Restitution of Land Rights Amendment Bill: briefing

Meeting report

LAND AND ENVIRONMENTAL AFFAIRS SELECT COMMITTEE
17 September 2003
RESTITUTION OF LAND RIGHTS AMENDMENT BILL: BRIEFING

Chairperson: Rev P Moatshe (ANC) [North-West]

Document handed out
Commission for Restitution of Land Rights Presentation
Restitution of Land Rights Amendment Bill [B42-2003]

SUMMARY
The Commission on Restitution of Land Rights outlined the background to the Bill and the measures proposed by the Bill. During the discussion Members sought clarity on the meaning of the phrase "market-related value". Issues focussed on whether amendments allowed the Minister to sidestep the court order and simply expropriate land; whether the emotional nature of the land issue could properly be addressed by the Bill and whether the Commission had taken any steps to ensure that the land would be maintained during the expropriation period so that it would not be destroyed.

MINUTES
Briefing by Commission on Restitution of Land Rights
Mr Thabo Sineke, Commission on Restitution of Land Rights: Legal Officer, outlined the background to the Bill , its measures to expedite the restitution process and provided a clause by clause breakdown of the Bill.

Please refer to attached presentation.

Discussion
The Chair agreed on the powers that were being granted to the Minister so that the redistribution process could be expedited, as this was really needed.

Mr M Sulliman (ANC) [Northern Cape] asked which portions of the amendments were proposed by the Land Affairs Portfolio Committee.

Mr Sineke stated that the original Bill stipulated that the Minister "may expropriate for other land reform purposes". A concern was raised during the public hearings held by the Portfolio Committee that the phrase "other land reforms" was too wide, and that it would lend itself to vagueness and uncertainty. The Portfolio Committee thus requested clarity on the circumstances in which this would occur, and how the proposed Section 6(2)(b) would incorporate redistribution as an entire package so that the procedure was not duplicated. It this limited the other reform processes to the proposed Section 6(2)(b). Mr Sineke stated that this was the only amendment proposed.

The Chair sought clarity on the meaning of the phrase "market-related value".

Mr Sineke replied that Section 25(3) of the Constitution stipulated that "market value" was only one of the aspects that must be taken into account. The starting point would be whether the landowner would benefit from any other factors that would come into operation. The market value consideration would go through a valuation process or the landowner would be asked to conduct his own valuation, and the Commission would then attempt to reach consensus on the amount.

Mr A Van Niekerk (NNP) [Northern Cape] stated that he agreed that the land reform process had to be expedited. He asked whether the proposed amendment now allowed the Minister to sidestep the court order that was needed under the current Act by expropriating the land, when the Minister and the landowner could not agree on the price of the land.

Mr Sineke answered in the affirmative. Part of the motivation for the introduction of the proposed amendment was the frustration experienced by the Commission. There were cases in which the landowner persisted in disputing the redistribution claim, even when presented with indubitable evidence. The problem was that landowners believed that this process was aimed against them, when it was really aimed at returning the land to its rightful owners. A complicating factor was that the landowners took this matter personally. Yet there were safeguards built into the Promotion of Administrative Justice Act, which granted the landowner a hearing before the land was expropriated. If this process was not followed, the landowner would then be able to take the Minister's decision on review.

Mr Van Niekerk stated that he understood the Minister's frustration, but contended that the amendment did not address the power of the landowner to question the price determined by the Commission.

Mr Sineke replied that it did not refer to the price offered alone, but rather dealt with any legal claims. It was aimed at addressing the difficulty experienced by the Minister in redistributing the land to its rightful owners.

Mr Andre Andreas, Commission's Legal Officer, added that the Bill did not only relate to problems with the compensation offered, but also dealt with landowners who would not accept the validity of claims by delaying the process and taking the matter to court. The Bill intended to grant the Minister the necessary power to go into the negotiating meetings with landowners with more leverage. Once the expropriation notice was issued by the Minister the property would vest in the State. Should the landowner then object to the compensation offered, he would be able to settle the matter in the Land Claims Court.

The Chair asked whether the landowner could appeal against the Minister's decision to expropriate the land.

Mr Andreas answered in the affirmative. The matter could be referred to the courts.

The Chair agreed that this would only deal with the compensation offered, and not with the validity of the claim.

Mr Van Niekerk agreed with the Chair. The felt that this proposed amendment merely granted the Minister the power to bypass the court procedure in an attempt to speed up the redistribution process, and the NNP had no problem with this. The Bill focused on restitution, whereas the long title of the Bill stipulated "or right in land or for any other land reform process. He asked if this phrase was not too widely formulated.

Mr Sineke said that this was noticed by the Portfolio Committee on Land Affairs and it was satisfied that that phrasing should remain, because the phrase "other land reform process" was limited to Section 6(2)(b) only throughout the Bill.

Mr Van Niekerk stated that this Committee was not concerned about the decision taken by the Portfolio Committee because this was a separate House and this Committee had to apply its mind to the Bill.

Ms B Thompson (ANC) [Kwazulu-Natal] stated that land issues would always be emotional, and she was not sure how this could be addressed via the Bill.

Mr Van Niekerk stated that he agreed with Ms Thompson, and suggested that this Committee had a responsibility to address this matter because the process could be jeopardised if emotions ran out of control.

The Chair stated that government would try to maintain the balance, and only time will tell whether a Zimbabwe-type situation would result.

Mr Sulliman agreed that this was definitely not a Zimbabwe-type situation because the South African Constitution protects landowners, and they would be compensated for their land.

Mr Van Niekerk asked if the Commission was taking any steps to ensure that the land did not deteriorate from the time it was expropriated until it was taken over by the claimant. He stated that it was an important concern, because the land could be destroyed during that period of time.

Mr Sineke replied that the Commission was aware of that and had set post-settlement units in motion. These would look into the "caretakership" of the land during the interim period. He stated that the landowner was given two months within which to vacate the land, but this was subject to negotiation. The Minister could decide to grant the landowner more time if, for example, he had crops that had to be attended to.

Mr Van Niekerk contended that when the land is taken from the landowner against his will it would become an emotional issue, and this had to be avoided. It had to be made clear in the Bill that this expropriation would be a last resort.

Mr Andreas replied that the Promotion of Administrative Justice Act prescribed the process that had to take place before any decision could be taken to expropriate land. Should the Minister not follow this process, her decision could be set aside.

Mr Sineke added that it had to be remembered that it was an emotional experience for the claimants as well. He stated that this would have to be taken into account.

The meeting was adjourned.