Briefing by DALRRD on Plant Health (Phytosanitary) Bill & Deeds Registries Amendment Bill

Agriculture

19 May 2023
Chairperson: Nkosi ZM Mandela (ANC)
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Meeting Summary

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The Portfolio Committee on Agriculture, Land Reform and Rural Development received briefings from the Department of Agriculture, Land Reform and Rural Development on the Plant Health (Phytosanitary) Bill [B14-2021] (section 76), and the Deeds Registries Amendment Bill [B28-2022] (Section 75) in this virtual meeting.

The objectives of the Plant Health Bill were to provide for phytosanitary measures to prevent the introduction, establishment and spread of regulated pests to safeguard South African agriculture and plant natural resources.

In turn, that supported:

- Safe and fair international and domestic trade.

- Maintenance of current export markets and the establishment of new markets.

- Crop production/Food security programmes.

- Economic growth and development.

- Job creation.

The Deeds Registries Amendment Bill saught to amend the Deeds Registries Act, 1937 (Act 47 of 1937), to streamline certain administrative provisions; to provide for the recordal of land tenure rights; to further regulate the powers of the Minister and the Deeds Regulation Board as well as the Boards composition; to extend the application of waivers of preference; and to introduce further punitive measures regarding deviant conduct.

The Committee raised the following issues regarding the Plant Health Bill: With the pest control at the borders of South Africa, South Africa did not have scanners; the timeline of the Bill; which other departments had the Department engaged with during the consultation process; how South Africa’s borders were not really helping much with control, especially when it came to borders around the Southern Africa Development Community (SADC) area; how the Committee definitely needed to see the socio-economic impact report on the Bill; the necessity of discussing the Bill timeline with the National Council of Provinces; what happened when the Department discovered that particular pests were already spreading in the country without knowing when they came and how they came, and how that would be handled; how the Bill was drafted when Forestry was still part of the Department, and whether there would be conflicts in legislation.

How had the Department ensured that ordinary land users, particularly communal and developing farmers, were consulted, and participated in the development of the Bill? According to the memorandum, local consultation on the Bill was limited to the National House of Traditional Leaders (NHTL) and the National and provincial departments, some Government entities, and industry bodies. However, section 18 of the Bill made it compulsory for land users or any person to report the presence of regulated pests. Section 28 of the Bill made it a punishable offence if a person did not report the presence of regulated pests. Would land users and owners be trained about regulated pests, including how to identify them and the reporting mechanism? In the case of communal land, who would be held liable if a regulated pest had not been reported and ended up spreading to or infesting other areas? Did the Department currently have enough capacity to conduct inspections on important consignments, including all arrivals at ports of entry, i.e., land and air? How many inspectors and K9 dogs were assigned to each port of entry in the country? How many hours did those units work in a day?

The Committee raised various issues regarding the Deeds Registries Amendment Bill. On the issue of financial implications: The memorandum said there were no financial implications. How would the Department consider the issue of a socio-economic impact assessment, and the issue of quality assurance of the Bill, which would provide for the benefits and cost implications?

Clause 3 of the Bill proposed an amendment of Section 3 of the Act, by extending the duties of the Registrar to record the land tenure rights that had been recognised, or in future would be recognised by law. While the principle was a good provision, it had the potential of providing security of land tenure for people that did not have that. The concern was that no legislation provided mechanisms and procedures for the registration and recordal of land rights, including but not limited to customary, informal and communal forms that were to be recorded by the ROD. Considering the limited capacity, she felt that the Department could take long to process legislation. It could take many years before that provision became applicable. Could the Committee check with the Department if it was advisable to pass legislation determining how land tenure rights were established, before including that provision in the Bill? Given the complexity of unregistered rights, and the conflicts around existing ownership and access to land, as the Committee had seen in Gwaju, the recordal of rights without a clear communal land tenure policy could expose deeds registries to endless litigation and conflict management.

The Committee asked if the Department had adequately explored the corresponding implications of the recordal of land rights. An article by Prof Ben Cousins based on reputable research estimated that in 2011, some 1.5 million people lived in Reconstruction and Development Programme (RDP) houses with inaccurate or outdated title deeds, mostly due to transfers not recorded in the Deeds Office. Another 5 million people lived in RDP houses where no titles had been issued due to systemic inefficiencies. Along with 1.9 million people living in backyard shacks, 2 million living on farms belonging to others, and 17 million in communal areas, a total of about 30 million people, nearly 60% of the population. All those people would need to be serviced by the amendment the Department was making in Clause 3. Could that clause realistically secure the land rights of all those people? It would be a lot of work for the Deeds Office. Was the Department ready for that? Had the Department explored the corresponding implications of the recordal of land rights in, for instance, the interplay and interdependence of various pieces of legislation between other departments and their entities. Had the Department explored the practicability of recording those rights, especially where land surveying was concerned? Did the existing Deeds Office have the capacity to implement the recordal of the rights, and how was that envisaged to be done? Had the traditional authorities, who at present had custody of the informal land, been adequately consulted on that amendment?

Meeting report

Apologies were read out. The Minister of Agriculture, Land Reform and Rural Development and the Director-General (DG) sent apologies.

The Chairperson said that on Wednesday, the Department of Agriculture, Land Reform and Rural Development (DALRRD) had requested that the Portfolio Committee (the Committee) nominate candidates for the Agriculture Research Council (ARC). The deadline was Friday, 19 May, at the close of business. He suggested that Members send their nominations to the Department, through the Committee Secretariat, before 16:00 that afternoon.

Briefing by DALRRD on the Plant Health (Phytosanitary) Bill [B14-2021] (Sec 76)

Mr Dipepeneneng Serage, Acting DDG: Agricultural Production, Biosecurity, and Disaster Management, DALRRD, presented the Plant Health (Phytosanitary) Bill [B14-2021] (the Plant Health Bill), which was a section 76 Bill.

Key Concepts/Definitions

• Phytosanitary measures- referred to official measures, regulations or procedures aimed at:

- preventing introduction and/or spread of quarantine pests, and

- limiting the economic impact of regulated non-quarantine pests.

• Quarantine pest- meant a pest of potential economic importance to the area endangered thereby and not yet present there or present but not widely distributed and being officially controlled.

• Regulated pest- meant a quarantine pest or a regulated non-quarantine pest (where there was a specific focus from government because it did not want such a pest to occur, and it would want to empower the Minister to be able to demarcate areas where certain crops may not be farmed).

• South Africa was a signatory member of:

- The World Trade Organization Agreement on the Application of Sanitary & Phytosanitary Measures (WTO-SPS Agreement) and

- The International Plant Protection Convention (IPPC).

Mr Serage added that plant health was not a concurrent mandate. It was currently the preserve of the national Department. What the Department did at the national level had to cover everything as far as plant or arable farming was concerned. A key reason for the amendments was that the current law that regulated plant health predated 1994, which was the Agricultural Pest Act (APA) of 1983. It also predated the Constitution. At the time the APA was promulgated, the focus was not really on trade. Instead, the focus was on the control of pests within South Africa. South Africa now traded with its counterparts in other countries. For that to happen, there needed to be a relationship between South African laws and the laws of other countries. The World Trade Organization (WTO) had statutory bodies. One was the French body Office International des Epizooties (OIE) (now known as the World Organisation for Animal Health [WOAH]). The plant health convention of the WOAH was called the International Plant Protection Convention (IPPC). The WTO ensured that all signatories to it were able to negotiate and discuss plant health issues in a more centralised forum and were then able to have scientific discussions on phytosanitary matters.

