Land Court Bill: public hearings day 2

Meeting report

Opening Remarks

The Chairperson welcomed Members to the meeting. He welcomed all organisations making oral submissions, and officials from the Department of Justice and Constitutional Development.

Mr Henk du Preez, State Law Advisor, Department of Justice and Constitutional Development, apologised saying that he would probably be disconnected from the meeting because the weather was not good and the Department was experiencing technical difficulties.

The Chairperson asked that the Department communicate with the Secretariat since it would be difficult to proceed with the hearings without them.

Mr Mak Mokulubete, State Law Advisor, said he would continue taking notes if Mr du Preez was disconnected.

Mr du Preez said the Department had received the written submissions and was busy working on them. If additional comments were to be made which were not in the written submission, he asked that the presenters notify the Secretariat, so that the Department would take note of them. The Department was keen on getting through the Bill.  It was fully aware of the comments, particularly those made the previous day. All comments had been taken note of.

The Chairperson invited Corruption Watch to make their presentation.

Submission by Corruption Watch

Ms Mashudu Masutha, Legal Researcher, Corruption Watch, presented the oral submission from Corruption Watch.

Corruption Watch welcomed the creation of a specialist Land Court of Appeal insofar as it would facilitate the development of land-specific jurisprudence that could be relied upon as precedent. Corruption Watch submitted that this had the potential to foster greater uniformity, consistency and quality in court decisions on land-reform matters, which in turn should promote expediency in the adjudication process.

Corruption Watch was concerned that the Bill affords the Land Court and Land Court of Appeal greater jurisdiction than that presently enjoyed by the Land Claims Court without any clarity regarding the change of processes and the monitoring required to ensure transparency to those most affected.

The organisation welcomed a permanent sitting of judges dedicated to land-related matters as that would result in stronger judicial oversight, reduce corruption and improve settlement agreements that reflect equitable and just compensatory outcomes. It supported the use of non-judicial processes in resolving land matters. It believed this would provide a cheaper and quicker alternative for cases to be decided outside of the usual court process which tends to be more costly and adversarial, therefore disadvantageous to vulnerable individuals and communities.

However, Corruption Watch raised a concern on the use of the non-judicial powers not being sufficiently clear to afford consistent application. While it accepted that each matter must be taken on its merits to decide on mediation and arbitration rather than litigation, it submitted that the Bill must include guiding principles within the schedule, with a simple set of criteria that unpacks which matters would qualify for mediation and/or arbitration. This would assist to create uniformity across all sitting courts and ensure that claimants are provided with sufficient and informed options on how to resolve their matter and advocate for their rights.

Given that the Bill creates adjudication authority over all land matters, Corruption Watch submitted that the Committee should consider the overlaps that will result from implementation of this Bill and traditional governance laws, and that the Bill must include provisions that ensure jurisprudential certainty and/or explicitly state a hierarchy of processes.

Discussion

Mr W Horn (DA) thanked Corruption Watch for its presentation. He asked about paragraph 23 of the written submission, which asked Members to consider schedule guiding principles of the Bill, which would contain a simple set of criteria for dealing with a matter and when it would be suitable for mediation and arbitration. Did Corruption Watch have a more concrete proposal? What criteria would it propose to be followed? He asked about comments around the parallel process, through the traditional governance and court systems. Could there be other fora through which land matters could be dealt with? Would Corruption Watch not agree that should the Bill be adopted and enacted as law, it would centralise and reserve the rights of adjudication for the Court of first instance in respect of all matters brought? Would that not effectively mean that should Traditional Courts be formalised through legislation, they would then be precluded from dealing with matters based on the different pieces of legislation mentioned in the schedule to this Bill? 

Adv G Breytenbach (DA) added to the question by Mr Horn on matters referred for mediation and the suggestion that a set of categories be advanced. Would this not interfere with judicial discretion which would be territory that Members would want to avoid?

Mr R Dyantyi (ANC) said he was largely covered by Mr Horn’s questions. He appreciated that Corruption Watch was not only interested in the symptoms of corruption, but also the entire process of policymaking and legislation. In the presentation, Corruption Watch asked Members to consider socio-economic rights. This comment was broad. What specific things does Corruption Watch want Members to consider?

