ULTRA Bill: finalisation & public participation report

Agriculture, Land Reform and Rural Development

27 October 2020
Chairperson: Nkosi Z Mandela (ANC)
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Meeting Summary

Tabled Committee Reports·        

Upgrading of Land Tenure Rights Amendment Act, Act 112 of 1991

The B-version of the Upgrading of Land Tenure Rights Amendment (ULTRA) Bill, was considered and adopted by the Committee in a virtual meeting, although the EFF rejected the Bill completely. The Committee’s report on public participation was also looked at page by page, and with the exception of the EFF, the Members concurred that it was a true reflection and agreed to its adoption.

The DA shared concerns with the EFF over the desirability of the Bill as it did not deal with the whole country, but it was happy with the rest of the Bill. The EFF said it wanted new legislation that broke new ground, that facilitated a radical paradigm shift that recognised there was an obligation to deal with the legacy of colonialism and apartheid, land partitioning and balkanisation, and the skewed redistribution of land and patterns of land ownership, including ownership rights. There was no point in owning land if one did not have rights to manage, to put the land to good use and ensure it was productive.

There was also a short version of the Committee’s report on the Bill that was considered, where an issue arose over the use of the term “piecemeal approach,” which was regarded by Members as problematic. The Committee’s support team agreed to have the term replaced with more appropriate wording.

Meeting report

Chairperson’s introductory remarks

The Chairperson said that the previous week had been hectic because of the veld fires that had run rampant across the Free State, the North West and parts of the Northern Cape, destroying livestock and crops. The Committee sympathised with the farmers who had suffered. Hopefully, the Ministry of Agriculture, Land Reform and Rural Development could look into it sooner rather than later in order, to declare these areas as disaster-stricken to the department that dealt with disaster management.

He applauded the Ministry’s ongoing probe into the Ingonyama Trust Board (ITB), which would serve to ensure that the ITB was able to fully align itself with the Auditor-General’s (AG’s) accounting systems. He hoped there would be closure by the end of 2020, so that the Committee could assess whether the ITB had been a success or a failure these past 26 years. If the Committee finds that the ITB was a failure, it must be rescinded. If found successful, the Committee must support the Ministry by replicating it in other monarchies, such as those of the abaVenda, Bapedi and others. These groups were rightfully deserving of funds for rural development in their various kingdoms.

After looking at the B-version of the Bill, the Committee would be able to adopt its report and send it to Parliament. Adv Nathi Mjenxane, Parliamentary Legal Advisor, would be asked to present the B-version.

Presentation delayed

Adv Mjenxane apologised for the technical glitches that Parliament was experiencing regarding the B-version of the Bill. Parliament had hired a service provider to do the technical updates on the bills. The service provider was attending the last of the glitches, including all the amendments that the Committee had put forward. Parliament was awaiting the very final version of the Bill. He asked the Chairperson if the Committee would allow him to have 10 minutes to receive the very final Bill, and then he would present it.

Ms M Thlape (ANC) said that there was no other option but to agree to Adv Mjenxane’s request. She suggested that the Committee give Adv Mjenxane closer to 20 minutes to avoid adding more time after the 10 minutes was up, if the Bill was still not ready after 10 minutes.

Mr N Capa (ANC) thought Ms Thlape’s suggestion was considerate and made sense, because it would guarantee a start time.

The Chairperson said that while the service provider’s team was busy with the technical glitches, the Committee would have a look at the Portfolio Committee’s report.

Ms A Steyn (DA) agreed that the Committee could wait, as the Bill was important. Because the Committee report had been received only yesterday, could the Committee go through it line by line?

Mr S Matiase (EFF) agreed with Ms Thlape’s proposal.

Ms T Breedt (FF+) agreed with the proposal to give Adv Mjenxane more time, as well the proposal to go through the Committee report line by line.

Mr N Mahlo (ANC) also agreed with Ms Thlape’s proposal.

