The Select Committee on Land Reform, Environment, Mineral Resources and Energy received a briefing from the Department of Agriculture, Land Reform and Rural Development on the Upgrading of Land Tenure Rights Amendment Bill (ULTRA).
The Department’s Head of the Legislation Development Unit told the Committee that certain amendments had been made to various sections of the ULTRA Bill because they had been declared unconstitutional by the Constitutional Court, based on court judgments that had been addressed over the years. The sections were not inclusive of women, and did not allow for conversions to happen. The Portfolio Committee had also made its own amendments in compliance with the Constitutional Court orders on the Bill.
Members questioned the relevance of the Bill in modern society, and argued that the legislation was backward and still resembled the past history of South Africa. Some Members suggested replacement of the Bill. Concerns were also raised on the Department’s failure to conduct a wide public participation and consultation process for the Bill before its deadline in April. They asked about the progress of the Communal Land Tenure Bill to address rural land administration, because the ULTRA focused on urban areas. The ability to finalise the ULTRA Bill, with all the necessary amendments and the required consultation process was questioned, and an extension was suggested so that effective public participation could be conducted.
Clarity was sought by Members on the Constitutional Court’s decision to include Section 3 in the ULTRA Bill, and to exclude Sections 19 and 20. A six-week consultation process was discussed for implementation by the Committee before the Bill’s deadline.
The Chairperson officially opened the meeting and welcomed everyone present, including representatives from the Department of Agriculture, Land Reform and Rural Development (DALRRD), the National House of Traditional Leaders, the Deputy Ministers of the Department, and the provincial legislatures.
Apologies were received from the Minister.
Upgrading of Land Tenure Rights Act (ULTRA)
Mr Mcebisi Skwatsha, Deputy Minister, Agriculture, Land Reform and Rural Development, said that the Department would be briefing the Committee on the Upgrading of Land Tenure Rights Amendment Bill (ULTRA) which, through oversight conducted by the Committee, would assist in achieving a culture and society that did not oppress any individual.
Adv Sello Ramasala, Head: Legislation Development Unit, DALRRD, gave the presentation outline and introduction which highlighted the principle Act on the ULTRA, and the purpose for its implementation and passing in 1991.
He said the Rahube court case matter had involved a deed of grant of a house in Mabopane, and the Department had had to make provision for the ULTRA to be amended to allow females to have a deed of grant.
On the Senqu Municipality matter, he said that the Teba property trust had been in charge of migrant systems in the apartheid era, and any occupation certificates of occupants in the Senqu municipality could receive title deeds. The municipality had refused this process because section 3 of ULTRA was not in operation in the Senqu municipality because the area was a former Transkei-Bophuthatswana-Venda-Ciskei (TBVC) homeland area.
Section 2 of the Bill had been amended to:
- Remove any automatic conversion;
- Provide for conversion applications;
- To allow people to oppose the conversions;
- To include excluded groups, especially women, in the conversions.
Section 14A had been ordered by the court for amendment so that conversions that happened before 1994, especially for women, should remain valid and that conversions could be challenged and set aside. Section 25A provided that the ULTRA applied with the exception of sections 3, 19 and 20, and that a decision had been taken to amend the whole of section 25 so that the whole Act applied throughout the country.
Mr Ramasala presented the amendments that were made by the Portfolio Committee to clause 1 and clause 4 after the Department’s proposals had been rejected by the Portfolio Committee. The changes included:
- The applications for conversions should be published in one local newspaper, social media or the local municipal office.
- The Minister informing applicants of the conversions.
- The Minister appointing a person to gather facts and resolve disputes.
- The Section 25 applying throughout the country.
Section 19 and 20 of the Bill provided for the transfer of land communal rights, and that the Minister and the municipality hold the land in trust.
In conclusion, he said that the Department’s focus was to make amendments to the sections that had been declared unconstitutional by the Constitutional Court. The assistance of Parliament was required and necessary to make the appropriate amendments to the Bill, and the Constitutional Court and Parliament had given the Department until 10 April 2021 to finalise it.
