Land Court Bill: public hearings day 1

Meeting report

Opening Remarks
The Chairperson made brief opening remarks and noted those in attendance.

Programme finalisation
The Chairperson stated that he had made a request that the meeting the following day, 02 March 2022, should finish by 2:30pm, as there was a sitting in Parliament. Some Members would be asking questions of the Ministers [NA Sitting: Oral Questions to select Ministers in the Pace and Security Cluster]. He asked if any Members had suggestions or questions on the programme.

Mr W Horn (DA) noted that the meeting the following day was scheduled to end close to the scheduled NA sitting time. He asked if it would be possible for that meeting to start 30 minutes earlier than scheduled, and if there might be a presenter willing to present in the earlier slot.

The Chairperson responded that it was a fair proposal.

Mr R Dyantyi (ANC) stated that he had no objection, as it was sensible suggestion.

The Chairperson asked that the Committee Secretary adjust the programme for the following day to end by 2:30pm.

The Committee Secretary stated that three of the organisations presenting the following day had not confirmed their attendance. Thus, the meeting might finish by 12:20pm the following day.

The Chairperson asked that the Committee Secretary confirm the organisations attendance for the following day by the end of the meeting that day.

Introductory Remarks to the Public Hearings
The Chairperson stated that the Committee would be hearing public submissions on the Land Court Bill. Each organisation would be given 30 minutes to present their submissions.

Presentation by the Congress of South African Trade Unions (COSATU)
Mr Mathew Parks, Parliamentary Coordinator, COSATU, presented COSATU’s submission on the Bill. COSATU welcomed and supported the Bill. The Federation urged the speedy passage of the Bill through Parliament, assenting by the President and implementation by government.

It was a progressive Bill that would assist in addressing the perennial delays in resolving thousands and thousands of land restitution cases. It would establish and formalise the necessary judicial expertise in land, in particular restitution and eviction cases. It provided the necessary administrative flexibility for the State to ensure that cases could be held in areas close to communities. It ensured that judges would be remunerated at the same levels as their peers to ensure that the necessary seniority, expertise and stability in judges were achieved. COSATU welcomed the proposed scope of the Bill to cover matters provided for in various land reform legislation, such as the Restitution of Land Rights, Land Reform, Upgrading of Land Tenure Rights, the Extension of Security of Tenure Acts amongst others.

COSATU proposed that the scope of the courts needed to be clarified. The wording in the Bill gave the impression that the Land Courts would focus on land restitution cases. 
The Bill was vague and ambiguous with regards to its role in cases involving the eviction of farm workers and labour tenants and their families from land they resided on and occupy.

Whilst COSATU supported the proposed establishment of the Land Courts, it was deeply concerned with the government’s ability to adequately resource them so that they were able to fully fulfil their legal mandate. Workers had painful experiences with the under resourcing of Labour Courts and as a consequence, workers could wait up to two years for their cases to be heard and concluded. Workers had seen government slash the funding for the CCMA resulting in it cutting services, retrenching Commissioners and cases taking three months and no longer one month to be heard. This occurred during deep economic recession and a global pandemic when millions of workers had been forced to work in dangerous conditions without adequate protections, having lost wages and pensions, and been retrenched.

(See COSATU’s presentation for further information)

Discussion
Mr Dyantyi asked what COSATU’s impression was on the way in which the Committee had attended to the three Gender Based Violence (GBV) Bills, specifically the efficiency in processing of the Bills. Was that the ‘quick’ passage COSATU was looking for? He asked what else COSATU had picked up from the three Bills?

Mr Horn noted that COSATU seemed to be of the view that the current format would allow for the land court to deal with all matters incidental to the use of land, such as evictions. He had not read it that way. COSATU had proposed that the Bill needed to state this in explicit terms and be updated to allow for that. The only way it could be brought into the jurisdiction of the land court, was if it was permissible for the Minister to, by way of notice, envisage to bring that into their area of jurisdiction. It would still be debatable if that was a lawful exercise. Would it not require many edits and expansions of the current Bill? Was COSATU satisfied that the right balance of equality before the law and the right to have disputes dealt with by the courts was settled in the Bill.

