A summary of this committee meeting is not yet available.
LAND AND AGRICULTURAL AFFAIRS SELECT COMMITTEE
9 February 2004
COMMUNAL LAND RIGHTS BILL: BRIEFING
Portfolio Committee amendments to Communal Land Rights Bill [B67A-2003]
Communal Land Rights Bill with Portfolio Committee amendments incorporated [B67B-2003]
14 Nov 2003 Communal Land Rights Bill: hearings
13 Nov 2003 Communal Land Rights Bill: hearings
12 Nov 2003 Communal Land Rights Bill: hearings
11 Nov 2003 Communal Land Rights Bill: hearings]
The Department informed the Committee that the Communal Land Rights Bill represented nine years of research and policy formulation and addressed the following mandates received from the Minister: to transfer ownership of communal land held in trust by the Minister on behalf of various communities, to simplify the extensive bureaucracy created by the 1999 draft Bill and to take into account the existing institutions of traditional leadership. The Bill grants communities their own legal personality so that they can hold land in their own right, it allows an award of comparable redress where land cannot be transferred back to the community and provides for a land rights inquiry to resolve conflicting land rights and requires the Minister to then make a determination based on that inquiry. The Bill allows a traditional community to set up a land administration committee to administer land in a democratic manner and at least 30% of its members must be women, it establishes six land rights boards which will ensure the sustainable ownership and use of land and also allows for the transfer of land held by the Ingonyama Trust to the traditional community itself.
During the discussion Members asked whether traditional leaders had approved the Bill, whether the amended Bill should possibly be re-tagged as a Section 76 Bill and what the consequences of such a decision would be and whether the Department could provide any indication of when the Bill would be fully implemented. The Committee also sought clarity as to whether the Ingonyama Trust would be phased out over time by the Bill, whether the Property Rates Bill affected the Bill at all and how the Bill planned to overcome the problematic customary laws that were currently still on the South African statute books. The ANC proposed several technical amendments. The Department will respond to these in the Committee's next meeting.
The Ministry made a case for the NCOP not to make any amendments as this would further delay the Bill becoming an Act. However the National Council of Provinces Chief Whip reminded the Ministry that the NCOP was fully within its powers to amend any legislation brought before it. It would not entertain political compromises. As this was a Section 75 Bill, the National Assembly could decide to either accept or reject the NCOP's amendments. He pointed out that 99% of the amendments proposed by the NCOP during 2003 were accepted by the National Assembly.
Briefing on Communal Land Rights Bill by Department
Dr S Sibanda, Director: Tenure Reform Services, stated that the Bill represented nine years of research, policy formulation, consultation and legislative drafting, which began as far back as 1996. By June 1999 the stillborn Land Rights Bill was presented, but it contained a number of problems. The new Minister, Ms Thoko Didiza, wanted a reassessment of the Bill, and raised three issues with the Department:
- The confirmation of existing tenure rights on a broad front, without transferring ownership was problematic to the Minister. She was of the view that those in the former homelands wanted the transfer of ownership in land that was currently held by the state, but which was occupied and used by communities and groups on a de facto basis.
Furthermore, the Minister wanted to transfer ownership of communal land held in trust by the Minister on behalf of various communities such as the Bafokeng. The Bafokeng purchased these territories back in the 1800s but because of racially discriminatory laws and practices they could not register the land in their name and own it independent of a state functionary. The Minister thus wanted to correct these wrongs. She was of the opinion that the approach followed in the 1999 draft Bill was problematic to the extent that it was not conferring ownership to these people who would otherwise have been the lawful owners of the territory, had it not been for the Apartheid system.
- Secondly, the Minister was of the opinion that the 1999 draft Bill created a very extensive bureaucracy which she dubbed the "second parallel bureaucracy", and believed it to be taxing on the state's fiscus. The Minister felt that one state bureaucracy was needed, and duplication and resource-heavy bureaucracies must be avoided, and requested the streamlining of the institutions proposed in the 1999 draft Bill.
- Thirdly, the Minister was of the opinion that the institutional proposals in the 1999 draft Bill did not take into account the existing institutions of traditional leadership. The 1999 draft Bill created a proliferation of accredited rights holders structures in the name of democratising the system of land administration, but the role, powers and duties of traditional leadership within the scheme of things was hidden behind the term "accredited rights holders structures". Dr Richard Levin, a then Chief Director within the Department criticised the 1999 draft Bill by contending that it was 'aiming at smashing the institution of traditional leadership', and he felt that a balance should have been struck in the 1999 draft Bill between tradition and the demands of democracy so that the two could co-exist. The 1999 draft Bill completely ignored Section 211(1) of the Constitution which entrenched the role and status of traditional leadership.
