The support staff of the Portfolio Committee presented on the issues raised by stakeholders during public consultations on the Upgrading of Land Tenure Rights Act (ULTRA) Bill, which specifically responds to the Constitutional Court judgment to address discrimination against women, and inequality towards people residing in communal areas, to ensure tenure security.
Virtual public hearings had been held on five occasions during August 2020. The main questions that had arisen from the Bill were whether there were Constitutional questions arising from the Amendment Bill; whether the Bill adequately addressed the court’s declaration on the invalidity of clauses that violated women’s rights to own property; what the emerging policy and oversight questions from this Bill were; and what possible options there were for taking the Bill forward.
The Committee was concerned that the Bill might not pass constitutional muster, and might be procedurally invalid because of the way public participation hearings were conducted, and the low number of participants. The Committee would wait to hear from the internal legal advisors before making a decision, and should the need arise, would consult external legal advisors as well.
Input on ULTRA Bill
The Chairperson said the Committee would continue its consideration of the Upgrading of the Land Tenure Rights Act (ULTRA) Bill, with input from its content advisors and researchers.
Dr Tshililo Manenzhe, Content Advisor: Portfolio Committee on Agriculture, Land Reform and Rural Development, said that the presentation would highlight what stakeholders had said and what the Department’s responses were, looking at areas of agreement and disagreement, to enable the Committee to make a decision on this matter.
The Upgrading of Tenure of Land Rights Amendment Bill amends the Upgrading of Land Tenure Rights Act (No. 112 of 1991) that provides for the upgrading and conversion land rights into ownership. The Amendment Bill specifically responds to the Constitutional Court judgment to address discrimination against women in Rahube v Rahube and others: 2019 (SA) 54 (CC); and inequality towards people residing in communal areas in Graham Robert Hebert N.O. and Others v Senqu Municipality and others: 2019 (6) SA 231 (CC), to ensure tenure security.
The point of departure was in found in section 25(6) and (9) of the Constitution of the Republic of South Africa. In Rahube v Rahube, the court declared section 2(1) of ULTRA constitutionally invalid insofar as it automatically converted holders of any deed of grant or any right of leasehold… into holders of rights of ownership in violation of women’s rights. This order had been made retrospective to 27 April 1994. The court order had been suspended for 18 months to give Parliament an opportunity to introduce a constitutionally permissible procedure for the determination of rights of ownership and occupation of land.
In considering the Bill, the Committee needed to ask itself if the Bill that they were putting forward was going to report a constitutionally permissible procedure for the determination of rights of ownership and occupation of land. In the Senqu case, section 1 of the Land Affairs General Amendment Act 61 of 1998 and section 25A of the ULTRA were declared inconsistent with the Constitution and invalid to the extent that they did not extend the applicability of section 3 of the ULTRA to the entire Republic of South Africa. As from the date of this order, section 25A of Upgrading of Land Tenure Rights Act should be read as if it made no reference to section 3.
Ms Nokuzola Mgxashe, Committee Content Advisor, said the Committee had received the briefing on the Bill from the Department on 26 June 2020. Publication of a call for submissions had been issued between 3 and 31 July, and then extended to 7 August. Virtual public hearings had been held on 18, 19, 25, 26 and 28 of August. A number of stakeholders were mobilised by Parliament’s Public Education Office (PEO), and of those who registered interest to make oral presentations to the Committee, only 35% had managed to make oral inputs. The rest could not make oral presentations due to challenges such as network connectivity, unavailability, data issues, etc.
Ms Tembisa Pepeteka , Researcher: Department of Land Reform & Rural Development, spoke about the specific comments made with regard to the Amendment Bill.
There was a proposal to revise the long title to include reference to clause 4 by the Western Cape Government Ministry of Agriculture. There had been no comment from the Department. The recommendation was that this made sense since the Bill amended section 25A of the Act, which was covered by clause 4 – to provide that the Act applied throughout the Republic.
Clause 1 (c) (IA) provided for the publishing of notices for applications of conversion in the Government Gazette. This was critiqued because the Government Gazette was not easily accessible to the poorest and most vulnerable people, especially the women who tenure rights this Bill aimed to protect. The proposal was that the notice be published in national, provincial and local newspapers and posted at community halls in local languages and proactive ways of notifying interested family members and interested persons. The response from the Department was that they agreed with the proposal, and the process would be outlined in the regulations in terms of the Bill. The recommendation was to consider including this amendment in the Amendment Bill.
