Commission on Restitution of Land Rights: Budget & Strategic Plan 2008/09

Meeting report

Commission on Restitution of Land Rights (CRLR) Budget and Strategic Plan 2008/9  briefing
Mr Andrew (Blessing) Mphela, Acting Chief Land Claims Commissioner, referring to the 2008 State of the Nation Address and to the statement of the Minister of Agriculture and Land Affairs, said that the Commission had taken the State President’s message of ‘business unusual’ very seriously, and had committed itself in the strategic planning to settle at least 2 585 of the outstanding land claims in the remaining period. Operation Gijima remained effective and the Commission would work very hard to achieve its target.

Mr Mphela noted that in 2005 the President had approved a three year extension for the restitution process, to be finalised by 2008. To that effect the budget allocation to the Commission had increased drastically from R1.7 billion in 2004/05 to approximately R3.8 billion in 2007/08. In February 2008 the President further emphasised the need to finalise land restitution cases while ensuring support to land reform beneficiaries.

In line with the Presidential directive, the Commission had committed itself to settle two thirds of the outstanding claims by 31 March 2008. The remaining one third were very complex because of the challenges inherent in the settlement of rural claims.

By the end of January 2008 the Commission had settled a total number of 74 698 claims out of the 79 696 claims lodged by the cut-off date of 31 December 1998. This meant that 94% of claims had been settled and the Commission was now left with 4 998 outstanding claims (6%) to settle. Of these, 2 585 would be settled by end 2008. However, only 281 outstanding claims were settled between March 2007 and the end of January 2008. It was therefore hardly likely that the Commission could settle 2 585 cases within the remaining months of 2008.

It was anticipated that one third of the remaining 4 998 claims would not be finalised, due to challenges inherent in the settlement of rural claims. The key challenges facing the Commission in settling the remaining claims included claims referred to the Land Claims Court for adjudication; traditional leader conflict in terms of jurisdiction, boundaries and land ownership; a long claimant verification process due to unavailability of documents; rural claims hindered by conflict within family and among community members (partly due to overlapping claims); some landowners protracting negotiations by challenging the validity of the claim or asking exorbitant land prices; reluctance by other government departments and institutions to release state land for land reform purposes; and untraceable claimants.

The Commission had proposed strategies for expediting the settlement of claims in its strategic plan. These included: eliminating protracted land price negotiations by implementing expropriation; batching of claims with similar circumstances of dispossession, similar models for redress or settlement packages and within close proximity; consulting with traditional authorities and House of Traditional Leaders to obtain their support for restitution; requesting political intervention at Ministerial level in terms of co-operative governance, in order to persuade relevant government departments as well as municipalities to make state land available more quickly for land reform and for supporting land reform beneficiaries; and embarking on a public relations campaign to trace claimants and obtain outstanding information.

In addition the Minister of Agriculture and Land Affairs had delegated her powers to settle claims to the Chief Land Claims Commissioner in cases where the value of the claims did not exceed R100 million, and to the Regional Land Claims Commissioner where the value did not exceed R50 million. This had resulted in quicker turnaround times for approvals, leading to more expeditious finalisation. 

Mr Mphela tabled details of the budget, shown in Annexure B of his presentation (see attached documentation). He pointed out that the Commission worked on the basis of current market values rather than future values and admitted the Commission officials were not professional valuers. He acknowledged the relationship between the Commission and the Departments of Agriculture (DOA), Land Affairs (DLA), and Water Affairs and Forestry (DWAF). The roles of these three departments complemented each other in land issues.

Discussion
Mr S Abram (ANC) asked how the Commission, considering its previous failure to spend its allocation, would convince the National Treasury to increase the budget to enable settlement of all land claims by 2011.

Mr Mphela gave reasons for under-expenditure. These reasons included late appointment of commissioners and support staff.

Mr Abram said that one of the concerns about land restitution and other land reforms was the sustainability of the projects by land beneficiaries, and thus the restitution and planning settlement grants were important to ensure sustainability of restitution projects. Mr Abram asked how large a grant was provided for each claimant, and whether the grants were calculated to take account of the range of inflation.

