Communal Land Rights Bill: discussion

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Meeting report

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26 November 2003

Communal Land Rights Bill (With DLA Proposed Amendments: 25.11.03)

The Committee considered some DLA amendments to the Communal Land Rights Bill.

Opening Remarks and Agenda
Chair N H Masithela (ANC) opened the meeting by requesting Dr Broker to present the latest version of the Bill.

Dr Broker (Department of Land Affairs) explained that the Committee had to still consider outstanding issues relating to land administration committees and the composition of traditional land committees.

Chair Masithela asked Dr Broker to present the Bill (attached), excluding the aforementioned sections, and commented that Committee members would benefit from a new draft of the Bill that consolidates all amendments that have been adopted, so that party caucuses and the Committee could be clear on what remained outstanding.

Dr A E Schoeman (ANC) said that the outstanding issues were relatively few, and asked committee members to move forward on the document at hand.

Mr D K Maluleke explained that it would be valuable to appreciate the views of Adv Holomisa (ANC), who was not in attendance, otherwise the Committee would have failed to account for the opinions of South Africa's traditional leaders.

Chair Masithela explained that he had taken from the meeting (to this point) that members wanted to consider the Bill at hand clause-by-clause and to exclude outstanding sections for a future meeting. He requested Dr Broker to present the Bill, starting with the long title.

Mr Ngema (IFP) highlighted the reference to the "democratic" administration of communal land rights in the long title, and suggested that this was controversial wording, as - in the context of transition - the notion of democracy does not enjoy consensus. He explained that traditional structures were democratic but that these structures would be affected by the Bill's attempt to find something "more" democratic, which to him was an inherent contradiction.

Mr D M Dlali explained that reference to "democratic" was broad and contextual in South Africa, suggesting that Mr Ngema was reading too much into the word, as all the Committee was establishing was a people's government, and nothing top-down.

Mr Ngema asked why, if democracy were the norm in South Africa, would the Committee specify 'it' in this long title and not others.

Chair Masithela asked whether there was harm in making reference to it.

Mr Ngema suggested that harm lay in referencing a notion that South African's don't share a common understanding of. Suggesting that the reference connotes the message that government believes a system of simple majority is more democratic than a system devoted to consensus. He suggested that the word "democratic" was being used in place of the word "transform".

Mr M S Mogoba (PAC) said that members could debate the theoretical underpinnings of democracy all day long, but that members all knew that powers and structures were trying to be developed in a way that will be all inclusive, and suggested the words "all inclusive" replace "democracy", to address committee members' concerns.

Dr Schoeman suggested that democracy was a South African cornerstone, and had become a universal concept that should no longer be considered western. He expressed fear over the prospect of those wielding power defending such as democraty, referencing the previous government. He continued by explaining power is in the hands of South Africans, the people, and by saying that the powerful can't decree democracy. Dr Schoeman said that the Committee had heard that ideally traditional structures were the perfect Athenian democracy; however, as many voices had told the Committee that traditional structures had evolved far away from the ideal - the Bill tries to reconcile the best of each system with a challenging future of redress. As the Committee was working to find the most appropriate and democratic solution, Dr Schoelman "pleaded" to members to keep the reference to "democratic" in the long title.

Ms M L Ngwenya (ANC) said that "as an ordinary rural woman" she thought that it was valuable to clearly articulate the rationale for the Bill in the long title. Specifically, she called for reference to the negative affects of colonialism and apartheid, as well as establishing African norms and standards. She continued by explaining that she wanted South Africans to know that women had a role in government and that transforming traditional structures was important. She said that referencing "democracy" was good, in order to institutionalise it.

A Committee Member explained that submissions clearly articulated problems with traditional structures and that reference to "democratic" would do these submissions justice.

Mr Maumeke asked whether the words "all inclusive" would address concerns.

Inkosi Biyela (IFP) explained that reference to "democratic" was being made to express the will of the people; noting, however, that the fortune of traditional structures rests on the people's will. In each case the people's will is the source of power, so he expressed support for the title as presented.

Mr Ngema said that "all inclusive" would account for his concerns, but that the word "democratic" would be suitable to,if the Bill defined it in a way that accounts for his concern. He voiced concern that the submissions made to the Committee that negatively projected traditional structures were problematic and based on wrong attitudes about African culture and the principle of democracy.

Deputy Minister Dirk do Toit (ANC) said that if "more inclusive" were more acceptable than that wording would be welcome. He explained that no one word could convey "democracy", and, referencing Jurgen Habermas' Discourse Ethics theory, explained that democracy was interaction, discourse and a conversation. He said that the state must encourage traditional structures within the state structure. Expressing frustration in debating what was not democratic, Deputy Minister do Toit said that transformation is needed for redress and that the long title is superfluous to this point.