Consideration of Committee report on public participation

The Chairperson said that the report would be gone through page-by-page and put to Committee Members, since it was a heavy document of 19 pages and was ready for the Committee only at a late stage. The report was about public involvement.

The Committee proceeded to go through the report page-by-page.

Ms Thlape said that she had tried to compare this report to previous reports. Committee Members had anonymously agreed that the report was good because it did not omit anything and it reflected the interactions with the public. This report was more of a narrative, including all the submissions that had come on different dates. Therefore, the report should be adopted.

Mr Capa also felt that the report was an accurate reflection of what happened, including inputs and recommendations. Therefore, the report should be adopted as a true reflection of the Committee’s opinions and inputs.

Ms Steyn agreed that the report was reflective of the Committee’s discussions, and gave a comprehensive overview. She expressed thanks for the staff members who had kept records of everything the Committee did.

Mr Matiase said that the report does not explain how and when the government would address the fragmentation of the various pieces of legislation that govern tenure and administration in the country. These included the old Land Rights Bill of 1994, which was not passed; the Interim Protection of Informal Land Rights Act; the Extension of Security of Tenure Act, which should be addressing the living and working conditions of farm workers and farm dwellers; the Labour Tenants Act, which was also an attempt to provide some form of rights to the land tenants; and lastly, the Communal Tenure Rights Act. These discussions were a result of two court judgments, the Rahube and the Senqu Municipality matters.

The position that the Department had taken, with which the Committee agreed, was a knee-jerk reaction to these judgments, and a piecemeal approach was being taken in addressing this matter. This was problematic, because it did not comprehensively attend to breaking new ground, with the President and all the legislative processes being processed straight away. The National Assembly and the National Council of Provinces (NCOP) had addressed these matters and had processed them to their logical conclusions. The day after the President assents to this Bill becoming an Act, there would be nothing new in concrete reality. The concerns of Mrs Rahube, whose matter was taken to court, would have been addressed, but nothing would really change. Nonetheless, this position had been put forward in the past. To an extent, the Committee had not comprehensively dealt with it. This was a bit challenging, and what had been said in the past would not be repeated.

The Chairperson reminded the Members that he asked whether the report had captured everything in terms of the public participation during the deliberations.

Ms D Mahlatsi (ANC) said that the Committee’s job was to deal with the content of the report in relation to the processes leading the Committee to this point, as far as the Bill was concerned. As Ms Thlape and other Members had said, the report was a true reflection of all the processes the Committee had undertaken. Therefore it was prudent that the Committee refer to the content as it was, and adopt the report as it was.

Ms Mahlo agreed that she did not see anything wrong with the report.

Ms Mbabama agreed with the other Members, saying that the report was excellent as it was.

Ms Breedt also agreed that the report was a true reflection. She thanked the Committee staff, saying that they had surpassed expectations.

The Chairperson formally put forward the report, noting the day’s date and commenting that it was the birthday of struggle icon OR Tambo.

Ms Thlape moved the adoption of the report.

Ms T Mbabama (DA) seconded.

The Chairperson concluded the report as adopted and directed the Committee to the B-version of the Bill presented by Adv Mjenxane, who had been given sufficient time.

B-version of ULTRA Bill

Adv Mjenxane confirmed that he had received the final B-version of the Bill and would take the Committee through it. He clarified that the B-version reflected all the Committee’s amendments, and would be the final version to be adopted by the Committee.

He pointed out that in the B-version of the Bill, the words in bold type or in square brackets were removed words, and underlined words had been added.

The Chairperson put each of the four clauses to Committee members.

Clause 1:
Agreed to.

The EFF objected. 

Clause 2:
Agreed to.

The EFF objected. 

Clause 3:
ANC Members agreed.

Ms Steyn disagreed with this clause, but would not stop the Committee from proceeding. There were concerns that there were not enough ways for people to register their concerns besides going to court.

Ms Breedt had reservations.

The EFF objected

Clause 4:
The ANC Members agreed.

