Draft Constitution Eighteenth Amendment Bill: deliberations

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Meeting Summary

Video: Ad Hoc Committee on Legislation Amending Section 25 of the Constitution, 11 June 2021

Constitution
Section 25 Review Process
Hansard: Expropriation of Land without Compensation
Motion: Expropriation of Land without Compensation
Draft Bill, with party proposals

The Ad Hoc Committee Amending Section 25 of the Constitution met on a virtual platform to continue deliberations on the Draft Constitution Eighteenth Amendment Bill. Load shedding presented challenges at the start of the meeting and by the time that the deliberations got underway, one of the key political parties (the EFF) had left the platform and therefore did not engage in the deliberations.

The Chairperson informed the Committee that, although the term of the Committee’s mandate had expired on 31 May 2021, the Speaker of the National Assembly had extended the mandate to 30 August 2021. The mandate remained unchanged. However, he stated that the Committee would continue with its revised approach of looking at section 25 as a whole, and not limit consideration to only the sections indicated in the proposed Amendment Bill. The Committee had been mandated to amend section 25 to make explicit what was implicit in section 25 read as a whole, or holistically. Section 25 stated that law reform in SA was anchored on three objectives: land redistribution; land restitution and security of tenure. The appropriation of land without compensation should enable government to achieve those policy objectives. The following points needed attention and resolution: deprivation versus expropriation; the role of the court; state custodianship versus other forms of land tenure; whether or not redistribution replaced restitution; whether or not the 1913 cut-off date should be removed.

The parties present discussed the issues on the table. It was agreed that there seemed to be a possible convergence of views between the ANC and the FF+ on the matter of custodianship of land and that the two parties would engage in bilateral deliberations on that matter. The DA was called on to present its views on land reform. Members from the ANC engaged in a discussion on the role of the courts. The DA queried why the ANC had removed the phrase “the courts may” from the proviso to section 252(b) “provided that in accordance with subsection 3(a), a court may, where land and the improvements thereon that had been expropriated for the purpose of land reform, may determine that the amount of compensation is null.” Following discussion, it was agreed that the parties might not hold different views and that a bilateral discussion would be held between the two parties to determine whether the apparent differences were real or whether it was just a matter of formulation of the sub-clause.

The matter of “no compensation” and “compensation is null” was put on the table but the DA asked who would pay the mortgage on property that was confiscated, especially where there were improvements, and who would take the risk. The Committee had not heard an answer to the questions and  the knock-on effect in the financial sector would be enormous. An ANC Member suggested that the courts would determine such disputes. Members discussed the court judgement in the case against the Ingonyama Trust which had required people living on Trust land to enter into leasehold agreements. The judgement had implications for the secure tenure considerations. The question of redistribution replacing restitution was raised but not resolved, although there was a call for the Department of Agriculture, Land Reform and Rural Development and the courts to resolve matters in order to allow new claims.

One Member stated that while her party was ready to negotiate, if a political party had a particular position that it had no intention of changing, she did not believe that it would be fair for that political party to string another along. Another Member pleaded for “give and take” as a “winner take all” position would be detrimental to unity in the country.

The Committee agreed that parties had to use the time available during its extended term of office to get closer to each other. The leader of the bilateral teams was requested to get the EFF to participate in the process before the next meeting the following week.

Meeting report

The start of the meeting was delayed owing to the difficulties experienced by Chairperson in trying to connect to the virtual platform.

Mr N Shivambu (EFF) suggested postponing the meeting.

Dr C Mulder (FF+) agreed.

Ms R Lesoma (ANC) announced that the Chairperson had requested her to chair the meeting.

Adv G Breytenbach (DA) informed her that an Acting Chairperson had to be elected by the Members of the Committee. Chairperson Motshekga could not appoint an Acting Chairperson.

The Secretary agreed that in terms of parliamentary rule 159, the meeting had to elect an Acting Chairperson.

Mr S Gumede (ANC) nominated Ms Lesoma as Chairperson.

Ms K Mahlatsi (ANC) seconded the nomination.

Ms R Lesoma declared the meeting open at 10:05.

Prof A Lotriet (DA) suggested that the Acting Chairperson should ensure that the meeting was quorate in terms of voting members.

The Secretary stated that the meeting quorated.