Clause 4 amended section 25A of the Act by amending that the Act applied throughout the Republic, which meant it covered sections 3, 19 and 20 of the Act, i.e. communal areas. The critiques included the fact that extending the application to sections 19 and 20 may make it possible, in theory, for traditional leaders to apply for transfer of communal land to traditional councils, without the constitutional protections provided for in the Interim Protection of Informal Land Rights Act (IPILRA) and customary law, for individual, household and overlapping rights. In addition, the ruling in the Herbert case had specified that Section 25A should refer to s.3, and did not refer to s.19 and 20.
It was proposed by various interested parties that Parliament must consider the appropriateness of extending the application of s.19 and 20, and traditional leaders had suggested that all tribal land where there was no dispute should be transferred to Traditional Councils. The Department did not support these proposals.
Some of the issues to consider for Clause 4 included:
In Senqu, the Constitutional Court ordered the invalidity of 25A to the extent that it did not make s.3 applicable across the country (not s19 and 20);
25A amendment (extending application of s19 and 20) provided equal protection for all citizens, irrespective of their geographic location; and
In view of s25(6) of the Constitution, how would ULTRA ensure secure land tenure for people living in communal areas, acknowledging the complexity of layered and overlapping land rights existing in communal areas whilst avoiding perpetuating the apartheid parallel land tenure regimes with lesser rights for people in communal areas?
The Department’s response was that only three sections out of 26 in the Act dealt with communal areas but had not been implemented in communal areas, and these were not valid reasons to disagree with the proposals not to extend the application of s19 and 20 to the rest of the country. In terms of a 2009 Department of Land Affairs (DLA) report, ULTRA was not applicable in communal areas, as it did not reflect the multiple levels of rights that existed in many holdings in those areas.
The Department stated that s20 of ULTRA allowed the Minister to transfer communal land to communities and not traditional councils as perceived. However, transferring land to a council would in effect not be a transfer to a community but a transfer to another organ of state. At the same time, the Department reported that it was still grappling with the issue of whether transferring land to traditional communities meant transferring to the traditional council, as it was the management structure. Department had sought legal opinion on this matter.
Most presenters who objected to the application of sections 19 and 20 throughout South Africa were people with expertise and practical experience in the field. This implied that they might have valid reasons. The recommendation was that the Committee should consider seeking legal opinion on the implications of extending the application of the Act to sections 19 & 20 to ensure that it was constitutional and would not trump land rights of people living in communal areas.
The other issues on the Bill included the concern that the Department had indicated that other matters raised during public hearings would be addressed in the regulations, while regulations had never been tabled in Parliament, and matters that would be dealt with in the regulations included the nature of enquiry to be conducted, details of how objections would be dealt with, and the prescribed manner in which the Minister would process applications. The recommendation was that in the deliberations, the Committee should consider identifying important issues that could not be left for inclusion in the regulations, and ensure that they were factored into the Bill – for example, notices in the Gazette etc. The Committee should also consider requesting the Department to table the regulations in Parliament and present them to the Committee for consideration in order to ensure that the commitment to include the issues was met, and for the Committee to assess if they were implementable.
Stakeholders had identified gaps in ULTRA that undermined section 25 (6) of the Constitution which, if not amended or removed, may expose the Bill to constitutional challenges. An example was the use of the term ‘tribe,’ which was outdated and was no longer acceptable. Section 20 made no provision for the recognition and protection of individual, family and group rights to land transferred to a tribe. The ULTRA was rooted in the notion that titled private property rights, which was completely incompatible with the tenure systems based on customary law and those that had developed outside the formal Deeds Registry system. The Act was meant for urban areas, as they were surveyed and primarily had individual tenure regime, whereas there were different layers of land rights in communal areas not recognisable by individual titling system.
The proposals were that there be a complete review of ULTRA instead of piecemeal amendments, to make IPILRA permanent, regulations passed, and its applicability alongside ULTRA made explicit in these amendments, and to focus on the bigger question of how best to secure land tenure rights. The Department responded by saying that the process to review land tenure reform legislation, and to come up with a comprehensive tenure reform policy and Communal Land Tenure Bill, had started. They had not opposed making IPILRA’s application permanent, but tenure security would be provided for in the Communal Land Tenure Bill that would repeal IPILRA.
Amendments to Schedules 1 and 2 were specifically to include the KwaZulu-Natal Ingonyama Trust Act, 1994 (No. 3 of 1994) and the Venda Land Affairs Proclamation No. 40 of 1990. The recommendation was that there was a probability that the constitutionality of some sections of the Act may be challenged, which meant the Committee might be required to amend the Act again. The Committee then needed to decide whether to limit itself on the current amendments or amend all sections in the Act that might be challenged in court.
