Land claims affecting Safcol and Alexkor: Briefing by the Commission on Restitution of Land Rights

Meeting report

The Chairperson said the Department of Agriculture, Land Reform and Rural Development (DALRRD) would brief the Committee on the progress made on the land claims affecting the communities served by the South African Forestry Company SOC Limited (SAFCOL) and Alexkor. The land claim issues have been plaguing the communities since 2019, when the Sixth Parliament came into office. The Committee understood the complexity surrounding the land claim issues and the dynamics of the communities. While the Committee hoped that the DALRRD was resolving the existing issues, the presentation would report on the progress made. The Committee would subsequently engage with the report.

Presentation by the Commission on Restitution of Land Rights

Ms Cindy Benyane, Deputy Chief Land Claims Commissioner, Commission on Restitution of Land Rights (CRLR), said the Commission was an autonomous institution established by the Restitution of Land Rights Act, No 22 of 1994, to solicit land claims, investigate them, and attempt to resolve them through negotiation and mediation.

The mandate for restitution of land rights was derived from section 25 (7) of the Constitution, which stated that a “person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices was entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress”.

The Restitution Programme existed to facilitate the settlement of claims and provide restitution or equitable redress to victims of racially motivated land dispossession, in line with the provisions of the Restitution of Land Rights Act, no. 22 of 1994, as amended.

The CRLR contributed to the Department of Agriculture, Land Reform, and Rural Development’s (DALRRD’s) strategic goal: “Equitable access to and sustainable use of land for development promoted”.

A total of 79 696 claims lodged in 1998 were not only lodged with the CRLR. Claim lodgement also took place at various departments, police stations, post offices, and municipal offices. The restitution process contributed to the challenge of arriving at a definitive figure for 1998 lodgements.

SAFCOL

Highlighting the outstanding claims on SAFCOL and Komatiland Forests (KLF) plantations, she said at least 61% of KLF plantations were directly affected by land claims. In total, there were 51 claims on SAFCOL/KLF plantations in various stages.

ALEXKOR

Three land claims were lodged in the Richtersveld Local Municipality (RLM) and Namakwa District in the Northern Cape Province by Mr Henk Smith (Legal Resources Centre) on behalf of the Richtersveld Community (RVC) before the closing date of 31 December 1998 for:

• The land mined and operated by the State-owned Entity (SOE), Alexkor Diamond Mine based in Alexander Bay, and state-owned land—the land claim was settled.

• Mining Lease 2/91 Transhex Farm 11, Richtersveld—the claim was still in progress

• The land claim process on the remainder of portion ten of the Farm Grootderm No.10 was still in progress.

Mr Andrew Lawrence said the claim was referred to the Land Claims Court (LCC), and a settlement proposal was presented to Cabinet for approval. In October 2003, the Constitutional Court (Case Nr. CCT 19/03) concluded that the real character of the title that the RVC was dispossessed of was a right of communal ownership in the Richtersveld under indigenous law. The Minister of Public Enterprises entered into negotiations that culminated in signing a Deed of Settlement (DoS) and a Memorandum of Understanding (MoU) with Alexkor in 2007. The Minister of Agriculture and Land Affairs at the time co-signed the DoS and, in principle, the undertakings and responsibilities of the Department of Land Affairs. The DoS was then made an order of court for implementation by various stakeholders.

The DoS directed that at least two trusts and several companies be established to manage and operate the various business operations of the Communal Property Association (CPA). The Richtersveld Investment Trust (RIT) was the sole shareholder in the Richtersveld Investment Holding Company (RIHC). The community, assisted by the Legal Resources Centre, formed its legal entity known as the Richtersveld Sida !hub CPA. The CPA verified and compiled its list of beneficiaries and submitted it to the CRLR and the DALRRD. Approximately 2 630 beneficiaries were verified in the towns of Sanddrift, Kuboes, Lekkersing, Eksteensfontein, and Alexander Bay.