Opening Remarks by the Acting Chairperson
The Acting Chairperson welcomed everyone. She suggested that the minute commence by looking at the minutes awaiting approval as that would give the Chairperson additional time to connect to the platform.

Minutes
The minutes of 7 May,14 May, 21 May, 28 May and 31 May 2021 were adopted without amendments or objections.

The Chairperson joined the meeting having connected despite the load shedding in his location. He thanked Ms Lesoma for chairing the meeting in his absence. There being no matters arising from the minutes, he suggested that the deliberations on the Bill should proceed.

Opening remarks by the Chairperson
The Chairperson stated that since the commencement of deliberations on the Bill, it had been emerged that section 25 had to be read as a whole because all the sub-sections were inter-connected and inter-related. Such an interpretation was in keeping with the rule of interpretation of state legislation that stated that a document had to be read as a whole. Section 25 stated that law reform in SA was anchored on three objectives: land redistribution; land restitution and security of tenure. The appropriation of land without compensation should enable government to achieve those policy objectives. The Committee had been mandated to amend section 25 to make explicit what was implicit in section 25, read as a whole, or holistically. In the Committee’s engagement, several issues called for attention and resolution: deprivation versus expropriation; the role of the court; state custodianship versus other forms of land tenure; whether or not redistribution replaced restitution; whether or not the 1913 cut-off date should be removed.

The Committee had agreed to allow all political parties to embark on bilateral consultations to seek consensus on the matter. On 31 May 2021, the EFF had proposed that an extension be requested from the Speaker, who had, subsequently, granted an extension to 31 August 2021. That meant that there were three months to resolve the matter or the country would be thrown into crisis which was too ghastly to contemplate. It would throw the country into a crisis far greater than the Zimbabwean crisis. Owing to the Covid-19 crisis, the economy had dipped and the number of unemployed had risen. SA citizens, black and white, were placing their hopes on the Committee. The number of land invasions was increasing at an alarming rate and load shedding was exasperating the economic challenges facing the country, which meant that the Economic Recovery Plan that had been accepted by Parliament would be negatively affected.

The Chairperson repeated that South Africans, black and white, were pinning their hopes on the success of that Committee for SA to find its way out of the deepening challenges. The Committee had an historic mission to sink or redeem SA and her people.

He called on all Members to put the best interest of SA and her people first. South Africans were one people and they needed one another to find South African solutions for South African problems. From the current meeting onwards, the Committee would focus on the problems identified and the Committee would have to meet twice a week to ensure that on or before the end of June 2021, it would have reached consensus. The Members should not be distracted by public utterances of political parties outside that forum. They were perfectly entitled to express their opinions but the Committee’s task was to find one another as an organ of Parliament.

He declared that the Committee would commence its deliberations on the Amended Bill. He appealed to Members to deliberate on the content of the Bill and it should be a battle of ideas. He was not in a hurry to reach consensus that day; he wanted to hear the positions of the parties and then enter into the battle of ideas. No one should feel forced to conclude on anything but he wanted Members to hear each other so that they could persuade each other. Former President Kgalema Motlanthe had said that what mattered was not the noise but the superior arguments. Members should come with superior arguments to persuade one another in a friendly manner.

Deliberations on Draft Constitution Eighteenth Amendment Bill
The Chairperson opened the floor for engagement. Members were free to address any issue on the table.

Silence reigned and the Chairperson called on Members to speak.

Mr P Moroatshehla (ANC) said that the Chairperson’s input and opening remarks had been very clear. The stalemate and silence was being caused by every party on the platform considering the extension. He assumed that the extension granted by the Speaker had been to give parties time to negotiate. He said Members might be attempting to find consensus in silence.

Ms Lesoma suggested that the Committee could discuss how it saw the process moving forward.

Prof A Lotriet (DA) said that she had not been able to hear the part of the Chairperson’s input regarding the mandate of the Committee and what the focus would be.

Mr Gumede proposed that the Committee should ensure that each and every Member was present and happy with the process. He suggested that the Chairperson call on each party to get its input. The FF+ had indicated that it had considered coming closer but he was aware that there was a continuous engagement, particularly with the EFF and those engagements should continue. Mr Moroatshehla was correct in saying that the purpose of the extension was so that parties could get closer to one another.

He would permit the Chairperson to respond to the DA’s request for clarity and then the Chairperson should go ahead and ask each party for its position.