Given the Constitutional Court finding the day before, he asked that COSATU comment on the constitutionality of the Bill including punitive orders against land owners who did not want to subject themselves to the mediation clauses in the Bill, but would insist on formal court processes in order to deal with disputes. Would that satisfy the demand that all must be treated equally before the law?

Dr W Newhoudt-Druchen (ANC) noted that COSATU kept repeating the issue of evictions of farmworkers. That was a major concern, particularly in her constituency area in Swartland Municipality. Many farmworkers had lived on the land for many years – there were cases where land ownership changed hands, and farmworkers got evicted. This was because the new land owner did not always know who the farmworkers were and the sale of land agreement did not include provisions for the farmworkers. Would the Bill protect against further evictions? The farmworkers did not have resources for legal services and lived far from Legal Aid. Would the Bill strengthen the prevention of evictions from taking place? Would it ensure a greater understanding between farm owners and farmworkers on this issue?

Mr Parks stated that the work the Committee did in passing the three GBV Acts, was a good role model. Those Bills were very complex; the Committee did excellent comprehensive work in facilitating public participation and going through the nuts and bolts of it. COSATU was pleasantly surprised when the Committee was able to conclude that work by the end of September 2021 and they were signed it into effect in January 2022. There were many other bills which took years to be processed. After the Fifth Parliament about 19 bills had not been concluded in time and had to be revived in the Sixth Parliament. There were also cases where Parliament might pass a bill but it sat in the President’s office for six months to a year. COSATU had - at times - had to bring it to the attention of the President to sign the bills. There were cases when departments failed to gazette or fully gazette acts with all their provisions.

The work on this Bill needed to be completed in 2022 or at the latest 2023, given the approaching elections. COSATU was not specifically concerned about this Committee, as it had been very efficient in the past.

Pages 24 to 30 of the Bill, fleshed out the powers allocated to the courts from other legislation. It mentioned the updating of the Land Tenure Rights Act, the two Land Reform Acts, the Restitution of land Rights Act etc. This could be contained in the schedule. He welcomed proposals from Mr Horn on this as the same concern was being shared. COSATU had suggested that the Objectives of the Bill needed to specify it clearly. It currently gave the impression that it would focus on the issue of land claims, restitution etc. When one considered the schedule, it spoke about evictions and other land rights. Given that Magistrates looked at what was in black and white – the more clarity the better. COSATU thought the appropriate place to provide more clarity was in the Objectives of the Bill. It would simply emphasise what was already contained in the schedule.

He responded to the question about mediation. COSATU supported mediation and arbitration, as it benefitted farmworkers, who did not have access to lawyers. One wanted to resolve any dispute or conflict that might exist as quickly and amicably as possible as well as maintain the relationship between the two parties. Mediation and arbitration was a way to resolve this. This was similarly how labour rights issues were resolved, the first port of call was the Commission for Conciliation, Mediation and Arbitration (CCMA), which was cheap, quick and efficient. It retained the relationship between parties. It should be compulsory, thus COSATU supported the Bill’s provisions on that. 

The Bill spoke to the enhancement of the capacity of the State to provide knowledge and focus on land matters through the court. The challenge was around implementation. There were about 800 000 farmworkers. There was a need for government, trade unions, COSATU and colleagues in AgriSA to have a mass education awareness programme. It could include television and radio awareness campaigns to make people aware of their rights. Most farmworkers were not aware of their existing rights; such as not being allowed to be evicted at night or in bad weather etc. Legal Aid existed but was under huge financial pressure.

The Department of Agriculture, Land Reform and Rural Development (DALRRD) had setup a toll-free hotline for farmworkers to call when being evicted, but the hotline rarely worked and was often disconnected etc. it was meant to link farmworkers with one of the top law firms in the Country, government put aside money for the firm so as to represent farmworkers. Many farmworkers were not aware of the hotline and it subsequently did not work. That money had not been utilised. It was critical for farmers to embrace the progressive spirit of the law.

As a society, the land reform issue had been discussed a lot. Many had got distracted by the expropriation debate This Bill would be a critical tool in addressing the matter in a more holistic manner.

Presentation by Sakeliga
Mr Martin van Staden, Legal Fellow, Sakeliga, presented Sakeliga’s submission on the Bill to the Committee.

