Pre-1999 Land Claims & Project Kuyasa, with Deputy Minister

Agriculture, Land Reform and Rural Development

17 March 2020
Chairperson: Mr Z Mandela (ANC)
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Meeting Summary

The LAMOSA 1 judgement (28 July 2018) and LAMOSA 2 judgement (19 March 2019)  by Constitutional Court in the matter of the Speaker of the National Assembly and Chairperson of the National Council of Provinces v LAMOSA  prohibits the Commission on Restitution of Land Rights from addressing new order claims until the old older claims are settled. The purpose of the Kuyasa Project is to create standard process and systems-related solutions to fast-track the settlement of the approximately 7 743 outstanding restitution claims lodged before 31 December 1998.

The Commission on Restitution of Land Rights (CRLR) said the project would do a thorough evaluation and analysis of the current state of the land restitution claims process and systems; identify and evaluate process and system pain points, bottle necks, redundancies, and areas of improvement; and quantify current backlog and underlying causes of the backlog.

Provinces had different challenges in the land restitution claiming process which led to various process models being used across the different provinces. No electronic system is available for tracking of claims – a paper-based, manual system is in use. External factors delaying progress are the Office of the Valuer-General (OVG) and dependencies on Departments of Public Works and of Environment, Forestry and Fisheries. Other challenges in processing outstanding claims include: claimants changing the selected settlement option; quality of research; missing information and untraceable claimants; rejection of offers; competing and overlapping claims; matters referred to court  by claimants or land owners.

As a result, the Kuyasa Project has five key outcomes:
• develop an operating model that would assist the Commission to be better poised to deal with its current and future challenges of backlog resolution.
• redesign the claim process to facilitate the fast tracking of the claims in backlog.
• proposing key capabilities required to support the redesigned process.
• look at proposed governance structures to guide the Commission’s internal operations and its interaction with other institutions that impact its operations.
• develop high level implementation plans to guide the Commission to implement the proposals.

CRLR had developed a business case for it to become an enhanced specialised service delivery unit (SSDU) or a public entity based on recommendations and information from experts and Department Annual Reports. This was to comply with legislative, audit and parliamentary related standards. The estimated costs for all the recommended steps were outlined. The business case was awaiting approval. Once the appropriate business model was selected through an analysis of the options, it would develop a business case for the selected option, and support CRLR through the process of approval of the selected option.

The Kuyasa Project has identified key focus areas for improvement: appropriate organisation form; research and verification improvements; governance and policy improvements; legal case management; IT systems improvement; proactive claim management for new order claims, developing post settlement involvement and settlement models; developing interim outstanding claims template and management reporting tool, and cost breakdown estimates for outstanding claims.

Members asked how Project Kuyasa differed from the 2017 Operation Phakisa; how research capacity challenges would be resolved; if CRLR has internal capacity to deal with outstanding claims; why the business process was not standardised across provinces; about accuracy of statistics; if there is a deadline for CRLR autonomy; the budget for the 7 743 outstanding claims; what CRLR has done about the South African Human Rights Commission (SAHRC) findings; legal costs for court cases and what the savings would be if the settlement process was expedited.

Meeting report

Project Kuyasa & Pre-1999 Land Claims: Commission on Restitution of Land Rights (CRLR)

 

Ms Nomfundo Gobodo, Chief Land Claims Commissioner, noted the South African land restitution programme was initiated in 1994 when the Restitution Act was passed. Lodgement of the 1994 to 1998 claims took place not only at CRLR but also at various departments, police stations, post offices and municipal offices. This contributed to the challenge of arriving at a definitive figure for the 1998 lodgements. but they have 79 696 as the total number of claims lodged, with outstanding claims currently at 7743.

Ms Gobodo stated the main purpose of the Kuyasa Project was to do a thorough evaluation and analysis of the current state of the land restitution claims process and systems; identify and evaluate process and system pain points, bottle necks, redundancies, and areas of improvement; and quantify current backlog and underlying causes of the backlog of claims lodged before 31 December 1998 (Old Order Claims).

