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AGRICULTURE AND LAND AFFAIRS PORTFOLIO COMMITTEE
25 November 2003
SPATIAL DATA INFRASTRUCTURE BILL AND COMMUNAL LAND RIGHTS BILL: DISCUSSION
Chairperson: Spatial Data Infrastructure Bill
Portfolio Committee Amendments To The Spatial Data Infrastructure Bill (incorporating the Select Committee's amendments)
Communal Land Rights Bill (With DLA Proposed Amendments: 25.11.03)
The Committee considered Select Committee amendments to the Spatial Data Infrastructure Bill and gave the Bill unanimously support. The Committee also considered a legal opinion concerning the constitutionality of the Communal Land Rights Bill, as well as some DLA amendments to the Bill.
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Chair N H Masithela (ANC) welcomed all present to the meeting and acknowledged the start of The 16 Days of Action Against Violence Against Women campaign.
Chair Masithela drew Committee Members' attention to the recent awarding of the Female Farmer of the Year Award; the recipient of which farms land belonging to a Traditional Council. Chair Masithela remarked that there are strong examples of situations where traditional African structures work well.
He also informed Committee Members that there were two agenda items for the days meeting, including amendments to and the adoption of the Spacial Data Infrastructure Bill, and the Communal Land Rights Bill.
Spatial Data Bill Presentation, Questions and Consent
Mr Kabagambe (Department of Land Affairs) apologised for the absence of Department staff at a Committee meeting held the previous week.
Mr Kabagambe explained that the amendments made to the Spacial Data Infrastructure Bill by the National Council of Provinces (NCOP) focused on three central points: 1) accounting for broader participation in establishing of the Committee for Spatial Information; 2) including a role for other spheres of government in establishing of the Committee for Spatial Information, including provincial premiers and the President of the South African Local Government Association (SALGA); 3) grounding the Bill to fiscal realities, by limiting the powers and functions of the Committee to available resources.
Mr Kabagambe presented the attached NCOP amendments to the Spacial Data Infrastructure Bill clause-by-clause.
Chair Masithela remarked that the proposed amendment that provided for the appointment of co-opted experts or persons to subcommittees of the Committee for Spatial Information was redundant, as the Bill already provided for appointments of Committee non-members to subcommittees.
Mr Kabagambe explained that, in recognition of the technical nature of spatial data, it would be impossible to appoint all the expertise required to do the work of the Committee. Co-opted appointments would allow subcommittees to evolve to needs and be project oriented without diluting the established voting structures.
Mr Kabagambe further explained that the use of consultants is often not ideal as they are unengaged, where co-opted members are included in the minutia of the process - sharing information not providing information.
Chair Masithela requested clarity as to the difference between co-opting an expert and using an expert consultant.
Mr Kabagambe explained that co-opting expertise was more cost effective than employing a consultant.
DR C Broker (from the Department of Land Affairs) added that the Committee and subcommittees are a mix of government, public and private officials. Those to be co-opted could as easily be state officials as public officials and the National Treasury has a schedule prescribing tariffs to be paid to consultants in employ that is greater than the benefits likely paid to public servants; in cases of co-option of public officials they would receive their regular benefits not the greater consultancy value. Dr Broker added that seconded public employees included transferring their salary and benefits between state organs, meaning that co-option was the most cost effective means to gather the best information.
Dr A E Schoeman (ANC) asked why the NCOP had made the amendment to add "within available resources" to Clause 6.1(a), suggesting that organs of the state are always confined to fiscal realities by the Constitution.
Mr Kabagambe explained that reference to available resources was the NCOP's, and that Department Officials did not feel that it was an important addition.
DR Broker explained that the reference to available resources was not necessary and left its inclusion in the Committee's hands.
Mr Ngema (IFP) raised a grammatical error, and asked why only the President of SALGA had been identified for consultation.
Mr Kabagambe acknowledged the grammatical error referred to by Mr Ngema, and explained that the President of SALGA had been prescribed because the Department feels that relations between organs of the state and parastatal organizations should be formally described, and in such a way that presiding officers deal with one another.
