Preservation and Development of Agricultural Land Bill: Inputs by Committee Staff & Parliamentary Legal Service

Meeting report

The Chairperson welcomed Members of the Committee, the Department, the support team, and legal services. He said they were continuing their engagement on the Preservation and Development of Agricultural Land (PDAL) Bill and would receive a summary of stakeholders comments from the Committee content advisors. Also, legal services would take the Committee through further deliberations on the Bill.

Key stakeholder issues on PDAL Bill

Introduction

Ms Nokuzola Mgxashe, Committee Content Advisor: Agriculture, told the Committee the briefing was a high-level overview of the key issues raised by stakeholders, and dealt specifically with the concerns raised at the provincial public hearings. One of the main issues raised by the stakeholders had been the non-consultation and recognition of traditional leaders. This was raised consistently throughout the provinces. Consultation of traditional leaders was significant, as they were the custodians and administrators of communal lands. The responses highlighted how advisory committees and other institutional structures should contain not only technocrats, but also traditional leaders.

Technical definitions and applicability

The Bill had been drafted with large-scale commercial agricultural enterprises in mind, and did not take into account the duality of South African agriculture as evidenced by some of the technical definitions that were irrelevant to communal and subsistence farming. This section provided some examples of definitions that had a lack of clarity.

(See presentation for list of definitions).

Impact of climate change

To address climatic changes, there should be an up to date, regularly maintained and easily accessible database on agricultural, climatic and soil conditions of the country. The Department had responded that the impact of climate change would be addressed through the agro-ecosystem delineation, sector plans and implementation applicable to the relevant agro-ecosystem. However, it might be necessary to include responsiveness to climate change in the prescribed criteria for the compilation of agricultural sector plans in Clause 6.

Advisory Committee

The Bill’s institutional structures proposed in Chapter 4 should recognise the expertise of private individuals and civil society organisations already involved in facilitating and promoting conservation agriculture.

Regulation of game farming

In some provinces, concerns were raised about game farming and how the Bill did not provide clarity on biodiversity management in respect of keeping game/wildlife, except in the definition of “agricultural purposes” through the reference to keeping wild animals. The Department needed to clarify whether game farming in the country was administered under Department of Agriculture, Land Reform and Rural Development (DALRRD) or the Department of Forestry, Fisheries and Environment (DFFE), and further clarify how game farming would be regulated through the PDAL Bill.

Implementability of the Bill

The cost and administrative burden that the Bill proposed to farmers and other spheres of government would render it not implementable. It was proposed that the Subdivision of Agricultural Land Act (SALA) Repeal Act should be signed into law and a new Policy be developed to ensure transformation and land reform.

Municipal commonages

There was a lack of a policy to manage and regulate the use of municipal commonages. The municipalities did not see farming in commonages as their responsibility. Even in cases where they leased commonages to farmers, there was no provision of services. Some would rather prioritise commonages for housing development. Clarity was sought on the management responsibility for commonages and the impact on the implementation of PDAL.

Monitoring and evaluation

The Bill should provide for the establishment of an independent business chamber for monitoring, evaluation and assessment of the implementation of the Bill instead of the function being the sole responsibility of the Minister and Members of Executive Councils (MECs), as proposed in Clause 23 of the PDAL Bill on the performance assessment framework.

Accessible and effective means of communication

Stakeholders had emphasised that the Government Gazette and national newspapers were not effective and accessible media of communication, especially for rural people. Therefore, other media such as community radio stations, TV and municipal offices, should be considered. Furthermore, communication should be in local languages. 

Intergovernmental relations (IGR)

Poor coordination between government departments would negatively impact the capacity to implement the legislation, as government departments worked in silos and relied on implementing agencies. DALRRD had responded that conflict in relation to agro-eco authorisations would be addressed through intergovernmental relations processes. The Bill should have a clause that clearly strengthens intergovernmental relations, which was the only way that the Bill could be effectively implemented. Relevant officials from local government and departments should be well-capacitated to implement the Bill.

Concurrency of agriculture

There were some issues raised regarding the wording where provisions would have direct and significant impacts and consequences at the provincial level, and it was recommended that they be amended to require the concurrence of the MEC in the province in which the land was situated. These were Clause 5(2) -- exclusions from land evaluation and classification by the Minister -- and Clauses 16(1), (2) and (3) -- the listing of activities and agricultural areas by the Minister. The Department did not accept the recommendations. 

Integration of authorisations (1)

Regarding Clauses 14 & 15, the Bill would introduce greater regulation on landowners/users in respect of agro-ecosystem authorisations, but it was not clear how it would address the complexity of getting accreditation for land use, as there were different processes between local government, provinces and national government.

(See presentation for examples of questions regarding authorisation).