Thus from September 1999, following these three issues highlighted by the Minister, the Department began work on the new paradigm which recognised the need to transfer state land, which was registered in the name of the state but occupied by communities, as well as land held in trust by the Minister to various communities who would otherwise have been owners of the land had it not been for Apartheid laws.
The Department also began the process of streamlining the institutional arrangements to deal with the land administration system contemplated in the Bill, and commenced the drafting processes which lead to the production of the third draft of the Bill in March 2001. This was the draft used for consultation purposes at the National Land Tenure Conference held in Durban in November 2001, where a number of resolutions were passed. One of the more important related to the need to speed up the transfer of communal land to communities in ownership. Secondly, to recognise the existing institutions that were responsible for the allocation of land, subject to the Bill and to the Constitution. Following that conference the Department embarked on a redrafting process which sought to refine the Bill in line with the recommendations received from the Conference.
Consultation processes were conducted between January 2002 and August 2002, at which point the Department was prepared to place the Bill in the public domain for comment. The Bill was Gazetted on 14 August 2002. Between August 2002 and April 2003 a series of interactions between the Department, various communities, organs of civil society as well as the private sector especially the banking sector. During this time the Department also received approximately 80 written submissions on the Bill, whose inputs were consolidated and discussed in meetings with both the Minister and the Deputy Minister between April 2003 and September 2003 in an effort to receive policy guidance from those political heads.
By 22 September 2003 the Bill had firmed up and the Minister approved the Bill the next day, and planned on taking the Bill to Cabinet for interrogation. The Cabinet Committee met on 7 October 2003 and suggested a number of amendments, including the need for the alignment of legislative frameworks. At that time the Department of Provincial and Local Government was dealing with the Traditional Leadership and Governance Framework Bill, which has now become enacted, but both pieces of legislation had an impact on traditional leadership. The concern was that government was creating two separate but possibly conflicting pieces of legislation, and these two thus had to be aligned. This alignment was effected by the Department and it related to taking the model contemplated in Section 3 of the Traditional Leadership Act and using it as a basis for creating a land administration system on communal areas where there were traditional communities. However that model would not be applicable in those areas which did not have any traditional communities, and a separate model would have to be used.
Cabinet met on 10 October 2003 and accepted the Bill for tabling in Parliament. Between 11 and 30 November the Portfolio Committee on Agriculture and Land Affairs held public hearings on the Bill, and a number of communities voiced their grievances in Parliament. Parliament and the Department then sat together to consider the submissions received and a number of amendments were effected to the Bill. The Department did not effect those amendments which differed from its own thinking because the specific policy position adopted in the Bill was the correct one.
Much improvement was made to the Bill by taking into account the submissions made during the public hearings in the area of women's rights. This is most evident in Clause 4 of the Bill which previously contained only one provision, but which has now been amended to include three statutory provisions. This indicated the Department's efforts to accommodate the rights of women. Clause 12 which dealt with comparable redress was also clarified and the Department was satisfied with the revised formulation. A number of other provisions have been amended by the inputs received during the public hearings, and these will be discussed later. There were however certain provisions which the Department believed were correct and should be retained, and amendments proposed to those provisions were not entertained.
Dr Sibanda then took the Committee through a chapter-by-chapter discussion of the Bill.
He stated that the "transition from old order rights to new order rights" was enshrined in Clause 14 and underpinned the Bill, because without it the Minister or any other official with delegated authority would not be able to make a decision. Clause 14 was important because it was the basis for ""unscrambling the egg" as Dr C Brocker, Director: Legal Services, put it, in order to eliminate the competing rights. It was only once this had been done that the Minister would be able to use the results of the land rights inquiry to make a decision.
The inclusion of the phrase "to provide for the democratic administration of communal land by communities" was very important because the Bill sought to clarify the role of the communities as owners of the land, and made them responsible for the ownership and the administration of that land. It thus marked a definite departure from the position in which the state was the omnipotent institution that dealt with the communal land, whereas the traditional communities were now able to own and administer the land independent of the state.
The Bill also sought to provide for the institution of the Land Rights Boards which was an instrument of the state. Yet the state, by transferring land to communities, was not abdicating its responsibility for the development of the traditional communities and hence the creation of the Land Rights Board which would serve as an instrument of state intervention in those areas to ensure they were developed.