He said the Department used the words “plant health” and “phytosanitary” interchangeably. “Phyto” meant plants, and “sanitary” meant free of diseases and insects. The Department would decide whether the Bill became the Plant Health Bill or the Phytosanitary Bill. 

Problem Statement

• The introduction and spread of potentially damaging pests in South Africa could have a significantly negative impact on South African biosecurity, agricultural production, food security, and market access.

• Deficiencies of the existing Agricultural Pests Act, 1983 (Act No.36 of 1983):

- Predated the Constitution of the Republic of South Africa.

- Predated the International Plant Protection Convention (IPPC, 1997).

- Definitions were not aligned with the IPPC standards.

- No provision for the National Plant Protection Organisation of SA (NPPOZA) in accordance with the IPPC (Article IV), and its functions

- No provision for export control, re-export and in-transit control (emphasis was on import- and national control).

Timeline for Processing the Plant Health Bill

Due to what happened with the political cycle, the Department had to get a new socio-economic impact report after the Bill went to the Office of the Chief State Law Advisor (OCSLA).

The Bill was reintroduced in the National Assembly in July 2021.

[Please see the presentation for the details.]

Overview of the Agricultural Pests Act (Act No. 36 of 1983): being repealed.

The Agricultural Pests Act provided for measures by which agricultural pests could be prevented and combated. The Act also included regulations on the import of controlled goods to prevent the introduction of plant pests and diseases, subject to import permits.

Mr Serage added that importation of goods had to be through a permit. At South African airports, there were dogs within a K9 unit belonging to the Department. The unit checked for fruits, fruit products, plants, and plant products in the luggage of officials. If one compared the airport scenario in South Africa to that of other countries, one would realise that South Africa could only confiscate the fruit etc; it did not have any legal follow-up mechanism. The current Act was not up to the standard of other laws in the country. If one was found to have controlled products without a permit, people could be jailed and charged large funds. At the moment, South Africa did not have the legal provisions to impose fines that would be a deterrent.

[Please see the presentation for the details.]

Proposed Amendments

The following sections would be amended:

• The whole Agricultural Pests Act (Act No. 36 of 1983) (repealed).

[Please see the presentation for the details.]

Objectives of the Bill

• To provide for phytosanitary measures to prevent the introduction, establishment and spread of regulated pests to safeguard South African Agriculture and plant natural resources.

• In turn, this supported:

- Safe and fair international and domestic trade

- Maintenance of current export markets and the establishment of new markets

- Crop production/Food security programmes

- Economic growth and development

- Job creation.

Mr Serage added that travelling was unintentionally a source for pest introduction. Tourism was found to be one of the most challenging areas for the agricultural sector, because it was through tourism that pests and diseases were introduced. That was one of the main reasons why the Department would want to make sure that it safeguarded the country against the introduction of regulated pests or quarantine pests. Once the Bill was in place, the Department would be able to ensure that it had sufficient regulations and laws as far as travelling was concerned. The Department would be able to service the current export markets easily. When it met with its counterparts (i.e., the competent authority of other countries) to open new markets, it would meet their NPPOZA. South Africa did not currently have a legitimate NPPOZA, because its law had not made provision for it. South Africa had to work with what it had, to marshal itself into a structure equivalent to an NPPOZA, because it needed that to enable trade.

Summary of the Plant Health Bill: Overview

Mr Sarage then went on to summarise the Bill.

He added that the control of diseases and pests needed to be regulated by law. “National control” referred to the scenario where anywhere in the country where agricultural production happened, the Department needed to provide for, in law, the regulation of that. He gave the example of a disease or pest with high economic importance, where one case related to potatoes. The pest was not imported. The Department then directed for the whole crop to be destroyed, because it feared the spread of that pest to other areas where it did not naturally occur.

He noted that the current Act did not make provision for export control. That meant that the Department did not have the power to stipulate that someone could not export a particular product to a particular country. If it had that provision to control the export of plants and plant products, it would be the Department’s duty to issue a phytosanitary certificate. It was currently issuing such certificates, because it had to make do with what was available and formulate its NPPOZA, even if that was not currently provided for in the South African law. South Africa would not be able to export plants and plant products without a phytosanitary certificate. Re-export aided in economic growth. If one country required products, and South Africa knew it could access those, then a country could come to South Africa, be inspected, and export products further to another country. Re-export mainly happened with seeds, which were relatively easy to export because of their shelf life. There was already a process happening where seeds could come into South Africa, be checked and certified, and then exported to another country.

[Please see the presentation for the details.]

Clause by Clause Analysis

The Department showed a table with the relevant section, provision subject, and explanatory summary.

Mr Serage highlighted section 3 (Powers of the Minister), which provided for “power of minister to make regulations and control measures to further the objectives of the Act”.

Section 4 (Prescribing of the control measures) provided the following: “The Minister may prescribe the control measures which must be complied with by users of land in order to achieve the objectives of the Bill. These control measures may include quarantine measures and restriction movement of infested material”.

Section 17 (Declaration of regulated pests) provided for the following: “Provides for conditions under which the executive officer may declare regulated pests (quarantine pests or regulated non-quarantine pests”. Mr Sarage added that the pests mentioned here were those of economic importance.

Section 28 (offences and penalties), provided for the following: “Prescribes penalties for certain offences to any person who violates the provision of this Act and related regulations”. Mr Sarage added that under the current law, if the Department wanted to confiscate plant material from someone, it would have to go to a magistrate within the jurisdiction of the area where the person committed the offence, and the fine was about R300. Such penalties did not really deter infringements. The Department, through section 28, wanted to be able to align with other countries, so it could have fines issued. If necessary, transgressors could also be jailed. The section was mainly about fines that were high enough so that travellers would not be tempted to bring certain products into the country. At the moment, the Department could confiscate transgressors’ products and destroy them. Before the Border Management Authority (BMA), the Department had a K9 unit of about 20 dogs at ports of entry. Each dog and handler were relatively expensive, so the Department provided an expensive service, but it “got nothing out of it”.

Section 31 (Compensation) provided for the following: “Provides for compensation by the Minister regarding certain matters in the Bill”. Mr Sarage added that this section could provide compensation if, for example, the Department ordered that a crop of potatoes, bananas, etc. had to be destroyed because of pests or diseases. Compensation would be made if the infestation was not the fault of the owner.

[Please see the presentation for the details.]

Departments/Stakeholders Consulted

• National departments (e.g., the then Department of Trade and Industry, Department of Environmental Affairs)

• State Law Adviser 

• Provincial Departments of Agriculture

• Perishable Products Export Control Board (PPECB)

• Research institutes

• South African Local Government Association

• National House of Traditional Leaders

• Agricultural industry: Deciduous, Citrus and Subtropical industry etc.

• South African National Seed Organisation (SANSOR)

• Grain SA

• Importers and Exporters

• Trading partners

• General public

Financial Implications

• The implementation of the Bill had no additional implication in terms of human and financial resources since the NPPO of South Africa had already been established and was funded.