Sakeliga’s submission focused on clause 22 of the Bill. Clause 22(2) noted that it was competent for any party before the court to adduce “hearsay evidence” surrounding issues of dispossession. Moreover, expert evidence is also admissible to the court. The Bill circumvented the normal admissibility requirements for the admission of hearsay evidence, as stipulated by section 3 of the Law of Evidence Amendment Act, 1988. There was no apparent reason why the normal rules surrounding the admission of hearsay
evidence should not apply in land claim cases. In the Bill, the landowner would be expected to put up a possibly costly defence in court against a claim based on hearsay evidence that had not been properly tested by the court, as the case would have been in any other civil proceeding. Sakeliga cautioned that such a legal treatment might subvert standing legal tradition and result in unequal treatment under the law. It was paramount to a sound constitutional order that both claimants and defendants enjoy equal protection and equal safeguards under law.

Sakeliga recommended that clauses 22(2) and 22(3) be amended with strengthened safeguard provisions to allow for early dismissal of cases where a claimant was unable to present prima facie evidence of past ownership of an acceptable standard. The provisions of the Bill that allowed for the admissibility of hearsay evidence needed to be strengthened in order to require that hearsay evidence was properly tested before being admitted to the court in proceedings of land claims. Sakeliga recommended that the clauses should be redrafted to afford equal protection under law for both claimants and owners of property alike.

(See Sakeliga’s submission for further information).

Discussion
Mr Horn stated that he had taken note of the arguments made by Sakeliga, particularly the Law of Evidence Amendment Act of 1988. A legislative provision to allow for the introduction of hearsay evidence into evidence would not necessarily change the ultimate way with which a court dealt with hearsay evidence. In the presentation, Sakeliga referred to the probative value of evidence. The counter-argument was that if hearsay evidence was permitted into evidence it did not necessarily mean that a court would be forced to give undue weight or reliance on this evidence. He suggested that the ordinary rules that applied to determine the probative value of such hearsay evidence would be left untouched through those provisions. He asked for Sakeliga’s view on this.

Mr van Staden stated that Mr Horn was basically correct, clause 22(3) explicitly stated that the court needed to decide when such evidence was presented, what level of weight to attach to the evidence. It was probable in South Africa’s legal tradition that hearsay evidence would be considered with somewhat less weight. Sakeliga was concerned that the formula stated in the Law of Evidence Amendment Act had not been reproduced in the Bill. In fact, the Land Court Bill was quite generous; it allowed the land court to admit hearsay evidence – this took quite a bit of the guidance away from the Law of Evidence Amendment Act of 1988. It was highly likely that early on in the land court’s functioning, it would set precedent where it would attach less weight to hearsay evidence, however that was not guaranteed. Sakeliga was suggesting that it should be somewhat guaranteed, that hearsay evidence be considered with less weight than other evidence. He was not too concerned, he did not think the land court would lead to the ‘total destruction of private property rights’ – that was unlikely – but as one sat in the legislative process, where one could make inadequate provisions better, without making the Act too burdensome, that opportunity should be taken. He however agreed with Mr Horn, that there were enough legal principles to safeguard against reckless admittance of hearsay evidence. He thought more could be done to guarantee that going forward.

Presentation by the Legal Reources Centre (LRC)
Ms Cecile van Schalkwyk, Junior Attorney at LRC’s Makhanda Regional Office, presented LRC’s submission on the Land Court Bill.

The LRC put forward that it would be beneficial to have permanent judges that specialised in land issues. Clause 8(4) of the Bill stated that judges must be judges of the High Court.
There could be other suitable practitioners with experience in land rights matters. If it were limited to High Court judges, it could be difficult to find current judges that had expertise in land matters.

Assessors should be required to have expertise or experience related to the claim they were called to adjudicate. Assessors should have specialist knowledge/understanding of the facts before the court (could include the history/dynamics of a community).

If a party could not pay for legal representation, the Bill stated that the matter could be referred to Legal Aid if a ‘substantial injustice’ would otherwise occur. It would be difficult to determine ‘substantial injustice.’ Legal Aid was often overburdened and under-resourced. It was unclear how this would interact with the Land Rights Management Facility (which was sometimes exploited by legal representatives).

