Upgrading of Land Tenure Rights Amendment Bill: Negotiating Mandates

NCOP Land Reform, Environment, Mineral Resources and Energy

07 April 2021
Chairperson: Ms T Modise (ANC, NW) & (Acting Chairperson: Mr T Matibe (ANC, Limpopo)
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Meeting Summary

Video: Select Committee on Land Reform, Environment, Mineral Resources and Energy

The Select Committee met on a virtual platform to discuss the provincial Negotiating Mandates on the Upgrading of Land Tenure Rights A/B [B 6B - 2020]. The Bill was a technical one drafted in response to an order of the Constitutional Court that “persons who were aggrieved by a conversion of a land tenure right which took effect from 27 April 1994 may approach the court for an order” of appropriate relief.

As it was a section 76 Bill, the NCOP had to conduct public hearings before voting on the Bill. Subsequently, negotiating mandates had been received from seven provinces. Mandates had not yet been sent by Limpopo and North West. Limpopo had been granted a seven-day extension and North West had been briefed late. Mpumalanga and the Northern Cape were unable to attend but both provinces had forwarded their negotiating

Gauteng province proposed three Amendments to the Bill. The first Amendment related to the person whom the Minister could appoint to assist him in dispute resolution. Gauteng insisted that the Bill should contain a requirement that the person be suitably qualified. It also proposed that a definition be included for the term “good faith” and, thirdly, that the reference excluding sections 19 and 20, in section 25(a) be deleted so that the General Affairs Land Act, excluding sections 19 and 20, should apply throughout the Republic. KwaZulu-Natal proposed that the Committee should consider a dispute resolution mechanism and processes that people relying on the legislation could approach to seek recourse when aggrieved.

There was some confusion in the Committee regarding voting rights on the Amendments. Having resolved the matter, voting proceeded but none of the Amendments was sufficiently supported to be accepted. Six of the nine provinces supported the Amendment Bill as presented. The Western Cape did not support the Bill, noting, inter alia, the lack of adequate time to engage the public, although the court order was made in 2018.

Meeting report

Opening Remarks
The Chairperson welcomed Members of the Committee and Members of the provincial Legislatures as well as the legal advisors from the Department of Agriculture, Land Reform and Rural Development (DALRRD), Adv Sello Ramasala, parliamentary Office of Constitutional and Legal Services (OCLS), Adv Nathi Mjenxane and the Office of the State Law Advisor, Aadielah Arnold.

The Chairperson informed Members that the legislation under discussion, the Upgrading of Land Tenure Rights (ULTRA) A/B [B 6B - 2020], was a section 76 Bill which meant that the NCOP had to conduct public hearings before voting on the Bill. Negotiating mandates had been received from seven provinces. Mandates had not yet been sent by Limpopo and North West. Limpopo had been granted a seven-day extension and North West had been briefed late so the public hearing was being held the following day and thereafter, North West would send a final mandate. Mpumalanga and the Northern Cape were unable to attend but both provinces had forwarded their negotiating mandates.

The Committee Secretary explained that Provinces would read their mandates, with Amendments, if any. Amendments would be discussed with the Department and the legal advisors. Members would then support, not support or abstain from voting on the proposed Amendments. He would call for the vote following discussion.

Mr C Smit (DA, Limpopo) queried the process of voting on an Amendment by province. He suggested that all the amendments be presented together as there might be similar Amendments that could be discussed together. In that way the processes would not be duplicated.

Mr A Arnolds (EFF, Western Cape) registered his concern about Limpopo and North West that had not sent in their negotiating mandates. Why move ahead? He was concerned about the process, not just that two provinces were not ready, but also the speed with which the process was being driven.

The Chairperson noted Mr Arnolds’ concern but stated that the two provinces were currently engaging with the process and would send final mandates.

The Chairperson was disconnected as a result of network problems. She asked Mr T Matibe (ANC, Limpopo) to take over the position of Chairperson should she be cut off as a result of the network problems.
 
Mr Matibe agreed. He also informed the Committee that the Chairperson of the Limpopo provincial Committee had written to the NCOP requesting an extension. That had been granted and the provincial committee had given the public seven days to submit written submissions. The province was therefore unable to finalise its mandate before receiving those submissions and the NCOP had been informed of the situation.

The Chairperson called for the reading of the mandates.

Mr Matibe seconded Mr Smit’s proposal to address the Amendments first.

