The Commission on Restitution of Land Rights (CRLR) gave a progress report on Project Kuyasa. The project aimed to overhaul the processes, systems and models used by CRLR for land claims to ensure better service delivery to its clients. A mandate was given to the Commission to fast track the settlement of the old order land claims. The five outcomes of the Kuyasa project was its backlog reduction strategy and process improvement, change and people management, appropriate organisation form with CRLR becoming autonomous entity in the next three years, finance and settlement model review and improved project management. A highlight is the introduction of an electronic system to track the progress of claims. The Commission noted the budget cuts and moratorium on filling vacancies.
The discussion that followed raised key concerns:
• The Commission is handling the land claim cases too slowly with backlogs dating years back
• The Commission should work with research institutions to enhance its research capacity.
The Committee adopted its Budget Review and Recommendations Report for the former Department Agriculture, Forestry and Fisheries.
The Chairperson noted the meeting was a result of the deferred Project Kuyasa presentation from the previous week meeting with CRLR on its implementation of court orders. He reminded everyone that President Ramaphosa had requested that the nation wear black armbands between 25 and 29 November in commemoration of those who have died of COVID-19.
Project Kuyasa briefing
Ms Nomfundo Ntloko-Gobodo, Chief Land Claims Commissioner, Ms Cindy Benyane, Acting Deputy Land Claims Commissioner, Mr Lebjane Maphutha, KZN Regional Land Claims Commissioner presented (see document). Project Kuyasa was initiated by the Commission on Restitution of Land Rights (CRLR) to overhaul the process, systems and models used by CRLR to ensure better service delivery to its claimants. A mandate was given to the Commission to fast track the settlement of the old order land claims.
To fast track the claims, the Commission conducted a Phakisa Mini Lab which was part of Operation Phakisa. There are five outcomes from Kuyasa project. 1. Backlog reduction strategy and process improvement; 2. Change and people management; 3. Appropriate organisational form with the Commission becoming an autonomous entity; 4. Review of the finance and settlement model; 5. Project management.
The performance of the Commission was shown through a land claims settlement progress summary for each province. It also referenced the cases that would be referred to court for adjudication. The constraints on the fiscus had led to budget reduction of R403 million in 2020/21 and various moratoriums placed on the filling of vacant posts mean CRLR is operating with only 45% of the approved structure. However, all the vacant unfunded posts have now been withdrawn so there are 78 vacant funded that cannot be filled unless moratorium is lifted or via special approval from the Minister. A challenge is the failure by the provinces to fully research where it is later established that the research report was inadequate to determine the validity of the claim and further research has to be commissioned. Also there are a number of complex claims where there are competing claims lodged by different communities with overlapping rights. She spoke about the Commission needing to become an autonomous body in the next three years. A six-phase road map for this transition has kick started.
One of the highlights of Kuyasa is the introduction of electronic system to track the progress of claims by the claimants. This will help relieve the Commission from some of the work load pressures.
Ms M Tlhape (ANC said the presentation seemed to repeat some items already raised at the 24 November meeting on the Constitutional Court judgment in Speaker of the National Assembly and Another v Land Access Movement of South Africa and Others (LAMOSA 2). Firstly, the Commissioners are moving at a slow pace in dealing with restoration of land to the claimants. She wanted to know the difference between Operation Phakisa and the Kuyasa Project because the objectives seem similar. There seems to be a trend of introducing new projects, names and brands and dumping the current projects without finalizing them.
She referred to the research needed on the claims as there is a lot of them to be done, therefore the research is a major challenge. She asked what the Commissioners plan to do to resolve these land claims. She implored the Commission to look into ways to accelerate the resolution of old order land claims. What is still needed to ensure its readiness to process the new order land claims? CRLR should indicate the achievements of Operation Phakisa.