Responses for Corruption Watch

Ms Masutha said, in speaking of the guiding principles or creation of uniformity through the use of non-judicial powers, would be done in various ways. It could be done by putting a set amount on settlement disputes. A cap could be set for when the non-judicial powers could be used. It could be the size of the land in question, the dynamics of the community in question, the monetary aspect or the number of parties. It was about being alive to the purpose of the non-judicial powers to solve the disputes so that it did not lead to litigation within the negotiating space. Corruption Watch encouraged the Committee to consider placing an avenue where there would be predictability afforded to communities on the non-judicial use.

On the parallel process and the traditional discretion that may result, she said the Committee would be aware of the jurisprudence around the application of customary law. Customary law is of equal value, and its application does not depend on this Bill or any other Bill. The Constitutional Court has said where there are structures within traditional communities to resolve disputes in line with the Constitution; those structures must be used to resolve the disputes. The Land Court Bill may put in place that it is the Court of first instance; however, every community already has a traditional structure based on customary law. The discretion was on the community to use that structure. As indicated in the written submission, the result of that would be two processes designed to resolve land disputes. While acknowledging that she was aware that some society organisations were challenging its constitutionality, the Traditional Courts and Leadership Act in its current formulation enabled Traditional Councils and Chiefs to make land-related decisions on behalf of the community. This process was recognised in codified forms and recognised within the traditional governing space. Since it was inevitable that the two processes would be there, the call in the submission was that the Committee needed to be aware of existing overlap codified forms of governance in resolving disputes in the Traditional Courts and Leadership Act and the pending Traditional Courts Bill.  

On the interest of Corruption Watch in the Bill, Ms Masutha said the organisation had various modalities in its work. On one hand, it was investigative in nature and the organisation received reports from the public to investigate them. The reports also allowed the organisation to identify sectors where there could be vulnerabilities. The land sector was one of key vulnerable sectors, because of the rate of corruption and how it systematically affects the economic mobility of land right holders, especially those who do not have security. The interest of Corruption Watch in policy formulation came from the reality of the need to mitigate this corruption.

Access to justice was a privilege for many rural communities especially women who were holders of land rights but were unable to express those rights because of issues of transparency, accountability or economic mobility, or having a say on decisions that affected them. As such, on the proposal to the Committee about considering socio-economic rights, the proposal from Corruption Watch was that since the purpose of the Bill was to ensure access to justice, the Bill needed as far as possible, to be alive and cater to the vulnerabilities of communities. Some considerations already mentioned in the law include language translations and flexibility of courts.  

The Chairperson thanked Corruption Watch for its input and effort to contribute to making the Bill better. The issues raised would be considered when the Committee received responses from the Department and deliberated on individual clauses in the Bill.

Submission by Natural Justice Lawyers

Mr Alois Mugadza, Programme Officer, Natural Justice Lawyers, presented an oral submission on the Bill.

Natural Justice Lawyers noted that there were many unresolved overlapping and conflicting claims, which contributed to ethnic and tribal tension, and xenophobic attitudes. Because of extremely poor information systems, overlapping claims are even discovered after claims to the same land have been “settled”. As a result, claimants cannot develop the land and often have to hire their own lawyers to fight the case, which is a significant financial burden. Unable to adequately process claims despite their legal powers, the Commission has referred many cases to court. The Land Claims Court is overwhelmed with cases regarding the validity of claims, the nature of just and equitable compensation and feasibility. Despite the enormity of the task, there are no permanent judges of the Land Claims Court.