Provision is also made for the "co-operative performance of municipal functions on communal land", because municipalities were contending that they were unable to provide services on communally held land because it was private land. The Department engaged in a number of discussions with the Department of Provincial and Local Government and the South African Local Government Association (SALGA), and it was agreed that there were no legal constraints to the provision of services and development infrastructure in those areas. The Bill thus provided an enabling environment for the provision of these services.
The Bill also sought to "amend or repeal [old order] laws" which were no in synch with the Constitution.
Chapter 1: Definitions and application of Act
Clause 1: Definitions
Dr Sibanda did not go through this clause as he said that the definitions it contained were self-explanatory.
Clause 2: Application of Act
Clause 2(1)(c) and (d) was inserted in an effort to rationalise the country's land administration systems to avoid a proliferation of numerous systems that dealt with communally owned land.
Chapter 2: Juristic personality and legal security of tenure
Clause 3: Juristic personality of community
This clause grants the community its own juristic personality, and thus does away with the previous regime under which the state would act on behalf of the community. This was a very important structural provision.
Clause 4: Security of tenure
Clause 4(1)-(3) were added as a result of the recommendations received during the public hearings. Clause 4(1) sought to give effect to the legal entitlement of secured tenure as contemplated in Section 25(6) of the Constitution, and the wording and concepts used in the two provisions were identical. The original formulation of the clause did not give expression to the constitutional injunction.
Clause 4(2) was reformulated because the original Clause 4 was criticised for confirming the status quo which retained the patriarchal nature of South African society. Instead this clause changed that reality, and was a very important clause. The insertion of Clause 4(3) was a revolutionary step taken.
Clause 4 read together with Clause 14(2)(d) and Clause 18(1)(c) indicated the lengths government had gone to in order to deal with gender equality in the allocation and ownership of land. The whole idea of male primogeniture in the male succession rules was thus being challenged by the Bill, and allows the surviving wife to inherit the property because she was part of the generation of that wealth.
Chapter 3: Transfer and registration of communal land
Clause 5: Registration of communal land and new order rights
This clause stipulated that communal land would vest in the community itself as the owner of the land and not in a traditional council or traditional leadership. This was consistent with the Department's White Paper on South African Land Policy.
Clause 6: Transfer of communal land
This clause gave expression to the Department's White Paper in terms of the diversement of state's ownership of communal land, and was the enabling provision which allowed the Minister to transfer communal land to the communities itself, subject to the report and the criteria in clause 18(1)..
Clause 9: Conversion of registered new order right into freehold ownership
This provision allowed the community itself to decide whether it wanted the communal land to be converted into privately owned land which would no longer form part of the community's land.
Clause 10: Transfer costs and stamp duties
This clause stipulated that the costs of the first transfer would be born by the state, but the costs of any subsequent transactions would be born by the individual or the community effecting the transfer. The same applied to Clause 11.
Chapter 4: Provision of comparable redress where tenure cannot be legally secured
Clause 12: Award of comparable redress
This clause gave effect to the constitutional injunction to award comparable redress where it was not possible to grant the person or community secure legal tenure of the land, and the clause stipulated the form and the nature of the comparable redress offered by the Department.
Chapter 5: The conduct of land rights enquiry
Clause 14: Land rights enquiry
Dr Sibanda stated that, as he mentioned earlier, the land rights enquiry underpinned the Bill, because without it the Department would not be able to "unscramble the egg" and would not be able to take decisions on Clauses 4, 5, 8, 9, 12 or 18. The processes for the enquiry were open, transparent and democratic, and any objections raised were taken into account. Clause 18 also required the Minister to take these dissentions into account when making a decision on the transferal of land.
Clause 15: Designation or appointment of land rights enquirer
This clause stipulated the persons who would be appointed by the Minister to conduct the land rights enquiry. This person could even be outsourced if the Department did not have the necessary capacity to perform the enquiry.
Clause 17: Powers and duties of land rights enquirer
This clause was substantially amended by the submissions received during the public hearings held by the Portfolio Committee on Land during November 2003.
Clause 18: Determination by Minister
This clause must be read together with Clause 14 which dealt with the land rights enquiry. The original formulation of Clause 18(1) was amended by the submissions received during the public hearings in November 2003. This provision allowed the Minister to make decisions based on the report of the land rights enquiry and other laws. He stated that Clause 18(1)(b) was misinterpreted to mean that the Minister would be intervening in laws governing spatial planning or local government, whereas this was not the case. The provision was merely stating that where the Minister made a determination in terms of Clause 18 she must pay attention to the existing laws, especially those from the Department of Provincial and Local Government, and prohibits her from making a determination "blind to what other [departments] were providing". It did thus not mean that the Minister would be usurping the powers of the Department of Provincial and Local Government with regard to local planning.
