Land Court Bill: Department response to submissions

Meeting report

Department response to public submissions
Mr Henk Du Preez, DOJ&CD Senior State Law Advisor, identified three main concerns in the public submissions. These were the tagging of the Land Court Bill as a Section 75 Bill; the Expropriation Bill being under the exclusive jurisdiction of the Land Court and the lack of public participation by the Department before tabling the Bill in Parliament.

Tagging of the Bill
Public submissions argued for the tagging of the Land Court Bill as a Section 76 Bill affecting the provinces. This was argued based on the Bill's probable impact on customary law and how it purports to deal with indigenous law, customary law rights in land and traditional leadership specifically where it concerns the use and administration of communal land and therefore its effect on provinces.

Mr Du Preez noted that the Land Court Bill, similar to the Superior Courts Act, does not deal with the jurisdiction of the court. It merely creates a creature of statute. The question of jurisdiction will be dealt with in separate legislation.

The Department’s response was the tagging of any Bill is considered against the provisions of the Constitution on the tagging of Bills and against the functional areas listed in Schedule 4 of the Constitution. Part A of Schedule 4 contains the functional areas of the concurrent national and provincial legislation competence, amongst others, indigenous and customary law subject to Chapter 12 of the Constitution. The essential point of tagging has been explained by the Constitutional Court specifically in the case of Tongoane and Others v Minister of Agriculture and Land Affairs and Others 2010 (8) BCLR 741 (CC).

The Chairperson asked Mr Du Preez to provide a summary of the case.

Mr Du Preez explained that the consideration of a Bill by the provincial legislature is dependent on the effect that Bill will have on the interests, concerns and capacities of the province. The Land Court Bill creates a creature of statute; the subject matter of the Bill is the establishment of the Land Courts and the Land Court of Appeal which is not a matter that falls within the functional areas listed in Part A of Schedule 4 of the Constitution. It is then a matter of national competence. As a Section 75 Bill, it aims to establish a court of a status similar to the High Court. At the public hearings held by the Committee, a line was drawn between the tagging of the Land Court Bill and the tagging of the Communal Land Rights Act (CLARA), the central focus in the Tongoane case.

The Bill aims to provide for the establishment of a Land Court and a Land Court of Appeal and to make provision for the administration and judicial functions of the Land Court and Land Court of Appeal and matters related to it.

Tagging the Land Court Bill as a Section 76 Bill like CLARA renders the tagging of the Superior Courts Act as a Section 75 Bill incorrect. The Superior Courts Act establishes high courts that are empowered to adjudicate disputes emanating from traditional, customary and land matters and it therefore was not tagged a Section 76 Bill. The Superior Courts Act establishes courts and provides for matters relating to the courts and therefore was tagged as a Section 75 Bill.

Mr Du Preez noted that the aim was not to amend substantive law but simply to replace an existing court with a court that is fully capacitated to deal with land restitution matters. The question of the jurisdiction of the court being ever-expanding will be dealt with at a later stage. The Superior Courts Bill dealt exclusively with the administration of justice, which is not a matter that is reflected in Part A of Schedule 4. The Superior Courts Bill was not tagged based on the matters that would be dealt with by the courts it established.

The Land Court Bill, similar to the Superior Courts Act, aims to establish the Land Court and Land Court of Appeal and provides for matters of court administration. This is the substance of the Bill based on which it must be tagged and not on the basis that it establishes courts that would be dealing with legislation that was originally tagged as Section 76 Bills. The Land Court Bill essentially creates a new court structure to replace an existing court structure and extends the jurisdiction of the Land Court to deal with additional matters currently being dealt with by the Land Claims Court

The determination of the area of jurisdiction of the Land Court must not be confused with a Bill that aims to amend the indigenous and customary law which would require a Bill to be in line with Part A of Schedule 4 of the Constitution to be classified as a Section 76 Bill. The fact that the Memorandum on the Objects of the Bill concludes that the Bill should be referred to the National House of Traditional Leaders does not automatically make the Bill a Section 76 Bill.

