Draft Constitution Eighteenth Amendment Bill: DPWI, DMRE & DoJCD input; with Ministers

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Meeting Summary

Video: Ad Hoc Committee on Legislation Amending Section 25 of the Constitution, 09 April 2021

Consolidated Report on Public Hearings
Section 25 Review Process

In the final leg of public hearings on the draft Constitution Eighteenth Amendment Bill, the Ad Hoc Committee convened virtually to receive input from departments. Members heard from the ministers responsible for the Department of Public Works and Infrastructure (DPWI), the Department of Mineral Resources and Energy (DMRE), and the Department of Justice and Constitutional Development (DoJCD).

DPWI said that the Amendment Bill would help it to implement the Expropriation Bill. Members were briefed on the objectives and broad provisions of the Expropriation Bill, which was intended as a general law of application and which allowed nil compensation to be paid for expropriation in the public interest. DPWI emphasised the importance of repealing the Apartheid-era Expropriation Act of 1975, highlighting that the current Act was unconstitutional and did not advance redress.

DMRE said it was not directly affected by the Amendment Bill to the same extent as other departments, but it fully supported the Bill and the Bill’s central objective, the acceleration of land reform. The Bill would resolve an ambiguity in section 25 of the Constitution by confirming that property rights could legitimately be limited for the purposes of land reform and redress, including through expropriation with nil compensation. The Mineral and Petroleum Resources Development Act was an example of legislation that successfully balanced the protection of property rights against the social responsibilities of the state.

DoJCD said it could not provide input on the Amendment Bill until it had consulted with the Cabinet, but it reported on the new Land Court Bill. The Land Court Bill sought to address certain deficiencies in the current Land Claims Court system, many of which stemmed from the fact that the Court had initially been envisaged as a temporary mechanism. Among the challenges were slow processing times, the lack of permanent judges, and the inconvenient location of the labour tenancy court in Randburg. The Bill established a specialised Land Court, which would be able to handle disputes about land expropriation in the public interest. The Bill also established a court-annexed mediation process as an alternative dispute resolution forum.

The Chairperson asked the departments to respond to various diverse criticisms raised against their processes, including, for example, the charge that DPWI did not have complete records of state-owned land and the charge that the Land Claims Commission was ineffectual. Members were particularly concerned about the disputes that might arise from expropriation and about the need to resolve such disputes quickly. They asked the Ministers whether disputes, and the determination of compensation, should be handled by the judiciary or by the executive. They also asked whether land owned by state-owned entities was being included in the land reform programme. In addition, although DPWI and DMRE emphasised that the provisions of the Amendment Bill were already implicit in the Constitution, some Members remained unhappy that the Expropriation Bill was being processed before the Amendment Bill was finalised, given that the Expropriation Bill was supposed to be closely aligned to the Constitution.

 

The Chairperson noted that the Committee had now completed its public hearings, and the final and comprehensive report had to be produced. He suggested to the parliamentary administration that the report should be available by Tuesday 13 April at the latest. The report had to be sent to all political parties. Members from all parties should consult their principals and seek mandates on the substantive issues arising from the report. On Friday 16 April, the Committee would convene to consider and adopt the report. It would also adopt the “final roadmap” which would take the Committee to the process’s conclusion. Thereafter the Committee would turn its focus to discussing the draft Constitution Eighteenth Amendment Bill itself.

Meeting report

Opening remarks by Chairperson
The Chairperson said that the Committee was in the final leg of public hearings on the draft Constitution Eighteenth Amendment Bill. The Committee had extended the period for oral and written submissions at the request of Members and the public. Those requests had been acceded to because Parliament was “people-centered and people-driven.” Democracy in South Africa was both representative and participatory, and public representatives did not have “a monopoly on wisdom.” The Committee therefore attached great value to public participation, as enjoined by the Constitution.

Parliamentary rules also required the Committee to consult with interested government departments about the draft Bill. In the meeting, the Committee would be briefed by three departments, but Members should bear in mind that the Committee did not have oversight over those departments. Instead, Members’ task was to ask questions of clarity in preparation for their deliberations on the Bill.

After the meeting, a final report, including input from Parliamentary Legal Services, would be produced and presented to the Committee for consideration and adoption. Parliamentary Legal Services would then produce a new draft Bill, informed by the oral and written submissions. The Committee would deliberate on that draft Bill ahead of the 21 May deadline. In the meantime, all political parties should “apply their minds” to the substantive issues raised in the report and seek mandates from their principals ahead of the Committee’s deliberations.