The financial compensation made available by the Commission was transferred to the RIHC as follows:

• R50 million for the development of the agricultural and mariculture properties or for other developments which would benefit the CPA members;
• R190 million to be grown and invested in terms of an investment policy and to provide an income for the RIT; and
• R45 million to the CPA for property development by the Richtersveld Property Holding Company (RPHC) which the RIHC would manage.

The property compensation consisted of:

• Several farms,
• The land on which the local airport is situated,
• The township of Alexander Bay, and
• Substantial mining areas.

The total property portfolio of the CPA was considerable and amounted to approximately 195 000ha which were spread over a vast and diverse area.

The DALRRD, under an order granted by the Northern Cape High Court on 28 February 2020, case 961/2019, appointed Honey Attorneys, represented by Mr Don Majiedt, as the Judicial Administrator of Richtersveld CPA for three years.

The main duties of the Administrator were to ensure that the CPA was regularised, and to ensure that the membership list of the CPA was updated.

A new executive committee for the Richtersveld CPA had been elected, and additional directors for the various companies in the CPA had been appointed to ensure compliance with the DoS and full functionality.

[See the attached presentation for details]

Discussion

Mr S Gumede (ANC) said the documents he received were not as detailed as the report given. This disadvantaged the Committee in asking pertinent questions which would assist in addressing the issues. The existence of multiple stakeholders could potentially affect the coordination of the restitution project. The land claims issue initially commenced in 1998 with 79 000ha of land. How many hectares had been restituted? Were communities not complaining about government's delay in executing its activities? For example, if a settlement with a completion date of 2010 was subsequently finalised in 2024, the community essentially did not enjoy any benefits for 14 years. How would the DALRRD compensate the community for that? It was understood that the communities would make the land claims but how were the benefits distributed to the community members? Hypothetically speaking, if a total of 1 500 communities made a claim, would the benefits be attributable to the communities as a whole, all families or individuals within those communities? If a beneficiary passed on before the settlement of the claim, would an alternate family member be elected to benefit from the restitution?

The Chairperson said he would understand if the Committee could not adequately engage with the report as the distribution of the presentation was delayed.

Mr G Cachalia (DA) said Alexkor and SAFCOL had not made any tangible progress in 20 years and an apology had not been received for the delay. SAFCOL currently faced claims on 57% of the land it operated on. Thus, the only thriving SOE was potentially threatened by land restitution claims. While the state instituted the land restitution claims, there were delays in finalising the process. Hopefully, the delays would be addressed. The pace of the restitution process was the opposite of the speedy resolution mandate taken. Out of the 51 claims in SAFCOL, 12 were supposedly settled. What were the terms of the settled claims as they could be used in making future projections of the impact of the remaining claims? Examples have been given of mutually beneficial agreements, collaborative initiatives, strategic partnerships, and social developments with joint community forums. However, the details of those agreements or arrangements had not been provided.

Alexkor made mention of prospective mutually beneficial arrangements but the information relating to the time frame of the agreement, the progress made, outstanding matters, etc, should have been disclosed. The minimal information given on a 20-year project, which affected the lives of people, was not sufficient. When the Committee embarked on an oversight visit in Alexkor, it observed dire conditions in the community. The Constitutional Court pronounced in 2003 that communities were entitled to a resolution on the land claims but that has not been effected after 20 years. According to the DoS, the Pooling & Sharing Joint Venture (PSJV) needed to be operational and legacy issues like housing and environmental damages needed to be addressed. Additionally, examples have been given on mutually beneficial agreements, collaborative initiatives, strategic partnerships, and social developments with joint community forums. However, the details of those agreements or arrangements had not been provided. The minimal information given on a 20-year project, which affected the lives of people, was not sufficient. The Committee was informed that Alexkor undertook to give effect to the DoS while ensuring that mining operations and the PSJV were commercially sound. The substance of the DoS agreement made no mention of being “commercially sound” but it referred to the rights of the community which to date have not been addressed. The transfer of land and the transfer of mining rights did not mean anything if the community did not receive the tangible benefits. An amount of R200 million was made available to continue with mining operations while R190 million would be paid to the RVC holdings over three years. Was there any guarantee that the money would be paid? How much has been paid to date? When would the funds which were supposedly in the Richtersveld trust be paid and how would the funds be allocated? The Committee was informed that the R45 million in the property holding trust would be distributed once a company was registered. How long did it take to register a company? How long did it take to resolve the CPA issues especially now that the CPA was under administration?

