ULTRA Bill: public hearings day 1

Meeting report

ULTRA Bill: public hearings

Opening remarks

The Chairperson said a court order had been issued for Parliament to remedy the defects in the legislation. A call for submissions on the Upgrading of Land Tenure Rights Amendment (ULTRA) Bill had been made, and 35 written submissions had been received from various organisations and community representatives. Awareness campaigns by the Public Education Office and Parliament’s Democracy Offices had been launched for the Bill, and a total of 481 community representatives and individuals had shown an interest in participating in the amendment of the Bill. 110 people had been selected out of the 481 to make oral submissions, and the remaining number had shown an interest in following only the proceedings of the amendment.

The Committee had used various digital platforms to allow the public to participate and follow the Bill’s amendment process. There needed to be an extension of the public hearings because of the number of presenters. Critical engagements that sought clarity on the Bill amendment inputs would be accepted, but not direct questions.

An extension of two and a half days was proposed and established by the Committee on the oral submissions, based on the number of submissions that had been made. The submissions would be grouped by the province from which they had been submitted.

Land and Accountability Research Centre (LARC)

Ms Nokwanda Sihlali, Researcher, LARC, said that the LARC appreciated Parliament and the Committee for taking action on the court order that had been issued for the amendment of the Land Tenure Rghts Bill. It was comforting to see and know that the necessary action was being taken in trying to remedy the gaps and faults in the legislation. She highlighted the objective of the Bill, which was to allow certain rights that were systematically weakened and undermined by the apartheid government to be upgraded into ownership. The LARC supported the amendments to ULTRA and in dealing with special claims, and said that the Constitutional Court in Rahube v Rahube and Others had ordered the amendments to Section 2.

The capacity of the Department of Agriculture, Rural Development and Land Reform (DARDLR) was a concern, especially since its budget had been amended to respond to COVID-19. The addition of agriculture to the Department’s portfolio had resulted in a shortage of staff. There should be more clarity on the process of the amendment of Section 2, and it was inadequate that the Minister had published a notice in the Government Gazette because most people who held rights under the ULTRA did not have access to the Gazette. Easy access of information to participate in processes should be available for the holders of vulnerable rights. The notices could be published in the local newspapers in different languages.

Ms Sihlali also highlighted that the amendment Bill sought to implement Section 14(a), which allowed people to approach the courts for appropriate relief. The cost and resources involved in approaching a court must be considered, especially for those who could not afford it. There would be limitations of access for these groups of people. A more accessible and community-based process should be considered for those could not afford to approach the court.

On the Senqu Municipality judgment, the Committee and Parliament should consider the implications of Section 19 and 20 of ULTRA. The LARC welcomed the amendment Bill, as well as the Committee in following the Constitutional’s Court directive and addressing the legislative gaps. The intention of the amendment risked being undermined when processes and public participation were not followed and achieved. Despite the Bill’s deadline, there needed to be engagements with corresponding laws and policies, as well as consideration of who the Bill affected. Parliament should not wait for court cases to be made, especially on Sections 19 and 20 of ULTRA.

Mr Mlungisi Khanyeza, Community Representative: KwaDinabakubo, KwaZulu-Natal, provided a background of the KwaDinabakubo community and the issues of land injustice the community faced. There was no consent given or requested by traditional Leaders from the affected communities when land was transferred. Section 20 of ULTRA had not considered the rights of the displaced community during the land transfers. The community of KwaDinabakubo still had not been informed on how the transfers took place, even after approaching the Department of Rural Development, Cooperative Governance and Traditional Affairs, and the Public Protector. The community was always informed by authorities that the land belonged to the individual on the title deed. Section 19 and 20 continued to violate the rights of many.

The amendment Bill was fully supported because it would help balance the exercise of power by the Traditional Leaders Council and the rights of communities. Mr Khanyeza recommended that the Committee conduct a site visit to the community of KwaDinabakubo to engage with the people and other involved stakeholders, to enquire on the progress in addressing the issues. He added that there was illegal occupation of land because of the unaddressed issues.

Legal Resources Centre (LRC)  

Ms Wilmien Wicomb, Attorney: Constitutional Litigation Unit, LRC, provided background on the LRC and the work it does, and also the context in which ULTRA operated. The ULTRA legislation should have been replaced with comprehensive constitutional tenure reform security for people in rural areas. In a report by a high level panel that had been mandated by Parliament, there was mention of the widespread failure of the implementation of the ULTRA which had affected its effectiveness in protecting the rights of people.

The amendments were necessary, especially when it came to the discrimination of African women and the insufficient action in addressing tenure insecurity. The impact of the amendment needed to be understood by the Committee, as well as ensuring that the amendment addressed issues. The objectives of the amendment Bill included addressing the sidelining of African women in asset ownership. There was an amendment that was not outlined in the objectives, and the amendment in Section 25(a) of the Bill was meant to be applicable across the country with consideration of Sections 19 and 20. Sections 19 and 20 should not be considered or made applicable across the country, because there was no proper legislation to protect the tenure rights of people living on communal land. The Interim Protection of Informal Land Rights Act (IPILRA) provided some reform, but if Sections 19 and 20 were made applicable, the women living on traditional land would lose their rights under IPILRA. Without the tenure reform, women would lose their land protection.