Provinces had different challenges in the land restitution claiming process which led to various process models being used across the different provinces. No electronic system is available for tracking of claims – a paper-based, manual system is in use. External factors delaying progress are the Office of the Valuer-General (OVG) and dependencies on Departments of Public Works and of Environment, Forestry and Fisheries. Other challenges in processing outstanding claims include: claimants changing the selected settlement option; quality of research; missing information and untraceable claimants; rejection of offers; competing and overlapping claims; matters referred to court  by claimants or land owners.

As a result, the Kuyasa Project has five key outcomes:
• develop an operating model that would assist the Commission to be better poised to deal with its current and future challenges of backlog resolution.
• redesign the claim process to facilitate the fast tracking of the claims in backlog.
• proposing key capabilities required to support the redesigned process.
• look at proposed governance structures to guide the Commission’s internal operations and its interaction with other institutions that impact its operations.
• develop high level implementation plans to guide the Commission to implement the proposals.

The Kuyasa Project has identified key focus areas for improvement: appropriate organisation form; research and verification improvements; governance and policy improvements; legal case management; IT systems improvement; proactive claim management for new order claims, developing post settlement involvement and settlement models; developing interim outstanding claims template and management reporting tool, and cost breakdown estimates for outstanding claims.

Ms Gobodo said a business case of an autonomous business unit has been developed based on recommendations and information from the SAHRC, Department of Performance Monitoring and Evaluation (DPME), Regulatory Impact Assessment (RIA), Government Technical Advisory Centre (GTAC), CRLR and the Department annual reports from 2014 to 2018. The imperative is to comply with legislative, audit and parliamentary standards. The LAMOSA 1 and 2 judgments have put a microscopic lens on the service delivery of CRLR and, therefore, called for urgent intervention on the current operating model, including compliance with the LAMOSA court order. AGSA recommended that CRLR should analyse the provisions of the Restitution Act and those of the PFMA to ensure understanding on the entity type and how it should  account for  financial accounting purposes. Plus, CRLR has a vital role to play to promote rural economic transformation through improved processes for land restitution.

A draft business case has been developed and the process that would be followed for the determination of the organisational form has been determined and was awaiting approval. The objective was to determine the appropriate business model for CRLR through analysis of various options, to develop a business case for the selected option, and to support CRLR through the process of approval of the selected option. The CRLR could be operating as an SSDU (Specialised Service Delivery Unit) in 6 months for R24 million per year or as a more autonomous entity such as Government Component or a Public Entity in 24-36 months for R625 million per year.

She pointed out there were seven high level options available to resolve land claims: (1) land restoration, (2) financial compensation, (3) development compensation (4) alternate land. CRLR was facilitating negotiations to resolve overlapping claims where both parties benefit (5) partnership (co-management) (6) priority access to state resources (7) exceptions / alternate redress were driven by external stakeholders such as the Land Claims Court and land owners. A combination of these options could also be used to resolve land claims. Claimants could choose to either receive land or to be financially compensated. The selection of the preferred option by claimants and agreement by landowners was a key cause of the claims backlog.

She noted challenges with lack of informed decision-making at settlement options workshops, inflexible and generic settlement models that were not often fair or beneficial, lack of technical capacity to resolve complex claims, and models that did not meet land reform imperatives. Stronger settlement models have been developed to ensure that restored land benefits claimants in the long-term and benefit the economy. This would ensure claimants who might lack requisite skills, sector insight, market access or sufficient operating capital were able to benefit from the restored land; and ensure entities created for land holding were stable and able to support sustainable projects. To balance interest of multiple stakeholders, it is critical that sector stakeholders are engaged before a settlement is reached for sustainability; and restoration needs to consider all stakeholders involved.

She reported two of the seven sector engagements on settlement models have been undertaken with success, and valuable input has been obtained from sector stakeholders in sugar cane, forestry, mining, agriculture, urban and commercial development, financial compensation, tourism and conservation.

Going forward, she said the CRLR would submit reports to the Land Claims Court as ordered by the Constitutional Court's LAMOSA judgments; focus on the finalisation of the comprehensive Backlog Reduction Strategy; and prioritise state land transfers to beneficiaries.