Possible implications

The cost of land evaluation and classification, and the possible limitation to agricultural land subdivision, may result in higher land prices, which would negatively impact access to agricultural land by resource-poor farmers. There was also a lot of information that was not available in respect of communal areas, as most had not been surveyed. Therefore, provinces, where former homelands were located, would need additional resources and capacity to gather information that would inform provincial agriculture sector plans.

 

(See presentation for more implications).

Concluding remarks

Dr Tshililo Manenzhe, Committee Content Advisor, informed Members that most people supported this legislation. There was huge inequality of access and control over land, which was why this Bill was so important. The beneficiary and allocation aspect of the Bill recognised different types of farmers, including smallholders who did not have title deeds to the land they cultivated. There had been much concern from the public and interest groups, such as communal property associations (CPAs), as to whether the Bill encouraged the subdivision of large commercial lands. Smallholder farmers were concerned they would be limited by the demarcation of land implicit in the Bill. On tenure security, community members were concerned that government officials and businessmen would take away their land because they did not have title deeds.      

Input by the Office of the Chief State Law Advisor (OCSLA)

The Chairperson thanked the content advisors for their briefing, and said that before the Department was given an opportunity to speak, the Committee would hear from the State Law Advisor on his input on the Bill. He noted the Parliamentary Legal Advisor was also present, and was most welcome to comment on the Bill also.

Mr Shaun van Breda, Senior State Law Advisor, OCSLA, responded to the suggested referral of the Bill to the House of Traditional Leaders, and said they stood by the opinion that the provisions of the Bill did not affect the customs of traditional communities. The joint tagging mechanism made the ultimate decision, and Parliament was not bound by any view they might express.

The Chairperson thanked Mr Van Breda, and asked if there was any input from the Department.

Input by DALRRD

Ms Tshepo Mahlaela, Legislation Specialist, DALRRD, said the issue of traditional leaders arose a lot. The issue was two-faced, as it concerned the development of the Bill as well as tagging. The Department did not decide whether it was tagged or sent to the National House. In the Bill itself, the Department had provided extensive consultation mechanisms. They also simultaneously addressed the issue of using different types of media, particularly radio and the local languages. The regulations in clause 35 made provision for the Minister to work out ways in which consultation could take place.

Ms Mahlaela said the definition of cultural land was wide enough to include communal land. The Department had received responses that called for the input of experts on climate change. The Bill stated that the Minister could employ technical advisors on a case-by-case basis, which could include climate change experts. The current advisory committee was sufficient, but could be expanded for other types of expertise not defined in the Bill.

She said the issue of intergovernmental relations had come up a lot, mostly concerning the National Environmental Management Act (NEMA), the Spatial Planning and Land Use Management Act (SPLUMA), and the Mineral and Petroleum Resources Development Act (MPRDA). There would be consultations, and the integration of authorisations would be detailed in the regulations. The regulations empowered the Minister to consider applications and declare protected agricultural areas.

On the issue of traditional leaders, Ms Mahlaela said the Bill aimed to capacitate traditional leaders to make decisions, such as when they provided them with agroecological information.

Mr Dipepeneneng Serage, Deputy Director-General: Agricultural Production, Biosecurity and Disaster Management, DALRRD, said extensive consultations had taken place since 2016, but consultations with traditional leaders had been brought up the most during the provincial hearings. Despite this, they had received overwhelming support for the Bill. The subdivision of agricultural land was currently regulated by the SALA, which included a lot of activities involved in communal land. There were shortcomings in the Act, in that it did not apply to state-owned land. The PDAL Bill aimed to address these shortcomings and ensure that high-value agricultural land, including communal areas, was protected. He gave the example of a commercial enterprise turning high-value agricultural land into a shopping centre by donating the land to the municipality or traditional authority. Once under their ownership, they were able to bypass the SALA.

Mr Serage said that there was very little high-value agricultural land remaining. On energy production alone, most of the applications they received were from high-value landowners pursuing renewable energy. This indicated a need to protect existing agricultural land. Some applications were accepted, but agricultural land was dwindling. The PDAL Bill took into account all other available regulatory frameworks, such as the SPLUM Act, which protects high-value agricultural land. He said the Bill was a comprehensive piece of draft legislation, allowing intergovernmental relations to take place.

Regarding the cost, he said the Department did have the resource capacity available in the sub-branch of natural resources management. The SALA and PDAL would have the same group managing them.

Ms Mahlaela said she wanted to mention two things she had left out. Regarding food production, they would not designate land only for food production, but rather for agricultural production, cognisant of the fact that agriculture went beyond food production. On concurrency with the provinces, she said the Minister made decisions only after consulting with the MEC. In some instances, it was even the MEC that made the decisions. Provisions in the Bill were sufficient to ensure concurrency and that the Minister did not usurp the power of the MEC.

