Preservation and Development of Agricultural Land Bill: Department response to public submissions

Meeting report

The Chairperson welcomed the members, the delegation from the Department and other stakeholders interested in the Preservation and Development of Agricultural Land Bill (PDAL) to the meeting. The Committee had travelled around the country since the 20th of June visiting all provinces and engaging in its oral Public Hearings. The Committee received written submissions through the advert that was put out by the Portfolio Committee, and having received those written submissions, the Committee embarked on public hearings across the nine provinces of the country and concluded those hearings in the Western Cape, and thus were able to proceed with national public hearings that were held on Tuesday in a physical sitting that was in Parliament.

Having considered all the submissions that were made, the Committee invited the Department of Agriculture, Land Reform and Rural Development (DALRRD) to brief it on the issues raised by the public through their oral and written submissions regarding the PDAL Bill.

Briefing by DALRRD on responses to written and oral submissions on the PDAL Bill

Mr Mooketsa Ramasodi, Director-General, DALRRD, said the PDAL Bill was one of the most contested pieces of legislation over the past few years and this led to the many comments that were received over the past few months. He thanked the Portfolio Committee for the broad consultation on the Bill and acknowledged that the colleagues from the Department who were with the Committee throughout the consultation period noted what transpired.

Ms Lydia Bosoga, Director: Land Use and Soil Management, DALRRD, presented the Department’s response to submissions on the Preservation and Development of Agricultural Land Bill. She said the common themes that were expressed during the oral public hearings in all the provinces by communities, farmers, land users and the public included access to land/Land ownership/title deed/claims; introduction of agricultural subjects at schools; concern with the implementation of PDAL Bill due to past experiences of legislation passed, as well as over-regulation by the government; limited support, infrastructures and funding provided to farmers.

The Department noted and agreed with the expansion of the definition of landowners to include people whose rights are not registered in terms of the Deeds Registries Act. The view was that “Land Owner” as it is defined currently in the Bill does not take into consideration those who do not currently have title deeds to their property.

The Department also noted and accepted an input which raised a concern that Clause 11(2)(b) refers to “food production” and would limit other commodities that also require high-value agricultural land such as wool, timbre and agricultural feed. The submission proposes for the definition to be extended to include commodities related closely to the agricultural sector that depend on agricultural land.
 
The Department also agreed and accepted proposals to consider some of the definitions to strengthen regulatory measures, including Clause 1, which covers “agricultural land”. The submissions made stated that the exclusion of land in terms of the Subdivision of Agricultural Land Act, 1970 (Act No. 70 of 1970) by means of a notice in the Gazette should be reconsidered.

Among the inputs the Department noted and declined is the proposal relating to Clause 21: on the establishment of committees. The submission was in reference to subclause (7)(a) and proposed that there is no reason to exclude foreign nationals who bona fide live and work in South Africa.
 
The Department also did not agree with the inputs on Clause 36-37, which proposes that Offences – 3(c) should not be an offence and authorisation ought to be revoked. It further raised a concern that Penalties – 2(a) & (b) limit the court's discretion regarding penalties and these could rather be inserted as administrative penalties and enable the courts to make any order that would be just and equitable in the circumstances. The Department emphasised that the intention of the clause is to deter offences at the very first instance.

Ms Tshepo Mahlaela, Legislation Specialist, DALRRD said the Department submitted a comprehensive word document where all the responses were covered. The first concession that the Department made as it considered the comments was around the definition of “land owner”, as the criticism was that the definition excluded people whose rights are not registered in the Deeds Office. The second concession was that the clause relating to the establishment of Committees (Clause 21), speaking to instances where a person will not qualify to become a member of the Committee, stakeholders recommended that the clause includes a disqualification for people who have been disqualified from serving as Directors in terms of the Companies Act.

The third concession was in terms of Clause 31 (3), where the Bill makes provision for an inspector to access property without giving prior notice, the Department conceded that the concerns that were raised, especially regarding safety, it might have to consider allowing for notice without necessarily compromising the initial intention of being able to intervene before contraventions are covered up. In the meantime, the Department will draft a recommendation to be included to cater for the ability to give notice without contravention of the clause.

(See Presentation)

Discussion

Dr M Tlhape (ANC) acknowledged and appreciated the presentation from the Department noting that the Committee had an intensive interest from organised agriculture and other interested stakeholders. She agreed with the submissions and concessions made by the Department and was satisfied with the responses from the Department.

