Upgrading of Land Tenure Rights Amendment (ULTRA) Bill [B6-2020]: DALRRD briefing; with Minister

Agriculture, Land Reform and Rural Development

26 June 2020
Chairperson: Nkosi Z Mandela (ANC)
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Meeting Summary

Video: Portfolio Committee on Agriculture, Land Reform and Rural Development, 26 June 2020
Audio: Upgrading of Land Tenure Rights Amendment (ULTRA) Bill [B6-2020]: DALRRD briefing

The Department of Agriculture, Land Reform and Rural Development (DALRRD) and parliamentary legal advisors briefed the Committee on the Upgrading of the Land Tenure Rights Amendment (ULTRA) Bill, on the basis that some sections of the Bill had been found to be unconstitutional by the Constitutional Court.

What the court had said in declaring section 2 of the Act unconstitutional in the Rahube case was that because the section stated that the conversion of the deeds of grant was automatic, it did not allow for interested persons to object to the conversions. The Department therefore had to create a mechanism to allow for objections.

The second issue related to the permission to occupy (PTO), which was a right applicable mainly to communal areas. The matter had involved a PTO certificate issued to Teba Property Trust in respect of a piece of land falling under the Senqu Municipality in the Joe Gqabi District, Eastern Cape. The Teba Property Trust had applied to have the certificate converted into ownership in terms of section 3 of the ULTRA Act, and the municipality had rejected the application on the basis that section 3 was not applicable in the parts of the Eastern Cape which were under the former Transkei. Teba had then approached the court and claimed that the non-applicability of section 3 to former Transkei areas was unconstitutional, in that it violated its right to equality and the right to equal protection of the law. The court had agreed, and had ordered that the section be declared unconstitutional on the basis that the section did not apply throughout the Republic.

The Committee was faced with the issue of having to conduct public hearings according to section 59 of the Constitution, which obligated Parliament to facilitate public participation in legislative processes.

Members said the upgrading of the ULTRA Bill would be a relief and victory for women and children who were vulnerable in this country. It was unfortunate that it had taken a legal challenge to initiate this process of enforcing government to consider a review of the legislation. They expressed their uncertainty around the process of conducting public involvement under the current Covid-19 circumstances, and also wanted to know if other key stakeholders, such as traditional leadership, had been consulted in the process of reviewing the Bill. 

Members pointed out that in future, other sections of the Act might be declared unconstitutional, and the Department had missed the opportunity to review those sections a well. The Committee agreed to focus on amending the sections of the Bill which the court had ordered should be amended.

Meeting report

Chairperson’s opening remarks

The Chairperson said the Department of Agriculture, Land Reform and Rural Development (DARRDL) and the parliamentary legal advisor would be briefing the Committee on the Upgrading of Land Tenure Rights Amendment (ULTRA) Bill.

As they were looking into land tenure rights, Members were asked to reflect on the words of Justice Goliath, AJ in the Rahube case, which stated that there was a need to reflect upon the present and to ask whether African women truly benefited from the full protection of the Constitution. Moreover, it must be established whether enough had been done to eradicate the discrimination and inequality that so many women faced daily. Laws and policies must seek to do more than merely regulate -- the legislature was enjoined to ensure that laws and policies promoted the participation of women in the social economy and political spheres, while also advancing the spirit, purport and object of the Constitution.

The Committee welcomed the amendment of the ULTRA Bill, which was long overdue. It was unfortunate that it had taken a woman being discriminated by the Bill for the amendment to take place.

In dealing with the Bill, the Committee needed to consider the issues raised by the Constitutional Court, especially the direct or indirect discrimination of any person based on their gender and sex, or clauses or provisions which could render the Bill unconstitutional and subject to further litigation. There was still a lack of a comprehensive tenure legislation envisioned in section 35(6) of the Constitution, especially in relation to all persons living in former homelands territory, including the TBVC (Transkei, Bophuthatswana, Venda and Ciskei) states.

The Committee appreciated that the Department was developing a Communal Land Tenure Bill. This was a matter of priority that the Committee would be following closely.

