Presidential Advisory Panel Report on Land Reform and Agriculture & Implementation of SPLUMA: briefing, with Deputy Minister

Meeting report

Briefing by the Department of Agriculture, Rural Development and Land Reform (DALRRD) on the recommendations of the Advisory Panel on Land Reform and Agriculture

Mr Mdu Shabane, Director-General (DG) for Land Reform and Rural Development: DALRRD, informed the Committee in his introductory remarks that the advisory panel had 73 recommendations of which 60 were supported and taken through the IMC (Inter-Ministerial Committee). The IMC was holding monthly meetings to process the recommendations adopted by Cabinet. He noted that the presentation did not carry the programme of action for each recommendation brought forward. There were three phases of the recommendations:

1. The recommendations of the panel that could be realised in the short term;
2. Remedial Term Interventions: the panel recommended the development of a policy frame work in the area of land tenure. The policy has to be developed in the next 12 months. The Technical Committee has prepared a programme of action for 2020 which still has to be presented to the IMC; and
3. The Remedial Interventions would continue in the long term.

Ms Busi Mdaka, Chief Director for Inter-Governmental Relations: DALRRD, informed the Committee that upon the receipt of the final report of the Advisory Panel on Land Reform and Agriculture, Ccabinet directed that all ministers, through their respective departments, should study the report, identify areas of related intervention and submit recommendations to the Minister for Agriculture, Land Reform and Rural Development. The Minister would then coordinate and present to Cabinet clear recommendations on interventions required by Members.

She reported that 73 recommendations were assessed and 50 recommendations related to the functions of the DALRRD. Of the 73 recommendations, 60 were supported, 10 were not supported, and three were noted but needed further research and analysis. The main reason for the supported recommendations was that they were already incorporated in the work of relevant departments to some extent. Recommendations that were not supported were those requiring further research, policy deliberations and the formulation of a proposed position.  

Giving explanations on recommendations not supported, she stated that the Agrarian Reform Vision that needed to be developed separately would not be part of the White Paper on Land Policy.  On the recommendation that found that the functions of the Office of the Valuer General (OVG) were not in line with Section 25 (3) of the Constitution, the PVA was under review to predetermine its scope and mandate in terms of whether it should be a regulator or an implementing agent for government. Regarding the establishment of a Land Rights Protector to Manage High Level (land) Conflict, it was envisaged that the Land Court Bill and Criminal Justice System would suffice. Concerning the recommendation that assumes a Land Administration Act would be the instrument for recording of land rights, the development of  tenure related policies was in progress and would determine the status and location of such an instrument and the title of the legislation. About the assumption that land administration has not been a chapter in the White Paper on Land Policy, there has been a broader recommendation on Land Administration that was supported and has been included in the 2020/2021 APP.

She also indicated that interventions on supported recommendations were work in progress. The Land Court Bill has been developed and would be submitted to Cabinet in Quarter 1 of 2020/21. It provides, amongst other things for dispute resolution mechanisms in line with the CCMA approach. The development of the Agriculture and Agro-Processing Masterplan has commenced and would be completed in June 2020. Release of State Land – work is in progress under the leadership of the IMC on Land Reform and Agriculture. The Beneficiary Selection and Land Allocation Policy is currently at public comment phase. The Upgrading of Land Tenure Rights Amendment Bill has been approved by Cabinet and submitted to Parliament for further processing.

Policy frameworks, policies and legislation targeted for 2020/2021 to 2024/2025” are as follows:

• Deeds Transformation Policy and Bill;
• Land Administration Policy and Bill;
• Agrarian Reform Policy;
• ​Revised White Paper on Land Policy and the Land Redistribution Bill;
• Land Valuations; and
• Land Compensation Policy and Urban Land Policy.

Lastly, she stated that the recommendations were being incorporated into the Annual Performance Plan of the Department. An integrated programme of action for the IMC on land reform was being developed to include supported recommendations. The contributions of other departments would be monitored through progress reports to the IMC.