She said that the publishing of the land tenure rights notice in the Government Gazette was not a realistic approach, because very few people checked the Gazette. She also highlighted that the Bill did not mention the budget implications of the proceedings of land tenure, which raised concerns on the actual enquiry.

The court applications came with restrictions, especially for those people who could not afford the services. The people who presented grievances were often people of colour and the poor, and not the wealthy minority. If the ULTRA could not protect the rights of women and empower them, then it remained incompatible with indigenous tenure systems. The ULTRA also relied on the Deeds Office system, which was unaffordable and not easily accessible. An overrule of the tenure system was proposed, and the Department of Land Reform and the Committee should take their time in redefining the tenure system instead of rushing the process.

Ms Wicomb concluded that the amendments in the Bill were not enough.

AgriSA

Ms Annelize Crosby, Head: Land Affairs, Agri SA, said that the public hearings were a good initiative by the Committee, and thanked the Committee for the opportunity to make an oral submission.

She outlined the purpose of AgriSA in addressing issues relating to the ULTRA. There was untapped agricultural potential in many rural areas that applied to the ULTRA which, when unlocked, would lead to positive outcomes such as poverty reduction and employment opportunities. Tenure insecurity should be addressed, because access to production was limited for agricultural development. A task team under the Land Centre of Excellence had been appointed to assist farmers who farmed on state land with financial resources. Various sources had been considered, but the transferability of rights was a critical financing component. The Bill was a step in the right direction, despite it not being the final solution. The submissions by Business Unity South Africa (BUSA) had been received and were fully supported by AgriSA.

AgriSA was involved in various agricultural development projects on state-owned land -- for example, the National Association of Wool Growers in the Transkei, Cotton SA and Grain SA. More projects could be implemented, but there were financing challenges and a lack of collateral.

Since the existence of the ULTRA, the Act had had no impact but it could be made effective if it was properly implemented. To ensure this effectiveness, there needed to be dedicated capacity and real commitment for the implementation. There had been a request by AgriSA for the involvement of mediation in the process, to protect the existing informal rights. The amendment Bill should apply only to the rights listed in the schedule, and not tenure rights. The matter had been agreed on with the National Economic Development and Labour Council (NEDLAC), that tenure security should be done through full title of land to unlock agricultural development. All land reform beneficiaries should receive full title to the land awarded to them.

Discussion

Ms M Tlhape (ANC) asked for clarity on the concerns raised by the presenters that the Bill did not aim to address communal land tenure rights. She said that the Communal Land Tenure Rights Act existed, and asked for suggestions on how the issue of communal land tenure rights could be addressed collectively in the Bill. 

Ms A Steyn (DA) said that the presentations provided interesting points for consideration, and asked for clarity from the LARC on the proposals made on the capacity of the Department of Rural Development. She questioned whether community meetings would resolve the issue of land disputes. To the LRC, on the IPILRA, she said that communities were being excluded, and asked if there was something that could be added to the current legislation to strengthen the rights of individuals and families. 

Mr S Matiase (EFF) said that Section 19 and 20 dealt with the legal capacity of a tribe and the transfer of land. He asked how a tribe would be defined in modern day South Africa, and what tribal administrations could be included in the Bill. To the LRC, he highlighted the concerns raised in the presentation on the Bill about excluding and undermining the rights of African women, and said that there were sets of legislation and laws such as the Land Rights Bill of 1999, IPILRA, the Extension of Security of Tenure Act, the Labour Tenants Act and the Communal Tenure Land Rights Act, that had managed to close the gaps in the ULTRA Bill. He asked for a comprehensive plan to be suggested as an alternative to the legislation and laws that had not fulfilled their purpose. The plan should ensure that land rights tenure was secured for vulnerable groups, especially women.

Inkosi R Cebekhulu (IFP) asked for the views of the LARC and the LRC on individuals having full title, and how this would impact on large families living on communal land where fields were shared to support families. He also asked if the field would be allocated to a married couple.

Ms N Mahlo (ANC) asked how the LARC proposed that the Bill address the issue of converting land holder rights into full ownership.

Ms T Mbabama (DA) congratulated the presenters for applying themselves in the information presented in the submissions. To the LRC, she highlighted that there had been a request not to implement Sections 19 and 20 of the Bill, and asked for clarity on this statement.

Mr N Masipa (DA) asked the LARC for clarity on the statement that the Bill did not have clear timelines, details, guidelines or processes, and asked it to outline the expected and required details, guidelines and processes from the Bill. On the matter of providing access to information of the Bill, he asked if the LARC was willing to assist the Committee in finalising the Bill.  