Deputy Minister Dirk do Toit (ANC) added that the President of SALGA had legislatively been assigned functions and jurisdiction, therefore it is administrative protocol that this position be requested to release the staff expertise for which this person is administratively responsible.
Chair Masithela commented that - if the Deputy Minister's concern was intended to accommodate administrative protocol - the amendment was too prescriptive, as this practice was not included in other legislation. Chair Masithela explained the Committee should concern itself with enabling legislation.
Chair Masithela asked why the legislation prescribed the President of SALGA as opposed to SALGA, as is the case of provinces.
DR Broker explained that, by identifying who specifically is to be consulted in SALGA, Parliament avoids the necessity to consult with whomever in SALGA cares to be consulted, adding that many acts specify the President of SALGA.
Chair Masithela suggested that prescribed the "President of SALGA" undermined SALGA's ability to adjust its structure.
Dr Broker explained that a principle of law exists accommodating 'successor of title' that has been interpreted to include succeeding presiding officers of any title.
Chair Masithela called on a State Law Advisor for an opinion.
State Law Advisor explained that Dr Broker was correct.
Mr DE K Maluleke (ANC) asked whether SALGA represented all local governments and had a presence in every province.
Mr Kabagambe explained that SALGA was all-inclusive.
Dr Broker added that SALGA is also represented at the NCOP.
Chair Masithela asked members to comment on whether they should accept the NCOP's recommendations, including a role for SALGA in the appointment of the Committee for Spatial Information.
Mr S B Farrow (DP) said that he would prefer to accept the NCOP amendment to broaden the basis on which appointments would be made.
Chair Masithela solicited questions and concerns regarding the NCOP's amendments from Committee Members.
A member asked whether the provision for co-option would impact on Committee governance.
Mr Kabagambe explained that NCOP members were aware that co-opted subcommittee members would not have voting power when they constructed the amendment.
Chair Masithela remarked that the NCOP's amendments only affirmed what is in the Bill, and solicited further comments from Committee Members.
A member asked for clarity on the financial impact of co-option.
Mr Kabagambe explained that it is more cost effective to co-opt experts than pay consultants.
Dr Broker continued that co-option further facilitated cross departmental cooperation without adding further expense, explaining that it was an approach that adds value to gathering information. It would be difficult to arrive at an exact figure that this will costs because such depends on how this provision is used in practice. Dr Broker explained that it was an enabling clause that would not necessarily be used.
Chair Masithela explained that it is critical that Parliament be able to account for public funds, and said that he sensed that the Department had some expertise in mind that it wanted to see included in the Committee for Spatial Information that may not be appointed.
Dr Broker explained that the opposite was true, and that Department officials were really looking for the ability to co-opt across departments those who have specific expertise that would be useful, but would not necessarily add value to the bulk of Committee work.
Chair Masithela said that it is natural that Department officials would have expertise they would like to use, but that Parliament had to be aware of this to determine the cost associated with that information.
Mr Kabagambe explained that the object of the co-op provision is to save money, he acknowledged that there would be some costs associated with co-option, but when the alternatives were taken into account there would be a net fiscal benefit.
Mr Farrow explained that the NCOP had identified the lesser of two evils and invited members to accept the co-opt provision and move forward.
Chair Masithela asked whether Committee Members would prefer to consider the Bill clause-by-clause or to vote on the Bill in its entirety.
Dr Schoeman explained that the reference to 'available revenues' was hallow and repetitive, and suggested that the Committee "not allow the NCOP to get away with" such amendments.
Chair Masithela said that he had thought the Committee had reached consensus that it would not accept this amendment and had accepted the grammatical change suggested by Mr Ngema.
Chair Masithela called a vote on the entire Bill, with the grammatical change and excluding reference to 'available revenues'.
Committee Members unanimously adopted the Spacial Data Infrastructure Bill.
Communal Land Rights Bill, Amendments and Questions
Chair Masithela brought the Communal Land Rights Bill to the Committee's attention and explained the Committee would consider the attached legal opinion concerning whether the Bill would establish a fourth tier of government, review the Committee's amendments incorporated into the Bill, and the role of traditional councils.
