Communal Land Rights Bill: hearings

Meeting report

www.contacttrust.org.za

AGRICULTURE AND LAND AFFAIRS PORTFOLIO COMMITTEE
14 November 2003
COMMUNAL LAND RIGHTS BILL: HEARINGS

Documents handed out:
Communal Land Rights Bill [B67-2003]
National House of Traditional Leaders submission
Nkuzi Development Association submission
Centre For Applied Legal Studies submission(awaited)
Royal Bafokeng Nation submission
Royal Bafokeng Nation submission
Joint Committee on the Status of Women submission(awaited)

SUMMARY
The portfolio committee heard responses from the Department on issues raised over the preceding days, as well as submissions from the National House of Traditional Leaders, Mr M. Wegerif of Nkunzi Development Association, Centre for Applied Legal Studies, Mr B. Seabela of the Royal Bagokeng Nation who welcomed the bill, and Ms L. Xingwana of the Joint Monitoring Committee on the Status of Women who emphasised the need for greater representativity of women in the land administrative councils.
Contact's Staff member at the meeting: Somayya Sultan email at: [email protected]

MINUTES
Department Responses to Issues Raised
Dr Sibanda (Dept Land Affairs) responded on a number of issues raised throughout the public hearings. With regards to the issue of womens rights dealing with securing of old order rights, he said that the department would interrogate the issue to determine which suggestions would be accommodated in the bill. The problems around the allocation of land and the gender discriminatory issues would also be looked into. Dr Sibanda said that there was an assumption that the bill was flawed with insufficient consultation amongst communities. He replied that between January 2001 and March 2003, there were numerous consultations in communities across the provinces. Hence representative consultation was carried out by the department. He noted that the department would make available the dates and places of the consultation to the communities.

Mr Botha (DA) said that the bill was first presented to the committee in 2002 and it was agreed that translation would be available in various languages. He asked why this had not as yet been carried out.

Dr Sibanda explained that at the time, which was August 2002, the bill had been gazetted and was approximately 90 pages long as compared to the the shortened version in its current form.

Dr Colin Broker (DLA) said that the department had been affected by substantial changes to the bill. It had been sent out in various languages to communities and those changes had caused a delay in the translation process. He noted that the translated version was expected the following week and would be made available to the portfolio committee as soon as it was available.

Inkosi MB Mzimela, Chairperson, National House of Traditional Leaders
For details of the submission, please refer to the attached document.

Questions and Discussion
Mr A.J. Botha (DA) asked for clarification on iNkosi Mzimela's reference to Switzerland. Secondly, he asked what the difference was between the payment of traditional leaders from the South African taxpayer and from the traditional leaders' local people.

iNkosi Mzimela replied that he did not say there was a relationship between Switzerland and South Africa, however the case study in Switzerland had proved successful and he had simply used this as an example.

Ms E. Ngaleka (ANC) asked for clarification on iNkosi Mzimela's statement regarding the concept African democracy being superior to the South African constitution. She asked for clarification on what iNkosi Mzimela meant by democratically elected traditional leaders since traditional leaders were elected through birthrights. Finally she asked what was being done to avoid the exploitation and abuse of women in their areas.

iNkosi Mzimela stated that African democracy was not superior to the constitution however, he said that when problems do occur within the constitution, it became their responsibility to correct it. He said that he had been comparing the African democracy with that of Western democracy.

Dr A. Shoeman (ANC) asked for clarification on pages 13 and 14 of the submission.

iNkosi Mzimela said that this was not suggesting additional spheres of government. He added that the traditional leaders found problems at local government level. He said that if traditional leaders did not have a role in government then this undermined the principle of co-operative governance.

Mr S. Abram (ANC) asked iNkosi Mzimela's whether or not he accepted the principles and provisions of the bill in question.

Adv Holomisa noted that the committee should look at the intention of customary laws, which is to protect the weak, the abused and the destitute. He said that the courts had decided that land should be registered in the name of the male only. He said that customary laws hold that land should be registered in the name of the family. Further, that customary laws imposed penalties on men who abuse such laws by abusing women.

iNkosi Mzimela expressed his involvement in a case where a deceased man's uncle claimed beneficiary to all his assets. He stated that he had written a letter to the courts to protect the dead man's relatives.

Mr Marc Wegerif, Nkunzi Development Association
For full details of Mr Wegerif's submission, please refer to the attached document.

Questions and Discussion
Mr Botha asked Mr Wegerif why he would want to make rights tradable by strengthening them, whereas on page 7 of Mr Wegerif's submission, he commented on a contradiction made in the submission which recommended that rights be weakened. Secondly, he asked Mr Wegerif why they should have a distributive element when LRAD was already in place. Mr Botha noted that everyone in South Africa had access to LRAD.