Responses

Land and Accountability Research Centre (LARC)

Ms Sihlali referred to the suggestions for resolving the communal land tenure rights issues in the Bill, and said that the amendment process needed to be extended to deal with the implications of the Bill. Section 19 and 20 had a big impact on communal land tenure rights. Earlier in the year, the Department of Rural Development had presented a land tenure reform framework, although the plans for this framework had been delayed because of COVID-19. However, there needed to be coordination of the Bills and how they related to each other.

She said there was an issue with clause 24 of the Traditional and Khoi San Leadership Act of 2019 and the Consumer Protection Act of 2008 Amendment Bill, because ULTRA aimed to transfer exclusive ownership that was entitled to a tribe leader. The issue with the aim of the ULTRA was that community and family rights were being undermined by giving ownership to one person.

Another issue was that IPILRA had not been made permanent since 1994. A comprehensive tenure reform process was needed to protect individual, community and family rights, as stated in the customary law.  

Legal Resources Centre

Ms Wicomb said that the ULTRA was based on a property regime that viewed ownership as the Bill’s standard of tenure to an individual with a title deed. The ULTRA could not recognise the complexity of tenure rights and ownership, especially when it came to family dynamics and indigenous systems of the country. It was for this reason that Sections 19 and 20 should not be made applicable, because they would result in more insecurity of community rights when it came to land ownership.

The Committee should also ensure that IPLIRA was made permanent and for regulations to be adopted, because IPLIRA was the only legislation that ensured that family rights were secured. However, it was not effective because the Act was not permanent. The ULTRA focused on individual rights and not communal rights. Communal tenure rights should be implemented in the ULTRA, because they had not been considered.

AgriSA

Ms Crosby said that the ULTRA was part of the solution, but not the complete, final solution. The ULTRA and IPILRA needed to be in alignment, while respecting the existing rights and unlocking opportunities. Other global models should be explored -- but the ULTRA was a step in the right direction.

Commission for Gender Equality (CGE)

Ms Tamara Mathebula, Chairperson, CGE, said the amendment of the ULTRA Bill was welcomed by the Commission. The court judgments on the ULTRA amendment emphasised the equality, alignment of dignity and rights of black African women. Laws and policies of the country must do more than just regulate with the hope of decreasing the high levels of discrimination of land in a formal manner. Laws and policies should promote the participation of women in social, economic and political spheres while adhering to the Constitution. The question was whether the Bill met both the requirements set out by the court and successfully promotes the rights of women in the social, economic and political spheres.

Ms Marissa van Niekerk, Senior Legal Advisor, CGE, highlighted Clause 1 of the Bill, which states that the legislation had the responsibility for creating a constitutionally permissible procedure in determining land rights and ownership. The Commission supported the substitution of Section 2 of the ULTRA -- that the conversion of land tenure rights could not happen automatically but through an application process. If it were not for the laws and practices that unfairly discriminated against vulnerable groups of people, the people would have land tenure rights.

She said the Commission did not support the publishing of the notice in the Government Gazette because the process was not applicable to how ordinary South Africans would access information. The Gazette was not a suitable method for publishing a notice because it would not be widely available and accessible to people in rural areas, especially women, who may not have libraries to access the Gazette. Women would continue to be excluded from participating in disputing the laws that affected them. Alternative ways of providing the information should be explored by the Department and the Committee, such as publishing the notice in the local newspaper, electronic media, government websites and social media.

The Commission supported the initiative for the public to approach the court for relief disputes, but consideration needed to be given to the expense involved in approaching a court for those who could not afford this legal process, especially unemployed women and those women who experienced unequal gender wages. There was less funding available from the Legal Aid Board for free legal representation and civil matters. In the Legal Aid Board’s 2018/2019 financial year, R1.8 billion had been allocated for criminal matters, and only R148 million for free legal representation.

She said that based on the Bill, black African women would not be able to fully exercise their rights. The Commission submitted that if a woman was confronted by land rights conversions, it would create a barrier to fair access of land and housing. Instead, a better opportunity could be presented for women to exercise their rights though the appeal process.

National House of Traditional Leaders (NHTL)

Inkosi Sipho Mahlangu, Chairperson: National House of Traditional Leaders, said that the NHTL was a community representative, and that everything was community based. The land tenure system was being looked at holistically through a process under way, which was guided by the Department of Rural Development. The timing of the Bill was during difficult times, as public views in rural areas could not be made during COVID-19. The submission was not fully developed because of the challenges of public participation in rural areas. He requested that the submission made by the NHTL be withdrawn because it had not been done intensively and if given an opportunity, a resubmission could be made after public participation had been completed.

Ingonyama Trust Board (ITB)

Judge Sipho Ngwenya, Chairperson: ITB, said the Bill went beyond the issues that were raised in the constitutional judgment, because Section 2 had been declared unconstitutional by the court. The Bill aimed to provide for the application of the conversion of land tenure rights to ownership, which was a problem because the Act already provided for the conversion, unless there were other mechanisms in place. The extension of the Bill was a stretch, because tribal law should not be part of the plan. Indigenous customary law was already complex, and it required dedicated attention. If it was introduced through the Bill, it would create more damage than improvement. The authors of the Bill -- the Department of Rural Development and the Legal State Advisors -- admit that consultation with other departments had taken place, but not with the beneficiaries. The Bill was going to be communicated with other stakeholders once it was finalised, which should not be the case.