Chair Masithela asked State Law Advisors to present the legal opinion it prepared concerning the creation of a fourth tier of government.
State Law Advisor presented a legal opinion that clarifies that neither the Traditional Leaders and Governance Framework Bill not the Communal Land Rights Bill would establish a fourth tier of government in South Africa.
Chair Masithela commented that the Committee was fearful that it might have created a fourth tier of government. However, in acknowledging that the legislation was Constitutionally sound the Chair advised that it was appropriate to move forward and consider the amendments that had been added to the Bill.
Dr Broker explained that he had incorporated the changes recommended previous week into the Bill and that he would present these in the Bill as they arose.
Dr Broker said that the Department could not arrive at a solution where there were disputed facts. The Land Rights Board could make decisions when there is consensus concerning the facts of each case, but when facts were in dispute the decision should fall to the courts, as they are Constitutionally empowered to take decisions.
Dr Broker expanded on requests for validated claims, specifically referencing TransNet's submission to the Committee. TransNet had drawn Committee Members' attention to property that it had acquired from the state, where the state had not followed legal procedures. In some cases, the Railway Construction Act fails to reference or describe lands that are currently under TransNet's control. TransNet's submission calls on government to provide a 'validating clause' to TransNet with the affect of legitimising TransNet holdings of affected land.
Dr Broker explained that the department was opposed to the provision of 'validating clauses' because it remains unclear what land is affected. More information is required as is a stronger understanding of associated laws; the Department would work with TransNet to resolve claims once these variables had fallen into place.
Mr Farrow referenced the Committee's amendment 18(5) regarding the necessity for disputes to be resolved via mediation or court procedure in order for the Minister to make a determination on a land rights enquiry report. His concern related to the cost-prohibitive nature of using the court, implying that mediation may be the preferred option to many South Africans; however, the Bill does not described what mediation entails, suggesting that the process should be more formal.
Dr Broker explained that the department would prefer to specify the mediation process in the regulations associated with the Bill. The rationale being that regulations can more easily be amended and that changes may be required in recognition of the ad hoc nature of land redress and to account for the application of the Bill.
Dr Broker added that there is not a single model for mediation, noting the Arbitration Foundation of South Africa had provided a strong mode but that other models were appropriate for disparate situations.
Mr Farrow asked what route is available if mediation fails and the court is not a realistic economic option.
Dr Schoeman asked if mediation had to take place prior to mediation.
Dr Broker explained that one dispute resolution mechanism did not depend on the other, noting that the courts may be resorted to initially and that this would likely be the rout taken where parties could not voluntarily agree to mediation.
Mr Maluleke asked whether legal aid would be made available for those who could not afford land redress.
Dr Broker affirmed that those in need would receive legal aid to the same degree that they would in any other court case in South Africa; no aid would be provided in mediation cases.
Chair Masithela noted that the Committee would have to take a diligent role in ensuring the mediation regulations were appropriate.
Deputy Minister do Toit noted that 18(5) says the Minister would "ensure" that disputes would be resolved, suggesting that in recognition that the Minister could not possibly do this that the word be changed to "promote" dispute resolution.
Chair Masithela said that the Committee would take the Deputy Minister's concern under advisement, pointing out the powers conveyed by Section 40, where the Minister can act on behalf of an individual or community to instigate or intervene in legal proceedings as they relate to the Bill. Chair Maithela suggested that there was already provision for the minister "to bring disputes to a head".
Chair Masithela requested clarity, if Section 14 provides the Minister the power to establish a land rights inquiry, and the inquiry may result in the Minister establishing a court case on the basis of the locus standi conveyed in Section 40, then can Section 14 be seen to enable the Minister to establish unlimited locus standi as it relates to land affairs.
Mr S Abram (UDM) asked Department officials to comment on the ratio of disputes that they think should go to mediation v court, and suggested there was room for other less adversarial alternatives.