Mr N Masipa (DA) said the Land Care area in the Department is not regulated as well as this Bill is going to be, but the Bill talks about land care management through the promotion of sustainable use practices which also involves local people taking local actions in their local areas to achieve sustainable land use and management thereof. He felt that it must be clarified how those resources are going to be used in the application of the Bill.

He felt the Department needed to clarify its reasoning regarding the agricultural land versus the private land owners. In one of the responses, the Department mentions all agricultural land and publicly owned land in its response, but private land ownership is not addressed. He was happy that the Department reconsidered the idea of an inspector accessing the property without giving prior notice. The Bill has no indication of timeframes regarding the application of the competent authority and it should not be delayed.

Mr S Dlamini (ANC) said the report from the Department reflected what was raised by the public and addressed the concerns that were raised, but the implementation of the Bill will be important. He accepted the report as received.

Mr M Montwedi (EFF) was of the view that the categorisation of the consolidated views does not speak to the Bill directly and wanted to know if this view was correct. He also wanted to know what plans the Department has to deal with the issues raised because they are serious and are common among the stakeholder inputs.

Mr N Capa (ANC) appreciated the Department for its ability to guide people into sticking with comments on the PDAL Bill and their responses to their comments. He asked for clarity on how the Department intends to convince those who oppose the Bill to understand that the Bill intends to control and manage activities that have a negative impact on agricultural land. He asked whether the phrase “high value agricultural land” and “prime agricultural land” were interchangeable.

The Chairperson asked if the Department reckoned the definition of ownership should be extended to the rights recognised in terms of the Interim Protection of Informal Land Rights Act (IPIRLA) as most of IPIRLA rights are on land under administration by institutions of Traditional Leaders. His concern was that the Department and the State Law Advisor said it was not necessary to officially refer the Bill to the National House of Traditional Leaders (NHTL). Is this not going to affect the constitutionality of the legislation, especially if they express concerns about making decisions about the land they administer without considering their input? There is already a challenge regarding the Spatial Planning and Land Use Management Act (SPLUMA) which has not been resolved. Will this not lead to a contestation by Traditional Leaders in the future?

Ms Mahlaela said any decision that will be made either in the declaration of an area as a protected agricultural area either provincially or nationally will be done in consultation with anybody and everybody concerned. The Gazetting will invite comments and the Department will go as far as making notices on radio networks in the areas where it will be working, so land under Traditional Leadership will also be subjected to that type of consultation, and in that way, the required consultation with Traditional Leaders will be catered for.

Ms Bosoga said Land Care will indirectly contribute to this Bill in terms of implementation because the Land Care Programme is implemented concurrently with the provinces and it addresses the objective of the Conservation of Agricultural Resources Act (CARA), of which parts of it talk to maintaining the production potential of land. The Department sees the alignment of the maintenance of the production potential of land with minimal resources that are given to provinces to implement, and the PDAL Bill will ensure that the identified high-potential areas will be utilised and maintained productively. This will result in the promotion of the Land Care Programme and the promotion of activities that are aligned to the Bill, including the Agro-ecosystem approach.

Currently, the Subdivision of Agricultural Land Act (SALA) applies to all private land, so the inclusion of state land and communal land is taken care of within the Bill, but the Department will continuously implement PDAL taking privately owned land from SALA. The Department is currently receiving applications from private owners to subdivide their properties, with consents being issued after consideration as guided. The continuation of private land owned will be within PDAL Bill and other areas of the state which were not previously available.

The Department notes the comment regarding the time limit to be offered to the competent authority so that it does not delay the implementation of agricultural activities and believes that this is part of the Bill in line with sections 35 (i) and (l). There are regulations addressing the issue of time frames in the section as is the case with the SALA, where there are also provisions for when and where appeals can be made in the case of contested decisions or if the applicants feel aggrieved. The Department noticed that most women are involved with agricultural activities and felt the need to capture data to assist it in knowing the sectors and categories available to guide its programmes to support and assist those who are involved and not taken care of.

The Department acknowledges that some areas that were raised around the broader categories of issues that still persist within the Department must be addressed. The public consultations across the provinces gave the Department an understanding of how it can serve the land users better, and to a greater extent, there were some areas in some of the provinces where the Department took lessons from, for example, the conservation farmers in Limpopo. The Department noticed that in most of the areas, support is needed and perhaps the name of the Bill might have confused some to think it is about land allocation or that the Bill was meant to address some of their outstanding claims that were not addressed and were never afforded a platform to be addressed. The Agricultural Sector Plan will guide every support that the Department will give with its limited resources, but other avenues to provide support to farmers will be explored.