Natural Justice Lawyers made the following recommendations:

• Revision of Clause 4 of the Composition Act to read as follows: The phrase 'as many other judges as may be' is much more permissive in the Bill. Natural Justice opposes this because it is too broad and will most likely conflict with the provisions, which will then be subject to any interpretation. Due to the lack of a specific minimum number of judges, the current Land Courts Bill was easily diverted from dealing with the initial mandate to dealing with farm evictions. Without consequence, Land Claims Court went from having five judges to having only acting judges over the years.
• In keeping with the Land Court Bill, which already advocates for conflict resolution and mediation, the proposed functional approach in the Expropriation Bill of 2021 should be on negotiation before litigation.
• There had been widespread criticism that the Land Claims Court has produced ‘anti-poor outcomes,' and as a result, trust in the Court has eroded, calling the Court's role into question. The current proposals were likely to isolate this specialist Court even further from relevant contextual expertise. This was not recommended, and no justification was provided in the Bill's memorandum. It is unclear whether the judges would sit on both the High Court and the Land Claims Court. This dual appointment could mean that, unlike the Labour Court, it will work on a variety of cases rather than focusing solely on land law. Furthermore, if all Land Court judges are not to be High Court judges, Natural Justice proposed that all sections of the Bill dealing with their employment and remuneration be revisited to be explicit. This broadening of jurisdictional authority, which includes a wide range of non-judicial powers such as mediation, may reduce instances of unnecessary or frivolous litigation. It is not stated explicitly in the Bill whether the judges are to act as mediators in disputes.
• Rethinking the Bill's provisions on the composition of the Land Claims Court, as well as giving more thought to how the Commission and the Land Claims Court can better coordinate their efforts.

Discussion

Mr Horn thanked Natural Justice for the presentation. He asked about the submission on the potential role of the judiciary in the Bill. It was interesting that the understanding of Natural Justice Lawyers was in line with what was presented in the Bill by the Minister of Justice and the Minister of Land Reform. This was that there was potential for members of the Judiciary not only to adjudicate matters but be involved with mediation and arbitration. Was Natural Justice Lawyers of the opinion that the involvement of judges in non-judicial matters and mediation would be permissible within the Constitutional framework? The presentation mentioned that it was permissible in Germany on the condition that the same judge does not adjudicate the matter as part of the case to follow. The previous day, the Committee received a presentation that said forced arbitration of matters could threaten the constitutional principle that any person was entitled to have their disputes settled by the Courts. He said he was still wrestling with the idea of when a matter was referred for arbitration, and the arbitrator was one of the available judges from the pool. Would that satisfy the demands of Section 34? Would the arbitration be a more speedy process? Could this then satisfy the requirements of a dispute being settled before a court?

Responses from Natural Justice Lawyers

Mr Mugadza said it was important to have judges with the required experience since cases were lagging in the Land Commission. It was permissible in the Constitution to have judges sitting in the arbitration and mediation. This would help in broadening the expertise since Land Law was a much specialised field which would require everyone with all hands on deck. There was, however, a conflict of interest where a judge was in the mediation and arbitration of the process, and they would then be excused from sitting in adjudication of the case. On forced arbitration, he said the thinking was not that going for arbitration was taking the right of the person to go to Court should they be unsatisfied with the process. Where clients are unsatisfied in communities, they would still be able to approach the Human Rights Commission. There was also a broader case made for Legal Aid to provide representation for communities that would not afford the means of going for litigation. More communities would feel they have more power in arbitration and mediation since they would sit to talk about their feelings to the judge. When it gets to litigation, it would then become a problem. However, it remains an avenue to be explored. On comments about the public participating in the mediation process, he said it needed to be clarified in the Bill, as it would be a leeway to be used. In the clarification of requirements, the individuals would need to have expertise in Land Rights, Property Rights, and Land Tenure Rights to avoid lagging cases. The process needed to be more fluid and efficient than before. The Bill was very welcome but the implementation on the ground needed to be more efficient by many experts putting all hands on deck.  

The Chairperson thanked Natural Justice Lawyers for the contributions which would be considered as the Committee continued to process the Bill.  

Submission by Legal Academics

Prof Elmien du Plessis, Professor of Law, North West University, said the academics made the submissions in their individual capacities as those who worked in the context of land. The group also included a former Acting Judge in the Land Claims Court. She said she had invited Fourth Year Land Law students to participate online but had noticed that the meeting was not being streamed. She had taken it as an opportunity to teach the next generation the importance of participating in democratic processes. While the written submission was thoroughly detailed and theoretical as coming from academics, she said it was necessary for certain things to be included.