There were multiple benefits to mediation. Factors to be taken into account when deciding on mediators included the need to have knowledge and skills in the context of land disputes, be proficient in the language spoken by the parties and have some understanding of the history of land dispossession in SA.

(See LRC’s presentation for further information).

Discussion
Mr Horn stated that paragraph 31 of the presentation, contained a suggestion that the Bill be amended to allow for referral by the court, in the case of corruption, to the National Prosecuting Authority (NPA). He asked that the LRC unpack that further, in light of the important principle of separation of powers. He suggested that this would not be a constitutional avenue available to Parliament. Did the LRC have alternative proposals in order to effectively ramp-up the way the Country dealt with corruption and alleged corruption.

He noted the comments about tagging in the written submission. If tagging needed to be done in terms of Section 76 of the Constitution and if Parliament failed to address that issue, what would be the ultimate result or consequence of such a decision?

He asked for further comment on the LRCs proposal that assessors with specific knowledge of geographical history and context be involved. Currently social sciences and scientists locally and internationally, rarely found themselves in a position where they could be seen as ‘neutral, impartial or objective,’ as required by the law. The LRC was critical of the fact that assessors ordinarily turned out to be lawyers by training, would the LRC not agree that the difficulty in following their suggestion, was the inherent bias? He asked if mediators should be truly independent. Why did the LRC have a different view about assessors?

He noted that the LRC’s submission suggested that there should be a Land Court of Appeal. The case was made that this would allow for an appeal court with specific expertise. The counter-argument to this, was that it would create a subsection of the law, around land redistribution/tenure, while there would be more benefit to see this as part of one legal system of law in the country. There was the Labour Court of Appeal. There was a clear distinction in how labour relations had unfolded in the Country. There was the CCMA, and specific dedicated laws and provisions in respect of bargaining and negotiation to ensure that disputes about land and land use were looked at by the Supreme Court of Appeal and the Constitutional Court would enrich, not only the body of law, but would provide the benefit of fairness by involving both of the country’s two highest courts in dealing with such matters. This rather than reserving it for a ‘court of appeal’ that might be fed from the court of first instance, which was not an ideal situation. He asked for LRC’s comments on this.

Adv G Breytenbach (DA) asked about the referrals to NPA by the court. She assumed that the intention was that the cases were referred for consideration and possibly investigation by the South African Police Services (SAPS) and NPA and not an instruction to prosecute. She asked for clarity on this. She noted the extra work this would cause the Legal Aid Board of South Africa, which was cash-strapped and under-resourced currently. Was there a suggestion about how to deal with that issue, if Legal Aid received extra work?

The Chairperson stated that the LRC had identified the DALRRD and the Commission on Restitution of Land Rights (CRL) as the main causes of delays in land restitution. Issues of corruption were identified. Had the LRC tried to raise these matters with the Portfolio Committee on Agriculture, Land Reform and Rural Development responsible for this? Did the LRC think that there would be enough of a case load to justify having an appeal division, other than the Supreme Court of Appeal? Had any research been done on this to ensure that there would be enough cases to sustain a separate appeals court?

Ms van Schalkwyk addressed the question about referrals of matters to the NPA first. Adv Breytenbach was correct in stating that the LRC was not suggesting that the court instruct the NPA to prosecute or look into specific matters. The LRC was simply suggesting that there needed to be some kind of power to refer it for consideration. This was not uncommon – it happened all the time with cases. For example, an order or judgement might be referred to the President or to the Master’s Office. It would not be an unprecedented power that courts could exercise. In that instance, it would not violate the separation of powers, as it would just be for consideration and not an instruction.

She responded to the questions about corruption and remarked that if one knew how to deal with this issue, it would have been dealt with already. There were a lot of problems of accountability in various institutions which needed to be addressed. There needed to be much more effort on the side of the NPA, when matters were referred to it or opened for consideration. There needed be work coming from government’s side to ensure that the internal procedures that happened within the CRL and DALRRD were strengthened to ensure that corruption did not take place. It happened in the context of court cases – where there were issues of corruption that had arisen. The courts could only raise that – it was difficult for the courts to step-in to address corruption unless the matters were brought before the court for criminal consideration.

The entire Bill would likely be set aside if it was not tagged correctly.

