Implementation of the Communal Land Rights Act: Department briefing

Meeting report

AGRICULTURE AND LAND AFFAIRS PORTFOLIO COMMITTEE
29 August 2006
IMPLEMENTATION OF THE COMMUNAL LAND RIGHTS ACT: DEPARTMENT BRIEFING

Chairperson:

Presentation on the Implementation of the Communal Land Rights Act (CLaRA)

SUMMARY
The meeting entailed a presentation by the Department of Land Affairs on the implementation process for the Communal Land Rights Act (CLaRA). It emphasised its baseline study which would consider the affects of the CLaRA on the respective areas subject to its jurisdiction. The Department also discussed the intended process of speeding up delivery of CLaRA and reviewed the land affected by the Act. A brief schedule of the regulations process was also provided, and a brief summary of the projected implications for implementation was highlighted. The Department’s presentation alluded to the challenge of inadequate surveying skills impeding the implementation process.

The Committee expressed particular concern regarding the time frame for the CLaRA rollout, from which the skills shortage and particularly unresolved disputes of surveyed borders were cited as impediments. Among others concern was also expressed about reaching the government’s target of redistributing 30% of agricultural land by 2014.

MINUTES
Presentation by Department of Land Affairs (DLA)

Mr M Shabane, the Deputy Director-General of the Department of Land Affairs, introduced the delegation, which consisted of Dr S Sibanda (Director: Land Tenure Reform Implementation Systems), Ms S Lebethe (Director: Communications) and Mr S Gumbi. He then proceeded with the presentation by providing a brief background of the Communal Land Rights Act (CLaRA), highlighting the 2004 promulgation year, and also alluded to the instruction of the Committee to have the DLA develop an implementation plan – including the cost of implementation - for CLaRA.

With regard to the progress made, Mr Shabane emphasised the commissioning of the base line study on all land affected by the Act, which included: tenure systems; land administration structures; land use planning and management; the levels of development; the development of indicators to measure development, audits of communities affected, and the determination of the extent of land to be affected by the legislation. The quantity of the land affected was included in the presentation (see documents). Mr Shabane’s presentation also included a review of the measures taken to speed up the process of surveying, registration and vesting. A concern was expressed with regard to the shortage of qualified surveyors and Mr Shabane argued that this posed a major challenge to the Department. With regard to the fast-tracking measures, special emphasis was placed on the completion of a BPR (Business Plan Re-engineering) to determine the intricacies of the work conducted by the DLA. The presentation highlighted an attempt to implement systems and procedures with regard to fast-tracking. Mr Shabane argued that decentralisation from the national office will place the responsibility at a provincial level. Further measures of fast tracking included: a pro-active vesting process; and proposals for increasing the capacity for surveying, registration and vesting. With regard to regulations pertaining to the Act a schedule of implementation was provided whereby draft regulations would be submitted by 30 September 2006; consultations and amendments of regulations by November 2006; the regulations published by January 2007; final approval by March 2007, provincial implementation plans to be completed by 31 March 2007, and rollout by 1 April 2007 subject to the outcome of the Constitutional Court challenge on the CLaRA.

Finally with regard to the implications for the implementation of the ClaRA, the DLA expected an increase in staff, particularly at the district and provincial levels; expected increased budget allocations relating to surveying, land right enquiries, development of communal general plan, but a final concern was that there may not be sufficient skills or manpower to implement ClaRA. Measures were therefore being taken by the department to develop a Skills Framework pertaining to this. Boundary disputes were also listed as a major challenge for the implementation of CLaRA.

Discussion

Ms B M Ntuli (ANC) expressed concern that CLaRA has been a "pipeline project" for some time, and asked why there were no time-frames supplied by the presentation. Her concern was how soon the implementation of CLaRA would take place.

Mr A H Nel (DA) maintained that in certain areas the survey process was complete; however people were not certain that these would stand. His concern was thus that confirmation and certainty could be a problem. He was also concerned about what he saw as a discrepancy in the figures pertaining to the hectares of land affected.