More work needed to be done on the Bill. It had not been translated into any of the indigenous languages, considering that the beneficiaries were mostly black Africans who would not easily read formal documents in English.

There were two possible outcomes for when the due process was required. When an individual had already benefited from Section 2.1, the process must be clearly outlined to consider the individuals who acquired the ULTRA on land based on an automatic application. There were also individuals who needed to face the application of the law as expected to be amended. These individuals must be notified and invited to participate in the ULTRA amendment process, which was not mentioned in the Bill. He emphasised that the improvements could take place without any delays, and that Section 1.2 of the Bill needed to be removed so that the Bill was not extended to tribal land. A separate process needed to be established which would enable rural Africans on tribal land to exercise their rights, and women in these areas to be heard and exercise their rights.

He provided recommendations that Section 1.2(j) of the amendment Bill be removed, that the Bill mention that this Section did not apply to land administered under customary law, and that the procedure for due process was clearly elaborated in the Bill.

Discussion

The Chairperson said that the Bill could be translated into all official languages only once it became a law, but there was a memorandum on the Bill which had been translated in all languages with the intent of meeting the expectations of the public. The communications team had reached out to local vernacular radio stations to ensure that everyone was invited to participate in the Bill’s amendment process.

Ms Steyn thanked the Commission for the information that had been provided in the presentations on women being able to access the courts. She asked all the presenters about the inputs that should be included in the Bill to ensure that the rights of women were strengthened. She also asked the NHTL and the ITB for feedback on the processes to strengthen women’s rights under traditional leadership, as well as proposals on how the Committee could implement some of the processes on women’s rights.

Ms T Breedt (FF+) agreed with Ms Steyn on the traditional rights for women, and having legislation implemented to afford women more land and power rights under traditional leadership.

Mr Masipa asked the ITB about their recommendation to remove Section 1.2 in the Bill, and said that it was premature for the ITB to propose this removal while proposing inclusive participation and the use of native languages to communicate information. He also said that public comments and views should be received first before a decision could be made on the Bill.

Ms Mahlo asked how the Commission proposed that the Bill’s amendments could be made to secure land ownership by women in urban areas. She said there were conflicting interests among family members, especially since many black people did not leave behind a formal written will or Permission to Occupy (PTO). Customary law was not applicable in urban areas, and she asked if there was a suggested model of land tenure to ensure that women in both rural and urban areas had land ownership and if a study of this land tenure model had been conducted to draw from the lessons learnt.

Responses

Commission on Gender Equality

Ms Mathebula referred to the inputs to ensure that women’s rights were strengthened, and explained that women’s rights were also highlighted in the United Nation’s documents, which included the access to own property by women, access to earn equal and fair wages, and access to equal opportunities free from discrimination. In 2016, the Commission had designed a project after intense consultation with people in rural, semi-urban and urban areas, and a report had been compiled on the concept of the ‘One Woman, One Hectare’ of land project. The report hoped to give women in South Africa a chance to own a hectare of land. The concept had been presented to the Committee on Agriculture, Land Reform and Rural Development in 2016, and was handed over to the Department of Public Works and the Department of Rural Development for implementation. The progress of the implementation of the project was closely monitored by the Commission.

Ms Van Niekerk said that the Commission faced situations where women were unable to access land because of their marital status. In 2009, a study had been conducted by the Commission on land, but another study could be initiated. The matter of land tenure rights in urban areas would be considered in the 2021/22 annual performance plan.

The Chairperson requested a list from the Commission on the data of the ‘One Woman, One Hectare’ project. There had been discussions with the Department on a similar project, and it had stated that only 1% had been discharged from the budget for the ‘One Household, One Hectare’ project. The Committee wanted to ensure that the funds for the project were used fully to fulfil their purpose, especially in rural communities. The data could be sent through the Committee Secretariat, and the Committee would discuss it with the Department to ensure that there was alignment between the two projects.

National House of Traditional Leaders

Ms Nondumiso Ngonyama, Regent Traditional Head: NHTL, said that there had been progression in the sector, which was governed by the Traditional Leadership and Governance Framework Act of 2009, and which provided that the Royal Council was the starting point of contact for the public. She said a third of the members of the Royal Council should be female as stipulated by the Act, which showed that times were changing and that there was progress. The Council was open for everyone who wanted land, especially unmarried women. She explained that there were requirements that needed to be met, as well as processes and procedures which must be followed and adhered to, to avoid people claiming land unlawfully. Women did have access to land whenever they required it, provided they followed the procedures and processes. There were isolated incidents that should not allow the Council to be tainted. The Council ensured that everyone was treated fairly when it came to land.