In doing so Clause 18(3) also provided a new model for land ownership in communal areas of South Africa, as Clause 18(3)(a) stipulated that the land would then vest in the community as contemplated in Clause 5. The provision also allowed the individual who sought to convert the new order right into a freehold ownership to challenge the refusal of the community to grant such permission in a court of law. The Department was of the view that this model preserved the cultural traditions as it transferred land to the community and did not individualise it, which meant that the community spirit was maintained.
Yet Clause 18(3)(b) allowed the community to destroy the communal land by subdividing it into smaller portions of land, if it so wished. This meant that each family would have its own title deed to the portion of land it owned. Clause 18(3)(a) and (b) reflected the position taken by the Department in its White Paper on South African Land Policy which recognised the need to afford communities a variety of tenure forms to meet their differing needs and circumstances. Clause 18(3)(c) provided for a hybrid system both of individual freehold as well as communal ownership.
Clause 18(4) was important because it allowed the state or a municipality to reserve a right regarding the use of the land for a public purpose, to protect the land and also to give effect to the Act. The Minister was empowered by Clause 18(4)(b) to grant a new order right to a wife, widow or woman in her own right. This provision thus redressed the patriarchal succession issues by stating clearly that the 'inkosana' could no longer feature in land rights, and brought the system in line with Chapter 2 of the Constitution.
Clause 18(5) prohibited the Minister from making a determination on land which was affected by a dispute, until that dispute was resolved. These would include the disputes contemplated under Clauses 4 or 6 of the Bill. The provision also introduced the possibility of resolving the dispute via the traditional dispute resolution mechanisms
Chapter 6: Content, making and registration of community rules
This was an important chapter because it allowed the community to register its rules so that it could be recognised as a juristic person, and such rules would also provide a framework for the management and administration of communal land.
Clause 19: Content, making and registration of community rules
Clause 19(2)(a) was amended because the Department recognised that the "wall to wall local government system" in South Africa prevented the community from administering its own land outside the framework provided for by the Department of Provincial and Local Government.
Clause 19(4) required the community to subject its rules to the criteria provided for by the Director-General of the Department to ensure that the rules complied both with the Constitution and with the Bill. The rules would not be registered if they failed to comply with those two pieces of legislation. Clause 19(5) stipulated that the Minister was empowered to devise pro forma community rules should the community itself fail to adopt its own rules, and these rules would then be imposed on the community so that its activities could be regulated within a given framework.
Chapter 7: Land Administration Committee
This was a very important chapter and was also the reason for some of the criticism leveled against the Bill and the Department from a number of sectors. It dealt with the established of a land administration committee to deal with the establishment of a democratised land administration system.
Yet Clause 21(2) stipulated that if a traditional community that had a recognised traditional council, that council would be allowed to perform the powers and duties of a land administration committee. This provision was however merely permissive and was not peremptory, and thus left the decision to the community itself as to whether it wanted to traditional leadership structure to administer its land or not.
Clause 21(3) dealt with the composition of the land administration committee subject to Clause 22(4) and (5), which was over and above Clause 22(3) which stipulated that at least one third of the total membership of either the land administration committee or a traditional council acting as a land administration committee must be women. This meant that the community could decide that 100% of the members of the committee could be women, if they so desired. This was a very important step for the Department because, by changing the predominantly male nature of a traditional council, it was transforming the institution of traditional leadership to ensure that it took on board other members of society that were excluded from decision-making structures.
Clause 21(4) was important because it made it clear that a "traditional council" in this Bill was not the same as a traditional council contemplated in Section 3 of the Traditional Leadership and Governance Act. The Department did take the model used in that Act but further modified it in the Bill, as it focuses exclusively on the administration of land affairs and not traditional leadership per se.
Clause 21(5) was inserted to address the concern raised that the Department's borrowing from the Traditional Leadership and Governance Act had the effect of actually granting undemocratic structures the power to allocate land. These structures were created but their composition and mandate were encumbered, as listed in Clause 22. Furthermore when that traditional council acted as a land administration committee for the purposes of this Bill it would not act as a traditional council contemplated in Section 3 of that Act.