Individuals were not being held accountable. Both SAFCOL and Alexkor could not sensibly report what the net effect would be on the viability of the companies. The questions posed were crucial and the Committee was being deceived.

Mr N Dlamini (ANC) said he was concerned about the attitude and utterances of certain Committee members. If the Committee understood that the land restitution programme was a process and that processes generally had a completion period, some questions would not have been raised. The oversight visit to Alexkor highlighted that the term of office as per the Constitution of the CPA had lapsed. The CPA issue had nothing to do with government and had to be resolved by the RVC. Additionally, it had been observed that once the land had been distributed to the claimants, there seemed to be disputes among those claimants. Thus, such matters could not be solved by the DALRRD. A certain community in Kwa-Zulu Natal previously fought over restituted land and the community failed to use the land productively. The DALRRD should ensure that communities could sustain themselves on the land by productively using it. The major challenge in Alexander Bay was that the RLM refused to partake in the land restitution process because the municipality would subsequently incur costs on the land without generating any revenue. The Richtersveld CPA was currently in good standing and the joint venture had been established. However, challenges would still be faced until the RLM decided to get involved in the proceedings. The Committee should also consider possible opportunities like how to leverage the green hydrogen gas in Boegoebaai if it was part of the restitution process. The Boegoebaai area could be productive and the RLM could generate revenue from it. The Committee needed to be forward-looking and stop blaming each other. Even if the other political parties were in power, they would not be able to resolve the challenges faced. The Committee should rather focus on finding solutions to the problems encountered.

Ms T Siweya (ANC) said it was unacceptable to convey that progress had not been made. After listening to the Committee’s comments, it was unclear where the loopholes were, as she was happy with the progress made. The CRLR should ensure that it meets the timelines and the commitments mentioned in the report. The DALRRD should strengthen its communication and keep communities updated with the progress made to counter the narrative that the DALRRD was not attending to the land claims lodged.

Mr F Essack (DA) said the DoS signed by Alexkor in 2007 had still not been finalised. The Committee’s critical comments were factual and only simple questions were raised such as, “How long did it take to register a company?”. Realistically speaking, the government should take responsibility for the delay as people’s lives and livelihoods were affected. The promised housing settlement had still not been developed and it was unacceptable to merely state that the matter was progressing. The future of families, companies, and fortunes was at stake. The view of the Committee on the progress made was out of order and not in good faith. The land claims restitution matter should not be continuously concealed but addressed. Questions were raised on the ongoing conflicts in the RVC and whether the appointment of the judicial Administrator of the CPA for three years was finalised. If the appointment was not finalised, what would happen to the Administrator and the families on finalising the CPA process? Such questions need to be answered to yield substantial progress.

Ms V Malinga (ANC) said the land claims restitution matter needed to be finalised as it was long overdue and the Committee had been overseeing the matter for the past two years. Seemingly, SAFCOL delivered on its part and the onus was on the DALRRD to perform. Could the DALRRD explain why there was a delay in handing over the land to the respective communities?

Ms J Mkhwanazi (ANC) asked if the Committee could embark on another oversight visit to the Department of Public Enterprises (DPE) and DALRRD because it was previously discovered that the reports presented were not a true reflection of what was happening. During the oversight visits, the Committee would be able to monitor the progress and devise a way forward on the matter. The Committee was responsible for monitoring the progress, intervening in unproductive areas, and ensuring that the related communities would be sustainable moving forward.

