Land Restitution and Reform Laws Amendment Bill: briefing

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LAND AFFAIRS PORTFOLIO COMMITTEE
10 February 1999
LAND RESTITUTION AND REFORM LAWS AMENDMENT BILL: BRIEFING

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Land Restitution and Reform Laws Amendment Bill

SUMMARY
There was a briefing on the Land Restitution and Reform Laws Amendment Bill.
The Bill’s aim is to speed up the process of land restitution. Claims could now be processed administratively if all parties were in agreement. The Bill would be passed by the end of the week to aid the fast-tracking of restitution.

MINUTES
The Chairperson, Mr Holomisa, informed the committee that the Bill had to be passed urgently, preferably by the end of the week, so as to expedite the land restitution process. He said an informal briefing would be given by the Department.

Mr Du Plessis (Chief Director of Restitution at the Department of Agriculture and Land Affairs) told the members that there would be a complete rewrite of the Restitution Act by September of this year. He gave two reasons for the Bill. The one reason was to allow restitution to be a more administrative process. If there was an agreement amongst all the parties, then there was no need for a court process. The second reason was to enforce accountability.

Advocate Havenga (Legal Directorate of the Department) briefed the members, clause by clause, on the Bill. Members were allowed to ask questions of clarity after each clause.

Clause 1:
The reason for the substitution of the definition was to avoid any misinterpretation by the courts.

Clause 2:
The legal advisor said this was a new section. Subsection (2) repeats what is in the Act. In subsection (3)(a) the will of the deceased would come into effect regarding land rights. This meant that either the executor or the heirs would be claimants. If there was no will - subsection (3)(b) - the direct descendants would be claimants.

A NNP member asked what proof was needed for a person to be a direct descendant. The legal advisor said that the Court had the final say over that.

Dr Schoeman (NNP) wanted to know what role the executor played. The legal advisor said that in subsection 3(a) if there was a will, the direct descendants do not play a role, unless stated in the will. Heirs could take the place of an executor. If there was no will, as stated in subsection 3(b), direct descendents would play a role.

Mr Van Zyl (NNP) said the explanation was still unclear. The executor cannot be entitled to land. Yet subsection 2(1)(b) could be interpreted that way. The legal advisor responded that the emphasis is on the estate in that subsection. The Chairperson indicated that that subsection should be reformulated to avoid any misinterpretation.

Mr Van Zyl went on to say that in subsection 3(a) it seemed as if the executor could be the claimant. The legal advisor replied that it referred to the executor in a representative capacity.

Clause 3:
The problem with the wording of section 7 of the Act, 1994, was that it did not cover the issue of a vacancy of the Chief Land Claims Commissioner post. This clause allowed the Deputy Land Claims Commissioner to perform the duties of the Chief Land Claims Commissioner. The same provisions applied when a vacancy existed with the regional land claims commissioner.

Clause 4:
Subsection 4(a) deletes section 11(1)(d) in the principal Act as it slows down the restitution process. Subsection 4(b) is a consequential amendment of subsection 4(a)

Clause 5:
Also a consequential amendment of subsection 4(a)

Clause 6:
This was an important clause. In the past many restitution claims were simple, yet they all had to be referred to Court. This slowed down the process. The Bill allowed settlement agreements to occur administratively, which meant that it would not be referred to the Court. There were provisions for disputes in the clause, which could then be referred to the Court.

Prof. Ngubane (IFP) wanted to know if a balance had been found between urban and rural restitution, as very little had occurred with the latter. The Chairperson replied that the question was relevant to the Land Claims Commission. When they reported on their activities to the committee later in the session, that question could be asked.

Clause 7:
This clause dealt with the powers of the Court. The subsections clarified the legal positions of the Court.

Dr Schoeman wanted to know if the line of appeal could occur in an ordinary Court or if it had to occur in a High Court. The legal advisor responded that the Court had similar status to the High Court. If there were appeals to the Land Claims Court, then it should either go to the Constitutional Court or the Appellate Division.

Clauses 9:
Subsection 9(d) sets out the powers of the Minister of Land and Agriculture, which were similar to the powers of the Minister of Public Works.

An ANC member indicated that the word "dispossessed" in subsection 9(b) should not be deleted. This was noted.

Clause 10:
The legal advisor commented that claims lodged with the Court would also apply, not only those lodged with the Commission.

Clause 11:
The powers of the Minister were enhanced to grant financial aid, as it had been extended to settlement agreements.

Prof. Ngubane wanted to know if there was money for the settlement agreements. The Chairperson replied that when the budget debate occurred the committee could raise concerns about whether there was sufficient money for it.

Clause 12:
The Minister may delegate powers, which would assist the needs of rural areas. This meant that powers from Head Office would be dissolved to the regional directors.

Clause 13:
This amends the Land Reform (Labour Tenant) Act, 1996.

Clause 14:
This clause stands on its own, it is not an amendment. It should be read with clause 15(2).

Clause 15:
Clauses 2, 3, 4 would be retrospective.

After the briefing, the Chairperson began to read out the motion of desirability. Dr Schoeman asked if it could be read out the next day as his party had some questions on the powers of the Minister. The Chairperson heeded his request. He encouraged the other political parties to ask the Department to clarify any questions they had in their study groups.

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