Prof D Du Toit, Deputy Minister of Land and Agriculture, stated that the wording in Clauses 21(4) and (5) were related to Section 146(2) of the Constitution which dealt with conflicts between national and provincial legislation. These subclauses were inserted specifically to make it clear that this was not a provincial matter, because land administration was a national competence. The wording in Clause 21(5) mirrored the wording employed in Section 146(2)(b).
Clause 22: Composition
This was an important clause because it detailed the composition of the land administration committee. Criticism was leveled against Clause 21(5) that it allowed the state to abdicate its responsibility, but this was not the case as the state would be represented in the land administration committees via various organs of State nominated by the Minister, the relevant land rights board as well as the relevant municipality on a non-vetting basis. These bodies would be the eyes of government to determine the needs of the communities and to provide for monitoring to ensure no rights are violated.
Clause 24: Powers and duties
Clause 24(1) was very important because it sought specifically to address the criticism that the Bill established an Apartheid-type piece of legislation. This was not the case because the provision stated that the powers of a land administration committee or traditional council did not derive from the Black Administration Act of 1951, but instead derived from this Bill and the rules of the traditional community. Clause 19 was thus very important because it provided the basis for the community to dictate its own administration and activities, and Cause 24(3) then spelt out the exact powers of that traditional council or land administration committee. The powers granted to traditional leaders under the Black Administration Act will be repealed, and no reference would henceforth be made to that Act. Customary law would be included necessarily, but its inclusion would always be subject to the dictates in the Constitution and to this Bill.
The criticisms were thus unfounded because the Bill clearly stipulated that the source of the power for institutions the Bill was recognising were the rules of the traditional community, the Bill itself and the Constitution. The criticism appeared to raise concern with implementation issues, and not really with the legal content of the provision.
Clause 24(3) spelt out the powers and duties granted to the land administration committee by the Bill. It was clear that the powers granted to the land administration committee were not really unprecedented, as alleged by the critics. These powers were not unusual or extensive, but were within the realm of powers of land administration employed in any system that involved collectivity. The allegations that the powers granted by the Bill were actually "insulted the intelligence of the drafters and of government" as the Bill did not grant traditional leadership any more powers than they currently had, as traditional leaders were currently allocating land to individuals.
Chapter 8: Land rights board
Clause 25: Establishment of Land Rights Board
The Department proposed the establishment of six boards at the provincial level, one each in the Kwazulu-Natal, Eastern Cape, Mpumalanga, Limpopo, Free State and North West provinces. The Portfolio Committee questioned whether the functions of these boards could not be performed by municipal ward committees instead. The Department was of the view that this was a land issue and could thus only be done by institutions created in terms of the national competence of land affairs as the Department's functional area. If this function were to be granted to the municipalities government would be running the risk of increasing the conflict between traditional leadership and municipalities. Instead the Department desired the co-operation between these two institutions. The municipalities were already grappling with managing their own functions, and an additional function would really cripple them. The creation of the land rights board was very necessary from a land rights perspective.
Clause 26: Composition
This provision detailed the members of the land rights board, which was done on an appointment basis.
Chapter 9: Kwazulu-Natal Ingonyama Trust Land
Clause 31: Laws governing Kwazulu-Natal Ingonyama Trust Land
This was a very important chapter as it aimed at providing political stability to the land tenure system. It recognised the anomaly inherited from the colonial past in Kwazulu-Natal. Three days before the introduction of the new dispensation the National Party transferred 3 million hectares of land to the Ingonyama, to hold in trust for the Zulu people. That land ceased to be pure state land. A trust was established aimed at ensuring the welfare of the communities in Kwazulu-Natal.
Dr Sibanda stated that the Department wished to state three things. Firstly the Ingonyama Trust Act will not be repealed, but would instead be amended to bring it in line with this Bill. Secondly the Ingonyama Trust Board would continue to exist subject to adaptations effected in terms of this Bill, and would be the instrument used by the State to transfer land to various communities in Kwazulu-Natal as required by the Bill. The Ingonyama Trust Board would, during that time, perform dual functions: it would have functions in terms of the current Ingonyama Trust Act, and would also have functions in terms of the Bill. Thirdly, once all the land has been transferred from the Ingonyama Trust to the various communities in Kwazulu-Natal, the function of the Ingonyama Trust Board contemplated in Section 2A of the Ingonyama Trust Act would fall away. The Ingonyama Trust Board would then focus on the functions contemplated in Chapter 8 of the Bill alone. This was a transitional measure which was also aimed at accommodating the anomaly
Clause 35: Inconsistency in laws
This was an important provision.