Discussion
Ms M Tlhape (ANC) wanted to understand how Project Kuyasa differed from the 2017 Operation Phakisa. How was the number of 7743 land claims arrived at as the Operation Phakisa presentation of 30 June 2017 indicated 6558 outstanding land claims? She asked the reason for the difference between the two amounts.

Ms Gobodo explained there was a Phakisa process in 2017, and one of the outcomes was that CRLR had to deal with claims backlog and come up with a clear plan. CRLR engaged with its own Mini Lab which was part of the Phakisa. The outcome was that it would need a clear plan for settling the claims in a comprehensive manner. The Kuyasa Project was not a stand-alone process, but was a result of the 2017 Phakisa project processes. The Kuyasa Project was there to fast-track the settlement of claims. This means CRLR was unpacking in detail what the claims in each province look like, defining the nature of the claim, identifying the challenges of each claim, and looking at necessary interventions so that the claims could be costed comprehensively. And that was something CRLR could not do now. The claims were different in nature. CRLR was working on a comprehensive plan to deal with all its challenges and the lessons learnt.

Ms N Mahlo (ANC) noted the identification of 9 interlinked projects, but nothing has been said about monitoring and evaluation of these projects. The presentation did not mention the challenges in the processing of claims nor had it identified timeframes for strategic projects to expedite land claims, something which would help during oversight. How was the lack of research capacity going to be addressed?

Ms Cindy Benyane, Acting Deputy Land Claims Commissioner: CRLR, replied that the processes for the projects opened in April 2019 and would be finalised by April 2021. CRLR has established the backlog baseline and the outstanding matter was the verification of the baseline. It was estimated to be finalised in September 2020. On process improvements, CRLR has analysed the process and the rollout to provinces would happen in December 2020 and it would include a project management template, monitoring and evaluation on a monthly basis, and reporting.

Ms Gobodo replied that research challenges were identified as part of Phakisa and interventions have been put in place as time went along. CRLR has augmented its research capacity by making use of universities such as Fort Hare, UKZN, and Venda. Even then challenges have been experienced with universities in the quality of research produced and CRLR has learnt some lessons along the way. The work of the first three years has been done through research from these universities. Now that some of their contracts have come to an end, CRLR would look at finding better ways of doing work with them going forward.

Ms K Mahlatsi (ANC) asked how many outstanding claims were from the old order as the presentation spoke about claims lodged. She remarked that the question of the autonomy of the institution has resurfaced. There must be clarity on whether CRLR was a semi-entity within the Department of Agriculture, Land Reform and Rural Development (DALRRD) or a full entity.

Ms Gobodo replied that outstanding claims have not been fast-tracked by developing smart processes. That was why the Kuyasa Project was trying to find quicker ways of doing what has been taking a long time to do. Decentralisation was part of the design and new opportunities to be presented by Kuyasa. Decentralization was important and necessary for provincial commissioners to turn matters around with speed on the ground. For CRLR to be autonomous it needs to have resources and capacity, and an approval was needed for that to happen. That was why CRLR was continuing to ready itself for when that opportunity presents itself. But the Auditor General has indicated, in terms of the law, CRLR was autonomous, but it has to comply. CRLR cannot comply because it does not have an HR department, risk committee, and audit committee. Even though CRLR was aware it could not expect to be given all the resources, it wants service level agreements with the Department to provide the necessary capacity. The Kuyasa Project was seeking to audit comprehensively where CRLR was at present to close the gaps as they arise.
Ms Gobodo made it clear that CRLR is in the structure of the Department because it was part of the history and rationalisation. And that was why CRLR wanted to define its space because in terms of the Restitution Act the mandate of CRLR was to receive, investigate, and settle claims. That was it technically. CRLR was not supposed to talk about development and what happened after the land has been transferred, deal with CPAs, and unbundle settled claims, etc. But the reason was that CRLR was sitting in a grey area. It must be remembered CRLR has got a capacity of 55% yet it is expected to do things that it was not mandated to.