Gauteng Provincial Legislature (GPL) Amendments
Ms Fasiha Hassan, Acting Chairperson, GPL Provincial Committee addressing Land Reform, presented the proposed Amendments.

Amendment 1
The first proposed Amendment was under clause 1(c) as the clause introduced a new person “to  assist  the  Minister  in determining the facts relating to the conversion of land tenure rights and the objection thereto, in order to assist the Minister in determining the facts and to make a decision relating to the conversion of land tenure rights, the objection thereto and the vesting of ownership.”
Gauteng proposed that the person should be suitably qualified, perhaps even with a legal qualification: page 3, line 33, to insert: “1[E] The person designated as in 1[D] must be suitably qualified as prescribed”.

Amendment 2
The second proposed Amendment related to clause 3 page 4 lines 5, 7,12, 13. The concept of “good faith” which was found on page 4, lines 5, 7, 12 and 13 should be defined to provide better clarity on its meaning. It should also ensure that in the clarification it protected vulnerable persons which the Amendment Bill intended and sought to safeguard. That Amendment was specifically on “good faith”.

Amendment 3
The third proposed Amendment was under clause 4, page 4, lines 19 -20. The reference excluding sections 19 and 20, in section 25(a) be deleted and should read: “As from coming into effect the General Affairs Land Act, excluding sections 19 and 20, should apply throughout the Republic.”

KwaZulu-Natal Provincial Legislature Amendments
The Chairperson requested that the legal advisors note the proposed Amendments. She requested KZN to present its proposed Amendment.

The representative for KwaZulu- Natal requested the Secretary to read its mandate.

The Secretary read: “The Portfolio Committee on Agriculture, Rural Development met on Friday 26 March 2021 and agreed to mandate the KZN delegation to support the Upgrading of Land Tenure Rights A/B [B 6B - 2020] with the proposed Amendment as in the attached Committee Report.”

The Secretary noted that the attached Committee Report made no specific Amendment; it did not provide wording as had Gauteng. He read the conclusion to the Committee Report:
“The Committee, having considered the above concerns, agree that they are valid and need to be part of the Report and that the dispute resolution mechanism, in addition to courts, as proposed in section 14(a) be referred to the Select Committee. The Committee met on 26 March 2021and unanimously agreed to support the Bill subject to the Amendment stated above being seriously considered by DALRRD prior to the final and voting mandate being conferred by the House. The negotiating mandate attached as Annexure A.

The Amendments were: The issues raised and comments made in relation to clauses 1, 2 and 4 amending sections 2, 4 and 25(a) respectively have been adequately addressed by the Amendments made by the National Assembly Portfolio Committee. Clause 3 inserting section 14(a) had been criticised as it did not respond to the protection of vulnerable tenure rights. A point raised was that the primary beneficiaries of ULTRA were poor and marginalised members of society of which most would not have the resources needed in approaching the court to bring a legal challenge. It had been proposed that the Committee should consider a dispute resolution mechanism and processes for people relying on ULTRA could approach to seek recourse when aggrieved.”

The Secretary stated that as far as he could ascertain, the dispute resolution mechanism was the proposed Amendment by KZN.

The Chairperson clarified that only two provinces had proposed Amendments.

Eastern Cape Provincial Legislature Mandate
The Committee Secretary was requested to read the negotiating mandate on behalf of Eastern Cape:
The Legislature supported the Bill and mandated the Eastern Cape delegates to negotiate in favour of the Bill, noting the following concerns - not Amendments:
- The implementation of the Bill would restore the land to the first indigenous nation.
-The land within the authority of the traditional leaders should be transferred to the traditional leaders,
-Proper public consultation was not done due to the tight deadline for the submission of the negotiating mandate.
-There was a concern that the short notice of the public hearings and the digital platform on which they were held would have deprived many people of the opportunity to participate as they do not have access to the relevant gadgets and therefore consultation was not sufficient.
-The rural nature and vastness of the province was not considered when setting deadlines.
-There was a proposal that consultation be extended.

Free State Provincial Legislature Mandate
Mr A Cloete (FF+, Free State) read the key import of the Free State negotiating mandate. The Bill was deliberated on 18 March 2021and the Legislature decided in favour of the Bill.