Dr Manenhze said that the key questions drawn were as follows:
Were there Constitutional questions arising from the Amendment Bill? He said that from the discussion above, there definitely were questions.
Did the Amendment Bill adequately address the Court’s declaration of invalidity of clauses that violated women’s rights to own property?
What were the emerging policy and oversight questions from this Bill?
What were possible options for taking the Bill forward?
The constitutional questions raised include the fact that stakeholders did not believe the steps taken thus far had sufficiently facilitated or accommodated public participation as provided for in the Constitution. It was also raised by the Western cape MEC for Agriculture, that the Bill was not published for public comment before it was introduced in Parliament in accordance with normal practice, and in terms of section 154(2) of the Constitution, as it was going to affect the status, institutions, powers and functions, of local government. The recommendation was that the Committee should prepare a report that would be made available to the stakeholders concerned.
The Committee should consider whether the virtual hearings by Parliament, together with written comments, were adequate. There was a concern over section 19 and 20 being extended to the rest of the country without constitutional safeguards of citizens, households, and peoples’ land rights. There were also questions with regard to whether the court orders were adequately addressed. The manner in which it was written failed to consider that from ULTRA’s inception, all properties affected by the Act had already been upgraded. There was extension of procedural and ownership powers to the Minister to transfer land to “tribes” in former Bantustans, without any cognisance or reference to the constitutional safeguards of citizens, households, and peoples.
ULTRA, and the amendments, changed de facto family rights to de jure individual rights, which was a radical once-off action that was unlikely to be successful in its present formulation. In other words, ULTRA’s de jure conversions to ownership did not match de facto family rights and their protections according to family law and customary norms -- ULTRA did not address collective and overlapping rights to the commons.
The policy and oversight questions included the fact the Bill placed the obligation on the Minister to handle applications. What capacity existed in the Department to speedily deal with all applications at a pace expected by applicants? There were capacity constraints to address, such as enquiries into the facts of the applications, and that there was no budget, no tenure extension officers and no dispute resolution mechanisms in place.
The Land Tenure Policy and Communal Land Tenure Bill must be finalised without delay to address many concerns raised by members of the public. There were three options given with regard to taking the Bill forward:
Accept the Bill and redraft it to ensure that the gaps and weaknesses highlighted above were catered for. The Committee needed to apply to the National Assembly (NA) for amending sections that were not included in the Bill. It might take more time, thus affecting chances of meeting the deadlines agreed to with the Constitutional Court.
The second option was that the Committee could accept the Bill, with amendments to address Rahube and Senqu objectives -- reject the 25A amendment that makes s.19 and s.20 applicable to the rest of SA. The Committee should finalise the Bill on time to enable the National Council of Provinces (NCOP) to facilitate its processes in order to meet the deadline set by the Constitutional Court. The Committee should instruct the Department to finalise the Tenure Policy and Communal Land Tenure Bill by April 2021, for example, so that all questions related to s.19 and s.20 were addressed in that comprehensive tenure legislation.
The third option was that the Committee accept the Bill as is, with changes agreed to with the Department, and meet the deadline agreed to with the Constitutional Court.
The Bill, once enacted, was open for constitutional challenge on both procedural and substantive grounds, as discussed above.
Ms M Tlhape (ANC) asks what the view was on the number of stakeholders reached during the process, as opposed to how they were reached. KZN had had the lowest number of stakeholder engagements, and she wondered if this would not affect the constitutionality of the Bill. She asked why the presenters thought that the name change mentioned in Clause 4 should be in the Amendment Bill, and not in the Regulations. She agreed that there needs to be a process of appeal, and that the courts should be the last resort. She asked if they could say that they had successfully addressed the court orders and moved forward with the Bill. Other processes would be followed that covered the concerns of the public.
Ms N Mahlo (ANC) said she agreed with Ms Tlhape with regard to the process of appeal and the courts being the last resort. Regarding the concerns raised by the public, and the low number of public participants in some areas, what did the advisors think the Committee should do? Should the Committee conduct public hearings again?
Ms T Mbabama (DA) submitted that the principle Act was flawed from the word go. She said it was important to consider this when considering the Bill, and the Act should have been repealed by now. The Department had not adequately consulted when making the amendments and this could be challenged as well. She was worried that they might be challenged with regard to the number of people who participated in the hearings and gave submissions. The idea that they should go to Parliament and ask for other amendments to the Bill was a sound idea, and as a Committee, they should consider this. She asked what the deadlines from the Department were for finalising the Communal Land Tenure Bill that would repeal IPILRA. The extension of section 19 and 20 to the rest of the country might be problematic. It was her personal view that this Bill should be scrapped altogether.