Dr Mulder said there had been mistakes in the Chairperson’s input. The cut-off date was 30 August 2021, not 31 August, and that was less than 3 months. The proposal by Mr Shivambu, when the mandate had expired on 31 May 2021, had been based on the fact that more time was needed for parties to have bilaterals. As it was exactly the same mandate, he thought that was what should happen – Members should engage in bilaterals and then they could come back to the Committee.

The Chairperson responded to the Members who had spoken. He began with Prof Lotriet who wanted a reminder of everything that he had said. He would not repeat everything, except that land reform in the country rested on three legs: land redistribution, land restitution and security of tenure. In the Committee’s engagements, it had emerged that there were a number of areas that called for attention. The areas were:
deprivation versus expropriation; the role of the courts; state custodianship versus other forms of land tenure, i.e. multiple land tenure system; whether redistribution should replace restitution; whether or not the 1913 cut-off date should be amended to remove the time limit.

He said that Members had asked about the way forward. Mr Gumede had given a way forward that he agreed with. Bilaterals could not replace the ad hoc Committee meeting so each time that the Committee met, the Committee should hear from the parties as to what progress had been made in the bilaterals and whether they would be continuing. The meeting could not be collapsed without anyone saying anything. He agreed that the way forward suggested by Mr Gumede should be followed. He requested one of the parties to begin the process.

Mr C Xaba (ANC) stated that Dr Mulder had asked him a question which he had answered and he thought that there would be a follow-up by Dr Mulder on his response. He asked if Dr Mulder could generate a discussion on how far or how close they could get on some of the issues. It was wrong for the Committee to assume that no progress had been made and that everything should be sent to bi-laterals. Some progress had been made. He thought that the issues on which there was disagreement had to be isolated and those should be the matters for bi-laterals and for a report-back at the Committee meetings. The process was not right at the beginning; it was almost at the end. Certain matters were done and should be set aside. Right now he did not know exactly where the process was. Such an approach would identify areas of disagreement and areas of convergence.

The Chairperson stated that Mr Xaba had correctly amplified what Mr Gumede had said. Dr Mulder could respond to Mr Xaba’s statement at the previous meeting.

Nkosi Z Mandela (ANC) said that he wished to pick up on the timeline issue. It was clearly evident from the public hearings that people were of the opinion that the timeframe should be removed as the Khoi had suffered aggressive and brutal land dispossession since 1652. He proposed that 1913 be scrapped and 1652 set as the timeline.

Ms Lesoma noted that in the minutes of 21 May 2021, the point raised by Inkosi Mandela, but the extension given by the Speaker had not extended the scope of the mandate. The scope still limited the Committee to the Bill that had been published.

The Chairperson said that it had been agreed to address section 25 as a whole and not restrict the discussions to the clauses in the draft Bill. The restrictions in the Bill were based on a compromise and to work within that compromise would be to compromise the matter further. The matter had to be debated because the participatory nature of SA’s democracy forced the Committee to pay attention to what the people had said (in the public hearings). He believed issues should change as demanded by public engagement. If a matter could not be resolved immediately, that the matter be taken to bilaterals because, if that matter of the timeline was not attended to, the negotiations might collapse.

Dr Mulder responded to Mr Xaba’s question regarding the discussion, at the previous meeting, about the term “custodianship”. But, firstly, he asked that Members take note that the resolution of the House, which had been that the Committee should address the same mandate that it had been given way back when the Committee had been set up. That took the Committee back to the legal opinion and, although there might have been differences as regards the legal opinion, he knew that the Chairperson had ruled that section 25 should be read as a whole. However, it was the Chairperson’s interpretation, and not the legal opinion, that the whole of section 25 should be discussed as a single unit. The Chairperson had made use of a rule of interpretation.  Dr Mulder believed that, if that was the case, the discussion should include the entire Constitution. Therefore, he agreed with Ms Lesoma that section 25(7) was not part of the mandate of the Committee and it should not be discussing 25(7). If that was a stumbling block, then it was a big stumbling block because his interpretation of the mandate did not include the whole of section 25.