Mr D M Dlali (ANC) asked with regard to contestation of administration of communal land, if the community could adopt any administration and what the implication of this would be. He asked what basis the DLA had for deciding to decentralise their processes, as the provinces experience problems of delivery without the added burden of the CLaRA. He asked how sure the DLA was that these provinces would be able to cope with this task. What were the time frames for developing capacity and skills? Would the Committee be involved or included in the revision of regulations?

Dr K Van Niekerk (DA) asked for clarity on slide five of the presentation.

A Committee Member reiterated Ms Ntuli’s concern over time-frames, and asked what risks or challenges faced the implementation of CLaRA, and what measures will be taken to acquire the skills needed.

Another Committee Member re-iterated Dr Van Niekerk’s concern over the clarity of slide five. With regard to the issue of Permission to Occupy (PTO) the argument was made that these were not transferable and the concern was that in the event of the death of the proprietor the property would not be inherited by the family. The concern was what measures would be taken to rectify this shortcoming. With regard to the surveying of the land expressed in hectares in Limpopo province, the Member asked why there was deforestation close to the tribal lands.

Mr J Bici (UDM) also expressed concern over the decentralisation of surveying to the provinces. He asked which areas were surveyed in the Eastern Cape. Finally he was concerned about the illegal occupation of farmland by what he called ‘shack dwellers’.

Mr S Adams (ANC) maintained that the government had set the target of redistributing 30% of agricultural land by 2014. He asked what percentage of this land had been acquired. Secondly, he asked what would happen in the event of a conflict over land and land tenure rights, as the alternative was stipulated by the Act that another piece of land or compensation of land or both would be provided. Thirdly, he asked what the financial implications of the DLA’s presentation would be as R500 to 600 million had been designated initially in 2003 at the promulgation of CLaRA. He suggested that the Committee be provided with the outcome of the ‘scientific enquiry’ the DLA undertook with regard to CLaRA, as well as other proposals and information regarding CLaRA’s implementation.

Dr Sibanda, concerning the rollout of CLaRA argued that the main obstacles to the process of implementation were the regulations and resolutions that need to be put in place. He agreed that the Committee should be involved in every decision made in the process and should be privy to the information regarding its implementation. He maintained that rollout was scheduled for April 2007 provided the regulations are resolved.

Ms Ntuli expressed concern with regard to the schedule of resolutions, specifically the requirement that the court approves the rollout of CLaRA. She asked what alternative would follow from the court’s refusal to approve the CLaRA process.

Dr Sibanda argued that two outcomes were possible from the engagement with the courts, one of which is the possibility of an interdict. He maintained that the courts had two years to review the process and that there had been no indication of an intended interdict. He pointed out that if there was an interdict the President could override it on the grounds that it would affect millions of people. With regard to the case that will appear in front of the courts Dr Sibanda argued that it was a political matter involving traditional leadership, with the latter claiming that CLaRA infringes on their communal right to land.

Mr Shabane argued that regulations had to be in place as a prerequisite. He alluded to a pilot implementation by the previous Minister, but the finding was that legislation did not provide for sporadic implementation or piloting of legislation. With regard to coloured rural areas, he agreed that it would be ideal if the land were transferred directly to the communities; however the Act gives them an option to choose a legal representative of their choice.

Dr Sibanda maintained that the only PTO that were legal were those issued in KwaZulu-Natal (KZN), as it followed the correct legal procedure, while outside KZN the issuing of PTO could be made via any Minister or department, which was the incorrect procedure. With regard to the PTO transfer, Dr Sibanda argued that CLaRA expropriated the rights of the man to the joint ownership of the man and wife. Thus in the institution of marriage, the CLaRA grants equal land share to both spouses. He argued, however, that the problem lay in the gap between law and practice which could only be remedied through education and empowerment programmes.