Mr Mdu Shabane, Director General for Land Reform and Land Restitution, DALRRD, added that the Office of the Deputy Minister was responsible for the work of CRLR. The Chief Land Claims Commissioner has briefed the Minister and DG about the matter. The Minister has indicated to the parties a need to work on the development of the plan for this autonomy. The focus of the Minister was for CRLR to turn around its work with speed in resolving land claims. The CCMI [?] has been tasked to determine the resources that would be needed for CRLR to be independent.

Ms T Breedt (FF+) stated her fear was the paper system. There were a number of claimants who have been waiting and she wondered how CRLR would ensure it did not miss anyone from the ’98 land claims and also taking into account the new order land claims. How are we going to ensure we have a standardised process to handle this successfully? How was the need for capacity going to be addressed? Do we have a deadline to ensure the old order claims are settled?

Ms Benyane replied the micro structure of CRLR has 1 500 staff members. Most staff members were aged 50 years plus, something which would be attended to.

Ms Gobodo admitted that lodged claims were paper based previously, but since 2014 everything has been done electronically. The electronic system was conducted in the CRLR office to ensure proper protocols were followed. Lessons were learnt from the paper based system. The Reduction Strategy was part of Kuyasa's comprehensive approach to identify the CRLR needs for business and IT systems. That has something that had already been started as they were now receiving claims electronically and would like to continue with that portal for end to end settlement of claims.

Mr N Masipa (DA) remarked most beneficiaries were sitting with land lying fallow, while others were having squabbles and some have leased the farms to make a living. From this review, he asked for the lessons learnt to counteract such challenges. What overall budget was required to settle these 7743 outstanding land claims? He asked if there has been a determination from the Minister to support the 7743 claims. Have targets been set after launching the Kuyasa Project because at present CRLR was sitting at 30% in targets achieved. That was very low compared to what the country really needed to do.

On unproductive land lying fallow, Ms Gobodo pointed out that this was the reason CRLR was saying that the settlement models have to speak to feasibility models. Post-settlement was not the responsibility of CRLR as its mandate was to receive, investigate, and settle the claims. The government has the responsibility to provide support packages to ensure sustainability of the projects. Some projects require stakeholder engagement to ensure they successfully benefit the claimants.

Mr M Montwedi (EFF) commented on the judgement that said the Department should not only give the land, but has to develop it as well. Most of the time when land has been given to people, these farms were vandalised by the previous owners. This meant these properties were not in a productive state as before. He could not understand why the Department waited for this judgement as that showed it was not making use of the other programmes to give support to farmers. In another 2017 presentation by the Department to the Committee, the Minister was quoted as saying the Department was moving ahead to transform the Land Claims Commission into a Chapter 9 institution. He asked why this was not the case as clearly the problems CRLR was facing were a result of not being on its own. It has been indicated that it would take 35 years to settle the outstanding claims. This was a very big concern as the people who lodged the claims would not be around as the beneficiaries seeing the land returned to people. He suggested CRLR should speed up settling the claims so that those who lodged the claims could be the actual beneficiaries of land restoration.

Mr Montwedi said the 2017 presentation indicated 665 outstanding claims in the Free State but now outstanding claims are 695 and in Limpopo there were 1862 outstanding claims and now there were 3415. He wondered if this was a true reflection of outstanding claims. He asked if the OVG has taken CRLR back. He asked what system was in place to verify acknowledgement letters from claimants and what the process was after receiving the acknowledgement letter.

Ms Gobodo replied that the regional land commissioner was responsible for approvals of acknowledgement letters and verifications were done. She made it clear that the Chapter 9 institution was a political mandate which came up during the Fifth Parliament. It must be remembered CRLR was acting on what has been approved. Currently, CRLR was the programme of DALRRD. That was the space CRLR found itself in and it has to act within that space. She pointed out that CRLR was doing relatively well before the OVG was established and its target then for settling claims per financial year was 1000 plus. CRLR had to reduce that to 450 claims after the OVG. The Committee was aware of the challenges involving the OVG.