The Chairperson said the Committee should not segregate itself into political parties when dealing with Committee matters. A portfolio committee should not be divided into political parties but be a united front in being Parliament’s representatives. The Committee is supposed to interrogate the report and interact with the information presented. The land claims restitution matter was so crucial that the Committee embarked on an oversight visit to SAFCOL where the Committee received a comprehensive report and met with the stakeholders in Mpumalanga. Additionally, the affected communities explained the complex issues they faced. The Committee also visited Alexkor and engaged with its board of directors, executive personnel, and the community which highlighted the challenges on their side that prevented the restitution process from being concluded. The restitution programme was not merely about providing the community with land but about engaging with the community and reaching a solution on how to solve the existing issues. The report presented highlighted that progress had been made compared to the reports previously received. Political parties were allowed to oppose each other in Parliament but not in a portfolio committee. The conduct of the Committee was unacceptable as it failed to engage with the presented information and dwelled on defending and supporting the views of fellow political members.

A heated argument erupted over the Committee’s conduct, the Chairperson’s remarks and ruling, and allegations against political parties.

Responses

Ms Nomfundo Ntloko, Chief Land Claims Commissioner, CRLR, said the role of the Commission, as per the Restitution of Land Rights Act, was to receive land claims, investigate the validity of the claims, and propose a suitable settlement on behalf of the Minister of Rural Development. To settle a claim, the DALRRD needed to communicate with the affected parties, the current owners of the land, and the claimants. Following the settlement of the claim, the role of the CRLR, which was separate from the DALRRD’s responsibility, would be completed. The DALRRD would then continue with the process, alongside the various entities involved. If the land in question was classified as forestry, then the Department of Planning, Monitoring and Evaluation (DPME) would be involved. In forestry, the parties involved would be SAFCOL, DALRRD, claimants, etc.

She said it was frustrating that she was being asked to respond to issues that were not within the jurisdiction of the CRLR. Perhaps a joint collaborative presentation with all the relevant departments would be beneficial to the Committee as departments would present a holistic view of their roles and each stakeholder would account for its jurisdiction. The jurisdiction issue was not only specific to the forestry aspect. The same issue had been experienced throughout the CRLR’s activities. However, the CRLR assisted with coordinating high-value and high-impact projects, hence the presentation mentioned better settlement models. An improved partnership was required between the CRLR as the acquirer of the land, the holders of the land, and various government departments and entities to assist in coordinating a sustainable project. Several questions asked by the Committee were not within the jurisdiction of the CRLR but responses would be given to the best of the CRLR’s knowledge.

The settlement between Alexkor and the Richtersveld community which the DPE led, was concluded and the CRLR delivered on its part. Over the years, it was discovered that the settlement model was too complex for the community. For example, multiple companies with a total directorship of approximately 50 people were established. The CRLR then had to revise the settlement even though it was outside its jurisdiction. However, CRLR understood that it was responsible for supporting the restitution programme. The matters around the CPA management and the appointed Administrator were within the jurisdiction of the DALRRD as per the Communal Property Associations Act, and the Director-General (DG) had the mandate to place the CPA under administration. Occasionally, the CRLR’s settlement time would be elongated. Thus, the CRLR was part of the Forestry Master Plan, where government departments could work together in fast-tracking the restitution process. If an agreement was reached on the settlement of the claim before the commencement of the restitution process, the CRLR could easily transfer the land to the claimants. However, if the transferor of the land did not have a plan on how to transfer the land, the CRLR was unable to settle the claim, and the claim would be referred to court.

When a beneficiary passed on, the Constitution of the community enforced either through the trustee or the CPA would provide the necessary guidelines. The settlement of the claim was household focussed. Any individual falling within the next generation of the deceased would endure the benefit which was attributable to the original dispossessed individual. Beneficiary amendments were handled by the community through the CPA and decisions would be made following the resolutions taken in an Annual General Meeting (AGM).