The legal academics supported the appointment of permanent judges specialising in Land Rights matters to develop jurisprudence and apply legislation in a manner where justice could be accessible to vulnerable people through Legal Aid and alternative dispute resolution methods.

They were concerned that a system was introduced to assess the impact of new policy initiatives, laws, and regulations, but such were not published with the Bill. They proposed Equality and Social Justice Impact Ascertaining in the Bill to ensure issues were addressed.

The academics found that the jurisdiction was not very clear. It was not restricted to the undefined concept of land reforms. They proposed inclusion of tenure security and redistribution in the auspices of the court. They were concerned about the lack of powers of the court to refer matters of corruption to the National Prosecution Authority (NPA) with interdicts to follow up. Corruption was a big problem in land reform, and any serious effort to ensure that land reform happens would be undermined if the Court did not have that power. A suggestion was made that the Committee should consider the high-level panel suggestion on the Restitution of Land Rights General Amendment Bill.

The presidential panel recommended that the Land Court deals with expropriation matters, yet the Bill was entirely silent on this. There was no reference to the Expropriation Act or the Valuation of Property Act in the schedule. It was therefore unclear if the jurisdiction of the Land Court on the expropriation would be restricted or included all cases of expropriation.

If the Land Court should be there to determine compensation for expropriation, it would be prudent to show how it interacts with the Expropriation Act or the Valuation of Property Act.

 Discussion

Mr Horn said he gathered from the presentation by Prof du Plessis that the proceedings from the previous day had been followed. The danger would exist where Lay Assessors could override the judge of the Court in respect of facts. Did Prof du Plessis and her colleagues have time to reflect on that argument since they were present in the previous day’s proceedings? Would they agree with such a statement? How could the Committee go about it? He asked about the written input around environmental issues to be considered in an integrated matter. In the view of the academics, what impact would there be if there was failure to bring this into the obligations of the Court?

The Chairperson said the presentation suggested that appointment to be a Land Court Judge needed not be restricted to High Court Judges but specialists in the area. Once appointed, should they be covered in terms of conditions of service of High Court Judges including secure tenure and benefits of judges? Or should it be by special dispensation for appointees who may not be High Court Judges?

Responses for Legal Academics

Prof du Plessis said on Mr Horn’s question about Lay Assessors, she did not listen to all the oral submissions as she was attending another meeting. However, in her understanding, from people who had worked in the Land Claims Court, Assessors could at times be a problem. This was because sometimes it was not clear. In the written submission, the academics said it was important to assess the role and impact of Assessors to date since it was unclear whether they had a great impact to date. She was not aware of any situation where Assessors override the Judge since the Judge was in charge of their court and court processes. It would be strange for a Judge to allow an Assessor to dictate an outcome. They are normally there to support the Judge on issues that the Judge might not have expertise in. She said she would need to listen to the argument in more detail before responding.

The consideration on environment was made by her fellow Prof du Plessis who was also in the meeting. It was becoming more and more difficult to separate environmental issues from issues of land. The previous day an interdict was granted against a company for doing surveys in the sea without considering the community rights or including them in participation. Often with issues of environmental protection, communities were not involved. While it would be an oversight, the submission was made for the Committee’s consideration. While it was not a must for the Committee to deliberate on, it was an area that needed clarity if it would be covered in the Bill. There was a big connection between community land owners’ rights and environmental issues.

On the question on specialists, she heard the previous day’s discussion about appointment of Judges, and she had gone through their written submission. The current requirements for being appointed in the Land Claims Court was for one to be a Judge, or to have been teaching in the area for ten years. In her opinion, specialists were those with some form of legal background. She did not see reason why once appointed as Judge an individual would not be covered by the normal legislation for remuneration of Judges.

The Chairperson thanked Prof du Plessis for the input as it would greatly assist the Committee.

Submission by the Banking Association South Africa (BASA)

Mr Pierre Venter, Chief Executive Officer (CEO), Banking Association South Africa (BASA), presented the oral submission on the Bill. BASA recognized and supported the need for the establishment of a Land Court that would hold similar status and have comparable powers to the High Court, while the Land Court of Appeal would be akin to the Supreme Court of Appeal.