Discussion

Ms N Mahlo (ANC) welcomed the presentation by the content advisors, saying it reflected their feelings when they had been on site. She said the consultation with traditional leaders had been very important in the spirit of running the country together. Smallholder farmers felt the Bill was targeted towards large landowners at the expense of their own land. It was important for smallholders to be engaged on the Bill. The Committee needed to look into human resources to make sure the Department had the capacity to carry out its duties. Regarding monitoring and evaluation, she said communities had told them that their laws were good, but were not properly monitored. It was therefore important for the Department to devise a mechanism for monitoring and evaluating the Bill. She said this went hand in hand with communication, noting that there were mechanisms in rural areas through which they could get their messages to the people.

Dr M Tlhape (ANC) said support for the Bill had been immense, and its importance far outweighed the fears of the stakeholders. She was happy the Bill would empower traditional leaders to preserve communal lands, considering the current state of agricultural lands. Concerns over funding for communal and skilled farmers were unfounded, as the Bill retained the existing regulations. Regarding game farms, she said that as long as the land was categorised as agricultural land, it would be regulated by the PDAL Bill. Due to sector plans enshrined in the Bill, farmers could not simply repurpose their land. On intergovernmental relations, she supported the Department in that the Minister should be the competent authority of the Bill. Ms Tlhape said the subdivision of agricultural land was not an issue if the different sections of land were still farmed. What was an issue was when it was subdivided for a different purpose, such as for commercial ends. This must be prohibited through the Minister’s competency.

Mr N Capa (ANC) said this legislation was very important, and they should not be apologetic about the Bill. He asked if the definitions of terms in the Bill, such as the one for development, could be expanded upon or more clearly defined. This section could also more clearly outline land uses so that a change of land use was more regulated. He said an emphasis on food security was important, as it was the main driver behind agriculture. The Bill had support from the communities, provided they received title deeds, had access to the land, and other conditions. He was happy about the Department’s position on concurrence, as it had been a shortcoming in the past. He said there was no mention of those who had opposed the Bill, or how the Department would respond to them. The Institute of Race Relations and the mining sector had been opposed to this Bill, and they needed to be responded to.

Mr Capa said there had been very little input from commercial farmers, despite some feeling the Bill was aimed at them. Although traditional leaders had not been excluded from the public hearings, there was a difference between traditional leaders and the House of Traditional Leaders, and the latter needed to be addressed. He asked what they would lose if they took the Bill to the House, because the last time the President had intervened on the Bill, he believed it had not been taken to the House of Traditional Leaders. On communication, he said the Department was just being lazy, as they had all the means to do so. They had leaflets, pamphlets, and an officer in every ward.

Mr N Masipa (DA) said when they started on the Bill, it had been made clear that it was for commercial agriculture, which raised concerns over landowners' rights. There were landowners with real rights, and those with informal rights. Those with informal rights had made their views on the protection of their land known, given the fact they did not have title deeds. The definition needed to be made clear if communal lands were included. There should also be more clarity on the term ‘preservation’ versus ’conservation’, which had been emphasised by the mining sector.

Mr Masipa said that farm worker tenure rights were key, as land issues could be contested in court. They did not have the input of farm workers on the Bill. The cost and administrative burden was a serious issue, as rural communities did not have the budget to implement even basic services. Consultations with the National House of Traditional Leaders needed to take place. They were only consulted eight years ago, which was too long. He said it was a serious issue when commercial land was surveyed, but not rural areas. Regarding the shortcomings of SALA, he said they needed to get their presentation and those from the Department to be fully informed on the Bill.

The Chairperson asked if it would be possible to send the report to the National House of Traditional Leaders when they present it to the NCOP. He said when the mining house was before the Committee, they indicated that rehabilitation was left until the end, rather than being done simultaneously with mining operations. A number of mines were doing simultaneous rehabilitation by planting forests while conducting their operations. He asked what was in place to ensure that mining areas were being brought back to agricultural use. Was there a need to engage with the Department of Mineral Resources in this regard? Did the Bill clash with legislation coming from the Department of Environmental Affairs?

Responses

Ms Mgxashe said she was unable to respond to the comment regarding the Committee referring the Bill after it had been sent to the National House of Traditional Leaders (NHTL). The reason for referral was not only compliance, but also to get the views of the NHTL. The Bill was with Parliament now, so nothing stopped the Committee from sending it to the NHTL. While the Bill aimed to protect agricultural land, once a mine had taken over the land, there was nothing the Bill could do. When the Bill was passed into law, it could prevent future encroachment on agricultural land. It was up to the relevant authority that issued a mining licence to introduce requirements for rehabilitation.

Mr Manenzhe said the engagement from the Committee was helpful for them to move forward. On the sequencing of engagement, he said the Committee must demonstrate that they had engaged with public submissions. They were compiling the public submissions along with the responses from the Department, not necessarily providing recommendations for the Committee. Issues concerning mining and water should be dealt with outside this meeting.