Minister’s overview

Ms Thoko Didiza, Minister of Agriculture, Land Reform and Rural Development, thanked the Committee for its patience and guidance in regard to the amendment of the legislation, particularly last year when the Committee thought the Department would not meet the deadline, and had advised the Department to approach the court for an extension, which it had received. The challenge brought to the legislature brought impetus on finalising tenure reform legislation in those areas where qualification and statute had not been done.

In the transition period to democracy there were two pieces of legislation -- the Upgrading of Land Tenure and the Informal Protection of Land Rights Act (IPLRA) -- which were aimed at providing an accommodation before a finalised legislation was made. There were many other issues which arisen during the intervening period. In the early 2000s, the Department had tried to put forward a final piece of legislation called the Communal Land Tenure Act which had been unsuccessful, after certain sections of the legislation were challenged in court, resulting in the withdrawal of the legislation by the Minister at the time. This had set the Department back in its process to finalise the tenure rights of people under communal areas.

The tenure security issue had been brought up in the Department’s discussions with the House of Traditional Leaders, both nationally and provincially, and it had been impressed upon the government that it was important for the issue to be finalised.  When the President made an announcement about the release of state land, people wanting to know what would happen to the 13% hectares of land in communal areas.

Following the discussions that the Department had with the House, and the two visits to Botswana and Uganda, there were processes under way to establish how South Africa’s local dispensation on local land could be framed.

The presentation would be on the legislation, with amendments in the areas which the court had instructed the Department to address. As the Committee did its work, she asked that they also look at other clauses in the legislation which, if unattended, would result in the Department having to go to court again.

Background to ULTRA Act

Adv Sello Ramasala, Head: Legal Unit, DALRRD, said the ULTRA Act dealt mainly with two types of land rights -- those that applied in criminal areas, and those which applied in s- called “black townships”. The Act provided for the opening of township registers. There were only three areas in the Principle Act which dealt with communal land rights. These were section 3, section 19 and section 20. The Act also provided for the upgrading of certain land rights listed in the two schedules to the Principle Act.

When the Act was passed in 1991, it did not apply to the former TBVC territories, and when it was made to apply to those areas in 1998, the sections dealing with communal land were excluded from the application of the Act for the Republic, those sections being section 3, section 19 and section 20.
Section 25(a) was the section that indicated that the three sections were not applicable throughout the entire Republic.

Rahube matter

He said the Rahube matter, which led to section 2 of the Act being declared unconstitutional, dealt with the upgrading of a deed of grant, done in terms of section 2 of the Principle Act, where the section provided for the automatic conversion of the deed of grant -- a type of right held in relation to township stands.

What the court had found was that the conversion of deeds of grant was unconstitutional because of the effect of the Proclamation in terms of which the deed of grant was granted. Since the deed of grant was granted in terms of the Proclamation of the Act, on the face of it nothing about section 2 of the Principle Act seemed discriminatory. The Proclamation of the Act provided that only male persons could be holders of deeds of grants, and was discriminatory.

In the amendment of the section, the court ordered that there should be protection of the rights of women.

Senqu Municipality matter

This case was related to the permission to occupy, which was a right applicable to mainly communal areas. The matter involved a permission to occupy (PTO) certificate issued to Teba Property Trust in respect of a piece of land falling under Senqu Municipality in the Joe Gqabi District, Eastern Cape. The Teba Property Trust had applied to have the PTO certificate converted into ownership in terms of section 3 of the ULTRA Act, and the municipality had rejected the application on the basis that section 3 was not applicable in the parts of the Eastern Cape which had been in the former Transkei.

The Teba Trust had then approached the court and claimed that the non-applicability of section 3 to former Transkei areas was unconstitutional, in that it violated the Trust’s right to equality and the right to equal protection of the law. The court had agreed with Teba Property Trust and ordered that the section be declared unconstitutional on the basis that the section did not apply throughout the Republic.

The sections affected were section 2, which provided for the automatic conversion of deeds of grant. 
The Department had amended section 4 with a consequential amendment -- section 14A was inserted to give effect to the court order, and section 25 to make the whole Act to apply throughout the Republic.

Amendment of the Act

Section 2

What the court had said in declaring the section unconstitutional, was that because the section stated that the conversion of the deeds of grant was automatic, it did not allow for interested persons to object to the conversions. The Department therefore had to create a mechanism for persons interested in objecting to be able to do so.