The Chairperson welcomed the opportunity to hear from the departments, each of which would provide the Committee with valuable information. The Department of Public Works and Infrastructure (DPWI) would report on the management of the draft Expropriation Bill and how it related to the Committee’s processes. Input from the Department of Mineral Resources and Energy (DMRE) was important because the issue of land was inseparable from the issue of its natural resources. Finally, the Department of Justice and Constitutional Development (DoJCD) would brief Members on its work transforming the Land Claims Court, a body which played, and should play, a central role in the legal processes of land reform.

Briefing by DPWI
Ms Patricia De Lille, Minister of Public Works and Infrastructure, presented on behalf of DPWI. She apologised for the misunderstanding in the previous Committee meeting and said that DPWI intended to rectify the misunderstanding through its presentation. She also communicated apologies from the Deputy Minister, Ms Noxolo Kiviet, who would join the meeting later.

Minister De Lille said that the draft Constitution Eighteenth Amendment Bill was relevant to DPWI in two central ways. Firstly, the Bill would impact DPWI in its capacity as landlord and custodian of state-owned property and land. Secondly, the Bill, in making “explicit” certain constitutional provisions, would help DPWI in its implementation of the Expropriation Bill [B23-2020], which it had drafted and submitted to Parliament in 2020.

Currently, expropriation was governed by the Apartheid-era Expropriation Act 63 of 1975. The purpose of the new Expropriation Bill was to replace that Act and align expropriation legislation with the Constitution, as the Presidential Advisory Panel on Land Reform and Agriculture had recommended. In particular, the current Act failed to honour the importance of redress, as provided for by section 25(8) of the Constitution.

The Expropriation Bill sought to provide a general law of application, in line with the Constitution, to guide the processes and procedures for expropriation of property by organs of state. The Bill would bring certainty to South Africans and investors, because it clearly outlined how expropriation could be done and on what basis.

Clause 12(3) of the Bill outlined instances in which nil compensation for expropriation in the public interest might be just and equitable (see slides). As per chapter 16 of the Bill, the courts would be the final arbiter in the event of disputes over expropriation or over compensation amounts. This was in line with section 34 of the Constitution, which provided for the right to a fair public hearing before a court. 

Minister De Lille also discussed, as an example, one case in which expropriation had been impeded by the current Expropriation Act (see slides). In 2015, Eskom had applied to expropriate a servitude to run power lines over a farm in Uitenhage, Eastern Cape, to supply power to a nearby township. It had taken six years for the matter to be finalised, because DPWI had had to rely on the court to compel the expropriation.

Minister De Lille added that the Office of the Chief State Law Adviser had certified the Expropriation Bill as constitutional. She said that DPWI supported the Committee’s work, which would provide helpful “clarity,” and that DPWI looked forward to the outcome of the process.

Discussion
The Chairperson raised a concern which he said might not be directly relevant to the Bill. Critics of DPWI said that, although DPWI was the landlord for state-owned property, it did not seem to know where its land and properties were. Some properties were underutilised, and some had been “hijacked” or invaded. People sought recourse to the courts, to gain access to land, but worried that the Land Claims Court could not provide remedies. For example, the Court did not have full-time judges.

The Chairperson asked whether DPWI had an audit detailing the farms and properties under its control. His question was not about land which should be expropriated, but about land which was already state-owned and which DPWI could simply transfer to communities who needed it for development or other purposes.

Minister De Lille replied that DPWI knew exactly what land was owned by the state. The government had carried out two land audits to establish what land was available for the landless and others who needed land. The first audit had determined the amounts of land in state or private ownership, and the second had focused on privately owned land. According to the first land audit of 2013-2014, 79% of South African land was in private ownership, 14% was owned by the state, and 7% was unaccounted for. The second audit had found that 90% of the total land audited was owned by individuals, companies, or trusts. 72% of the land was owned by White people, 15% by Coloured people, 5% by Indian people, and 4% by Black people.

Minister De Lille said that the government had made progress with its key land reform programme, focused on land redistribution, land restitution, and land tenure. For example, the Minister of Agriculture, Land Reform and Rural Development, Ms Thoko Didiza, had recently announced that 700 000 hectares of land were being released for agricultural purposes. Land reform had been slow, but government was now committed to speeding it up. One important step towards accelerating the process was to combine or consolidate all state-owned land. Currently, state-owned land was spread among the national government, provincial governments, and municipalities, which meant that land reform had to focus only on land owned by the national government. If such a consolidation could be achieved, and if all South Africans worked together – accepting that 79% of the land was privately owned – a solution would be reached.