• Key activities such as surveillance and response would be catered for under the current MTEF allocation and would receive further prioritisation over multiple MTEF.

• The Branch received additional MTEF allocation (2020 to 2023) to respond to biosecurity threats, strengthen inspection services at points of entry, and revitalise laboratories and quarantine stations. Reprioritisation of allocations continues to support the phytosanitary system.

Discussion

Ms M Thlape (ANC) said that the Plant Health Bill was an important piece of legislation. One would ask why the Bill took so long to come to the current stage, bearing in mind the importance of laws that had to be amended. She had no qualms with the Bill nor the presentation and motivation put before the Committee.

With the control at the borders of South Africa, South Africa did not have scanners. If it did have scanners, then they were not enough. What was the Department doing? Had it spoken to the Department of International Relations and Cooperation (DIRCO) about border control matters? In many cases, pests and diseases were brought in through tourism. One went to Botswana, saw a beautiful plant, and brought it back through the South African border. Had the Department tried to interact with its counterparts that were responsible for border control? The Minister responsible had been very vocal on issues of border management control, which was another angle affecting South Africa in that regard. It would be proper for Members to know if the Department had made contact, or did it see the need to do that? The Bill would help to ease the situation regarding plants. What did the Department do in cases where the pests flew into the country? She was thinking about the 2018 scenario where the Fall Armyworm was first seen in Central and Western Africa, and before South Africa knew it, it was a casualty. In that case, with phytosanitary matters, how did the Department deal with such instances?

Mr N Masipa (DA) wanted to just make sure with regards to the consulted stakeholders: Was that done through public hearings? Or was it done through engagement regarding the Bill? If it was through public hearings, where was the advert of that engagement with the stakeholders?

The Bill obviously took ten years, and he worried that if he looked at the timeline presented to the Committee, specifically the 2018 withdrawal of the Bill in accordance with rule 334 to allow the Committee to conclude on business before it, ahead of the national election. The Bill was presented to the Committee a year before the national election. Again, it was presented in May. The Bill would probably also be withdrawn as such. He wanted to understand why the Bill had been “dragging so much” before it came before the Committee.

The Department talked about engagement with departments. What about giving the Committee a list of all departments that were consulted? He imagined that such departments included the Department of Small Business Development (DSBD) and the Department of Home Affairs (DHA). South Africa had porous borders. While the Bill was necessary, South Africa’s borders were not really helping much, especially regarding borders around the Southern Africa Development Community (SADC) area. What engagement was taking place to ensure that the Bill was really enforced? The presentation talked about what the Department called export control, prohibition for export control, re-export and in transit. The Department indicated that it did a socio-economic impact assessment (SEIA) in 2020. Had that been presented to the Committee? What had been the cost to the country, with regards to especially not having that particular provision on that Bill? It might have been presented, but that was too long ago. The Committee needed to see the socio-economic impact engagement that was done with the Committee, if it was done with the Committee.

Ms T Mbabama (DA) said she was covered concerning questions.

Ms N Mahlo (ANC) did not have anything to add.

Mr H Kruger (DA) felt that discussions with the National Council of Provinces (NCOP) were necessary. He did not think that the NCOP would be able to take all the bills through that term. The Committee needed to make sure that it did not waste its time. If the NCOP indicated that it would not be able to live full complement to the Bill, then the Committee had to rather let it stand over for the next term. He proposed that the Committee be in conversation with the NCOP, and then the Committee could take it from there. He agreed it was time for such a Bill; South Africa needed to protect its plants.

Mr M Montwedi (EFF) said that he was covered.

Mr N Capa (ANC) echoed Ms Thlape’s concern about the non-mention of the BMA. What happened when the Department just discovered that a particular pest was already spreading in the country without knowing when it came from and how it came? How would that be handled?

He noticed that when the Department spoke about sections 9, 10 and 11, he thought that it mistakenly said sections 9, 8 and 11; he wanted to note a correction.

The Chairperson said he should have started the meeting by acknowledging the Committee’s new Member to the Portfolio Committee on Agriculture, Land Reform and Rural Development, who was Mr S Dlamini from the ANC. The Chairperson welcomed Mr Dlamini to the Committee.

Mr Dlamini said he noticed that the Chairperson was identifying everyone; he had to indicate, but not to differ from what the other Members had said. He was sure the Chairperson would have accepted his apology for the previous meetings. Regarding the discussion, he supported what other Members had said.

The Chairperson recalled that the Bill was drafted when the Department of Forestry was still part of the DALRRD; it fell under agriculture. As the Bill referred to forestry, which was now with the Department of Forestry, Fisheries and the Environment (DFFE), would there be challenges in the implementation of the Bill once it was signed into law, including conflicts with Forestry and other legislation that were under the DFFE?

Secondly, how had the Department ensured that ordinary land users, particularly communal and developing farmers, were consulted, and participated in the development of the Bill? According to the memorandum, local consultation on the Bill was limited to the National House of Traditional Leaders (NHTL) and the national and provincial departments, some government entities, and industry bodies. However, Section 18 of the Bill made it compulsory for land users or any person to report the presence of regulated pests. Further, Section 28 of the Bill made it a punishable offence if a person did not report the presence of regulated pests.

Would land users and owners be trained about regulated pests, including how to identify them and the reporting mechanism? In the case of communal land, who would be held liable if a regulated pest had not been reported and ended up spreading to or infesting other areas? Did the Department currently have enough capacity to conduct inspections on important consignments, including all arrivals at ports of entry, i.e., land and air? How many inspectors and K9 dogs were assigned to each port of entry in the country? How many hours did those units work in a day? For example, there were cases where international flights landed at OR Tambo International Airport at 05:00 in the morning, and he had not seen any of the K9 dogs at both OR Tambo International Airport and Cape Town International Airport.

Mr Masipa wanted to apologise to the Department. He understood that the Bill had been with the Committee since 2021. It was not really the fault of the Department. The fault was on the Committee’s side. He requested that all bills presented to the Committee that it needed to go through before the close of the current term of Parliament, be processed.

Department’s Response

Mr Serage said he had the following colleagues with him: Mr Jan Hendrik Venter, Director: Plant Health Early Warning Systems, DALRRD; and Dr Julian Jaftha, Chief Director: Plant Production and Health, DALRRD.

Regarding the interaction with counterparts: It had happened, and it “can never be enough”. Mr Serage reminded Members that from 1 April, the border control at the ports of entry was now the responsibility of the DHA with the agency called the BMA. The Department worked with the BMA, and it was about to complete the implementation protocol to ensure that the BMA was at the front, covering all the ports of entry. The Department monitored the BMA, and it administered the Department’s law. The Department would have to ensure that the BMA had sufficient capacity and resources. As part of preparing the BMA to go to the ports of entry, the Department also ceded 272. Those officials had been ceded to the BMA. The BMA was therefore not starting from a low base; it started with officials that the Department already had, and the BMA was familiar with the requirements at the ports of entry. That was not enough, and the Department would have to engage with the BMA. With the BMA being an agency, and being able to generate revenue, the Department thought that the BMA would be able to have sufficient capacity where the Department lacked capacity.