A DALRRD official said one of the purposes of the Bill was to better survey and support the communal lands of traditional leaders. Most of the Department's applications were commercial, meaning these areas were somewhat neglected. The goal of evaluation was to garner public-private partnerships (PPPs) for support in these areas. Section 9 of the Bill provided for alignment with the SPLUMA, in that it informs municipalities what lands were high value, allowing them to allocate their resources when dealing with the provincial agricultural sector plans.

There was also provision for monitoring in the Bill in section 23, where it indicates a performance assessment framework. This constituted annual assessments on the progress of the preservation of agricultural land. On communal lands, the Department would share the information gathered from evaluation with traditional leaders in that community. While smallholders felt they had been excluded, the Bill would divide categories for different farms and provide support for each category. Through monitoring, the Department would have informed data to indicate the number of applications from smallholders and commercial farmers. They were currently using conservation committees that targeted only livestock and crop farms.

A DALRRD official said PDAL would be useful for the mining sector, in that comments from the Department were sometimes disregarded. If provisions did not exclude mines, it would empower the Department to evaluate the space and provide what might be beneficial for the general public. Concerns from the Institute of Race Relations concerned the general provision of land and the gender and nationality of landowners. If the Department had this kind of data, it would assist them in the long run to know who was supported and who was excluded. This would allow them to target those that had been previously excluded. Definitions in the Bill included livestock farms, as well as forestry.

Ms Mahlaela said the Department was busy with a communal land bill, where land and ownership rights in communal areas would be addressed. The information that the Department would collect through the Bill would help the traditional leaders when they made decisions. The extensive consultations of the Department in these areas would include traditional leaders.

On using the term “conservation” instead of “preservation”, she said the term “conservation” was used in relation to the Conservation of Agricultural Resources Act (CARA), and was defined in terms of the protection and recovery of agricultural resources, whereas “preservation” in the PDAL referred to the protection of agricultural land from anything that would change or deteriorate its current agricultural potential and capability.

Regarding communication, they were going to flesh out in detail how communication would take place in the regulation. It would cover how the Department would relay information and consult with stakeholders.

Mr Serage said they would include smallholder farmers by first surveying their land in order to allocate support. While they had received overwhelming support during the public hearings, they may have started too late, as plenty of prime agricultural land had been lost. He said one could not separate food security from agriculture, as agriculture centred on food production.

Mr Serage said the country did not have a map detailing its agricultural resources. This Bill would inform the Department which parts of the country could farm what. It would help government to plan adequately. On the cost and administrative burden, this was the only Bill that acknowledged the different spheres of government. It was an exemplary piece of legislation.

Input by Parliamentary Legal Advisory Services

Mr Siviwe Njikela, Senior Parliamentary Legal Advisor, said the tagging of the Bill was the first step in the parliamentary process. Once a Bill was introduced, it went to the Joint Tagging Mechanism. A bill had knock-on effects, but was not tagged based on this. Bills were tagged based on the subject that the Bill sought to regulate. While the Bill might affect provinces and traditional leaders, they were not the subject of the Bill. He said this Bill was not related to customary law.

Mr Van Breda said he was in complete agreement with his colleague. Once a Bill was introduced to Parliament, it was up to Parliament to decide on the processing of the Bill. He said the Bill was not a land reform bill -- its purpose was food security in terms of section 27 of the Constitution.

The Chairperson thanked the speakers for their responses to the comments from Members. He asked if the Committee had any further input.

Mr Capa thanked the Department and content advisors for their clarity. Regarding communal land, he said normally there was a clear understanding of the purposes of different land sections, such as residences or farming. Now, there was an erosion of authority of traditional leaders within communal lands. This needed to be addressed in the Bill.

Ms Mahlo said the only problem was that state law did not consider governing with the people. The Bill did not concern customary law, but consultation was very important. Traditional leaders required consultation only with regard to implementing the Bill.

Mr Masipa said he did not see elements of traditional leaders and communal land in the list of definitions in the Bill, which meant this Bill had not considered traditional leaders or the House of Traditional Leaders at all. If the Bill was to address communal land, it had to be explicit. At the moment, it was only implicit in its application of communal or rural areas.

Mr Manenzhe clarified that they had considered not only the traditional leaders, but the traditional community as a whole. They needed input from the community themselves, and not only their leadership.

Closing remarks

The Chairperson thanked Mr Manenzhe. They had come to the end of their agenda, and would bring the motion of desirability before the Committee and proceed to deliberate on the Bill. He thanked all their internal stakeholders, the State Law Advisors, the Content Advisors, Legal Services, and the officials from the Department.

The meeting was adjourned.