The Chairperson said that the criticisms to which he had referred might stem from ignorance, and he hoped that the Minister’s explanation would help to address them. He suggested that the land audit reports should be made available to public representatives, so that they could provide explanations to people who brought such complaints to them.

Adv G Breytenbach (DA) asked for clarification about the figures yielded by the latest land audit. Minister De Lille had given percentage figures applying to the land that had been audited. Did that mean that the figures held for all the land in South Africa, or had only some of the total land been audited?

Minister De Lille said that the 2013-4 audit had looked at 122 million hectares of land, the total size of South Africa. She said that DPWI would make the audit reports available to Members.

Dr C Mulder (FF+) asked for further clarification. Minister De Lille had mentioned another audit, in addition to the 2013-4 audit, and it was in reference to that second audit that she had explicitly mentioned that the figures held for land that had been audited. He therefore wanted to confirm the size of that second audit. He also thought Minister De Lille had said that, according to the audit, more than 90% of the land was owned by Whites. If true, this meant that the land reform process had thus far been “a total failure.”

Minister De Lille replied that the second audit, completed in 2017, had focused on urban land only. The audit had shown that Whites owned 72% of that land, not 90%. The Department of Agriculture, Land Reform and Rural Development (DALRRD) had undertaken the audits to look at the extent of land dispossession and the extent of Apartheid-era forced removals.

Mr F Shivambu (EFF) asked about DPWI’s approach to the Expropriation Bill. Minister De Lille had said that the Expropriation Bill would be aligned with the Constitution, but the Constitution was currently being amended. The Committee was engaged in the process of amending section 25 of the Constitution, and its work had not been finalised – but the Portfolio Committee on Public Works and Infrastructure was already holding public hearings on the Expropriation Bill.  Was this not “putting the cart before the horse”? Should the Expropriation Bill not be aligned with the Constitution after, rather than before, the Constitution was amended? The priorities were out of balance and the process “[did] not make sense at all.”

Minister De Lille replied that the Bills were part of two separate processes, but that both would ultimately end up in Parliament, where the final decisions would be made. Since 2004 there had been attempts to repeal the 1975 Expropriation Act, because it was unconstitutional. That was necessary, because it was unacceptable to have a “transformative” Constitution while government was forced to use Apartheid-era laws. In her understanding, the proposals to amend section 25 of the Constitution – the purview of the Committee – aimed to make explicit certain provisions that were already in the Constitution. That is, the Constitution already provided for Expropriation. The Expropriation Bill was a general law of application that could be used by all three spheres of government to expropriate property. The two processes were not “mutually exclusive,” but instead complemented each other. If Parliament decided to amend the Constitution, making its existing provisions more explicit, then that would certainly help DPWI.

Dr Mulder said that he agreed with Mr Shivambu, joking that it was an historic occurrence. To run the two different processes concurrently did not “make sense” to him. The current Expropriation Bill dealt with the current Constitution. If section 25 was amended, the new Expropriation Act would have to be amended, or another new Expropriation Bill would have to be drafted, to incorporate the results of that process.

Minister De Lille said that she did not know why Members were “panicking” and insisting that the processes could not be run concurrently. An amendment to section 25 of the Constitution would be proposed to Parliament, and the Expropriation Bill had already been submitted to Parliament in October 2020. The Expropriation Bill rightly repealed the 1975 Expropriation Act. It was the role and the function of the executive to repeal unconstitutional legislation – there was nothing wrong with repealing any act that was inconsistent with the Constitution. But Members of Parliament (MPs) would make the final decision. The other option was to keep the 1975 Expropriation Act while amending the Constitution, and then afterwards to deal with the Expropriation Bill. But there was “no need” to work like that. The Office of the Chief State Law Adviser had confirmed that the Expropriation Bill was constitutional. And the final decision on both Bills would be made by Members and other MPs.

Adv S Swart (ACDP) was concerned about public officials who might abuse their powers in the expropriation process. Had DPWI considered this issue? Did the Bill outline sufficient criminal steps to address it?

Minister De Lille replied that the Bill provided clear procedures and processes governing expropriation, and checks and balances were built into that process. However, if any official abused his or her power, that had to be dealt with in terms of the Public Service Act – and it certainly would be. In any case, the final arbiter was the courts. People could always turn to the courts. South Africa was “a very litigious society,” and people used the core courts often. However, as long as the judiciary was credible and independent, she put her faith in the judiciary to help South Africa “heal” and seek justice.

