ULTRA Bill: further deliberations with the Deputy Minister

Meeting report

Chairperson’s Opening remarks
The Chairperson noted that the Inter-Ministerial Committee had placed the Expropriation Bill before a parliamentary Ad Hoc Committee and Members of the Committee deployed to the Ad Hoc Committee would have to look at how it impacted on getting one system of land tenure for the country.

Since the publication of the Upgrading of the Land Tenure Rights Amendment (ULTRA) Bill, the Committee had considered written and oral submissions, and had received responses from the Department of Agriculture, Land Reform and Rural Development. In its last meeting on the Bill, the Committee adopted a motion of desirability, noting that the attention had been determined through a Constitutional Court order.
 
In essence, the question of the desirability of the Bill was determined by the court order, which compelled Parliament to remedy the defects in the principal Act. Therefore, the amendments necessitated by the court order in both the Rahube and Senqu matters were non-negotiable. As a result, Clause 4 of the Amendment Bill, as it related to Section 3, 19 and 20 of the principal Act, was excluded from the Amendment Bill. The reasons for the rejection of Clause 4 were that the Senqu judgement did not order Parliament to do anything; it simply lifted the suspension of Clause 3 to apply across the Republic of South Africa. What was left to do was to update the statutes. The Committee should ascertain if Clause 3 provided adequate protection of land rights required in Section 25(6) which the Rahube judgement ably pronounced on. If not, the Committee might wish to explore the inclusion of protections such as those in the Interim Protection of Informal Land Rights Act (IPILRA).

During public hearings, the Committee heard Members of the public lamenting the fact that ULTRA, pre-1994 legislation was not compliant with the Constitution on its own, was an inadequate piece of legislation to address the complexity of communal land rights administration and offer security of tenure required in Section 25(6) of the Constitution.

Sections 19 and 20 fell short in taking into consideration the layered or nested nature of rights and customary land rights in communal areas of South Africa. Therefore, making these sections applicable throughout South Africa did not even begin to address land tenure insecurity.

Lifting the suspension of Sections 19 and 20 would require an overhaul of the entire legislation - which might be a futile exercise - because the Minister of Agriculture, Land Reform and Rural Development had made a commitment to introduce the Communal Land Tenure Bill (CLTB) in this current financial year.

It was important to note that the Committee was extremely concerned about a piecemeal approach to developing comprehensive legislation that would ensure Parliament honours its obligation as required in terms of Section 25(6) and (9) of the Constitution of the Republic of South Africa.
 
Section 25(6) provides that: “A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or comparable redress”
 
Section 25(9) provides that: “Parliament must enact the legislation referred to in subsection (6)”
 
As discussed during the previous meetings, most of the substantive comments from stakeholders and members of the public brought to the attention of the Committee that the Interim Protection of Informal Land Rights Act (IPILRA) was an interim measure with some limitations, although useful to ensure some measure of constitutional protections of the informal land rights of citizens. The Committee unanimously agreed that legislation required in Section 25(6) was long overdue, and must be a priority for the Committee during the remaining term of the financial year.

It was felt that firstly, the Committee should invite the Minister to present the broad frame and key principles of the Communal Land Tenure Bill and how it sought to address concerns of tenure insecurity and land administration in communal areas. As stakeholders told the Committee Sections 3, 19 and 20 were inadequate provisions to provide security of tenure.

Secondly, the Committee should develop a calendar or program which the Department must follow to ensure that the Communal Land Tenure Bill was introduced for processing preferably before the end of this financial year. In this way, the Committee would be able to address the concerns raised by members of the public, which the Upgrading of Land Tenure Amendment Bill currently before the Committee was unable to deal with. The previous Friday, the Committee commenced deliberations of the amendments by reading the entire Bill, as introduced in Parliament, highlighting some of the issues that should be addressed in the amendment. He referred members to a report on the public hearings and to a summary of written submissions as useful points of reference. The Committee would continue to deliberate on the clauses and in its next meeting; the Committee would consider the A-List Bill (Committee amendments) before reading the B-version of the Bill clause by clause.