Mr S Matiase (EFF) said that the number of people who attended the hearings had been nowhere near the number of people who usually attended these hearings. He doubted that the Bill would pass constitutional muster due to the procedural challenges brought up by Members earlier. He said they should make the process as inclusive as possible to ensure that it passed constitutional muster. Land reform in the country was premised on three distinct and interrelated programmes -- land restitution, land redistribution and land tenure. Land tenure was the thorniest of the three, especially for people considered to have insecure land tenure rights, such as farm workers, women particularly, and people residing in former Bantustans. This Bill needed to be located in its proper context -- the context of needing to amend s25 of the Constitution. He proposed that they review and start the public participation process all over again.
Mr N Capa (ANC) said that there had been a lot of work done that could not be undone. He would like a way for them to justify the public participation process, in light of the circumstances that had accompanied it. He asked if they could identify the areas that could face constitutional challenges.
Ms T Breedt (FF+) referred to the way the public participation process was handled, and said she did not think much more could have been done, given the circumstances. She suggested that they could look into opening the process again, or consult legal advisors, as she would not like to see their work go to waste. Regarding the options given to them by the content advisors, she asked if they should take option one -- to rework and re-table the Bill. How would this affect the process and the work that had already been done? She asked the content advisors if the amendments would be in contravention and found invalid, or should they get a legal opinion on it, as she thought they would be found to be invalid.
Mr N Masipa (DA) said that there was a constitutional issue that they would be challenged on. The procedure followed was also another issue that they faced. They needed to go forward, but they had problems. The implementation issues were a problem for them. There were two policies that were going to help them -- the land policy which had not been concluded, and the Land Tenure Bill, which was not in place as yet. With regard to the first option given to them by the content advisors, their job was oversight, so would they not be taking over the Executive’s role in accepting this option? The second option would bring about publication issues, as raised by the MEC of Agriculture for the Western Cape. He said that they should maybe approach the Constitutional Court for an extension on the deadline. His opinion on the matter was that they should get a legal opinion to guide them on how to go forward.
Mr M Montwedi (EFF) said that the Committee had to address key issues raised by the court, and not just meet the deadline. Some issues had not been adequately addressed, and that could end them up in court again. He asked that if there was a need, why did they not approach the Constitutional Court for an extension, so that they could start the process again, as there were issues regarding public participation. He asked if there was capacity in the Department to implement the Act when it was enacted. Their best option was to approach the Constitutional Court to ask for an extension or alternatively, to get a legal opinion, to explore their best option.
The Chairperson asked what the proposals were to deal with the retrospectivity of the land that had already been transferred to tenants. What would the impact on land reform programmes be, especially land ownership transferred under the Upgraded Land Tenure Rights Amendment Bill. With regard to the Senqu judgment, the Bill was silent on how to deal with an application for land tenure rights by legal entities or companies, and what this would mean in terms of land expropriation without compensation.
On the use of the word ‘tribe’, which could be deemed unconstitutional under s25 of Constitution, and public submissions had been silent on the proposals, Dr Manenhze suggested that they do away with the word ‘tribe,’ and he asked if this was even possible. The Bill was silent on the Spatial Planning and Land Use Management Act (SLUMA), and he would like content advisors to clarify this.
On the submissions made by the lawyers for human rights, they had proposed that the family institution should be recognised as the legal entity, and had responded that customary law was applicable in urban areas, so it would be possible to transfer ownership of land to family units under customary or common law. He thought that customary did not apply in urban areas or townships, and that common law took precedent over customary law. Customary law was largely applicable in rural and traditional areas, where there were traditional leaders.
He asked how they could handle the proposal for the upgrading of urban land into full ownership of the family. There had been a presentation by the Singabalapha Housing Movement, who had raised concerns around land evictions and land tenure for urban dwellers. In light of their submission, how would the Committee be able to draft the Bill in such a way that it legally protected the family land rights in urban areas? The Liquor Products Amendment Bill had been returned by the President, solely because the National House of Traditional leaders had not been consulted as they should have been, as it affected traditional customs. The Department had been advised by the Chief State Law advisors that it was not necessary to consult the National House of Traditional Leaders. They had advised the Department to focus only on the areas highlighted by the court ruling.
Ms Mgxeshe said she was not sure of the yardstick for the numbers that the Committee should have for public participation, and that was why they had presented the numbers “as is” to the Committee so that they could decide if they were satisfied.