The Chairperson rephrased Adv Swart’s question. Should the Expropriation Bill criminalise, or attach criminal sanctions to, the abuse of power by officials? Was it adequate to leave those matters to the Public Service Act? He joked that Adv Swart was a lawyer, but that Members accepted that the Minister was not.

Minister De Lille said that she would not attempt to act as a “pseudo-lawyer.”  

Adv Swart appreciated Minister De Lille’s remark that state-owned land was spread among different spheres of government, and that such considerations were salient for land redistribution. Had DPWI also considered land owned by state-owned entities (SOEs)? For example, Transnet had received a large amount of land at a very low price.

Minister De Lille replied that DPWI was looking at SOEs and their land. She had raised the issue just a few weeks ago. South Africa had not done well in dealing with “spatial justice.” Cities and towns had to be integrated, and well-located land had to be made available to bring people closer to work opportunities. In South Africa, the spatial pattern had taken people – especially poor and vulnerable people – further and further away from central business districts. As a result, poor people spent almost 40% of their incomes on transport for commuting.

Minister De Lille said that she was engaging with Mr Pravin Gordhan, Minister of Public Enterprises, to look at well-located land owned by SOEs. SOEs, including Eskom, the Passenger Rail Agency of South Africa (PRASA), and the Post Office, had well-located land. Transnet had a large portfolio that included well-located land. SOEs had to be drawn into the broader land reform programme. They could not just keep unused land on their balance sheets. The Deputy President was going to convene a meeting with all SOEs, and DPWI had already asked SOEs to provide information about what land parcels they owned and where.

In closing, Minister De Lille said that government was committed to land redistribution, land restitution, and land tenure, in line with the recommendations of the Presidential Advisory Panel. Expropriation was only one mechanism for land acquisition. It was a part of a package of land reform initiatives that government was currently pursuing. 

The Chairperson said that he would refer questions received by the Committee to DPWI if necessary. He did not want to see government taken to court unnecessarily over issues that could easily be resolved.

Briefing by DMRE
Mr Gwede Mantashe, Minister of Mineral Resources and Energy, presented on behalf of DMRE. He said that he had been surprised by the Committee’s invitation, since DMRE did not deal with land but with minerals under the soil’s surface. It was out of DMRE’s “jurisdiction.” Nevertheless, DMRE fully supported the Constitution Eighteenth Amendment Bill. It also supported the Bill’s main objective: accelerating land reform and related reform.

Minister Mantashe said that the Bill provided that property rights could be limited such that land could be expropriated without compensation for land reform purposes. This limitation had to be regarded as a legitimate option for land reform. The Bill would also bring much needed legal certainty, in that it explicitly stated what section 25 of the Constitution already implicitly provided for. Section 25 in its current form already permitted the enactment and implementation of restorative legislation without compensation obligations – but that remained implicit. The Constitution obligated government to redress past injustices through land-related reforms, but it also protected existing property rights. This was often perceived as “anomalous.” The Amendment Bill would resolve that inconsistency.

Minister Mantashe cited the Mineral and Petroleum Resources Development Act (MPRDA) of 2002 as an example of “restorative legislation.” The Act provided for the vesting of the nation’s mineral resources under state custodianship without the obligation to pay compensation, and thus had furthered land and related reform. Confirming the legitimacy of this regime, in Agri SA, the Constitutional Court had cautioned against over-emphasising private property rights at the expense of the state’s social responsibilities. The Bill explicitly provided that the right to property was not absolute.

Discussion
The Chairperson said that sometimes non-lawyers were able to explain the law better than lawyers. When the Committee said that the draft Constitution Eighteenth Amendment Bill made explicit what was implicit, that was still “legal jargon.” It was helpful to frame it as a matter of legal certainty.

The Chairperson raised a concern about mining licenses. He said that the state sometimes gave mining companies licenses to mine in areas where communities practiced their religion at sacred sites. Those communities worried that the mining companies did not really respect their religious rights, as guaranteed by the Constitution. Did DMRE do anything, for example in the wording of the licenses, to ensure that indigenous people’s religious rights were respected? How did DMRE balance between economic development and those religious rights?

Minister Mantashe replied that consultation with communities was a part of the process carried out before a mining license was issued. During that consultation, communities in the relevant area had a say on the question of licensing, and their consent was sought, as required by a high court judgment. There were many reasons, including economic development, that DMRE accepted applications for licenses.