Mr Abram also noted the statement in the presentation that approximately R4.4 billion was made available in the form of grants, on land expenditure of R14 to 15 billion. Clearly this was not sufficient, and he asked for a response to this discrepancy. He asked if the Commission had the capacity to provide settlement support. He also asked that the Commission should always provide statistics of how many of the settled claimants remained on their land and what happened to those who struggled to maintain their land.

Mr Mphela said that once there was a claim on land, structures were not usually maintained by farmers. This was to the disadvantage of those to whom land was restored, and it became difficult for them from the start to maintain their land. By the time land had been purchased, the greater part of any grant was needed to restore structures, and there was little left to initiate production. The Commission was in some cases even expected to police farms. It was not so much that the farmers were failing, but rather that they had never been able to get started. There was a need to inculcate a culture of production, as well as a culture of work on the land as a source of pride, together with love of the land.

Mr Abram requested that the Committee urgently be given a spreadsheet of all these projects, claims and land restored. There was no point in the Committee’s merely viewing slides on the screen and being informed of the number of hectares of restitution, the amount of money spent, the number of thousands of households that had benefited, and other apparently impressive statistics. A benefit was quantified not by the number of hectares of land that had been allocated but by whether that land was productive, and whether there were genuine improvements in the lives of beneficiaries. It had to be remembered that the goal was ‘a better life for all’.

Mr Abram asked if there was a strategy to secure the tenure for all farm workers who lived on land restored to restitution claimants, as proposed in the Commission’s strategic plan review. For example, he asked what mechanisms the Commission had instituted to ensure that when a claim was finalised and the land bought, the improvements on that particular piece of land did not fall into disrepair and disuse.

A member of the delegation replied that if farm workers were occupiers of land, the Commissioners negotiated with the claimants to incorporate the farm workers in the list of beneficiaries of the restitution claim. Then the Commission asked for grants to assist them. Alternatively the Commission purchased alternative land for the occupiers in order to give them security of tenure. If a strategic partner had been appointed to work with the claimants, the Commission negotiated with that strategic partner to engage those farm workers to give some continuity for their project.

Mr Abram asked if the Commission had quantified the cost of restoring a particular property to the state in which the Commission had found it. In short, he asked if the Commission had a succession plan that meant that the owner against whom the claim was proved would be paid, relinquish the property and move out, leaving vacant possession to the beneficiaries so that they could move in immediately. Mr Abram ventured to predict that the losses incurred as a result of lack of succession planning could amount to billions of rands, not millions. 

Mr Mphela said that he would not agree with Mr Abram that the Commission had incurred losses. The billions of rands to which Mr Abram was referring  did not represent money that had been lost, but money that had not been spent.  The Commission had never been established as a development agency. It had been established to investigate land claims. Nevertheless, the Commission could not ignore the problems of how people would live on the land after it had been restored to them. The Commission had spread its staff thinly. It was not a tradition in the public service for employees to work through weekends, but this had been necessary for Commission staff, so that it could reach rural communities. The Commission’s staff members were overworked and could not keep up with the pace. Moreover, they did not enjoy the usual benefits of public employees. The nature of the Commission’s issues presented very high stress levels. There was conflict from all angles. 

Mr Abram referred to the media reports, saying that sometimes Members obtained more accurate information from the press than from briefings. He questioned if sometimes this kind of briefing was not a merely routine exercise, during which officials would present, then return home and not think about whatever had been said at the meeting until the time of the next meeting, by which stage they would have forgotten what commitments they had made. However, this Committee did keep notes and would require explanations for promises not adhered to.

Mr Mphela said that the media liked stories about projects that had gone awry, because these stories appealed to the curiosity of the casual reader. He assured the Committee that the Commission held it in high regard.

Mr Abram said that he had read a newspaper report that there was still a question mark against the Limpopo commissioner, but that the commissioner was still employed. The Committee would like to know what the problem had been and the nature of the complaints against him. It was unfair to the commissioner and all involved that this matter should linger on without being finalised.