Mr C Smit (DA, Limpopo) said that it was disappointing that 27 years into democracy there was still legislation that had a strong apartheid legacy, where certain people had certain rights and others did not. The legislation should have been replaced by now and not still be a work in progress. In the process of amending the legislation, a lot of opportunities were being restricted in tribal communities, especially with the declining economy, and there was a need for opportunities. If there was land ownership, then it could help people get out of poverty and create more opportunities.
The amendments that had been presented by the Department were not enough, because the entire legislation had to be replaced. The Department should be presenting new and proper legislation that was up-to date with the Constitution. The exclusion of Sections 19 and 20 in the Bill was confusing, because Section 19 dealt with the capacity to obtain land through ownership, and was subject to sub-section 2 on selling, exchanging, donating and letting of land.
He raised concerns that the Bill did not address the issue of the rights of tribal communities, especially Section 20, which deals with the transfer of tribal land to a tribe which may request the Minister to transfer land control -- meaning that the land still belonged to the government. He asked for the reasons that were given for the exclusion of Sections 19 and 20, and for the inclusion of Section 3.
Mr A Arnolds (EFF, Western Cape) said that the Bill needed to be re-evaluated because it was old and outdated, and that the customs and relations of African people did not recognise the remains of land right customs, especially since the majority of black people still did not have land. The Bill encouraged a dual land system for whites and blacks. He said that a Bill which had had little consultation could not be supported because there was no wide consultation which was a concern because there only 480 written submissions were made. The Bill needed to be rejected.
Ms L Bebee (ANC, KwaZulu-Natal) asked the National House of Traditional Leaders (NHTL) if there were any concerns from the national and provincial Houses of Traditional Leaders on the Bill, and whether the concerns had been taken into consideration by the Department. On communal land tenure rights, she asked the Department to explain the issues that were a result of the communal land tenure rights which had had an effect on the Bill. She asked whether the Department had the required capacity to implement the legislation, especially the ULTRA Bill.
Mr A Cloete (FF+, Free State) commented that the presentation had stated that the Department was reviewing all tenure laws, including urban and rural tenure systems, and asked about the status of the review process -- when it would be finalised and the implications, because there were laws that affected the process. He said that the NHTL should be consulted to document feedback from the courts. He asked if the Department believed that the NHTL was on the same page on the policy of women being able to own land, because there was evidence that some traditional leaders agreed with women owning land, and others that did not. He said that the Bill was initially not published for comment, and asked the legal advisor whether the Department should have a process in place to follow on the publishing of the Bill for public comment and participation.
Ms W Ngwenya (ANC, Gauteng) welcomed the presentation on the process to amend the ULTRA Bill, which had been targeted as a Section 76 Bill, and said that the amendment of the Bill had been long overdue as it had discriminated against women. In order to ensure compliance of the legislation with the Constitution, the amendment of the Bill would ensure that women and vulnerable groups were not discriminated against.
She asked the Department to provide the progress report on the “One Household, One Hectare” project, where 1% of the allocated budget had been spent. She also asked whether the ULTRA had been referred to Parliament, and if the Department observed all the legal obligations which had to be followed before the legislation was chosen. If so, she requested a detailed report, and if not, she wanted to know the reason why. She asked if there were any other Sections of the Act which could be challenged, based on Section 2 and 25A, and if the Sections could be declared unconstitutional.
She asked whether the Department would meet its commitment to table the Communal Land Tenure Bill to Parliament before the end of the financial year, and if not, why not.
Mr T Matibe (ANC, Limpopo) said that even if the Committee disagreed with the Bill, it was a constitutional judgment that needed to be amended per the Constitution. On the amendments made by the Portfolio Committee on Sections 3 and the exclusions of Sections 19 and 20, he said that the amendments should not have been made based on the two court judgments because they were in defiance of the Constitutional court ruling. He raised concerns that the amendments might be invalid, because they would oppose the court rulings.
Proper justification needed to be considered by the Select Committee and the provinces during the consultation process. On public participation, especially with the Lamosa judgment, he asked the Department if there was enough time to conduct public participation during the lockdown and COVID-19 situation, because gatherings of more than 50 people were not allowed. He said that an extension might be required from the Minister, and asked whether enough consultations with traditional leaders had been held to avoid a lot of objections from them during consultations.