Minister Mantashe said that DMRE usually did not encounter problems during the application process – normally the problems arose once the license had been granted. The parties had selfish motives and there were “contradictions.” Moreover, communities were often represented by a small group of people who were driven by “greed,” instead of by the rights and interests of the community. 

Mr N Masipa (DA) said that Minister Mantashe’s presentation had been very clear about expropriation with nil compensation. He asked about the determination of compensation, and particularly the decision to expropriate with nil compensation. Should it be a ministerial function or a court function?

Minister Mantashe replied that it should be both. The relevant minister would determine that a given piece of land should be expropriated for nil compensation. However, courts would be the final arbiter in cases of disagreement. The issue of compensation should not go directly to the courts, but the courts would be a part of the process. In his experience at DMRE, many people took community consultation for granted as “simple,” but it was actually quite difficult and often took a long time. Courts, however, were the final arbiter, and all parties had to accept the courts’ decisions.

Mr Shivambu referred to the case study mentioned by Minister De Lille, in which it had taken DPWI more than six years to expropriate just one piece of land in Uitenhage. The case illustrated a “worrying” factor: regardless of whether the courts or an executive authority were responsible for expropriation, expropriation attempts would be followed by litigation. Would it not be better to approach land in the same way as mineral rights? The state could be made custodian of all of South Africa’s land and could redistribute it equitably. Land could be repossessed by the state in the same manner as mineral and water had been under MPRDA and the Water Act of 1998. If the approach was to expropriate small parcels of land, piece by piece, every expropriation attempt would be met with litigation. The courts would be “swamped.” State custodianship would involve a more “dependable” process and would constitute a more sustainable approach to securing land redistribution, reform, and tenure. What was Minister Mantashe’s response to that perspective?

Minister Mantashe replied that he would not pretend to be an expert on the matter. In 2004, during the debate about the ownership of mineral rights, he had not been a minister. However, the African National Congress (ANC) had been closely involved and its position had been guided by the Freedom Charter. The case of land might be different and it was “too complex” for him to give an exact answer. Generally, he understood land as important for production, although he knew that was not its only use. When land was taken from an owner who had been using it for production and had added value, there should be “a discussion” with that owner. Moreover, when land was redistributed, it was important that its recipients were able to use it productively. Although state custodianship worked in the case of minerals, he was not sure about land, and he was not knowledgeable enough about the issue except as a farmer.

Mr Shivambu joked that it was in his capacity as a farmer that the Committee had wanted to meet with Minister Mantashe, the ANC National Chairperson.

The Chairperson said that the opinion Mr Shivambu raised, and the response Minister Mantashe gave, belonged to the “battle of ideas” that would take place later during the Committee’s deliberations.

Briefing by DoJCD
Mr Shivambu asked why Mr Ronald Lamola, Minister of Justice and Correctional Services, was not present, since the other departments had been represented by their ministers.

The Chairperson said that DoJCD delegates would explain why the Minister was not present.

Ms Kalay Pillay, Deputy Director-General: Legislative Development, DoJCD, said that Minister Lamola was in another meeting and would join shortly. Ms Pillay would present on behalf of DoJCD. The presentation would report on the functioning of the Land Claims Court, including the challenges faced and the relevant mitigating factors.

Minister Lamola joined the meeting.

Remarks by the Minister

Minister Lamola said that the Committee had invited DOJCD to provide input on the Constitution Eighteenth Amendment Bill, as well as to report on the Land Claims Court and the Land Court Bill. However, DOJCD was “constrained” in terms of what it could say about the Amendment Bill. Legislative and constitutional amendments had to go through the processes of the Cabinet, and DOJCD had to consult the Cabinet before it could provide input. DOJCD currently engaging in such consultations, so that it could provide informed input. The Land Court Bill, however, had already been approved by the Cabinet and had been submitted to the Speaker, so delegates were at liberty to speak about it.

Broadly, the Land Court Bill sought to address the fact that the Land Claims Court, initially introduced as a temporary measure, had proven to be a long-term mechanism. There were many issues relating to the Restitution of Land Rights Act of 1994 under which the Court had been established. The Bill also addressed the biggest problem facing the Court, which was that its judges were seconded from various divisions of the high court. The Bill changed that, creating permanency in the Court.