GPL Mandate
Ms Hassan read the mandate: The Gauteng Legislature was in favour of the Bill with some Amendments and mandated the Gauteng representatives to vote in favour of the Bill. There were some general comments:
Concerns were raised about the application process in clause 1 for ordinary South Africans:
It should not be too onerous on the women it sought to assist. The Committee proposed that the convenience of the application process be made affordable and easily accessible to all members of the public in rural and urban areas. There was unanimous agreement that the scope of the Bill was too narrow. The provincial Committee recommended a review of the entire Land Administration Act, especially to accommodate the rights of the historically disadvantaged community. The full Amendment of the principal Act would also help in conferring economic benefits as property could be used as a source of income from rental or sale. The Committee wished to register the need to begin the process and also to register its commitment to the full realisation of access to land tenure rights holistically.

Ms Hassan read the first proposed Amendment from Gauteng:
The first proposed Amendment was under clause 1(c) as the clause introduced a new person “to  assist  the  Minister  in determining the facts relating to the conversion of land tenure rights and the objection thereto, in order to assist the Minister in determining the facts and to make a decision relating to the conversion of land tenure rights, the objection thereto and the vesting of ownership.”
Gauteng proposed that the person should be suitably qualified, perhaps even with a legal qualification: page 3, line 33, to insert: “1[E] The person designated as in 1[D] must be suitably qualified as prescribed”.

Members discussed the process of discussing the Amendments.

The Chairperson stated that the Committee would address each Amendment separately, beginning with input from the legal advisors.

The Committee Secretary confirmed the procedural requirements.

Gauteng Amendment 1
Legal input

Adv Ramasala explained that when the Bill was drafted, the intention was to keep the process as simple as possible. The person would be appointed during a particular application. The idea was that the Minister would designate an official of the Department to assist in conducting an investigation to establish facts around the application or objection. To require a suitably qualified person would give rise to more challenges. In addition, the person not happy with the outcome might challenge the process.

He noted that if such a change were made, it was likely to be someone from outside the Department who was appointed and then the party that was unhappy with the process would dispute the suitability of the person to establish the facts on behalf of the Minister. Also, if the person was from outside the Department, there would be issues relating to the payment and the Department would have to procure a person to conduct the business. The intention of using an official was to simplify the process by allowing the Minister to designate a person in the Department. The proposed Amendment could be difficult to implement and he suggested that the clause remain as it stood.

Ms Hassan clarified Gauteng’s position, explaining that the person would play a vitally important role and so Gauteng was not saying that the person had to come from outside the Department, but that whoever it was had to have the appropriate qualifications to be able to perform the role.

Adv Ramasala noted the explanation. He had no objection to the Amendment but suggested that it would facilitate matters if it were added that the person had to be an official in the Department

Mr Smit stated that it was not appropriate for an official to propose an Amendment. Officials could only respond to proposed Amendments.

Adv Mjenxane said the departmental functionary was best placed to speak to the operational issues of designating a person of particular qualifications as the Department would be implementing the legislation. Mediation was an operational requirement and an appropriately qualified person would be requested to carry out the function of mediation - it was implied the person had to be properly qualified to mediate. It was an inherent requirement for a person to be qualified. He noted, however, the desire of Gauteng to make the suitability of the person an express requirement.

He reminded Members that it was a technical piece of legislation to comply with the court order and that the National Assembly would have to express itself on such an Amendment and that would delay the process and that would affect the meeting of the deadline. He added that it was possible to give effect to such a requirement in the Regulations because the manner in which the process was done, i.e. the person to be selected, was contained in the Regulations and so the Amendment could be provided for in the Regulations. That would not impact on the timeframes which were inherent in the process.

Adv Arnold commented on the possibility of extending timeframes and the need to keep within timeframes. She drew the Committee’s attention to the proposed Amendment 1(d). The original powers to appoint such a person were situated in section 24 of the original Act which meant that the proposed Amendment would be applicable to section 24(d) which was a section of the Act that was not currently part of the Bill. The Committee would have to approach the NCOP for permission to make additional amendment.

Deliberation
Mr Arnolds noted that Adv Mjenxane had said that Amendments would not be included in the Bill due to the time constraints. He added that the Western Cape did not support the Bill in its entirety so the Western Cape would not be supporting the Amendments.

Ms Hassan said Members were aware of the time constraints but they could not limit their processes and job, which was a constitutional job, as duly elected public representatives on the basis of time limits alone as that would be a failure to apply the mind. They had to be able to stand before the Constitutional Court and say that they had fulfilled every duty they had as public representatives. That had to be the backbone of their discussions or Members would be guilty of malicious compliance. Their job was to represent people in face of bureaucratic elements. She could not see why there should be a problem in wanting a suitably qualified person to carry out a job. It would not harm the process but would create an objective process that would assist vulnerable people. A suitably qualified person would be able to address the problems and ensure that there were no backlogs. She did not believe anyone could not want a suitably qualified person.

