Video: Portfolio Committee on Agriculture, Land Reform and Rural Development (NA) 19 Aug 2020 Part 2
Documents handed out: Nkuzi Development Association [awaited];Tshisimani Centre for Activist Education [awaited]; Housing Assembly presentation[awaited]; Singabalapha Housing Movement presentation [awaited]; SALGA presentation [awaited]
The Portfolio Committee on Agriculture, Land Reform and Rural Development held its second day of public hearings on the upgrading of the Land Tenure Rights Amendment Bill (ULTRA) [B6 – 2020], and heard various organisations calling for public hearings to be extended. They pointed out that virtual public hearings excluded the voices of marginalised groups, especially in rural areas. The Committee acknowledged this concern, but said that the Covid-19 pandemic had made it challenging for public hearings to be held without putting communities at risk of contracting the virus. They also explained that they had to ensure that communities, non-governmental organisations, community based organisations, academics, traditional leaders and other stakeholders had to be consulted and their views heard, while adhering to the COVID-19 regulations.
The Committee heard some organisations call for individual ownership of land and property, especially for single women with families, while the Congress of Traditional Leaders made its case for all rural land to be in communal ownership. More importantly, there were many calls for the Bill to include both urban and rural communities, as it was high time that people were allowed their right to ownership of land, especially those who had been displaced by apartheid.
A critical question emanating from the public hearings was a question on customary law or practices within families in so far as protection of property rights and security of tenure was concerned. There were suggestions that the Bill, if passed, had to address processes for adjudication and the recording of rights before conversions.
Rural Development Network (RUDNET)
Mr S’celo Madondo, representing RUDNET, said that his presentation would largely give a background of RUDNET and an outlook of where they stood in terms of the delivery model that the Bill must address. The presentation also covered the capacity of similar organisations, as well as other associates and partner organisations that were involved at the grassroots level and the structural approach that they thought the bill must address, as well as the most important elements that they felt had not been touched thus far. Some of the key issues they wanted to raise had come up yesterday from a few of the people who made presentations. However, they felt that the Bill said nothing about monitoring and evaluation, and they would like to look at the tools and outcomes regarding land tenure.
RUDNET had been founded in 2003 as a section 21 company, and in 2013 it converted into a non-profit organisation with a board of directors. The organisation aimed to enhance the quality of life and the standard of living as well as the capacity of rural communities, farm workers, and most importantly, farmers without land. RUDNET hoped that the Bill could address this through economic empowerment, human resource development and training, sound industrial relations, education and social cultural development, which was what RUDNET was all about. It took an interest in the Bill because it fell in line with its field of operation and expertise, as it sought to impact the new land tenure ecosystem. Its vision was empowered by vibrant and prosperous rural communities, and its mission was to enhance the sustainable quality of life of farm working and of rural communities and landless farmers through capacity building, education, social development and economic empowerment. It hoped to do this with the assistance of the Bill in order to do more together with its collaborating partners and stakeholders.
The objectives of the organisation linked clearly to the Bill, specifically on sub-section 2B, which spoke to any person who could have been a holder of a land tenure right, had it not been for laws or practises that unfairly discriminated against them. In South Africa, all indigenous people had been unfairly discriminated against with regard to land because after forced removals, there had been no law that gave them the right or the ability to contest. Objecting or standing up against the laws meant that the indigenous people would get killed, and as a result of this, many communities were disintegrated, and families were torn apart.
RUDNET felt that the Bill did not address that part. It felt that everyone who had an interest in the Bill, which should be everybody in South Africa -- especially historically entitled poor and marginalised black people -- should be afforded use of the land and all the necessary requisite implements and material needs to get back to work the land. In particular, priority should be given to all established groups which were groups that had already shown their contribution and their working on land, and qualified individuals who had shown over time that they could ensure productive use of the land. This would open up agricultural and agrarian opportunities for the excluded and landless masses, presenting access to prospects for agriculture, as well as industrialisation for education, skills training, enterprise development and general social upliftment, including in various other fields that were value chain related, in terms of the arts, culture, tourism, sports, etc.
The primary target which the Bill must clearly portray should be addressing or assisting in empowering not just women, but also the youth, who were the majority of the unemployed people in the country. There were also people living with disabilities, especially in the far-flung rural areas which were which were remotely located. RUDNET would also want to see the Bill present a model that expanded on section 2C sub-section B:1D, that empowered the Minister to institute an inquiry on objections and conversions. That should be expanded to also include some form of power in terms of the Minister delegating such power to land reform commissioners or people that were empowered in that field, to establish some kind of representative structures or representative committees. Such committees and powers would then be able to sift through into the grassroots to protect the interests of the land beneficiaries in terms of post settlement support, including access to resources such as business planning, financing tools, equipment and machinery. This would ensure productive use of the land, whether on an agricultural basis, or houses or residential development. Agricultural programmes, by their very nature, were labour-intensive and should be contextually based, as one had to adhere to weather patterns and conditions to be a farmer. This was what RUDNET meant by contextual location of programmes.
He said that the integrated words, “rural land development strategy in tenure rights,” must not just give land and title deeds to people. It must also restore trust and confidence in the government to deliver on its mandate to the poor by rebuilding their self-reliance and their dignity. The Bill must cater for all, to guarantee productive territories and regions in the country, especially in the landless and destitute areas. Landless and destitute did not refer only to rural areas, as in the urban areas informal settlements and townships there were also landless and destitute communities. The COVID-19 pandemic had illustrated this very eloquently, and unfortunately exposed the reality of the situation in the country. It was a fact that people needed land to sustain themselves, and they needed it very quickly. RUDNET felt that the history of land ownership in South Africa in the last 26 years had worsened. What colonialism and apartheid had created in the country was that communities had become more alienated. As an academic and student researcher, the facts spoke for themselves to show that South Africa had become poorer and people were hungrier during this democratic era than they had been in the in the past. It was a travesty of justice and was not fair. The Bill must be asking whether South Africans and Africans in general were getting a fair deal of justice from the legislators in terms of the Bill, as crafted. What was the deal that the people were being offered in terms of land tenure?
Mr Madondo said that the model that RUDNET would like to see the Bill assist in, was to take previously disadvantaged people out of marginalisation, and communities must be afforded equitable use of land. The past painting of land tenure was favourable to whites, who were already at an advantage, so this title deed, whether it came in the form of certification of occupancy or permission to own land, must be cognisant of communities of interest, in particular those in needy areas and impoverished sections of society. Women, youth and people who were living with disabilities should also be prioritised. Land tenure should not be made possible at the expense of communities who had suffered land displacement and loss and humiliation through history.
As an organisation, RUDNET was working with the grassroots and had done a substantial amount of work on a continuous basis since it started. It had a number of people who came through its doors requesting assistance in securing land, or funding educational development and training. It currently had a number of students, including himself, who were assisted by RUDNET to fund their studies at higher education institutions. RUDNET had students who had graduated from different universities in the country, most of them specialists in the agricultural sector, and some of them currently doing postgraduate studies in different fields, doing Masters degrees and PHDs in agriculture and animal husbandry, crop production, entomology, viticulture, agricultural management, and environmental management in different provinces. RUDNET also had hundreds of links with various non-institutionalised and landless farmers, some of whom were urban-based. It believed it had the capacity to assist the legislation by creating a facility that would monitor and evaluate land tenure programmes, and currently there was neither a model nor mechanism in South Africa to monitor and evaluate the impact of land tenure. By utilising appropriate systems, RUDNET believed that it was possible to measure the impact of the use of such land. It had the capacity to develop real time systematic processes to collect and analyse data, in order to reach objectives and guide decisions.
He said the data that related to the “One-Household, One Hectare” programme was something that RUDNET could deliver on because it was the field in which they had been involved. They had tools that they had listed, as well as municipal links that they had created, and they used part of their programmes and were engaged with the integrated development plans (IDPs) at the municipal level. They also facilitate and host learnerships and workplace skills, workplace plans and community needs assessments, so they feel that through these activities they were assisting in terms of the outcomes that were more important for the country.
The Chairperson requested Mr Madondo to share the data about “One-Household, One-Hectare,” as the Portfolio Committee would like to bring it to the attention of the Minister and the Department. As a Committee, they we were not happy to see that the Department had managed to spend only 1% of its budget for that particular programme, and would like to make sure that those funds were used to helpthe people in rural communities, particularly women.
LandNESS, PLAAS and PARI
Dr Rosalie Kingwill, Research Associate: Institute for Poverty, Land & Agrarian Studies (PLAAS), University of the Western Cape, and independent member of LandNESS, said that in her presentation she represented LandNESS, PLAAS and PARI.
LandNESS was the Land Network National Engagement Strategy, and comprised 27 civil society members, many of whom had already given some of their own submissions during these hearings, so there were 23 non-governmental organisations (NGOs) and four independent members.
PLAAS was a research policy and teaching institution concerned with land and agrarian issues, particularly the challenges of restructuring landholding and agrifood systems in the context of chronic poverty and structural inequality in South Africa.
PARI stood for the Public Affairs Research Institute in Johannesburg, which employed high quality research to study the effectiveness of state institutions in the delivery of services and infrastructure.
LandNESS had three streams, and the one that was relevant to this submission was a task team on developing inclusive land governance in land administration systems. The other two were focused on small scale farming and fisher systems, and redistribution of and access to land. Dr Kingwill said that she was also a team member of a project under the offices of PLAAS and PARI and land administration, and was completing a diagnostic study in land administration on the problems in land administration for this project, where they planned to engage with a range of stakeholders and develop partnerships to strengthen learning administration institutions in South Africa. ULTRA was critical to all of the above, and was very critical in their diagnostic study in identifying many of the problems they had in land administration in South Africa.