Deputy Minister Skwatsha appreciated the questions raised by the Committee, and said that the Department was trying to build an equal society which was challenging because of the country’s history. It would have loved to follow the easy process of replacing legislation, but there needed to be unity among South Africans to ensure that the goal was achieved. He confirmed that land did belong to the government on behalf of the custodians, and that the amendments that were being addressed were those that had been raised by the Constitutional Court, including tenure laws and urban and rural tenure systems.
Giant leaps have been taken by the Department in the process of addressing the matter of tenure rights, which had been undertaken by conducting study tours to three countries with similar issues such as traditional authority and colonial oppression. The three countries – Botswana, Uganda and Ghana – had been selected through consultations with civil society and traditional leaders. A decision was taken not to go as a government delegation, but as a South African delegation which included the DALRRD, the Department of Cooperative Governance and Traditional Affairs (COGTA), NHTL representatives and the Department of Justice (DoJ).
The Deputy Minister said there had been agreements with the NHTL that the discussions would be forwarded to Cabinet and that consultations would be held in the various provinces so that the national summit was progressive, with no objections. He agreed that amendments might result in clashes with the Constitutional Court rulings, and said that they would try to meet the deadlines. There were always contestations by traditional leaders and no unity when it came to resolving and addressing issues between the Department and traditional leaders, but progress would be made in this regard.
Mr Sdumo Dlamini, Deputy Minister, Agriculture, Land Reform and Rural Development, said that the work that had been reported required success in the achievement of equality within the country, and there was still work to be done on the observations and studies conducted in the three countries. It was pleasing that there had been no disagreement by the Committee on the Department continuing the work in progress.
Adv Ramasala responded to the concerns on ULTRA, said that it dealt mainly with urban tenure and deeds of grants. It had 25 sections in total, but only three dealt with communal land tenure -- Sections 3, 19 and 20. In the areas of communal land tenure, it had taken time since the Communal Land Rights Act of 2004 was declared unconstitutional in 2009, and new legislation was being drafted by the Department. When the legislation was complete, the new legislation would repeal the three sections that appear in ULTRA, so that ULTRA would not deal with communal land tenure but would focus only on urban land tenure as it was supposed to.
On the section 25A amendments made by the Portfolio Committee, he said that sections 3, 19 and 20 were the only sections that dealt with communal land tenure. When the Bill was published for public comment, Sections 19 and 20 enabled the Minister to transfer communal land held by the State to communities. The concerns of the Portfolio Committee were that the Minister would not act in a way that would uphold the rights of communities during transfers, and that land would be transferred to traditional leaders and not individuals. The exclusion of sections 19 and 20, as adopted by the Committee, would render the Bill unconstitutional. A community could approach a court where land transfers could not happen where certain sections did not apply to certain municipalities. The Committee had had to weigh scenarios before excluding sections 19 and 20 to avoid acting in an unconstitutional manner, and if the Minister transferred land in an inappropriate manner, to ensure that there were legal avenues to address the matter.
On the appeal that the Bill should be rejected, he said the difficulty would still be that the constitutional court order would be voided, and not amending the Bill would not be beneficial in the future.
Regarding the number of consultations held, he said that the Department had not published a formal call for submissions before the Bill was introduced, but a call for consultations was made by the Portfolio Committee and submissions had been received.
On the concerns of traditional leaders, he emphasised that only three sections (3, 19 and 20) would require involvement from traditional authorities on the ULTRA, and that the Bill sought to make the sections applicable only in the transfer of land to communities. Sections 19 and 20 made provision for land transfers to be made to traditional authorities and traditional communities.
On the capacity of the Department to implement the Bill, the Department had no choice but to capacitate itself to implement it. When the provisions of the Principle Act, Section 2 and 3, were introduced by Parliament, the least expensive way of implementation must have been considered, and an automatic conversion of Permissions to Occupy (PTOs) and deeds of grants into ownership, had been decided by Parliament. There was therefore no administrative process to be followed on applications and objections of conversions in attempts to decrease costs, but now conversions that did not afford people a chance to object had been declared unconstitutional by the Constitutional court.