Mr Mphela responded that the commissioner concerned had been investigated by the National Prosecuting Authority, and had been arrested and charged. The Commission had multiple accountabilities and a strict code of ethics as its members were senior governmental officials. Therefore the allegations against the commissioner were viewed very seriously. He had been suspended pending the outcome of the investigations. Mr Mphela was concerned that the reputation of government institutions should not in any way be prejudiced by the behaviour of senior staff. The law would be applied impartially, and would protect him in the event of his having been accused falsely. 

Mr Abram continued that there was an incident in which a KwaZulu-Natal official had allegedly advised beneficiaries not to work with whites. If this was true, then it was an example of blatant racism. If that official belonged to the Commission, Mr Abram said that the Committee wished to know what action, if any had been taken against the official.

Ms Sidudvzile Sosibo, Regional Land Claims Commissioner, KwaZulu-Natal, said that she could not comment on the matter, as she had no information on the matter in her office.

Mr Abram raised another example of a 70 year old woman, Ms Botha, who had kept a record of around 105 forms of correspondence, written or telephonic, regarding land that she owned in Mpumalanga. To date there had been no resolution. She received a document a couple of days ago, dated 24 April 2007, in which she was informed that there was a land claim on the property. Mr Abram noted that her property was not one of those appearing on the list of properties in that area. If indeed there was a claim then it must be questioned why the documentation reached her so late. It was a shame that for so long nothing had been done to finalise this issue involving an elderly person. If the land had also been offered to the Department there were apparently very many old communities in that area who needed that land.

Mr Abram maintained that if the Commission could not help from the restitution side, then it could surely help from the proactive land acquisition strategy side. Something should be done when people came forth to offer land. It was wrong to say that people refuse to make land available, when people were left in limbo for so long although land had been made available. This was quite unacceptable.

Mr Abram noted that approximately 200 claims were settled in a recent year. The Commission   projected that in the 2008/09 it would be able to settle 2 585 claims. He doubted that the Commission could achieve that figure. He appealed to the Commission to set realistic targets and not create expectations that it could not satisfy.

Mr Abram asked what the Commission, which was aiming to spend R17.3 billion on acquisition, would need for the provision of settlement support. The acquisition was the easy task and the difficult task was to see that the land remained sustainable. He thought that the Commission would have to double its projections and that about R35 billion would be required.

Mr Abram urged the Commission to be brutally frank and tell the Committee what would be needed. He also urged the Commission to remember that, at the end of the day, the Portfolio Committee would be answerable to the people of this country, to whom a better life for all had been promised.

Mr Abram said that during a recent oversight visit to North West Province the Committee, accompanied by the current commissioner for Gauteng, found people who had virtually become occupiers of land only, where the land was of no benefit to them. If that was allowed to continue it would lead to an unmanageable and ungovernable situation. It was essential to act now.

Mr Abram appealed to the Commission to tell the Committee what it could really achieve with the tools at its disposal, rather than create an illusion, and then offer disappointment and excuses when the time came for delivery on promises. 

The Chairperson suggested to Members that they obtain for themselves the contact details of the visiting officials. If a Member had an issue in his or her constituency there could be interaction directly with the relevant person before the next meeting.

Mr Abram told the Chairperson that he was disappointed to have to report that a Member would be fortunate even to receive the courtesy of a mere acknowledgement to correspondence. The same applied to correspondence to the Ministry.

Mr D Dlali (ANC) said that it was better to communicate directly with the commissioners concerned. He complained that Annexure A had been poorly and hastily written and conveyed little. With regard to the forestry issue, the paragraphs in fact told the reader nothing. Mr Dlali would prefer that this report be re-written and thoroughly proof-read before he could ask any questions. However, he would like to question why conditions applied to land claims in forest areas, but not to land claims in other areas.

Mr Mphela admitted that it was very difficult to understand Appendix A without the full version of the source document.