Ms Nomandla Mhlauli, Deputy Chairperson: NHTL, said that the objective of having women in structures of traditional leadership was to advocate for the rights of women, especially since it was a male-dominated structure. Land did not refer to houses, but to families. The NHTL was fully supportive that women should own land, not just have access to it. The government had been approached to allocate more land to traditional leadership, because the current land was not enough. Communal values needed to be considered when land was involved.

Inkosi Mahlangu said that less than 13% of the land in country had been allocated to black people, and that the focus of the NHTL had been on families. There were situations where women were not married and looked for land to build. He assured the Committee that the land had been granted to the women. The sector had ensured that women were participating in land ownership and had access to land when it was required. The participation of women in the Council’s leadership positions was also encouraged and ensured.

Ingonyama Trust Board

Judge Ngwenya referred to the recommendations to strengthen women’s rights under traditional leadership, and said that the court order for the amendment stated that Section 2(1) of the ULTRA would not be applicable to individuals who received automatic land tenure rights, and that many of the rights applied to urban areas. All the rights under Section 2(1) of the ULTRA led to a title deed. The ULTRA did not apply to tribal land, so advice and recommendations could not be provided.

On whether the recommendations by the ITB were premature, he said that the removal of Section 2.1 had been requested because the Section was an addition that had not been requested by the court, so it could not be implemented. The rights on tribal land were interrelated, and could not be viewed as separate entities, and the land in South Africa was not surveyed because the process of surveying was expensive. He concluded that the submission was not premature.

Agricultural Business Chamber (AgBiz)

Mr Theo Boshoff, Head: Legal Intelligence, AgBiz, said the scope of the Bill was limited because it focused on the Constitutional Court’s ruling instead of taking a holistic view. The concept of tribal land must be reviewed because it was a diverse concept which may threaten tenure security if everything was summed into one. On the conversion of all rights to ownership, secure forms of customary laws should be considered where there were multiple rights in land. Co-ownership and separate legal entities were possible in the form of a trust.

On the discretion of the Minister during land rights disputes, mediation should be involved and considered by the Committee, as well as ensuring that specific criteria were put in place to guide the Minister in making a decision during disputes where no agreement was reached, and also to ensure that property rights were not affected.

He said that the publishing of the notice in the Government Gazette was not effective because many people in the rural areas did not have access to it. A proposal would be to place an obligation on the applicant to inform the Department when an application was lodged so that the Department was aware of all interested persons. A notification could then be given directly and allow for an opportunity to make representations. The notice should be published in different languages for the public to understand.

Section 14 (a) refers to the court, but there was no clear definition of the court. A court should be defined to mean the land claims court, because it was the most appropriate court to deal with these matters. Good recommendations had been made at the National Economic Development and Labour Council (NEDLAC) on the application of Section2 on the mediation of the Minister in land rights enquiries.

Free Market Foundation (FMF)

Mr Eustace Davie, Director: Free Market Foundation, said that the problem with the proposed legislation was that the automatic conversions happened when the ULTRA Bill was adopted, and people living on the properties that were available for conversion became the owners of the properties without being informed. The question then became whether the new property owners would lose their rights or if an amendment would be made to the legislation to ensure that these people would not lose their rights. The amendment Bill aimed to apply to new properties that might qualify under the ULTRA -- if not, then there would be expropriation of land without compensation of private residences. It was a big problem when land holders were not informed that they were the new owners of land or property.

The FMF had launched a project, ‘Khaya Lam Land Reform,’ which partnered with municipalities to inform residents of their ownership of property and to raise funds for title deed registrations of the properties. In 2013, 84 title deeds had been presented in the pilot of the project, and over 3 000 households had been assisted at the very low cost of R2 500 per property. The national total of properties with title deeds was 10 000 households, with a total cost of R2.5 million that had been raised. R1.6 billion was the total value of transfers nationally. Low income earning households, and a balance of men and women, had benefited from the project. He said the Government should find new ways of reducing costs and providing title deeds to the owners of properties.

Black People's National Crisis Committee (BPNCC) 

Mr Lindokuhle Patiwe, Convener: BPNCC, raised concerns on the purpose of the Bill not being aligned with the realities of black people. The Bill still focused on individual rights to property holding, and a misunderstanding of land tenure security. More creative ways of securing land tenure needed to be explored. The amendment Bill did not contain enough plans of action to secure land tenure security, because the majority of land that the Bill covered was property that had been handed over by the current owners to future generations, especially in black African families, where land being handed down was given to everyone in the family and not to an individual. Individual title to property would become a problem. There were also concerns on how the process of the amendment Bill had been done, as COVID-19 may have prevented certain activities from taking place. He requested that Parliament write to the Constitutional Court and request an extension for the Bill, because without proper consultation the Bill would constantly be disputed in court.

Mr Wandile Kasibe, Co-ordinator: BPNCC, emphasised the need for an extension for further consultation, considering that many people would be affected by the Bill. Conducting virtual consultations was not enough to collect feedback from the public. He said there were a lot of patriarchal rights when it came to land ownership. Males were highly recognised as landowners, but females were not given the same recognition. Issues of gender equality needed to be recognised and addressed.