Moreover, the Bill broadened the mandate of the Court to encompass all land matters in the country. This would promote the development of land jurisprudence, and would also help DOJCD to address some of the issues that the Committee was dealing with, especially those relating to the outcomes of the Constitution Eighteenth Amendment Bill and Expropriation Bill processes. It would bring certainty in land jurisprudence to the court system. The Bill would also establish a court-annexed mediation process within an alternative dispute resolution framework. That would allow activists to participate in and make inputs about the Court. At the same time, the process would not be “over-judicialised” – it would be structured in the same way as the Commission for Conciliation, Mediation and Arbitration (CCMA), the Labour Court, and the Labour Appeals Court.

Minister Lamola handed over to Ms Pillay to brief Members on the details of the Land Claims Court and the Land Court Bill. 

Presentation by DOJCD

Ms Pillay said that, currently, the Land Claims Court adjudicated on disputes referred to it by the Commission on Restitution of Land Rights. It also had exclusive jurisdiction to deal directly with matters in terms of the Land Reform (Labour Tenants) Act of 1996 and the Extension of Security of Tenure Act of 1997. However, the Court was focused on land claims and restitution, and did not have the jurisdiction to deal with, for example, expropriation of land without compensation.

The following shortcomings had been identified, giving rise to the request for a Land Court Bill:
The Court’s lack of permanence resulted in the Court not functioning optimally;
The current legislative framework had been based on the assumption that the Court would have a limited lifespan within which to deal with restitution claims;
The processing of land claims was slow and there were backlogs;
The current legislative framework had given rise to a situation where most judges were either seconded or appointed in an acting capacity;
The Court dealt with matters relating to labour tenancy status at its seat in Randburg, meaning that the parties in such matters sometimes had to travel long distances to the Court; and
As raised by the Office of the Chief Land Claims Commissioner, reliance was placed on pre-trial conferences to enforce compliance with the rules (perhaps because the informality of the Court, as a court of equity, gave rise to relaxed compliance).

The Inter-Ministerial Committee on Agriculture and Land Reform had mandated the Department to prepare the new legislation. The broad purpose of the Land Court Bill was to enhance and promote access to land on an equitable basis, to promote land reform as a means of redressing the effects of past discrimination, and to facilitate land justice. For these purposes, the Bill aimed to:
Establish a Land Court with jurisdiction to grant any order, any other appropriate relief or impose any sanction, as provided for in the Bill or any other law that confers jurisdiction on the Court;
Establish a Land Court of Appeal to hear and determine appeals emanating from the judgements and orders of the Court; and
Provide for court-ordered mediation or arbitration.

Ms Pillay detailed each of these provisions (see slides). In brief, the Bill established:
The Land Court as a high court, with all such powers that a division of the high court had in civil proceedings, and with exclusive jurisdiction over all disputes that arose from land reform initiatives aimed at giving effect to section 25 of the Constitution, including disputes relating to land expropriation in the public interest;
The Land Court of Appeal as a superior court, court of record, and the final court of appeal, except for the Constitutional Court, in respect of all judgements and orders made by the Court in respect of matters within its exclusive jurisdiction; and
The Court’s right to make an order directing the parties to attempt to settle any issue through mediation, with the proceedings to be stayed pending that process.

Minister Lamola added that the Bill was designed so that the Land Court would be able to sit anywhere in the country. Most land claimants and parties affected by land issues – including those residing in rural areas or on farms – were not able to travel to Randburg where the Land Claims Court currently sat. The Bill aimed to minimise such challenges.

Minister Lamola said that the Judicial Service Commission (JSC) was sitting from Monday. DoJCD had requested, through a presidential minute, that the President allocate the first two permanent judges. Those judges would be designated to preside over the Land Claims Court and over the new Land Court when it became operational. The appointments would be the start of a process that would lay the foundations for the transitional period, which would begin when the Bill was processed and approved. 

Minister Lamola said that the Bill would be a “game-changer” in creating a specialised court for land-related disputes and related matters. The Court would therefore be akin to the Tax Court, the Competition Appeals Court, and the Labour Court, but the alternative dispute resolution mechanism would provide additional “flexibility.” Thus the Land Court might be able to help adjudicate matters with “ease and speed,” and to bring land justice to South Africans.

Discussion
The Chairperson thanked Minister Lamola for his responsiveness. For the last ten years, Parliament had been complaining about the temporary judges in the Land Claims Court and suggesting that the situation caused the Court’s backlogs. It was good that the matter was being addressed with “extreme urgency.”