Mr Du Preez concluded that the Land Court Bill is correctly tagged as a Section 75 Bill. A summary of the reasons for this conclusion is provided in the document.

Discussion
The Chairperson asked to pause the presentation to see if there were concerns with the tagging of the Bill that Members wanted to raise. The presentation was the response from the Department on matters raised by participants who made submissions at the Land Court Bill public hearings.

Mr S Swart (ACDP) asked for clarity on the Bill’s establishment of a Land Court and a Land Court of Appeal and if it is comparable to the establishment of the Competition Appeal Court in the Competition Act. He understood that the jurisdiction of the Land Court and Land Court of Appeal will be determined by other legislation. However, one required clarity why there would not need to be amendments to the Constitution's section 168(3)(a) on jurisdiction and the Supreme Court of Appeal (SCA). The constitutional amendment would set out that the jurisdiction of the SCA excludes labour, competition and land matters.

The Chairperson asked if Mr Swart was satisfied with the explanation Mr Du Preez provided about the tagging of the Bill as a Section 75 Bill.

Mr Swart said he was satisfied.

The Chairperson proposed that the Committee at this stage focus on the tagging of the Bill. Concerns with the jurisdiction of the Land Court and the Land Court of Appeal will be dealt with later on in the meeting.

Mr W Horn (DA) said the Department’s argument for the tagging of the Bill as a Section 75 Bill was convincing and therefore the matter should be disposed of in favour of the view adopted by the Department.

The Chairperson asked if there were any Members in opposition to the position taken by Mr Swart and Mr Horn on the tagging of the Bill. As there was no response, he concluded the Committee agreed with the argument made by the Department that the Land Court Bill is a Section 75 Bill.

Mr Du Preez thanked the Committee for their responses. On the concern raised about jurisdiction, he would deal with that during the clause by clause analysis of the Bill. The Constitution is clear on the jurisdiction of the SCA. The question of jurisdiction will still be looked into. However, constitutional amendments are not yet necessary.

The Chairperson asked Mr Swart if he agreed to dealing with jurisdiction concerns at a later stage to allow the Department time to reflect. He said that the Committee should proceed with other matters in the meantime

Mr Swart agreed to deal with jurisdiction concerns later.  He asked the Department to prepare a note on the establishment of the Labour Court of Appeal and the Competition Court of Appeal and how the jurisdiction of these courts was dealt with concerning the SCA. This is to provide clarity on how jurisdiction can be dealt with between the Land Court of Appeal and the SCA.

The Chairperson asked if the Committee was satisfied with the summary provided by Mr Swart. The Department should provide an in-depth analysis on jurisdiction and if a constitutional amendment is required in a note as proposed by Mr Swart.

The Committee agreed with the Chairperson.

Expropriation Bill
Mr Du Preez explained that the Land Court Bill does not have exclusive jurisdiction over the Expropriation Bill. Certain matters must be dealt with by the Magistrates Court. If DPWI intends the Land Court to have jurisdiction over the Expropriation Bill, amendments must be made by that Department to the Expropriation Bill.

The Land Court Bill is aimed at creating a court structure that is similar to the Superior Courts Act. It does not contain jurisdictional amendments that must be done through separate legislation

Public Consultation
Concern was expressed about the apparent lack of public participation as National Assembly Rule 276(4) requires that an invitation to comment on the Bill is included in the notice in the Gazette. Rules 275 and 276(4) were circumvented to the extent that the National Assembly referred the Bill to the Portfolio Committee before having invited public comment.

The Department's response to this concern about the lack of public participation was that Rule 275 applies to “Committee Bills” and does not apply to an Executive Bill introduced by the Ministry. Rule 276(1)(c) provides the Department with the discretion to publish an explanatory summary or the Bill as introduced. Only if the Bill as it is to be introduced is published in the Gazette, should the notice invite interested persons and institutions to submit written representations.