Some LandNESS members had already made some submissions, and these, including that of the Land Accountability Research Centre (LARC) regarding their concerns in calling out sections 19 and 20 of the principle Act, ULTRA, were endorsed by LandNESS. These sections on land were very anachronistic and out of step with the constitution, that they considered them dead in the water. Their submission was concerned with the more insidious aspects of the principal Act if it stayed on the statute books with only the proposed amendment. The approach taken to tenure security was faulty, and the approach taken in ULTRA, as well as the whole process, was faulty.
What it had meant over the last 30 years that the Act had been in place, was that it had been impotent and ineffective and had not achieved what it was meant to achieve in terms of providing legally solid land rights to the majority of South Africans. ULTRA stemmed from a very simplistic understanding of land tenure that was informed by a mindset of panic during the dying days of apartheid. The colonial regimes turned some of the customary rights in South Africa into quick train deeds of grant, permissions to occupy (PTOs) and so on, assuming that by simply changing them into these kinds of tenure systems, it could automatically get rid of all the customary norms that sat behind them. The evidence of time showed that one could not simply change the content of a learned right by the stroke of a pen, because behind every land right was an entire system of administrative and social support structures. It was based on norms, on customary norms, common law norms, etc. The focus had to be as much on the administrative support structures or institutions that strengthened the governance of land rights as on the details in the tenure act or the record of the document. The focus should be on the institutions, which was an opportunity to shift focus to the institutional side of strengthening land rights and capacitating the state to do so.
Dr Kingwill said that land administration was the operational side of land governance and land tenure in terms of how rights were made real by giving meaning to land rights. It was fundamentally problematic to refer to strengthening land rights in terms of upgrading. Sections two and three of the principal Act referred to the ‘upgrading’ of schedule one and two rights, which was a flawed notion. They were not opposed to conversion if it was voluntary, constitutional and did not infringe on the rights of family members and customary rights and other third-party rights. They were very pleased that the Amendment Bill introduced these new sections that provide a different approach to conversion of land rights. The approach taken in the Amendment Vote was a very important critical shift away from the systematically automatic approach to upgrading. It moved to an application-based approach, and they approved of this. An application-based approach introduced a whole new dynamic to conversion, because it now became voluntary and it became conditional.
From a land administration perspective, they felt that South Africa did not have the necessary institutional and administrative infrastructure to deliver what was implied in this role. The minimum Amendment Bill provided no process for budget and for the means to strengthen the states administrative capacity to adjudicate, administer and process rights such as those envisioned in ULTRA. When these circled upgraded rights reached the deeds registry office, they should have a rigorous process of adjudication and conflict resolution. Without an administrative process, the only recourse people had was to the courts, but their submission was the court should be the last resort, and not the first resort. The first resort should be administrative processes in terms of administrative justice, or just administration for all South Africans.
She said that LandNESS was extremely concerned about the implications of the Bill, and there needed to be a return to the principal Act. In their endorsement of the approach taken in the Amendment, they felt that the Act as a whole was fundamentally problematic. The trade from automatic to application-based, however, did give a perfect opportunity to review the whole principle Act. They were calling for a complete review and re-drafting of ULTRA, and proposed that it be renamed the “Conversion of Land Rights Act” (COLRA). There should be no connotations of upgrading, and only voluntary, only by individual choice of the applicants, only with the free prior and informed consent of the family and the community. This re-drafting should focus purely on application-based processes to convert any legally recognised rights according to the current laws, which were a purer labour tenants laws, provided that a full process of legal and administrative conditions were made first. Schedules one and two were completely a blast from the past, and the language and framing must be removed, and the kinds of rights that were eligible for conversion must reflect the current laws that were labour tenants rights. These legal and administrative conditions should also be part of the legalisation of other rights that were not converted in terms of a Land Records Act.
The legal condition that should be met for ‘COLRA’ was that the application had to meet all the criteria of qualitative qualification, and with full access to the state’s administrative infrastructure to adjudicate, resolve conflicts and mediate. There must also be a support structure to assist people to keep their registers up to date every time. That meant one also had to commend the Land Titles Adjustments Act that was also passed at the same time as ULTRA, which was meant to try and help keep registers up to date, but it had been totally ineffective up to now for reasons that were too complicated to try to explain. The Land Titles Adjustment Act should be absorbed into the COLRA, as the two Acts were intertwined and one found that when people registered the rights, they often did not keep the register up to date.
She said that the administrative conditions were that the Department must provide an entire support structure and system to enable conversions to meet all the criteria, to ensure that no one’s rights were infringed, and to provide a legal and administrative system to enable this process to proceed to meet the constitutional imperatives of administrative fairness and administrative justice. Critical to this submission, was the proposal for the Land Records Act. The Land Records Act would apply to all those rights in the labour tenants rights that people did not want to choose to convert, or that did not meet the criteria for conversion, as many family and community rights were overlapping and interlocking, and they did not fit the criteria of survey that one needed for a free title. These rights should be legalised in terms of the Land Records Act, and must also have an Adjudication Act as part of it, because an Adjudication Act was needed to provide the criteria for the content of those rights. For example, who in the family or who in the community qualified the right to be recorded in terms of the Land Records Act? The Adjudication Act was needed to provide those criteria that ULTRA did not have.
There also had to be a Land Administration Framework Act to provide the systems and structures for the entire administrative support to adjudicate, record and hold rights and records in an integrated land administration system, with an integrated land information and data system. There needed to be an institutional strengthening of the entire institutional setup. That was what made rights real. The free right title was not real just because there was a document in the deeds registry or in one’s drawer at home. It was real because there was a whole administrative support structure in South Africa supporting it. ULTRA was currently operating within a context of grave institutional weaknesses in the current land administration system. There needed to be accessible district officers to administer the rights that were listed and recognised by all the other land rights laws and would now become part of the land records system and education system that they were proposing. There needed to be an integrated and interoperable national land information system, with the capacity to collect and disseminate a range of land-related data, social, legal and biophysical in one side of registered and currently unregistered rights and this land information must be freely available. They were in touch with a lot of organisations and land surveyors who had access to new technologies using Geographic Information System (GIS) and Global Positioning System (GPS) to develop a fit for purpose land administration system for South Africa, and these were becoming more and more widely practised in other African countries.
Nkuzi Development Association
Ms Motlanalo Lebepe, Executive Director: Nkuzi Development Association, said the association was also a member of LandNESS, which was a platform for civil society organisations that worked on land governance policy processes in the country, and was also a member of Tshintsha Amakhaya Alliance, the Rural Women’s Assembly, and the Alliance for Rural Democracy. The organisation worked with farm-dwellers, farm workers, smallholder farmers, people in communal areas, and those who were affected by mining in the province. The groups that they worked with faced different kinds of challenges, which involved tenure security, disposition of land, as well as continuous deprivation due to land development initiatives.
This presentation was not focused on the Bill, but rather on the process of public hearings. It was inevitable that they had all beeb caught by surprise by the outbreak of the COVID-19 pandemic and as a result, they needed to relook at the way they worked as government, the lawmakers, civil society and businesses. One could not use the pandemic to further exclude other people who were meant to participate in these processes as the lawmakers. They had also noticed that the Portfolio Committee had extended the public hearings until 28 August, but felt that that was not enough given that South Africa was a very big country, with lots of people who were within the rural areas and the majority of those people did not have the means to connect virtually like the few of us who were able to get a connection. As an organisation, they needed to consider making the process as inclusive as possible and give it more time, instead of holding a few virtual meetings. There should be sufficient preparation for the public, in order for them to be able to make meaningful contributions and engagements with the ULTRA Bill and allow an opportunity for people to read about the Bill and engage it in their mother tongues. By doing this, the Portfolio Committee could also avoid a situation whereby rural people became spectators when things were happening, and were treated as if they were not part of the entire public citizenry of South Africa. This meant they ended up being on the receiving end, and did not enjoy the benefits of being part of the citizens of the country.
She said that the Nkuzi Development Association recommended that since the various government institutions had embarked upon the model of a district approach for service delivery, for the inclusive consultation one needed to consider the district approach and that approach would also dictate how many stations should be held at a district or province, looking at the vastness of each district, because each and every province had its own distinct features which would also dictate how best to ensure inclusivity in the process of consulting on ULTRA.
The Chairperson said that as a person who also came from a rural village that was located in Mvezo in the Eastern Cape, the Portfolio Committee was very cautious of the fact that the hearings needed to attract the vast majority of the people in rural areas. The reason that the public hearings had been extended for two and a half days was merely because it had received more that 480 submissions from people who would like to make verbal submissions. The Committee was currently looking into that and assessing which people it was speaking to, and should there be more requests, it would continue to request from Parliament more days to ensure that it fully exhausted this process. He hoped that the more it communicated through radio stations, reaching out to the masses, it could receive more submissions. It was truly biased and leaning more on the rural communities because it wanted people from the rural communities, particularly women, to have their say.
Congress of Traditional Leaders of South Africa (CONTRALESA)
Inkosi Mwelo Nonkonyana, Chairperson: CONTRALESA, said that as they had indicated in their submission, the issue of land was really an issue that was close to the institution of traditional leadership in South Africa. At hand was the issue of upgrading land rights to certain individuals, and whilst the point was being made there, they had highlighted that from the institution of traditional leadership, they were actually covering the issue of communal ownership rather than individual ownership. They also had a problem with the constitution, particularly in terms of individual rights rather than formal rights.