On the status of the review process and the opinion of some traditional leaders disagreeing with women owning land, he said the Department had a draft Bill on consultations with traditional authorities on equality, and to build consensus between stakeholders. The Minister had promised that the Communal Land Tenure Bill would be tabled before Parliament during the current financial year. He said that some traditional authorities believed in equality, but even so, the Constitutional Court had already ruled that women should and could become traditional leaders and own land. The argument of women not owning property would not stand.
He confirmed that the Department did not publish the Bill for public comments because of time constraints. The Portfolio Committee had been requested to publish the Bill for comments, and these had been received from various institutions, stating that the Minister had been acting unlawfully and that if the sections were operational, the Minister would be acting unlawfully. The Portfolio Committee had advised that if the exclusion of Sections 19 and 20 were unconstitutional, then the Constitutional Court would also have declared the Sections unconstitutional and made them applicable, like Section 3. The Court had referred only to Section 3 because of the case that was submitted by Teba, which dealt only with Section 3.
Referring to the progress report of the ‘One Household, One Hectare’ project, he said he was not directly involved in the Department’s projects.
On whether the Bill went through the necessary process, he reiterated that the Bill had not been published for public comments, and that the Department had no legal requirement to publish it for public comments. If the Bill was challenged on the basis of the exclusions of Section 19 and 20, it would be declared unconstitutional. He advised the Committee to seek advice from the legal advisor on the matter.
On whether the Department could table the Bill during the current financial year, he said that the Department had a draft Bill, with extended consultations.
As for defiance of the Constitutional Court, he said there was no defiance because the Court did not discuss Sections 19 and 20. Defiance would happen only if Section 3 was not included, and the Portfolio Committee had complied with the Constitutional Court order that Section 3 must be included.
On the time available to pass the Bill before the deadline and extensions, he said that it depended on Parliament whether the Bill could be passed on time. If the Committee could not pass the Bill in time, then it would have to approach the Court to request an extension. The legal advisor could provide assistance on the matter,
Mr Terrie Ndove, Deputy Director-General (DDG): Land Redistribution and Development, DALRRD, said that the ‘One Household, One Hectare’ project did affect women who headed households, and that the Department had had problems with implementation, so certain processes had to be reviewed because approval was time consuming. The project had to be aligned with other food security projects of the Department, especially after the merger of the two departments. They were trying to implement all the projects of the current financial year.
Mr Smit noted that the inclusion of Section 19 and 20, as mentioned by Adv Ramasala, from section 25A could be challenged successfully, and he asked if there were other sections that could be challenged successfully if they were found to be unconstitutional, and if the tabling of the Bill would appeal the sections as per the amendments of the Court.
Ms Ngwenya asked if a physical progress report could be submitted to the Committee on the ‘One Household, One Hectare’ project, because the response that had been given was not satisfactory.
Adv Nathi Mjenxane, Parliamentary Legal Advisor, explained how the decision to focus on only Section 3 of Section 25A, which extended into former homelands while suspending Section 19 and 20, had been taken by the Portfolio Committee. He said that the Bill was a result of the Rahube judgment, which dealt with the conversion of deeds of grant into full titles. The court had found that the effect of the deeds of grant excluded and discriminated unfairly against women, which was why and how ULTRA had been declared unconstitutional. Alignment had to be ensured as a result.
Referring to the Senqu judgement, he said that Section 25A had come into the Bill incidentally because the judgment was made in 2018, where the Court had declared Section 25A as unconstitutional because it did not allow automatic conversions to title deeds. The Court had focused only on Section 3, and not on Sections 19 and 20. The reasons for this were because the ULTRA was legislation that focused mainly on urban land tenure, while Sections 3, 19 and 20 focused on rural land tenure. This was why ULTRA was not the best legislation for land administration in rural areas to deal with matters of rural tenure. He added that the Senqu judgment did not allow an opportunity for Parliament to make amendments, because if it had to be amended, it had to done in five days in order to extend Section 3. The extension of Section 3 was made law in 2018 for the former homelands.
He said that it was possible for the Constitutional Court to be approached on any objections on the sections, but under a strict deadline, there might be a challenge to engaging in the process of amending Sections 19 and 20. The Department had undertaken a substantive extension.
