ULTRA Bill: clause-by-clause deliberations

Meeting report

Motion of desirability

The Chairperson indicated that the meeting would focus on the desirability of the Upgrading of Land Tenure Rights Amendment (ULTRA) Bill would followed by the clause-by-clause deliberations.

Ms A Steyn (DA) indicated that extensive discussions were held by the Committee and the DA felt that the Amendment Bill was done haphazardly and only dealt with sections of the principal Act which had been found to be unconstitutional by the Constitutional Court. She said there might be challenges to other sections of the principal Act and the Department had not asked for independent legal opinion on the Bill.

She was concerned about the processes followed by the Department as there was no call for comment from sister departments nor was the Bill published for comment beforehand. However, she recognised the difficulty in dealing with the public participation process given the challenges posed by COVID-19. She said that the comments received in the public participation dealt with the tribal areas and the concern was that the Bill would not be specific to those areas since they were not surveyed and mapped out in the last 20 years.

The Chairperson said these comments were the type of comments on the Bill itself that he wanted to prevent as the first issue was to deliberate on the desirability of the bill.

Ms Steyn, seconded by Ms M Tlhape (ANC), moved for the desirability of the Bill.

The Chairperson noted the EFF’s rejection of the Bill by Mr S Matiase (EFF) in the previous meeting.

Ms Steyn then changed her position to a vote of non-desirability because due processes had not been followed by the Bill.

Mr Matiase said the EFF objected to the desirability of the Bill as the Bill failed to secure land tenure system outside of an apartheid land ownership architecture.

Ms Tlhape noted that the IFP had not objected to the desirability of the Bill in the previous meeting. 

Mr Matiase said the IFP should speak for itself.

The Chairperson said it was on record in the previous meeting minutes that this was the IFP’s position.

The Committee secretary, in light of Ms Steyn’s about turn, called for a new motion of desirability to be put before the Committee.

Ms N Mahlo (ANC), seconded by Mr N Capa (ANC), moved for a motion of desirability to be adopted.

The motion was passed, and the Chairperson noted the objections of the DA and EFF.

Clause-by-clause deliberations

Ms Steyn asked for clarification on the deliberations process.

The Chairperson said the Bill would be read and deliberated upon, but there would still be time on to raise issues.

On clause 1, on the amendment to section 2, Dr Tshililo Manenzhe, Committee Content Advisor, said this was the space to raise issues including those raised by the public on what the concerns were and how the legislation could be strengthened.

Ms Tlhape said she was concerned that if every clause was deliberated, it would be time consuming. She requested that the particular sections that had been identified as of concern be deliberated further.

Dr Manenzhe accepted this as it was clearly only a reading and not an adoption and so withdrew his earlier comments.

The Chairperson suggested a read through the entire Bill in the meeting and added that amendments could be put forward with the background of having gone through the entire Bill.

Ms T Mbabama (DA) said theBbill should have been fully read already and in her experience, clauses were deliberated and debated as they were read.

Adv Nathi Mjenxane, Parliamentary Legal Advisor, said the Committee could decide how it did the clause-by-clause reading. He said it was normal in the clause-by-clause reading to omit what was not in the new Bill and the legal team would assist the Committee by developing a list of amendments raised as they processed each clause.

The Chairperson asked if there were any suggested amendments to what was read of the Bill.

Ms Steyn highlighted that  subclause 1(b)(1)(a) which reads as follows “…may apply to the Minister, in the manner prescribed, for the conversion of such land tenure right into ownership…”, should include that someone in the Minister’s office is able to deal with the matter as her concern  was on the  capacity issues within the Department.

The Chairperson mentioned that the Minister had the power to delegate.

Ms Steyn said she assumed that on sub clause 1(b)(1)(c), there would be regulations in the prescribed manner. On clause 1(b)(1)(b) she asked if there was certainty on the township areas having township registers and questioned the locations of these registers and whether they were in place.

The Chairperson said he assumed it was in the Deeds Registry office but that the Committee should confine its comments to the Bill. He would thereafter invite entities to present on various issues raised by the members.

On subclause 1(c), Dr Manenzhe noted previous discussions by the Portfolio Committee on the publications of notices and arguments about accessibility and on whether the way the Bill was written was discussed.

Ms Steyn said that the gazetting of the notice in a regulation dwelt more on regulations and that the publication of such regulations should be could be looked at.

Referring to Ms Steyns comment, Ms Tlhape confirmed that this point had been deliberated. She said the criticism had been that the Government Gazette was not easily accessible and so it was better that other means such as newspapers also be used. The Department had agreed and said it would be in the regulations as well.

The Chairperson said he would look to the legal advisors for the amendment of the clauses to speak to other publications as well as in subclause 1(c)(1A).

