Land Court Bill: DoJ&CD response to public submissions
NCOP Security and Justice
15 March 2023
Chairperson: Ms S Shaikh (ANC, Limpopo)
The Select Committee on Security and Justice convened on a virtual platform to receive a briefing on the submissions on the Land Court Bill [B11B – 2021] by the Department of Justice and Constitutional Development.
In the absence of the Parliamentary Legal Advisor, the Committee was unable to get a legal opinion on the tagging of the Bill -- whether it should be tagged as a s75 Bill.
The Committee noted the public interest in the Bill, as evidenced by the number of submissions received. A Member stressed that each submission should be carefully reviewed, and that they should retain their focus on passing the Bill.
Members sought clarity on aspects such as the appointment and competence of Land Court judges, and the role and competence of the assessors. A Member also asked about the implication of the removal of s26 -- the arbitration clause -- as well as clause 29 of the Bill, which did not appear in the B version of the Bill.
The Committee also adopted the report on the joint proactive oversight visits by the Select Committee on Security and Justice, and the Select Committee on Cooperative Governance and Traditional Affairs, Water and Sanitation and Human Settlements, to the Free State Province.
Land Court Bill: Department Response to Public Comments
The Chairperson refreshed Members’ memory that the Committee had met on 12 October 2022, where it had received a briefing from the Department on the Land Court Bill. The Bill aimed to provide for the establishment of a Land Court, and appeals against decisions of the Land Court. It aimed to make provisions for the administration and judiciary functions of the court, to provide for the concurrent jurisdiction of the court and of magistrate courts for certain land-related matters.
Regarding the public participation process, the Bill was published for public comments from 14 October 2022 to 11 November 2022. The Committee had received 10 594 petitions from Geo-SA, as well as 11 submissions which broadly focused on concerns over the tagging of the Bill as a s75 bill, the lack of a socio-impact assessment, the scope of the jurisdiction of the court, the appointment and the competency of judges of the Land Court, the role and competency of assessors of the Land Court and the role of magistrates, which should be clearly set out in the Bill.
Mr Makubela Mokulubete, Legal Advisor, Department of Justice and Constitutional Development, took the Committee through the Department's responses to the written submissions to the Land Court Bill [B11B – 2021] (Sec 75) which it had received from the following organisations:
- Agri Western Cape
- Mpumalanga Agriculture
- KwaZulu-Natal Agricultural Union (Kwanalu)
- Land Claims Court
- Free State Agriculture
- Legal Resources Centre (LRC)
- Land Access Movement (LAMOSA)
- Socio Economic Rights Institute (SERI)
- Institute of Race Relations
(See attached document for details of submissions and responses)
The Chairperson thanked Mr Mokulubete for the lengthy, but useful, presentation.
She noted his legal opinion on the tagging of the Bill, and indicated that the Committee would wait for the Parliamentary legal advisor to provide input in the next meeting.
Mr T Dodovu (ANC, North West) emphasised the importance of Members of Parliament assessing all the evidence as presented before them before reaching a conclusion. He commented that the Bill itself attracted a lot of interest, as the number of public submissions had shown. It was thus indicative that people were interested and concerned with the issue and had therefore made the necessary inputs to the Committee. Members needed to take the inputs seriously and see what they could do to ensure that the Land Court Bill was passed and implemented.
The Committee would need the Chairperson’s guidance on how the process would be unfolded and how the submissions that had been made would be considered. He highlighted that there were both substantive and technical issues that had been raised in those submissions, as well as unnecessary issues. He emphasised that the Bill must not be delayed, and Members should not be de-focused -- they needed to do what needed to be done.
Ms M Bartlett (ANC, Northern Cape) asked the Department to deliberate on the appointment and competency of Land Court judges, as it was an issue that had been raised consistently in the submissions.
She asked the Department to provide clarity on the role and competency of assessors of the Land Court, as this had also been raised in several submissions.
The Chairperson enquired about clause 26 regarding removing the arbitration clause, and referred to s26(1)(g) of the Bill that referred to arbitration awards. She wanted to know whether there would be a possible amendment to delete the arbitration awards.
She enquired about clause 29, where a phrase was inserted up to line 16 in which “the court may call an application of any affected party or in cases falling under paragraph b.” She noted that this amendment did not appear in the B version of the Bill, and asked the Department to provide clarity.
The Department could respond to her questions in this meeting, or the responses may be deferred to the next meeting.
Mr Mokulubete asked the Committee’s indulgence to deal with clause 29 and provide an appropriate response to the Committee at the next meeting, because it was a serious issue to which the Department needed to apply its mind.
Regarding removing clause 26 -- the arbitration clause -- he said that the previous Bill did have the arbitration clause as an alternative resolution measure. The Department had decided to take it out because it had received many submissions indicating that it did not support it. He assured Members that the removal did not mean that parties could not avail themselves of that process -- it only meant that the process would not be a court-ordered arbitration. The arbitration process could still be done through the other 33 pieces of legislation. Should the legislation have a provision permitting arbitration, then the process could go ahead. Affected parties may also use the Arbitration Act. In addition, clause 26(1) states, “the Court may make an appropriate order including making an arbitration award or any settlement agreement.” This clause covered instances where parties may make an arbitration award before going to court.
Mr Mokulubete acknowledged that the appointment of judges had been featured in many submissions, and explained that the issue had been dealt with in clause 8 of the Bill. Ultimately, the President was the authority that would vet the appointment of judges, as the candidates were selected from the Judicial Service Commission's (JSC) recommendations. The candidate would follow the same processes as the JSC. If the candidate was not a judge, then the candidate would be appointed a judge immediately before being deployed to the bench of the Land Court. Obviously, the Commission would have considered the expertise and experience of the candidate on land matters prior to making that appointment.
The issue of race and gender in the appointment process was one of the issues raised. Mr Mokulubete responded that it was a constitutional requirement that the race and gender of a candidate must be considered when making an appointment.
The Chairperson thanked the Department for the responses, and indicated they would re-convene in the next meeting.
Report of the Joint Proactive Oversight visits by the Select Committee on Security and Justice, and the Select Committee on Cooperative Governance and Traditional Affairs (Water, Sanitation and Human Settlements) to Free State Province
The Committee was taken through the report on the joint proactive oversight visits by the Select Committee on Security and Justice, and the Select Committee on Cooperative Governance and Traditional Affairs, Water and Sanitation and Human Settlements, to the Free State Province.
The report was duly adopted.
The Chairperson adjourned the meeting.
Shaikh, Ms S
Badenhorst, Mr F
Bartlett, Ms M
Dodovu, Mr TSC
Hadebe, Mr N
Maleka, Ms AD
Motsamai, Mr K
Mthethwa, Mr EM
Smit, Mr CF
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