Ms Thlape asked about what happened with pests that could fly. The Department saw the same problem with locusts that flew over into neighbouring countries. Two things did not know borders: Pests and veld fires, so there were engagements on those matters. Around March in Namibia, one of the things that the Department put forward was to have that collaboration, starting with Namibia and other countries that South Africa shared borders with, so that it would be able to detect pests earlier. If pests were detected near the border, other countries could let South Africa know so it could be ready. It also pledged to do the same for neighbouring countries. It was a complex matter to deal with now because pests did not just travel with tourists; they also flew, as Members would have noticed with the current control of locusts. The Department was busy dealing with locusts and the quelea birds. The Department was not necessarily able to control certain pests, but it had other countries ready to help as well.

Mr Masipa had asked how the participation happened. Mr Serage said that the Department had consulted other departments, but it may not necessarily have reached all farmers. His colleagues would respond with the specifics as to where the Department had been able to go. Once the Bill was with the Committee, the Department was ready to go wherever the Committee wanted it to go.

Mr Serage confirmed that the Bill had been before the current Committee. With Mr Masipa’s request about the bills before the Committee, Mr Serage replied that the Department would certainly make the Committee aware of the bills. The Department pleaded that something was done so that there would not be three political cycles to go through one Bill. As Members would have already noticed, the Plant Health Bill was one of those very important bills that was going to be passed, because the Department had been found wanting. Those that did not want to comply with the law knew the weaknesses in the current Act and could easily take the Department on.

The SEIAS would be shared with the Committee. The SEIAS did grant the Committee the ability to go ahead with the Bill. The Department may not have the economic assessment in terms of the figures of loss; it was something that the Department would check if it could be done. Since that void in the law had been in existence since 1994, it was a lot of money that the Department may not be able to contribute sufficiently at that stage.

Mr Serage observed that the DHA was now in charge of the ports of entry. The Department was going to sign an implementation protocol with the DHA. The Department would basically direct the infrastructure that the DHA had. That tied into the question about the Department having the resources required to perform a quarantine services function. The Department did not have sufficient capacity. It would have to ensure that the BMA was resourced. That was one of the reasons why some of the functions were ceded in terms of section 97 by the President to go to the BMA, just so that it could consolidate and work together.

At the port, one currently had officials from the DALRRD, the Department of Health (DoH), and the DFFE, so things were “all over the place”. When the ports were under the control of the same authority, the departments would be able to share resources. He observed that South Africa did not have scanners. For a country like South Africa with many land borders, it needed to have what the Department called “disinfecting sprays for vehicles”. Some people went to Mozambique to go hunting or fishing, and some farmed in Botswana or Namibia, so it was easy for such people to introduce a pest of quarantine importance or a pest of economic importance. Borders had to have sufficient resources so that other than complying with laws, the vehicles themselves would be disinfected. That was one of the requirements that the Department requested from the BMA.

If it happened that a pest was introduced to South Africa, unfortunately, with the current situation, the Department would not be able to know, but it would improve that situation as soon as it finalised its implementation protocol with the BMA, it would be able to have all air, sea and land ports sufficiently capacitated and resourced for them to be able to take care of the unintended introduction of pests.

On the Bill’s reference to forestry: The Department left the Bill as it was, and it was one of the matters it would have to correct. It still referred to the Department of Forestry, and one of the things that it would attend to immediately was to ensure that all references to Forestry were removed, so the Bill referred to Agriculture, Land Reform and Rural Development. With consultation, he conceded that not all stakeholders had been consulted sufficiently. But the Bill was a Section 76 Bill, so one assumed there would be an opportunity for further consultation. The Department had consulted farmer organisations but did not have sufficient sessions with the farmers, who may not all be aware of the Bill’s requirements. The Bill placed responsibility on all farmers, so it was only fair that the Department went to them and made them aware of their responsibility in terms of the provisions of the Bill once it had been enacted.

On whom would be liable if it was a case of a communal land: The intention and the hope was that it would not come to that, because quarantine pests should not even be detected. If ports and quarantine services worked as designed, South Africa should not have any quarantine pests introduced. The Chairperson had asked about the Department’s abilities to assess and detect the pests of economic importance before they got uncontrollable. The Department did have sufficient capacity, although nothing could ever be 100% sufficient. Now the Department did surveillance, where it put traps at ports of entry, at strategic areas throughout the country, so that it was able to detect the presence of pests. The good thing with pests was that they did not become problematic until particular stages of their life. If the Department was able to pick up pests early enough, it would be able to control them before they become destructive. In addition to strategic areas at ports, the Department also put pest traps in different provinces, cities, taxi ranks and bus stops. It just had to ensure that it increased that surveillance. It had relied on surveillance thus far to be able to detect and become aware of areas where it needed to intensify control. Resources could never be enough but so far, the Department was able to control pests.

Dr Julian Jaftha responded to the question on the pests that flew around and entered the country. He said Mr Serage had mentioned that the Department collaborated with other authorities. But in South Africa, there was also the Emergency Plant Pest Response Plan, which was a very detailed and consulted plan that the Department developed with all the stakeholders, which detailed all the relevant actions that it may have to undertake as and when there was an emergency pest breakout. Such an emergency could include the case when pests fly into the country and are a pest of quarantine concern; the Department could then invoke that plan. As part of the Department’s interaction with other authorities, it had examples of projects it was currently managing with some of South Africa’s neighbours, with international involvement, to deal with pests of common concern amongst those countries.

On public hearings: The previous Committee did not undertake any public hearings, despite the Bill reaching the Committee back then. The Department never had an opportunity like it has now to make a presentation. However, in developing the Bill, the Department undertook a national workshop to consult and to solicit inputs. There was also a formal publication in the Government Gazette, through which it had also solicited inputs. Those inputs were also summarised and part of the Department’s socioeconomic impact assessment report. The Department could make a summary of those comments available to the Committee and its responses to those comments.

Mr Venter clarified the matter of the Bill still referring to Forestry. One had to also remember that forest trees were plants therefore the importation of forestry seeds and seedlings, as well as the control of pests in forestry, was thus still governed by the Bill. In terms of departmental alliances, the Department may have to amend if that is unclear.

On communal land and who was responsible: The Bill focused on land users. That was the same in the current Act. Those consultations, training, and awareness actions were within the scope of a unit in the Department, that was dealing with those types of alerts and awareness, including training growers, from subsistence to commercial growers, on how to identify or detect those pests. Members would recall the introduction of the fall armyworm in South Africa. South Africa was one of the countries in the world currently being recognised for its quick actions through its emergency response team, and its ability to very quickly set up a steering committee dealing with the pest. The steering committee was also involved in engaging the public on awareness of how to identify that pest and how to treat maise crops, which was the type of plant mainly attacked. There was still some damage, and one could never avoid that. But the Department’s structure was such that it had already helped tremendously in a quick response.

Further discussion

Mr Kruger observed that the NCOP was very serious about not going through all the bills coming to the NCOP “all of a sudden”. He wanted to make a proposal that the Committee invite the NCOP to come and make a presentation and see if the NCOP had the time to work through all those bills that the Committee wanted to send through to the NCOP.

