Communal Land Rights Bill: hearings

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AGRICULTURE AND LAND AFFAIRS PORTFOLIO COMMITTEE

12 November 2003
COMMUNAL LAND RIGHTS BILL: HEARINGS

Chairperson: Mr N.Masithela (ANC)

Documents handed out:
Communal Land Rights Bill [B67-2003]
Legal Resources Centre submission(document awaited)
Opinion to support LRC submission by Adv de Waal on planning and local government issues(document awaited).
LRC Opinion by Geoff Budlender prepared for the Commission of Gender Equality(document awaited)
Madikwe/Moses Kotane's submission
Umbumbano Lwabesifazane's submission
Greater Manyelethi Land Rights Group's submission
Kgalagadi Community's submission
Transkei Women's Land Rights' submission
Hlanganani Community Group's submission
Mpumalanga Consultative Group's submission

SUMMARY
The Committee heard submissions from the Legal Resource Centre who stated that the LRC was convinced that the 'traditional councils' appointed to administer the land would be undemocratic and unconstitutional. The Representative of Greater Manyelethi Land Rights Group called for the Bill to be "scrapped." In the afternoon the Committee considered submissions from the Transkei Women's Land Rights Group, the Hlanganani Community Group and the Mpumalanga Consultative Group.

MINUTES
Legal Resources Centre
Mr Kobus Pienaar, Director, read out the submission. He stated that the issue of private land (i.e. that is, land occupied under restitution, church land, and occupied land all fell under the Communal Land Rights Bill). Mr Pienaar noted that the LRC was convinced that the 'traditional councils' appointed to administer the land would be undemocratic and unconstitutional.

Discussion
Mr A. Botha (DA) asked Mr Pienaar what the LRC's recommendations were for the flaws in the bill.

Mr H. Ngethu (NCOP) asked whether the bill undermined Chapter 6, section (19) (14), which held that should the director general be unsatisfied with the bill, he/she had an obligation to correct the mistakes on a community.

Dr A. Schoeman (ANC) reiterated the question on the LRC's recommendations for the flaws in the bill.

Mr S. Abram (ANC) asked for specific suggestions and views from the LRC on the bill.

Mr D. Dlali (ANC) asked for clarity on page 16 of the LRC's submission. Secondly he asked for the LRC's elaboration on their comments on chapter 7 of the bill, specifically relating to Clause 21 (1) of the Constitution.

Mr Pienaar (LRC) explained that the reason for the LRC not making specific recommendations was because the LRC had previously made specific recommendations in the past on specific clauses in the bill.

Mr Pienaar added that the reason for the LRC's view of the traditional council being undemocratically elected was due to the fact that the addition of this specific clause in the bill was made at the last minute (dated 8th October 2003) at which time traditional councils had unexpectedly been given the profile of land administrators, which he noted was completely undemocratic.

With regards to Mr Dlali's question, Mr Pienaar said that Clause 21 referred to private communal land which was not expropriated. He said that they did not have the protection of clause (38).

Mr Pienaar stated that the LRC's suggestions were that the bill needed further investigation and would have to be rewritten within the constitutional framework.

The chair thanked the LRC for their submission.

Mr T.Z. Molwantwa (Representative of the Madikwe/Moses Kotane - North West)
For full details of Mr T.Z. Molwantwa's submission, please refer to the attached document.

Questions and Discussion
Mr D. Maluleke (DA) asked for clarity on private land ownership.

Mr Molwantwa replied that the people had their own title deeds but fall under the tribal authority.

Mr H. Ngethu (NCOP) asked what provisions should be made in terms of section 17.

Mr Molwantwa replied that the people have been put under the Boputhutswana Act (33) of 1975 so that these communities did not belong to that region. He added that the Act had been gazetted under tribal authority.

Mr Dlali (ANC) asked for clarity on a statement suggesting that the presenter wanted to disassociate himself from the chief even where the chief has jurisdiction over his region.

Mr Molwantwa replied that the communities are clustered under the jurisdiction of the chief who was not under their original authority, thus communities were totally opposed to being under the chief's jurisdiction. He stated that people living in communities' private landowners still found themselves being under a cluster. This he said was frustrating since it created over-crowding and over-population.

Parliament's Integrity
Mr Y. Carrim (Chairperson of the Provincial and Local Government) responding to Mr Andile Mgxithama's (National Land Committee) comments made on his portfolio committee the previous day said that his committee had tried to strike a balance between the needs of traditional leaders and the needs of constituencies.

He stated that he had attempted to clarify the NLC's submission, since non-government organizations were confusing Traditional Leaders (Local Government) with Traditional Leaders (Communal Land Rights Bill).

He said further that his portfolio committee had felt that they could not prescribe to legislation in the matter of custom and tradition. Mr Carrim added that his committee would write to the National Land Committee to further clarify their position.

Umbumbano Lwabesifazane
Ms N. Ngcobo read through her submission in Xhosa (see document).