An extension for the Communal Land Bill that would deal with land tenure had been requested by the Department, and was granted for 29 April 2021.
Mr Matibe said that the time frame that had been granted should not be exceeded. Work needed to be done. If the Committee was limited, as advised by the legal advisor, then the work could be done. He asked the Department when the Bill on land tenure in rural areas would be forwarded, because the matters could be resolved without approaching the court.
Adv Ramasala referred to possible challengeable sections of the Bill, and said that if Sections 3, 19 and 20 were challenged, then there would be success. The other section that could be challenged was Section 3 on the conversion of PTOs into title deeds, but there was very little concern on the Section because it was being dealt with in the new Communal Land Tenure Bill which would repeal Sections 3, 19 and 20, which dealt with communal land.
On what the reading by the court on Section 3 meant in practical terms, he explained that from the day of the judgment, Section 25 was read as being applicable across the country -- including Section 3, but excluding Sections 19 and 20. This meant that individuals that were affected by Section 3 in former homelands could approach the Department to convert PTOs into title deeds like Teba, which was allowed to convert its PTOs into title deeds. He said that there was often a difference in opinions from legal advisors, so guidance should be requested by the Committee from its legal advisor.
On whether the Communal Land Tenure Bill could be brought before Parliament, he said that a commitment had been made in a meeting with the Portfolio Committee that the Bill would hopefully be presented by the end of April 2021 because the draft had been completed, and the only thing that had not been done was the consultation process with traditional authorities, COGTA and other departments. The provisions of the Bill that dealt with the transfer of communal land to communities had been contested, which was why consensus was required from stakeholders on the provisions before they were presented to Parliament.
Mr Matibe proposed that the response on the ‘One Household, One Hectare’ project be done in writing, and submitted.
Mr Ndove replied that a report on the project would be forwarded to the Committee.
The Chairperson said that if the Committee had any further questions of clarity, they would be forwarded to the Department. He thanked the Department for attending the meeting and allowed the Deputy Ministers to make closing remarks.
Deputy Minister Skwatsha said that the issues raised by Members were noted, acknowledging that they had been raised to enhance the programme that needed to be achieved. The issues could not be resolved single-handedly by the Department. He said that everything would be taken into consideration in order to sharpen the tools of advancing the course to a greater South Africa.
The Department was released from the meeting.
The Chairperson asked the legal advisor to guide the Committee on the issue of the extension of the Bill for consultations to be held, because public participation had to be ensured in all nine provinces, considering that there was one month left until the Bill’s deadline was reached.
Mr Mjenxane said that the provinces were supposed to engage in the Section 76 public participation process within the six-week cycle. The Committee could still engage with the public for the six weeks which would end early in April, weeks before the deadline. A designed programme needed to be implemented to accommodate the six-week cycle within the provinces to ensure that the consultation process was completed on time.
On the law that was applicable, he said that the Committee should look into the key judgments on public participation, including the Lamosa judgment, and it should not be prescribed how the Committee should consult and conduct public participation. There was a Constitutional obligation to facilitate public involvement. The two matters had been declared as law: Section 2 was unconstitutional because it was discriminatory, and Section 3 was also unconstitutional because it prohibited public consultation. The legal advisors’ administration would support the Committee’s designed programme for the six-week cycle.
The Chairperson welcomed the suggestions of the legal advisor, and said that he should design the programme for the Committee. Provinces could not be told how to conduct the programme, but collaboration could be arranged with the provincial legislatures on the public participation programme.
Mr Matibe requested a timeframe for the draft programme to determine whether it aligned with the plans and goals of the Committee.
The Chairperson said that permission had been granted by the House Chairperson to use any day to hold meetings because of the time constraints that the Committee faced. He asked the legal advisor to provide time frames on when the draft programme was expected, and encouraged provincial legislature representatives to continue the work of the Committee.
Mr Smit said that the legal advisor should present the proposal to the Committee for approval, and added that joint public participation with the provinces was not progressive because the provinces needed to do their work and the Committee did its work separately. Each legislative process should be done autonomously.
The provincial representatives and traditional leaders were released from the meeting.
The minutes of the previous meeting were adopted.
The meeting was adjourned.
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