Ms Nontobeko Qwabe, parliamentary researcher, said that the South African Local Government Association (SALGA) presentation had indicated that they would like to have an extension of the public participation process so that they could consult further. This tied in with the constitutional question of how the Bill would affect the status and powers of local government. If the extension could happen, it would aid in closing the gap presented by s154 of the Constitution. The Committee also needed to draw attention to the fact the National House of Traditional Leaders had made an oral submission and a written presentation, in which there was a comment that indicated that they would like to withdraw their participation, or withdraw their submission. They do not have enough data to compare, they might need to check the rural verses urban bias of the communities that had been able to make representations before the Committee.
Dr Manenzhe referred the Committee to a letter from the National Economic Development and Labour Council (Nedlac) with regard to the public participation process, where there were issues over consultations that did not follow procedure. Nedlac was making recommendations on clauses, which was something that should have been done in the Executive by the Department. This opened up Parliament to many challenges. It was the Committee that needed to decide whether their public participation process had been adequate, given what had been presented.
There was a suggestion that the Committee draw from the provisions of the National Environmental Management Act (NEMA) on how to do notices. That was already provided for in the legislation. The Restitution of Land Rights Act gave a bit of detail about how notices must be done. He felt that it was an important matter to include in the Bill, and not in the regulations. From their reading, it would not be detrimental not to extend s19 and s20 to the rest of the country at this point. The Committee should consider bringing in external legal advice, especially on the issue of consultation and the extension of s19 and s20. Their recommendation was that the Committee should listen to the parliamentary legal advisors first and if they were not satisfied, then they could get external legal advice.
The Committee should discuss the time factor, the need to have thorough consultations, and what they should do now. It could accept the Bill and redraft it, and that would be part of the overhaul system. A complete overhaul system would require Parliament to have a land tenure policy from the Department, which the Department was still developing. There was a discussion about title deeds and titling, which perpetuated individual land ownership. In their nature, they excluded people, not like the customary systems which were inclusive in nature. These were the issues that would need to be resolved in order to apply s19 and s20 to the rest of the country.
What was important was that the Committee had to put forward a piece of legislation that would pass constitutional muster. The financial implications of a having a piece of legislation that would be challenged in court was that it would be Parliament that would be taken to court, and would thus have to pay a lot of money for legal advisors and legal representatives. This could be avoided by solving the issue within the Committee, before stakeholders took matters to court.
With regard to the number of people who had participated in the public participation process, the numbers come from a process that is run by Public Education Office in Parliament. They were still working with them to analyse the numbers. He supported the suggestion that the Committee invite the PEO to come and explain the numbers to the Committee.
With regard to the word ‘tribe,’ and whether it was something that could be done away with, he said that since 1994 there had been a shift from using the word ‘tribe’ because of SA’s history. The Restitution of Land Rights Act spoke about communities rather than tribes. With regard to the use of customary law in urban areas, he suggested that the Committee ask the Department on this and consult the legal advisors.
Ms Pepeteka referred to the question on issues that could be challenged in court, and said they could include matters raised by stakeholders in the public hearings, such as expanding s19 and s20 to the rest of the country.
Ms Mgxesha said that the actual number of participants in the public participation process had been 441.
(There was a break in proceedings due to connectivity problems)
Ms Mbabama said that they should listen to what the legal advisors had to say once their questions had been sent to them. They should also be thinking about the possibility of conducting public hearings again. She would like the Committee to consider scrapping the Bill as a whole.
Mr Matiase said the last two weeks had been trial and error, and had not yielded the desired outcomes. The judgments mentioned showed that Parliament had not been doing its work. He said the courts should give them time to address the issues that were present.
Mr Capa said that they should meet with the legal advisors after they had been consulted by the researchers and content advisors.
Ms Breedt agreed that they should hear what the legal advisors had to say, and her suggestion was that they should relook at the Bill in its totality.
Ms B Tshwete (ANC) agreed with the motion to seek legal advice.
Mr Masipa agreed with his colleagues with regard to getting legal advice. They agreed with what the content advisors had said. He suggested that they remove the options when consulting with the legal advisors.
Mr Manenzhe said that they would liaise with the legal advisors. However, they should not remove the options as they were internal legal advisors and needed the full information. He suggested that they give the entire presentation to the Parliamentary legal advisors.
Ms Qwabe said that it could help if, through the secretariat, the Committee could write to the Department to get an estimate of when the Land Tenure Policy would be ready.
The Chairperson says this concluded their session with the content advisors and researchers.
Adoption on Committee minutes
The Members considered and adopted the minutes of the Committee’s meetings on 25, 26 and 28 August 2020.
The meeting was adjourned.
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