Ms Steyn objected.

Mr Matiase objected, and commented that he rejected the entire Bill.

Ms Breedt agreed.

Ms Mbabama reserved her rights.

The Chairperson asked for a mover for the adoption of the final B-version of the ULTRA Bill, and the adoption of the Portfolio Committee report.

Ms Thlape moved the adoption of the Bill and the report.

Mr Capa seconded the adoption of the Bill and the report.

The Chairperson said that concluded the B-version of the Bill. He thanked Adv Mjenxane and the legal team for their guidance and input. The legal team had helped the Committee to navigate the process. He also thanked the Committee’s staff, secretariat, content advisors and researchers. The Committee would have the Bill tabled and sent to the House, where Members would be able to debate on the processes that had been embarked on.

The Committee Secretary said there was a short version of the report with amendments that the Committee agreed on that the Committee still had to adopt. Could the legal advisor explain if the report was affected by the changes that he dealt with when he presented the B-version of the Bill? If the report was not affected, then the Committee could adopt it. If it was affected, it could be corrected and adopted quickly.

She said if the report and B-version of the Bill were adopted and agreed upon, the Programming Committee would programme a second reading of the Bill and it would be transferred to the NCOP.

The Chairperson read the report aloud, and asked for a mover for its adoption.

Ms Thlape said the legal jargon in a bullet point was confusing. The Committee had taken a decision to focus on a specific order made by the Constitutional Court, taking into consideration that Clause 4, as introduced by the Department, triggered the application of Sections 3, 19 and 20 to the rest of South Africa. Members of the public had called for constitutional safeguards and protection for informal land rights, making Sections 3, 19 and 20 applicable to the entire country. This was what the public wanted. So, was that bullet point aligned with the clauses as they had been amending? For example, Clause 4 had been rejected and the new Clause 4 substituted for Section 25A. What did that bullet point mean? Did it mean that this was what the public had put before the Committee? Ultimately, the Committee had amended Clause 4 as such.

With regard to bullet points 1, 2 and 3, having been informed that there was a process to introduce legislation that comprehensively addressed the concerns raised by members of the public regarding tenure and insecurity, the Committee had agreed that a piecemeal approach to dealing with the legislation, as seen in Section 25C and 9, was undesirable.

She asked for help with understanding Sections 25, 6 and 9. Mr Matiase had been very vocal with the stance of his party on the issue of a piecemeal approach. The Committee had been focusing on doing the technical amendments as ordered by the court, as indicated by the caption above the mentioned bullet points. She did not agree that the Committee ever agreed to adopt a piecemeal approach -- this had been the stance of the Committee Members from the EFF.

Mr Capa said that Ms Thlape confused him a bit, because he had been under the impression that the piecemeal approach was required. Other concerns had been addressed in other legislation. His opinion was that the word ‘piecemeal’ put the Committee in a difficult situation.

Ms Steyn said that the DA also did not agree with the desirability of the Bill for the same reasons that the EFF put forward -- that the Bill did not deal with the whole country. The DA was happy with the rest of the Bill.

Mr Matiase said that the chickens were coming home to roost. Ms Thlape had realised that it was the end of the discussion. It may have looked like the EFF had been wasting time. She had complained about the vocabulary, the terminology, the commas, and other technicalities. That being the case, the EFF’s position was clear. The EFF wanted new legislation that broke new ground, that facilitated a radical paradigm shift that recognised that there was an obligation to deal with the legacy of colonialism and apartheid, land partitioning and balkanisation, and the skewed redistribution of land and patterns of land ownership, including ownership rights. There was no point in owning land if one did not have rights to manage, to put the land to good use and ensure it was productive.

As already mentioned, there had been an attempt to address the key points that had been raised by the Constitutional Court and High Court judgments, but the position assumed by the Committee was a knee-jerk reaction, a piecemeal approach… so, the chickens were coming home to roost. The EFF rejected the entire Bill.