Greater Manyelethi Land Rights Group
Mr R. Siwela presented the submission (see document).

Discussion
Mr S. Abram (ANC) explained to Mr Siwela that this Bill was not the final document, in that it was still subject to amendments. He asked Mr Siwela to elaborate on the Bill being unconstitutional. Secondly, Mr Abram asked for more information on the traditional leaders whom Mr Siwela had mentioned as being exploitative towards their communities.

Ms L. Ngenya (ANC) asked Mr Siwela what alternative could he recommend for the Bill.

Mr Dlali asked Mr Siwela whether he was currently under traditional authority, and if so, did he agree in saying that it would be difficult to nullify such structures. Mr Dlali clarified Mr Siwela's submission in which he informed Mr Siwela that the Minister (in the Administrative Act) was not allowed to work without consultation. Finally he asked Mr Siwela for his opinion on whether council which were 100% elected by communities would not be democratic.

Ms M. Ntuli (ANC) asked Mr Siwela to elaborate on what form of electoral process did he envisage when he suggested that communities should elect the land administrative council.

Mr Siwela replied that he came form an area of tribal authority, and that he had no "qualms" working with traditional authorities. However he stressed that he did find problems with the additional powers given to traditional authorities.

Mr Siwela noted that people needed protection from such additional powers vested in their traditional authorities.

The Chair asked Mr Siwela for clarity on his statement suggesting that the bill be scrapped. He asked further what would happen to the needs and aspirations of women residing in such communities. The chairperson thanked Mr Siwela for his submission.

Kgalagadi Community Consultation
Ms G Moholeng presented the submission (see document).

Discussion
Mr Ngethu (ANC) asked Ms Moholeng to elaborate on issues related to women and the effect the Bill would have on them in her community.

Ms Ntuli asked Ms Moholeng to provide a guide on how to guarantee women access to land in the Communal Land Rights Bill.

The chairperson asked Ms Moholeng to elaborate on what she meant by the word consultation. He asked her what duration of time was needed for sufficient consultation.

Ms Moholeng replied in Tswana.

Transkei Women's Land Rights
Ms T Makinana presented the submission and added further remarks in Xhosa(see document).

Chair Masithela invited a translator to summarize Ms Makinana's presentation in English.

The translator explained that the presentation concerned the following items:
-The Bill insufficiently addresses women's concerns.
-Section 12 of the Bill was unclear.
-Section 26 provided the Minister too many discretionary powers.
-The Bill conveys powers to traditional authorities, which does not necessarily translate into land being transferred to women, especially those who are single.
-Headmen are selling land ad hoc, and there is no systemic rationale for the public to understand how land is acquired.
-A transparent way of knowing whether land is under local government or traditional authority auspicious does not exist, yet land is developed without clear title.

Chair Masithela noted that the Committee had been provided two submissions, the one that was written and distributed, in addition to the presentation that was ad lib.

Discussion
Chair Masithela called on committee members to pose questions to the presenter; leading by asking the presenter to expand on the point that the issues of land title in rural areas should be addressed before Parliament moves forward with the Bill.

Ms Makinana explained (in Xhosa) that the public should be further consulted to account for the opinions of affected people.

Mr Maluleke asked whether members of the community concerned raises land deed concerns at community meetings.

Ms Makinana explained (in Xhosa) that women cannot raise their concerns at community meetings as they were not present, further sharing the opinion that government should consult to ensure that the voices of women were taken under consideration.

Ms Rita Ndzanga (ANC) asked the presenter to describe the major women's issues in rural areas, explaining that a complete picture was needed to make a well-founded decision on the Bill.

Ms Makinana provided an answer to Ms Ndzanga's question in Xhosa, which was not translated.

Chair Masithela explained that the Bill should be based on broad consultation, noting that the consultation of rural people and not just traditional leaders was necessary, noting that the Committee would be taking into consideration the breadth of the Department's consultation process.

Ms Makinana made remarks in Xhosa, which were not translated.

Hlanganani Community Group
Mr Vasco Mabunda presented the submission (see document).

Chair Masithela interrupted the presentation to explain that Mr Mabunda had exceeded his allotted time and requested that the remainder of the presentation be summarized.

Mr Mabunda summarized the remainder of his presentation.

Discussion
Mr Bheki Radgre (ANC) asked why, if Mr Mabunda's community had been living in the same place for in excess of 100 years and had formally bought the land circa 1903, the title for the land in question was not recognized; suggesting that the community should have documentation to the affect that the land is a community asset. Mr Radgre further asked what system would be more acceptable to the community concerned than that being developed in the Bill. Finally, Mr Radgre noted that Mr Mabunda's presentation sought to foretell the future, as it doubted the Department's ability to administer land redress on its current performance; the Department had been given until 2005 to achieve the benchmarks Mr Mabunda suggests have not been met.

Chair Masithela asked Mr Radgre to respond to the questions put forward.