Rule 276(4) "If the Bill as it is to be introduced is published, the notice referred to in Subrule (1)(b) must contain an invitation to interested persons and institutions to submit written representations on the draft legislation to the Speaker within a specified period".

Annexure A
Mr Du Preez said the Bill has been in the works for four years. The idea was to create a court structure based on the Superior Courts Act and the Labour Relations Act. The court structure would adjudicate legally and equitably. The jurisdiction of the court structure would be determined by separate legislation and amendments made to the principal acts.

Discussion
Mr Horn said the Expropriation Bill and Land Court Bill need to be complementary. The challenge with including the Expropriation Bill in the Schedule of the Land Court Bill is that the Expropriation Bill is presently merely a Bill. However, it should be ensured that the expropriation of land is under the jurisdiction of the Land Court in the Expropriation Bill before it is passed. This is to prevent the need for future amendments to the Expropriation Bill.

The Chairperson asked Mr Horn for specific recommendations about the Schedule.

Mr Horn said Mr Du Preez should advise the Committee. Does one include the current Expropriation Act in the Schedule and that will mean that its replacement (as a result of the unfolding process in the Public Works Committee) would be the successor in title of the old Act?

Ms W Newhoudt-Druchen (ANC) asked for clarity on how the Bill came to this Committee, specifically where it concerns public comments. She asked if public hearings were first held before the Bill's introduction to Parliament.

Mr Du Preez replied that the Bill aimed to create a court structure. Consultations were had with the respective departments over three years. The new court structure is merely a replacement for the existing court. It will deal with land redistribution matters amongst other things. Public consultation is currently underway in Parliament. There are two types of expropriation. The most important will most likely be dealt with under the jurisdiction of the Land Court. However, DPWI must make recommendations to Parliament on how the legislation will be amended to grant jurisdiction to the Land Court Bill over certain matters.

The jurisdiction of the Land Court is dealt with in terms of separate legislation.

Mr Du Preez responded to the Chair asking if was in communication with DPWI, that he was not.

The Chairperson asked him to engage with DPWI and Mr Du Preez agreed.

Ms N Maseko-Jele (ANC) emphasised that the jurisdiction concern is serious and sensitive and should be dealt with as such. The Committee must ensure that it satisfactorily addresses this concern.

Mr Swart expressed concern about the lack of clarity the Committee has been given on the jurisdiction of the Land Court. He understood the challenges with the Expropriation Bill. However, he asked for an indication on the way forward and DOJ&CD reasoning when it comes to the jurisdiction challenge. He asked Mr Du Preez to advise and for the Committee to deliberate on this challenge.

The Chairperson said the DOJ&CD still had work to do before the clause by clause analysis of the Bill. He asked if Mr Du Preez had finished with his presentation.

Mr Du Preez asked if the Committee had any other concerns and for an indication of where the Committee stands on the feedback given by the DOJ&CD.

The Chairperson replied that the Committee was pleased with the responses given by the Department on the tagging of the Bill and the lack of public participation. The question of jurisdiction, the SCA, constitutional amendments and the Expropriation Bill still required further consultation and analysis. This included the drafting of the note as requested by Mr Swart. This should be done before the Committee can proceed to clause by clause analysis.

The Chairperson asked if Mr Du Preez understood the Committee's concerns and recommendations.

Mr Du Preez thanked the Committee for these.

Ms Christine Silkstone, Committee Content Advisor, asked that the Parliamentary Legal Advisor’s legal opinion that was submitted to the Joint Tagging Mechanism in Parliament should be forwarded to the Committee to see the reasoning provided for the Section 75 tagging of the Bill.

Mr Du Preez said the Department merely recommends what tagging it finds appropriate. It is up to Parliament to decide how a Bill will be tagged.

Ms Silkstone confirmed this and said Parliament had decided to tag it as a Section 75 Bill.

The Chairperson thanked the Department. He asked the Committee if they had any further concerns. The Committee did not have any. He spoke about upcoming Committee meetings and the meeting was adjourned.