Briefing by the DALRRD on the implementation of the SPLUMA (Spatial Planning and Land Use Management Act) programme

Mr Rajesh Makan, Deputy Director-General (DDG) for SPLUMA: DALRRD, stated that the focus on the initial implementation of the SPLUMA has been on the development, customisation and gazetting of the SPLUMA compliant Municipal Bylaws; establishment of Municipal Planning Tribunals; development of  delegations and tariffs; provision of training; and  development of the National Spatial Development Framework.

With regard land use regulatory by-laws, the primary issues in the four Eastern Cape municipalities (Nelson Mandela Bay, Ntabankulu, Enoch Mgijima, and Walter Sisulu) were around the amalgamation of municipalities with funding constraints. In Limpopo (Makhuduthamaga and Molemole), the primary issues were also around funding constraints. Matters pertaining to the outstanding tribunals related mainly to the dissolvement of District Municipal Planning Tribunals together with issues around capacity and availability of members.

The appointment of authorised officials or delegations to the Municipal Planning Tribunals has remained a choice that municipalities could exercise. The Act makes provision for the alternative call for external members to an Appeal authority. This option was exercised by four municipalities. Municipalities were provided with guideline tariffs in 2015 and these were being updated annually.

Mr Makan also spoke of Land Use Schemes. The Land Use Schemes Focused Group was established to deal with Land User Compliance (LUS) compliance (DALRRD, Provincial Representatives and SALGA).  The Focus Group monitors compliance of municipalities in terms of section 24(1) of SPLUMA, provides regular progress on SPLUMA implementation in terms of LUS facilitation and to provide support and intervention to municipalities struggling to comply with the requirements of section 24 (1) of SPLUMA, and discuss possible ways to support municipalities by looking into capacity issues and the root cause of municipalities’ non- compliance with SPLUMA requirements.

He further reported that the National Spatial Development Framework was there to monitor the compliance of municipalities in terms of section 20(1) of SPLUMA, and provide progress on SPLUMA implementation in terms of the Spatial Development Framework compliance at national level. Furthermore, it was reported that the current state of compliance was constrained by the following:

• Municipalities’ lack of capacity and  urgency to prioritises spatial planning and land use management issues - funding of LUSs and SDFs and Human Resource to implement has remained a challenge;
• Instability in land use regulator formation (MPTs/AA/AO) and funding of sittings;
• Resistance by Traditional Institution to implement SPLUMA; and
• Amalgamation of some municipalities.

It was recommended that urgent and continuous intervention by both national and provincial spheres of government has to be geared towards accelerated support to municipalities in distress, and there should be engagements with SALGA to elevate the importance of Spatial Planning and Land Use Management by municipalities.

Concerning the engagement of traditional authorities in the implementation of SPLUMA, it was brought to the attention of the Committee that the institution of traditional leaders has raised its concern on the exclusion of it in SPLUMA. The issue was further raised at the debate held in the National House of Traditional Leaders in February 2020. The institution was of the opinion that the Act does not provide a role for traditional leaders in the development and management of provincial, regional and municipal SDFs, and the Act was removing the powers of traditional leaders on land distribution and gives those powers to municipalities. That was why the institution indicated the implementation of the Act should be suspended until the Act is amended. As a result, a Technical Task Team would be formed to deal with unintended consequences for the non implementation of SPLUMA, and discuss outreach programmes on SPLUMA to all provinces and affected communities.

Moereover, he reported that in the 2020-2021 financial year, the Department would engage the Provincial Houses of Traditional Leaders as supported by the Chair of the NHTL regarding their roles and responsibilities in the implementation of SPLUMA. The Department would be arranging a Land Summit with the Institution of Traditional Leaders during May / June 2020, and issues raised by the institution on SPLUMA would be further discussed at the summit.

Continuous training and support has been provided to stakeholders. The following materials and tools were developed towards support:

Interactive web-based tools for compliance, monitoring and enforcement, as well as for the depositing of information and sharing of knowledge through communication portals;
Training manuals for capacity building for all SPLUMA structures on the implementation of SPLUMA and other support systems;
National and provincial SPLUMA IGR forums as well as memorandums of agreement between partners to assist in management of SPLUMA on a quarterly basis; and
Guidelines for Spatial Development frameworks / Land Use Scheme Guidelines / Land Use Suitability Assessment Criteria.

