The Committee met to consider the proposed committee amendments (A list) to the Upgrading of the Land Tenure Rights Amendment (ULTRA) Bill:
• Clause 1, the Committee had requested that the upgrading application not only be published in the Government Gazette. NEDLAC's comments, adding a new 1E to the Bill, were to be added and 1D was amended to give effect to the proposed amendments in 1E.
• Clause 4 was amended from " This Act applies throughout the Republic’’ to "As from coming into operation of the Land Affairs General Amendment Act, 1998, the provisions of this Act, excluding sections 19 and 20, shall apply throughout the Republic".
Several further additions were made to the A List, including that the Minister must inform the individual of the outcome of the application in writing. The A List was adopted with these few amendments.
Chairperson's opening remarks
The Chairperson welcomed the Deputy Minister of Agriculture, Land Reform and Rural Development and added that the virtual meeting was a continuation of processing the Upgrading of the Land Tenure Rights Amendment Bill. He had a connection problem in the previous meeting but reassured Members that he was able to listen to the recorded meeting to catch up on what he had missed. At the end of the previous meeting, there were still questions about the applicability of sections 19 and 20 [Legal capacity of a tribe to obtain property / Transfer of tribal land to a tribe] of the Principal Act to the entire Republic of South Africa. The Committee decision was to reject the new section 25A (Clause 4 of the Amendment Bill) and rather to focus on the technical amendments emanating from the Rahube v Rahube Constitutional Court judgment.
This Committee decision was arrived at after a series of engagements with stakeholders and the Department of Agriculture, Land Reform and Rural Development (DALRRD). The Committee considered the call by members of the public had called for constitutional safeguards and protection for informal land rights alongside making sections 19 and 20 in Chapter 3 of the Principal Act applicable to the entire country. DALRRD reported that such protection and communal land tenure matters would be provided for in the Communal Land Tenure Bill which would be introduced in Parliament in 2020/21. It does not make sense to agree to Clause 4 in the manner introduced if there is a parallel process to introduce a new Bill that comprehensively addresses these concerns.
If the Committee were to effect the changes that could be triggered by activation of section 19 and 20 in the former homeland areas, the Committee would not meet the Constitutional Court’s deadline, given that an extension had already been granted. There was no order of court compelling Parliament to do anything with Chapter 3's sections 19 and 20 of the Principal Act, hence the decision to focus on the instructions of the Constitutional Court order.
In this meeting, the Committee will receive the proposed committee amendments known as the A List of the Amendment Bill. Committee members should pay attention to the text and meaning of the proposed committee amendments to ensure they are true reflection of the Committee’s deliberations.
The Chairperson requested the Parliament Legal Advisor to present the proposed amendments that the Committee had mandated him to draft. Thereafter, Members could make inputs to ensure there is consensus.
Proposed committee amendments (A list) to ULTRA Bill
Mr Nathi Mjenxane, Parliament Legal Advisor, said that the A List reflected the Committee’s agreement on what needed to be amended in the Bill. The legal advisors were asked by the Committee to amend Clause 1 and Clause 4 of the Bill. In Clause 1, this dealt with matters on the publication of the application as well as the NEDLAC comments, adding a new 1E to the Bill and amending 1D to give effect to the Committee's proposed amendments to 1E. The legal advisors had extensive consultations with colleagues in the Justice Department and State Law Advisors as well as DALRRD to get consensus on the drafting to ensure they had captured the Committee’s instructions properly.
Mr Mjenxane read the A List proposed amendments to Clause 1 and Clause 4.
Ms M Tlhape (ANC) agreed that the Legal Advisor had indeed drafted the changes the Committee had requested. She added there needs to be an insertion of the wording that stipulates that “the Minister shall inform in writing, identified interested persons with a notice as prescribed, informing interested persons of the application”. People or interested parties who make submissions of applications need to receive feedback in writing from the Minister. She was happy with the rest of the A List amendments.
Ms N Mahlo (ANC) agreed with Ms Tlhape's suggestion.
Ms A Steyn (DA) proposed that Clause 1 providing for the notice of informing interested persons of an application to convert land tenure rights into ownership must include the word “certain” land tenure rights. This is because certain sections of South Africa are still being excluded in the Bill.
She noted that Clause 3 Court Applications of the Bill did not properly capture the Committee’s discussion from the previous meeting. The Committee should include another clause before Clause 3 Court Applications that would speak about the process even before people go to court, as court applications are a long and expensive way for people to try and deal with the matter.
Mr S Matiase (EFF) spoke on the position of his political party. The party’s position was that the Amendment Bill does not take the Committee an inch closer to bringing in all-inclusive legislation in terms of Section 25(6) and (9) of the Constitution which instructs government and Parliament to develop legislation that will realise land rights and land tenure security. This Bill process and the Committee discussions do not attempt to do away with the dual system of land tenure rights. The Committee was engaged in a futile exercise, as the process was instructed by the Constitutional Court and the Committee seeks to comply merely to tick the box and not to deal with the substantive aspects of land tenure rights in the country. Land tenure administration in this country is still skewed and is a tool for perpetuating colonial and apartheid land ownership patterns and does not take the country anywhere. In the next term of government, the Bill will be brought back to Parliament under the administration and government of the EFF and justice shall be done to ensure that proper legislation is formulated and enacted to address the colonial and apartheid injustices.
The Chairperson asked if Mr Matiase had any input on the A List amendments.
Mr Matiase replied that it is not about the language and grammar because the language and the vocabulary in the Bill itself is class biased. This is about emphasizing the class bias of the Bill which does not take forward the aspirations of the working class and the oppressed masses in the country, in particular the African people. Until the substantive aspects of the Bill are addressed, the language, grammar and vocabulary would remain biased towards the ruling class.