The Chairperson said that, although DoJCD was awaiting Cabinet approval for its input on the draft Constitution Eighteenth Amendment Bill, the Committee could not grant DoJCD an extension. The Committee could not hold any further hearings, because the report had to be finalised next week and the process had to continue. Instead, the Committee could accommodate DoJCD by allowing it to submit its comments as soon as they were ready. Those comments would be relevant to the Committee’s deliberations on the Bill.

Dr M Ndlozi (EFF) asked how it was possible that Minister Lamola was still waiting for Cabinet approval, when the other ministers who presented had provided input on the Amendment Bill. It was “inconsistent.”

The Chairperson said that, as Minister Lamola explained, the process required that departments consult with Cabinet, and DoJCD had not yet done so.

Mr Shivambu said that the Chairperson should allow Minister Lamola to explain for himself. It was a basic question that he should respond to, unless he was a “coward.” 

Minister Lamola replied that the Land Courts Bill had gone through the Cabinet process, so DoJCD was at liberty to speak about it. Similarly, the other ministers’ presentations concerned legislation, including the Expropriation Bill, that had gone through the Cabinet process. The process for a constitutional amendment was similar to that for a bill, especially since the process concerning amendments to section 25 of the Constitution had always been run through Parliament, not through the executive. Thus he needed input from his colleagues in the Cabinet, and he was seeking such input. He agreed with the Chairperson that DoJCD could make a written submission on the Amendment Bill.

The Chairperson said that, in his understanding, there was a panel of lawyers who acted on behalf of communities that had lodged claims for land restitution since 1998. However, there were other lawyers who were not on that panel but who had similarly been acting on behalf of such communities. The communities were not able to pay them, though they were still working. They were told that the communities should instead work with the lawyers on the panel – but the outstanding bills that had accumulated would remain. How did this system work? It was a “great unfairness” to lawyers who had done such work for more than twenty years that they would not be paid just because they had not been appointed to the relevant panel. 

Minister Lamola replied that he was not sure how the system worked. Minister Didiza of DALRRD might be better placed to respond. There was a land rights management facility within DALRRD. DoJCD was currently in discussion with DALRRD regarding the transfer of that facility’s processes to Legal Aid South Africa, with effect from 1 April. Legal Aid was preparing to appoint and establish a land rights division, which would work for land justice and represent people across the country in land matters. DoJCD had thought that Legal Aid was a “more suitable” organisation for the relevant functions, since it had a presence across the country. Following the transfer, there would be a transitional period, and Legal Aid might use the panel and other mechanisms that had already been established in DALRRD’s land rights management facility. DALRRD might have a clearer understanding of the practicalities, because they had been running that facility. The cases the Chairperson cited might relate to the panel on DALRRD’s land rights management facility, or they might relate to assistance that Legal Aid had provided in the past through its public interest division.

The Chairperson said that he would refer the aggrieved parties to Minister Didiza.

Adv Swart said that he appreciated the Chairperson’s question about the legal panel and Legal Aid. In the past, there had been “great concerns” about that issue, and he was pleased that there was progress. The relevant funds should go to Legal Aid.

The Chairperson agreed that the Minister had addressed the issue “very well.” MPs had spent five years calling on DoJCD to make sure that Legal Aid was properly involved. They were grateful that Minister Lamola was attending to the issue.

The Chairperson said that some Land Claims Commissions tended to impose communal property Associations (CPAs) on communities that wanted a trust. This was contrary to the law, which gave the communities the option to choose a trust. In some cases the Commissions allowed a community to use a trust, and in other cases they refused. There was “no consistency.” Could Minister Lamola explain?

Minister Lamola replied that the Land Claims Commissioners were expected to implement the law as envisaged by the relevant legislation. The issue cut across the Land Claims Court, DALRRD, and DOJCD – the trusts were administered by the Master of the High Court. He was aware that DALRRD had raised serious concerns about the trusts, especially regarding accountability and “inconsistent” selection processes for trustees and beneficiaries. So there were also challenges with establishing trusts. DALRRD might also have something to add on this issue.

Adv Swart said that the Land Court Bill looked like “a step in the right direction.” However, what relationship was envisaged between the Land Court of Appeal and the Supreme Court of Appeal? Since the Bill would be dealt with in the Portfolio Committee on Justice and Correctional Services, he only needed a brief indication.

Minister Lamola replied that the relationship the Supreme Court of Appeal had to the Land Court of Appeal would be akin to the relationship it currently had to the Labour Appeals Court and the Competition Appeals Court. The Land Court of Appeal would be “almost equivalent” to the Supreme Court. Its decision would be final unless a constitutional matter arose, in which case it would go to the Constitutional Court. South African courts had debated related issues of jurisdiction, and DoJCD had sought legal opinions regarding the exclusive jurisdiction of the Land Court. He acknowledged that the framework could be contested. However, from the perspective of drafting, DoJCD had tried to resolve those kinds of issues.