Hosi Aaron Mahumani continued that CONTRALESA would love to see legislation that would also address traditional communities, which were communal in nature. Land was a very important natural resource for human development, and royal leaders performed functions as provided for by the customary laws and customs of their traditional communities, which included the administration of land, as well as given rights by the applicable legislation. This was done in a fragmented manner, because one would realise that in the rural communities, in the past it had been illegal for black men to own land and in the new democratic and current disposition, the Minister of Agriculture and Rural Development was regarded as the de jure land owner and royal leaders were regarded as de facto owners of land, which should be the other way around.
It was quite difficult for people in these areas to utilise land for socio-economic development, because the rural communities did not have funds to develop land optimally. In terms of the Bill itself, they were aware that it mainly concerned schedule one in this principal legislation, while the issue of proclamation R188 of 69 and the communal or traditional customary law on land was actually reflected in schedule 2. If the provision of section 20 of the principal Act could be looked at, it would be resolving the question of land in the rural areas, because it gave powers to the Minister to transfer tribal lands into traditional authorities and where land was not surveyed, the Minister would be inclined to appoint a surveyor to deal with that issue. In the rural areas, traditional leaders currently did not own any land. Some lands were surveyed state land and black people, especially in rural communities, were not benefiting in this regard.
Referring to the legislative implications of the Bill, he said sections 211 and 212 of the constitution dealt with the status, role and function of traditional leadership. This section was not completely addressing the plight of their rural communities or traditional communities, because section 20 needed to enjoin the Minister to say that where there was no contest or dispute on traditional land, the land should be transferred to the traditional authorities instead of individuals. The land should be transferred to a traditional council that could administer the land on behalf of peaceful people in a democratic and customary manner.
The interim Protection of Land Rights Act of 1996 was extended annually because there was no legislation in place to address land ownership in the communal area. The Bill was targeted at section 7A, which had provision in substantial measures to deal with section 4. The functional area competency of the national government, and the indigenous law and customary law, was very difficult when dealing with this issue. The objective of the Bill was the application for conventional land tenure rights ownership. CONTRALESA did not promote an individual land ownership area because individuals had homes and families, where people could collectively enjoy the rights of using a piece of land to live. In traditional communities, there was no discrimination because people were not looked at as individuals in terms of land and ownership -- the idea of family was endorsed. With family, there was also the benefit of inheritance, which passed on from generation to generation in respect of a family that was allocated a piece of land.
Section D of the Bill states that an inquiry had to be set by the Minister to assist in determining the impact made by the decision relating to the completion of tenure rights. CONTRALESA proposed that the Minister delegate certain powers and responsibilities to other entities in this regard, because it required a lot of applications coming from different areas and it would not be feasible or helpful if was the Minister who had to determine the facts and make decisions. There should be a delegation of powers to a legal entity mandated by the Minister to deal with these issues in order to fast-track the conversion of the land rights.
Hosi Mahumane said that in terms of schedule 1 of the Bill, which related to regulation or administration and controlling of townships and black areas, CONTRALESA had no objection to this, as it did not have any direct bearing on the black areas’ land regulations. Most importantly, there was no objection to paragraph four of the principal act, which referred to rights to occupational travel lands granted in indigenous law or customs of the tribe in question. This was not discriminatory, as women were also allocated land for occupation and for commercial purposes. Paragraphs A, B, C and D had no direct impact on the institution, and section 19 of the Act dealt with the legal capacity of a tribe to obtain property, and section 20 dealt with the transfer of tribal land.
Clause two of the Bill sought to amend Section 4, which provides for the contents of land tenure rights mentioned in chapter 1, pending conversion. This amendment would ensure that a person who had been discriminated against in the past could also become a holder of land rights, pending conversion contemplated in section two of the Bill. The traditional institution was communal and embracing in nature, more focused on promoting family values and social justice and social cohesion. CONTRALESA had confirmed that any citizen who was not satisfied by any action had an option to approach the courts to seek legal recourse to get an appropriate relief which related to old order arrangements and the new order. It supported that traditional authorities may actually be given an opportunity to start owning land for the first time in the history of the country.
CONTRALESA’s recommendations were that all tribal land be transferred to traditional authorities. This Bill should consider applying to communal land and traditional authorities to create a single legislation dealing with the transfer plan to address all their concerns and challenges. They were submitting their comments for consideration, and request that the institution of rural leadership be taken seriously when it came to the Bill. Rural leadership’s main objective was to ensure the wellbeing and the welfare of the vulnerable communities, and to protect and preserve the land as its main natural resource to unlock opportunities for wealth and heritage, and to sustain the present and future generations.
CONTRALESA and the rural leadership had made various inputs to various Portfolio Committees, but had not received joy in the past because its inputs had not been considered. There had to be enough budgets if ever this legislation was to be passed and implemented in a proper and credible manner to benefit the beneficiaries of this legislation. Also, there should be more time allocated for traditional leaders to consult their subjects on such Bills, in order to help create public awareness and further involve the communities that they rule, so they can hear what they need the Bill to address. During COVID-19 outbreak, they could not reach all royal/rural leaders and all communities to actually articulate the position of where they wanted this Bill to intervene, and what they wanted it to achieve.
Ms M Tlhape (ANC) asked about the stance of RUDNET regarding the Bill, and whether they supported it or not. They had spoken about access, and this Bill seeks to achieve that in terms of individual access because people could not use land if they did not have access to it. The Nkuzi Development Association, spoke of the issue of casting the net wide and making sure that everybody else was represented, and had emphasised inclusivity on issues of participation in this Bill, but there was a confusion in terms of who they represented, because from yesterday the Committee had had organisations that stood for, or represented, marginalised groups. She asked whether the Nkuzi Development Association saw those organisations’ participation in the Bill as not adding value in terms of those they were representing. The Committee did not dispute that it needed to reach out to as much people as possible, but it also became a problem when an institution or an organisation felt like they were not adding value because the Committee thought they were samples of the people they were representing. CONTRALESA must explain how they assisted the government in the townships to achieve uniformity in access to land becauseevery weekend after burials, for instance, women, widows and orphans were thrown out from their husband’s or parent’s properties. She also asked whether CONTRALESA had looked at other aspects and incidents of what was currently happening in South Africa in terms of uniformity and what the Bill sought to achieve.
Ms N Mahlo (ANC) wanted to understand from the LandNESS presentation how the Bill could be amended to realise effective land administration in light of the Spatial Planning and Land Use Management Act (SPLUMA). She asked whether LandNESS thought that the proposed amendment to the ULTRA Bill would have a negative impact. Lastly, she asked whether LandNESS considered the fact that the conversion of the ULTRA Bill into ‘COLRA’ and the creation of a new Land Systems Act would result in a lot of red tape and major delays in the realisation of land reform programmes in the country.
Ms A Steyn (DA) thanked Dr Kingwill from LandNESS for all the proposals that she had put forward, and noted that there were a few things that the Committee could look into. She considered the one specific idea about the proposal not being called an upgrade was itself a very good one, and she would also like to see some kind of presentation or some ideas on the proposals regarding the land surveyors. The Committee had asked some questions in the past about the surveying of the un-surveyed land, which could be a challenge if one wanted to look at upgrading or conversions in communal areas. She asked the CONTRALESA representatives what they thought would happen differently to land where a title was given to traditional authorities that would be different from the current situation, and how that would assist in traditional areas. They were hearing too many stories about women still being kicked off the land and while it was not happening everywhere, but it was still happening. She asked for help to find a way to assist widows and orphans to secure ownership of their spouses’ or parents’ homes after they were deceased.
Mr N Matiase (EFF) said that RUDNET need to explain in detail what they meant in their submission that that they proposed that there should be a countervailing measure to protect the rights of people against the rights of individuals. LandNESS needed to explain the fundamental change that would happen in changing the name, rather than changing the substance of the Bill. They had also identified various flaws in the Bill and among those flaws, they had mentioned the lack of administrative adjudication through a failure to convert rights already surveyed by the Act, which had been in existence for 29 years, and he asked what they proposed in both cases. He asked LandNESS to explain why there should be an additional body for adjudication, and for an explanation of de facto family rights versus de jure individual rights.
He asked if the CONTRALESSA representatives agreed with the late President of Mozambique, Samora Machel, that for a nation to be born, a tribe would have to die, and whether they were prepared to any extent to ensure that as land was being parcelled out, at the centre of that project was building a single nation. The Committee understood the urge from the people to want land to be parcelled out, because for ages they had been seeing white people enriching themselves from the national resources at the doorstep of the African people. If private land ownership had worked for white people and had made them so rich and arrogant, then that justified the urge and demand from “our people” that land must be parcelled out to individuals and private individuals at the cost of building a combination route and building a society far from exploitative forms of power.
Ms T Mbabama (DA) said Dr Kingwill’s proposals had given her food for thought. She asked the CONTRALESA representatives how they though the transfer of land to traditional authorities would work and how they would be able to mitigate the corruption that was happening among some traditional leaders.
Ms T Breedt (FF+) said that a lot had been said about the adjudication process, and that the Bill made provision solely for the Minister to make decisions, and that was something that the Committee may need to discuss and take into account in order to make the Bill more inclusive. She also enjoyed Dr Kingwill’s presentation, and thought that it had given them something to chew on.
Inkosi R Cebekhulu (IFP) asked about the view of CONTRALESA on allowing all the land under traditional authorities to be under the kings’ trusts, so that they could had a clear structure on how land was administered by not entrusting it to individual tribes, but to kingships as the land trustees in traditional communities.
Ms K Mahlatsi (ANC) asked RUDNET what initiative it had taken in making sure that matters of indictment of the Portfolio Committee and legislators came to the fore, and what they would do to deal with issues involving the landless and the marginalised. She asked about the mandate of the organisation as far as this question was concerned. She asked Dr Kingwill about the constituency represented by her organisation, and how many African women or black Africans were represented in it. Did it include rural semi-literate women, and how did they conduct research? What did the organisation feel about the expropriation of land without compensation, and did they think it would assist women? The Nkuzi Development Association was asked to state its view on how the Committee could do public participation to ensure that women who might not necessarily have access to platforms, were represented, given the timelines and limitations. Lastly, she asked CONTRALESA what their attitude was regarding women becoming sole beneficiaries of land, in light of the Concourt judgment, and what they would propose in contrast to the judgment.
Mr N Masipa (DA) asked whether CONTRALESA was not concerned about the under-utilised land in rural villages, such as that in Limpopo, due to the surge of people migrating from rural areas to cities to look for job opportunities. It was important that CONTRALESA addressed the Committee on economic opportunities and the migration that was leaving most parts of the rural areas not occupied or not being utilised effectively.
The Chairperson asked CONTRALESA to try and clarify the role of traditional leaders as far as land was concerned, particularly taking account light that the first wars of dispossession conducted by colonialists had affected traditional leaders first and foremost. Traditional leaders had waged wars against the dispossession of land for over two centuries, and having been dispossessed, they were forced into a mere little percentage of land that equated to just under 13% of land through the notorious Land Act of 1913. This had been a mere consolidation of the 87% of land that had been given to white minorities. The Chairperson asked how it could be ensured that in dealing with this process, land was rightfully handed back to its rightful owners and that women, in particular, were also beneficiaries of such land.
He asked the CONTRALESA representatives whether the traditional leaders, where they were located in rural communities, were afforded budgets to be agents for development, since Mr Masipa had mentioned the shift of rural communities moving to urban areas due to a lack of resources that left the land lying fallow. He asked whether that was an indictment on traditional leaders, or all of those who held budgets that were set out by the government, such as the Minister of Finance, who were the true agents and drivers in terms of the implementation of budgets in rural communities.
Rural Development Network
Mr Madondo said that the crucial information that the Chairperson had dispensed regarding the question of the traditional leaders was very valuable because, in addition to the oral tradition, South African history had been written by the coloniser who had dispossessed the land from the indigenous communities. However, there were people who wrote who were non-partisan, and gave the history in line with the truth of what had happened and it would be very important for society in general, specifically people who were development-orientated and people in leadership, to get acquainted with the truth. A census had been conducted in 1652, another in 1657, and then in 1750 and then in 1860. Those census statistics gave an indication of exactly what was owned by the time the oppressors or the colonisers came, so it would do good to the process to search deeply in order to know exactly how they got to where they were today, with only 14% or 13% of the of the land owned by over 80% of black people.
He said that RUDNET was moving from a premise that said a matter of fact attitude to land inequality in South Africa must come to an end, and it must come to an end soon. It supported what COSATU had said yesterday, that as much as they would like to see a very engaging and in-depth process, things needed to start moving. One could not pretend that land dispossession was an organised process that took years. It had been haphazard and had happened very fast at the barrel of the gun, so the law must match that type of pace -- it must be very swift.
In response to Ms Mahlatsi’s question about what RUDNET had done and how it contributed to the development of women and efforts to restore land rights, he said that RUDNET was a non-profit grassroots-based organisation whose credibility was based on its vision of the empowerment of vibrant and prosperous rural communities. People moved from rural areas to go to the townships, going to the squatter settlements searching for a better life. There was an alternative, in that RUDNET could make the land work for the people instead of people cramming themselves into townships without any good quality of life. RUDNET had done a lot of work and produced a number of graduates. Most of them were farmers, but they did not have land and on a continuous basis, RUDNET did work on capacity-building, economic empowerment and human resource development, and drove industrial relations between farmers and farm workers and families living in farms. RUDNET also did socio-cultural development in sports, arts and a whole lot of other activities. In terms of the rights of individuals and groups, it would like to see a great deal of monitoring and evaluation, because it believed that the law did not make provision for that, and RUDNET had the capacity to assist the Bill with that.
Dr Kingwill responded to Ms Mahlatsi’s question about who LandNESS represented by stating that the organisation consisted of 27 civil society members who were NGOs. Many of them had made their own submissions. They were almost all grassroots organisations that worked on the ground and in the field, and many of them were activist organisations. They all had their different priorities, so each of them had dealt with the important on-the-ground issues. She was part of a project on strengthening land administration in LandNESS, and had been mandated to talk about land administration in a more abstract way, in the sense of building institutions. The organisation was informed all the time at its meetings by the voices on the ground and by women. She was not mandated to speak about the Land Expropriation Act, because each of the organisations under LandNESS had made their submissions on the Act.
Referring to the questions about adjudication, she said the point was not referring courts, but the opposite of courts. because it was administrative adjudication. For example, the process of checking the deeds registry was a form of adjudication, because they checked whether or not there was an infringement of people’s rights in the deed, and whether or not a person had a right to get that title. In the community it was what was called “land rights inquiries,” In the family, it would be called an inquiry into all the members of the family and what their rights of access were. It was an administrative process, and it was needed to deal with the criteria on how to duplicate customary family rights that were different from individual rights. The Land Claims Court, Concourt and High Court were the last resorts in this matter, meaning that this was an attempt to find a way that avoided having people having to go to court every time there was a problem. Adjudication did not refer to only disputes, but was there to adjudicate who had the right in the family and the community to that right. If there was a dispute, there must be special dispute resolution institutions as part of this process to mediate conflicts.
The idea of changing ULTRA to the Conversion Act was very fundamental to their submission. They wanted this to deal purely with conversions and the other laws deal with the way in which rights were held -- for instance, the Land Registry Act and the proposed the Land Records Act that would be the laws that held the rights. ULTRA should just focus purely on conversion -- people applying to convert their rights because that was what ULTRA was meant to do, but it just did not understand customary rights and did not understand processes or purchases that were appropriate. The idea of changing it to just a conversion act rather than upgrading was very fundamental to their submission, because an upgrade implied that whatever right one had was a lesser right, but conversion just meant converting one’s right from this type of right to that type of right. Family rights were a bit different from individual rights, because often family members represented intergenerational family rights, so it became a whole family over time and space, and it required a different form of recognition and adjudication than purely individual rights that one registered, and then one could sell land without necessarily getting the consent of the whole family.
Nkuzi Development Association
Ms Lebepe said that Nkuzi was a land rights advocacy organisation, and that meant that they were an interested party, not an affected party. The association worked with people who were affected, and it was important for the people who were affected to speak on their own regarding their views on the Bill. Its presentation could not be seen as a representative submission, but should rather be seen as a presentation of an interested party. In response to Ms Mahlatsi’s question, its proposal was that for it to get to the input of rural women, it needed to go to different districts and convene them within the COVID-19 guidelines and get their input on the Bill, instead of just talking to organisations. Movements were also relevant, but it also needed to go to different districts and within those districts there should already be information in parliamentary offices as to who was who in different districts of South Africa. In that way, it would be able to cover the country for presentations by different people who were affected by the Bill.
Hosi Mahumane said that history was clear in depicting that their forefathers fought to defend and to protect their ancestral lands. Land was a serious natural resource, so it was important that government supported all traditional leaders in their respective areas with land development. They had emphasised the point that as traditional authorities, they were regarded as organs of state, but when one looked into government practice and how all organs of state were resourced financially and in terms of human capital, it was only the traditional authorities in South Africa that did not have budget allocations to run their own administrations. If the Department of Agriculture could allocate an annual budget according to the needs of the rural communities with the traditional authorities, that would go a long way in optimally developing land which was fertile in many areas.
The issue about people moving to cities, leaving their lands fallow, also went together with the first question, because even if people wanted to cooperate with the traditional authorities or individuals to farm and produce food for the purpose of food security, black people remained poor while they were the rich in terms of land. They could not utilise the land because they did not have the financial resources to help them to buy equipment, and if government could also support them in that regard, they could reduce the number of people relocating or migrating to the cities.
Referring to mitigating against corruption, had said there were a number of traditional authorities in South Africa, but there were a very few of them who were corrupt. Their forebears had fought for the land they cherished, and they maintained their lifestyle to actually preserve, promote and protect the land. Some of them were not driven by money or by people selling land and getting involved in corruption. They were trying by all means to say they were custodians and stewards of the land, and they had to protect, promote and preserve it for the present and the future generations. He would like to appeal to those who demonised the institution of traditional leadership as corrupt, as one could not say the whole country was corrupt because certain individuals were corrupt. They were trying by all means to make sure that they preserved what their forebears had fought for, and would not compromise on that.
Inkosi Nonkonyana responded to Ms Tlhape by stating that South Africa was indeed diverse, and during the negotiations for the ‘new’ South Africa, they had been conscious of the difference, hence the saying ‘united in our diversity’. On the question of land, there were two different systems at play -- the individual land tenure system and the communal land tenure system. Those who were republicans in the country were in support of the individual land tenure system, and CONTRALESA was promoting the other. Fortunately, Chapter 3 of the Constitution was very clear that there should be cooperative governance in this country. In other words, they must live and understand each other, and that they were distinct.
Regarding transformation, the institution of traditional leaders must also be transformed so that all those things that put others at a disadvantage, including women and children and people with disabilities, must be discarded. CONTRALESA had proposals and an agreement with the Department of Land Affairs that land would be transferred to the traditional authorities as far back as 2018, but they had not done so up to date. They were of the view that traditional authorities were capable of administering the land.
Lawyers for Human Rights
(Please note that some parts of the presentation were inaudible)
Ms Louise du Plessis, Attorney: Lawyers for Human Rights (LHR), said she would highlight a few issues in the Bill of concern to her organisation. It was good that the Bill was going from automatic conversion processes to application processes, but the concern was mainly about two issues. One that had been raised a few times yesterday, was the way in which people would get notice in terms of the Gazette. They felt there must be more action from the government to investigate these matters – as if they were trying to do the Conversion Act. The second issue was that they were not convinced that the right body to deal with this issue was indeed the Minister in the national department, and that it might be better if it was the local government that had the function to investigate or to deal with conversion issues. The Gazette issue could be compared the process of eviction, in that when one wanted to evict somebody, one needed to go to court and motivate specific court orders to inform people that they might face applications for eviction. There was a duty to make sure that people were aware. In this case, one might lose his or her property, and it was covered only by a Gazette that not many people read.
Referring to section 14 (a), where people could reapply if they felt they were supposed to be the rightful owners of a property, she did not think there was a single person who might make use of that judgment to go and see if she could get some of the property that she had lost out on because she was a black women. They were of the view that there could be a simpler process, especially because this process was already not so difficult in the deeds office, as one does not need to have title deeds, and it was a simple note of enforcement against the property that would give one ownership of the property. Their proposal was that one must think about a simple process in which the people who felt that they had lost out on their houses because of the fact that they were black, could come forward. The Issue here was that there was the Conversion Act and the ULTRA which would deal with people’s rights, and that confusion was going to cause problems for everyone. At least at this stage there might be more support for the Conversion Act, because there was more of an investigation to find out who must be the rightful owner of the property in the future. The fact that ULTRA was going to be applicable across the Republic was the problem, because there was going to be a clash with the Conversion Act, and that was a concern.
The country had missed out on a good opportunity to get the family home recognised as an entity, and to have it registered against the title deed. The crisis they were dealing with was the cases where women were getting kicked out of their family houses. The ULTRA might be the Bill or the Act that could deal with that issue and avoid the LHR from continuing the litigation it was currently involved in.
Ms Mahlo asked for clarity on the proposition by the LHR that the family institution be recognised as an entity, given the fact that customary law was not applicable to urban areas. She also asked what their proposition was under common law – whether that could be the most appropriate legal entity that could be used as a vehicle for registration of a title deed, and whether it could be done under the family trust.
Ms Steyn shared concern on the issue of family homes, and asked whether there were other legal challenges that might arise with the ULTRA Bill and the Conversion Act. She also asked for more information about the sectional title.
Mr Matiase said that before even thinking of extending human rights to all South Africans, one had to overcome the superimposition of the common law, which liberal academics, the political elites and organisations such as the Free Market Foundation preferred over customary law. They preferred it because they viewed it as superior over customary law. They even preferred freehold land tenure rights over this route, and all other forms such as communal land. He asked what legal practitioners did, or offered, to resolve the problem of the superimposition of common law in order to ensure that there was a single system which could be extended across the country.
Ms Mbabama requested more clarity on the concept of the family house in urban areas.
Ms Du Plessis disagreed with Mr Matiase’s statement. She did not think common law was not protective enough, as in the last few years common law had been very successful in ensuring that communities did have rights. They had also used the common law to say if a community had used land for a long time, there was some right that had vested.
Regarding the family house, she did not think customary law was not applicable in townships. It was applicable everywhere, and the family house concept was a well-known custom in the black townships, where women could stay there and move out, and then come back when they got divorced or when their husband passed away or any other reason. The case that the LHR had tried to make was to say the court or the government had to recognise the concept of a family house in terms of the customary law, and then that entity must be registered against the title deed. The rules about a particular family house would depend from family to family, because that family determined its own custom. She did not have information about sectional title, and did not have a view on the matter.
Mr Matiase said that his question was on the duality of the South African legal system. The common law was a foreign concept in Africa, and had been superimposed and had priority over customary law.
The meeting adjourned to cater for load shedding.
Resumption of meeting
The Chairperson reconvened the meeting and said there were people who had been invited through advertisements on the public hearings, and about 40 submissions had been made. Of those submissions, it had been concluded that all those presentations would be finished by the end of the day. There was an issue that had been raised that some of the people who were meant to submit their submissions and present, had not done so, and some said that they thought they had been invited to listen. The Chairperson requested guidance from the Members of the Committee on how to move forward.
Ms Tlhape suggested that the Content Advisor allow for five or six minutes just to give those who were supposed to present a background to the discussions, because they had come with the expectation of coming out with something, so that when the next speaker presented, they would at least have a background of what was going in at the meeting. One should not just send them away, but give them the benefit of gaining something from the meeting.
Ms Mahlo said that she fully supported Ms Tlhape’s point, and said that the Chairperson would have follow up on the issue because people could not come to meetings in future without knowing what they were supposed to do. Communication needed to be checked because people had to be informed by these hearings. The content advisors needed to explain their side of the story.
Ms Steyn and Ms Mbabama also agreed that the content advisors needed to explain their side of the story.
Mr M Montwedi (EFF) said that he was not sure that the content advisors would be able to speak on behalf of the people who were supposed to present, as he did not know if they would be satisfied that whatever they had put on to paper had been sufficiently explained in the Committee. Perhaps there should be consultation of the legalities around that issue.
Ms Breedt agreed
Ms Mahlatsi agreed with Ms Tlhape’s suggestion, and added that the content advisors should indicate to the people who were supposed to present on the side lines what was supposed to be done, because if they had done the presentation themselves they would know the content of the information in the submission that they had made, and would be able to speak to the issues that were in the submission. The content advisor had to speak to them on the side lines and indicate what was expected of them, and allow them back. If they were unable or not ready in that regard, then the content advisor could take the Committee through.
The content advisor advised the Chairperson that there were some presenters who were ready to proceed.
The Chairperson said that the discussion should be put on hold, and proceeded with the next presentation.
Tshisimani Centre for Activist Education
Mr Siviwe Mdoda, Land Justice Educator: Tshisimani Centre for Activist Education, said that the role of the Centre was to assist activists from entry-based organisations with their education needs. The basis of its input at this hearing would be around efforts to make people aware of the important matters so that they could make informed contributions to these processes out of respect for the work of this Committee.
As an education NGO, what it said here about the Bill was based purely on its education programmes, Tshisimani had taken it upon themselves to interact with various community groups, particularly those that were involved with issues of land and housing. It wanted to advocate and plead with the community to think of giving this process more time, so that more people could be able to participate. The Covid-10 pandemic and load-shedding had impacted on people's ability to meet and discuss these matters, and their ability to connect with these processes. Their experience had been that working online was extremely difficult because it tended to exclude people one did not intend to exclude.
In their consultations, they had found quite a bit of difficulty with people understanding the content of this law, as well as appreciating that it impacted on many aspects of how people lived in the urban and rural areas. They had also needed to reflect on the earlier process, when there had been an ad-hoc committee conducting consultations where people were being asked whether they would like the government to expropriate land without compensation, because more time had been given for the consultations. The complexity of land tenure did require more time for more people to participate and ensure the process was not open to a constitutional challenge, which would necessitate the government to redo this process.
He proposed that if the Portfolio Committee decided that they would like to extend this platform and get to hear more people, a partnership with community-based organisations be considered, because with these issues local knowledge would be very important. Other mechanisms could be explored so that people who were not able to link to this platform could have their views taken on board.
People’s Housing Assembly
Ms Kashiefa Achmat, Chairperson: People’s Housing Assembly, said that as a movement that worked within the both the rural and urban communities, it wished to emphasise three points that it considered critical.
The first point was on the content of the ULTRA Bill. They wanted to make it clear that they did not agree with the format in which this consultation process was being conducted. They did not agree with the virtual consultation process, as they felt that it grouped people on the basis of the assumption that every South African citizen who was affected by this Bill had access to online information and social media. In addition to this, the Government Gazette was inadequate as a platform to disseminate information to the public. They proposed that the Portfolio Committee consider a wide range of possibilities to disseminate information, like publishing in newspapers and community media, and also having it readily available at local municipal institutions.
They were also opposed to the manner in which the Bill was to be amended, and the constitutional process in which it was being conducted was not allowing for thorough reflection and consultation on the process. The Housing Assembly’s view was that the objective should not be on the date to finalise the Bill, but rather to ensure justice and consequent land tenure was secured.
The Housing Assembly commended the progressive move to rid the constitution of its discriminatory nature based on race and gender inherited from the apartheid regime. However, ULTRA would be ineffective if it did not take into consideration restitution and the redistribution of land. It already involved and implicated a number of sections within the constitution. It proposed to amend section 2.1 and 25 a, but also implicated Sections 1, 3, 14, 19, 20 and 28, which was a clear indication to the Housing Assembly that more needed to be done. She welcomed the shift from the automatic conversion of land to an application process in terms of Section 2, as well as the intention to amend section 25 of ULTRA to extend applicability of Section 3 to the entire Republic of South Africa. As a step in the direction of moving away from a two-tier government system, the Housing Assembly proposed that the process of the application to the conversion to title deeds should be accompanied by a process in which those who already had a title deed would be subjected to an application confirming their rights to ownership.
The Housing Assembly felt that the amendment was vesting too much power in the hands of the Minister and the Department. When it came to a determination and inquiring into the application to convert and with an under-funded Department, the Minister would not have the resources nor the capacity to process all claims and applications to convert, and the objections. The very citizens which the amendment wanted to make beneficiaries would become demoralised and delayed and dragged in and out of court, and the application processes would seem only to waste their energy and resources. Centralising so much power in the Minister would leave everyone else in a queue of a bureaucratic process, trying to access the rights assigned in the constitution, in which only alternative was to go to court. The Bill should also consider tracing who gave pieces of land particular individuals, as they caused problems in communities where people had lived on those lands for a very long time. The Bill needed to look into the families who lived on those particular lands in terms of how long it should take them living there in order to be considered owners of the land.
Singabalapha Housing Movement
Ms Barbara Vuza, Chairperson: Singabalapha Housing Movement, said it was a community-based organisation that was started in 2003. Because it had seen the housing backlog in the Western Cape, it had taken it into its hands to help the government, because it had buildings and pieces of land that were not being used. Some of the buildings were so big that they could house more than two hundred families, so it had occupied the buildings. Her own background involved eviction from her home as a child, and this had led her to another way of thinking about could be done in the Western Cape about the housing backlog.
She said that when they were talking about homes, they were talking about family homes, which meant tenure rights and also uniting families. The government had this tendency of taking houses and giving people title deeds, but one would find out these title deeds were “very empty” because they did not assist in any way, especially women. The government also needed to clarify in the Bill what happened to the family home if it belonged to the parents, and they were deceased, because in such situations women usually did not have a say. If the government could not clarify that, then everyone in the particular household who was of age should get a house from the government.
Their position as Singabalapha was to show the government that they did not want handouts. If the government could release land to the people, they could build their own houses because if they had a backlog, that simply meant it would take them more than 100 years to get houses. It also meant that they would always be subject to infighting amongst the families and amongst the other communities.
Ms Tlhape applauded the work of Tshisimani in their role of educating communities, and asked where the Centre was located, and whether it was also in other provinces.. She responded to Housing Assembly’s disapproval of the format of consultation by stating that it was now public knowledge that COVID-19 might be an issue for a long time, and in South Africa they were bracing themselves for that while also looking at the prospects of the 4th Industrial Revolution (4IR). She noted the concern that this kind of format excluded the majority of the rural masses in the country, and asked the Housing Assembly to propose a way to further accommodate the rural masses, while at the same time complying with COVID-19 regulations. She also asked what the Housing Assembly’s proposal was in terms of decentralising the power from the hands of the Minister.
Ms Mahlo asked the Singabalapha Housing Movement how they would like to see the land rights of all urban family members being protected by law under the Bill. Should a person be issued a title deed under his or her name in the urban family? How important did the organisation think it was for all citizens in the country to respect and uphold the Constitution and the rule of law? Did they think illegal land occupation would assist the land reform programme in the country?
Ms Steyn said that was very important to hear the views of people who were not always represented by bigger structures, and thanked Mr Mdoda for his activist participation. It was very good to see that people were trying to assist Parliament and make sure that activist voices were heard. She asked the Singabalapha Housing Movement about their involvement with local government, to try and see what land was available so that policies pertaining to the housing backlog and to the idea that people would like to get land to build their own houses, could be looked at.
Ms Breedt also thanked Mr Mdoda for the work he did with the Tshisimani Centre for Activist Education and the other participants. A clear view was needed, and that it was great to have other minority groups, especially women, partaking in public participation. The Portfolio Committee would have a hard task when finishing the public participation submissions, to delve deeply into them and see how they could accommodate them.
Inkosi Cebekhulu expressed concern about the presentation by Singabalapha Housing Movement, which had referred to the adults in a family house in town, where a sister and a brother had been staying in their parent’s house and when brother got married, he might kick the sister out in order to live with his own family. He asked about the view that Ms Vuza had regarding to the situation where one found African brothers and sisters who were adults staying with their parents in a house, and what she though could be the solution.
Ms Mahlatsi asked the Housing Assembly to provide an alternative to delegating powers to the Minister in terms of the Conversion Act. Other speakers had indicated that the powers must be delegated to the municipalities, and she asked whether Housing Assembly though that giving the powers to the Minister would give the matter the necessary attention it deserved, or whether they thought the municipalities would be able to handle the powers, looking at their responsibilities and capabilities at the moment. With regard to the Singabalapha presentation, it was the first time during these particular processes of public hearings she had resonated with the subject matter so much, because one could get a sense that the person who was working on these particular matters on a daily basis was actually affected by this particular legislation. For the first time, she had got to really feel and understand where they were going and it reminded her of the section 25 public hearings where communities were able to speak on their own behalf, not being represented by organisations. She really appreciated their effort in coming through, even under the difficult conditions of lockdown and load shedding, and then having to go to a particular area so that they could connect.
Ms Mbabama asked Mr Mdoda to explain more on the point that he had made about Parliament or the Portfolio Committee having partnerships with community-based organisations.
Mr Mdoda said that the Tshisimani office was in Cape Town in Mowbray, but their programmes were rolled out and extended to all the provinces in the country. Their programmes before COVID-19 and lockdown involved inviting young people who were involved in structures in their community where they were championing change for the improvement of conditions. They pulled them from different parts of the country -- the Western Cape, Eastern Cape, KZN, Gauteng, Mpumalanga, etc. They were a young organisation, only three years old, but so far they were building very strong relations with other organisations in the Eastern Cape and other provinces in the country, and were at the very early stages of striking partnerships with organisations in the Northern Cape, North West and Limpopo. Their work had a solid presence in the Eastern Cape, Western Cape, KZN and Gauteng, and all the programmes would run there. They made sure that at least they allowed space for participation in those education programmes from activists who came from different provinces. Their work also involved allowing the young people who participated in this programmes an opportunity to learn what was happening in the region and the continent, so they had linkages and were forming partnerships with other education centres in the continent where there was a particular issue, so that at least people could understand that certain problems extended beyond the borders of South Africa. They did not draft a programme and then just take it to people to use it. They would let people to have a say in the kind of programme from which they wanted to benefit so that the programme could respond exactly to the need that was expressed.
In response to Ms Mbabama’s question, Mr Mdoda said he had spent years working in a sector where he had confronted a situation that when the government wanted to initiate a particular programme in the interests of community development and needed to extract information through surveys, the route had often been to go to consultants. He appreciated the expertise that may reside within those structures, but he also appreciated that some of these consultancies were city based and would have to draft a proposal for rolling out this kind of work for government, and on the strength of their proposal, it would be chosen. However, when dealing with particular community from which information that could assist government might have to come from, there could be a lack because the programme did not connect with the same people it was attempting to involve and develop. There may be a need to consider this as an opportunity to transform the frosty relationship that seemed to characterise the government and civil society. There should be an attempt to begin to normalise so that there could be joint partnerships between the government and community structures. Community-based organisations should be given a chance to assist with these kinds of processes.
Ms Achmat said that information should be decentralised so one could have matters dealt with at a local level in the communities, and the members would actually know what was happening. Regarding the Minister and the delegation of power, the Housing Assembly felt that the government needed to capacitate communities so they could also have a say, and those resources must come to the community so when there was community involvement, it would be a quick process. Ministers were overloaded with work, so they could not get to all these issues. What they were saying was that if communities were involved, it would be a quicker process, because then the communities would be capacitated with resources and matters would flow within the communities. It should be a bottom-up approach, not a top-down approach.
Singabalapha Housing Movement
Ms Vuza responded to the title deeds question by stating that it would be good if the government could help people by educating them as to whose rights belongs to whom, because it was in their culture that the eldest child would be the one getting the parent’s house, but mostly it was always the man, which meant that the woman’s voice was not valid in this situation. Title deeds were supposed to be discussed amongst the families. The organisation had tried in several ways several times to involve local government and was always hoping that there would be systems in place to make it look different from the local government’s perspective, because they did not see the organisation as people who wanted to help. If the national government could also talk to local government, then perhaps one could work out things in a smooth way.
Her view was that at her age, she was not supposed to be staying at home as a person of her calibre, someone who had fought for the liberation of this country was not supposed to be staying at home with her children and grandchildren. This was an easy way of showing the government that they cared, and that they could help them because they did not see everything that was happening at the grassroots level. At grassroots level, one could see exactly what was happening. If one went into the townships one would see that the way the houses were built, and the way that they lived was not good or proper for human beings. That was why they needed to go back to the central business districts (CBDs) where they belonged. There was no way that they could be thrown out as if they were illegitimate children in their own home. This was their home and they had nowhere else to go. As a solution, the Ministers and the Members of Executive Councils (MECs) needed to work with the people on the ground, because when they were not there -- they did not hear their cries. Wearing suits when one was serving the people did not work, as they had seen 25 years down the line. They were still stagnant, standing in one place, which was not a reflection of when they had taken over this country.
Indigenous First Nation Advocacy South Africa
The Rev Anthony Williams, Executive Chairperson: Indigenous First Nation Advocacy South Africa (IFNASA) said IFNASA was very concerned with the fact that there had been very little participation from the community of the “first nation people.” They were of the opinion that more of the activists and community members, like community-based organisation (CBOs) and NGOs who operated in this space were supposed to be invited to come and give a much broader sense of what was really happening and what this community had been faced with, in particular during the last 26 years. This was by no means a way of trying to be antagonistic, but at the same time they were absolutely unapologetic that something very wrong had happened within South Africa. They were calling upon the Members to take a minute and sit back and just begin to think about the injustices that the first nation people, who were now classified as coloured in South Africa, had to endure, even within a democratic society.