Regarding Mr Xaba’s question, Dr Mulder had asked how the ANC interpreted “custodianship”. Mr Xaba had explained that custodianship by the state was for the period of time when property was expropriated until it was allocated in terms of the ANC’s view of property ownership. He understood the ANC’s view of property ownership to be a mixed provision, making space for private ownership, state ownership as well as communal land. For that short period of time, the land was under the custodianship of the state and then dispersed in terms of the mixed ownership scheme. That was how he understood it. That it was a temporary custodianship. However, Dr Mulder believed that interpretation of ownership had to be clearly defined in the Constitution.

He added that the FF+ believed that custodianship was wrong and the party was against it.

The Chairperson noted that, although Dr Mulder did not agree with custodianship, he had explained it very well. He asked if that assisted Mr Xaba.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

Mr Xaba said that he had made an example of land that was already in custodianship of the state, including land in the rural areas that was administered by Amakhosi, and the five million hectares acquired by LRAD (Land Redistribution for Agricultural Development), now called Proactive Land Acquisition Strategy (PLAS). That land had been leased to various individuals by the state. That system had, existed since 1800 and then confirmed in 1913, 1936 and throughout the subsequent years. It was the land that had been under the Development Trust and that land was still in the custodianship of the state. Dr Mulder was aware that system of custodianship had been inherited and it was in the mix of ownership as understood by the ANC.  He hoped Dr Mulder agreed.

The Chairperson said that Mr Xaba’s question and Dr Mulder’s answer had taken them forward. He asked Dr Mulder whether he did not agree that expropriated land had to go somewhere – there had to be a recipient of expropriated land.

Dr Mulder agreed that custodianship in that sense was not new. He asked for Mr Xaba’s position in writing so that he could look at that. He stated that expropriation was not a new concept and it had been done under section 25 in the past, but the state had expropriated land for public purposes and it had not been without compensation. He needed to know exactly how that system had worked in the past, administratively. There had always been a structure to manage that process.

Dr Mulder stated that the only reason custodianship was on the table was because another party had proposed custodianship, but that party had a completely different understanding of custodianship. He suggested that the Committee needed to know how expropriation had worked in the past and what it had been called. One needed to understand the legal structure and to compare that to Mr Xaba’s presentation of the ANC position.

Dr Mulder asked about communal land. He understood that communal land was under the custodianship of the state but he did not know if that was the understanding of the traditional leaders. He needed to be educated on that matter.

The Chairperson suggested that Mr Xaba should engage with Dr Mulder as there was a possibility of converging. The EFF would have to be engaged separately as the EFF had a different understanding of custodianship. There was room for a bilateral between the FF+ and the ANC on that matter. It was clear what information Dr Mulder required.

Nkosi Mandela stated that the Committee had to continually consider the public hearings that had been held and, in that regard, traditional leaders across the landscape of the country had said that they supported expropriation of land but that land belonging to the traditional leaders had to be returned to traditional leaders. He wanted to flag that because the Committee should be guided by what had emanated from the public hearings.

The Chairperson said that point was covered by the understanding of multiple forms of ownership.

Mr Xaba thanked Dr Mulder for his response but he asked for the views of the DA because its two-cent contribution would help in lubricating the process. The Committee’s position had to unite the country. The ANC did not want something that would set the country apart. The ANC, as the leader of society, had to ensure that the process did not leave some people behind. All views should be accommodated. That was in the spirit of Madiba. The Committee was no longer speaking generally but discussing specific issues and determining how far away parties were on issues.

The Chairperson agreed that ANC was the leader in society but it had earned that position through superior argument and not by imposing its views on people. One could see how Mr Xaba was engaging with Dr Mulder. The parties had to find one another. He said that SA was one people, one nation.

Mr Moroatshehla agreed that all parties had to contribute. The approach that day was encouraging. It was his plea that all parties participate in the process.  When it was decided by the Fifth Parliament to amend the Constitution, men and women in that Parliament had seen the need to amend the Constitution. It was not right for anyone now to say that there was no need to amend the Constitution. To say that would be an insult to Parliament and the people. The mandate was very clear that the Committee had to amend the Constitution to allow expropriation without compensation and so everyone should give them input, including the DA. He supported those who were engaging, including Mr Xaba and Dr Mulder.

The Chairperson agreed that a harmonious resolution was required but all were enjoined by the Constitution which required everyone to address the injustices of the past and no one in the meeting could say that there were no injustices in the past. Everyone had to accept that there were injustices of the past.

