Communal Land Rights Bill: hearings

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This minute was produced kind courtesy of Contact Trust. Their website is at

13 November 2003

Communal Land Rights Bill [B67-2003]
Commission on Gender Equality submission
COSATU/NUM submission
Ms Aninka Claassens, PLAAS/NLC Community Project submission
Prof Ben Cousins, Programme for Land & Agrarian Studies

The portfolio committee heard submissions from various organisations including Ms S. Williams of the Commission on Gender Equality and a joint submission from Ms P. Govender of COSATU/NUM who expressed their concern that the Bill would have to be substantially redrafted to meet with its constitutional mandate. COSATU/NUM believed that this would not be possible with the time constraints that Parliament was subject to as result of the 2004 general elections. In this respect COSATU expressed their dissent to the fast tracking of a flawed Bill purely to meet parliamentary deadlines which COSATU felt would have serious consequences. In addition, the portfoilo committee heard submission from Ms Aninka Classens of PLAAS/NLC Community Project, and Prof Ben Cousins, Programme for Land & Agrarian Studies.

Ms Suraya Williams (Parliamentary Officer) Commission on Gender Equality (CGE)
For details of Ms Suraya William's submission, please refer to the attached document.

Dr A. Schoeman (ANC) asked for clarity on whether or not the CGE was requesting for a delay of the Bill, for the Bill to be 'scrapped.'

Mr Hans Ngethu (ANC) asked for the CGE's opinion on whether they had felt that womens' issues were not properly addressed. Secondly, he asked for the CGE's advice for women forced into polygamous marriages to be avoided.

Adv. Holomisa (ANC) inquired whether the CGE (in their research) had ever come across women or children who were abused due to customary practices. He said that customary laws were entrenched to protect weak members of society like women and children, and that in customary laws, women were entitled to their own land.

Ms S. Williams replied that the bill was rushed and that some of the amendments and recommendations needed to be more considered. She added that general concerns raised were that consultations were held in certain constituencies and not in others.

The chairperson stated that the CGE was part of the reference group for consultations.

Ms Williams reiterated that whilst the CGE was part of the reference team, there were various other NGOs and constituencies that had not been consulted. She added that substantive gender equality was not insured in this way.

A member of the CGE replied to Adv. Holomisa's questions, whereby she stated that Adv. Holomisa was referring to an ideal world. In reality, she said one often heard of negative custaomary practices such as genital mutilation.

Ms Williams expressed their concerns regarding the extensive powers given to the Minister and the traditional councils, and stressed that accountability was needed.

Mr S. Farrow (DA) said that in reference to the process, Ms Williams had raised important points concerning PTOs in the consultation process. He said that in terms of the current situation, it might have changed somewhat.

Ms Williams said that their comments follow on the CGEs case studies where women in rural communities often complain about their lack of participation in decision-making. She stated that the CGE was currently looking at why women were leaving rural areas.

The chair thanked the CGE.

Ms Prakashnee Govender, Parliamentary Officer COSATU/National Union of
For details of Ms Govenders submission, please see attached document.

Questions and Discussion
The Chairperson noted that the portfolio committee members would not rush the bill. He asked Ms Govender why COSATU had felt that the bill would be rushed.

Mr S. Farrow (ANC) asked if COSATU had taken into account the recent traditional leaders governance Bill.

Dr Schoeman asked for clarity on what was meant by 'productive land'. He asked why COSATU drew on this distinction for productive land. If development could take place, he asked why communal land or productive land would be more desired than private ownership of productive land.

Mr Radebe asked Ms Govender to elaborate on the 80% of land, which was mentioned in the submission, and the Ingonyama Trust land.

Mr Dlali referring to COSATU's submission in (paragraph 2.2.1.) with regards to security of tenure. He asked if COSATU was suggesting that the legislation fall in relation to the old order rights.

Adv Holomisa (ANC) referring to page 3 of the submission, which referred to the lease of land set aside for homesteads. He asked how COSATU could be so sure that poverty stricken people would not sell them homesteads for land.

Mr Fendu Gona (NUM) replied that their organization ahd based their arguments on current experience by giving a right to occupy and produce land. He said that in terms of land for homestead purposes would mean the restoration of ther dignity.

The chairperson asked Mr Gona to elaborate.