Chapter 10: General provisions
Clause 37: Provision of municipal services and development infrastructure on communal land
Municipalities have been contending that they were unable to deliver municipal services or develop infrastructure on communal land, and that their 500 Communal Property Associations (CPAs) were currently faced with this lack of capacity problem. The Department conducted extensive research and discovered that there were no legal constraints on the provision of municipal services, because the municipalities were simply saying that they were unable to provide municipal services to communal land. An agreement was reached with the Department of Provincial and Local Government as well as SALGA that municipalities had a duty in terms of Sections 152 and 153 of the Constitution to provide municipal services to the juristic person contemplated in Clause 3 of the Bill.
This clause then required the municipality to provide the municipal services to the land, irrespective of the nature of the ownership of that land.
Clause 38: Acquisition of land by Minister
This was a critical provision. Comparable redress, although it was fixated on the resolution of conflicting rights in land, did have redistributive consequences. If the land in question could not be purchased on a "willing buyer willing seller" basis from the current owner and redistributed, Clause 38 allowed the Minister to purchase, acquire or expropriate land to give effect to Clause 14 of the Bill.
The Department thus disagreed with criticisms that this Bill did not deal with redistribution, as this clause clearly indicated that this Bill complemented Act 126 of 1993 which was the legal framework for the redistribution of land in South Africa.
Clause 40: Extension of access to courts
This was an important provision because it allowed the Minister or the land rights board to act on behalf of anyone whose land rights have been infringed upon in terms of this Bill.
Clauses 41 and 42
These were general provisions which appeared in most of the laws, and did not contain anything controversial.
Clause 46: Amendment and repeal of laws
This provision allowed for the repeal of a plethora of old-order laws, and they were listed in the Schedule to the Bill. The Department was engaged in discussion with other government departments to consider the rationalisation of the old order laws, so that all those laws that were repugnant to the Constitution and this Bill could be removed from the statute books.
Rev M Chabaku (ANC) [Free State] stated that it would have been helpful if Members had a list of the Portfolio Committee amendments proposed to the Bill.
Dr Sibanda responded that the separate Portfolio Committee amendments could be provided to Members.
Rev Chabaku asked whether the traditional leaders have approved of the provisions and matters put forward in the Bill. This was important because it affected them directly.
Dr Sibanda replied that submissions were received from traditional leaders during the public hearings held by the Portfolio Committee in November 2003, and these would also be made available to Members.
Rev Chabaku proposed that the notices not only be placed in the local newspapers but also in the languages spoken by the people affected. Pamphlets should also be handed out.
Dr Sibanda agreed that the appropriate medium of communication in any given language should be made available to people, and the Department would endeavour to do just that.
Dr Brocker added that the Bill very deliberately referred to media, and stated that government's communication policy was to be as effective as possible. He stated that this was not restricted to the written media and informed Members that government made extensive use of radio as well, as it was very conscious that many South Africans were illiterate and thusa pamphlet alone would not communicate government's message. It would also be presented in the language most used, in more than one language.
Rev Chabaku complimented the Department on the extent to which the Bill accommodated the interests of women, children and the disabled.
Mr M Surty (ANC) [North West[ stated that while it was Section 75 legislation it did affect communities living within provinces at a local government level. Therefore, very similar to the Municipal Systems and Municipal Structures Bill which were also Section 75 Bills, it must be ensured that provinces and local government had sufficient time to consider the consequences of the legislation.
He stated that concern was raised that, as a result of the Portfolio Committee amendments, the nature of the Bill had changed to a hybrid Bill as it now contained elements of both a Section 75 and 76 Bill. He asked whether this meant that the Bill would have to be re-tagged, which would clearly result in delays.
The Deputy Minister responded that this matter was currently with the Chairperson of the NCOP and the Speaker of Parliament. A full response on this issue had been given by the Ministry
Dr Brocker added that the Department was firmly of the opinion that the Bill was not a Section 76 Bill. This very issue, as to whether this was a Schedule 4 or a national land function, was raised in 1997 when the Ingonyama Trust Act was presented to Parliament, and the Kwazulu-Natal Province took the Department to the Constitutional Court. Regrettably the Constitutional Court did not pass judgment on the matter, and this was a pity because it would have set a precedent for the intended meaning of Section 76(3) of the Constitution. The court did conclude that although the proposed amendment of the then Ingonyama Trust Act affected the concept and institutions of traditional leadership, it did not seek to regulate traditional leadership because it was a land affairs matter and not a traditional leadership matter.
