Land Claims Commission: briefing

Committee: Agriculture, Forestry and Fisheries

Date of Meeting: 22 Sep 1999

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Minutes

AGRICULTURE & LAND AFFAIRS PORTFOLIO COMMITTEE
22 September 1999
LAND CLAIMS COMMISSION: BRIEFING

Documents handed out:
A National Profile Of The Restitution Process - September 1999 (attached to end of minutes)

SUMMARY
Mr Mgoqi, Chief Land Claims Commissioner, presented the committee with a summary of the Commission's work since February 1999 which included challenges that are being faced and plans for the future.

MINUTES
Mr Mgoqi, Chief Land Claims Commissioner, made a presentation to the committee regarding the advancements of the Land Claims Commission to date (Appendix 1).

Questions and Answers
The first question from the committee dealt with the Commission's time frame for dealing with the remaining sixty-three thousand cases. The Member wanted to know whether or not five years was a realistic goal.

Mr Mgoqi felt that a five-year goal was completely realistic and accurate. He feels that with new and more efficient systems in place the Commission should not find it difficult to reach that objective.

The next question surrounded the use of the administrative process in place of court processes. The member was curious as to whether a claim that had been settled administratively has been challenged.

Mr Mgoqi replied that so far not one agreement that has been reached through the administrative process has been appealed.

The question dealing with the Commission's five year time frame was questioned again. The committee member felt that five years was extremely ambitious and ten years seemed more reasonable. The Member was specifically worried about the goal of having 500 claims settled in each province before March 2000. Since every region as well as its claims are unique, it seems questionable whether a common goal should be set up for each region.

Mr Mgoqi defended the Commission's goals by stating that it was necessary to set goals and objectives. He believes that it is important for the Commission to have something to work towards. He reiterated that five years is a realistic goal.

Mr Ginida (ANC) inquired into the claims rejected. He wanted to know the reasons why. In addition, Mr Ginida wanted to know about claims that have been rejected because of lack of evidence. He wondered how the evidence is collected.

Mr Mgoqi responded that many claims are rejected because the people do not meet the criteria of being displaced by racially motivated laws and practices (after 1913). Mr Mgoqi added that the Commission does everything possible to assist claimants in preparing their claims. The decision to reject a claim is not taken lightly and every effort is made to ensure the proper decision is made.

Mr Masala (ANC) asked Mr Mgoqi if it was possible to have a list of the claims that have been rejected so far. He asked specifically about the five claims made in the Eastern Cape and wondered why there were so few claims settled in that area.

Mr Mgoqi explained that the numbers in the Eastern Cape were small because most of the claims were from communities living in historically disadvantaged areas. These factors are making it difficult to meet the requirements that people must have to prove that they are entitled to that area. In addition, there have been several disputes in the Eastern Cape which have slowed down the process. Mr Mgoqi predicts that this situation will be rectified and there will be approximately 1050 cases passed in the Eastern Cape by March 2000.

Prof Ngubane raised more concerns around the Commission's goal for completing all of the claims in five years. She felt that looking at the current rate the claims will all be dealt with in ten years not five. Prof Ngubane also wondered if it was possible for the Commission to separate the statistics concerning urban claims and the statistics concerning rural claims in order to clarify what kinds of claims are being dealt with. She was concerned that there is a general perception that people in rural areas are not benefiting from the Land Commission because the statistics are clumped together.

Mr Mgoqi agreed that the statistics do not always reflect what is happening in the rural areas. The latest statistics show that the Commission will benefit approximately one million people in urban areas and four million in rural areas. The Commission agrees that these statistics should be made available to eliminate generalities. In addition, it may appear that people in rural areas are not benefiting from the Commission because there are fewer claims in rural regions. However, a greater number of people are affected by these few claims. Also, most of the claims in urban areas are dealt with faster because there is normally clear documentation.

A committee member wondered if another contributing factor to the slow process was ignorance. For example, perhaps there are not enough people informed on the process and what the proper steps are to file a claim.
Mr Mgoqi explained that every effort is being made to make people aware and inform people of the Land Claim Commission. He does not feel that ignorance is an issue.