Mr Dlali also referred to the mining legislation, asking if the point referred to in the presentation about mining areas related to the relevant Act. He commented that there seemed to be a lack of synergy between what the Commission was doing and the requirements and implications of legislation regarding mineral rights. He noted the statement that underground mining would not affect restorability of land. It appeared that the author of the document had not studied the relevant legislation, and would be well advised to do so.

The Acting Chairman, Adv Holomisa, advised that Annexure A was a summary. Mr Mphela had asked what documentation he should bring, and had not been informed that he should bring full documentation around Annexure A. This should be borne in mind by Members when discussing the documentation.

Mr Dlali asked for confirmation whether several matters referred to in the documents had been resolved.

Mr Dlali then returned to the main presentation and asked about rural land claims that remained unsettled. He asked if the Committee had been informed in advance about the holding of a national indaba on land claims, which would have been pertinent to its area of work. Even if not invited, the Committee should at least be kept informed.

Mr Dlali asked about the release of land held by state institutions, and asked for more details of the reluctance of institutions to cooperate. 

A member of the CRLR delegation gave the example that it had proved very difficult to persuade the South African Defence Force and the Department of Public Works to release some state land near the border of Zimbabwe to the claimants. Similar instances applied with the Kruger National Park.

Mr Dlali asked about untraceable claims referred to in slide 12, and requested an analysis by province.

Ms Tumi Seboka, Regional Land Claims Commissioner, Gauteng and North West, replied that a distinction should be made between claimants who could not be located, and those claims that could not be processed because of the inability to determine the boundaries of land. If the claimants could not be located, there was nothing that the Commission could do. The Commission had agreed that it would give a specific period to this campaign, after which it would submit a report to the Minister, and recommend closure of those “untraced” cases. The reports that were submitted indicated that the claimants had been interviewed. These were claims that would take long to finalise.

Mr Dlali referred to Mpumalanga, KwaZulu-Natal, and the Eastern Cape. He requested a briefing per province on how many forests had been returned to the people, how many were in dispute, and how many were outstanding.

A member of the delegation replied that some claims had been resolved, and gave examples.

Ms Sosibo (KwaZulu-Natal), said that the Commission recommended that the forestry companies should regard land claimants as Black Economic Empowerment (BEE) partners.

Mr Dlali referred to the colour brochure, and asked if there were plans to revisit the problematic Communal Property Associations or the mechanisms that were supposed to ensure that there were functioning.  He was sure that the Commission was fully aware of the Mpumalanga situation, where some land was sold to a municipality for R1,00. Furthermore, he asked if the committee that had recovered that land knew what to do and where to go.

Mr Dlali noted that in the recent oversight visit to North West, the Committee had seen some ‘terrible areas’ and had communicated its observations to the Commissioner responsible for that area. Two communities were fighting amongst themselves. He asked if the Committee Secretary, had received a report indicating that the matter had been resolved, and said that if she had not, then Members must follow up to find out why not.

Ms Seboka said that the outstanding questions were responded to within two weeks of the Committee’s visit. There was an outstanding community dispute, based on the occupancy of the farm. There had been a number of claimants and it was necessary to be sure that the Commission was in possession of a complete voters' role. 

Mr N Singh (IFP) commended the questions already asked. Land reform should not be a political issue. It was a highly emotive issue because it aroused the fears of those people whose land had been claimed, and aroused the aspirations of those to whom land should be restored. The mechanisms instituted must address both fears and aspirations. He noted that almost 37% of outstanding claims resided in KwaZulu-Natal. Mr Singh suggested there should be direct engagement with commissioners in some provinces by Members, either sitting as a sub- or full Committee, to obtain a better understanding of what was occurring in those particular provinces.

Mr Singh followed up on Mr Abram’s questions, saying that the cut off date for claims was 31 December 1998. However, there were still claims being gazetted on the basis that the commissioner’s office had decided that there was a prima facie case for making a claim. The Commission did not proclaim whether there was a valid case for a claim or not.