Lastly, he indicated that key policy lessons to date were around amendments to SPLUMA; the repeal of old order legislation; Provincial SPLUM Bills; amendments to by-laws; and the possible unconstitutionality of Section 52.

DiscussionDeliberations on the recommendations of the Advisory Panel

Ms T Mbabama (DA) wanted to understand how the Department was going to exercise oversight on other departments that would be giving inputs to the Cabinet resolutions. She further stated that the Department has not given an indication on the implementation plans for the PLAAS farms in terms of identifying the people who would be reallocated to these farms; and wanted to know what the current status was on Water Policy Reforms. Lastly, referring to support packages given to selected beneficiaries, she remarked that the lessons learnt in the past were not listed so that they could be corrected in going forward. For instance, tractors were bought but did not serve their purpose, and people were given cows that were not suitable for specific regions.

Mr Shabane stated that the Department would find a way on how this was going to be dealt with. The IMC would monitor the implementation of the recommendations. He indicated Parliament was better placed to state how it was going to get responses from other departments because it was going to be impossible for the Department to monitor other departments. He further reported that progress on the PLAAS farms was underway. The Department had already been allocated 103 000 hectares. The farmers would be provided with support packages. The target 700 farms would be allocated during the current calendar period. He also indicated that the Department of Water, Sanitation and Human Settlement has developed a Water Master Plan that would be presented to Cabinet during the year. Moreover, he pointed out the Department of Monitoring and Evaluation conducted evaluations on all support programmes and pointed out weaknesses in those programmes. The Department was mindful of the criticism received. The Executive Management of the Department should do what it was supposed to do and implement consequence management.

Mr M Montwedi (EFF) asked when the Beneficiary Selection Policy would be finalised.

The Deputy Minister stated that the Beneficiary Selection Policy was presented to cabinet during December 2019 and was supposed to have been finalised by 2 March 2020. The process on this policy has not been stopped because of the panel advisory report.

Mr R Cebekhulu (IFP) asked for clarity on the land under trusts like the Ingonyama Trust Board, and he indicated Judge Ngwenya has informed the Committee there has been no interaction between between the IMC and ITB.

The Deputy Minister stated further that the President has appointed a committee of ministers led by Minister Jackson Mthembu to deal with the ITB matter. The team has been engaging with the ITB and King Zwelithini. He stated that he did not entertain Judge Ngwenya’s response that there has been no communication between the parties concerned.

Ms T Breedt (FF+) wondered how it would be possible to do monitoring and evaluation when some of the recommendations were going to be implemented by other departments. She further remarked that there were lots of plans on the table and that the five year period given to the Committee was not going to be enough to process all these pieces of legislation. The deadlines have not been indicated for completion of the work.

The Deputy Minister stated that the coordinating efforts were not in the hands of the Department. The whole matter was coordinated by the Deputy President. The monitoring by the IMC was happening on a monthly basis.

Ms A Steyn (DA) commented there was no data or information on the monitoring and evaluation of land reform. Officials on the ground do not have information and have been writing letters to the farmers to drive them out of their farms willy-nilly. There has been a lot of confusion and miscommunication. She said that the Department was work in progress because it kept on reviewing pieces of legislation whereas recommendations have been done since 2007, especially on land owned by foreign nationals. It was 2020 now and nothing has been done. She remarked that research has been done on Land Ceilings, but it did not appear that there has been work done. She wanted to know the rationale behind the move to establish the Land and Agrarian Reform Agency.

Mr Shabane pointed out that it was wrong for officials to remove farmers willy-nilly because there was no policy on that. There were procedures to be followed when removing a farmer. He said that he noted the issues raised by Ms Steyn about the lack of information. He also indicated that the Department would determine what the Land and Agrarian Reform Agency would be doing before establishing it in order to avoid duplication. He further stated there has been a report that was released on Land Ceilings. A draft Bill was developed, but did not come to parliament.

Mr N Capa (ANC) commented that it appeared that there has been no response to recommendations that have not been supported, and it was not clearly stated how the recommendations would be incorporated into the APPs. He further remarked that land reform was lacking long-term planning. It was as if the planning was just for the present time. He asked for clarity on how the other departments were going to interact with the DALRRD.