Mr Botha (Democratic Party) asked if an individual can claim that, even though they received compensation, they were forced into selling their land, and consequently forced to leave.
Mr Mgoqi explained that this kind of claim is not valid according to the legislation enacted. The legislation states that individuals who received fair compensation are not able to make claims.

Mr Ginida (African National Congress) addressed three questions to Mr Mgoqi:
(1) What is happening to people who were not forced off their land but had land that they were using for farming used by other individuals? In other words, what is happening to the people whose land became overcrowded?
(2) According to legislation, in 1913 and 1936 farmers were suppose to register dwellers on farms. However, archives show that this often did not happen. Therefore, there are individuals who have been evicted from farms and there is no way of proving it. What happens to their claims?
(3) Finally, if a person is not satisfied with the result of their claim, how can they protest? Since the Land Claims Court is independent of the Constitution, how does the appeal process work?
Mr Mgoqi answered the questions as follows:
(1) There was no clear answer regarding the first question. Individuals must prove that they lost their land because of racial practises. If they can do that than their claim will be accepted
(2) The Land Claims Courts accepts oral and hearsay evidence in cases where records are not available. Since it is common to have missing records they accept alternative evidence even though most courts do not.
(3) There is a double appeal process for claims that are rejected if people feel they have been treated unfairly.

Mr Sigwela (ANC) asked whether or certain aspects of claims should be referred to other Commissions. For example, if during displacement, individuals died.

Mr Mgoqi responded that claims that involve death are not referred to other Commissions but they are given high priority. The Commission does everything that it can to settle those claims as quickly as possible.

Mr Masithela (ANC) asked the Commission what they considered to be "fair compensation". For example, earlier it was discussed that if an individual was forced to sell their land but did receive fair compensation than they were not entitled to a claim. Mr Masithela wanted to know the standard the Commission has for "fair compensation".

Mr Mgoqi replied that there are several cases before the Court now that when settled, should set a standard for "fair compensation"

Finally, the chair addressed a question to the Commission. He wanted to know how the money donated by the Dutch Government is being used.

Mr Mgoqi explained that the money was going towards support services like consulting and finding evidence. The money for settlement of claims is from the Commission's budget.

This concluded the committee's questions for Mr Mgoqi and the meeting was adjourned.

Minutes supplied by Contact.

Appendix 1:
A National Profile Of The Restitution Process - September 1999

1. INCREASE IN PACE OF DELIVERY
· By end of March 1999, 41 claims had been settled
· Since then there has been a phenomenal increase.
· At present the number of settled claims has risen to 600, 380 of these in favour of claimants.
· So far more than 83,000 have benefited. A total of 264,615 ha of land has been restored.
· A total of R66,416,681 has been paid by the state to restore
land lost or financial compensation.
· A total of 16,542 claims have been accepted as valid.
· A total of 220 claims invalid.
· The increase in the pace of delivery is attributable to:
· The resultant re-engineering of the restitution business process.
· A generic flow chart show the path a claim follows, from lodgement to settlement and beyond.
· The shift from a court - driven process to an administrative process.
· There is now a need to decentralise the process.


2. CAUSES OF THE SLOW PACE OF DELIVERY
· The rights based nature of the process
· The multi-party nature of the interests and rights involved.
· The multi-party drivers of the restitution process (the CRLR, DLA and LCC) the resultant conflict and confusion of roles and responsibilities.
· Lack of policy guidelines on complex issues -previous compensation, tenancy, just and equitable compensation, valuations etc.

3. REVIEW RECOMMENDATIONS ENDORSED BY MINISTER
· Integration of the Commission with the DLA, with the Commission remaining a Commission.
· The creation of a single line of authority and accountability
· The decentralisation of authority to the regions -loci of activity.

4. RESTITUTION TRANSFORMATION PROJECT.
· Aim: To spearhead and facilitate implementation of the review recommendations.
· Joint leadership between the Commission and the DLA, with participation of NGO's (NLC and LRC)

Task Teams were established:
· The business process re-engineering
· The finance and Administration
· The amendments to the Act
· The policy matters
· Information management
· Communication

6. CREATING A SINGLE LINE OF AUTHORITY FOR SPEEDING DELIVERY
· Main achievement has been ending adversarial relationship between the Comm and the DLA, it is a process, not an event.
· Establishment of a single line of authority and accountability
The speeding up of delivery.
Laying the foundation for decentralization.
Laying the foundation for integrated service delivery at a point closest to the people -the local level.