Mr Wegerif said that currently S.A. had tradable work-rights. He suggested that they needed to link those two rights. Secondly, he replied that it was not a contradiction. He meant that they needed to engage on a freehold system. With regards to the distribution element, he said that the Bill consolidated existing unequal distribution of communal land. He added that the communities did not want more rights; instead they wanted their land. Mr Wegerif said that whilst the land restitution program may theoretically be available to everyone, only 2% has been redistributed during the last 10 years. He noted that LRAD was certainly not available to everyone since they had a limited budget.

Mr Dlali commented that page 11 of the submission questioned the administration of the committee. He asked Mr Wegerif to expain this. Secondly, he asked Mr Wegerif for his proposal on subsection 3 and 4.

Mr Wegerif said that the contradiction he saw in the bill was that at certain places it stated that the land administration council 'may' be a traditional council whilst at other it stated that it 'is'. Mr Wegerif said that this was contradictory and needed clarification. For subsection 3 and 4 of the bill, his suggestion was that the government should not transfer ownership by setting up a new administration.

The chairperson asked Mr Wegerif for clarification on his statement on "lack of vision."

Mr Wegerif replied that he had meant a unitary vision. He said that there was no clarity on new order tenure rights.

Mr S. Mocgoba (PAC) asked what would happen to people whose land had been "used up".

Mr Wegerif replied that whilst the constitution does make provision in terms of checks and balances, if people did not participated, it would inevitably not work, hence people needed to protect themselves should the minister misuse his or her vested powers in the future. He added that there was a concern regarding the need for redistribution of land. He said that they needed to look at how the bill would improve land in its current form, and he added that the bill in its current form did not do that.

Regarding the question of blanket protection possibly being in conflict with reaching objectives, Mr Wegerif replied that they still needed to ensure that peoples' rights were protected in the interim.

Mr Wegerif criticized the land redistribution clause, which he stated needed further clarification on.

The chairperson asked Mr Wegerif to provide the committee with an example of his vision.

Mr Wegerif replied that an example of his vision would be to find a place for traditional leaders whilst establishing strong individual rights. He added that within those rights, there would need to be available the opportunity for commercialization.

CENTRE FOR APPLIED LEGAL STUDIES
For details of Dr Likhapa Mbatha's submission, please refer to the attached document.

Questions and Discussion
Dr Schoeman asked the presenters to elaborate on the recommendations, which they had for the committee.

Dr Likhapa said that they would forward written recommendations to the committee.

Mr Botha asked what was envisaged as far as tribunals were concerned.

A member asked whether the presenters were satisfied with gender equality.

The chair asked the presenters whether they would have fundamental problems if the committee were to pass the legislation one the concerns were dealt with.

Dr Likhapa replied that they would not have problem once their concerns were dealt with.

She said that they accepted the bill where communities had a choice. She said that the bill should function without discriminating against gender and that mechanism should be put in place to ensure the inclusion of women.

Mr Bruno Seabela, Manager - Royal Bafokeng Nation
For details of Mr Seabela's submission, please refer to the attached document.

Questions and Discussion
Mr Abram (ANC) asked the presenter whether they would welcome the bill in its current form despite minor changes.

Mr Seabela replied that the Bafokeng nation would welcome the bill in order to give traditional communities land. He said that they supported communal living.

Mr H. Ngethu (ANC) asked the presenter for suggestions.

Mr D.M. Dlali asked the presenter what his comments were towards women residing in the Bafokeng area with regards to the ownership of land.

Mr Seabela replied that they did not discriminate against women owning land.

Ms E. Ngaleku (ANC) said that the presenter had suggested that status quo remain in its current state in his region. She then asked what his recommendations were for other constituencies. Secondly, she asked the presenter what the criteria was for entitlement.

Mr Seabela replied that the there should be broad based consultation with the councils. He added that the bill did not take into consideration land which was privately acquired by the traditional community. He said that the community should be allowed to administer it.

Joint Committee on the Status of Women
For details of Ms Lulu Xingwana's submission, please refer to the attached document.

Questions and Discussion
Mr Dlali asked for their comment on the bill in terms of administering land in other areas. Secondly, he asked for their suggestions on dealing with the issues of old order rights and new order rights.

Ms Xingwana replied that old order rights needed to be broadened since women needed to be more broadly representative.

The Chair asked Ms Xingwana for their opinion on Chapter 3 of the bill.

Ms Xingwana suggested that the land administrative council be 50% gender representative amongst men and women. She commented that the Ingonyama Trust should be done away with since there should not exist any special treatment for some and not others.

The Chairperson said that they would look into the suggestions raised. He noted that the committee would not rush the bill, and that the committee would ensure that all inputs made would be taken into cognizance. The chair thanked all present and adjourned the public hearing.


This document was generated on: 2003-11-24

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.

This report is produced by the Contact Trust - Taking People to Parliament, and Parliament to People. Visit our website at