Mr N Capa (ANC) was pleased with the A List. It covered some concerns he had raised in the past and he supported Ms Tlhape’s suggestion.
Ms B Tshwete (ANC) emphasised the importance of Ms Tlhape’s suggestion. She reminded the Committee that they had agreed that they would focus only on the technicalities as ordered by the Court. She objected to the adding “certain” land tenure rights as suggested by Ms Steyn. It was unfortunate not to receive Mr Matiase’s own input on the amendments because the EFF was very vocal about public participation on the amendment of Section 25 and had proposals on the matter. The ULTRA Bill is directly linked to the amendment of Section 25 as it guides the implementation process.
Ms T Breedt (FF+) agreed with Ms Tlhape’s suggestion and Ms Steyn’s suggestion. The Committee should add a clause in the A List to address the process before going to court. A court case should be the last resort as it is an expensive process. She agreed with Ms Steyn about the inclusion of other communities, but also agreed with Ms Tshwete that the word should not be “certain” land tenure rights but rather a word that would be inclusive. She was disappointed about the EFF’s stance on the Amendment Bill as the Committee was mandated by the Constitutional Court. Boycotting the Bill would not bring justice to the people of South Africa.
Nkosi R Cebekhulu (IFP) said that the intention of the amendments was to address what the Constitutional Court had ruled. One understands the history of South Africa where women were treated as minors in relation to property ownership. If the Bill intends to address that, then it covers the whole of South Africa. He was concerned about what would happen to the [connection break 0:40:20]. If they apply to own property as individual persons and whether this would not disadvantage their residential communities. The Committee had been on the right path to have the Bill stretch across the country so that even the self-governing authorities would be on par with addressing the land ownership of women.
Ms M Mahlatsi (ANC) said that when dealing with a Bill, interpretation is important. The Committee would not want to have a Bill that has ambiguity in interpretation. The word “certain” would create unnecessary ambiguity in interpretation. She agreed with Ms Breedt and Ms Tshwete that the word should not be added because it may be interpreted in a different way in court.
Ms Mahlo agreed with Ms Mahlatsi's comments.
Ms T Mbabama (DA) suggested that "social media" should be added to the Clause 1 amendment of Gazette, "local newspaper and local municipality office" as it would allow for a broadened reach of the public and keeping up with the times. She asked what would happen to people who have objections against conversions that had happened since 1994.
Mr N Masipa (DA) said that it is important to acknowledge that the Bill is bad law in that the Committee needs to look at all the land bills to address land tenure security. This piecemeal approach is not going to help. However, the Committee needs to move forward with the Bill and ensure that this outstanding matter is addressed.
Ms Tlhape agreed with other Members who were disappointed by the non-participation of the EFF on the Bill. Their input would have been important, as the Bill seeks to address some of the major issues that black South Africans have faced in the past, especially women. There is no need for the use of the word “certain” in the Bill, as it is addressed under Schedule 1 of the Act and is specific on the kind of upgrade or conversion that is being addressed by the Bill. She agreed that the court should be the last option for the people.
Ms Steyn said that even if the Committee amends the ULTRA Bill with the A List and other amendments, there will be other sections of the principal Act that will still be found unconstitutional if people want to challenge it. By including “certain” land tenure rights, the Committee would be clarifying that it is only dealing with the sections the Court ordered amendments to and not including a full change so citizens of the country are not misled.
Mr Matiase said that nothing will change fundamentally through the amending the ULTRA Bill as different forms of land tenure rights would still be in place and remain discriminatory against women and people with disability. Parliament should have explored within its jurisdiction a different product in this legislative process to address the underlying socio-economic issues and the apartheid and colonial legacy.
Ms Mbabama said that the Committee did not discuss the possible forms of relief or redress for those aggrieved by the conversions that took place since April 1994. The Committee needs to include a redress that is just and equitable for the people, especially in cases where matters were not taken in good faith, where they got land from devious ways.
Ms Breedt thanked Ms Steyn for clarifying her point and added that she agrees with it.
Ms Mahlatsi reiterated the points she had made before. She said that the Bill is meant to deal with specific issues. Redress can be dealt with at the level of regulations by the executive. If the Committee were to deal with redress, they would have to be specific on the how and the who. Venturing into that particular space would require numerous processes including numerous legal issues and legal advice which the Committee may not necessarily be able to deal with at this point. This is not the end of the world, as the Sixth Term ends in 2024. Between now and then, there could still be other amendments. However, with this Bill, the Committee was given a clear mandate to deal with specifics.
Mr Masipa thought it was important that the Committee consider the point made by NEDLAC that “where an objection is recorded, the person designated under 1E shall, in addition to the rights of duties referred to in 1E to facilitate mediation between affected parties, report to the Minister the outcome of such mediation. It should specifically state that mediation is continually reported to the Minister.
Ms Tshwete said that Mr Masipa may have missed when the Committee deliberated on this matter. The majority of Members had already agreed on this.
The Chairperson read the additions made to the A List to see if anything else was missing from requests made by Members.
Legal Advisor response
Mr Mjenxane said that the legal advisors had captured the Committee's deliberations on the A List and would amend it to reflect the discussions. He asked if some of the Members could clarify their additions.
The Chairperson agreed and requested Members deal only with changes to the A List.
Mr Mjenxane edited the A List as the Members clarified their additions.
Approval of A list
The Chairperson asked for the adoption of the A List.
The Committee approved the A list.
The minutes of 9 and 13 October 2020 were also adopted.
The meeting was adjourned.
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