Mr Masipa was still not very clear as to when the original public participation took place. He assumed that it might have taken place during the previous term. His concern was that public participation was done under the old Department of Agriculture, Forestry and Fisheries at the time. He did not know what the procedure was, but he thought the Department would still probably be required to gazette the Bill before the Committee could go through it and get public input. He felt that when the Bill was gazetted at the time, it was gazetted as Agriculture, Forestry and Fisheries at the time. The Department would guide him, but he would still think that the Committee might be “short-circuiting” the process, or that the Committee might also have to seek legal advice. He was also aware of the inputs that Mr Kruger had made. He knew that the Committee got its Announcements, Tablings and Committee (ATC) report, but he felt that the Committee needed to talk about the bills that were at hand, and see how best it could work with them, because he did not think that the Committee had much time.

The Chairperson said a constraint was the budget and inadequate resources. At the time of the SEIAs in 2013, the costs were estimated at R50 million per annum, and R30 million of the total was for quarantine pest surveillance implementation and enforcement. Did the Department think that the total amount would be sufficient given the biosecurity challenges that South Africa had? Most concerning was that the biosecurity sub-programme covered plants and animals, yet would only get an average of about R4.5 million per annum over the medium term. How would the Department implement the Bill without resources?

Mr Serage said that “funds were never enough”. The Department had budgeted for the biosecurity sub-programme but would not have enough funds. Industry would assist as well with the biosecurity work. Biosecurity covered animals and plants, and their diseases. It hoped that when the restructuring process within the Department was complete, it would be allocated sufficient resources. There were engagements with the National Treasury (NT). At the moment, the Department did not necessarily have enough resources, but it had made strides in allocating what it had, so that it could pass that important Bill. The Department would then be able to see what it could do regarding that sub-programme. The Bill also made provisions for assigning resources. [Mr Serage was interrupted by a participant who was not muted.] Once the Bill was signed into law, the Department could manage reasonably, but it required more resources. He reiterated that the Bill made provisions for the assignment of resources. That was a “cushion” if the Department needed to get extra resources, but unfortunately, that would come with extra costs, and it had seen industry “repelling” any such moves of appointing assignees. The Department had commissioned a study on the lack of insect biosecurity in South Africa. It was working with the Western Cape Department of Agriculture. The study would involve an analysis of the biosecurity threats in the whole of South Africa. That report would give the Department an idea of which areas required additional funding.

Regarding Mr Kruger and Mr Masipa’s questions about procedure: If the Committee wanted the Department to do public participation, it was ready. It hoped for the Bill to go through in the current term. It had waited for a long time for the Bill to go through, and its clients were already aware of the loopholes in South Africa’s current law.

Mr Masipa raised a point of order. He had made an input regarding public participation, and Mr Serage replied that it was up to the Committee. He asked if the Chairperson could summarise the matter and make a ruling in that regard.

The Chairperson said he would make closing remarks at the end of the meeting.

Briefing by DALRRD on the Deeds Registries Amendment Bill [B28-2022] (Sec 75)

Ms Antoinette Reynolds, Deputy Registrar of Deeds: Office of the Chief Registrar of Deeds (OCRD), DALRRD, presented the Deeds Registries Amendment Bill [B28-2022], which was a section 75 Bill.

Objects of the Bill

The Bill sought to amend the Deeds Registries Act, 1937 (Act 47 of 1937), to streamline certain administrative provisions; to provide for the recordal of land tenure rights; to further regulate the powers of the Minister and the deeds regulation board as well as the Board’s composition; to extend the application of waivers of preference; and to introduce further punitive measures regarding deviant conduct.

Ms Reynolds presented the clauses that would be amended.

- Clause 1 amended Section 2.

- Clause 2 dealt with the insertion of Sections 2A, 2B and 2C.

[Please see the presentation for the details.]

Clause 3(a): Sections 3(1)(bis), ter

The Act currently did not provide for the recordal of land tenure rights.

• The insertion of Section 3(1)(c) bis provided a mechanism for the recordal of land tenure rights created and lawfully issued under other laws.

• Insertion of Section 3(1)(c) ter provided for noting conversions to full ownership of such rights, in compliance with the requirements of law.

Ms Reynolds added that if one thought of, for example, the Upgrading of Land Tenure Rights Act (ULTRA) 112 of 2019, it provided for the creation of certain land tenure rights in Section 2. In Section 2(2) of that Act, it provided for the Registrar of Deeds (ROD) to note a register of title deeds, and to note its records about the upgrading of those rights into full ownership, for instance, doing so without the lodgements of transfer duties, certificates, etc. In the case of the proposed amendments, the ROD would be able to record land tenure rights once other legislation placed such duty on the Registrar and provided for the creation and recordal of those rights in the enabling legislation.

Clause 3(b)

Section 3(1)(i) provided for the registration of waivers of preference regarding the registered real rights in land in favour of mortgage bonds. There was a need to also provide for the registration of waivers of preference regarding registered real rights in favour of leases. The proposed amendment of section 3(1)(i) will address that need.

A waiver of preference was a voluntary agreement whereby one holder exchanged the preference he/she enjoyed over the property in favour of another holder.

Ms Reynolds gave the hypothetical example of an instance where she could inherit a farm from her father, and in his will and testament, he left a usufruct over the farm in favour of her mother. That usufruct would be registered as a real right over the title deed of the farm to protect the mother’s right. When Ms Reynolds, for instance, wanted to get a R5 million mortgage bond over the farm, then ABSA bank could ask that her mother waives preference of her registered real right of that usufruct in favour of the mortgage bond. That bond would then be registered free from that usufruct. The proposed amendment was for the waiver of that usufruct in favour of a lease, where Ms Reynolds wanted to register a long-term lease of ten years, for example, over the farm. The lessee (her mother) could then agree that it was a voluntary agreement that her mother waived preference of her real right in favour of the lease. That lease would then be registered free from that usufruct. Further, the holder did not lose their right; they only exchanged the preference they enjoyed over property in favour of another holder.

- Clause 5 dealt with the amendment of Section 9.

- Clause 6 amended Section 10.

- Clause 10 amended Section 99.

- Clause 12 amended Section 102, and

- Clause 13 provides for the amendment of the Electronic Deeds Registration Systems Act 19 of 2019, to the extent set out in the Schedule to the Bill.

With clause 6, Ms Reynolds added that the personal information given by landowners would assist the Department in compiling more accurate land audit reports regarding the transformation of land ownership in South Africa.

[Please see the presentation for the details.]

In conclusion, Ms Reynolds observed that the Department received an exemption from conducting a SEIA, and that was due to the technical nature of the Bill. The exemption was also given because the Bill did not introduce any new policy position.

Discussion

Ms Thlape felt that the Committee should welcome the Bill, because the presentation said the proposed amendments would bring the principal Act in line with formal requirements and transformational land reform measures.

On the issue of financial implications: The memorandum said there were no financial implications. Ms Thlape was thinking about the cost of developing and implementing a new system. How would the Department consider the issue of a SEIA, and the issue of quality assurance of the Bill, which would provide for the benefits and cost implications?

Clause 3 of the Bill proposed an amendment of Section 3 of the Act, by extending the duties of the Registrar to record the land tenure rights that had been recognised, or in future would be recognised by law. While the principle was a good provision, it had the potential of providing the security of land tenure for people that did not have that. The concern was that no legislation provided mechanisms and procedures for the registration and recordal of rights to land, including but not limited to customary, informal and communal forms that were to be recorded by the ROD.