The LRC had seen that in cases where mediation or arbitration had occurred, it was important for the mediator or arbitrator to have a basic understanding of the communities in which the claims arose. This was the reason it was proposed that assessors have knowledge of the geography, language and history of the area where the dispute occurred. The reality was that South Africa’s land issues were very complex. When these issues were discussed, it was good for the person mediating, to have an understanding of the language being spoken, it made it more comfortable for all parties and allowed for easy expression. It was important for the person mediating the process to understand the dynamics and history in communities.

The notion that one could come to a situation with ‘no sense of bias or influence’ was a bit ‘preposterous.’ Everyone was influenced by their own experiences – this was the case with judges. Currently, no one came to such situations completely impartial. The social sciences assisted people to be able to deal with whatever bias or impartiality one had, so as to understand different opinions and concepts.

If the jurisdiction of the court was expanded, as proposed in LRC’s submissions, there would be a need for an appeals court and there would be enough cases to be able to satisfy the need for an appeals court. The LRC had not done independent research on the matter. Many of the LRC’s cases were referred to the Supreme Court of Appeal and ultimately the Constitutional Court. It would be good if there was a specific court that was equipped to deal with these issues. Cases would still be appealed to the Constitutional Court – that avenue would still be available. The land appeals court would be bound by demands of fairness as the Supreme Court of Appeals was. The two institutions would both be bound by the constitutional provisions of the country – in terms of fairness. A land appeals court with specific expertise and judges, who knew and understood land issues in the country, could only benefit dispute resolution of land issues in South Africa.

The LRC was aware of Legal Aid’s capacity issues. As it stood, Legal Aid struggled to meet its obligations toward its members without the additional burden of land issues. Legal Aid needed to be capacitated. There was sometimes a misunderstanding about how difficult, time-consuming and resource intensive land issues could be. The LRC had been involved in the Fish River Sun property to Mazazini Case for nearly 12 years. The amount of resources, time and effort that had gone into that matter was enormous. If it was the intention of the legislature to refer matters to Legal Aid to deal with – Legal Aid would require an enormous amount of capacity.

There were positive aspects of the Land Rights Management Facility; the LRC had been appointed to act on behalf of certain communities and it had been successful. There were issues with the Land Rights Management Facility that needed to be looked at. The panel needed to be restructured and the issues of corruption needed to be dealt with. These issues needed to be addressed, and it needed to be funded, so that people who needed representation could access it.

Issues of corruption had been raised with the Portfolio Committee on Agriculture, as well as in various court cases. There was a judgement that specifically dealt with the Commission to adjudicate the old land claims before making provisions for new land claims to be instituted. The Commission had experienced numerous delays. The Department and Commission were aware of these proceedings. These issues had certainly been raised.

Ms Ektaa Deochand, Attorney in the Land Programme at LRC, responded further to the questions about the proposed land court of appeal and if it was necessary. The LRC had not done independent research, however the High Level Panel Report, released in 2017, stated that it would take 709 years for the CRL to catch-up on all outstanding land claims. That showed that there was a need for specialist courts to expedite such issues. On the issue of accountability for unscrupulous attorneys which were appointed by the Land Rights Management Facility – where public funds were wasted – that money needed to be recovered and deviated back to attorneys or Legal Aid who would use those funds for proper purposes.

Adv S Swart (ACDP) noted that the High Level Panel Report contained a number of interesting chapters – he appreciated that the LRC had referred to it. Would the Land Court of Appeal take over the jurisdiction of the Supreme Court of Appeal? If that was the case, would it not require a constitutional amendment of Section 168 of the Constitution? Section 168 of the Constitution specifically stated the jurisdiction of the Supreme Court of Appeal (SCA), for all matters of appeal, except in instances of labour or competition matters. He requested clarity on that.

Ms van Schalkwyk stated that there was a lot of good stuff that came out of the High Level Panel Report that needed to be considered, specifically by the Committee, when trying to redraft the Bill. In her view, not enough had been made out of the High Level Panel Report recommendations.

It was the LRC’s understanding that the Land Court of Appeals would replace the Supreme Court of Appeal. It would be on a similar level to the Labour Appeal Court. If that was the intention, as it was read, then Adv Swart was correct that it would likely require an amendment to the Constitution to make provision for it.