7. THE BENEFIT OF THIS ARRANGEMENT INCLUDE:
i. Development of mutual trust and confidence between the Commission and the Department.
ii. Elimination of competition for scarce resources, human, financial and material between the two structures.
iii. Clear definition of roles and shared priorities.
iv. Close Interaction at leadership level and between the Commission regional offices and provincial departments of the Department. Close integration of restitution with other land reform programs.
v. Sharing of lessons among all land reform programs.
vi. Joint policy formulation among all restitution role players. Already a joint Restitution Indaba has been established, between the Commission and the Department of Land Affair, with participation by NGO's.
vii. Clearly, the shift from judicial to an administrative process is not enough. It must, however, be acknowledged that it has speeded up delivery.
viii. Minister and Deputy Minister have been giving guidance on critical policy issues.
ix. There is a need for expanding the Commission to finalise claims.
x. Decentralisation of the restitution process is the ideal.
xi. This compares favourably with experience (Estonia and Germany).
xii. A policy framework is prerequisite for this to take place and checks and balances as well must be in place.

8. TARGETS AND ACTION PLANS
Aim: To settle 500 claims in each of the 6 regional offices, a total of 3, 000 by March 2000. Each subsequent year to double and even triple the number of claim to be settled.

Strategy
· Project teams on area basis will yield greater results.
· Bulk of claims to be settled by negotiation, as against litigation.
· Limited cases, reviews number of cases go to court; complex points of law, direct and appeals.
· Claims are dealt with in streams or batches resulting in large numbers being finalised.
· Outsourcing with controls, thus increasing the capacity of each office.
· Use of alternative dispute practitioners to past track the process.
· Working on integrated service delivery at local level.
· Reintegrating segregated cities, towns and hamlets.
· Balancing interests and rights of claimants and priorities of government.
· The challenge is securing more funds for restitution in this current financial year (see Projected Expenditure 1999/2000)

9. HUMAN RESOURCES
· Section 8 staff - perform administrative nature.
· Section 9 staff - on the operational side, have been on annual contracts, renewable.
· Effort is to give them more security of tenure (3 year contracts)

10. CLAIMS TO BE SETTLED OR NEAR SETTLEMENT BY MARCH 2000
10.1 Claims finalised in this month in favour of claimants.

St Lucia (Kwazulu Natal)
Ellison & Steynberg (Gauteng)
Putfontein (North West)

10.2 Gauteng & North West:
Sophia Town 487 Claims/955 Properties
Pageview 200 Claims
Albertsville 300 Claims
Alexandra 1 451 Claims
Lady Selborne 996 Claims
Vogelfontein & Tweerivier 300 Families one claim

10.3 Mpumalanqa & Northern Province:
New Pietersburg 400 Claims
Moutse 1,2&3 Approximately 1000 Families

10.4 Eastern Cape:
East Bank - 1050 Claims
Mpofu - 87 Claims

10.5 Free State:
Odendalsrus - 450 Claims

10.6 Western Cape:
District Six - 500 Claims
Claremont - 270
Deed Searchers Completed

10.7 Kwazulu Natal:
Cato Manor - 195 Claims

Mediation Process to Ridgeview Quarry - phase 2 per court order 1200 Tenants affected 13 land holders

Instruction by court to investigate the mineral rights of the claim

Durban & 5000 Urban Claims 2000
Rural Claims
Pietermaritzburg Metro Areas for Land Information gathering for Gazetting

11. REGIONAL REPORTS
HIGHLIGHTS
EASTERN CAPE
This office is handling a large number of complex cases. Examples of these are Mkambati (Kei Wild Cost) Makhoba (Mt Currie District) Gaguba (near Port St Johns)

There are also large community claims in urban areas like West Bank and East Bank (East London) North End (E.L) Port Elizabeth Land and Community Restoration Association (Pelcra in PE).

Macleantown has just been settled, landowners and tenants will be returning to the land.

A model of integrated rural development is taking shape, where an NGO, Amotola District Council, the Department of Local Government and Housing are planning provision of bulk infrastructure and housing for resettled claimants.