Mr N Capa (ANC) referred to the ongoing outstanding claims of 666 558 cases. The number is huge which shows the slow pace in resolving the claims. He was interested to know the rate at which these claims are being resolved. Linked to that is the poor capacity in the Office of the Valuer-General (OVG). How is the OVG challenge being attended to? Apart from poor capacity to resolve the bedrock of these claims, there are now budget cuts and staff reduction. How can these contradictions lead to a solution? Is the existence of external agents making any difference in the Kuyasa Project?
Ms A Steyn (DA) thanking CRLR for clarity on what is happening in the provinces. She asked for clarity on the responsibilities of the Department and the Commission on the following: giving title deeds to claimants when cases have been settled, since there are many title deed cases to be settled some even being court cases and she asked for the current number of court cases. The 24 November meeting touched on past settlements, do these fall under the Department of Agriculture, Land Reform and Rural Development (DALRRD)? Who is responsible for these for there are a lot of outstanding challenges that need to be settled especially in the rural areas?
She asked for the breakdown of the court cases and the reasons why they are not being resolved. Once the Commission gazettes the claim, it still needs to go through a process. There are a whole lot of cases that have been gazetted which later have been found to be invalid. However, when the landowner wants to either invest on the land or to sell it, they are hampered by this gazette because there is no regulation in the law that allows the Department to remove the gazette from the land. What is the process that follows? Perhaps the Commission should send a letter to the landowner once the gazette is found to be invalid. Otherwise, this is stopping people from investing in the land as the gazette has not been removed by the court.
Ms N Mahlo (ANC) asked how the Department and its entities dispensed title deeds during the COVID-19 lockdown. How many deeds were issued to the farming community during this time?
Ms T Mbabama (DA) asked the Committee to commend the notable work being done by the Commissioners. They are working with limited resources and in some cases land valuations taking up to 18 months to be settled. She pointed out that these commissioners need resources and asked what the Committee could do to help the Commission gather resources as they are one of the departmental entities that is under budgeted yet their work is of great importance. She observed that the urban claims are not as cumbersome as rural claims. Why do the Commissioners not quickly resolve the urban claims as a quick win since the cases are small in number, not that they should take away their attention from the rural claims?
She said that she was part of the Fifth Parliament in the Portfolio Committee on Rural Development and Land Reform, where the issue of the Commission to be transitioned into an autonomous entity was discussed at length. She asked if the Commission had restarted the discussions afresh, and what about the plans presented in the Fifth Parliament?
Ms T Breedt (FF+) agreed about the commendation of the women commissioners for their competence despite the challenges in the Department. She referred to the listed claims. One such claim has been in the process for about ten years where the claimants want land and do not want to settle for money. The specific family has been offered land five times but every time land is identified for them, a provincial or national department comes back to claim that land. How is it envisioned to finalise land claims when such problems still exist?
Ms K Mahlatsi (ANC) also requested a distinction between the two projects, Phakisa and Kuyasa, and the lessons learnt if the department has moved on to Project Kuyasa. She raised a concern that the Commission still captures the claims manually. Is there any way CRLR can look into internal data analysis with a systematic data approach so that there will not be loss of information maneuvering data from one system to another? Are there plans to upgrade to an electronic system? As pointed out during the 24 November meeting on research capacity, the Commission noted it had previously used consultants but the outcome of the procurement of such services was not fruitful. However, besides consultants, is there a way of building research capacity utilize the services of research institutions or higher education institutions to enhance CRLR research capacity?
From the beginning of OVG, the Commission expressed its frustration that OVG is an independent entity so the Commission has no mandate to tell them what, how and when to process their work despite having the service level agreement (SLA) that gives terms of reference and time frames. She asked for the CRLR-OVG terms of reference and if the SLA had brought a progressive turnaround strategy in the time frames in the last 18 months. The Commission is strained by financial and human capacity pressures, so what can it do to function better since the beginning of the Sixth Term? There must also be a road-to-autonomy through assessing the Commission’s progress thus far.