Mr Singh noted that his party had been engaged in consultation with people around the country on land reform, and was continuing the process. By and large, most farmers across all races accepted that restitution was the way to go, and that it was necessary to redress the wrongs of the past. However, the inordinate delays in settling the claims were frustrating. The best case scenario was a two or three year turnaround. However, even the Land Claims Court had claims that had been pending for as long as eight years. He suggested that the Committee should engage with the Land Claims Court itself to ascertain why it took so long to complete such matters.

Mr Singh believed that the issue was one of capacity. Since this Committee was tasked with assisting the commissioners, it should be informed of lack of capacity in the Commission. Staff in the Commission’s offices felt insecure, because they could not be confident of retaining their employment after all claims had been finalised, and this was leading to high resignation rates. If the Committee was better informed, it would be able to ask for additional funding to staff the Commission offices better. This must be the first time that Parliament had been told that lack of resources was not the main problem, but Mr Mphela had admitted that lack of coordination was the reason for the failure of land reform. Surely there could be a meeting of minds of all the concerned departments. It was unreasonable to expect sustainable production on farms if the Department of Land Affairs and the Commission did not interact. He called for engagement with individual commissioners, but above all appealed to Mr Mphela to tell the Committee about the Commission’s capacity to deal with its issues. He agreed with Mr Abram and Mr Dlali that glossy figures and projections were not required.

Mr Mphela said that since the establishment of the Commission, the question of capacity had never been resolved. The Commission had not been established as a separate entity, with independence, and had been dependent on the Department of Land Affairs for its budget. This had had an adverse effect on it. At the same time the Department of Land Affairs was building its own capacity. The Commission had been subject to public service regulations as to the categories of staff that it could employ. Mr Mphela expected capacity issues to persist until the end of the commission’s lifetime.

Mr A Nel (DA) said that if the Committee expressed criticisms of the commissioners, this must be seen in context, because Members cared and wanted to see the most equitable outcome. When members of the public came to politicians for help, they had exhausted all other options and were frustrated and angry. He asked for an explanation for the delays in settling land claims. Mr Nel complained that land owners were not told when there was a claim on their land although they had the right to assert their title to their land. They tended to hear about claims indirectly, for example by seeing them in the Government Gazette, despite the Act itself stating that they should be informed personally. It was disturbing to hear of some officials who were acting on the basis of party conference resolutions, which had not been presented in or adopted by the full Parliament.

The Acting Chairperson said that the Commission officials could hardly be immune to what they heard about ANC conference resolutions, since they were widely publicised.

Mr A Botha (DA) agreed with much that Mr Abram had said, but he differed on the issue of sustainability of land that had been returned to claimants. This Commission, by their own admission, was overburdened and could not be expected to investigate sustainability. Their role was to investigate the validity of claims and effect restitution.

Mr Botha supported Mr Nel’s criticism of officials who might be acting on the basis of reported party resolutions. He criticised the negative comments made by the Commission about landowners who disputed claims. That was merely an opinion. The document went on to say that the Commission was currently dealing with about 500 such cases. He asked for the meaning of ‘a possible expropriation’, saying that this undermined the policy of restitution, which everyone accepted. He asked for substantiation of this tendency alleged by the Commission. He was not aware that the National Treasury had been approached.

Mr Mphela responded that the Commissioners could not ignore resolutions taken by the National Conference of the ANC, since these resolutions impacted directly on the work of the Commission. The Commissioners had read information on the ANC web site and knew that it had far reaching implications for their work. This was the context in which their representations were made. They fully understood that they should be politically unbiased in their work. 

Mr Botha said that if an MP such as Mr Abram did not receive replies to his letters then this displayed a problem of attitude. There had not been one reference made today to the Committee or even to the oversight visit. He asked if the Commission had any respect for the Committee. He would seriously request the Commission to ask itself some searching questions. He was amazed to see the remark that there had been no sales of land, when these were regularly reported every day of the year. It was a complete distortion of reality.

Mr Mphela responded that the Commissioners respected the Portfolio Committee and regarded the Committee’s role very seriously. He acknowledged that there might have been slips here and there, and the Commission would need to investigate the nature of those errors. The Commission would not be in a position immediately to say what had happened, but he promised that the Commission would look into all matters.