Clause 1 of the Bill, which amends section 2 of the Principle Act, was to provide that instead of conversions occurring automatically, people interested in objecting to conversions of deeds of grants would be able to apply to the Minister for conversions, and once the application was received, the Minister would publish notice of application in the Gazette to inform interested persons who may wish to object the conversion. Once an objection of the conversion was made, the Minister would institute an enquiry to establish facts around the application and the objection, with the purpose of making a determination on whom the legitimate holder of the deed of grant was. 

This process that the Department was introducing to the Bill was to deal with ensuring that the conversion was no longer automatic, and provisions were made for persons who wished to object to have that opportunity.

Section 14A

Clause 3 of the Bill inserted a new section 14A, which would give effect to the court order which indicated that conversions which had taken place in the past in terms of the Act should be allowed to continue, and that those that took place in favour of women should also stand. The amendment to the Act should not undo the conversion which had taken place in good faith and in favour of women.
The insertion also indicated that people who had been prejudiced by conversions would be free to approach the courts to challenge those conversions.

Section 25A

This was the section dealing with the application of the Act and which had excluded section 3, section 19 and section 20 from being applicable to the entire Republic. This was one of the sections which the Bill was seeking to amend, to make the Act applicable to the entire Republic.

Conclusion

Adv Ramasala said the Department was involved in the process of finalising the Communal Land Tenure Bill in order to have a full reflection of land tenure rights.

The reason why the full reflection of land tenure rights was happening in the Communal Land Tenure Bill and not in the ULTRA Act, was that the ULTRA Act did not deal substantively with land tenure rights or explain the criteria for the allocation of certain rights. These matters were dealt with in other laws, and in this instance the Proclamation was listed in the schedule to the Principle Act. What the ULTRA Act sought to do was simply to upgrade those rights, as provided for in the Proclamation, to ownership rights.

Public hearings

Adv Nathi Mjenxane, Parliamentary Legal Advisor, said the legal opinion that had been prepared for all committees of Parliament regarding public participation had been forwarded to the Portfolio Committee on Finance detailing the legal requirements for conducting public participation during the COVID-19 pandemic.

The Chairperson asked Adv Mjenxane to continue to present, since some people in the meeting had not received the legal opinion.

He said the opinion of the legal team referred to the rules of the National Assembly and section 59 of the Constitution, which obligated Parliament to facilitate public participation in the legislative processes. In light of this, there had been an established process of public participation, which included public hearings, going to communities and meeting people in large numbers in order to discharge this legislative obligation.
 
Due to the declaration of the State of Disaster, in line with the Disaster Management Act and its regulations, there had been a need for changes in the way Parliament discharged its constitutional obligation to facilitate public engagement. These changes would also be applicable in the case of the ULTRA Bill, and the Committee would not be able to consult people or facilitate public engagements as it had always done.

The rule which would be applicable in this context would be National Assembly Rule 161 and 43, which provides the necessary flexibility for committees to develop a reasonable mechanism to be able to discharge their constitutional obligation of facilitating public involvement within the current limitations of the Disaster Management Act.

The Committee’s support team had agreed that it would be best to develop a draft programme for consultation, which would be tabled to the Committee for consideration.

Discussion

Ms M Tlhape (ANC) said that this change would be a relief and a victory for women and children who were vulnerable in this country. It was unfortunate that it took the Rahube case to come up with this process of enforcing the government to consider a review of the legislation.

She said it was not clear what processes the Committee was supposed to undergo, and since it was the Committee which was supposed to shoulder the responsibility of public involvement, they needed clarity on what the processes were supposed to be.

She asked the Department what the next step from here would be after approving the court order, other than ensuring public participation, and how long it would take for the President to declare the Bill as an Act. The reason for the question was that there were other sections which could be challenged in future and if, for example, it took the President a year to sign the Bill, was there an intention within the Department to start the process of reviewing the other sections which could be challenged?
There was also indication from the National Economic Development and Labour Council’s (NEDLAC’s) letter that members of communities, businesses and labour were responsible for formulating a task team on line to line engagement. Key stakeholders such as traditional leadership were not reflected in the process, so how would these stakeholders be taken on board. and how would their submission and views find expression?