Mr N Masipa (DA) asked about policy gaps. People are getting agitated at the slow pace of resolving the claims. Perhaps the Commission should report on the capacity and qualifications of its personnel in the provinces so the Committee can determine how to help it deliver on its mandate and improve the slow pace. Is the Commission planning on having the system live so claimants can have access to see the progress on their claims as a way to relieve pressure on the Commission? Otherwise the system is great and bringing other role players would help to improve its capacity.
The Chairperson said Project Kuyasa should not be seen as in isolation from the interventions that were attempted in the past. She asked what has become of the mini Phakisa and what did it achieve? Will Project Kuyasa become another failed project? If so, the Committee should stop that from happening by helping the Commission to realise its autonomy within the specified three-year timeline. When does the three-year target for transition to autonomy come to an end? Project Kuyasa has been under discussion for year and has involved the services of external service providers. What has been the key areas implemented by the outsourced services and what is the total cost of the outsourced work? There appears to be eight outstanding claims in the Free State. How many officials are based there and can the Commissioner describe what an ordinary day for an official in the Free State office is like? This is to determine if perhaps twenty officials are researching eight claims?
Are there state farms that have claims yet to be settled? What are the impediments to the settlement of these land claims? In the list of state land advertised by Minister Didiza, were there unsettled land claims on the state farms? Did the Commission participate in the identification and verification of whether there were land claims on them? There seem to be like 38 models in the redesign of the settlement model. The Committee’s concern is about the delays in the finalisation of the redesigned settlement models, mainly due to possible unintended consequences of the revised model. For instance, the new policy provides payment of compensation that is higher than what has been paid to previous claimants. Those claimants may lodge complaint of underpayment due to the new policy. This may expose the state to major claims when claimants demand retrospective application of the policy. What is the Commission’s view on this?
Ms Nomfundo Ntloko-Gobodo, Chief Land Claims Commissioner, replied that the preparation needed for new order claims can be noted from the 24 November presentation. There are three backlog areas in the business processes. Secondly there is a challenge that the Commission is not adequately capacitated. Thirdly, the Commission as a branch in the Department is made to do more work with fewer staff, at 45% of the initial staff establishment. Further, the Commission is doing the work of three different units. The Commission in law is supposed to receive, investigate and recommend for settlement just like the Truth and Reconciliation Commission investigated and submitted its report. In law, the person mandated to do the restitution is the Minister of Agriculture, Land Reform and Rural Development. The Commission is supposed to assist the Minister by investigating the claims and recommending a claim settlement based on its research verifying it is a valid claim. Then the Department's Restitution branch effects the settlement on behalf of the Minister. It is not the Commission that is supposed to effect the settlement by transferring and ensuring every last cent is paid to the beneficiaries. The third element is the question of poor settlement which is about whatever it is that has been restored such as in Free State housing units were supposed to be built.
The fourth element are the Communal Property Associations (CPAs) which are managed by the Department and the Director General acting as the overseer and adding OVG as a factor. All these things are not supposed to be done by the Commission. However, that is what the Commission is assigned to do – hence overloading it. The Commission did an analysis of how much time a project officer spends on post-settlement arrangements. It was found that around 40% of the capacity is spent on post-settlement which has nothing to do with restitution or commission work. This is why the Commission should separate itself from the Department which has to effect the settlement on behalf of the Minister.
On the slow pace in handling claims, through Project Kuyasa, the Commission has identified the challenges and their solutions. It is possible to unlock the identified challenges if the Commission is granted the right human and financial resources. In the last eight years with the introduction of the OVG, the Commission met its targets and spent it annual budget and was able to buy farms or property or pay financial compensation. At the height of its performance, the Commission used to be allocated R2.4 billion to settle about 800 to 1000 claims annually. However now the budget has been cut. With over 6000 outstanding claims, it makes it impossible for the Commission to resolve these claims due to limited resources. Thus the Commission has to be an independent entity and the Department's Restitution branch has to effect the settlement recommendations on behalf of the Minister.