Mr Mdu Shabane explained that the OVG has capacity challenges and that was one reason causing the enormous backlogs. The Minister has agreed to the filling of 21 OVG vacant posts and to the OVG structure. The OVG needed to set norms and standards in its valuations for land reform. There has been an service level agreement (SLA) between the OVG, Commission and Department that it should allow CRLR and Department to conduct their own valuations in terms of norms and standards set by the OVG. The OVG would only provide quality assurance to ensure the valuations were in line with the Valuations Act and issue a certificate. The OVG backlog was not only impacting CRLR, but also the land distribution programme of the Department. It was hoped the SLA would reduce the backlogs.

Ms T Mbabama (DA) remarked that during 2014 to 2016 there were about 6 000 outstanding claims. These dropped in 2017 by about 100. But somehow they increased from 2017 to 2020 by 1 185 to 7 743. The SAHRC report had 14 comprehensive findings and pointed out pertinent items that had to be corrected by CRLR. What had CRLR done about those findings? She commented that if CRLR was going to be a Chapter 9 institution, its focus should be on settling the claims.

Ms Gobodo replied that  the 7 743 unsettled claims were the result of the vetting process and what has been uncovered. The numbers have been audited and timelines would be provided. For example, in the Free State CRLR thought it had finalised all the claims, but the challenge was around the nature of claims. The main issue was in the transfer of state lands as there are processes that have to be followed for the transfer to take place. Now the Kuyasa Project was refining all these cumbersome processes to find quicker ways of settling the claims. CRLR would submit a written report to the Committee about the SAHRC report.

Ms A Steyn (DA) asked if the Department has a list of all claims on state land seeing that the presentation mentioned privatisation of state land. She asked if that was linked to the 7000 hectares to be transferred to beneficiaries. She asked if the Committee was happy with the presentation on the LAMOSA judgement as she did not think the Committee understood it. She asked how far CRLR was on the 25% compensation given to the value of the land. She asked for the current legal costs for court cases and how much would be saved if the settlement process was speeded up. She asked if the District Six story was not presenting an opportunity for the private sector to be involved in this process.

Ms Gobodo stated there were 318 court cases, but she did not have the exact costs. CRLR has not done an analysis on costs that would be saved should the process be speeded up to avoid prolonged court cases.  She indicated that non-financial pay-outs were not easy because it depended on the nature of the claim and the space it was in. For example, in the Eastern Cape most of the claims happened in rural areas where people were moved from one village to another. The claiming community did not want additional land, but resources to develop the land it was occupying. There were instances where there was financial compensation to claimants who opted for it as allowed by the Restitution Act.

Mr R Cebekhulu (IFP) asked what was prolonging the release of land, especially farms on state land, to the claimants. Were plans in place to protect the buildings on these farms against people who were vandalising them. When the claims were gazetted, people were informed there would be no exchange of land. However, now they were seeing officials continually leasing those farms which have been long gazetted. He asked what the view of CRLR and Department was on this matter.

Ms Gobodo replied the process to release state land to beneficiaries has been found to be very complex because some of the land was owned by Public Works, provinces, etc. For one to find out about the land to be released one has to go through the necessary protocols. Through the assistance of the Inter-Ministerial Committee (IMC) on Land Reform, CRLR was working with other departments to fast-track transfer of state land under claim.

The Chairperson remarked the Committee had embarked on public hearings on the amendment of section 25 of the Constitution on expropriation of land without compensation. One of the key issues that came up was that of 1913. Various communities have called for 1913 to be removed as it was a great impediment. In the District Six matter, the land was given back to 994 beneficiaries. He read out a narrative of the contestation of land between the Dutch and the Khoi between 1652 and 1655. He was battling with this issue and wondered if the country had not embarked on a fraudulent process of land claim upon land claim, rather than looking at the real issue at hand. He hoped the expropriation of land without compensation could be fast-tracked and realised so we can deal with redress with real sincerity because we are sitting with claims speaking to District Six. The Khoi communities have not been truly attended to in these land claims. CRLR has in previous years given many different figures for outstanding land claims. Currently, it was 7743 outstanding claims. Since 2015 CRLR has settled only about 200 claims and this was a small number to have finalised over a five-year period. This showed the CRLR statistics were not reliable. What was CRLR doing to ensure it was producing consistent and reliable data on claims? He noted that the Kuyasa Project outcomes were similar to those of Operation Phakisa, especially on the acceleration of settlement of land claims. This would lead people to think Kuyasa was a name change for Phakisa. If Phakisa could not be implemented, would this new project be implemented? CRLR has not produced fruitful results. He asked for CRLR plans to keep people informed about their land claim applications.