The CRLR acknowledged that 57% of land held by SAFCOL was under claims. However, the CRLR could only act to the extent of SAFCOL’s assistance on specific projects. It should be noted that the CRLR only focussed on the acquisition or financial compensation aspects of the restitution process. Thus, SAFCOL approved sustainable settlement models where communities obtained sustainable benefits, were included in the decision-making process, and skills were transferred to them. The CRLR did not have any forestry expertise and relied on SAFCOL to assist in creating those sustainable models. Once the land has been transferred, the CRLR would hand it over to the experts and partners to ensure the restitution process runs smoothly. Forestry was a long-term process and the CRLR’s duty was to negotiate with the community and to ensure that it understood its side of the agreement. However, on some occasions, it was difficult to finalise agreements by releasing payments to the communities because the funds were placed in accounts that the CRLR could not access.

The CPA was under administration through the DG's office and the CRLR followed the process and assisted where possible. The CRLR would stick to its timelines and communicate with the Committee where challenges were faced. The CRLR continued to have meetings with the forestry and fishing departments which led the Forestry Master Plan and remained involved in its processes and timelines. The provincial Heads of Department (HODs) of the Commissioner were aware of the CRLR’s responsibilities and understood its role in the Forestry Master Plan.

The CRLR had proposed settlement models which took into consideration the claims from various industries such as conservation, forestry, mining, agriculture, sugar cane, etc. The CRLR made attempts to determine the process which would be suitable in a specific industry, consult with the partners on their preferred model, inform the partners about the community’s preferred model, determine the restorability of the land, discuss the possibility of a partnership with the community, and determine the type of transformation available for the community’s benefit. The CRLR would continue to interact with the stakeholders in good faith to ensure that all claims were settled. 90% of claims lodged by 31 December 1998 had already been settled. Only 6 000 claims, at various stages, were outstanding. The CRLR prioritised the settlement of the outstanding claims but required additional human resource capacity and funding.

Ms Kubeshnie Bhugwandin, DPE, said the DPE had been working closely with the DALRRD to expedite the outstanding obligations. The Committee was welcomed to visit the RVC and examine the progress made to date. The DPE also had an inter-government steering committee and a task team established to discuss and expedite issues on shareholding, land reform, etc with various intergovernmental parties such as the Department of Forestry, Fisheries, and the Environment (DFFE).

Ms Morongwa Mothengu, Senior Mining Specialist, DPE, said the DPE was working closely with the DALRRD, the Northern Cape, and the provincial government on expediting the outstanding obligations linked to Alexkor]. Due to the complexity of the DoS, the DALRRD and the DPE were considering restructuring the DoS so that the beneficiaries could benefit from one of the biggest land claims in South Africa.

Follow-up

Mr Cachalia put forward the suggestion of having a collaborative session with all stakeholders presenting one report.

Responses

Mr Kgotso Moeketsi, Chief Director: Northern Cape Office, DALRRD, said the administration of the CPA was the responsibility of the DG of the DALRRD. The administration of the Richtersveld CPA had been concluded. The DALRRD previously informed the Committee about the issues around the CPA administration in June 2022. The CPA administration was subsequently concluded in February 2023. However, the DALRRD, through the DG, still had to report to the court as the administration was ruled upon by the Northern Cape High Court. The CPA has been regularised as per the presentation. However, several minor issues were not addressed when the Administrator's term lapsed. A resolution taken by the Richtersveld CPA in a constituted general meeting concluded that the unaddressed issues would be addressed by the newly appointed executive committee of the CPA which was responsible for running the day-to-day activities and ensuring that the government supported the CPA. The unresolved issues pertaining to the adoption of new members, the annual update of the membership register as per the Richtersveld CPA, assets, possible amendment of the CPA’s Constitution, investment, and community trust structures. The CPA, DPE, and DALRRD would be engaging with each other on the above-mentioned issues. The DALRRD was finalising a report that the DG would present in court.

The Chairperson said progress had been made on the restitution process since the Committee took over in 2019. The Committee had been informed about the state of Alexkor, the community’s interest, and SAFCOL. The Committee has only dealt with the land claims since 2019 and was able to assist in resolving some issues. While certain challenges remained unresolved, the Committee would hopefully address the issues by the end of its term.

He thanked the DALRRD and the CRLR for the presentation.

The meeting was adjourned.