Another issue that required attention was that the Bill maintained support for the landlessness of black people, especially since the land had been taken forcefully from black people in the past. He asked how the issue of landlessness of black people would be addressed so that black people could have land ownership. People in the rural areas did not have a final say on the land they lived on because it belonged to traditional leaders. This issue needed to be addressed so that people had full rights to the land they lived on.

Discussion

Ms Tlhape asked AgBiz for clarity on the statement that guidelines should be set out to assist the Minister in mediating the dispute matters, and asked if the guidelines would still apply if another individual,l and not the Minister, was mediating the dispute matters. She asked the BPNCC that with the current crisis of culture, which the Rahube case had highlighted on the issue of vulnerable groups, especially women, if there was an expectation for the Committee to relook at the issues of customary relations on tenure security.

Ms Steyn asked AgBiz if there were any suggestions of the form of legal indigenous land ownership that could be applied in the country. To the FMF, she asked if there was any data or factual information on the statement made that people had ownership of land, but were not aware this, as well as the data on the Khaya Lam project. To the BPNCC, she agreed with the presenters that the time allocated for consultation was not enough, and asked if there was better way of conducting the implementation of the Bill and the title deeds to families.

Mr Matiase welcomed the presentation by the BPNCC, and agreed with the points made in its submission. He said that the AgBiz and FMF presentations seemed to support the dual system of land tenure administration in the country, where there were different land tenure systems for people in rural areas and urban areas. He asked if the two organisations thought that the ULTRA Bill was comprehensive enough to erase the existing dual land systems and if not, what should be done to ensure that this dual system did not exist.

Ms Mbabama asked how the FMF had arrived at the conclusion that the conversion to full ownership title resulted in expropriation of land without compensation of private residences.

Mr Masipa noted that the FMF opposed the involvement of the Minister in the land ownership process, but instead involved municipalities. He asked if the R35 cost of transfer had been tested in the Khaya Lam project, and if the Minister’s involvement was truly objected to by the FMF.

Responses

Agricultural Business Chamber

On the mediation of the Minister, Mr Boshoff said that an alternative way of resolving a land dispute would be to approach a land claims court, which was not a sustainable solution because it was expensive. A proposal was that the appropriate stakeholder to handle the situation would be the Minister, in which a guideline would be provided to the Minister for the criteria involved in the matter. It was not about who made the decision, but the manner in which the decision was made. Mediation was a cost- effective process and if any applicant was unhappy with a ruling of the Minister, then an alternative method could be used, such as approaching the court.

AgBiz did not support the dual land system, but the system should be reconciled. He said that there were laws and legal systems that recognised customary law, including the Constitution. The challenge was that both land systems did not provide the same level of tenure security. The final decision lay with the property owners. There was no existing system on indigenous customary law ownership, but the system would have to be a separate process with a bottom-up approach, and then formalising the custom that existed. There were global examples where customary law systems had been used to record rights and there was legal certainty.

Free Market Foundation

On the issue of the expropriation of land, Mr Davie explained that the expropriation would take place if there was no provision made in the changes to the law that ensured that the rights of the property owner -- which were afforded in 1991 when the Act was adopted -- were not revoked.

The FMF had recognised the difficulties of the dual system, and work had been done on the process and discussions were also held with the NHTL. The conclusions were that there would be a possibility for property to be transferred to members of the community. The people needed to decide on how their communal land must be handled.

On the conversion of property rights, the FMF was assisting municipalities with this process. There was no objection to the Minister being involved in the process, but there were a lot of title deeds for the Minister to handle alone. The FMF was hoping to do the conversion of 1 000 properties per month, which would not be practical for the Minister to do single handed because it would cause delays.

Black People's National Crisis Committee

On the question of whether the issues of customary relations should be relooked, Mr Patiwe said there were basic principles on which the African reality was founded, and any laws that did not consider the principles would be ineffective. Careful attention had been given to the definition of customary laws, which had been written by white academics, to an extent that some of the customary laws were colonial. In the African tradition, property was not handed down to individuals, and if it was, then there would be problems. A different method of giving tenure security needed to be formulated, because it was the core of the issue. Individual title could not be the only way to secure tenure, and they should not prevent individuals from applying for government housing.

Mr Kasibe said that the history of colonisation in South Africa was factual, and inputs by the BPNCC came from a place of pain and the reality of the landlessness of black people.

Alliance for Rural Democracy (ARD)

Ms Constance Mogale, National Co-Ordinator: Alliance for Rural Democracy, outlined the introduction of the presentation about the proposed amendments to the ULTRA Bill, which included Section 2(1) on the Rahube v Rahube court case, and the Section’s violation of women’s rights. There were concerns that the Act did not make provision for communal land and groups. The ULTRA, and all other legislation of apartheid, was supposed to be terminated because they lacked an objective on processes where land rights were recorded, created and reconsidered. This had then resulted in the ULTRA and these other legacy legislations being difficult to operationalise. Adjudication and land rights enquiry were two concepts which had to be considered, given the difficulty to operationalise, and could be used inter-changeably. A land rights enquiry would denote the process for recording rights, while adjudication would be used to entail reconsideration of rights where they were unclear or being disputed through mediation and conflict resolution processes. Adjudication was more of an intervention.