Ms C Nkuna (ANC) said that Mr Abram had been raising the questions asked today for a number of years, and she wondered when the Committee would see resolution. It was important to note down all these questions and ensure that they were all answered. She asked how long it would be before claims would be declared untraceable. She agreed with Mr Singh’s remarks on delays and hoped that in the near future there would be progress in sustainable use of land that had been restored.

Ms M Ngwenya (ANC) noted that by the end of 2008 all claims were required to be settled. However, bearing in mind the numbers of outstanding claims she queried if there would be any request from the Commission for an extension of the deadline. She supported Ms Nkuna in her plea that outstanding issues should be finalised.

Ms Ngwenya noted earlier that Ms Mahdiya, the Committee Secretary, had indicated that she had not received a report back on the issues raised during the oversight visit. She was disappointed, and hoped the Commissioners could now provide some answers.

Mr Dlali asked for updates on some particular claims, including a case that was reported at the People’s Parliament.

The Acting Chairperson asked the Commission to explain who should provide the support that it was seeking. He commented on and queried certain parts of the Commission’s presentation. He asked about the socio-economic status of land claim beneficiaries. He requested particulars of the Land Claim Court’s difficulties. He also asked about land claims involving traditional leaders.

A member of the delegation said that if a traditional leader or his family had been dispossessed, he was eligible to claim.

Mr Mphela then gave a general response to a number of the issues raised. He said that conflicts on land were often historical in nature. In situations of conflict, increasing provision of resources sometimes exacerbated conflict. He did not think that projects were failing, but rather needed support measures that the Commission had been unable to provide. The Department of Land Affairs and the Department of Agriculture had introduced the Land and Agriculture Reform Programme. Organisations like the Land Bank had a major role.

Ms Beverley Jansen, Regional Land Claims Commissioner, Western Cape, spoke about the Commission’s dealings with State land. The Commission did not itself own land and hence had none that it could distribute. It was very dependent on other spheres of government, for example, the municipalities, the Department of Education, the South African Defence Force, and entities such as Telkom. Politicians such as MECs and premiers had given the Commission full support, but, in many cases, these were verbal agreements. The problems lay in the bureaucratic processes that had to be followed.  The Commission had to follow the rule of law. The municipalities were private owners and matters involving them had to go before Council. In the Cape Metro there were 48 parcels of land that the Commission had asked to be handed over from the Cape Town City Council would hand over to it. Unfortunately the Council would like to examine one piece of land at a time. Yesterday, for example, Ms Jansen had met Council officials about two pieces of land in Claremont, and had reached agreement to buy the land from the Council for a nominal fee, since the Council was unable to give away the taxpayers’ land for free.  Other spheres of government informed the Commission that they had their own political imperatives to build schools, hospitals, and a wide range of public facilities. The bureaucratic process was very slow but meanwhile the claimants wanted their land back. Another problem was that Councils changed politically, and past agreements were in many cases liable to be revoked. There were many legal complications that worked against the needs of the claimants and the efficiency of the commissioners.

Ms Seboka spoke about targets. The Commission appreciated the complexity as well as the challenges involved. In the past year the Commission had examined staff retention and additional capacity, in terms of new posts that had been created to expand the staff complement of the Commission to enable it to process more claims.

Mr Zama Memela, Director, Operations Management, Eastern Cape, cited a case that was before the Land Claims Court, and noted that a valuer was being appointed to start at the end of May. He gave a detailed update of several other cases in progress, and said he would also provide a recent response.  With regard to one case, he would provide a written response subsequently.

Mr Botha asked for a commitment from the Commission for a response in writing to the important issues raised by Mr Abram. He disputed the remark by Mr Mphela that the press would only report on failed projects, and said that the Committee would be only too happy to visit successful ventures. He requested a written list of such projects, so that the Committee could visit them and assist in changing this allegedly distorted picture given by the media.

Mr Singh maintained that the Committee should invite a representative from the Land Claims Court to explain while cases took so long. He asked if there were still unprocessed claims that had not been gazetted, and, if so, requested a list in writing.

The meeting was adjourned.