She added that she was aware of the timelines and it had been noted privately in her Portfolio Committee that the timeline had severely limited the ability of the Gauteng Committee to consult people. Other provinces had also noted that issue. As a lawyer in her previous life, she knew that it was not acceptable for the Constitutional Court to have to send legislation back. The Committee needed to do the job properly and in the best possible way.  Deadlines could not dictate their work as a member of the public could go to the courts and state that there had been inadequate consultation.

Mr Matibe said that the proposal presented no harm but it should not be made on the premise that the Minister would appoint a person who was not suitably qualified. If the matter were engaged from that angle, the Committee was becoming more administrative, rather than focusing on the spirit of the law. He proposed that the Committee went with the position that the qualifications for the person be included in the Regulations to the Bill as the timeframe was not an issue in such a case.

The Chairperson confirmed that Mr Matibe had proposed inclusion in the Regulations.

Mr Cloete thanked Ms Hassan for giving clarity on the process. He always reminded himself that the SA democracy was built on a clear separation of powers. He was concerned that the Executive stated that the courts had imposed certain deadlines and the Executive instructed the Legislature to accept the Amendment within a certain timeframe. The fact that the Amendment was before them did not mean that it was one hundred percent correct. Members were obligated to scrutinise the legislation.

With regards to the Gauteng amendment about a qualified person, he was concerned about the province’s wording. What was meant by “as prescribed”? Was it in terms of the rest of the Bill? If not, there was a need to draft the “prescribed”. He asked for clarity.

The Chairperson asked the State Law Advisor to indicate whether the Committee was including something that was not included in the Amendment.

Adv Arnold stated that the Amendment regarding the need to appoint a suitably qualified person gave the Executive authority the directive to appoint a suitably qualified person for that specific task only. Section 24(c) of the principle Act states: “The Minister may make Regulations regarding any matter required or permitted to require Regulations in terms of this Act.”

She emphasised sect 24(c)(b): “Generally all matters that are expedient or necessary to be prescribed in order to achieve the objects of this Act.” Prescribing the details of a person to be appointed would then be authorised by the Act.

The Chairperson noted that it was in the main Bill and not the Amendment.

Adv Ramasala stated that if the Committee decided to put the requirement about qualifications in the Regulations, section 24 (c) gives the Executive permission to make Regulations. In his view, it was not necessary to make an Amendment as the Act provided for Regulations.

Adv Mjenxane reiterated his position that the Department best understood operational requirements but in his view, the requirement was best inserted in Regulations which were already catered for.

The Chairperson called for a vote.

Mr Cloete queried whether the Committee was voting for the Amendment as proposed by Gauteng with no change to the wording.

The Secretary concurred that the Committee was voting on Clause 1(c) as in Gauteng’s mandate.

Mr Matibe asked for clarity and a summary of discussions as the voting was taking place against that backdrop. He had made a proposal. How was that reflected in the voting?

The Secretary stated that the general consensus was that the Amendment by Gauteng could be managed in the Regulations and, therefore, the Bill did not need to be amended.

Mr Smit understood that qualification would be in Regulations but that did not exclude adding an Amendment that the person had to be qualified.

The Chairperson noted that Mr Smit seconded Mr Matibe.

Mr Matibe explained that Mr Smit was not seconding him. His proposal was that the proposed Amendment be put only in the Regulations.

Mr Smit repeated his proposal. As he understood it, the details of qualifications could be included in the Regulations but there had to be an Amendment to require the inclusion of the qualifications in the Regulations.

Adv Mjenxane understood the point. His advice was that it could be provided for in Regulations and would have same net effect in law. So, requiring qualifications and the specific qualifications could be included in the Regulations. Section 25 (c) in the Bill allowed for the drafting of Regulations by the Minister.

Mr Smit thanked Adv Mjenxane. He understood that including the requirement for qualifications in regulations would have effect but there was no guarantee that the Minister would include the requirement in the regulations. If it was not referred to in the Bill, it could be left out. That was why, as lawmakers, the Committee needed to ensure that it was in the Bill.

Mr Matibe said that the Committee was going around in circles. His proposal and recommendation was the same as the legal advisor.

The Chairperson asked Members to focus on the advice being given which was that everything could go into the regulations.