Mr Gona said that there was tenure security, where the land was set aside for productive purposes with secured tenure to the people.

Ms Govender added that even where there existed progressive decision making, finances had been inappropriately allocated. Hence they would have to disagree that clause 38 of the bill would provide adequate protection. The idea was to provide for adequate communal land policies. With regards to security tenure, there was the question of converting old order rights to new order rights.

Mr Sisulu Mikudaza (NUM) added that with regards to the land protection committee, there would be democratically elected land rights councils where there was traditional councils (which did not have to be there).

The chairperson thanked COSATU and the National Union of Mineworkers (NUM), and asked members of the public to join the committee for tea.

Ms Aninka Claassens, PLAAS/NLC Community Project
Chair Masithela welcomed members of the committee and public back from tea, and invited Ms Aninka Claassens, Consultant, PLAAS/NLC Community Project, to make a submission to the Committee.

For details of Ms Claassen's submission, please refer to the attached document.

Chair Masithela responded to Ms Claassens's presentation by explaining that the Committee recognized the right to lobby, but expressed displeasure when lobbying was conducted via proxy, when presentations did not reflect authentic views. Chair Masithela concluded his remarks by explaining that all the presentations made to the Committee had been heard and would be taken under consideration.

Ms Claassens expressed appreciation to the Chair for accommodating all the groups that wanted to make submission, assuring that the public recognized Parliament had made considerable effort to accommodate civil stakeholders.

Chair Masithela invited Committee Members to put forward questions to Ms Claassens.

Mr Farrow asked for clarification on the preferred system described by Ms Classens on how individual rights would be tenable without formalized land rights.

Ms Claassens elucidated that land reform was a challenging policy area, but suggested a more appropriate approach would be conceived as two phases. One bill would provide and protect individual rights, making way for a second bill to address land rights' disputes; remarking that those involved in land disputes would be given equal footing in the first bill so land redress would be more equitable.

Dr Schoeman expressed appreciation for Ms Classens candid presentation, commenting that the Committee must be seen as belonging to the public. Dr Schoeman made reference to the number of submissions that have highlighted the differences between earlier versions of the Bill, primarily the two gazetted on October 3 and 17, 2003, asking whether the Committee Members would be provided with all versions of the Bill for comparison purposes.

Chair Masithela noted that the consultation was not intended to be a complaint process but a point for input, and requested presenters concern themselves with the Bill before the Committee, not previous versions.

Adv. Holomisa asked whether Ms Claassens had taken note of his earlier questions relating to the impact of customary law on women, and asked that she respond to these questions.

Ms Claassens responded to Adv. Holomisa's questions on the Commission on Gender Equality (Ms Williams) that where traditional structures were strong, where they had weathered the colonial and apartheid eras, the plight of women was much better then in areas with weak traditional structures. Ms Claassens, cautioned that cases where traditional structures had not faired the colonial and apartheid eras well resulted in customary law having failing women, she emphasised that these cases were too many and too severe to institutionalise a system that functions well only part of the time and in some of South Africa.

Adv. Holomisa asked whether there should be a choice between traditional authorities and land administration councils administering land, noting problematic examples where the two are functioning in tandem.

Ms Claassens explained that conflict between community property associations and traditional councils attests to the reality that whomever holds power over land allocation would misuse these powers.

Adv. Holomisa suggested that the Traditional Governance Framework Bill afforded women a role in traditional decision-making, and that women in decision-making positions could be both elected and appointed, and that traditional leaders had the choice to not appoint women of the royal family, but rather female community leaders.

Ms Claassens replied that the alternative provided in the Traditional Leadership and Governance Framework Bill was inappropriate.

Adv. Holomisa asked whether the conversion of old order rights to new order rights was tantamount to institutionalising the status quo; suggesting that a positive epiphenomena would be the protection of family property - ensuring female family members the same claim to land as male family members.

Chair Masithela solicited further questions from the Committee.

A member of the opposition explained that she had previously been a researcher and that her findings demonstrated that the leadership provided by traditional leaders across South Africa was inconsistent and that some were very good and were fair towards women, suggesting that the submissions made concentrated on negative worst-case scenarios. She concluded her remarks by suggesting that further research would be required in order to base decisions on a clear picture of what is happening on the ground in South Africa.

Chair Masithela remarked that it is rare to have two researchers relate to each other in meeting.