Ms Mahlatsi said that the report could not be contradictory. The Committee had adopted a shortened version. Therefore, it had to address issues according to the deliberations, especially on the issue of the piecemeal approach, because she recalled that the Committee had agreed on an approach that focused on technical amendments. The Bill had come to the Committee precisely because of that specific issue. However, as it moved forward, it would be able to look at the entire Bill holistically in order to deal with all the other issues. One word could dismiss everything, or create ambiguity, etc. That specific sentence must be reworked to make sure it reflects the deliberations as agreed and adopted by previous Committees. That route would help deal with matters. If the Committee left it as it was, it would actually speak to something else.

Ms Mahlo said she supported what Ms Mahlatsi and Ms Thlape had said. The word “piecemeal” should be replaced by a better word. The word would not be appropriate in Parliament. This issue could be worked on in other meetings, but the Committee was dealing with the mandate that had been given to it. After the word was reworked, the report must go ahead.

Ms Mbabama fully concurred with Ms Steyn.

Ms Breedt respectfully disagreed with Ms Thlape, Ms Mahlatsi and Ms Mahlo. She agreed with Mr Matiase and Ms Steyn that the report was a true reflection. She had thought that Committee Members were in agreement that the piecemeal approach was not ideal and not the desirable way to approach the Bill. There were a lot of gaps in the Bill. Her fear was that a lot of communities were still not being taken into consideration with this Bill. The Committee still needed to address that.

The Department had promised that the Bill, in its totality, would come to the Portfolio Committee and allow it the opportunity to look at it. Any reservations the Committee had could be addressed, and it could ensure that the different communities, specifically the coloured communities in Cape Town, could be fully addressed. The report therefore did reflect what the Committee had discussed and should be kept as it was, because it had agreed that it would rather “eat the whole Bill instead of take just little bites” that the Committee had been given. That was what the Committee had been tasked to do, and that was what it had done.

The Chairperson said he had to assist Ms Breedt to not use the apartheid labels of racial differences. He thought that the people of the Western Cape preferred to be recognised as San or Khoi communities, or as South Africans. Any other labeling re-emphasised apartheid racial divisions. It had to be left to the people of the Western Cape.

Dr Teboho Manenzhe, Committee Content Advisor, said the most important thing was to make sure the report reflected what the Committee wanted, as it was a Committee report. If the Committee did find something problematic, such as “piecemeal,” then it would be changed to what Members wanted. How had the Committee arrived at the sentence, “The Committee agreed that a piecemeal approach in dealing with legislation in Section 25…?”

Ms Breedt cut off Dr Manenzhe, with comments in Afrikaans.

Ms Thlape said she maintained, as other Members had also said, that the wording of the Committee agreeing that a piecemeal approach in dealing with legislation regarding those sections was undesirable. She wanted to refresh the minds of the Members that what had been said was that there were still other sections, as agreed by the Department, that if challenged, the Committee would find itself wanting. The Committee had never said a piecemeal approach to the legislation was undesirable in all those sections. The ultimate agreement was that inasmuch as there were sections, the Committee could be challenged on them. The sections were susceptible to litigation. The Committee should confine itself to the technical amendments.

Mr Capa said that if his memory served him correctly, the emphasis on the use of the term “piecemeal” had come mainly from Mr Matiase, and from Mr M Montwedi (EFF) in previous meetings. He was worried about the term because in his understanding, while all Members understood and agreed that a piecemeal approach to land reform was not ideal, there was a common understanding and an agreement that in this case, the Committee should attends to and address what had been demanded of the Committee by the Constitutional Court. Therefore, while the Committee addressed this, what it was doing now had to be done. That was why he was worried about the term “piecemeal approach,” because it was not a universal or common term agreed on by the Committee, but he remembered very well that this term had been emphasised by Mr Matiase.