The backlog can be transferred in the next three or five years as long as the money is available. However, as of now the Commission is interested in finalising Project Kuyasa. The Commission is in talks with National Treasury and it is part of its planning processes to guide and understand the Commission’s challenges.
On the budget cut, the Commission has no say as it is merely a branch of the Department which when Treasury cuts a certain percentage of the Department budget, it affects the branch. The Commission has become embroiled in the roles of DALRRD as a result it is difficult to point out which roles are for whom. However, the law clearly states the roles of the Commission.
The Commission will provide a breakdown of the matters that are in court. Most times the matters are in court because the parties are disagreeing about the settlement amount or that the claim is invalid. A claim that is invalid is de-gazetted, but there are cases where de-gazetting did not take place. The Chief Land Claims Commissioner is willing to look into that and all provinces will be communicated with to ensure that this concern is dealt with decisively.
On the handing over of title deeds, the title deeds are transferred to the owners, except in Limpopo where there was a challenge. However, if there are major challenges on the ground with the CPAs, the title deeds are not handed over until the matters are resolved.
Urban claims are less complex because they are registered. However, they try to balance the claims between the urban and the rural since one claim in the rural area benefits a lot more people than urban claims. Land that is owned by other departments is a challenge if there is a claim there. For example, Department of Public Works has a lot of state land. If they are willing to release the land, there are lot of processes that have to be done and a lot of approvals that happen before the land is released. If land is available under Section 42(e) of the Restitution Act, it can be expropriated for the claimants. However, expropriation has to use three pieces of legislation: the Restitution Act, Expropriation Act and consider section 25(3) of the Constitution which talks about just and equitable compensation as well as the OVG legislation. Currently the 1975 Expropriation Act still considers the market value. It is a challenge. There is no capacity in terms of human resources; however Project Kuyasa has been able to identify the needs and what must be done to tackle these needs within their given timelines. The Commission will make available the qualifications of the Commission’s personnel to the Committee.
There are eight outstanding claims in the Free State office all sitting in the Land Claims Court for jurisdiction. Some of the officials have gone to work in other provinces temporarily to assist in the work. The state owned farms the Minister has been talking about are not farms under claim. The Commission did a review and identified the farms that are under claim. These are not farms under new order claims because the Commission was not allowed - according to the Lamosa judgment - to look at them as farms under claim. Redesigning the settlement models is the work of the Restitution branch and not the Commission. However, they are working together to streamline some of the settlement models.
Ms Cindy Benyane, Acting Deputy Land Claims Commissioner, explained the differences between Phakisa and Kuyasa. When CRLR undertook the Phakisa process, it used the Government Technical Advisory Centre (GTAC) within National Treasury as the Commissioned did not have the key abilities to develop and craft the problem statement under Phakisa. Under Phakisa, they identified five high-level outcomes after analyzing the problem statement. Outcome 1 is they develop an operating model that is better poised to deal with the current and future demands focusing on older order claims and then new order claim forms. Some of the recommendations were CRLR is not acting according to its legislated mandate as finds itself dealing with work outside its mandate. Under Kuyasa, the Commission has reviewed its interim structure and made recommendations for a decentralised operating model becoming an autonomous entity in three years.
Outcome 2 indicated that the Commission has to redesign the process using the example of Home Affairs which went through a process to identify the problems slowing it down and came up with solutions which led to the change at Home Affairs. CRLR identified that it takes on average 248 weeks to settle a claim, now it has set a target using Kuyasa to reduce that to 81 weeks based on solutions taken from Home Affairs. Outcome 3 is related. From mini Phakisa, there are key capabilities to redesign the process. From the old paper based system, there is a redesign of the business processes with the Commission getting assistance from the Department. From there it will go into module development for an electronic system to be utilized for both old and new order claims. There will be a public interface so that people can follow up their claims.
Outcome 4 looked at the proposed governance structure such as the role and number of commissioners and comparison to possible entities such as a public entity or a government component. As part of the autonomy process, Phakisa acted as a guide on the way forward. The Commission is currently developing the business case for autonomy, which would need specialized expertise which the Commission does not yet have. The delays under the autonomy process are mostly to do with the legislative amendments required to enable CRLR to be an autonomous entity.