Dr Broker explained that the department had chosen the "democratic" to clearly separate this Bill from the previous regime's approach to land tenure. In recognizing that land is being returned to South Africa, Dr Broker continued, a democratic function was being undertaken, but to clarify the point the words " by communities" could be added to the sentence.

Chair Masithela asked members if the "by communities" option would be acceptable.

A Committee member explained that "by communities" would be repetitive as the short title is clear on the matter.

Chair Masithela commented that he liked "by communities" because it signalled to local people that they would have access to land.

Chair Masithela, again, asked if "by communities" should be included.

Members acknowledged that they would include reference to "democracy" and include "by communities".

Dr Broker continued to present the Bill clause-by-clause.

Mr Ngema asked whether a definition of "democracy" could be included in the Bill.

Mr Dlali signalled that the definition of "community rules" may be problematic, as he believed that changes were necessary to Section 19, but explained that he would profile these concerns when the Committee was considering this section.

Deputy Minister do Toit explained that "democracy" had been described in legislation and that describing it here was tantamount to opening the definition to debate.

Mr Ngema explained that he had only raised the matter to prevent the word "democracy" from being mis-used.

Chair Masithela asked members whether they were happy with the definitions as presented.

Mr Dlali explained that he had problems with "land administration committee" as defined, but that he would raise the matter when Section 21 was to be considered.

Dr Broker continued to present the Bill.

Ms Ngwenya asked, in describing the application of the Bill, whether it was necessary to reference former, offensive legislation.

Dr Broker explained that the Bill did have to specify colonial and apartheid era legislation because it describes the land affected by the Bill.

Ms Ngwenya inquired whether it was appropriate for government to repeal previous discriminating legislation en masse, as opposed to using it ad hoc.

Dr Broker explained that some of the roles and responsibilities conveyed in the legislation in question have been transferred to the Provinces. Recognizing that parts of the affected legislation have been assigned to a different sphere, Parliament cannot unilaterally withdraw legislation under another's purview.

Deputy Minister do Toit continued by explaining that government had deliberately decided not to repeal the law as it remained the legal foundation for some of the old order rights that land redress must account for. Deputy Minister do Toit added that once government had sufficiently sorted-out land tenure in South Africa, then discriminatory legislation would be corrected.

Mr Dlali suggested that the Committee ask the Department to make a list of all legislation that will be repealed as unconstitutional for a complete picture of the Committee's trajectory.

Chair Masithela explained that parliament was working on such a list, but this matter did not affect the task at hand.

Dr Broker continued to present the Bill.

Dr Schoeman said that the Committee had already agreed to the bulk of the clauses Mr Broker was presenting and suggested that the Committee only revisit those sections that have undergone substantial changes.

Chair Masithela, seeing no objections to Dr Schoeman's suggestion, invited Dr Broker to skip ahead to substantial changes to the Bill.

Mr Dlali asked whether Section Four accounted for both old and new order rights.

Dr Broker explained that Section Four will account for both old and new order rights, but within the available resources of the state, including time.

Mr Maluleke asked how the Bill would handle cases where a community was trying to claim land being claimed by a family?

Dr Broker explained that in such cases the paperwork of the previous regime would be used, where identification numbers were used in the past a family claim would be successful, where not, the community claim would be further entertained.

Mrs B M Ntuli (ANC) asked, practically, how land would be redressed, by giving each community member a piece of land or by providing a mss of land to "a community".

Dr Broker answered that in some cases an individual will take title deed, but in other cases, where a community has been identified, a land rights inquiry will have to resolve the matter.

Deputy Minister do Toit added that the Traditional leadership and Governance framework Bill includes provision to recognize a "community", and asked whether this definition will interfere with what government was undertaking in the Community Land Rights Bill.

Dr Broker explained that it was unlikely that the one would negatively impact on the other, noting an effort to cater to the realities of different communities.

Chair Masithela asked whether the notion of community in the Bill, as it relates to other legislation, was explicit in the Bill.

Dr Broker explained that, indeed, it was described in the definitions.

Dr Broker continued to present substantial changes to the Bill.'

Mrs Ntuli asked that the presentation of the Bill be more practical, suggesting that cases may arise where in some wards the people want traditional councils to take land decisions, in others the chief, in others still a different body.

Dr Broker explained that the Bill dealt with land ownership (tenure) and what Mrs Ntuli was referencing was local government. Communities will define themselves, and these lines will likely cross local government lines.

Mr Mogoba asked whether the Bill would open the door for transnational corporations to declare themselves a community and expropriate land, as was done in Kenya.

Dr Broker said that the Department was cautious of such a scenario, even if South African commercial interests were involved, which is why 'community rules' are required for land allocation, thus giving the community an ultimate check on land allocation.

Mr Dlali referenced Clause 17(3) and asked whether a land rights inquiry would have a temporal limit on its powers and duties.