Considering the limited capacity, she felt that the Department could take long to process legislation. It could take many years before that provision became applicable. Could the Committee check with the Department if it was advisable to pass legislation determining how land tenure rights were established, before including that provision in the Bill? Given the complexity of unregistered rights, and the conflicts around existing ownership and access to land, as the Committee had seen in Gwaju, the recordal of rights without a clear communal land tenure policy could expose deeds registries to endless litigation and conflict management.

Mr Masipa observed that there were concerns raised by the Law Society and others who made submissions to the Department on the Bill. There was a concern about removing the power of the deeds registry regulation to make any regulations. Were those submissions considered and considered, and have changes been made?

He read out the concerns raised by the Law Society. The concern was that politicians were going to take charge of day-to-day technical management of the highly technical business of recording who owned what.

There were also submissions on Clause 3, amending Section 3 of the principal Act, where Clause 3 proposed an amendment of Section 3 of the Deeds Registry Act by extending the duties of the ROD. One of those duties would be to record land tenure rights. While there was no problem with that principle, the Law Society believed that before that duty was passed onto the ROD, legislation needed to be passed as to how land tenure rights, which now had to be recorded by the ROD, were to be established. There were currently various forms of land tenure rights, some of which were probably capable of easy determination and recordal, and some of which would probably be very difficult to establish a record. It was concerning that the ROD could be “bogged down” by dealing with dubious or unclear rights, or in litigation in respect of matters which were somewhat vague.

Mr Masipa said there were other submissions made as well. He wanted to know if all the submissions were considered, and what the determination was. Had there been any amendment or change in terms of drafting those amendments, after the Law Society and others made submissions?

Mr Capa asked if pieces of legislation existed under the former Republics of Transkei, Bophuthatswana, Venda and Ciskei (TBVC states) that had not been repealed could be affecting the process of amendment.

Ms Mbabama asked if the Department had adequately explored the corresponding implications of the recordal of land rights. She read an article by Professor Ben Cousins based on reputable research that estimated that in 2011, some 1.5 million people lived in Reconstruction and Development Programme (RDP) houses with inaccurate or outdated title deeds, mostly due to transfers not being recorded in the Deeds Office. Another 5 million people lived in RDP houses where no titles had been issued due to systemic inefficiencies. Along with 1.9 million people living in backyard shacks, 2 million living on farms belonging to others, and 17 million in communal areas, that gave a total of about 30 million people, which was nearly 60% of the population. All those people would need to be serviced by the amendment the Department was making in Clause 3.

She asked if that clause could realistically secure the land rights of all of those people. It would be a lot of work for the Deeds Office, and she wondered if the Department was ready for that. Had the Department explored the corresponding implications of the recordal of land rights in, for instance, the interplay and interdependence of various pieces of legislation between other departments and their entities. Had the Department explored the practicability of recording those rights, especially where surveying of the land was concerned? Did the existing Deeds Office have the capacity to implement recordal of the rights, and how was that envisaged to be done? Had the traditional authorities, who at present had custody of the informal land, been adequately consulted on that amendment? What was the justification for removing the power of making regulations from the Board to the Minister?

Ms Mahlo agreed with Ms Thlape; she had covered most of what Ms Mahlo wanted to ask.

Mr Kruger said he was covered by his colleagues.

Ms T Breedt (FF+) was also covered by her colleagues.

Mr M Montwedi (EFF) was also concerned that the Bill was taking the powers of making regulations from the Board to the Minister. Why was that the case? His colleagues had covered the issue of the recordal of rights. He felt that the recordal of rights was problematic. Did the recordal of rights include communal areas in the former TBVC states?

What was the guiding legislation of how the process to record the rights would be followed, including who qualified? Those were not matters that could be left to be dealt with in the regulations. Where there were disputes, who in the Deeds Office would resolve them? Who would facilitate the recordal of rights in terms of the conveyancers or officials in the Department?

Mr Dlamini said he was covered by his colleagues.

The Chairperson’s questions had four themes: Procedural questions concerning tagging the Bill; registration of powers of attorneys; the composition of the deeds registries regulation board; and the recordal of land tenure rights.

On tagging of the legislation: Given the question of the recordal of land tenure rights that had been allocated by government or any competent authority, did that include land rights allocated under indigenous or customary law by traditional authorities (e.g., amakhosi) or leaders in rural communities? Members were also aware that a Section 76 Bill was any bill whose provisions were a substantial measure falling within a functional area listed in Schedule 4 of the Constitution. Areas listed included indigenous law, customary law, and traditional leadership. What lessons could be drawn from the Tongoane matter or CLARA judgement, especially on the questions of substance, purpose and effect? Since there was no other legislation (at least in his knowledge) dealing with the issue of clarification or adjudication of rights unregistered and informal land rights; did the Bill not imply that those issues would be dealt with under it? In short, did the Department consider the Deeds Registries Amendment Bill as an ordinary bill that did not affect the provinces?

Regarding powers of attorneys: Clause 3(c) provided for the registration of powers of attorneys; what was the rationale behind that provision? What was the Department trying to address or correct with the proposed amendment? He raised that point because sometimes Members would find themselves “legislating for internal inefficiencies” of the Department.

Regarding the deeds registries regulation board: The Bill took away the power of the Deeds Registries Regulation Board to make regulations. It gave the powers to the Minister, who acted based on the recommendations from the Board. What were the challenges with the current provisions where the Board could make regulations? In what ways were the changes going to improve the deeds registries system? The number of board members appointed by the Minister increased from four to seven. What were the reasons for that increase? Were there any challenges experienced? The Bill also did not include the Chief Surveyor-General in the names of the seven members of the Board. Why was that? The South African deeds system was underpinned by cadastre, a key function of surveyors. In his view, that was particularly important because of a proposal to introduce a recordal system, especially recordal of unregistered, informal rights.

On the recordal of tenure rights: The Chairperson asked if anyone from Mvezo, where he was from, could approach the Deeds Registries Office to apply for recordal of rights under the term of that legislation. In some cases, unregistered rights in traditional communities were not individualised. Those rights were sometimes vested at the level of family and enjoyed by all members of the family. In other cases, tenure rights were communally held, for example, grazing rights on communal land. How would those rights be recorded? What policy or legislation guided Members in that process? Members knew that unregistered land rights were not surveyed in some cases, and there was no mapping. In some cases, it led to land disputes about who owned which rights on what piece of land.

Whilst the recordal of rights was a noble initiative, there were fundamental questions about clarifying and confirming the rights and the mechanisms to deal with the disputes. Could the Department inform the Committee which legislation dealt with those matters? Further, the Bill empowered the Minister, based on the recommendations of the deeds registries regulation board, to make regulations regarding the forms of applications, certificates, registers, and other documents used in connection with the recordal of land tenure rights. That was problematic because there was no legislation and no policy to guide the complex system of clarifying unregistered tenure rights. Firstly, who could apply for recordal of rights? What were the requirements? He asked the Department to explain the provisions in Clause 3, where he was interested in understanding the following: Did land tenure rights issued by any competent authority include tenure rights issued by traditional authorities in customary law or indigenous law? Should the Committee not pass the Communal Land Tenure Rights Bill, or communal land tenure policy before it passed that amendment, or recordal of rights? Did the registration of the conversion of land tenure rights to another form include conversion from customary rights to leases, as seen under the Ingonyama Trust Board? If it did, was the amendment legalising what the court had already ruled unlawful? Similarly, did the registration of the conversion of land tenure rights to another form of tenure rights include issuing title deeds to residents on communally owned land under traditional councils and traditional authorities?