Mr Shabane indicated all the things that would be incorporated in the APPs would be presented to the Committee when the time comes to present APPs.

The Deputy Minister stated that the other departments would submit their action plans to the DALRRD which would then report to the IMC.

Ms K Mahlatsi (ANC) wanted to understand what the discrepancies or differences were in the understanding of the role of the OVG between the panel and IMC. She further wanted to establish why the IMC was confident that interventions from the Land Court Bill and Criminal Justice System would be sufficient regarding the establishment of a Land Rights Protector even though there were limitations in that space.

Mr Shabane admitted there was a challenge regarding the role of the OVG because it was not clear whether the OVG was the implementing agent or a regulator. The OVG should rather be a regulator or an implementing agent. Currently, it seemed that it was doing both. He also made it clear that there was comfort from the IMC on land distribution claims that the Department would use commissioners and the two chambers dealing with disputes. Land eviction would be dealt with by the Department of Justice.

Ms N Mahlo (ANC) suggested that there should be a monitoring and evaluation tool which the Committee could use in doing its oversight work, and there should be a time-frame for the completion of the Agrarian Reform Vision. She asked for clarity on the old order claims of ’98.

Mr Shabane stated the Claims Commissioner would touch on the matter when presenting to the Committee on 17 March 2020.

Ms B Tshwete (ANC) remarked there were no clear implementation plans for the Committee to be able to monitor the implementation of the recommendations. She then wanted to establish why there was a need for further research on the regulation of land ownership by foreign nationals because there were recommendations made in 2007.

Mr Shabane stated there were thousands of property trusts that were registered with the Master, and the amount of land owned by the trusts was not known. So, there was a need to do an audit because some of these trusts belonged to big companies. There were trusts that owned more land than the CPAs.

Ms Steyn said her concern about this further research was because some these things that have happened were hampering progress on the ground. There was a need to get to some kind of certainty on whether the government still wants to continue with land reform; and that the government has not got a list of every farm which has been bought by it.

Ms M Tlhape (ANC) suggested the Department should concentrate on the recommendations that were not supported. She further suggested the Integrated Programme of Action for the IMC on Land Reform that was being developed should be submitted to the Committee once it has been completed, so that there could be a joint portfolio committee meeting to strengthen the coordination. She then enquired why Land Court Bill could not be submitted to Parliament soon instead of waiting for Quarter 1.

Mr Shabane stated that the Land Court Bill was the responsibility of the Department of Justice, which also has got a seat in the IMC. The Bill sought to consolidate land related judicial matters. The President has given a proclamation for the appointment of three judges on the Land Court Bill. He also indicated that it was difficult to respond to some issues raised by the Committee. A detailed programme of action would be presented in the coming week in respect of the recommendations supported.

The Chairperson commented that it was important to thoroughly look at the report of the Advisory Panel to see if what was requested has been attended to. The implementation plan, according to the DG, was before the IMC, but Parliament has not created a structure so that the Committee could engage with the IMC. It was not acceptable for the Committee to be told during the meeting that there was no implementation plan that would be discussed in the meeting. The Committee should be alerted to when to expect a presentation on the implementation plans. If the implementation plans were still to be presented to Cabinet, the Committee should have been informed earlier so that the Department could present it to the Committee after that. Further, he pointed out that there has been nothing said in the presentation about recommendations dealing with the ITB and IMC. He wondered how the recommendations would be implemented if there have been no engagements between the two parties.

Deliberations on SPLUMA

Ms M Tlhape (ANC) enquired what the impact would be seeing that the implementation of SPLUMA has to be halted until the amendment of the Act. She asked for clarity on the possible unconstitutionality of Section 52.

Mr Shabane made it clear that before SPLUMA the Department had a Development Facilitation Act which provided for the establishment of provincial tribunals for decision-making.  He said that there has been a case where the Joburg City took the government to court, citing that planning was the responsibility of the municipality, not a provincial function. So, SPLUMA is a piece of legislation that recognizes the three spheres of government, placing responsibility of planning on municipalities. There has got to be a will to support municipalities in order to realise SPLUMA. SPLUMA is central to making sure that those responsible for implementation play their part.