Ms Hassan asked for clarity as to how the Gauteng Legislature would have a guarantee that it would be included in the regulations. She needed to know what to report back to the Legislature so that it would be satisfied with the outcome.

The Chairperson stated that all mandates would go to the Department which would have a responsibility to respond.

Adv Ramasala explained that the Committee would give instructions to the Department to include the point about a suitably qualified person in the Regulations and the Department was obliged to include it in the Regulations.

Mr Cloete asked for confirmation that the Regulations would come to the Committee for approval so that when the Regulations were published, would they go to the provinces for consideration.

Mr Matibe said the instruction to the Department would have to be in writing that a suitably qualified person should be in the Regulations and that the matter should be operationalised.

Mr Smit asked what remedies the Committee would have if that point were not included in the Regulations and whether the following Minister would be under the same obligation. What remedies would the provinces have if a future Minister decided to remove the Regulations?

The Chairperson called for vote but Mr Smit explained that he needed clarity as it would affect the vote.

Adv Ramasala explained that when Parliament instructed that Regulations be drafted, the Minister made Regulations. They were not brought to Parliament but they were published for comment as there were operational matters contained in the Regulations. If there was no reference the particular provision, that would be at the Minister’s discretion because there was no obligation on the Minister to include such a regulation. An Amendment was required to remove the Minister’s discretion.

Adv Mjenxane provided a direct answer. The Constitution was the supreme law of the land. That was the precursor to all law. Section 92(2) stated that Members of the Executive were accountable to the powers of Parliament in terms of their Executive functions. Where the current Committee resolved, through its deliberations, Parliament could direct the Minister to draft certain legislation, such as the specific regulation and the Minister was obligated to report on the progress of the Regulations to the Committee itself. The provinces had permanent delegates in the NCOP and the Committee and the permanent delegate of Gauteng would be able to require progress reports to provide to the legislature on how far the Department had gone in developing the Regulations. Constitution provides for Parliament to monitor that something had to be done.

Mr Smit agreed it had been clarified that there was no guarantee that it had to be included in the Regulations.

The Chairperson called for a vote.

The Secretary called out each province to either support, not support or to abstain from the Amendment to 1(c) as proposed by Gauteng.

Voting on proposed Amendment 1 from Gauteng:
Eastern Cape - Supported
Free State - Supported
Gauteng - Supported
KwaZulu-Natal - Supported
Mpumalanga - No representative
Limpopo - Supported
Northern Cape - No representative
North West - Supported
Western Cape - Not supported

The first Amendment proposed by Gauteng was agreed to.

Ms Shahida Bowers, NCOP Table Division, explained that the provinces had to vote within the parameters of the negotiating mandate. North West and Limpopo did not have a mandate to vote on that provision as the provinces had not submitted a vote.

Mr Smit stated that if that were the case, the meeting was fruitless as the meeting would not have a mandate.

Mr Matibe agreed that Limpopo did not have a mandate. He stated that the Chairperson had to look at a quorum in respect of mandates.

Mr Arnolds reminded the Chairperson that he had indicated at the beginning that the Committee had to have all nine provinces in the meeting with their mandates.

Mr Cloete said that the mandate gave provinces a mandate to vote on the Bill but it did not apply to Amendments.

The Chairperson called for a five-minute break in order to clarify matters.

After the break, Ms Bowers stated that it was the first time that provinces were seeing each other’s mandates and so, because it was the first time the matter was being presented to the provinces, they were allowed to vote but Members had to take their vote back to their provinces for a final mandate. They were currently at the negotiating phase and so could use their discretion but had to take the point back to the legislature. Provinces could weigh in and vote, regardless of whether or not a province had a mandate.

The Secretary said, in response to Members’ comments that the meeting should never have gone ahead, that there were six plus provinces present in the meeting and six mandates were made available (Mpumalanga was not present but had sent a mandate), so the committee was procedurally legitimate. The Committee required five provinces to hold a meeting. He, as Secretary, could only inform Members of the process, but he could not tell them how to vote.

Mr Smit said that his precise words had been “if that were the case”, the process was not legal. He proposed that the Committee move forward.

Mr Cloete asked for confirmation of his understanding that the Members could vote but had to take the position back to their province and the matter would be considered in the final mandate process.

Ms Bowers confirmed that was correct. It was the negotiating stage so the provincial representative could express his or her views and after the meeting the Committee would send details and the outcome of the negotiating mandate meeting to the provincial legislatures. She apologised for causing confusion.

The Chairperson had network difficulties so Mr Matibe acted as Chairperson in her stead.