Prof Lotriet said that she had no problem in addressing the Committee and she was more than willing to give “the DA’s two cents’ worth”, as was stated. The DA had made it clear from the start that it agreed that land reform was necessary because of the country’s history and it fully supported that as it had to happen, but the DA was mindful of the fact that nothing much had happened in the past 27 years. Despite the state having millions and millions of hectares of land in custodianship, nothing had happened in that regard. The DA was in favour of title deeds showing the ownership of property.

Prof Lotriet stated that the Committee had been established in terms of a very specific mandate given to it. Discussions at the moment were interesting and important, but fell outside of the mandate given by the National Assembly. The instruction to the Committee had been to look at the Bill and so its mandate was restricted to that Bill. Perhaps the current discussion should take place on another platform. She had no problem with people expressing their views but the implied innuendo that if one did not agree, then one was not acting in the interest of SA was not fair, nor constitutional, nor democratic.

She added that, from the outset, the DA had said that it was not necessary to amend section 25. The land reform and restitution that needed to take place could happen within the provisions of section 25. What had to happen was that the government of the day had to get its act together, work with people in the different sectors because it was not only about agricultural land, but also urban land. The Government of the day had to start performing, and to root out the corruption and then the Members would not have to sit there, trying to use the Constitution as a scapegoat for a government that had not performed. That was the DA’s position.

The Chairperson said that the alleged failure of the state to perform over the past 27 years had been raised many times, but that did not detract from the position that Parliament had taken that the Constitution had to be amended. The alleged failure or otherwise of the government would be addressed in another forum. In terms of the position of the DA on the mandate, Members of that Committee were not the right people to decide whether or not the Committee had exceeded the mandate.  No one should judge whether the Committee had exceeded the mandate; only Parliament could determine that. The Committee would address section 25 as a whole and everyone in the Committee had to be loyal to the Committee’s decision.

He did not believe that there had been an innuendo that if one did not agree, one was disloyal. He had said that SA was one country and all the Members belonged to one country, SA and that country faced a great challenge of land hunger so all Members of the Committee should act in the best interests of the people but that did not suggest that any of the parties there were not committed to act in the best interests of SA.

The Chairperson put it on record that he had never said that or meant that, neither had he heard that opinion from anyone present. The fact that Prof Lotriet differed did not make her an enemy. She had a different opinion and she was entitled to that opinion. He thanked Prof Lotriet for re-stating the DA’s position so that everyone knew exactly where the other stood. The Members needed to know where they were converging and where there were differences.

He commended the Members of the Committee. Starting with Mr Gumede’s input, which had been amplified by Mr Xaba and the engagement on the question put to Dr Mulder, and his response, had given them the opportunity to move forward.

The Chairperson asked if the EFF was present, but Mr Shivambu had left the platform.

He said that Dr Mulder and Mr Xaba had opened an avenue for engagement on the question of the multiple tenure system. The Committee needed to hear from the EFF whether they held the same position but they had left the platform. He had requested Ms Lesoma to lead the bilaterals, so he asked her to find out the most recent position of the EFF, so that the Committee could hear from them, on the record.

The Chairperson believed that in terms of the courts, all parties agreed, unless someone wished to say otherwise. SA had a separation of powers, and in terms of that doctrine, the courts could only come in to adjudicate when there was a dispute and the courts could not replace the role of the executive. The courts could not be involved in decision-making nor could the courts be excluded from resolving disputes. He thought, rightly or wrongly, that the matter was concluded.

Prof Lotriet asked to hear the ANC’s position on the courts and she would also like to hear the EFF position. Having heard the ANC at the last meeting, she believed that the ANC’s position on the courts had changed, although the role of the executive had not been discussed and determined. As section 25 stood, the DA did not believe that the role of the court needed to be changed. The ANC had proposed an amendment, i.e. that the reference to the court be removed, so the position was not yet clear and more discussion was needed on the matter of the courts.

Mr Xaba said he did not know where Prof Lotriet saw the ANC ousting the role of the court. That could not be done as it was inscribed in the Constitution. Sect 25 2(b) of the Constitution read: “ subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.” The ANC was not removing the word “court”. It was there.