Ms A Steyn (DA) asked whether the Bill, besides going to NEDLAC, had been published in order get some comments before being tabled to Parliament, and if not, why not. Last year she had asked for the Committee to get a presentation from the Department on the influence of other legislation and bills on this matter. Why had the Department not written something into the bill, instead of having another piece of legislation to deal which still treated communal land as separate land? This issue could result in the Department being challenged again on the same principles as those of the Senqu case -- that all people living in communal areas needed to be included.

It was important that the Committee did not rush to get the bill done within the given timeframe, only to be taken to court again as a result of not doing due diligence. The Committee would discuss the process that needed to be followed to ensure that as much community participation as possible was achieved, especially because the Bill would have an impact on many people in the whole country.

Mr N Matiase (EFF) agreed that the Committee needed to take a precautionary approach to the matter and avoid expediency. Instead of running with the process and having the same process declared unconstitutional and invalid on other sections, it was better to practice caution. The Committee needed to accept that they had failed to do something about the legislation until concerned citizens had themselves decided to act on the matter.

It was provided within the jurisprudence of the Committee that extensions could be requested from the courts, taking into account the circumstance of COVID-19 which limited Parliament in its ability to carry out areas of its functions and responsibilities. With this said, the Committee should make a formal application to the court for a 12-month extension, with the hope that within the 12- month period a solution would have been found.

Ms T Mbabama (DA) said it would be wise for the Department to first plot a way forward with a timeline so that when they went to court to request an extension there was proof to show that this would happen, especially now that the Department was saying that there were other sections of the legislation which might also need to be amended. Rushing to meet the April 2021 deadline was not a good idea, as it would not result in a good job being done.

Ms T Breedt (FF+) agreed with the Committee, and said her initial fear regarding ULTRA was, as the Department had indicated, that some of the legislation which was not on the table to change now, could also be found to be unconstitutional. Waiting for another court case to declare other pieces of legislation as unconstitutional would result in the Committee becoming more cumbersome, and instead of bringing property rights to the people, would burden the Department with more costs in terms of public participation and rewriting the same law. The Department needed to approach the court with a clear timeframe so that ULTRA could be properly planned, instead of rushing the Bill only to find that in future the Department would find itself in the same position. 

Mr N Masipa (DA) said that the Department needed to look into engaging various other departments for their inputs, but should also ask for an extension in order to do proper work in order to avoid legal challenges in future.

Ms Tlhape said that when the Bill was brought to the Committee in 2019, the Committee had missed the opportunity to identify other sections in the Act which could also be challenged in future. Since all of the work had been focused on the sections which were currently being challenged, it was important for the Department to wrap up the Bill instead of repealing the whole Bill after being granted an extension by the court. It was important that the Department continue with public participation and engage with stakeholders who were not represented in the NEDLAC processes, such as the Houses of Traditional Leaders. 

Ms Mbabama asked Adv Mjenxane to give a brief summary of the draft programme for consultation under COVID-19 so that everyone could have an idea of the type of processes and the timeframe for public participation.
The Chairperson asked the Department what the implications for handling the process timeously were in terms of its capacity. Why had the socio-economic impact assessment (SEIA) report and funding implications, which had to be submitted to the Committee, not been included in the report?

He asked the Department to highlight the sections of the ULTRA Bill which could be found unconstitutional. The court finding had stated that the “order was retrospective since 27 April 1994,” and he wanted to know what this meant and how many people would be affected by it. It had been suggested that there needed to be compliance with the Constitutional Court order, and that the timeline should be for comprehensive legislation, so the Bill needed to be engaged upon as requested by the court.

He asked what the concerns of the national and provincial Houses of Traditional Leaders had been, and whether or not those concerns had been taken into consideration.

Finally, the Department was asked to explain which issues emanating from the Communal Land Rights Tenure had an effect on the current Bill.

DALRRD response

Mr Mdu Shabane, Director General: DALRRD, said the Department had at some point been asked to do a full determination of the implications of implementing the Bill, to establish how many individuals would be affected in the different parts of the country where the legislation would be applicable. This had been a very difficult thing to determine.