Mr Radgre explained that titles to their land had been given to whites after World War I, and that prior to this the land was bought by the community but the deed was made in the Chief's name for practical reasons.

Mr Radgre explained that a better system would allow affected communities to elect members of a committee that would consider matters of land redress, and lamented that the Bill had been reworked so substantially throughout the consultation process that the comments made by affected communities earlier in the process could not be related to the Bill under consideration.

Chair Masithela remarked that the Portfolio Committee was open to changes and that doubts relating to previous consultations by other organs of the state should not impact on the ability for civil stakeholders to influence change in the Bill presently under consideration.

Chair Masithela asked Mr Radgre to answer specific questions and not waver onto other topics of concern.

Mr Farrow asked whether the community had proof of purchase for 'their' land, and if this was the case why did the land restitution process not address this matter. Mr Farrow continued by suggesting that communal rights would protect the community from the traditional authority controlling the fate of communal land.

Mr Radgre explained that the 1994 Restitution Act prevented such.

Dr Schoeman explained to Mr Radgre that land reform was a three-part process: restitution, tenure reform and distribution. Dr Schoeman further explained that the Bill under consideration concerned itself with tenure reform; however, Mr Radgre's presentation seemed to concern redistribution. Dr Schoeman asked Mr Radgre's if he could identify opportunities to address redistribution in the current Bill.

Mr Radgre explained that the concern rested with the decisions taken by the Traditional Authority, who could redistribute the land.

Chair Masithela expressed concern that Mr Radgre did not comprehend Dr Schoeman's question and tried to clarify the question.

Mr Radgre answered that the Bill could ensure a more democratic process.

Mr Maluleke asked whether Mr Radgre's referral to communities in Kwazulu-Natal was based on a mandate to speak on their behalf. Mr Mamuleke continued that his interpretation of what was being discussed was registering the community's land in the Chief's name was tantamount to transferring the land and title to the chief, unless an agreement of trust had been made, asking whether such had happened.

Mr Radgre explained that he was only representing his community; other references were examples but it was not his intention to represent these communities in Parliament.

Chair Masithela noted that some questions had not been addressed and asked how much time was required for authentic consultation, and whether it was auspicious to suggest the Department was unable to administer the Bill, if passed.

Mr Radgre explained that consultation should not be conceived as a certain time; rather suggesting that however long the Department requires when conferring with affected communities and account for their input is the correct length for consultation.

Chair Masithela, again, asked the duration of time needed for consultation.

Mr Radgre, again, explained that time enough was needed for consultations to be legitimate.

Chair Masithela explained that the question was not being asked with the intention of confrontation but for the Committee to appreciate when considering the breadth of Departmental consultations.

Mr Radgre expressed the opinion that more consultation was necessary in this case, for new consultation is required whenever substantial changes are made, for previous input was germane to a previous reality, not the current Bill.

Chair Masithela said that this answer was not helpful when evaluating the Departments consultation process.

Mr Radgre explained that he was possibly experiencing language problems (as English was not his first language), again explaining flaws with the conception of consultation being a certain length of time.

Chair Masithela thanked Mr Radgre for his presentation; again, clarifying that the Committee was not an implementing agency like a government department, but a decision-making body interested in ensuring the public had enough time to engage with Departmental consultations. Chair Masithela requested everyone present to stay on topic.

Mpumalanga Consultative Group on Land
Mr S Ndlamini presented the submission (see document).

Discussion
Chair Masithela expressed appreciation for the submission and asked who consultations should target.

Mr Ndlamini explained that community based groups should be given information and time with which they can engage community members before they are called upon to represent their opinions in parliament.

Mr Ngema (IFP) ask for clarification that the Chief had actually distrubted communal lands to his wives. He continued by asking how Mr Ndlamini thought the Committee should attempt to expropriate land located within Swaziland, and finalised his questions by asking whether Mr Ndlamini thought that transfer fees should not be assigned to property.

Mr Maluleke noted that much of the land in South Africa suffers from underdeveloped infrastructure and lack of services, and asked whether Mr Ndlamini should not hold the previous government responsible, not the Traditional Leaders who are the current stuarts of the land.

Mr Ndlamini provided an answer in siSwati, which was not translated.

Mr Holomisa inquired what Mr Ndlamini thought the communal benefit of Traditional Leaders selling their land would be considering his presentation insisted that local community members were too under-resourced to purchase affected land.

Mr Holomisa asked whether any organs of the state had taken steps to address the infrastructure conditions in the community.

An ANC member asked whether the Bill should be withdrawn in its entirety or only specific provisions.

Mr Ndlamini provided an answer in siSwati, which was not translated.

Chair Masithela clarified Mr Ndlamini's response to the previous question as being the Committee should consider amending only those sections that Mr Ndlamini's presentation related to.

Mr Farrow asked if the land under consideration was agricultural or residential in nature.

Mr Ndlamini explained that it was both agricultural and residential in nature.

**Parliamentary monitor had to leave at this point.


 

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