Communal Land Rights Bill: deliberations

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Mr N Masithela (ANC)

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Agriculture and Land Affairs Portfolio Committee
26 January 2004
Communal Land Rights Bill: DELIBERATIONS

Chair:

Communal Land Rights Bill (B67B-2003)
Traditional Leadership and Governance Framework Act 41 of 2003

Summary:
The Committee discussed the Department's early costing and implementation plan for the Communal Land Rights Bill, as well as the relationship between the Bill and the Traditional Leadership and Governance Framework Act.

MINUTES
Chair N Masithela (ANC) noted the major issues the Committee had addressed thus far in their deliberations on the Communal Land Rights Bill, including: 1) the bredth of ministerial discretionary powers; 2) the protection of women's rights; 3) redistribute elements; 4) relation to local governments; 5) representatives of community/traditional councils; 6) the capacity of existing land administration structures; 7) breadth of legislative consultation; 8) the relationship between old and new order rights; 9) role of traditional councils, and 10) community participation in advisory and decision-making bodies. The final and only agenda item still to be considered, was the Bill's costing and implementation strategy.

Mr D K Maluleke (DA) referred to the 500 - 600 page document listing individuals and organisations that had participated in the Bill's consultation process, and asked whether it would be available to committee members.

Chair Masithela explained that the list had not been compiled for the committee and invited members to a coffee break. After the break, the Chair suggested that this list be shared with members.

A Committee Member (ANC) suggested that each party be provided with one copy on account of the document's length. Members expressed approval.

Fiscal and Administrative Implementation
Chair Masithela called on officials to present the Department's tentative Communal Land Rights' costing and implementation strategy.

Mr Maluleke asked whether a document reflecting the department's presentation would be distributed.

Chair Masithela explained that the Committee had requested a short, informal overview of how the Department intended to implement the Bill and corresponding financial underpinnings. A formal document had not been prepared.

Ms Vuyi Nxasana (Chief Director: Land Reform Systems and Support Services) introduced Dr Sipho Sibanda (Director, Tenure Reform Services) and C. Brocker (Director: Legal Services), and invited Dr Sibanda to present to the Committee.

Dr Sibanda explained that the Department's implementation plan was incomplete. However, it was clear that the figure of R68 million previously referenced would be woefully inadequate. He suggested that a figure 6 to 8 times that amount (R408 million to R544 million). This number accounts for fiscal realities previously unaccounted for such as human resources, material, structural capacity and surveying. He also noted some additional costs and savings associated with inter-departmental co-operation and service delivery.

He continued that the Department would require restructuring to implement and that this would take a year. This would be possible because this Bill could not be enforced until the Traditional Leadership and Governance Framework Act had come into effect in a year. This year was also required for the provinces to legislate corresponding legislation, which would also have a fiscal bearing. Finally, this year would allow previous legislation to be rescinded. Much of the financial underpinnings would depend on the speed in which government rolled out the Bill. Costs like surveying were one-time and could be done quickly or over a longer period of time.

Deputy Minister Adv DC du Toit said that he did not understand the Committee's interest in the implementation. No legislation obliged committees to consider implementation costs when developing strong policy. A supportive memorandum that referenced costs needed to be completed, and this had been done.

Mr Botha (DA) asked how the Department could underestimate costs by seven or eight times after having six years to consider the Bill's financial implications. There might be departmental missunderstandings of the full implication of the Bill and thus other irregularities were possible.

Dr Sibanda explained that the Department had not had six years to develop a costing, as the content of the Bill had undergone fundamental changes. It was not until Cabinet was satisfied with a document that fiscal implications could be considered. Therefore, the Department had only had since 11 October 2003 to undergo a costing exercise. In this context, the Committee's November request was rushed.

Mr Ngema (IFP) asked whether it was necessary for the Communal Land Rights Bill to have such a close relationship with the Traditional Leadership and Governance Framework Bill. He queried how the Committee could pass a Bill in isolation to implicitly related legislation developed by a different committee.

Mr Maluleke (DP) asked about Cabinet's response to the R68 million figure.

Deputy Minister du Toit noted that Department officials were not in the room while the Bill was discussed. Cabinet meetings were privileged, but assured that the Bill was fully supported by Cabinet. Furthermore, he explained that because of the way the Bill evolved, and because it now related to provincial and local government, as well as traditional leaders and institutions, an accurate, isolated costing was impossible. He thought that not all cost elements were included in the presentation to Cabinet, but that accurate financial plans did not conventionally accompany bills when considered by Cabinet. Government should make law based on realistic estimates. Here estimates may not have strong roots, but this was less important than government making strong policy.

He continued explained that the Bill would address the land concerns for approximately 20 million South Africans in an area four times the size of the Netherlands. The Deputy Minister explained that the figures under consideration were small in relation to the benefits derived.

Mr Botha again asked what value could be placed on the Department's handling of the Bill when it had already grossly underestimate associated costs.

Chair Masithela suggested that the R68 million was the figure established to make initial changes the Bill would require (surveying for instance), and not ongoing departmental costs.

Mr Ngema said that the Committee should work with as accurate figures as possible and asked whether members were prepared to pass the Bill with unclear implications, noting that the R544 million was only an estimated maximum.

Dr Sibanda expressed that the Committee was working with the most accurate figures that could be reasonably established.

Deputy Minister du Toit requested members to consider why the budget process was not included in the legislative process: sound decision-making should not have unrealistic fiscal constraints.

Deputy Minister du Toit explained that the Bill was needed to comply with the Constitution. The costs associated with compliance were perhaps high, but the costs of not complying with the Constitution were considerably greater.

Dr Schoeman (ANC) asked whether the costs being considered were full implementation costs, not just those likely to be incurred by the national department.

Dr Sibanda explained that the estimate being discussed included full implementation, not just the national department's costs. However, he explained that the intergovernmental, interdepartmental and intersectoral complexion of the bill made isolating these costs difficult.

Chair Masithela said that the Committee had been given an important opportunity to unlock development barriers for previously discriminated against South Africans, adding that the estimate provided by the Department was in proportion to this goal.

Mr Ngema explained that his question regarding the relationship between the two Bills was unanswered, and addedd that the cross-Committee process had been confusing.

Dr Sibanda explained that where traditional councils existed, they will override community councils. Therefore this component of the Traditional Leadership and Governance Framework Act affected the implementation of the Communal Land Rights Bill. He estimated the number of traditional councils likely to manifest over time. The transfer of all old order rights to new order rights was a huge undertaking and no one piece of legislation would be able to govern this process.

Mr Ngema explained that his concerns related to the practicality of the process. He asked why the Communal Land Rights Bill had not been prepared to accommodate the transition from traditional authorities to traditional councils. Noting that the Bill developed a framework for a reality that did not yet exist, he suggested that the failed implementation of the Act would jeopardise the Communal Land Rights Bill.

Chair Masithela said that the Committee was currently developing one of the functions that traditional councils would provide, but that these councils needed framework legislation to exist before their functions could be considered.

Mr Brocker assured the Committee that the Traditional Leadership and Governance Framework Act would be implemented as soon as possible and in concert with the Communal Land Rights Bill. The Communal Land Rights Bill had been prepared in the context of the Traditional Leadership and Governance Framework Act in recognition of this Bill's qualities, for example that the traditional councils had the potential to be stronger institutions.

Chair Masithela ended that the Committee would review the Bill clause by clause at the following day's meeting.

The meeting was adjourned.

 

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