Ms Mbabama asked whether subclause 1(c)(1C) referred to rural or customary areas.

The Chairperson said the Communal Land Rights Act (CLARA) Amendment Bill was a separate Bill speaking to land in a formalised township.

Ms Mbabama asked if this meant that the ULTRA Bill was only for townships as sometimes people use the terms rural land and community land.

Adv Mjenxane said he would assist Members to cross reference the Bill, the principal Act and the headings of the sections being amended in the principal act. Chapter 1 section 2 of the principal Act dealt with the conversion of land tenure rights mentioned in Schedule 1 of the principal Act which dealt with leaseholds and deeds of grant and quadrants. All land categories listed in section 2 were being referred to in the Amendment Bill.

Ms Mbabama said the matter was clarified.

Mr Matiase said Ms Mbabama’s uncertainty whether the ULTRA Bill was only for townships and not for rural or customary areas went to the heart of the EFF’s position on the duality of land tenure rights in terms of formal and informal settlements and for land controlled by common law and customary law. The duality was an area the EFF had an issue with as it was not being addressed in the Bill and the Bill bordered on being incomprehensible and incoherent.

On clause 3 referring to the insertion of 14A(1) “…may approach the court for an order …”, Dr Manenzhe suggested the Committee reflect on its discussion on courts and access to courts and clarify which specific court was being referred to in the legislation. A number of people struggle to access courts and there needs to be other means or opportunities were issues can be resolved before having to go to court in the form of alternate dispute resolutions mechanisms.

Ms Tlhape said the courts would always be a last resort but there were disputes resolution mechanisms in the Department and if people were not satisfied, they would go to court. She did not see this as an issue and concerns over dispute resolution mechanisms would be contained in regulations.

Adv Mjenxane highlighted that 14A(1) was a reaction to the Constitutional Court directive in the Rahube case to make the law retrospective and offers the opportunity to challenge conversions since 27 April 1994.

He said clause 4, regarding the Senqu judgement, extended the application on section 3 to sections 19 and 20. Therefore, the Committee could ponder on whether it should only be applicable to section 3, as per the court directive, or should include sections 19 and 20.

The Chairperson asked why the date of 27 April 1994 was chosen.

Adv Mjenxane explained that it was based on the Rahube case and the order was made retrospective to 27 April 1994 but would not invalidate any transfers of ownership, which title was upgraded to ownership or through inheritance or converted to ownership in favour of a woman.

The Chairperson asked why that particular date was used and if the Committee should be thinking about the date itself.

Adv Mjenxane said that based on the deliberations of the previous meeting, he understood that the Committee wanted to focus on the decision of the Constitutional Court.

Ms Mbabama asked the legal advisor what the purpose of the section titled ‘Background’ played regarding the amendments.

Mr Matiase said it gave the historical context on what the Bill sought to be transformed from.

Ms Steyn mentioned that clause 1.2(i) and duality of tribal and communal land dealt with the principal act and clause 1.2(i) spoke to “any right to the occupation of tribal land granted under the indigenous law or customs of the tribe in question”. The principal Act spoke to the land and the surveying of land and asked where the Committee draws the line concerning the matter.  

Adv Mjenxane said that land was already in number 4 in Schedule 2 of the principal act and that the ULTRA made reference to tribal land as there is a Bill dealing with communal land rights that the Department was working on. He said the Bill before the Committee only dealt with issues around the Constitutional Court directives. The memorandum provided context to the Bill and unless there was something glaringly untoward in it, these would not be considered for amendment.

Ms Mbabama said she felt the Memorandum was not part of the Bill so there was no need to read through it.

Adv Mjenxane confirmed this.

On the historical context given in the Bill, Mr Matiase said it was important information as it laid bare the past legislation that had exposed what the court had brought out. This part of the legislation made no distinction between freehold and leasehold land. He asked that the issue of land that would be required be in the legislation.

Ms Steyn asked if Adv Mjenxane could assist on the question of the constitutional implications of 6.1. She agreed with the contents of 6.1 but was concerned about the amendment as the principal Act could be found to be unconstitutional itself. She inquired if the Committee looked at the principal Act or only the amendment Bill placed before it.

The Chairperson said the Committee had agreed to adhere to what the court had asked the Committee to do around the two judgements but also to take into account what the public engagements had brought forth and that there would still be deliberations on the matter on the coming Tuesday.

Adv Mjenxane said that he agreed with the comments of the Chairperson and that the constitutional issue was in relation to the clauses contained in the amendment Bill.

Other matters

The minutes of 26 June, 8 July, 15 July, 28 July, 19 August, 1 September and 4 September were adopted.

The meeting was adjourned.