All Members expressed their appreciation of the summary and some added that they were concerned that contentious issues raised by the public were not dealt with in the Bill and did not like the piecemeal approach to legislation.

The Chairperson asked Ms M Tlhape (ANC) to chair the meeting henceforth as he had IT connection problems.

Discussion
Ms Steyn proposed an amendment to the objects of the Bill, as proposed by the National Economic Development and Labour Council (NEDLAC), by the inclusion of the word ‘certain’  in the second line so that it read:  “application for conversion of [certain] land tenure rights to ownership…” which would bring the Bill back to its original version prior to being changed in 1996. The Bill would not be applicable for the whole of South Africa but only for certain parts of the country. 

Mr N Masipa (DA) also raised a matter brought up by the NEDLAC, that in Section 2, the Committee should consider adding a clause 1(E) after 1(c)(1D) of Section 2 of ULTRA, where the Minister had to designate an officer of the Department or a suitably qualified person who would have all the rights and duties to conduct the enquiry. Where no objection was received within the prescribed period, the land tenure rights would be converted into ownership. Where objections were recorded the person referred to in 1(E) would facilitate mediation between affected parties and report the outcomes to the Minister.  Where applications were disputed, it could lead to constitutional challenges akin to those raised related to the Communal Land Rights Act as in the Tongoane case and there could be cases where there could be several rights and overlapping rights existing in the same property. Therefore, a contested application should be referred to the courts as they made orders that were just and equitable while acknowledging that a party aggrieved at the Minister’s decision still had the right to approach the courts.

Ms N Mahlo (ANC) said Mr Masipa’s input could be considered.

Ms Steyn supported the inclusion of Mr Masipa’s proposals.

Adv Nathi Mjenxane, Parliamentary Legal Advisor, said that there was nothing contradicting the law in Mr Masipa’s proposals.

Ms B Tshwete (ANC) wanted clarity on what Ms Steyn was saying on subclause 1(E) and 1(F) that she was referring to, but she would be in favour of 1(D) which would be sufficient.

Mr Theo Hercules, State Law Advisor, said, subclause 1(D) indicated that the application or process for an objection would be prescribed and dealt with in the regulations. That would be the legal mechanism for processing done by the enquiry that would be instituted by the Minister and so those matters could be dealt with by the regulations.

Ms Steyn said she supported the NEDLAC proposals of the inclusion of subclauses 1(E) and 1(F) because this would make the legislation clearer and because of concerns over the capacity within the Department.

Mr Masipa said the Committee should seriously consider the NEDLAC proposals of 1(E) and 1(F).

Ms Mahlo said 1(D) meant the Minister had to implement whatever was needed, so why should there be the consideration that the Minister did not have the capacity to implement in the Department. 

Ms Tlhape said the legal drafters should include both proposals in the Committee’s list of amendments subject to further debate by the Committee.

On the amendment of Section 4 of Act 112 of 1991, there was no comment.

On the insertion of Section 14A in Act 112 of 1991, there was no comment.

On the substitution of Section 25A of Act 112 of 1992, as inserted by Section 1 of Act 61 of1998 and substituted by Section 46 of Act 11 of 2004, there was no comment.

On the Short title and commencement, there was no comment.

Mr Masipa said that if Section 25A was included and applied to whole Republic, it would then trigger Sections 19 and 20 and in turn touch on the Communal Land Amendment Bill while the focus was to only comply with the Constitutional Court order. Therefore, Section 25A should remain as is and not be applicable to the whole Republic.

Ms Steyn supported Mr Masipa’s argument. On the insertion of Section 14A in Act 112 of 1991, she said some wording needed to be included so that it did not only focus on court applications as court applications were very costly and the amendment should include alternative dispute resolution mechanisms.

Ms Tshwete said that communal land was not the priority for now.

Mr N Capa wanted clarification on whether Section 25A of the Act applied throughout the country and did this refer to townships that were in the Transkei, Bophuthatswana, Venda and Ciskei (TBVC) states or townships that were always in the Republic. 