She provided a background of the ARD and the work it did, as well as the organisations it worked with. The terminologies used in the amendment Bill, such as ‘tribe’ and Sections 19 and 20, were outdated because traditional leaders would be able to upgrade land tenure rights as individuals, since it was prescribed in the Bill. The Committee needed to stop having “a Bantustan mentality,” because law-making processes and policies had continually failed the people of South Africa.

She outlined the concerns involving how the hearings had taken place during COVID-19, and said that the ARD supported the submissions made that Parliament should conduct oversight visits. A call for the radical transformation of the apartheid legislation, which advanced the Bantu Authorities Act of 1951, had been encouraged and submitted. Parliament should aim at correcting injustices and abandon the ULTRA and all other apartheid legacy Acts.

Parliament should also provide action plans on how adjudication was going to take place during the land rights enquiry, as well as the plan of Parliament to empower rural governance, because the national government had neglected rural areas. The absence of good land governance was a concern, because it weakened the livelihood in other areas. Other areas of concern were the bureaucratic red tape to access land which caused delays, the surveying of land and the recognition of customary land rights, as well as ownership and access of the dual system. Parliament was encouraged to publish a socio-economic impact assessment (SEIA) and to make resources available for public consultation and participation.

Congress of South African Trade Unions (COSATU)

Mr Matthew Parks, Parliamentary Co-Ordinator: COSATU, said the Congress welcomed and supports the ULTRA Bill. He outlined the processes that COSATU had participated in for the amendment of the Bill, and the key provisions of COSATU in supporting it. He urged that the Bill should be passed as soon as possible, and that defects in the law should be identified before the Constitutional Court gave orders.

The capacity of the Department of Rural Development to implement the Bill effectively was a matter of concern. The Committee must hold the Department accountable for successfully implementing the Bill so that it benefited all those affected by it.

Land Access Movement of South Africa (LAMOSA)

Mr Henk Smith, Attorney: Henk Smith and Associates, said that LAMOSA opposed the whole Bill, and said that there were three areas of concern.

Clause 4, Section 25(a) extended the scope of the ULTRA to the whole country, and excluded the Bantustans. The operation of Section 20 should be extended to include all the Bantustans. The Committee should outline its intentions that it would amend the references to Sections 19 and 20 because they were not necessary and would cause more problems, especially since it went against multiple judgments that had been made in the Constitutional Court. Communities needed to be assured that communal land would not be lost to transfers made applicable by Sections 19 and 20. The Consequences of the judgments had not been considered in the Bill amendments. A section in the Bill should be made available until a communal Land Act was finalised.

No evidence had been provided on the necessity for the Bill’s amendment. The project of the conversions of PTOs into ownership was a process that the country had not been prepared for. Addressing Section 2(1), he mentioned that inequalities and fair outcomes for women were important, as urged by the Constitutional Court. The process was expected to change from automatic conversions into an application process, even though the process was never an automatic one. The process had caused a lot of problems, which had resulted in the process not being implemented.

The ULTRA would not resolve the Rahube vs Rahube court case problem. Sections 19 and 20 must be removed from the amendment Bill, and the implications of Section 3 needed to be properly understood.

Transvaal Agricultural Union of South Africa (TLU SA)

Mr Bennie van Zyl, General Manager: TLU SA, said that the socio-economic issues of South Africa needed to be addressed, and there were inputs and approaches that tried to address them. Economic growth was the only way to resolve unemployment and poverty issues. Productivity needed to be increased, which was part of the economic rules that could not be changed. There were requirements needed to grow the economy which could be seen during COVID-19, where businesses had gone bankrupt because there were no operations taking place to generate profits. Private ownership also encouraged investors to invest. He said that the proposed legislation and policies should be tested against economic principles to ensure economic growth.

Discussion

Ms Tlhape agreed with the suggestions made by the TLU SA that there needed to be a correlation between the legislation and securing private ownership. Time was required to fully comprehend the submission by LAMOSA. She asked the ARD what would constitute good land governance, and what the proposal should be if the ULTRA was abandoned because it was an apartheid legacy Act.

Mr N Capa (ANC) said that the submission by the ARD had mentioned ‘Bantustans’ a lot, and asked for clarity on the ‘Bantustan mentality’ and an example of where this mentality had been observed. He asked LAMOSA for clarity on whether the argument in its submission was based on the existence of Bantustans. He asked TLU SA whether the organisation believed that economic growth was expected to continue without addressing the critical land reform issues, because the presentation suggested that economic growth would address land reform issues.