The Chairperson stated that it would be important for Mr Henk du Preez, State Law Advisor in the Department of Justice, to come back to the Committee as soon as possible about the response of the Department on the tagging issue. If it was not properly managed it could be fatal to the whole legislative process.

Presentation by the South African Institute of Race Relations (IRR)
Dr Anthea Jeffery, Head of Special Research, IRR, presented the IRR’s submission on the Bill to the Committee.

The submission highlighted issues around the status, composition, jurisdiction and appointment of the court as well as the appointment of assessors. Matters around mediation and arbitration were highlighted and the ramifications of the Bill.

The Bill was based on the (short-sighted) view that major land redistribution of this kind would suffice to ‘redress the results of past discrimination and facilitate land justice’. But this ignored the many reasons why land reform had failed – and why a greater volume of land transfers would do little to help the disadvantaged. In rural areas, as the IRR had pointed out in its Ipulazi policy proposal, the success of land reform lay not in increasing the scale and speed of land transfers – as the Bill sought to facilitate – but rather in increasing the number of successful commercial farmers. Disadvantaged farmers that wanted to expand into large-scale production must be helped to do so. However, no one should be encouraged to believe that farming was an easy option, for agriculture was an exceptionally high-risk sector – and all the more so in a water-stressed country such as South Africa.

South Africa already had a specialist court to deal with the most important issues regarding land. This was the Land Claims Court, which was established under the Restitution of Land Rights Act of 1994 (the 1994 Act) to resolve disputes over land restitution claims submitted under that statute.

According to the Constitution’s founding provisions, ‘the supremacy of the rule of law’ was one of the key founding values underpinning South Africa’s democratic order. The founding provisions also stated that ‘the Constitution was the supreme law of the Republic’, that ‘law or conduct inconsistent with it was invalid’ and that ‘the obligations imposed on it must be fulfilled. All provisions in the Land Court Bill that undermined the rule of law must therefore be excised before the Bill could lawfully be enacted into law.

(See IRR’s submission for further information).

Discussion
Mr Horn asked that the clauses in the Bill be identified that were unconstitutional. What was the IRR’s comment on the provisions around arbitration and mediation? He asked what the ability of the Court would be to refer or subject a matter to arbitration and mediation in awarding costs? Could this be balanced with Section 34 of the Constitution? It seemed as if the powers around forced mediation and arbitration had the potential for punitive costs. In the event that it did not materialise, on the basis of the refusal of an involved party to embark on that route, it could be inconsistent with Section 34 of the Constitution.

It was interesting to note that IRR was of the view that the two assessors could ultimately form an exclusionary majority on the bench, in respect of disputed facts. There was a previous presentation that advocated for the criteria for assessors to be appointed, to include expertise about the facts that would land in front of the courts.

If one considered the preamble of the Bill, the IRR was correct to state that the Bill was to operate in tandem with the Expropriation Bill, currently before Parliament, if adopted into law. He asked for her comment on the provisions around the ability of the proposed land court to deal with a review of the decision, of an expropriating authority, to expropriate. Emphasis was put on the courts involvement in the determination of compensation to be paid. He was worried, given that this court would be a creature of statute, that there might be a failure to deal with the right to embark on a process of judicial review of the decision to expropriate. The only powers he had seen in the Bill, to the land court, was the ability to give appropriate relief, which was fairly standard in courts. One might argue that the inherent ability of courts to always give appropriate relief must be limited to situations or scenarios where the dictates of fairness would require the courts to give effect, through judgements and orders, to the findings they made. That could surely not be used to allow the land courts to deal with those specific reviews.

Dr Jeffery responded to the question about the clauses that were unconstitutional. She stated that she had spoken about the clauses that were unconstitutional both in the oral submission and in IRR’s written submission. She would provide a copy of the oral presentation to the Committee Secretary. In essence, it was around the idea of a specialist court to do the government’s bidding, the assessors procedures, the evidence and the compulsory arbitration and mediation procedures.

The right of access to courts and the compulsory arbitration or mediation procedures could not be balanced – it was an area where the Bill was unconstitutional. Everybody under Section 34 of the Constitution had the right to settle a dispute via an application under the law to be heard by an independent and impartial court. Under the Land Court Bill, one would effectively have to either go for compulsory arbitration or run the risk of a punitive cost order. That seemed to be an important limitation on the right to access court, which was not justifiable in all circumstances.