Acting Chairperson Matibe confirmed that the Committee was in the process of negotiating the final mandate.

Ms W Ngwenya (ANC, Gauteng) agreed. It now made sense to her. She suggested that the Committee continue with the business of the day. Was the voting per Member or per province?

Ms L Bebee (ANC, KZN) stated that she had been confused and she had not been able to caucus. She had since caucused and wished to put on record that KZN was not supporting the first Amendment.

Acting Chairperson Matibe said voting was closed.

The Secretary put it on record that the process of voting on the first Amendment was not formally closed, so a Member could change his/her mind. He proposed that, if Members wanted to redo the voting process, he could do so. Alternatively, he could change the KZN vote.

Ms Hassan reiterated what Ms Ngwenya had said. She was wary of taking the meeting back as it might derail the meeting, but she would be led by the Acting Chairperson.

Acting Chairperson Matibe informed the Secretary that he could note the amendment to the KZN vote.

The Secretary was unclear about the voting by North West as it had appeared that North West was voting for Regulations and not the Bill. It was at that point that the Chairperson had called for a break. He asked North West to clarify its position for him.

North West was not supporting the Amendment.

The Secretary read the results of the vote:
Eastern Cape - Supported
Free State - Supported
Gauteng - Did not support
KwaZulu-Natal - Did not support
Limpopo - Supported
Mpumalanga - No representative
Northern Cape - No representative
North West - Did not support
Western Cape - Did not support

The Secretary stated that only four provinces had supported the Amendment; three had not supported the Amendment. In order for an Amendment to be agreed to, five provinces had to support it. Therefore the first Amendment proposed by Gauteng was not agreed to.

Second Proposed Amendment by Gauteng
Ms Hassan present the second proposed Amendment: Clause 3 page 4 lines 5, 7,12, 13. The concept of “good faith” which was found on page 4, lines 5, 7, 12 and 13 should be defined to provide better clarity on its meaning. It should also ensure that, in the clarification, it protected vulnerable persons which the Amendment Bill intended and sought to safeguard.

Acting Chairperson Matibe requested the legal advisors to provide input.

Adv Ramasala asked for confirmation that the Amendment was requesting a definition of “good faith”

Ms Hassan replied that the Gauteng Legislature committee and the public felt that they required a more specific definition so that there was not too much room to manoeuvre in terms of the power dynamics. People needed to know what they were working with.

Adv Ramasala explained that the drafters had not defined “good faith” as it was used in its usual sense and there was no specific meaning to the phrase in that Bill. There was no specific purpose in the Bill requiring a definition. The drafters had understood it to mean “sincerely and honestly”.  However, if Gauteng was proposing a specific definition, he was sure that it could be looked at. He added that the court decision had used the words “good faith” and the drafters had understood it to mean sincerely and honestly.

Adv Mjenxane said that the issue of “good faith” had its origins in common law. It was an established principle used extensively in an objective sense. In common law it was known as “bona fide” meaning good faith while “mala fide” meant bad faith. It was well-established in common law and used in court decisions and related to the honesty of a person. Only if it were being used in a different way, then one would need a specific definition. It was his view that a definition was not necessary.

Acting Chairperson Matibe asked Ms Hassan if she still wanted to put forward the definition.

Ms Hassan said that it was a view held by Members of the Gauteng Legislature and also by members of the public. One of the concerns was when two parties were negotiating, the one with the power could utilise good faith to that person’s advantage but one who was powerless and dispossessed could not exercise and enforce good faith. She appreciated the explanation by the legal advisors - she was also a lawyer by training - but because of the strength of her mandate from Members and the public, it was difficult for her to let go of it.

Mr Cloete noted that Gauteng had not supplied an alternative. It was difficult to vote if there was no alternative given to what was understood by “good faith”.

Ms Hassan explained that the intention was not to remove it but to expand the understanding of the phrase so that a person bringing forward a claim would understand what was required for a claim to be successful.

Acting Chairperson Matibe asked where such a change would be effected. Would it be in the definitions?

Ms Hassan agreed that would be the correct space to do so.

Acting Chairperson Matibe  requested the Secretary to conduct the voting process.

Voting on proposed Amendment 2 from Gauteng:
Eastern Cape - Supported
Free State - Abstained
Gauteng - Supported
KwaZulu-Natal - Did not support
Limpopo - Did not support
Mpumalanga - No representation
Northern Cape - No representation
North West - Did not support
Western Cape - Did not support

Two provinces supported the second Amendment proposed by Gauteng, one abstained and four provinces did not support. The second Amendment proposed by Gauteng was not carried.