Reference was made throughout the Bill to 'interested and affected parties' yet neither are defined. BASA recommended that a definition of 'interested and affected' parties be added to Section 1 of the Bill to avoid any misinterpretation or out of context use. BASA was of the view that the same rules that apply to the High Court of South Africa should apply to this Court.

The Bill raised questions regarding the financing of land where a land case was in progress before the Court. For instance, when a land case is being heard by the Land Court and at the same time, the bank would be approached for finance by a party, who may or may not be aware that a case is in process, on the land that needs to be financed. BASA asked how the parties (including the bank) would be made aware that the case was being heard by the Court so that the finance application would be placed on hold until the conclusion of Court proceedings.

Discussion

Mr Horn said the previous day, the Committee received convincing input that at all stages, the Bill needed to be read in an integrated way with the Expropriation Bill which looks to introduce matters of low compensation, or expropriation without compensation through ordinary legislative means after attempts to amend the Constitution to provide for it failed. Given BASA’s input about setting up a warning system to protect the interest of Banks in respect of land claims, should the same not apply where an expropriating authority is of the view that expropriation without compensation must take place? Of course there would be overlap and expropriation without compensation may not always be the case. Had BASA considered this? Would they want that warning to be in place, not only for land claims but also for land affected by potential expropriation without compensation?

Mr Dyantyi said Mr Venter made an important point that “interested and affected parties” were not defined in the Bill. As it was, it seemed to be clear who was being referred. Why did BASA think that definition was important? What proposition was it making to assist the Committee?

Response from BASA

Mr Venter agreed with Mr Horn’s comment that the Bill needed to be integrated with other salient legislation including the Expropriation Bill which was going through Parliament. The Banking sector had confidence in the Courts that one would have an outcome of just and equitable compensation where all parties would feel that the decision and compensatory level were fair. A recent case would be the Moloto Community Case, where there was considerable debate around the level of compensation which was far less than the market value. The outcome was that s4(2) of the Expropriation Bill would look at all circumstances, and the outcome of the case was that the compensation needed to be at market level. In very few instances, the compensation would be lower than the market level. There would be a specialist Land Judge who would determine compensation in terms of the section, and s5(3) of the Constitution, putting emphasis on the right areas for a just and equitable outcome. There would obviously be an impact on the Banking sector if the compensation was below market value because the sector values properties based on market value. It is contained in the Bank Act where the sector was required to review valuation of all security and mortgage bonds at market value annually. In turn, the Reserve Bank gets guidance from the international regulatory body called Basel Committee on Banking Supervision (BCBS).  The international norm was to value property at market value. Where compensation was below that level, there would be losses that the lender would not have planned for because reliance is placed on that security. What BASA argued in the Expropriation Bill was that it was important to create a granular framework that provided guidance in terms of s5(3) which was currently open-ended. There needed to be specifics under which circumstances there would be deviation below market value. It was an important consideration. Banks would incur losses where compensation levels are below market value. As a result, individual banks would tighten up on lending criteria and property loan to value criteria, making it more restrictive on the market. As it was said, other factors like the Environmental Act and the impact on the community also needed to be considered. BASA agreed with this.

On the definition of “interested and affected parties”, BASA argued that throughout the Expropriation Bill one of the key interested and affected parties to any forced sale of property through expropriation was a mortgagee who had real rights in terms of registered mortgage bonds against the property. As such, banks were a key party that needed to be notified. The last presentation called for all properties with land claims against them to be registered in the Deed Registry. This would give comfort to banks as the lenders that would evaluate exposure to the properties and where compensation would be below market value, they would need to make necessary provisions. Other interested parties would be landowners, not only existing landowners on the property but also those who would be affected by expropriation. An expropriation would not necessarily mean coming from a land claim. It could be a highway being put through an area, which would impact the property values of all surrounding properties, given things like the noise factor. The three classes BASA suggested as “interested and affected parties” would be mortgagees, surrounding lands owners to be detrimentally affected by the expropriation, and the community. In some cases, there would be tenants whose interests would also be affected, guided by the Land Tenants Act. As Mr Horn said, this fits into an integrated land framework, where other pieces of legislation needed to be considered.