The assessors could be the majority of the court, as the Land Court Bill put it, once sworn in, they became members of the court. There would be two assessors, who would be members of the court, and the presiding judge. A total of three people. The majority of the members of the court would make decisions on fact. Quite clearly assessors could overrule the judge on matters of fact and that was an extraordinary provision to put into the Bill. Assessors by definition should not have the institutional independence that judges had. Assessors would likely not have the individual independence and impartiality. Assessors were unlikely to have sufficient number of years on the bench, or are able to identify potential falsehoods, assess credibility, evaluate probabilities etc. The identification of facts, adjudicating and coming to a conclusion on the facts, was a complex process. It should not be left to assessors who lacked the criteria that judges had, which ensured that judges were equipped to do a proper job. There was nothing in the Bill, as it stood, about what expertise assessors should have. There was a risk that the expertise would be one-sided. There might be land activists, who may have little regard for the importance of the essential importance of property rights in boosting the individual prosperity of all people.

She noted the question about the ability of the land court to deal with matters of compensation payable under expropriation and see those as questions of fact to be decided by the assessors. One would also be able to look at the validity of the expropriation, if the decision to expropriate complied with the provisions of Section 25 of the Constitution, was it really in the public interest or for public purpose? Those kinds of decisions, according to the Expropriation Bill, should be raised in a court. The land court could be asked to adjudicate on the validity of the expropriation – a matter of law to be decided by a judge. In many instances the key questions would be, what should the amount of compensation be and would it be difficult for assessors to adequately weigh all the facts, when deciding if the Expropriation Bill’s nil compensation criteria had been met. The number of land invasions was well-known, would that be sufficient in the mind of an assessor, where control of the land was lost. Although the land court might deal with issues of validity, the issues would likely be around compensation. The most important guarantee of fairness in the Expropriation Bill would be to ensure that no expropriation could proceed before it had been before a court of law, with a suitably independent judge to determine validity and compensation. After that, expropriation should only be able to proceed.

Presentation by the National House of Traditional and Khoisan Leaders
Ms Nkosikazi Mhlauli, Chairperson, National House of Traditional and Khoisan Leaders, made brief introductory remarks.

Ms Nkosikazi Ngonyama, Member, National House of Traditional and Khoisan Leaders, presented the oral submission to the Committee.

22 Million people were grant dependent, there were issues of property becoming collateral due to the situation. The National House was calling for a proper mechanism to address the issue of communal land registration for the rural population not individuals.

Clause 6 of the Bill was highlighted and the National House supported that the court proceedings be held in communities in which the disputes took place, particularly in rural communities. The National House suggested that the word ‘may’ be replaced with the word ‘must’ to compel the court to hold its sitting for the hearing of any matter at a place elsewhere at the seat of the court.

Clause 12 of the Bill dealt with the appointment of assessors. There were people in rural communities who had experience and knowledge in matters of dispossession of land rights within the community. It was recommended that these people with historical facts should be recommended for appointment.

The National House agreed with the mediation and arbitration approach, so that matters could be settled outside of court. This reduced the load on the courts and did exclude people who could not afford to go to court.

(See National House of Traditional and Khoisan Leaders submission for further information).

Discussion

Members of the Committee asked no questions about the submission given by the National House of Traditional and Khoisan Leaders

The Chairperson spoke another language [Timestamp: 2:51:44]. He stated that all the recommendations and inputs would be considered when the Committee dealt with the Bill on a clause-by-clause basis. The Department was in attendance to listen to the issues being raised. The Department would come back to the Committee with responses to some of the specific issues raised, after that the Committee would deliberate. He did not anticipate any delays in the processing of the Bill.

Presentation by the Agricultural Business Chamber (Agbiz)
Ms Annelize Crosby, Head of Legal Intelligence, Agbiz, presented Agbiz’s submission on the Bill.