Adv Mjenxane said Section 25A of ULTRA which was declared unconstitutional with reference to Section 3, was introduced through an amendment of the Land Affairs Amendment Act of 1998 and this suspended the application of Section 3, 19, 20 throughout South Africa and specifically the TBVC states. The court order only suspended Section 3 as being constitutionally invalid, that is, that Section 3 dealing with the conversion of land tenure rights, applied throughout the country and the amendment process would give effect to what the court said in 2018.

Mr Masipa said that if 25A was accepted and applied to the rest of the Republic, it would then apply to a piece of land and would not necessarily refer to just the townships, it would be the whole of the Republic, yet rural areas were not surveyed. ‘Was it correct to say that when 25A was triggered then Sections 3, 19 and 20 would be applicable to rural areas’?

Adv Mjenxane reminded members of the discussion of the previous meeting where the legal advisors advised that it would be advisable to only stick to what the courts had ordered. The Senqu judgement only pronounced on Section 3 and the law of Section 3 applied to all territories, but Sections 19 and 20 remained suspended from the application and an amendment was done to update legislation.

On Sections 19 and 20, he said Section 19 dealt with the legal capacity to obtain property and Section 20 dealt with the transfer of tribal land to a tribe. These sections were contentious, generating a lot of public input. If Sections 19 and 20 were extended throughout the territories, it would exacerbate insecure land tenure in communal areas. The CLRB would be coming to Parliament to regulate the issue of security of tenure in communal areas and so ULTRA should not extend its application to Sections 19 and 20. It would be prudent to confine legislation to what was requested in the Senqu judgement. The court had already decided on 25A in Section 3 to be the law, but it was just not written in law yet.

Ms Steyn said she could not understand, because one could not only look at the Amendment Bill. One had to look at what the Amendment Bill did to the principal act. So, the Amendment Bill would include Sections 19 and 20 as the Original Act included Sections 19 and 20. She proposed that the researchers write the amendment bill’s clauses, including the proposed amendments, into the principal act so the Committee Members could read it as such.

Mr N Capa (ANC) asked if laws could be made that did not apply to some parts of South Africa.

Adv Mjenxane said the Senqu judgement referred to the ULTRA legislation of 1991, near the end of apartheid, when the state was balkanised to include the TBVC territories and where the law did not automatically apply to the TBVC states. In 1998 an Amendment, 25A, was done to make it applicable to the whole of South Africa, but three sections of ULTRA were suspended, Sections 3, 19 and 20. The Senqu judgement complicated the matter as extensive rules were needed to administer the legislation and so the court constrained itself to deal only with Section 3, which dealt with the automatic conversion of rights and did not deal with Section 19 on legal capacity to obtain land in communal and tribal areas and Section 20 the transfer of tribal land as these needed extensive regulations to administer.

He said that by updating the legislation new laws were not being made, because the court had already made that in 2018. In abiding by the court’s decision to amend Section 3, the Committee effectively amended Section 2.1 so that legislation did not discriminate against women, as was found in the Rahube judgement. Sections 19 and 20 were still suspended and CLRB was set to be introduced by the Department to regulate tenure security in communal areas.

Adv Sello Ramasala, Head of the Legislation Development Unit at the Department, said that the challenge remained that the Bill’s introduction sought to make the act apply throughout the Republic. From the public hearings, the Committee’s Content Advisor was convinced by the arguments of stakeholders during the public participation process that to make Sections 19 and 20 applicable to the whole of South Africa would not be protecting individual tenure rights in rural areas. The Minister would be transferring the communal land to traditional leaders, depriving individuals of their rights. That fear should not stop Sections 19 and 20 from being applicable because the premise was that it must be applicable to the whole country, otherwise there would be challenges, just as there had been challenges to Section 3. The Content Advisor was convinced of the Legal Resources Centre (LRC) and the Law Research Centre of UCT’s arguments. He would still propose that Sections 19 and 20 be applicable throughout the Republic also be included in the Bill as it was introduced.

Ms Tlhape said the Committee’s submissions would be noted by the drafters who would bring a draft A-list to the next meeting.

The meeting was adjourned.