Prof Lotriet referred to the proposal which was made by the ANC, which had also been mentioned in the bilaterals that the DA had had with the ANC. Continuing from the word “court” in section 25(2)(b), the ANC had added: “provided that in accordance with subsection 3(a), a court may, where land and the improvements thereon that had been expropriated for the purpose of land reform, may determine that the amount of compensation is null.” The recent proposal was that after 3(a) the words “a court may” should be deleted. That was what she wanted clarity on. Was it still the case?

Mr Xaba said that Prof Lotriet was reading the proviso in isolation of the main clause. She should read the clause as one. The court was mentioned there. It was clearly pronounced.

The Chairperson suggested to Prof Lotriet that it might be a question of formulation. He understood her to say that the Committee could not oust the role of the courts and Mr Xaba was confirming that the ANC was not seeking to oust the role of the courts. The DA and the ANC should meet to confirm the wording.

Mr Xaba said that the ANC had deleted the word “court” where there was an agreement between parties but the party had not deleted the role of the courts where there was a dispute.

The Chairperson said that the Constitution created a separation of powers and it would be fundamentally flawed for the courts to play an administrative role and the DA had to agree that the ANC was bound by the separation of powers.

Mr Gumede said he was well covered by Mr Xaba and the Chairperson. He agreed that the DA should meet with the ANC on that point to resolve the matter. That was part of the bilaterals.

Ms Lesoma said that, as the ANC, Members were ever ready for bilaterals, but, if a political party had a particular position and had no intention of changing its mind, she did not believe that it would be fair for that political party to string the ANC along. As a party standing for SA, the ANC would continue to do that work.

The Chairperson said that Mr Xaba and the DA had identified an area that they must work on. Mr Xaba had said that the formulation had to be read as a whole, so he would leave it to be correctly formulated.

Mr Moroatshehla was comfortable but the Chairperson’s advice to all parties was that, given the mandate, it was clear that parties would find one another. But his plea was that SA was unique because in 1994, when democracy was ushered in, SA had had a bloodless and negotiated settlement. In any negotiations, there had to be give and take. There could not be a “winner take all”. People negotiated because they had particular positions and so there had to be a give and take to reach a new position. Taking a position of “I live with this one and die with this one” was not helpful to the Committee or the people of SA and he wished that all parties were on the platform, including the EFF.

The Chairperson agreed that people should not be selfish in dealing with the matter. He said that all parties were negotiating and were making their position clear. It was a pity that the EFF was not in attendance, but he left Ms Lesoma to deal with that matter.

The Chairperson raised the issue of “no compensation” and “compensation is null”. He asked if the matter had been properly articulated.

Prof Lotriet said that the DA was not in favour of “no compensation” or “compensation is null”, especially in light of the extension to include expropriation of property on the land. Who would pay the mortgage on the property?  Who would take the risk? There was no answer to those questions. The knock-on effect on the financial sector would be enormous and how that would be addressed had not been determined. So the DA could not support that.

The Chairperson stated that was one area that needed further engagement.

Mr Gumede said that was where the courts came in.

The Chairperson acknowledged Mr Gumede’s sharp response.

Mr Moroatshehla supported Mr Gumede, although his response had been unorthodox as he had not requested permission to speak.

The Chairperson stated that Mr Gumede had provided leadership.

Ms A Steyn (DA) stated that, speaking of the courts and custodianship, she was holding a recent KwaZulu-Natal court judgement in her hand. The people living on Ingonyama Trust land had won a court case against the Ingonyama Trust as the Trust had asked the people living on Trust land to pay leases on their land. It was interesting because the Committee was discussing both the role of the courts and custodianship of land.

The Chairperson appreciated Ms Steyn bringing the matter to the Committee’s attention. He asked the Committee Secretary to obtain copies of the court judgement for Members of the Committee.

Mr Xaba said that Ms Steyn had misunderstood the court judgement and needed time to go through the judgement. The case was about whether the Ingonyama Trust had the authority to convert the current “authority to occupy” into a leasehold arrangement and the court was of the view that the current system of tenure could not be converted to a leasehold as that undermined the rights that people in those communities already enjoyed. They were being asked to pay money.  What would happen when the lease expired? How could the people be converted to tenants on the land of their forefathers? It was wrong to introduce leasehold in rural areas. He came from that area and was opposed to leasehold.