Outcome 5 is the high level implementation plan which is the project plan for Kuyasa that is being implemented and the Commission is regularly reporting about it. They are working on improving the Commission and work on reducing the waiting period.
Mr Lebjane Maphutha, Regional Land Claims Commissioner, said that there has been an improvement in the work since a service level agreement was signed between the Commission and the OVG. There has been an improvement in receiving certificates stating OVG has been able to conduct valuation on the work assigned to it. However, the improvement is minimal because there are still challenges in OVG responding to queries about it valuation. Therefore DALRRD has issued a circular which allows the Commission to conduct valuations. OVG will continue to ensure quality assurance on the valuations done, the price allocated has been done in accordance with Section 25(3) of the Constitution within the just and equitable framework. This will enhance the ability of CRLR to finalize claims as the current volume of work for OVG will be reduced. OVG's work will involve quality assurance on those valuations while the Commission conducts those evaluations. The problem however is that CRLR will have to rely on supply chain processes of DALRRD but this might change when the service level agreements have been finalized with the department.
Ms Ntloko-Gobodo noted that challenges in the Office of the Valuer-General are operational. It is where the review that is necessary when the value that the Valuer-General has placed on the table is contested by the landowner or claimant. This means that OVG has to be able to argue how it got to that determination in court and sometimes the processes do not work. There has to be clarification on the compensation offered by the Minister versus the recommendation offered by the Valuer-General. There are other items that have to be sorted out on whether the expert opinion provided in court is by the Minister or the OVG on behalf of the Minister. Valuations are done by independent third parties who then must be experts in court and if they understand the interpretation of Section 25(3) becomes another issue.
However, there is no separation between Phakisa or Kuyasa. The recommendations that came out of Phakisa for fast tracking are implemented by Project Kuyasa.
Ms Nlhape did not have a question only a commendation for the thorough answers provided by the Commissioners.
Ms Mahlatsi wanted clarity on its research capacity as the Commission did not give a clear answer about building relationships with institutions of higher learning to enhance its research capacity.
Mr P Masiya (DA) agreed with Ms Mahlatsi. His second question was if the Commission was considering making the system live so claimants could track their claims themselves to alleviate the pressure CRLR is experiencing from being under resourced.
There are challenges with research because the same people required for research are assigned to other duties. However, provincial units are being set up in key areas that have the highest numbers of outstanding claims such as Mpumalanga and Limpopo. The strategy is not yet complete and she is still consulting with the provinces but there is a breaking down from easy to medium to complex claims. The Commission will target external capacity for the complex ones. However, they have identified project officers that are very good at doing research who will be assigned to focus only on research which will be vetted by the quality control Committee dealing with research. The Commission will outsource the complex claims to service providers after seeking permission. In some instances, the Commission receives good work, while sometimes they get bad work. So they will target universities/ institutions that have given them good work for the complex research. For medium-level research the Commission will target university graduates.
The Commission has already created an electronic reporting tool for Kuyasa which is being piloted in some provinces. It now intends to use this as an end to end business management tool where it will be used to deal with claims electronically including allowing communities to have access to the database where they can identify where their claims are. This is planned to be used for older order claims, and when the Commission receives the mandate to process the new claims, it will be implemented for those.
BRRR for Department of Agriculture, Forestry and Fisheries (former DAFF)
The Budget Review and Recommendations Report BRRR has fifty-three pages and the Committee browsed through it page by page. After going through it, the Committee adopted the report.
The Chairperson thanked the Committee members and admonished them to continue being the eyes and the ears of their constituencies and communities and to keep abreast with issues pertaining to the portfolio of the Committee so they can contribute positively to the Committee as well as their constituencies. Finally, he reminded them to adhere to COVID-19 regulations since cases are soaring again in the country.
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