Ms Gobodo replied that in every presentation CRLR has done, they have indicated they have serious challenges with statistics because in many cases they have one claim but with many claim forms in different places and some claim forms have been missing. When she explained the history of CRLR, those were the challenges she has been trying to explain. Sometimes the presentations to the Committee would have a disclaimer at the bottom of the slide which indicated they were still working on the statistics. At some point there was a consolidation of claims and the counting did not work in the normal process. That was why they have been stating upfront the statistics were a challenge. As from now their statistics would be audited by an external party in order to have the correct numbers. But this was not to say they have not been trying hard to have reliable statistics. At some point there was a box of claims in Khayelitsha which had to be added to the existing figures and in some cases an individual would come with an acknowledgement letter, but there was no claim form. CRLR was aware of the dynamics around the statistics and was dealing with it.

On communication strategy, CRLR has a district-based consultation happening in provinces so that it could proactively communicate, and it has also tried to send SMS messages to claimants and standard letters to those who submitted new order claims to state they could not be attended to for now. On expropriation without compensation, CRLR would be able to assist when the Commission has a representation on the matter to provide the necessary support. Section 42(e) of the Restitution Act allows CRLR to expropriate land if the claim is valid and parties agree to the settlement. By the end of 2019 CRLR had expropriated 27 properties, the first one being in the Northern Cape in 2003 in terms of section 42(e) of the Act.

Mr Sunjay Singh, Chief Director for Service Delivery Coordination: DALRRD, replied that the exact figures for claims settled in the last five years would be sent in writing to the Committee. The 7 743 outstanding claims was work in progress. The budget for CRLR autonomy was not possible. For that capacity, the only thing CRLR needed from the Department were service level agreements.

Dr Wayne Alexander, Chief Director for Restitution in the Western Cape: DALRRD, commented that the amount of research that needed to be done and targets to be achieved were underestimated. There were lessons learnt in unbundling the challenges and going forward. Some of the decisions that were taken during the multi-party constitutional negotiation process were on the 1913 Land Act and on how the claims were going to be settled.

Mr Mike Mlengana, Director-General for Agriculture: DALRRD, talked about post settlement, saying the Department has profiled all the land given to communities and has identified the needs in those communities and is trying to put a budget together to ensure the productivity of that land. The Department was taking over the responsibility of the restituted land from CRLR. It has taken responsibility for this mammoth task.

Deputy Minister Skwatsha commented that having an autonomous Commission was an advantage because it would not wait for a long time for considering the re-opening of claims. Currently, the re-opening of claims happens after five years. He said the issue raised by Ms Steyn about District Six was something that would be considered.

The Chairperson noted it would not be possible to move forward without taking note of the parallel process to amend section 25 of the Constitution for expropriation of land without compensation. He wondered how ready the Department and CRLC were should the dreams of the majority be realised on expropriation of land without compensation. What was coming out of the public hearings included the request for the substitution of 1913 by 1652. He asked what the impact of this would be on the LAMOSA judgement on 1998 land claims and if the Department would be ready for claims coming from the Khoi communities in the Table Bay, Saldanha Bay and Boland areas. He urged the Commissioner, Deputy Minister and DG to look at amending section 25 of the Constitution with the interest of the majority at heart. People want their land now as that was made clear at the public hearings the Committee held in Mpumalanga, Gauteng and North West. People said 1913 must be done away with and replaced by 1652. This would necessitate a scrutiny of the historical documents of land dispossession. He urged the Department to consider thoroughly the impact of the amendment of section 25 of the Constitution, especially for claims lodged by the Khoi communities around Table Bay and Saldanha Bay.

The meeting was adjourned.

 

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