Ms Steyn asked LAMOSA whether proposals had been made on the Communal Land Rights Act (CLaRA) Bill, because the Bill provided information on dealing with communal land tenure. If LAMOSA had received the Bill, did the organisation think that the proposal made in the CLaRA Bill would address the current issues? She requested the document that stated the number of people that would be affected by the implementation of the ULTRA Bill.

Mr Matiase asked the ARD whether the proposed ULTRA was a step in the right direction towards ensuring land tenure rights for women, and if not, what the alternative should be. He asked whether COSATU was aware that there were various land tenures in rural areas of the country, and that all 10 tenures co-existed side by side. If COSATU was aware of these land tenures, he asked if comprehensive research had been initiated to try and combine all the systems into one, and if not, why not. He also asked if it agreed that the Bill was based on the doctrine of private ownership of land that drove capitalism, and if not, should there be an alternative? To LAMOSA, he asked whether the proposal on the proposed form of conversion was based on the conversion of freehold or the conversion of leasehold, and if the proposal considered the dual system. He also asked what the middle ground system should be.

Inkosi Cebekhulu asked LAMOSA and the TLU SA for their views on what should be done to address the injustices of the past, especially for black people.

Mr M Montwedi (EFF) highlighted that the ARD presentation opposed land applications being made to the Minister, and asked for suggestions on how the application process should be conducted. He also noted that fair public participation was proposed by the ARD, and asked what a fair public participation process entailed.

Ms Mahlo asked if COSATU believed that the freehold title deeds would work against the government’s objectives on land reform, and asked if there was any alternative method of ensuring that once the PTOs and title deeds had been allocated they would not be sold back to the previous owners. To LAMOSA, she asked about the impact of applications of the Bill when applications were made by people who were not residing on the property, and how the ULTRA could be improved.     

Responses

COSATU

Mr Parks referred to the impact of delaying Bills, and said that this was not a new issue because it took five years for a Bill to be made into a law -- and five years was too long. Two years had been allocated for the ULTRA Bill, and even then condonation had been requested to avoid shortcuts. Bills and legislation needed to be passed as soon as possible to avoid further delays.

On the various land tenures that existed, he agreed that there needed to be a single legal jurisdiction of land ownership. Laws needed to be amended to empower people in rural areas, especially women. COSATU was aware of the doctrine of private ownership and that the world lived in a capitalist economy, and that the Bill advanced the rights of workers to own land for building, agricultural and entrepreneurial purposes.

On the freehold title deeds, he shared sentiments of concern with the Committee that land was provided to people, and was then sold back to the previous owners. COSATU also supported the Regulation of Agricultural Land Holdings Bill, which would regulate the amount of land that could be owned by a farmer, the type of livestock etc. The Bill would also prevent foreign ownership of land. He said that in future, if land was resold, it would revert to the State or be sold to a previously disadvantaged person. He emphasised the need for laws to be passed more quickly.

LAMOSA

Mr Smith said that good land governance was not just about a specific tenure right, but a collective recording system and institutions that lasted for many years. He stressed that there was no arrangement that went with the tenure Bill, and that applying the ULTRA without an institutional arrangement could not happen.

On the existence of Bantustans, he said that Bantustans did not exist currently, but when the ULTRA was applied, it applied to white South Africans. By 1988, the ULTRA was applicable to most parts of the country, except for Sections 3,19 and 20, which were going to be repealed by CLaRA, which had never been applied. He questioned why these Sections 3,19 and 20 were being applied if there was no communal land tenure Bill in place, because other elements of tenure security were being excluded.

On the middle ground for freehold and leaseholds, he said that there should not be a hierarchy because evictions of people with rights could not happen. There was a crisis with titling and registrations, because only half of the houses built since 1994 were titled. Individual titling did not work. CLaRA was the solution to this problem, because it would ensure joint rights to property.

On the views of addressing past injustices, he said that individual titles had been acquired through war, theft and the squatting of white people, who had eventually got titles for the land. Tenure security had not been given to those people who had acquired land illegally or forcefully. He said that the information on the people affected by the legislation was included in the submission. The amendment Bill was a backward step in terms of Clause 4, but it may be a benefit for women under Section 2(1), which required applications.

He concluded that there should be a suspension of Sections 19 and 20 in the Bill.

TLU SA

Mr Van Zyl said that economic principles would be decisive, which was why the TLU SA had made a proposal in 2005 on how land tenure could be linked to economic growth, but the proposal had been rejected by the government. The system must be economically driven to produce food, and agricultural land needed to be productive. People had to be assisted in a sustainable manner. The TLU SA supported private ownership to address unemployment and poverty through economic growth.

ARD

The ARD said written responses would be submitted to the Committee.

Concluding remarks

The Chairperson thanked all the presenters for their submissions, and said that the oral submissions would continue on 19 August. An application for an extension for the remaining 481 submissions had been made until 28 August. He thanked the presenters for providing and suggesting solutions to address the issues of the marginalised, especially women, and ensuring that women had access to land tenure. The Committee took the Constitutional Court judgment seriously, and would ensure that the processes were dealt with as soon as possible so that the Bill could be passed into law.

The meeting was adjourned.