Dr Schoeman inquired into the difference between mediation and arbitration.
A Department of Land Affairs representative explained that mediation had a very specific meaning that did not include traditional structures of dispute resolution that the Department was currently exploring.
Dr Broker suggested that "mediation" be replaced by "alternative dispute mechanism" to be more inclusive and accommodate cases where traditional structures and arbitration would be the preferred option. He cautioned, however, that arbitration is binding, has no appeal, and can sometimes arrive at difficult solutions to implement and finance.
Chair Masithela indicated that Committee should investigate alternative dispute mechanism.
Dr Broker indicate that the Department was already undertaking research on the matter.
Mr Ngema believed that the Bill should describe what "alternative dispute mechanisms" mean.
Chair Masithela asked what role the community played in establishing community rules, as per Section 19(5) - the Minister can prescribe rules if the Community fails to establish a suitable set of its own.
Dr Broker explained that a standard set of rules was being developed in cases where community rule consensus does not exist.
Chair Masithela suggested the Bill should clearly articulate a role for communities to reflect the general South African notion of communities wanting to establish their own rules.
Dr Broker suggested that Section 19's reference to Section 17(1) and (2) provided a sufficient role to communities in establishing rules. Dr Broker added that Section 19(5) was intended to accommodate worst-case scenarios.
Mr Farrow referred to Section 17(1) and asked how does the state ensure that Land Rights Inquiries have been participatory.
Mr Farrow asked whether it was possible to develop a Section that would ensure that land would fall to children of minor age if both parents were to pass without a will, and that such land would be evenly divided.
Chair Masithela said that the Committee had agreed that it was not government's role to legislate family maters, so Mr Farrow's suggestion would not be appropriate.
Mrs B M Ntuli asked in cases where partners are unmarried, would women be entitled to land if their partner had passed away.
Chair Masithela said that the Committee had considered that matter in the previous week.
Mrs Ntuli asked whether an appropriate amendment would be for the women elected to the Land Administration Committees to be elected by women.
Chair Masithela said that Mrs Ntuli's suggestion would be undemocratic and would undermine the role of traditional leaders and councils.
Chair Masithela suggested that Committee members consider a system where the 40 per cent of committee members appointed by traditional councils include at least one-third (1/3) women, and that such a system accompany the 60 per cent elected.
Mr Maluleke asked what was wrong with the democratic process as it relates to female representation out of the 60 per cent.
Chair Masithela said that he would not be engaging Committee Member's opinion on his 1/3 concept; instead, he hoped members would apply their minds to this idea "over the next few days".
Mr Farrow commented that the idea would do nothing to increase the representatives of the Committee, but would narrow the pool to select from. He continued that if Committee Members had listened to the submissions the public had made to the Bill, at issue was the relationship between communities and traditional councils and the lack of women's authentic representation and participation in these structures.
Chair Masithela said that his proposal addressed the concerns expressed in the consultations, and explained that the Committee need not consider the matter at that meeting.
Mrs Makwena Ludia Ngwenya explained that so long as traditional leaders control the women represented in 'democratic structures' the Bill would limit the ability to truly transform traditional structures to accommodate today's realities. Transformation cannot be numerically represented, but is attitudinal and requires women to be conceived and treated in a different, better way.
Mr Ngema expressed frustration that traditional African structures were treated as though transformation would result in something more democratic. He continued by suggesting traditional structures pursued consensus as opposed to only accommodating the majority. He invoked South Africa's colonial and apartheid history to say that traditional structures have suffered, but that they need to be reaffirmed and not transformed to govern in a way that is culturally appropriate. He argued that Bill did not refocus on the best of traditional structures, but instead tried to adjust to a reality that South Africans had not championed.
Chair Masithela closed the meeting by saying that Mr Ngema's comments would be considered at a later meeting and noting that the Department had received feedback on the amendments.
This document was generated on: 2003-12-04
Disclaimer: Every attempt is made to ensure that this information is accurate, but this report is not an official record of the meeting and therefore should not be regarded as a complete and correct record of the proceedings.
Mr N H Masithela
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