With regards to structures and institutions, Dr Sibanda maintained that a community was responsible for establishing a land administration committee. He argued that CLaRA could not be put in place in the absence of this process. If the community opts for a traditional administration and it meets the requirements of ClaRA, it could legally administer the land on behalf of that community. The discretion is then with the community to choose to acknowledge a traditional administration body or not.

Mr Dlali maintained that the Traditional Leaders Framework does not give the community due agency. His concern was thus that this framework should not hamper the process but rather be co-ordinated to speed up the process.

Dr Sibanda maintained that co-ordination efforts are being put in place, but it cannot be assumed that because the boundaries have been surveyed conflicts would not arise. He argued that the boundaries mean nothing to the traditional perception of boundaries; thus the resolution of the dispute of claims of traditional leadership should be broadened in order to avoid jurisdictional disputes. He claimed that CLaRA could not be implemented in less than 50 years.

The Deputy Minister of Land Affairs, Dr D du Toit, argued that Section 18(4)(B) was the core component to look at with regard to the rights of a married woman. The problem was that the specifics of the case that must be resolved; however it was a necessary process.

With regard to the unpacking and clarification of the figures of the 13 million hectares, Dr Sibanda claimed that it was composed of state-land that made up the former TBVC states and self-governing territories excluding KZN. Adding KZN would amount to 17 million hectares.

Mr Shabane, with regard to addressing skills development timeframes, argued that the BPR (Business Plan Re-engineering) would move to address this. He also argued that skills development should link up with other processes such as the Joint Initiative for Priority Skills Acquisition (JIPSA). With regard to costs he argued that the R600 million was an initial estimate but the costs realistically could run into billions. The concrete figures would be provided. On the issue of encroachment of commercial white farmers of communal land, the hope was that the boundaries became clearer and this was one of the aims of the survey process. The challenge however is the scarcity of skills. Regarding the concern over the decentralisation process, Mr Shabane maintained that it would not be decentralising to the provincial administration, but rather the provincial offices of the Department of Land Affairs. The DLA would remain in control and would not shift the burden onto the provinces.

With regard to the question on the 30% redistribution target by 2014, Dr Sibanda maintained that 4% have also been used to redress imbalances. However it is 4% of the 82 million hectares of agricultural land, not 4% of the 30% target. Thus only 4 million hectares had been transferred.

Dr Sibanda requested the support of the Committee on the challenges faced by the Department with regard to: possible litigation, and secondly the alignment in dispute resolution as CLaRA could not make progress unless these disputes have been resolved.

Mr Bici reiterated the question on the illegal occupation of farmland by shack dwellers.

Mr Shabane maintained that an attempt would be made to establish who the rightful owners of the land were.

A Member of the Committee, with regard to the matter of litigation and constitutional challenge, asked for a full briefing by the legal experts to establish what the problem was. Secondly the Member asked what the financial implications would be of the implementation of the Act; more specifically he asked what economic benefits the community would receive from the implementation bearing in mind the billions that would be spent on CLaRA.

Mr Shabane, with regard to the doubts on the credibility of CLaRA, argued that it is desirable to spend money on its implementation to establish a baseline study which would provide an estimate on the measurable impacts of CLaRA. This would discern a cost-benefit analysis which would be the basis of further debate. He argued that in order to address poverty and development, they had to invest in establishing the rightful ownership of the land to avoid the exploitation of the land. He further maintained that the dual administration of land must be abolished and the need for information on the zoning of land etc. CLaRA would provide a planning framework and he requested that the Committee reserve any concerns until this plan had been developed for adequate evaluations and review. Finally he argued that redistribution has mainly taken place on a tenure basis, but the Department was reviewing legislation that made evictions difficult and thus a more strenuous evaluation process needs to be developed.

The Member agreed that after the base-line study has been done the cost-benefit analysis would establish the strengths and weaknesses of CLaRA.

The meeting was adjourned.