Third Proposed Amendment by Gauteng
Ms Hassan stated that the Amendment related to clause 4, page 4, lines 19 -20. The reference excluding sections 19 and 20, in section 25(a) be deleted and should read: “As from coming into effect the General Affairs Land Act, excluding sections 19 and 20, should apply throughout the Republic.”

Acting Chairperson Matibe called for comment by the legal advisors.

Adv Ramasala said that the clause was straight forward. It was a matter of whether the Committee agreed or not. There were no legal implications. The Portfolio Committee had made that particular Amendment to the original Bill introduced into Parliament. Gauteng was proposing a return to the Executive’s original Bill.

Adv Mjenxane had advised when the Bill was introduced that the Bill should only give effect to the original intention as per the court decision and not add additional points about tenure security. The Bill was a technical provision and it was not designed to regulate the entire issue regarding tenure. That would be included in the extensive revision of the legislation that would soon be introduced.

Acting Chairperson Matibe asked Adv Mjenxane to confirm that it went beyond the requirements of the court.

Adv Mjenxane agreed that in 2018 the Constitutional Court had indicated which changes it wished to see in the law, i.e. that section 3 be extended to former homelands states.

Acting Chairperson Matibe reminded the Committee that it had had discussed the Amendment previously.

Discussion
Mr Cloete asked what the implication would be of the Amendment proposed by Gauteng. He also asked the Legal Advisors what it would bring forth if the proposal were accepted.

Adv Mjenxane stated that the Bill as introduced had the effect of extending all the sections that would not apply in ULTRA, i.e. sections 3, 19 and 20. The Committee had decided only to include section 3 which extended ULTRA to the homelands and not to include sections 19 and 20 which dealt with the Minister’s power to transfer land. That required extensive Regulations and besides which, there was legislation in the pipeline. To deal with the legislation in a piecemeal manner was not considered advisable. The recommendation was to stick to the requirements of the court as the Department had committed to extensive legislative changes.

Mr Cloete asked for confirmation that the original Bill would have brought ULTRA in line with the court’s decision.

Acting Chairperson Matibe confirmed the point and called for the vote.

The Committee Secretary took provinces through the process.

Voting on proposed Amendment 3 from Gauteng:
Eastern Cape - Supported                                                                                                                                                                                                                                                                                                        
Free State - Did not support
Gauteng - Supported                                                   
KwaZulu-Natal - Did not support                    
Limpopo - Did not support
Mpumalanga - No representative
Northern Cape - No representative
North West - Did not support
Western Cape - Did not support                                                                                                                                                                                                  
Two provinces supported the proposed Amendment, five provinces did not support it and two provinces were absent. The Secretary declared that Gauteng’s third proposed Amendment was not agreed to.

Proposed Amendment by KZN
Ms Ntombikayise Sibhida, Member at KwaZulu-Natal Provincial Legislature, asked the Secretary to read out KwaZulu-Natal’s proposed Amendment on her behalf, especially bullet point number 2.

The Secretary read: “The Portfolio Committee on Agriculture, Rural Development met on Friday 26 March 2021 and agreed to mandate the KZN delegation to support the Upgrading of Land Tenure Rights A/B [B 6B - 2020] with the following proposed Amendment as in the attached Committee Report.”

The Secretary read the conclusion to the Committee Report: “The Amendments were: The issues raised and comments made in relation to clauses 1, 2 and 4 amending sections 2, 4 and 25(a) respectively have been adequately addressed by the Amendments made by the National Assembly Portfolio Committee. Clause 3 inserting section 14(a) had been criticised as it did not respond to the protection of vulnerable tenure rights. A point raised was that the primary beneficiaries of ULTRA were poor and marginalised members of society of which most would not have the resources needed in approaching the court to bring a legal challenge. It had been proposed that the Committee should consider a dispute resolution mechanism and process for people relying on ULTRA could approach to seek recourse when aggrieved.”

“The Committee, having considered the above concerns, agree that they are valid and need to be part of the Report and that the dispute resolution mechanism, in addition to courts, as proposed in section 14(a) be referred to the Select Committee. The Committee met on 26 March 2021and unanimously agreed to support the Bill subject to the proposed Amendment.”

Acting Chairperson Matibe called on the legal advisors for input.