The Chairperson said that the Secretary should get the court judgement because it had been discussed in Parliament before and there had been no resolution. The traditional leaders were saying that the land should remain in their hands. The judgement would help so that other traditional leaders did not convert traditional land to leasehold arrangements. It was an important decision that everyone should be aware of.

He asked if anyone else wanted to speak to the question of null compensation, which Mr Gumede had resolved through unorthodox means.

Mr Xaba suggested that the Committee should set a date for the Committee to have concluded the negotiation process. The Committee needed its own ultimatum. If there had not been progress by that date, then the Committee should call it quits.

The Chairperson said that would be saddest day in the country and the Committee should not even entertain calling it quits as the country would “go into flames”. The meeting had shown that there was a real possibility of convergence by parties.

The Chairperson understood that there was a thinking that redistribution should replace restitution because restitution related to what people had owned and what had been violently or forcibly taken away from them. Redistribution would mean that land would be expropriated and given to those in need of land. That was not the same as restitution. He asked for opinions on that.

Mr Xaba was surprised that the DA was placing primacy on restitution at the expense of the other pillars of land reform. The Constitution did not give prominence to any one of the three instruments available to transform land ownership. Land redistribution was section 25(5); section 25(6) referred to upgrade of land tenure; section 25(7) was restitution. None was most important than the other. The state was enjoined by the Constitution to give effect to all three. There was a suite of legislation that dealt with land restitution and an Amendment in 2014 had dealt with claims, but then the matter had ended up in court. There was legislation relating to section 25(6) seeking to address insecure tenure. There was only policy relating to section 25(5), no legislation, but one should not be given prominence above the other. That was why the discussion focussed on all three.

Ms Steyn said that the DA supported land reform and there was place for all three forms. The DA had never said that it supported only restitution. The courts had stopped restitution because there had been chaos in the Department of Agriculture, Land Reform and Rural Development. The Committee needed to think very carefully about taking more land through changing the Constitution when it was unclear what was happening with the land that had already been taken. She was currently doing research into all the land that had been taken in each of the three processes and was tracking the processes to find out what had happened to that land.

Ms Steyn believed that it was important to discuss the processes and there was a need to discuss the three forms of land reform. There was a school of thought that restitution should not be opened up again. That was not the DA position, although the party was discussing that point. The point was that people claimed land in areas where other people had not known that they could put in a claim, so now that land had already been claimed by someone else. In one third of the cases where land had been transferred, there was infighting within the communities about who was the rightful owner. The DA did not have a position as yet but, at the moment, that was a point to be discussed. Would restitution be opened up again or would it just be land redistribution and land tenure? The DA supported all three processes; it had made no decision on restitution, but the DA was particularly concerned about land tenure, which was why she was studying the court judgement on the Ingonyama Trust land.

The Chairperson said that the challenges facing the Department should be addressed but those challenges should not affect the work of the Committee, as Mr Xaba had said. The Committee had been enjoined by the Constitution to deal with the three areas of restitution, redistribution and land tenure. The fact that there were challenges before the courts was not the concern of the Committee. He did not believe that restitution should be stopped because, by the time people came to claim land, the land would have been developed and not be available and another form of injustice would have taken place. The courts had to allow new cases to open up. But that was not the Committee’s concern. Nkosi Mandela, who was Chairperson of the relevant Portfolio Committee, should get the Department of Agriculture, Land Reform and Rural Development to move on that matter and get the court to lift the ban on new claims because the consequences of not opening claims would be worse than the problems that already existed.

Concluding remarks
The Chairperson said that he would go with Mr Xaba’s proposal regarding a date by which the Committee intended to finish its work. The parties on the platform had worked well together in the meeting. The following week the Committee would meet on both Tuesday and Friday and the EFF had to be there as it was an important player.

Ms Mahlatsi said that it was too soon to have bilaterals before Tuesday. She suggested that the next meeting be the following Friday so that there was time for bilaterals.

The Chairperson agreed. That was a superior argument. However, the Committee had to use the time available to get closer to each other. He requested Ms Lesoma, the leader of the bilateral teams, to get the EFF to participate in the process before the next Friday.

Ms Lesoma agreed.

The Chairperson thanked Members for constructive engagement and he saw a political will to resolve the SA challenge and to find a harmonious resolution in the best interest of the people of SA. He wished the parties well in the bilaterals. He asked that the parties consult with their principals, if necessary.

The meeting was adjourned.

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