Mr Makan explained that section 52 was making provision for natural interest and the Minister to intervene so that he/she could provide criteria and engage with affected municipalities. The matter has been raised with many stakeholders, but nothing has been finalised.

Ms Mahlo wanted to find out about the kind of support given to municipalities.

Mr Makan stated the assistance given to municipalities ranges from financial support to the development of tools and systems in terms of Section 9 (b).

Ms Mahlatsi wanted to know what the role of the Department would be regarding municipal by-laws that have not been gazetted. She remarked that it appeared that SPLUMA was not implementable in its current form because if it was implementable, the presentation could have given Members confidence. The recommendations did not clearly indicate the targets they were directed to. And it was not clear what would happen if the Act was not implementable.

Mr Makan explained the challenge with municipalities was around budget planning. Many of the municipalities did not cater for budgets when they amalgamated so that they could attend to by-laws.

Ms Steyn remarked that the Department was busy planning, re-planning and reviewing. The work has been in progress. She indicated that SPLUMA was not implementable because there was no capacity to implement it on the ground. She could not understand why the Department was keeping on making legislation it could not monitor, and it was not even clear of when SPLUMA would become law.

Ms Breedt remarked that it was good that challenges have been highlighted to indicate capacity constraints at municipal level. The Department should try to come up with plans to assist these municipalities. She also indicated her fears were around the absence of deadlines for these projects. It was important to prioritise provinces, step by step.

Mr Makan commented that the concerns of the Committee were around the constitutional responsibility of the municipalities. In terms of monitoring and evaluation, the Department was trying its best, but sometimes it was sometimes up to the municipalities to take responsibility. The importance of planning tools should be escalated to deal with agricultural and industrial land to determine where new development should take place. And all of these could be done through SPLUMA.

Mr N Masipa (DA) enquired who the beneficiaries were for the training and support provided; and he asked how many IGR forums were existing in the country.

Mr Makan stated the beneficiaries were the municipalities and provinces. The work included the development of material. He also indicated the national forum of the IGR was having quarterly meetings every year and its composition included metros and provinces.

Mr M Montwedi (EFF) asked the Department to provide information on its consultative process with the traditional leadership because it rejected SPLUMA, and it was not understandable why the Department took five years to engage with traditional leadership. He noted the invasion of agricultural land was an indication SPLUMA was not working. He also stated it was not understandable why municipalities were expected to pay members of the municipal tribunal’s money when the municipalities did not have money. The Department was continuing to advertise for members of municipal tribunals but nobody was interested in these positions yet there was no allocation of money for these members. He then asked for clarity on the Land Summit and study tours that Minister Thoko Didiza spoke about in the Committee recently.

Mr Shabane admitted that the traditional leadership has raised its concern for five years. The Constitution was placing the planning function on local government. The matter with traditional leaders was that they were not involved in the decision-making concerning the governance of land under traditional leadership and governance of land in general. This was intertwined with the land tenure legislation. The appointed task team was continuing to engage with traditional leadership. Furthermore, he indicated that when the Land Summit has been staged, provincial workshops on the matter would be held.

The Deputy Minister added that in 2017 the National House of Traditional Leadership requested a land summit. But there have been delays due to a number of challenges. Later, it was decided to undertake this study to see how other countries have gone through the land reform process. The Department together with the departments of COGTA and Justice were leading the process. The visit to Ghana was proposed by the traditional leadership.

Ms Mbabama asked for clarity on the requested legal opinion on the municipalities’ non-compliance with Section 24 (1) of SPLUMA. She also indicated spatial sustainability did not come through the report and enquired if the Committee could be briefed on that.

Mr Makan explained that the legal opinion was needed to assure that the Minister could provide a blanket extension of the time-frame and exemptions in terms of submissions. He further pointed out that spatial sustainability has been included in SPLUMA in terms of its five principles although there was no specific chapter on spatial sustainability.

The Chairperson remarked that during August of 2019 the Committee requested from a new deadline for finalising the Bill the Minister. The new deadline of 29 April 2020 was not going to work because there were so many processes that have to be followed like advertisements, public hearings, and etcetera. It has become clear that Parliament would not meet the deadline. So, the Department should go back to court and request for a new deadline.

The meeting was adjourned.