Ms Mahlatsi said that her extreme reservations toward the term was precisely because it gave the indication that the Committee, on its own, without necessarily looking at the court judgment, had decided to address this particular issue. However, that was not the intention. The matter had been brought to the Committee by the courts. It had not necessarily been the initiative of the Committee to deal with the matter. Therefore, it was problematic to use such wording, precisely because it was not the Committee itself that had approached the matter. It had been informed by a decision of the court.

If one read the sentence as it was, it gave an impression that the Committee had deliberately dealt with the matter in a piecemeal approach. That was why it had become ambiguous. That was the bone of contention. The Committee had agreed to deal with technical amendments. Had it been an approach that had come from the Committee that sought to look at the amendment holistically and therefore chose a specific section, it would have been relevant to this particular report. However, the manner in which it was now -- the actual deliberation, the actual processes and how the Committee got to where it was today -- was not reflected.

Mr Matiase said the Committee was engaged in a struggle to change the lives of South Africans for the better and make sure that in doing so, it introduced proper and effective legislation to make that possible. As long as the Committee remembered that, there would be no problem. There would not even be a need to remind each other of what Members had said at one point. He was saying all this in the context of what had been said by a revolutionary poet and writer, Milan Kundera: “The struggle of man against power is a struggle of memory against forgetting.” People struggle to remember what they may have lost memory of, as they execute the struggle to change the lives of South Africans. The Committee could directly ask the support staff to remove phrases or words that it dislikes, such as “piecemeal” and “knee-jerk reaction.”

He said that Parliament and committees of Parliament were often told by their colleagues what to do in order to fix the legislation. The Committee often had a knee-jerk reaction and took a piecemeal approach in dealing with those instructions. This piece of legislation was not different from how the Committee had been dealing with such matters, which had been brought before the Committee and Parliament by the courts. This was the truth. This was what was being dealt with. There was nothing wrong with asking Dr Manenzhe to remove words to make Members at peace and also to massage their egos. Let those problematic words be removed, but the truth shall be recorded by history, and history would absolve that those words, specifically ‘”piecemeal,” which was properly being inserted in the manner in which it was being included here.

Dr Manenzhe said he had been going to explain why the word had been included, but had heard that the Committee believed it should not be there. His team would be happy to rephrase the paragraph and explain that the Committee had decided to focus on what the Constitutional Court had said the Committee must do -- which was what had been introduced somewhere in the text. It had to be indicated in this paragraph that the team had not said that the Committee had engaged in a piecemeal approach in dealing with this legislation. What was indicated in that paragraph was that the Committee had received a report from the Department that said there was a process currently going on to develop the Communal Land Tenure Bill. That was the basis on which the Committee had said it could not be legislating for Communal Tenure in this legislation in 2019 and 2020, mainly while there was another process. That was how the “piecemeal approach” had been understood.

Dr Manenzhe agreed that it should reflect what the Committee wanted, so the change would definitely be made. It should reflect that it was going to be focusing on what the Constitutional Court had said the Committee should do, and that there were other sections that, if challenged, would be unconstitutional. However, the Committee believed that the new legislation that would be tabled in Parliament before the end of the year, as promised by the Department, would address those issues.

The Chairperson said that he hoped the amendments would be made accordingly. He asked Adv Mjenxane what the legal advisor desk’s input on this was.

Adv Mjenxane said it appears as if the legal advisor’s desk would have to revisit the report, as Dr Manenzhe had mentioned, because it must ultimately reflect the deliberations and the wishes of the Committee. The support staff would have to go back and look at how best to make the changes to the satisfaction of the Committee.

The A-list was not affected by the legislation amendments. Because of the opportunity to look at the report again, the wording would be double-checked to make sure it reflected the Committee’s deliberations.

The Chairperson said that with the final B-version having been adopted, the Bill would be sent to the House accordingly. The Committee would set the report aside and revisit it for adoption next week. It would be revised and sent to the Committee. The three pages would have been looked at and revised, and then they could be adopted next week. In the interim, it was satisfactory to have closure of the meeting.

The meeting was adjourned.

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