The problem here was that land by its nature was a very wide and encompassing phenomenon, and issues such as Integrated Development Programmes (IDP) affected planning on all three levels of government. There was thus an overlap, especially with regard to traditional leadership and the administration of land. The distinction was however that the Bill did not seek to regulate traditional leadership as such, but merely had an effect on traditional leadership.
Mr Surty suggested that the Bill would probably not be implemented within the next few months because there was much work that needed to be done. He asked the Department to offer some guidance as to when this would be done.
The Deputy Minister replied by reminding Members that this Bill has taken far too long to come to fruition, but suggested that a deeper analysis of the issue would highlight the problem of the neglect of land administration over the last twenty years. The Bill was essentially tenure legislation but was also the basis for development. There was a huge delay and the problem experienced by the Department was that it could not really begin implementing its administration if the governing law was not yet certain, because this depended on the regulations themselves.
Parliament would probably be in recess as of end of February because it was an election year, and this legislation would not have been passed by then. A new Parliament would also be elected and all these processed would delay the implementation of the Bill for a very long time while the people who really needed the legislation were still waiting for relief. It would be preferable for the Bill to be passed and for the Department to then return with amendments to be presented to the new Parliament. He stated that in June 2003 he received a mandate from the Minister to finalise this Bill as soon as possible so that the administration could be effected to get the process going.
Dr Bocker added that the Department recognised the urgency in passing this Bill through Parliament.
Mr Surty questioned whether the phrase "to provide for land rights boards" in the Long Title to the Bill should be replaced with "to establish and provide for land rights board", because the Ingonyama Trust already served as a template.
He complimented the Department on the progress made in the Bill in addressing gender issues.
Mr Surty sought clarity on the need for the inclusion of the words "and human" in Clause 14(2)(a)(i), because it appeared to open up the scope of the inquiry far too widely to include all other non-land related rights. He proposed that the Department's original wording of the provision was more appropriate.
Mr Surty suggested that the phrase "who are 18 years of age or older" in Clause 17(2) should be replaced with "who are not less than 18 years of age", because the current wording suggested that the prominent age was 18 and that the older South Africans would also qualify.
Mr Surty suggested that the current Clause 18(5) really allowed a person to stall the entire process simply by fabricating the simplest conflict, which would then hinder the finalisation of the process. He proposed that this provision be rethought.
Mr Surty questioned the inclusion of the phrase "intention of the Constitution" in Clause 19(4)(c), because it might be difficult to interpret as it allowed for a subjective element to the determination. The same would apply in Clause 19(4)(d) as well. He proposed that the Department's original wording was preferable.
Mr Surty proposed that the word "by" in Clause 24(3)(g) be deleted, as the provision did not read properly.
Mr Surty asked whether provincial organs of State were included under Clause 25(2)(a) and, if this was the case, the wording should clearly reflect that intention.
Mr Surty asked whether there was any clause in the Bill which allowed for the extension of the term of office of a member of the land rights board beyond the five year term stipulated in Clause 26(4).
Mr Surty proposed that a clear reference to Clause 38(3) be inserted in Clause 38(2) itself, because the two matters dealt with where not really separate issues.
Mr Surty questioned the granting of the power to the Director-General of a government department to delegate any power in Clause 43, as that right was usually reserved for Ministers.
Mr Surty stated that Clause 44 must be amended to require the Minister to table the regulations in Parliament. He stated that he was suggesting that Parliament must approve the regulations, but they should be tabled so that Parliament at least had knowledge of the regulations and could thus make some comment on them.
The Deputy Minister agreed that Parliament must have knowledge of the regulations.
Dr Brocker replied that the Department would like some time to consider these specific amendments proposed by Mr Surty, and would report back to the Committee at the next meeting.
Mr A Van Niekerk (NNP) [Northern Cape] urged the Department to ensure that the amendments to the affected legislation be published in the same language as the official language of the principal Act.
Dr Brocker responded that the official text would be English and the translation would be done in Zulu. The reason for this was that, although Zulu was widely used and understood, it was not necessarily understood as the indigenous language in all the areas. The Department was thus of the view that English was more practicable. The amendments effected to the Acts would be done in the language of the principal Acts.
Mr Van Niekerk asked whether the Ingonyama Trust Act would be phased out over time by the Bill.