On the issue of capacity, it was impossible to confidently say that the Department had all the required capacity to implement the legislation. The Department would be required to revise its plan and its allocation of resources. It was also up to the Minister to determine whether it was necessary for the administration of some of the sections to be done at a national level, or if it would be possible for the Minister to delegate some functions to other spheres of government. These were some of the things which the Department had not discussed yet.

There would be difficulty in trying to combine the work which had been done for the Communal Land Rights Bill with the legislation at hand. There were two fundamental issues involved in the two pieces of legislation. With the Communal Land Rights Act (CLARA), it would be difficult to determine who the rightful holders of communal land were. What had led the court to finding CLARA unconstitutional was a result of the Department wanting to create structures to transfer the outside boundaries of land to new structures, which the court had said was a structure of government which was not provided for in the Constitution.

The difference between CLARA and what ULTRA sought to do, was that ULTRA begins within the area of a traditional council, where deeds of grants were given to people -- as was the case in many former homelands -- and some of these deeds of grants were even upgraded to full title deeds. ULTRA deals with deeds of grant at the level of households and not at the level of a jurisdiction of a traditional council.

The processes of dealing with ULTRA and CLARA were different, hence there had to be two different pieces of legislation.

Adv Ramasala said section 2 of the ULTRA Act dealt with the upgrading of deeds of grant, and section 3 with permission to occupy certificates. The processes of conversion of the two types of land rights were more or less the same, but only section 2 had been challenged in the Rahube case. The Department had not had a challenge relating to section 3, which dealt with the conversion of PTO certificates to ownership, and this could be because the Department had not yet had conversions in this respect. What could possibly be challenged in section 3 would be the process of conversion in the same way the process of section 2 had been challenged, since the law made these conversions automatic. It was said by the court that the automatic conversions did not allow interested persons to object to the conversions, and was thus unconstitutional.

The reason section 3 was being dealt with in legislation that provided for communal land tenure in general was that in the Principle Act, the only sections dealing with land tenure were sections 3, 19 and 20, and the development of communal land legislation would ultimately replace the three sections.

The Department could have provided, in the amendment of the Bill, for the amendment of section 3 to be in line with what was being proposed for section 2, to correct the process and make provision for objections. However, the advice received from the key stakeholders was that the Department should focus only on the sections which had been declared unconstitutional. This advice was also given on the basis of the timeframe which the Department had received from the court.

As to how long it would take Parliament to finalise the Bill, the Department would not be able to determine the period it would take for Parliament to finalise the Bill since it was up to Parliamentary processes to determine this, but it could take a while. If the question was about how long it would take the Department to finalise the Bill, the Department had committed to introducing the Bill in Parliament by next year.

On whether or not traditional leaders had been consulted, traditional leaders and many other stakeholders had not been consulted about the ULTRA Amendment Bill because of the timeframes the Department had to operate within. It was in full consultation with traditional leaders and other interested stakeholders on the review of the Communal Land Tenure legislation. It was also important to note that in the delegation that went to Uganda and Botswana, traditional leaders had also been represented.

Responding to Ms Steyn’s question, he said the Department had not published the Bill for comment due to the timeframes within which the Department had to operate. The Rahube judgment took place in October/November 2018, and the Senqu judgment the following year. The Department had started working on the Bill around April 2019, and legal advice from constitutional experts had been sought on how best to deal with the issues raised by the Constitutional Court. After the Department received an opinion three months later, an initial draft was submitted to the legal advisers around June 2019, and an opinion had come back only in November 2019, which was when the Department had started to work on finalising the Bill to be tabled in Parliament. This was also the time the Department decided to approach the Constitutional Court for an extension.

Regarding the concern over the influence of other legislation on the Bill, and the status of people still staying in traditional areas, the Department had almost completed a review of legislation on communal land and if all went well, the legislation would be tabled in Parliament next year. This would not be the Department’s first attempt at tabling the legislation in Parliament.