Adv Ramasala explained that clause 14(a) was an insertion based on the court order, i.e. that “persons who were aggrieved by a conversion of a land tenure right which took effect from 27 April 1994 may approach the court for an order” of appropriate relief.  Secondly, the Department did not have the right to prevent people from approaching the courts to seek relief and, thirdly and importantly, the legislation was dealing with existing rights and a title deed and for the deeds office to make changes to its record of deeds. It did not deal with resolution of disputes over land tenure.  Noting KZN’s motivation to support vulnerable people who might not have the resources to approach the courts, he agreed that it might be so, but he explained the current processes taking place. The Department of Justice and Constitutional Development (DoJ&CD) was drafting the Land Court Bill and ULTRA would fall under that Bill and so the built-in mechanisms in the Land Court Bill would apply to those seeking redress under ULTRA. DoJ&CD was currently in negotiations with the Legal Aid Board to take over the facilities that the Department had to provide legal support to persons involved in disputes arising from land claims and land tenure. The Legal Aid Board would then be providing assistance to indigent persons who wished to approach the Land Claims Court. The Department believed that the land Claims Court should remain the mechanism for dealing with disputes.

Adv Arnold noted that media reports indicated that there would be a specialised Land Claims Court that would offer alternate dispute resolution and the ULTRA Bill would fall within the jurisdiction of that court. Legislation establishing that court indicated that it would deal with all matters emanating from land claim issues.

Adv Mjenxane agreed with the KZN perspective that it was generally poor people who had land tenure issues and it was very difficult for indigent people to have access to court processes as court costs could be prohibitive, but the Department had anticipated that challenge and had put processes in place to address both the costs and alternative dispute resolution.

Acting Chairperson Matibe asked KZN for a response to the input from the legal advisors regarding the Land Court Bill.

Ms Bebee accepted the explanation by the legal advisors.

Acting Chairperson Matibe indicated that Ms Bebee should explain process to enable access to the courts and the alternate dispute mechanism that would be available to poor people in KZN and across the country.
He called for a vote on the Amendment.

The Secretary introduced the voting process on the KZN amendment.

Voting on proposed Amendment from KwaZulu-Natal:

Eastern Cape - Did not Support                                                                                                                                                                                                     Free State - Did not support
Gauteng - Supported                                                   
KwaZulu-Natal - Supported  

Limpopo - Did not support
Mpumalanga - No representative
Northern Cape - No representative
North West - Did not support
Western Cape - Did not support                                                                                                                                                                                                                                                                                                                                                                                                                                 
The Secretary stated that two provinces supported the Amendment proposed by KwaZulu-Natal, five provinces did not support and two provinces were absent. The proposed Amendment by KwaZulu-Natal was not agreed to.

Mpumalanga Legislature Mandate
Acting Chairperson Matibe asked the Secretary to read out the Mpumalanga mandate.

The Secretary read the mandate from Mpumalanga that supported the Bill. There were no proposed Amendments.

Northern Cape Legislature Mandate
Acting Chairperson Matibe asked the Secretary to read out the Northern Cape mandate.

The Secretary read the mandate from the Northern Cape. It supported the Bill. There were no proposed Amendments.

Western Cape Legislature Mandate
Mr Arnolds requested the Secretary to read the Western Cape Negotiating Mandate.

The Secretary read the mandate from the Western Cape. The mandate did not support the Bill as it had not been sufficiently advertised and therefore was not in accordance with the constitutional requirements. Secondly, the Western Cape believed that the Act as a whole should be repealed. Thirdly, only a small number of aggrieved persons would be in a position to apply to the court. Alternative mechanisms were required. Parliament had not handled the drafting process efficiently, resulting in the unacceptable pressure being placed on provinces. The ANC minority expressed its support of the Bill.

The Secretary stated that the minutes of that meeting would be submitted to provinces.

The Secretary noted that seven negotiating mandates had been received. Six provinces supported the Bill and one province did not support it.

The Acting Chairperson called for an in-committee meeting to discuss the minutes. He bid farewell to the provincial legislature Members and the legal advisors. He requested those provincial Members still on the platform to leave.

Minutes of 9 March 2021
The Chairperson noted that Members had read the minutes and called for corrections. There were none. The minutes of 9 March 2021 were adopted by the Committee with no amendments and no objections.

The Secretary informed the Committee that he had received an apology from Mr Nyambi in the course of the meeting.

Closing remarks

Acting Chairperson Matibe thanked Members for their engagement in the meeting.

The meeting was adjourned.

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