some deliberation, the oversight visit programme to KZN from 26 to 30 August was adopted.

The meeting was adjourned.


Share this page: