The Committee received feedback from the Department of Agriculture, Land Reform and Rural Development on the inputs made by stakeholders during the public hearings on the Upgrading of Land Tenure Rights Amendment (ULTRA) Bill.
The Department’s presentation supported most of the inputs and proposals made by the stakeholders, and rejected only those proposals that went against the Constitutional Court’s order. Reasons for the support and the rejection of the proposals were provided by the Department.
Members expressed concern over the Department’s plan of action in addressing the issues raised by stakeholders during the public hearings, especially on Sections 3, 19 and 20, which included the transfer of communal land. The role of the Minister was not clear to Members, and had to be clarified to ensure that claimants could dispute any rulings by the Minister with which they did not agree
The Chairperson said the Upgrading of the Land Tenure Rights Amendment (ULTRA) Bill public hearings had been successful because there were meaningful engagements with various stakeholders from across the country. The meeting would be on the Department’s decision on the ULTRA Bill, which would allow for a legal opinion to be provided by the Committee’s content advisors.
Briefing by Department of Land Reform and Rural Development (DALRRD)
Mr Mdu Shabane, Director-General, DALRRD, said the presentation would be circulated and provided to the Committee, and the Department’s officials were present to represent the different departments.
Adv Sello Ramasala, Head: Legal Unit, DALRRD, said that two documents had been submitted. The first was the actual presentation, and the other a comprehensive document that provided the feedback on the inputs that had been received from the public.
He provided the introduction and the comments that were directly related to the process of the Bill, and highlighted the comments that were supported by the Department and those that were not, along with the reasons. The general comments on the ULTRA Bill were also outlined.
Ms M Tlhape (ANC) said that the delayed report by the Department would affect discussions on the matters arising, especially because they required intensive attention so that stakeholders were involved and were not excluded from the process. She highlighted that the Department supported every proposal, except that the Bill must not make the Principle Act applicable to the whole country. The rejection of the proposal implied that the Committee had not done enough work in considering the inputs by stakeholders. She was satisfied that the Department agreed with most of the proposals -- if not, the Committee would be placed in the difficult situation of reviewing the desirability of the Bill.
She pointed out that the submissions made by the National House of Traditional Leaders in all provinces were aligned to each other, and she questioned where this submission would leave the Committee, especially on the issue of land transfers to traditional authorities. She said Section 20 of the Bill was a problem for many stakeholders, and asked for the Department’s opinion and feedback on the matter. The Minister being both a referee and a player in the ULTRA Bill was also an area of concern for many stakeholders.
Ms A Steyn (DA) agreed that the Department’s presentation had been sent very late, and raised concern that the Department agreed with most of the proposals that had been submitted during the public hearings. She questioned if it would be possible to proceed with the Bill without making major adjustments, and if the process of the Bill could continue. The uniformity of South Africa was questionable because of how the legislation was being handled by the Department.
Ms T Breedt (FF+) shared the concerns on the role of the Minister in the Bill’s processes, and said that the role needed to be clearly defined. She asked if there would be an appeal process if a claimant did not agree with the Minister’s ruling. The Department’s submission had been late, and the concerns raised by the claimants were sections in the Bill that had also been a concern for the Committee. She asked what the way forward was on the matter, because the sections that were being discussed had been raised by the Constitutional Court, and she proposed that other unconstitutional matters should be addressed at a later stage. The presentation had mentioned that more reference needed to be made on the powers of the land rights enquiry, and she asked for clarity on the statement and for suggestions to be provided to the Committee.
Mr N Capa (ANC) was pleased that the issue of commercial land had been highlighted by the Department, and he asked how the concerns had been raised on other legislation.
Ms K Mahlatsi (ANC) supported Ms Tlhape on the comments made by the Department, and said that Bills related to the Committee must be reviewed, but the process of the ULTRA Bill must continue instead of reopening the entire Bill, because taxpayers’ money was involved in the process and to ensure the finalisation of the Bill, as per the decision of the Court. She said the Department’s presentation did not provide good enough reasons for the acceptance or rejection of a proposal, especially the rejected proposals. She asked what the logic behind the rejections was, and said that the experience on Section 25 showed that legislation was not the beginning and the end when there was a dispute, because there were alternatives such as approaching the Constitutional Court.
Mr N Masipa (DA) raised the issue of land that was owned by churches and commonages, as well as state land. He questioned how the two issues were going to be addressed. Sections 19 and 20 had been considered flawed by most of the stakeholders during the public hearings, and he asked how the Department planned on addressing this.
Inkosi R Cebekhulu (IFP) said that the Bill focused mainly on people living in the townships and the vulnerable groups. The focus should not be confused for people who lived on communal land.
The Chairperson asked whether there were any constitutional challenges that could arise through the Bill, and also how the Department planned on addressing the unintended consequences of applying the Bill across the country. During the public hearings, Sections 19 and 20 being made applicable across the country without existing rights had been an issue, because it would not consider the allocated customary law rights, and he asked for the Department’s feedback on the matter. There were issues that had been outlined in the Department’s comprehensive report that required time to be addressed, because some of the issues related to policy positions on land tenure which the Committee needs to be briefed on, such as land titling in communal areas versus communal tenure rights. The matter should be discussed in future.
Mr M Montwedi (EFF) asked for the Department’s comments on the submissions made relating to Sections 3, 19 and 20.
Adv Ramasala referred to the transfer of communal land to traditional authorities, and said that the provisions in the Principle Act that related to communal land were divided into three sections -- Sections 3, 19 and 20 -- with an extension of Section 25(a) which would be applicable to former homelands, and it included communal land. There were issues that were not covered in the Bill because the Bill did not seek to amend Sections 3, 19 and 20, but because a lot of comments had been raised around these sections, that the Department had to take action on the transfer of communal land. There were issues that the Department had been faced with during the development of the Land Tenure Bill. The issues existed because in the Principle Act, Section 20 provides that the Minister may transfer state land to the communities, while Section 19 provides that a community could transact as a legal entity, and Section 3 deals with the conversion of permissions to occupy (PTOs) and customary land rights into ownership. In the Department’s observations, Sections 3, 19 and 20 on communal land had been implemented. The Bill would have to be repealed to address the issue.
The impression of the Minister being both a referee and a player was a result of the Minister being given the role to consider and determine whether a conversion should take place. The right to convert was guaranteed in the Act, and the Minister only considered the application and determined the rightful owner of the conversion.
On the questions of whether the Bill could continue in its current form, he said that if the Bill continued, then there would be unclear provisions and uncertainties on the role of the Minister but if issues were clarified during the provision of the Bill, then the uncertainties would be clarified.
Whether the Bill could continue without comprehensive legislation on communal land tenure, he said that it would be preferable that the legislation be addressed first, but the Constitutional Court had ordered an amendment to the Principle Act while the Department was finalising the Communal Land Tenure Bill. Out of 26 sections of the ULTRA Bill, only three dealt with communal land, and the rest dealt with urban land tenure.
On whether an appeal would be granted if a claimant disagreed with a ruling by the Minister, he explained that the decisions made by the Minister were administrative and if there were any disagreements, then the matter could be taken to the High Court. He said that Clause 3 of the Bill sought to insert Section 14(a), which allowed individuals who were aggrieved by the conversions to approach the courts, especially the land courts.
Adv Ramasala said the reference to powers of the land rights enquiry was a simple process which could be re-drafted. He explained that the reason for the accepted comments was that the Department believed that these comments and proposals would clarify uncertainties and provisions. Those that were rejected dealt mainly with Section 25(a), and because the Department had to comply with the Constitutional Court order.
Regarding the disputes that may arise from the Minister’s decisions, the decisions could be challenged and resolved in court.
The issues of land that was owned by churches, commonages and state land were not being addressed by the Bill, and were not addressed by the Principle Act.
He confirmed that the Bill did focus on people in townships, because Section 2 of the Bill focused on townships in the form of deeds of grants.
The Department was confident that there was compliance in the constitutionality of the Bill, because it sought to amend sections that were ordered by the Constitutional Court. The uncertainties could be adjusted to accommodate everyone.
On the unintended consequences of the Bill, he said that the issue that was raised was that if the Act was made applicable across the country with the implementation of Sections 3, 19 and 20, the State had the risk of transferring communal land under Section 20 without any clear protection mechanism for the communities, because when the land was transferred it would be done under traditional authorities. Communal land was previously transferred in the name of the community to ensure that portions of land were transferred under individual members of the community who occupied the property, in order to protect the family and individual rights. The Constitution guaranteed the rights of individuals and communities, so individuals were also entitled to land tenure and not only communities.
The manner in which the transfers took place under the Communal Land Rights Act (CLaRA) was the anticipated manner of how transfers would take place. The statement that was made by the Legal Resources Center (LRC) that CLaRA failed to protect individual rights was not supported by the Department. He explained that CLaRA had been declared unconstitutional because it provided that traditional authorities would retain the right to administer communal land, even after the land had been transferred to communities.
Adv Ramasala said that the ULTRA did not create land rights, but referred to the Acts that created land rights. ULTRA provided for the process of conversion of the rights that had already been provided for in other legislation. The challenges with the other legislation were currently being addressed during the development of communal land tenure, because ULTRA addressed urban land tenure. The challenges in urban land tenure was the lack of title deeds for the properties, which was an issue that should be addressed by the Department of Human Settlements. Resolving urban land tenure challenges was not as complicated as resolving communal land tenure challenges, because communal land tenure dealt with indivisible communal land, where rights were different.
Adv Vela Mngwengwe, Acting Deputy Director General (DDG): Land Tenure and Administration, DALRRD, referred to the comment made on the aligned and uniformed submissions by the National House of Traditional Leaders on the transfer of land to traditional authorities. He said that Nkosi Mwelo Nonkonyana, Chairperson: Congress of Traditional Leaders of South Africa (Contralesa), had mentioned that there was agreement that was reached in 2018 with the Department that communal land must be transferred to traditional authorities. He clarified that traditional leaders had conducted an Indaba where the Department and the Minister were invited and the traditional leaders took resolutions that included traditional land being transferred to traditional councils. Mr Mngwengwe said that there was an incorrect assumption that because Cabinet Ministers had attended the Indaba, resolutions had been reached collectively with government that communal land should be transferred to traditional authorities. This decision was not taken by the government.
He said that the application of Sections 3, 19 and 20 across the country was unconstitutional, because they applied to certain parts of the country and it would create a differentiation with no rational basis. There were indeed implementation challenges which the Department had to prepare for.
Concerns raised on other legislation revolved around communal land, which would be addressed through communal tenure legislation.
On the issue of land owned by churches and state leased land, he said that there was no context laid for the question, and explained that there were two types of commonages -- one being municipal commonages and the other being traditional commonages that were used for grazing. Church land was sometimes occupied by communities, which did not provide secured land rights.
The Department was currently developing a land tenure policy that would address tenure reform holistically. The process of the tenure reform policy would hopefully enrich the legislative process of the Communal Land Tenure Bill. He said that the concept of state land got confusing, because state land in the former homelands was communal land, because the land was occupied and used by communities.
Mr Masipa said that the context of the state land had been raised during the public hearings, and he thanked the Department for clarifying how the issues would be addressed.
Mr Capa said that the responses from the Department were pleasing, and he hoped that there was a way to communicate with the people who had raised the concerns to inform them that the Department was dealing with the issues in other areas of legislation, because sometimes the public was not aware that there was different legislation. He suggested that the Department implement an educational process to inform people on the legislation involved.
Ms Mahlatsi shared sentiments with Mr Capa that there should be an educational process to inform members of the public, because the issues were covered in many of the Department’s programmes.
The Chairperson asked if the Department supported communal land not being transferred back to traditional authorities or traditional councils, based on the statement made by Nkosi Nonkonyana from Contralesa.
Mr Ramasala said that the Traditional Council was an organ of the state, and that if the Minister was responsible for transferring communal land to the Traditional Council, then the land would be transferred to another organ of the state. This would be a challenge because land would not have been transferred.
Mr Mngwengwe said that the traditional leaders had been heard and that one of the challenges of the Department had been determining whether a transfer to a traditional council was equivalent to a transfer to the traditional community, but it had later been determined that it was not equivalent. He said legal advice had been requested by the Department to establish whether the transfer of land to traditional councils did not lead to the dispossession of the community. The question had also been posed to the National House of Traditional Leaders. He acknowledged that communal land could be transferred to communities, and that there was a desire by community members to own land, which was possible. Differentiation on the basis of location was impossible.
Mr Shabane said that there was a commitment by the Department to ensure the transfer of ownership to the rightful owners, and that there were ongoing discussions on how to find a suitable way of achieving this transfer.
Chairperson’s concluding remarks
The Chairperson thanked the Department officials for responding to, and clarifying, the issues that had been raised, and said the responses had provided clarity on some of the concerns that had been highlighted during the public hearings. The discussions raised by the Department’s officials should be further tested against Sections 3, 19 and 20 being applicable across the country.
A presentation by the content advisors, legal services and researchers was expected on the way forward, following the inputs made during the public hearings. The Committee’s next meeting for the term was scheduled for 4 September, to allow for engagements with the content advisors and to receive a legal opinion on the ULTRA Bill, which would conclude the Committee’s work for the term.
The Chairperson thanked the Department officials for their presence and said that future presentation documents from the Department should be submitted and forwarded to the Committee Secretariat on time, to allow the Committee to engage with the document and to prepare for the meeting.
The meeting was adjourned.
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