It was important to bring a historical context before making recommendations as to whether the bold amendment of this Bill should succeed or not. It was important that South Africans and the world remembered that the very first battle, or the very first resistance on this land, was fought by the Khoekhoe people against the Portuguese on 1 March, 1510. The Portuguese viceroy, the Almeida and his entourage, wanted to appropriate illegally the resources the people, and it was known that those who succumbed in the battle on that fateful day of 1 March 1510 including the Almeida. Looking at that, one must be cognisant of the work of the first nation people who roamed and occupied this land, and their contribution must be contextualised when one talks about land and the dispossession that they subsequently suffered at the hands of colonialism, and in particular in the context of the legal conquest that had taken place.
One could not help but bemoan the fact that people were now in a democracy, but where the Constitution of the country had effectively relegated the first people who occupied the land to the periphery where they were merely onlookers, if one considered in particular section 25, sub-section seven, of the South African constitution. They were at pains to call on this Committee to look into the injustice that the Constitution continued to mete out against an unsuspecting people who had opened their hearts and the land to their fellow Africans when they had drifted down from the Great Lakes region and then come to settle here in South Africa. They were in pain, and were calling upon their fellow Africans, particularly those in this Portfolio Committee today, to say if they had considered what Sol Plaatje had so accurately described on that fateful morning of 20 June 1913.
It was IFNASA’s contention that the Constitution, as it stood, was in stark contradiction with itself if one considered the preamble which so eloquently describes the harmony in which all should live in South Africa. If one considers the Constitution’s preamble, in particular Section 5, sub-section seven, which effectively barred the first people of the land who had invited everybody to live with them in harmony, it was just inconceivable how one had allowed the same Native Land Act that had dispossessed the indigenous African people of this country and taken their land rights away from them. The fact that the Constitution states that only people who lost land after 1913 could claim the land surely showed that something was wrong with that picture. IFNASA calls upon this Portfolio Committee to reconsider this particular subsection within the constitution, because as legislators, this was within their mandate. It should also look again at the pain, the agony, the humiliation and the dispossession that the law continues to mete against those who roamed this land way before everybody else.
Mr Williams asked the Committee to consider the report of the South African Human Rights Commission, which had also asked the government to remove the label ‘coloured,’ but more importantly, to look into land restitution in Section 7 of the recommendations of that report. They should also look at the United Nations report in 2005, where its special rapporteur had also called upon the South African government to restore the indigenous first people of the land, remove the labels and equally, for restitution to take place.
The Chairperson said that Mr Williams had spoken directly to the hearts of the Portfolio Committee on this matter. The Committee had always been of the view that when one spoke about the land issue, it must first and foremost speak to the direct inhabitants of the land. He always took pleasure in reminding his colleagues of two individuals who became the first prisoners of Robben Island -- His Royal Highness, Autshumato of the Khoekhoe people, and the second one, vitally important, who was a woman by the name of Krotoa. The Committee wanted to give an assurance that in the work it did, it was always cognisant of the role of the people, particularly the father of the country’s national democracy, Nelson Mandela. In terms of the Abathwa, there was an absence of almost two centuries before the heroic role in their struggle and defence against land disposition by the colonialists.
The Committee would like to applaud IFNASA for continuing to be the voice of those who had been marginalised and silenced. They hoped that it would utilise the platform, particularly when they were wrapping up the amendment of Section 25 of the Bill, which would be going to the Northern Cape and the Western Cape. IFNASA had to ensure that it was able to mobilise all the descendants of the Khoekhoe people, the Abathwa and the Gqunukhwebe people so that it was understood by South Africans throughout the country that the wars of dispossession did not happen during the notorious Land Act of 1913, but dated back to the first cases of 1510, and the more known and recorded about Jan van Riebeek and his arrival in 1652.
The Chairperson said that the interest of the Portfolio Committee through Bill was to look at how they could ensure that the marginalised women in South Africa had access to land, which was why it was important that the descendants of Krotoa were able to be landowners.
South African Local Government Association
Mr Zanoxolo Futwa, Provincial Executive Officer: South African Local Government Association (SALGA), said SALGA welcomed the efforts of the Portfolio Committee in assisting with the restoration of the liberties of the people, as promised in the constitution, and through facilitating the security of land tenure. They appreciated the hard work that the Committee was doing in trying to ensure that there was improved ownership, particularly by the people who were marginalised over the couple of hundred of years from accessing land, and utilising land for all its values. The Act that was being amended, the ULTRA, was one of the instruments to try and achieve that purpose.
Mr Futwa appealed to the Committee to allow a space, even if it was just 30 days, to enrich the process of public participation with regard to these inputs by running through a mandating process within the country’s 257 municipalities. In that process, they would also appreciate it if the Committee could take SALGA’s offer to assist the Committee in the public participation process in the provinces. It would also assist SALGA with the extra time they were asking for, particularly in relations to the content of the draft amendment. SALGA was happy with the general intent and the objectives for the revision of the Act, to improve certain aspects of it.
One of the key issues was around the conversion of land rights, and in the current draft he was asking for an amendment with regards to the process. It sought to introduce an administrative process to the intent that was established in 1991, in which there was an intention to fast track the transformation of ownership and an improvement of tenure forms through an automatic process of recognition of that right. The amendment was introducing an administrative process through the applications that needed to be effected, and SALGA would like the lead Department to have further engagement with it just to understand that rationale. It did not necessarily have an objection to it, other than wanting to understand it better so that it could see how best it could gear local government to support it. It was a concern to SALGA for a number of reasons, one of which was that with the introduction of an administrative process like that, there might be unintended consequences that it would have to deal with, such as the cost of that process, and the unintended effect of time delays as a result of the processing of applications and responses to applications.
The key issues that SALGA would want to be resolved in dealing with that aspect included the envisaged role of a municipal council in that process, taking into account the number of pieces of legislation that had been passed since 1991 that sought to secure the responsibility of a council in the administration of land affairs, as well as the right of a council to determine land objectives, working hand in glove with the local traditional councils in those areas where they were respected local traditional authorities. It was important as well to try and make sure that there was clarity on the role of a municipal council in that respect, so that the work that it was busy with in trying to resolve the cooperation between municipalities and traditional authorities in respect of implementation of the SPLUMA could also find resonance.
The second proposal was around cleaning up the process to introduce what seemed to SALGA as a mechanism for an appeal in terms of an insertion under Section 1. SALGA supported that insertion and had given the explanation that it would want to clarify it with the Department. In it, SALGA would like to make sure that there was clarity on the role of the council, that there was guarantee of the role of the traditional authority in that area, and also clarity on the impact of the interface between what was envisaged there and the powers that were already given to certain structures of councils through SPLUMA in dealing with similar effects, because there was going to be a cross pollination of processes in dealing with applications for development that were submitted to a municipality.
He said that in the area of lodging court applications, the proposed amendments were fully supported by SALGA because they would at least assist in clearing the process and also to enable a procedure that would allow decisions to be made. There was not a significant amount of changes that were proposed. There were those key changes that it noticed in the amendment, and it was requesting that if the Portfolio Committee and its own processes allowed, it be given at least an additional 30 days to just enrich the voice and also the public participation quality in this work by running through its planned provincial engagements, which were already under way during the month of September, and then it would be able to make submissions at the end of September to the Committee. If the Committee also had a similar process that had been rolled out, it might be possible to enhance that process through linking these processes of consultation and managing what it was planning internally without municipalities, to enrich the Committee’s own processes.
SALGA supported the work of the Portfolio Committee to try and improve tenure options, and see sustainability of these tenure options. It would like to ensure that the already set up state mechanisms were able to function in a manner that assisted each other, hence the need for SALGA to clarify the role and particularly the limitations or the shared responsibilities between what was proposed to be the roles of the Minister and what was already given in other legislation as roles of the council of a municipality.
Ms Tlhape thanked Mr Williams from IFNASA for educating the Portfolio Committee on the history of South Africa. She asked about the stance of IFNASA on the Bill that sought to address the security of tenure or rights of land ownership by individuals, and by women in particular. Did IFNASA believe that women deserved to be recognised as landowners? She noted SALGA’s request, and said that it would be up to the Committee to decide whether they would be given another 30 days to enrich their process. She asked whether SALGA saw the Bill as part of addressing the challenges of informal settlements that municipalities were facing. Was SALGA was able to relate the intentions of this bill with SPLUMA? Did SALGA believe that with the capacity challenges, especially with Category B municipalities, that the Bill would accelerate service delivery?
Ms Mahlo asked SALGA to clarify the correlation between ULTRA and SPLUMA. She also asked for a clarification of role of councillors and traditional leaders, since the issue of land administration and responsibility were yet to be fully understood by all stakeholders.
Mr Matiase asked SALGA whether the best model for land to be parcelled out would be on the basis of who claimed to have been the first inhabitant of a part of South Africa on the basis of tribes.
Ms Breedt said she had enjoyed the presentation from IFNASA. It had been valuable input that at the end of the day needed to be recognised.
Ms Mahlatsi said she had grown up in the townships, where issues of people getting evicted from houses because of ownership was a common occurrence, and municipalities had never taken the initiative to deal with this particular legislation, or to ensure that they proposed this particular amendment to this legislation, given the challenges that the people had been facing over the years. She asked whether municipalities had the capacity to deal with these issues, especially with the conversion matter -- and not only capacity in terms of human resources, but the financial resources to manage this particular process. Why had SALGA not taken up these issues before?