The Department must continuously generate reports on the number of applications it has dealt with and the impact it has made, as well as land that has been administered, etc., to deal with those who do not support the Bill. Giving them concrete data will provide evidence of the impact of the Bill and possibly increase understanding and consensus. There are provisions in the Bill that indicate how the Department is moving forward with the Agro-ecosystem and clarifies that the unique agricultural land is land that could be used based on the climatic condition of the space. The Department also engages in a concurrent function at its Natural Resource Management Working Group with the provinces to pick certain sites to address issues that affect farmers in other ways that are not related to the Bill.

Mr Ramasodi said the current subdivision of agricultural land already regulates some of the functions that happen on agricultural land. In terms of SALA, there is an exclusion of publicly owned land and this has a negative impact because some land is lost because some of the high-value land is publicly owned and there must be interventions to address this. In terms of agricultural land, if there must be a change in terms of land use, an application must be made and transferred to the new PDAL Bill so that it can be dealt with as privately owned land.

The National Environmental Management Act applies to environmental implementation and management plans which are the subject of a broader context of acts that need to be done. The Promotion of Administrative Justice Act already covers the issues around how the administration should be emitted in terms of issues regarding various legislation in the ambit of government. The Department coagulates any issues that are not related to the Bill that were heard in the public consultations as part of service delivery concerns that it will deal with. Although there might be non-intended consequences within the consultation processes, they are still a value add to the Department in terms of the way it does its work. The Department may need to define “high value agricultural land” to include relevance to that word to ensure that they are consistent in their writing instead of using two words interchangeably.

Mr Masipa said Clause 15 of Agro-ecosystem authorisation talks about the competent authority to deal with applications and that is where he was referring to his previous question. With the legal inputs from the Department on the inclusion of land and communal land as well as the SPLUMA challenge with the Traditional Leaders, this implies that the Bill might either need to be stopped and referred to public engagements with Traditional Leaders or referred back to the Department to consult with the Traditional Leaders because the Committee came this far with the Bill with the understanding that communal land and Traditional Leaders were excluded from it.

The Chairperson said his input was a real concern which was centred around consultation that was done in the law-making stages and he wanted to know if Traditional Leaders had been engaged with.

Ms Bosoga said timelines can be provided for different categories of applications, for example, if it is a change of application of land use, because of the nature of the assessment, it can be provided after a specific period, and it could take a different waiting period for a subdivision of land. The timeframes will differ in terms of the coordination of responses required to make a decision and that can be provided for in the regulations.

Regarding consultations, the Department held some meetings with Tribal Authorities, including the Ingonyama Trust in KZN, and in moving forward with the State Law Advisor, it was explained that core to PDAL is more of assessing the land and providing information to assist in decision making. The Department will not take any power from Traditional Leaders to make decisions, but what is important is that a Departmental official will go and assess the land in question, and provide feedback to the relevant authority. The Department will manage the concurrent function between national and province to ensure that there is support to ensure that agricultural land is developed.

Ms Mahlaela said the Department agrees with the Office of the Chief State Law Advisor that the requirement to go to the NHTL from a legislation drafting point of view is that this only applies where the Bill contains provisions which have an impact on customary law or customary traditional communities. The Bill will not affect issues of ownership, but the intention is that if an area that is under traditional leadership has what could be classified as high value agricultural land, the steps will be followed to consult with every stakeholder.

Mr Ramasodi said a curveball was thrown in terms of interpretation on the matter, and perhaps this meant when referring to agricultural land and publicly owned land it meant that some land within the publicly owned land is not defined as agricultural land and would need to be defined as so. He asked the Committee to allow the Department some time to engage on the matter and revert to the Committee on its view and also consult another legal view.

Concluding remarks

The Chairperson said the Committee will engage with the Secretariat to see if any further input will be needed from the Department, and if not, the Committee will probably request a written submission on the issues so that the Committee can move on with its plans of concluding the PDAL Bill and table a report before the National Assembly on the work that it has done.

He thanked the members as well as the Department for their engagement on the responses to the PDAL Bill.

The meeting was adjourned.