FREE STATE
Work in this office has come under the management of a Provincial Director, the powers of the RLCC having been delegated in full.

Some restrategising has taken place

A business plan outlining time frames and a strategy will be completed at the end of October,1999.

Strategy is to resolve claims within 3 years and allow a further 2 agreements and Court orders.

Caseload
· 2 773 claims have been received, of these are 2, 662 are urban and 106 rural, 54 are likely to be dismissed.
· One claim, Bethany community claim has been resolved, subdivision completed, awaiting transfer.
· One claim before court - Thaba Patchoa.
· Cases in and ready for negotiation - Herschel
Andreisfontein, Dakpoort, Groothoek farm,
Morokashock Farm, Ramahutse Farm.

GAUTENG AND NORTH WEST
· This office received a total of 15, 843 claim forms.
· Total claims gazetted 1962.
· Urban claims and Rural (Gauteng 11,898).
· Urban and Rural (North West 3,945).
· Claims under negotiation 507 with potential 11, 230 beneficiaries.
· Claims pending before Court (48)
· Section 42(D) referrals 62
· Settled cases 4 with 13,700 beneficiaries.
· Cases settled in September: Gauteng - Ellison & Steynberg and North West - Putfontein

KWAZULU -NATAL
· Total claims forms lodged 14, 235
· Rural claim forms 2, 201
· Urban clairms forms 11, 195
· Claims accepted - gazetted 850
· Cato manor mediations completed 331
· Claims at negotiations stage priortised for settlement by
March 2000 1, 197
· Claims before court 19
· Section 42 approvals by Minister 16
· Beneficiaries involved 233
· Total number of claims settled to date (318 + 556)
= 874
· Hectares of land restored 628, 0821 ha
· Financial compensation awarded R4,094,753
· Capital expenditure R4,502,009
· Settlement of St Lucia - highlight of the month.

MPUMALANGA AND NORTHERN PROVINCE
· A large number of rural claims , involving large numbers of people are processed by this office.

Claims prioritised under Commission budget include, Ravele community, Gertrusburg community, Modimole1 Makgodu, Makopolong, Bopela Communities.

Claims prioritised, validated and funded through Restitution Trust Fund:
- Mamathola Community
- Pheeha Community
- Pheeha Community
- Phepeni Community
- Maponya Community
- Kgopa Community
- Ramogale Community
- Babirwa Community
- Maake Community

· Other claims are prioritised in other regions are 13 of these being large claims.

A total of 1004 claims have been validated.
A total of 8, 658 claims have been registered:
Mpumalanga 4664
Northern Province 4033

WESTERN AND NORTHERN CAPE
· Claims prioritised for settlement are 32 (Community/ individual)
· Claims before Court are 30
· Finalised claims in favour of claimants are 42
· List and summaries of cases referred to Court are in the report as annexures
· List of staff members are also annexed to the report

"What improves the circumstances of the greater part can never be regarded as an inconveniency to the whole. No society can surely be flourishing and happy of which the far greater part of the members are poor and miserable".
Adam Smith, The Wealth of Nations

"Land is a source of security. Access to land must lead to a better life"
A villager, Badplaas,

MPUMALANGA
"When I look around me and see it is there, the human misery that afflicts my people the agony of hunger etched on our children's faces, the blank look in the eyes of our young people, the despair of time, the be-wilderment of old people cast aside.

All of these things afflictions are a reality with my people. All of these afflictions are consequences of the racial prejudice and discrimination that my people must contend with on a day to day basis".
John Letandre
Winnipeg, Manitoba, Canada

We are well on our way to a speedy finalisation of restitution claims. Whilst is impossible, at this stage to project precisely, how long it is going to take to settle all 63,455 claims, what is certain is that we are biting deep into the body of these claims.

The estimates are that approximately 300,000 beneficiaries are urban and 3,6 million are rural beneficiaries. It is abundantly clear, by now, that it is going to cost the State substantially to settle all the validated claims.

The titanic is forging ahead. A rolling action of delivery is certainly in motion and gathering momentum.
We are putting land rights, in the right hands!

We commend this report to you for your guidance and leadership.

BY ADV. WALLACE MGOQI
CHIEF LAND CLAIMS CQMMISSIONER




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