Mr P Moroatshehla (ANC) said that during the public hearings, there had been much discussion of how expropriation-related disputes should be handled. Disputes could be addressed at the judiciary level, through the courts, or at the executive level. From the Minister’s perspective, would the judiciary or the executive be able to assist more quickly, in order to urgently expedite matters?

The Chairperson added that for matters to go to the Minister, they had to go through the Land Claims Commissions. People complained that the Land Claims Commissions were a “barrier” to accessing the Minister.

Minister Lamola reiterated that DoJCD had to consult with the Cabinet before providing input on issues that directly related to the draft Constitution Eighteenth Amendment Bill. However, he said that there were two relevant issues that should be separated – on the one hand, the decision to expropriate, and on the other hand, the results of that decision, including any objections or disputes. The decision to expropriate would have to be taken by the executive. The executive authority of the expropriating department or body would decide. Then, if a dispute arose, the Land Court process would kick in, involving mediation and other related mechanisms.

The Chairperson said that, to the best of his knowledge, the Restitution of Land Rights Act had been passed before the new Constitution was enacted. Were there any intentions to amend the Act to align it with the Constitution?

Minister Lamola replied that the Land Claims Court had been established under the Restitution Act, so the Land Court Bill would amend the aspects of the Act which dealt with the Land Claims Court. Other aspects of the Restitution Act, and the decision to amend it, were under the purview of DALRRD. As he mentioned, DoJCD and DALRRD were working “very well” together on the transfer of DALRRD’s land rights management facility to Legal Aid. He thought that the Restitution Act had been adopted after 1994, but DALRRD was better placed to respond to the question.

The Chairperson said that Members appreciated that Minister Lamola and Minister Didiza worked together, so nothing would “fall through the cracks.”

Mr Moroatshehla asked about the mediation process provided for by the Land Court Bill. Who specifically was “fit and proper” to sit as a mediator in land disputes? Could mediators be pastors, lawyers, or even doctors?

Minister Lamola replied that, in developing the Bill, DoJCD had consulted with CCMA, which had a similar arrangement to the one that DoJCD was trying to create. CCMA commissioners had a variety of skills. Some were labour relations practitioners, but others did not have legal training in the field – for example, some came through the ranks of the trade unions. All had skills, expertise, and experience. Some had also been trained in mediation. At the start of the process, DoJCD had considered locating the mediation mechanism entirely under the auspices of CCMA, as a CCMA chamber, since CCMA already had mediation expertise. However, CCMA had had concerns, particularly about its budget. Instead, the Land Court mediation mechanism would start separately from CCMA, but the bodies would “share experiences.” DoJCD would learn from the structures and experiences of CCMA.

Minister Lamola said that one of the biggest lessons from the CCMA was that its commissioners who dealt with mediation and arbitration were trained mediators – they were qualified to mediate any dispute, not just labour-related disputes. The inclusion of the mediation mechanism in the Bill would allow DOJCD to appoint trained and qualified mediators, who were qualified to mediate any dispute but who had a special emphasis on or specialised in land matters. DoJCD intended to foster a “specialty” in land matters at all levels up to the Constitutional Court, through the mediation and arbitration, court, and appeals court levels.

The Chairperson congratulated Minister Lamola on doing, and doing well, what the government had failed to do over the last ten years.

Closing remarks by the Chairperson

The Chairperson said that the Committee had now completed its public hearings, and the final and comprehensive report had to be produced. He suggested to the parliamentary administration that the report should be available by Tuesday 13 April at the latest. The report had to be sent to all political parties. Members from all parties should consult their principals and seek mandates on the substantive issues arising from the report. On Friday 16 April, the Committee would convene to consider and adopt the report. It would also adopt the “final roadmap” which would take the Committee to the process’s conclusion. Thereafter the Committee would turn its focus to discussing the draft Constitution Eighteenth Amendment Bill itself.

The Chairperson thanked Members. He said that all political parties had participated fully in the process so far. The process was in Members’ “capable hands,” and they had discharged their duties very well so far. He was confident that the Committee would meet its 21 May deadline. He thanked Members for their cooperation and thanked the “very competent” government officials, who had never let the Committee down during the process.

The meeting was adjourned.

 

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