Department’s response

Ms Reynolds responded to Ms Thlape’s question on financial implications. She said the object memo stated that there were no financial implications. On the development of the Electronic Deeds Registration System (EDRS): The Department went through the parliamentary process regarding the EDRS Act 19 of 2019. Section 2 of that Act had been promulgated. Section 2 of the EDRS Act provided for the Chief ROD to develop and maintain the EDRS. While the Department was busy with that Act, it did do a SEIA study. The deeds registries functioned on a deeds trading account. The Department created its own fees regarding the registration of deeds, and the supply of deeds registration information.

The deeds registries regulation board sat annually, and it discussed Section 84 of the regulations to the Act, which contained the schedule of fees. The fees increased every year and went to the NT for improvement. Monies from the trading account were being used to develop the EDRS, and there were sufficient funds to develop that. The NT also allowed the Department to keep behind a certain amount of monies to pay for the development of the EDRS. The Deeds Registration Branch in the Department was paying for the development of the EDRS. That was done and discussed with the promulgation of the EDRS Act. It was also dealt with in the SEIA study done regarding the EDRS Bill. The only matter related to the EDRS Act in the current Deeds Registries Amendment Bill was to amend the provisions of the latter Bill to allow for electronic recordal of land tenure rights.

On the recordal of land tenure rights, and that there was no enabling legislation in place: Ms Reynolds confirmed that there was no enabling legislation in place. Such legislation was needed to address the creation and identification of those rights. The enabling legislation also needed to address dispute resolution mechanisms. Those were all things that could not be addressed by the ROD. The ROD attended to the registration of deeds and the recordal. With issuing those rights, the Department was amending Section 3 of the Act to provide for the recordal of land tenure rights that had been lawfully issued by government or a public authority. During public consultations, the question was asked about who the competent authority was. That was a question the Department could not answer, because all those matters would have to be addressed in enabling legislation. The short title of the Bill dealt with the coming into operation of the provisions of the Act. The short title provided specifically for the following sections: Clause 3(a), which extended the duties of the ROD to attend to the recordal of the rights. All those clauses which dealt with recordal, including the making of regulations by the Minister regarding the forms that had to be followed with recordals, were provided for in the short title of the Bill (clause 14). The short title “provides for the coming into operation of clauses that deal with the recordal, in compliance with the requirements of any law of land tenure rights lawfully issued by Government, at a later stage.” The clauses would come into operation on a date to be determined by the President by proclamation in the Gazette. The remaining clauses would come into operation on a date of publication in the Gazette.

On the removal of power from the Board, and to vest that power in the Minister: If one looked at the provisions of Section 9 (amended by Clause 5), it currently provided that the Board had the power to make regulations. If one looked at the examples of the following acts, one would see that the power was given to the Minister to make the regulations: The Sectional Titles Act 95 of 1986, the EDRS Act Section 5, and the Upgrading of Land Tenure Rights Act Section 24(c). However, the Board, such as the sectional titles regulation board, made recommendations to the Minister. The Board was represented by the Banking Association of South Africa (BASA), the relevant council of architects, the council of land surveyors, etc. were all experts in their field, and came up with proposals. The Board made recommendations to the Minister for the amendment of the Act. It was the same with the Upgrading of Land Tenure Rights Act, where the Minister made regulations. With the Deeds Registries Act, the Department wanted to align those provisions with the provisions of the other legislation. If one looked at the legislation that was being administered by the Department Human Settlements (DHS), such as the Sectional Titles Schemes Management (STSM) Act 8 of 2011, and the Community Service Ombud Act, there was a board established in Section 24 of the STSM Act. That Board made specific recommendations to the Minister of the DHS. The Minister then made the regulations. The Department wanted to align the pieces of legislation. It was not taking any powers away from the Board, but instead aligning the Deeds Registries Act with the other legislation. The boards were represented by people with expert knowledge, and they made recommendations to the Minister. The Minister then made the regulations (as would be provided in the Government notice that was to be published).

On Section 3 making provision for the recordal of land tenure rights by a ROD without the enabling legislation being in place: It was also the thinking of the Department that if it extended the duties of a ROD to attend to the recordal of those rights, it then placed that enactment of that provision “on ice”, to enact that provision once the enabling legislation was in place. All were aware of how long it took to process a bill through Parliament. If the Department waited for the enabling legislation to be promulgated, and then amended, the Deeds Registries Act again, then it could take another few years to come back to Parliament with an amendment to the Deeds Registries Act to amend Section 3. The Department also wanted to be proactive and bring that amendment into the Deeds Registries Act, while putting the enactment of those provisions on ice until the enabling legislation had been promulgated.

On legislation regarding the former TBVC states: Ms Reynolds was unsure if she understood the question. She observed that there were proclamations that provided for the issuing of Permissions To Occupy (PTOs), quitrents (which could be defined as “a tax or land tax imposed on occupants of freehold or leased land in lieu of services to a higher landowning authority”) etc. Those were land tenure rights that traditional leaders and councils issued. For example, a traditional leader may, on a local level, issue certain land tenure rights, quitrents, etc. The first phase that the Deeds Office was busy with, including the development of the EDRS, was to provide for those quitrents and PTOs to be captured into the EDRS. Those recordals were not taking place with the ROD, as the Department now envisaged with the amendment of Section 3.

Those recordals were tenure rights issues under other legislation and proclamations. However, in the first phase of the EDRS, the Department was going to provide for the capturing of those already-issued rights and quitrents. It would provide for electronically capturing those rights into the EDRS system. On whether the Department had explored ways to protect the rights of people in RDP houses and those on communal land: There were many people who had unprotected rights. That was where the Department was now with the first phase of the EDRS – it was to provide for the capturing of such rights into the EDRS, so that the Department could have a database regarding rights that had already been issued on a local level by traditional leaders.

There was a question on the rationale for the amendment regarding the regulation board, specifically amending Section 9 to move that power from the Board to the Minister. The Department wanted to align Section 9 with Section 54 of the Sectional Titles Act. Section 54 provided for the Minister to make regulations upon recommendation by the Board. The Minister could not make regulations without the recommendation of the Board. There needed to be recommendations by the Board to the Minister, with the Minister then making those regulations. The same process would be followed in terms of Section 5 of the EDRS Act, where the Board would make recommendations to the Minister. The same process would also be followed for the STSM Act, administered by the DHS, and the Community Schemes Ombuds Act (Acts 8 and 9 of 2009). The amendment aligned Section 9 of the Deeds Registries Act with other legislation.