The Chairperson thanked Mr Venter for the submission from BASA and said it would be integrated as part of the issues to be responded to when deliberating on the Bill.

He said he received information that the Land Access Movement of South Africa (LAMOSA) was no longer available for an oral submission, but they had made a written submission which would be considered as part of all submissions made. Both written and oral submissions were given equal weight.

This was the end of public hearings for the Land Claims Bill.

Committee Programme

The Chairperson asked Mr du Preez and the team from the Department if they would also be dealing with the Hate Crimes Hate Speech Bill.

Mr du Preez said he was personally responsible for that Bill after the death of his colleague who was responsible for it.

The Chairperson suggested that the programme be reviewed since there would be a lot of workload on the support team. There were heavy comments received for the Land Court Bill. As advised, 25 organisations wanted to make oral submissions for the Hate Crimes Hate Speech Bill. He suggested that the programme be reworked, given the lack of human resource capacity to manage the programme in the Department, considering the proximity of dates between the Land Court Bills and the Hate Crimes Hate Speech Bill. The meeting on 15 March 2022 would deal with responses to the Land Court Bill. 29 March 2022 would be public hearings on Combating Hate Crimes and Hate Speech Bill. He said he was unsure if responses to the Land Court Bill would be sufficiently dealt with in one day.

Mr Horn agreed with the Chairperson that there was a need to afford Mr du Preez the necessary time without burning the midnight oil over the weekend. It was a sensible proposal. He asked if the programme would be reworked to consider scheduling a meeting with the Department of Correctional Services to get a briefing on the situation around the Provincial Commissioner of Correctional Services in KZN. He assumed that the Chairperson had received the SMS and WhatsApp messages and calls as the Member had received, and it was clear that Parliament had an oversight duty to interrogate the matter. He said he did not want to preempt everything to avoid hearing one side of the story.

Ms N Maseko-Jele (ANC) agreed on the reworking of the programme but said she wanted to wait for the Chairperson's response to Mr Horn's suggestion.

The Chairperson suggested that the programme be reworked and would appreciate Mr du Preez’s input on the possibilities. Drafting was a complex process. The Committee needed to be considerate of the demise of the late Chief Director since the Department was limping. On the issue of the Provincial Commissioner raised by Mr Horn, the Chairperson of the Sub-Committee would comment so that the Sub-committee is not imposed on how the matter would be handled.

Mr Dyantyi, the Chairperson of the Subcommittee, said the aggressor was making a very valid point. He said the Subcommittee would be happy to have that attended to and scheduled.

The Chairperson said he would interact with the Chairperson of the Subcommittee on when to address the matter, and whether it needed to be handled by the Subcommittee or the entire Committee. 

Mr du Preez said he had been working with the Committee for more than 20 years and he was used to burning the midnight oil. Given three days, he would be able to indicate the stance. He would not like the Committee to change the programme since the work was very important. He promised to do his best to meet the deadlines.

The Chairperson said the Committee would get guidance from Mr du Preez by Friday on the suggestion since he said did not have a problem with the workload.

Mr du Preez said the second Bill was very emotional to him as he lost a dear colleague. It would be difficult, but it would be done.

The Chairperson asked if Mr du Preez thought it would be possible to work on the responses of the Land Court Bill in one day in the meeting on 15 March 2022. Or would another meeting have to be scheduled after recess? The programme after 15 March was scheduled for other oversight issues including the National and Provincial Elections, South African Human Rights Commission and hearings on the Hate Crimes and Hate Speech Bill.

Mr du Preez promised the Chairperson that the Department would be able to set everything in one day. The Committee's work was extremely important. There were a few internal procedures that the Department needed to follow before communicating with the Committee. He would be in touch with the Secretariat if there would be any delay in the deadline. The Department did not want to disrupt the Committee’s programme.

The Chairperson said he would discuss with the Chairperson of the Subcommittee on the KZN matter and report to the Committee.

The meeting was adjourned.