Dr Brocker replied that the Ingonyama Trust Act would in effect be phased out, as was indicated earlier by Dr Sibanda. The Ingonyama Trust Board would continue to exercise certain trust functions in terms of the Ingonyama Trust Act, and would continue to do that. Yet at the same time it would become a land rights board with the additional functions laid down by this Bill. The Department was effecting a major amendment to the Ingonyama Trust Act which now required the trustee to transfer the land to the community. This was not stipulated in the current Ingonyama Trust Act, but merely created a perpetual trust. All those consulted on this matter agreed that the intention was always to transfer the land back to the community, and they thus agreed with the Department's proposed amendment. Thus the Ingonyama Trust would cease to exist once the last piece of Ingonyama land had been transferred from the trust to that community.
Mr Van Niekerk sought clarity on how exactly the Department arrived at the figure of 30% women composition of the boards.
Dr Brocker responded that this was because a comparative study of the figures used by other government departments indicated that this appeared to be the current norm. It also appeared in the Traditional Leadership and Governance Framework Act.
Mr M Sulliman (ANC) [Northern Cape] asked whether the revenue raising powers of municipalities as contained in the Property Rates Bill which was currently being discussed by Parliament would affect the Bill.
Dr Brocker replied that the Department had consulted the Department of Provincial and Local Government on this matter. The Property Rates Bill included a phased-in approach to charging rates on communal land. The reason for this was to recognise the reality that those living on communal land were the poorest of the poor, and the very purpose of the land rights board was to provide real and meaningful support. The concession agreed to in the Bill was that for the first ten years communal land would not be ratable, and people would then have that opportunity to build wealth and to make their ownership and administration of land truly sustainable.
Mr Sulliman asked the Department to explain how exactly it planned to overcome the customary laws that were currently on the South African statute books, because they were somewhat skewed with regard to gender equality.
Dr Brocker responded that the only customary law that was actually contained in any South African statute book was the old Zulu Code. Customary law was actually part of the South African common law, or the unwritten law as it was known, as it was not enacted by any legislature but instead developed through social norms was recorded in text books if anywhere rather than in statutes. Customary law was however not the principal functional area of the Department, and it had endeavoured to limit any impact the Bill could have on the customs of South African people. Thus the South African common law, which was often regarded as white westernised law, with customary law, which was African traditional indigenous law. These were the same in the sense that they were both unwritten laws of this land.
The customary laws which the Bill impacted on were those that related to land ownership. The Bill has also constitutionalised the gender issue within customary law, as explained by Dr Sibanda. The Department was of the view that Clause 29(6) of the Constitution read with Section 9 of Constitution gave an absolute mandate to effect this. This was reinforced by Section 211 of the Constitution.
Ms B Thompson (ANC) [Kwazulu-Natal] asked whether the Bill was saying that the Ingonyama Trust land would be developed.
The Deputy Minister replied that the Ingonyama Trust was like a two-headed creature: one was looking towards the future and the other back to the past. At the moment the land was in a trust, and the Department would have to expropriate the land so that it could become the property of the State, and it would then be transferred to the community. Yet the route proposed by the Bill was slightly more intelligent. It provided that the Ingonyama Trust would remain in place but the moment the trust touched the land it would, in terms of the Bill, become a land rights board and would then be compelled by law to transfer ownership of that land to the community. The end result would be that the trust would have no property, and everything would become applicable to the Bill..
The Chair asked the Department to indicate its speculations as to the outcome of the retagging discussions.
The Deputy Minister responded that the Department was very sure that this was a Section 75 Bill. He was not sure what the presiding officers would decide. The State Law Advisors have also provided a full legal opinion on the matter.
Mr Surty stated that he preferred the inclusion of the word "prescribed" in Clause 20(1), which was the original wording proposed by the Department, so as to allow for some kind of regulation by the Director-General.
Secondly, he proposed that the phrase "endeavour to" in Clause 24(3)(d) be deleted.
The Deputy Minister replied to these two questions by stating that the Department had made many compromises in arriving at the current form of the Bill, and informed Members that many of the amendments proposed by Mr Surty were in fact identical to the Department's original wording of the provisions. He agreed with the substance of many of Mr Surty's proposals, but stated that the problem was that any amendments effected to the Bill at this stage would mean that the Bill would have to be returned to the National Assembly at this late stage of the process.
Mr Surty stated that the NCOP was fully within its powers to amend any legislation brought before it, and would do so in this case as well. It would not entertain political compromises, but instead sought to improve legislation. As this was a Section 75 Bill the National Assembly could decide to either accept or reject the NCOP's amendments. In fact 99% of the amendments proposed by the NCOP during 2003 were accepted by the National Assembly.
The meeting was adjourned.