Dr Broker explained that provision had been made for commercial enterprises to be given land for a minimum of ten-years, but that the community would have ultimate authority to appropriate land at some point. The rationale being that government wants to allow land that is not being used to be put to commercial purpose, which requires a certain period to become profitable; but that it also wants this land to eventually fall back to South Africans for their use. He provided examples of land use that would not damage land, but would leave development in its wake that would benefit local people, like game reserves.

Chair Masithela inquired whether the provision of long leases took account of the limited arable land in South Africa.

Dr Broker explained that land rights inquiries would have to take account for the land needs in communities, including adequate food production.

Deputy Minister do Toit added that Section 18 would allow the Minister a role in decision-making, whom would also consider matters related to appropriate land-use.

Chair Masithela posed a scenario where the community itself did not want South Africa's most productive land to be farmed, but developed.

Deputy Minister do Toit made the point that the Minister would have the ultimate authority; in such a scenario the Minister would champion agriculture and the Community would have to adjust.

Dr Broker added that such a scenario would be unlikely, considering a land rights inquiry would establish a close relationship with the community and consult widely - agricultural producers would make a compelling case if land was highly productive.

Mr Dlali expressed concern that Section 6 and Section 18 would work together to avert some matters that are local in nature to the national level, which would be unable to account for local nuance.

Deputy Minister do Toit explained that the relationship between the two sections was deliberate to normalize the informal systems in South Africa whilst allowing new systems and planning to accommodate redress. The process is to be participatory, he explained, noting that it was necessary for the community to communicate with government officials.

Deputy Minister do Toit continued that there where many examples where inter-sphere interests have to account for community interests, but these cases attest to the value of communication and consultation.

Mr Dlali expressed the fear that legislation locks-in the status quo, when communities are ever evolving and require the flexibility in planning to appropriately grow.

Chair Masithela explained that land rights inquiries would ensure that land-use plans were appropriately flexible.

Mrs Ngwenya asked how government was expected to provide for land reallocation, when affected land was still contested and land rights inquiries had yet to make recommendations.

Chair Masithela explained that the Bill provided for redress measures, with the inquiry reconciling these matters and the Minister approving this reconciliation. He continued, saying that where the need arises, government will purchase land and redistribute it, if an inquiry instructs that such be done.

Dr Schoeman remarked that government had control over 13 per cent of land, but that an inquiry could recommend in one area that agricultural land be dedicated to urban development, while in another area this land would preferably kept agricultural. Thus suggesting that adjacent inquiries would not be successful in solitude.

Dr Broker explained that under the IDP, land of similar use could not be subdivided unless there is unanimous support of stakeholders. In this way, he added, integrated planning assures that land is used in a way that is most suitable.

Dr Broker continued to present the Bill.

Mr Dlali asked, if a community fails to agree to community rules and the standard rules are applied, the Bill allows the community to amend these rules, but how is a community expected to amend rules that they did not agree to be governed by.

Dr Broker explained that this scenario was reserved for the worst case, and that the ability to amend is to ensure that both rules are in place and the community has the power to find rules that the community finds acceptable as a consensus emerges.

Chair Masithela inquired into the permanency of land inquiry boards and members.

Dr Broker explained that land redress would be a long process, and that Communities would likely need Board assistance for the foreseeable future.

Mr Maluleke asked whether there would be changes to Board membership.

Chair Masithela expressed anxiety over the prospect of a permanent structure, asking whether it would be more appropriate for routine functions of these Boards to be absorbed by the Department.

Dr Broker explained that the Bill allows the Minister to dissolve a Board if its functioning has become routine.

Mr Dlani asked whether the Board could be retained, but scaled down to deal with small lingering matters as they arose.

Mr Farrow asked how many Boards there would be, and how their Chair would be appointed, by the Minister or from amongst its constituents.

Deputy Minister do Toit explained that there would be a board in each affected province, meaning seven or eight boards.

Dr Broker explained that the Minister would select the Chair to ensure a person is in place that the Minister could maintain a close working relationship with.

Deputy Minister do Toit added that all the functions of the boards were in the public interest, as the Minister is ultimately responsible for those functions. It was felt that it was administratively appropriate that the Minister have control over this appointment.

Dr Schoeman asked why the Bill only compelled the Minister to "endeavour" to ensure one-third of land rights boards members are women, not "ensure".

Deputy Minister do Toit explained that government sympathised with Dr Schoeman's sentiments, but had to draft a Bill that could accommodate the unlikely event of not enough women being willing to participate on the boards.

Dr Broker added that board members would be nominated so the Minister may not have enough women in the pool from which to select one-third. He suggested that a possible solution would be to demand that one-third of nominations be women.

Chair Masithela suggested that the Committee adopt Dr Broker's suggestion.

Chair Masithela thanked everyone present for their cooperation and suggested that outstanding issues be finalized at the Meeting on November 27 and adjourned the meeting.

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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