On the composition of the Board: The deeds office operated on a deeds trading account. Regulation 84 of the Deeds Registries Act contained a schedule of fees of office, and it provided for different fees that had to be paid for different types of registration. A deed of transfer for a property up to the amount of R1 million would attract a particular fee, for example. The cancellation of a bond would attract a different fee. The Board sat once a year, and in the Office of the Chief ROD, a senior financial officer would give a presentation to the Board. The Board was represented by the Legal Practice Council (LPC) members, etc. Members looked at the increase, and discussed whether it was justified. Due to the operation of that fee account, as well as due to the development of the EDRS system, there was a need identified for members with expert knowledge on financial issues, information and communication technology (ICT) issues, etc. to form part of the Board. Section 9 was amended to provide for the senior financial officer in the Office of the Chief ROD, and the senior financial officer of the NT. There would also be a member from BASA, a conveyancer from the Office of the State Attorney, and a Chief Director of ICT. There was an increase in membership, but Section 9 also provided for how departmental officials would not receive remuneration for attendance of the Board. It was only members such as those from the Law Society, BASA, etc. who received remuneration regarding the hours of preparation and the fees payable to those members were also done in consultation with the Minister of DALRRD and the Minister of Finance. There were increases regarding the BASA and State Attorney’s Office members.

On the tagging of the Bill: She suggested that members from the OCSLA could talk about the tagging. With those sections that dealt with the recordal of land tenure rights, those provisions were put on ice until the enabling legislation was in place. She then gave her opinion on the enabling legislation. If for instance, the Communal Land Tenure Bill (CLTB) was to talk about those issues, then the SEIA of the CLTB would have to talk about the recordal issues. Such issues could include who would be the competent authority to issue those rights, and if the creation of rights would be over state land or private land. On whether anybody could apply for a land tenure right to be recorded in the Deeds Office: That would have to be addressed in the enabling legislation. The Deeds Registration Branch did not have answers to those questions. That would have to be addressed in tenure legislation that the Tenure Branch would probably draft, and she did not know if it was going to be addressed in the CLTB. The Deeds Registration Branch did ask the question, and it did not appear to be the CLTB when it did raise that question. The tagging of the CLTB would probably result in a Section 76 bill. But due to the Deeds Registries Amendment Bill being technical and only providing for the recordal and registration issues, the OCSLA did not tag it as a Section 76 bill.

On whether anybody could apply for the recordal of a tenure right: That was a question that Ms Reynolds could not answer at that stage. With the upgrading of land tenure rights in terms of the ULTRA, it provided for the opening of townships, and on the date of the opening of townships, certain of those rights were automatically converted into full title. Additionally, that was also being amended to provide for an application to be made to the Minister for upgrading into ownership. Section 2(2) of the ULTRA provided for a ROD to record and endorse title deeds regarding upgrading that right into a full right. The Department had an enquiry two weeks ago asking the Office of the Chief ROD if a man could bring his title deed – a leasehold – that needed to be endorsed in terms of section 2(2) of the ULTRA to reflect on his title deed that the deed had been upgraded. The Department did tell that person that Section 2(2) did provide for a person to walk into a deeds office, and then the ROD would endorse that deed. In that specific case, the deed was endorsed in terms of Section 2(2) of the ULTRA. The ROD would then endorse that title deed to reflect that that title deed (that leasehold) was now being upgraded into full ownership. If enabling legislation provided for that, then a person would be able to walk with their land tenure right into the Deeds Office, and the ROD would then (without the need for charging office fees) endorse that leasehold to reflect that it was converted into full ownership.

Ms Reynolds observed that the Chairperson was right to point out that there was no legislation dealing with dispute resolution mechanisms. The Chairperson also raised questions on sections not addressed in the presentation. After the Schedule, there was a Memorandum on the Objects of the Bill. The Chairperson asked why the amendment to Section 62 of the Act was being done. Clause 9 of the Bill dealt with the amendment to Section 62 of the Act. Section 62 of the Act dealt with the registration of notarial bonds. Currently, the Act states that a notarial bond had to be registered in the area of the jurisdiction of the Deeds Office in respect of the person that wanted to register a bond in the area in which they resided, as well as the area in which the debtor carried out business. It may be that a person lived in Cape Town but carried out business throughout the country. Section 62 currently provided that the notarial bond had to be registered in, for example, Cape Town, within a period of 30 days from the date of attestation of that notarial bond by the Notary Public.

That section also provided that the same bond had to also be registered in all the other deeds registries in the areas in which the debtor was carrying out business. Section 62 then provided for a further 30 days to register at those other deeds offices and a further 30 days in the next office. It was therefore very ambiguous to interpret the wording of Section 62. The amendment was to clarify the position regarding that further 30 days. It was now amended to say that “the notarial bond shall be registered within the first deeds registry within a period prescribed by Section 1”. That period was 30 days from the date of attestation. The amendment read: “A notarial bond which was required to be registered in more than one deeds registry shall be registered in the first registry within the period prescribed by subsection (1) of section sixty-one, in the second registry within an additional period of four months from the date of its registration in the first registry and in each successive registry within a further additional period of four months or within such extended period as the court may on application allow”. The procedure stayed the same; the amendment was just to clarify the period of registration of the bond in the next deeds office.

On the amendment of Section 10 of the Act: Section 10 contained the list of subjects in respect of which the Board could currently make recommendations to the Minister for amendment. To be proactive, the Department deemed it necessary at that stage to also provide for the Board to make recommendations to the Minister about the way certain forms, applications and consents had to be drafted. For instance, if a person wanted to apply for the recordal of a land tenure right or wanted to apply for a certificate of land tenure right to be issued, or for the cancellation of a land tenure right, then those forms would have to be prescribed by regulation in the Deeds Registries Act. To be proactive, the Department brought that amendment into Section 10, but Clause 14 of the Bill provided for all those clauses that dealt with recordal to be put on ice until such time as the enabling legislation was promulgated. The Department would then request the President to issue notification for those sections that dealt with recordal to come into operation.

Ms Carlize Knoesen, Chief Registrar: Deeds, DALRRD, responded to questions. She observed that the deeds registration system had been criticised in the past, on the basis that it did not cater for the rights of all citizens in South Africa, and that the system needed to transform. The recordal process was an attempt towards that transformation that was required. Hopefully, there would be a day in the future when the system would be able to have all rights reflected in it, and could be accessed for information, and provide proper information for Government purposes when that is required, for example, in land audits, etc.

There were initiatives in the Department to pilot recordals in certain provinces to test how they would be recorded, etc. From the pilots, a decision would be made to inform the enabling legislation that the Land Tenure Branch of the Department would draft.

Ms Knoesen also observed that Government officials on the Board included people from the NGMS and the Surveyor-General's Office, etc. The Minister approved the officials who served on the Board.

Chairperson’s Closing Remarks

The Chairperson thanked the Members for their participation.

He observed that both the Plant Health Bill and the Deeds Registries Amendment Bill were with the Committee. According to the National Assembly rules, after the first briefing, the next step was to call for public participation. The Secretariat had worked on the advertisements for the two bills, with which it would look at proceeding in tabling the advertisements. The Committee was waiting on the Animal Protection Bill to see if it would proceed, once it engaged on the issue of desirability of that. That Bill was also another bill which the Committee would advertise.

The Chairperson requested that the Department send the Committee a budget breakdown on how it planned to cover the shortfall to implement the Plant Health Bill, including the study Mr Serage mentioned. The Committee would process as much of the legislation before it as it could, so it could get it through before the close of its term. It would navigate accordingly, to see how best it could conclude on the bills.

He reminded Members that on Wednesday, the Committee was requested to send nominations for the ARC, which Members could do through the Secretariat, no later than 16:00 that day.

He also thanked the officials of the Department, including the Deeds Registry Office, for availing themselves for the meeting.

The meeting was adjourned.

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