Inkosi Cebekhulu asked whether Mr Futwa foresaw any involvement from the local councillors and traditional leaders in the newly introduced district development model by the current administration.
Mr Montwedi asked whether SALGA thought if the process was left to local municipalities, they would be able to deal with it in the correct manner, because municipalities had failed in implementing SPLUMA.
Ms Steyn said that while trying to do a land audit, they had discovered that were a lot of land parcels that could not be allocated in certain municipalities, including the municipality where she resided. There was a lot of land that no one actually knews who it belonged to. She had listened to earlier discussions of the earlier presenters who had spoken about the challenges of housing, land invasions and the land question. She asked Mr Futwa whether he could assist from SALGA’s side in terms of the process that could be followed. By looking at the immovable asset registers of municipalities, most times there were vacant land, houses, buildings and vacant areas available, but the processes to be followed were so difficult. What proposal could come from SALGA to assist in this regard? She said that there were many pieces of legislation regulating land, and asked how difficult it would be to formulate a single piece of legislation that would be easily implemented across municipalities in order to simplify matters.
Ms Mbabama asked how SALGA envisaged the relationship between ULTRA and the conversion of certain rights into leasehold.
Mr Williams said the reason they wanted people to first look at the Constitution before they looked at the Act, was because they knew that the Act was born out of the Constitution. Ms Tlhape’s question was a very important one, because it must help them to understand what indigenous women's rights were, specifically in the 21st century, and whether there was a view that indigenous women, in particular indigenous first nation women, should be oppressed and should be reduced to mere spectators while men had fun with the land, or occupied and owned land. IFNASA was absolutely clear that not in its name could it allow women to be relegated to mere spectator status. It was important that it was ensured that even in the context of ULTRA, indigenous women at large and of all ethnic groups would meaningfully participate in the land and the return of the land -- in particular, for indigenous first nation women. It was painful that their daughters and children were scattered all over the country, some living in Johannesburg, and they did not a have claim to their ancestral land. IFNASA was advocating the restoration and restitution of land for first nation women, and for all women in the country.
Mr Futwa said he would submit written responses to the questions that he could not answer immediately.
He responded to Ms Tlhape’s question by stating that SALGA was not saying that the Minister must not be involved. What they were saying was that the Act was being amended in order to improve its effectiveness as a tool to assist SALGA in reforming land rights, and reforming the tenure options for South African citizens who wanted to access or own land, and who needed to be assisted to participate in the economy with the use of land as an asset in their hands. All they were saying was that they needed to be clear that so that they did not create a difficulty in the application of the law once it was finalised.
There had been a number of experiences that the municipalities had gone through, particularly during this difficult period of the COVID-19 -- and even before that -- around the challenges of the vulnerability of communities and people around tenure. People had been evicted, and that was why they had legislation that assisted with dealing with evictions. They had seen a lot of legislation not managing to scratch the surface of the difficulty around securing the dignity of people from evictions, and also securing the rights of people to be able to access land in the correct areas.
He said that the spatial transformation was an important objective that these instruments, including the amendment of ULTRA, should be able to assist in achieving. In response to Ms Mahlo’s question, he said that SPLUMA and ULTRA had a relationship. SPLUMA was a tool that allowed the local sphere in a council to make a certain determinations on what must happen on land as a property. It impacted on all improvements, which were properties or what was done on land, on how land was accessed, utilised and exchanged. Reform, legislation and SPLUMA had a very close relationship, which was why the question SALGA was asking around the issue of applications became important. SPLUMA was legislation that was being enacted, so it made provision for certain structures and certain activities to be determined or authorities to be rested within a council of a municipality, and how that was utilised would have an impact on people seeking to make changes to ownership of property, exchange of property, changes of information in the deeds office, and conveyancing as they exchanged information between one owner and another.
There were areas of SPLUMA’s implementation that SALGA was still working on, which had not been effected well. One of those areas was what had transpired as it enacted SPLUMA regarding the relationship of a council, which was a municipal council, and the local authority, in respect of how one dealt with a piece of land that needed to be exchanged. The challenge was how one dealt with prioritising what must happen on a piece of land which was both in a jurisdictional area defined in the customary Act as part of an area under the jurisdiction of a traditional authority, and under SPLUMA and Systems Act under the jurisdiction of a wall-to-wall municipality. Those areas had created difficulties, particularly in three provinces -- the Eastern Cape, KZN and Mpumalanga -- and they were working together with the national Department of Cooperative Governance and Traditional Affairs (COGTA) and Rural Development to try and facilitate and mediate that relationship. They were working together with CONTRALESA, and there was a dialogue that was continuing to try and improve those areas. The Portfolio Committee would soon be dealing with a proposed amendment to the SPLUMA to try and deal with those issues.
He said a question that emanated from another conversation around the adjudication of the Land Systems Act needed further input, because it was related to a number of areas that were important to the work of this Committee. It was also related to other reforms that were under way, including what would happen as the outcome of the process of the section 25 amendment. It also included the proposals administratively through data administered through the Department of Rural Development with regard to developing a model for a land administration system in South Africa that took into consideration the challenges that had been raised, as well as the gaps that existed between the deeds office and the deeds office at the municipalities, as well as the processes of ensuring that one was able to connect these systems.
He said Mr Matiase’s question -- whether the best model for land to be parcelled out would be on the basis of who claimed to have been the first inhabitant of a part of South Africa on the basis of tribes – was a difficult question for him as an official who was not a politician nor legislator. He could not provide a position of SALGA on this.
Mr Futwa agreed with Ms Mahlatsi that evictions of always involved a municipality. While there were a number of pieces of legislation that allowed that, there had been different ways in which municipalities had been responding to it. They had been responding to this within the limitations of the scope of their interventions. For example, there were different ways that had been used to take them to court in many areas and there was a lot of case law on that issue. Her question on why SALGA had not done enough to initiate a bill amendment was good feedback that he would take back to SALGA.
He responded to Inkosi Cebekhulu’s question by stating that the part he had not responded to was in relation to the district development model. The question was whether there was room for councillors and traditional leaders, and the answer was yes -- they were currently busy with developing a national master plan for land and agrarian reform. In that process, as they were beginning to utilise the district development model approach which had been adopted by government, they had identified a set of over 44 prioritised rural districts in the country, which would enable them to ensure that as it related to resolving issues of land and estates,, they would be able to have clear roles for both councils of municipalities and traditional councils or traditional authorities. There were clear rules, because this would impact on land, rural development programmes, agrarian reforms and land reform, which were interests and responsibilities of the traditional authorities, which SALGA respected.
Mr Futwa said he would be the first person to admit that the municipalities did not have sufficient capacity to undertake all their assigned functions and constitutional obligations. That was a work in progress, particularly at the rural municipalities. SALGA was satisfied with certain reforms where they had made proposals on how to improve the capacity of municipalities in rural areas, so they could take forward the constitutional obligations that were put on them, as well as the requirements in terms of their roles and responsibilities.
With regard to the processing of applications, there was a gap in municipal capacities, as the Committee had learned. For example, a number of municipalities had been unable to be ready to meet all the required obligations in terms of SPLUMA by 30 June 2020, partly because of a lack of capacity. One of the things he would request the legislators to take into account, even in this Committee, was that they needed as a country to be moving towards a situation or a model where, when they passed laws, they also made it mandatory for these laws to be subjected to a regulatory impact assessment, which looked at the implications of the law that they were putting together for those people who had a responsibility to act in relation to this law. There had been a lot of those indirect implications that had been placed on municipalities as a result of a number of laws that had been passed, which had created administrative and cost implications that had not been followed by reforms in the fiscal distribution or fiscal redistribution mechanisms in the country. It creates a distance between existing capacity and the required capacity.
One of the areas where this was a case in point was around land audits. He said that rural municipalities, particularly category B smaller municipalities, had found it difficult to have the capacity to conduct the expensive exercise as required in terms of SPLUMA, such as land audits, as part of their spatial development framework. These were costly exercises, and as a result, there were now gaps in the planning information and the intelligence that was required to make decisions. SALGA had put in place resources in this current financial year, between themselves and the Department of Rural Development, to assist about 36 municipalities to conduct land audits in order to fill that gap.
Mr Futwa agreed with Ms Steyn in that there was perhaps a need for a singular framework to managing land, but said that there could not be a single piece of legislation because there were many things that affected land. There were many dimensions to land and its relationship with a human being, but they needed at least to make sure that the existing pieces of legislation that were speaking against each other or were duplications were reconciled They had started to identify some of them, particularly those relating to special transformation, SPLUMA and provincial legislation dealing with municipal land developments. There were processes in various provinces to condense some of these legislations into a single Act that allowed them to have one instrument to guide how land use management, land use planning and land use development objectives, were decided upon.
The Chairperson concluded the presentations by thanking all the organisations and representatives who had participated in the public hearings. He said that over the past two days, the Committee had received more than 480 submissions, and had now requested a 2½-day extension, and they hoped to be conducting those sessions next week.
The meeting was adjourned.
- RUDNET submission
- Lawyers of Human Rights submission
- Land - Network for National Engagement Strategy submission
- CONTROLESA submission
- Indigenous First Nation Advocacy South Africa submission
- Media Statement: Organisations Call for More Public Hearings on the Upgrading of Land Tenure Rights Amendment Bill [B6-2020]
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