The section which had been declared as still unconstitutional was section 3, which dealt with the conversion of permission to occupy. The section was suspect because it was a process provision like section 2, which could be challenged. The substantive challenges were in the legislation to which ULTRA sought to give effect to -- legislation in the schedules of the Act in the form of proclamations which the Department was in the process of reviewing.

He understood the question relating to the Committee going to the Constitutional Court to seek an extension for public engagement processes. The Department had already been to court and had been granted an extension, so if it sought another extension, it would mean that the Bill would have to be withdrawn and go back to the Department again, because where the Bill was now, the Department had no control over it.

Adv Ramasala said the Department had received a preliminary SEIA report which could be made available to the Committee. However, the report would not be able to answer the question of how many people were affected by the Bill or the Constitutional Court decision. The Department had checked with the deeds office to find out how many conversions there had been from the date of commencement of the ULTRA Act, particularly around section 2 which dealt with the deeds of grant. It had been informed that there was no way of determining the number of conversions, because they were not necessarily happening as individuals approached the deeds office to convert.

On the issue of capacity, Adv Ramasala said he suspected that the Act had been couched in a manner which made conversions automatic, in order to avoid a situation where the deeds office would have to do individual conversions, as this would be an enormous task which would require an enormous amount of resources.

He explained the meaning of the retrospective court order up to 1994, saying this had been a practical consideration by the court where, if the court would be declaring section 2 unconstitutional, something would have to be said about conversions which had already taken place to ensure that what happened in the past was duly corrected.

On whether traditional leaders had been consulted or not, they had not been directly consulted on the Bill as it had not been published for consideration, but the Department continued to engage with traditional leaders on the provisions of the bill which related to communal land through the communal land tenure processes.

Adv Mjexane referred to consultation with traditional leadership, and said the legal team had prepared a legal opinion for the Joint Tagging Mechanism (JTM), which was the Committee of Parliament that decided on the procedure of the constitution in terms of which the Bill had to be processed. The legal team’s advice to the JTM was that the Bill should be processed in terms of section 76 of the Constitution, because it affected the administration of law in some provinces in a substantial manner. This was in line with the Thongwane Constitutional Court judgment on the procedure as to how legislation must be processed in Parliament.

In the same opinion to the JTM, the legal team had advised that the matter be referred to the National House of Traditional Leaders, since the contents of the Bill dealt with matters which fell under the jurisdiction of traditional leadership, and they also affected customary law. The JTM had agreed to the advice of the legal team, and to that extent it could be said that the traditional leaders had been consulted.

Referring to the approach of the amendment to the ULTRA Act, he said Adv Ramasala had mentioned that the Bill sought to amend the Principle Act to give effect only to the two Constitutional Court judgments. It confined itself only to the two judgments, and gave effect to the Constitutional Court decision. In the presentation by Advocate Ramasala, other proposed legislation which would have an effect on the ULTRA Act had correctly been referred to, and this may have led to an understanding that there might be some level of unconstitutionality in what the Committee was currently doing now. What the Committee was currently dealing with was processing, which dealt with the technical issues of bringing the legislation into line with the two court judgments.

When the Committee had decided that the Constitutional Court must be approached to extend the time period to pass the Restitution of Land Rights Amendment Bill, the application had been declined and the Court had stated that extensions in the Constitutional Court were granted very reluctantly and only in instances where, in the opinion of the court, it would serve the principle of being just and equitable. Even in this instance of granting the Department an extension, the court had been very reluctant, but had been persuaded because it would be in the interest of justice to give Parliament a chance to give effect to the two Constitutional Court decisions. The court would be very reluctant to give any extension beyond the one that had already been given.

On the issue of public participation as a constitutional requirement, the obligation on Parliament to facilitate public involvement was set out in Section 59 of the constitution, and the Doctors for Life decision by the Constitutional Court had analysed the section. In principle, the court had said that it was at the discretion of Parliament to decide what it should do to discharge its obligation in terms of section 59, but the decision had to be reasonable and meaningfully allow an opportunity for the public to participate in the legislation process.