Prof Ben Cousins, Programme for Land & Agrarian Studies
Chair Masithela invited Prof Ben Cousins, Director, Programme for Land & Agrarian Studies, to make a submission to the Portfolio Committee.

Prof Cousins presented the attached submission and the "Community views on the Communal Land Rights Bill" to the Committee.

Chair Masithela expressed appreciation to Prof Cousins' presentation, explaining that the Committee on Agricultural and Land Affairs was responsible to ensure that the Bill under consideration was worthy of South Africa, and that he would ensure that whatever Bill came forward was sound.

Mr Botha expressed interest in other African examples of land tenure referenced by Prof Cousins, and asked how these models had translated into production.

Prof Cousins explained that the Tanzanian land laws put in place in 1999 conferred security of use and occupation but not formal title. Prof Cousins gave the opinion that the Tanzanian model (and a similar models in Mozambique and Uganda) were too young to have a reliable evaluation of, noting that the law was strong but that in all examples the capacity to implement was perhaps the weakest link.

Prof Cousins continued that there were examples where land was productive without title, like Coca in Ghana, but that Government had to create enabling economic conditions for such to develop. Prof Cousins explained that title was a 'Red Hearing' - land parcels concerned in South Africa were too small for banks to demonstrate investment interest in, but that micro-entrepreneurial initiatives could flourish from a sense of security, title was a corollary concern.

Adv Holomisa inquired how urgent the need was for land redress to take place, and how consultation should take place.

Prof Cousins remarked that formal title was not especially urgent, but for people to feel secure that the land they farmed and occupied was in some way theirs was urgent.

Mr Halomisa explained the relationship between land administration and traditional structures in Zimbabwe and asked Prof Cousins to extrapolate lessons for South Africa.

Prof Cousins explained that the Zimbabwean example was too irregular to transfer any specific lessons, noting a generally acceptance of 'headmen' but not 'cheifs'.

Ms Ntuli asked what would be the ideal way for women to be elected to relevant boards.

Prof Cousins said that he supported the principle of equal representation.

A member asked whether Prof Cousins was suggesting that the Minister and traditional Leaders would be conveyed too many powers under the Bill, and asked what timeframe would be needed to find appropriate solutions to the challenges presented.

Prof Cousins explained that the Bill says that the corresponding regulations will give form to rights; in his opinion this was neither transparent nor democratic enough. Generally, Prof Cousins explained, rules and powers originated with the people and that it was government's responsibility to reflect these realities.

A member (same) noted that Prof Cousins had suggested that relations between local governments and Land Boards were problematic.

A member (same) asked Prof Cousins to explain remarks he had elsewhere made to the effect that state ownership would address tenure challenges.

Prof Cousins explained that these remarks concerned a substantially different version of the Bill.

Chair Masithela cautioned members not to sign-off with their remarks and to keep comments cardinal to presentations.

Mr Farrow noted that many of the presentations that were made to the Committee described how land tenure should not be managed and asked Prof Cousins to describe the way that land should be managed in South Africa.

Prof Cousins remarked that whatever system is in place should reflect the will of South Africans and that workshops and consultations should have taken place across South Africa, in all languages and across all communities, that accounted for the opinion of between 20 and 30 000 South Africans.

Mr Abram referred to Prof Cousins' remarks concerning implementation, and asked how he would order an area with existing residences when a group title had been conveyed for agricultural purposes; how could common title accommodate divided interests and asked whether such a scenario would be feasible.

Prof Cousins noted that previous land administration did not encouraged resource management, to repair the status quo would require legislation that preserved the right to resources, but also provided a democratic institution (elected Committee / Board) that would make land tenure and resource management decision.

Chair Masithela asked Prof Cousins to reply to an earlier question.

Prof Cousins suggested that real legislative options exist that government had not considered.

Chair Masithela expressed appreciation for Prof Cousins having engaged with the Committee, and asked Department Officials to prepare responses on the Constitutionality of the Bill, the redistribute nature of the Bill and a detailed description of its consultation process for the Committee's next meeting.

Chair Masithela adjourned the consultation.

This document was generated on: 2003-11-20

Disclaimer: Every attempt is made to ensure that this information is accurate, but this report is not an official record of the meeting and therefore should not be regarded as a complete and correct record of the proceedings.


Mr Neo Masithela (ANC)

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