Agbiz supported the Bill as it was vital to capacitate the judiciary with sufficient, specialist judges to adjudicate on land matters. Access to justice was a vital component of land reform. The High-Level Panel on the Assessment of Key Legislation had highlighted the limited capacity of the Land Claims Court as a bottleneck in the land restitution process in particular. Agbiz supported dedicated legislation that set out the powers, composition and jurisdiction of the Court. Agbiz’s comments were intended to bolster the Bill and ensure an efficient and effective Land Court.

The only concern Agbiz harboured was if the current or expected caseload would justify the costs to create a specialist court of appeal? If one has regard to the number of cases that are currently taken on appeal from the Land Claims Court, then it seemed difficult to justify the expense. As an alternative, the legislature could consider expanding the composition of the Land Court to enable a full bench of the same court to sit as a court of appeal.

Clause 13(3) permitted the Judge President to refer any matter set down for hearing to mediation or arbitration. Agbiz fully support mediation. Arbitration was however fundamentally different. Where mediation required the parties to reach agreement, arbitration was a quasi-judicial process where an independent third party made a ruling. Arbitration was by implication a limitation on either party’s right to have a dispute resolved by a court as provided for by Section 34 of the Constitution.

Clause 22 dealt with the admissibility of evidence. Exceptions to the generally accepted laws of evidence would likewise not be applicable in all disputes before the court. For instance, hearsay evidence was permitted under the Restitution Act but should not be permitted when the facts at hand related to the Extension of Security of Tenure Act (ESTA), the Ingonyama Trust or any other statute that did not expressly permit such evidence to be heard. To provide certainty to litigants, Agbiz proposed that clause 22(1) be reworded to limit exceptions to those contained in specific legislation such as the Restitution Act.

Agbiz supported the introduction of mediation. There may however be some omissions in the procedure set out in clauses 2 to 3 of the Bill. For instance, the clause did not set out who should appoint the mediator nor whether the mediator was required to have specialist knowledge, expertise or experience in land rights matters. Furthermore, the Bill failed to take cognisance of the mediation procedures set out in the ESTA Amendment Act. The ESTA Amendment Act created new institutions known as the Land Rights Management Board and local Land Rights Management Committees. The legislation also set out a procedure whereby these institutions needed to attempt to mediate tenure conflicts before an eviction order was considered.

(See Agbiz’s presentation for further information).

Discussion
Mr Horn asked about the criteria that should apply for people to qualify to be appointed as mediators or arbitrators in the Bill. Would the Bill preclude judges that were not destined to deal with a specific matter to be seized with the arbitration? If not, was that something that should be considered when the Bill was first published? From the public participation process, he got the sense that people, other than the judges, would be tasked with dealing with arbitration. Would Agbiz be interested in a follow-up written presentation to assist with criteria, given that Agbiz seemed to be of the opinion that this should be more carefully regulated from the outset?

Ms Crosby stated that Agbiz was not in favour of arbitration. Agbiz would be interested in coming up with written criteria, if the Committee would allow it. She was sure some of the other organisations would also welcome that opportunity. A mediator would need to be someone skilled in mediation, somebody who had a background in land reform. Land reform was broad. Someone who specialised in restitution would not necessarily be the right mediator to mediate a tenure dispute under the ESTA or the Communal Land Rights Act etc. There needed to be land specialists with mediation experience and legal backgrounds. In certain instances, one might need people with valuation backgrounds, if disputes were around issues of compensation. One was likely looking at a range of specialists required. Years before there was the Independent Mediation Service of South Africa (IMSSA), where specialised mediators looked at land disputes and were successful in settling them.

She responded to the question about the Bill precluding judges from acting as arbitrators - she was not sure if this was a reference to clause 8 of the Bill. That would be something that Agbiz would need to get back to the Committee on.

Closing Remarks
The Chairperson stated that this brought the meeting to an end. He confirmed the programme for the following day.

The Committee Secretary confirmed that only five organisations had confirmed their attendance for the meeting the next day, that meeting would likely finish by 13:10pm. 

The Chairperson stated that the meeting would start at 8:55am the next day. He asked that Adv Breytenbach and Mr Dyantyi present the programme and dates the following week for the meeting with Judge Edwin Cameron and others and workshops. An oversight programme needed to be discussed for the year. 

Adv Breytenbach said that the following week would be fine. She asked which day would be suitable.

The Chairperson suggested the following Tuesday 08 March 2022.

The meeting was adjourned.