The question of public involvement had also been raised in one of the finance committees, and media platforms were being used by those committees to facilitate public involvement. These included virtual meetings and written submissions as a means of giving the public an opportunity to participate.
It was possible that those mechanisms might not be applicable or satisfactory for the Committee, but it was at its discretion to establish what would be reasonable for public participation. As support to the Committee, the legal team could come up with a draft plan which would state the mechanisms it could use to achieve its objective of facilitating public participation under COVID-19 circumstances. Once the Bill had been published for public comment, the Committee would have an opportunity to gauge public interest and also see which of the available mechanisms could be employed under the circumstances.

Further discussion

Ms Steyn said the clarification by the Department had been very helpful, but disagreed with Ms Tlhape’s comment, saying that when the Rahube Constitutional Court outcome was previously being discussed, she had raised the point that the Department needed to look at all of the legislation and all rulings by the court that had found legislation to be unconstitutional, so that when the Committee dealt with it, it was one uniform matter instead of pieces of sections coming to the Committee. At some stage, the land legislation needed to be formed into one thing which would comply with the constitution. 

She was unhappy that the Department had brought the Bill to the Committee without public commentary, as public commentary would have alerted it to the fact that the Department would be dealing only with the sections which they were required by the court to amend, instead of revising the whole legislation. If the Department had been busy with CLARA back then, why could it not have been submitted to the Committee for consideration in one go so that all South Africans could live under the same piece of legislation? Since the Committee could deal only with what had been presented, its hands were tied to the particular sections ruled on by the court.

She also asked the DG to explain which piece of legislation had been used in KwaZulu-Natal to give some people under communal land upgrades to their land rights, and how many such cases there were.

Ms Mbabama asked if Members would always be waiting for challenges from the ground before they realised that there were issues in legislation. Would happen after the Committee fixed the sections ruled on by the court? She asked if the areas which the Committee could see needed amendment would go on being ignored until another court ruled on them.

Ms Tlhape clarified that she had said when the Committee had advised the Department to seek an extension, there was an opportunity to bring up other sections of the legislation that could be challenged in future, but considering that it had been done, the Committee needed to focus on wrapping up the process which was already under way.

Mr Masipa expressed his dissatisfaction at how the Bill had been dumped on the Committee. His concern was that the Department had had enough time to publish the Bill for public comment and avoid what was currently happening. He agreed with Ms Tlhape’s suggestion.

The Chairperson said it was important that the Committee was clear on what they were dealing with, and if there were other pieces of legislation that needed looking into, he advised that they look into them with the Department. The Committee would be keen to adhere to processes suggested by the Parliamentary legal advisor, particularly those referring to the COVID-19 regulations in terms of public hearings.

Adv Ramasala said the process of reviewing communal land legislation was a comprehensive one, and required that all laws in the country relating to communal land tenure had to be looked at. In the example of CLARA, the Act had a schedule which either amended or repealed laws which already existed. The review process was a comprehensive one, and not selective. The Department was not starting afresh with the review -- this was something which had been on-going and running parallel.

The Department had also committed to having the Communal Land Tenure Bill tabled in Parliament next year. It would have liked to publish the Bill before bring it to the Committee but even if it had published the Bill, Parliament would, in fulfilment of its role, also have needed to publish the Bill.

Mr Shabane explained that the conversion of deeds of grants to full titles in KZN had been an exercise conducted by the provincial government of the province between 1994 and 2009. The provincial government of KZN had focused specifically on the townships which were under the Ingonyama Trust, and provincial legislation and other legislation was used to upgrade tenure of deeds of grants to full titles.

Adv Mjenxane repeated that the Committee was dealing with the Bill as an Executive Bill referred to the Committee, and was a technical one referring to the two judgements. However, the process for law-making could be conducted in three ways:

As an Executive Bill, which was what the Committee was dealing with;
As a Committee Bill, which is developed by the Committee when it sees a gap in the legislation; and
As a Private Member’s Bill, where individual Members sponsor bills.

In the rules, the Committee was at liberty to approach the House for permission to enquire into other provisions of the principle legislation which were not being amended by the bill being introduced.   

The Chairperson thanked the Department for the presentation and said that from here on, the Committee would apply its thinking to how public participation would be conducted under the current conditions.

Adoption of Minutes

The minutes of 29 May, 4 June and 10 June 2020 were adopted without amendment.

The Chairperson adjourned the meeting.  

 

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