Land Use Management Bill [B27-2008]: Department of Land Affairs briefing

Agriculture, Land Reform and Rural Development

28 July 2008
Chairperson: Mr M Mohlaloga (ANC)
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Meeting Summary

The Department of Land Affairs gave the Portfolio Committee a general overview of the Land Use Management Bill. He discussed the need for the Bill, its aims and the challenges encountered. The Department of Land Affairs' (DLA) vision for the legislation was to provide a uniform, efficient and effective integrated regulatory framework for land use management. A chapter-by-chapter outline of the Bill was presented.

The Department then provided full responses to questions posed at an earlier meeting of the Committee. The questions had included how the Bill would affect rural areas, the exact meaning of “lawful” as used in the Bill, the impact of the Bill on the functions and activities of certain departments, and how powers would be allocated between the three spheres of government. The transition from the Development Facilitation Act had been questioned as the view had been expressed that this Act had been more complete than the Land Use Management Bill. Details on the composition of the Land Use Committees were also requested. The Department further gave responses to queries about the prescribed qualifications for membership of the Land Use Committees, cost analysis, the meaning of “office of trust” as used in the Bill and consultation with traditional leaders. Mr Ogunronbi stated that the Bill would have to be refined in certain areas, and to reflect the outcome of discussions with traditional leaders, but that no substantive amendments were planned.

The Committee Members then posed some further queries, relating to the model used for the Bill, the differentiation between the management issues in this Bill and “planning legislation”, the position of the Minister, whether the objections in principle to the Bill were to be taken into account, particularly referring to a letter from the Congress of South African Trade Unions. The Committee questioned apparently contradictions on the appointment of members of Land Use Committees, and said that Clause 9 was not sufficient. The Department was asked to revert on the definition of a political office bearer and on the functions of the three spheres of government. It cautioned that efforts must be made to guard against exploitation.

Meeting report

Land Use Planning Bill (the Bill): Department of Land (DLA) briefing
The Chairperson opened the meeting by noting the presence of the Deputy Minister, as well as Rev P Moatshe (ANC), Chairperson of the Select Committee on Land and Environmental Affairs. He pointed out the important role of the National Council of Provinces, as the Bill primarily affected the provinces. He added that the presence of the members of the Select Committee would be appreciated at future meetings pertaining to the Land Use Management Bill.

Mr Tozi Gwanya, Director General: Department of Land Affairs, noted that his presentation was the same as given previously to the Committee on the Bill, as the issues remained the same. He said the Bill was necessary to deal with historical imbalances and to facilitate planning of land use. The aim was that the land use planning be as efficient and coherent as possible. The challenges currently faced related directly to the negative results of the apartheid spatial planning.The objectives of this legislation were to provide a uniform, efficient and effective integrated regulatory framework for land use management, which promoted the public interest.The Department of Land Affairs (DLA) wanted the legislation to set out prescriptive principles and compulsory norms and standards, to promote corporate governance, socio-economic benefits and the achievement of land reform objectives. The land use regulators, commission and tribunal would be used to address the imbalances of the past. This was outlined in Chapter 3, which he summarised for the Committee. He briefly reviewed the content of the eight chapters of the Bill (see attached presentation) and said this reflected the principles that the DLA believed should be covered in the legislation.

Mr Sunday Ogunronbi, Director: Property Law,  DLA then presented the Department's responses to previous comments and questions of the Committee.

The Committee had previously asked what happened to people in the rural areas, and had specifically queried whether people were protected outside of the land use schemes. Mr Ogunronbi pointed to Clause 32 and said that it had two possibilities, and that all land use would fall into one of the two categories specified. He also indicated that Clause 55 would be a consideration in these instances.

The Committee had then queried the meaning of “lawful”  was questioned as used in Clause 32 (2), and had queried the impact of the legislation on the function and activities of certain departments.

Mr Ogunronbi responded that the National Environmental Management Act (NEMA) was handled primarily by the Environmental Co-Ordination Group. He said there was complexity in planning, but that the DLA had made a genuine effort in this regard.

In answer to the Committee’s question on the allocation of powers between the spheres of government, he responded that there was a delicate balance between the national and provincial spheres. He referred specifically to the comment made by the Minister of Housing that there was no land available. There had been a largely technocratic approach to the planning of Housing. There were impacts on the ground and infrastructure to consider. Land was a limited resource and the Land Use Management Bill had now proposed schemes to allow decision makers to know the best use of land that would result in efficient land management. The legislation would give the housing sector better opportunities to identify land.

Mr Ogunronbi then referred to the sweeping statements made about the current legislation. He respectfully indicated that major studies had been conducted indicating that settlement patterns were still the same as before. The Department considered whether the present laws should be adopted and came to the conclusion that the legislation would better respond to the government system as it was now. The DLA also investigated the constitutionality of the Development Facilitation Act (DFA)and found that there were issues of unconstitutionality. The Committee had commented that it felt that the DFA was more complete than the Land Use Management Bill (LUMB) and that LUMB was scant on details. To this, Mr Ogunronbi responded that the DLA could not replicate the former DFA, and it needed to empower provinces.

The Committee had then enquired into details of the composition of the Land Use Committees, and wanted to know what the common practice was. There was concern about the power of Chairs, the interactions and distribution of powers. Mr Ogunronbi  responded that Clause 9 of the Bill addressed the issue, and provided for a minimum of three members being elected as officials and a maximum of 15 members.
 

The Committee had queried the qualification for membership in the Land Use Committees. Mr Ogunronbi responded that this would be further regulated but there was no need to be prescriptive.

Mr Ogunronbi responded to the questions about cost analysis by stating the there would be no more multiple sites. The DLA had submitted documents on funding and believed cost savings would be possible.

In response to the concerns about the interaction with  traditional leaders, the DLA had met with traditional leaders in May in Durban and had fruitful discussions on the Bill. The resolutions reached were attached to the document submitted to the Committee.

The Committee had then sought clarity was sought on the meaning of office of trust. Mr Ogunronbi responded that a person holding an office of trust was someone who exercised powers in terms of a law, most probably a public servant although this was not restricted to appointments in the public service.

Mr Ogunronbi said that the DLA was seeking advice on how to add in to the Bill the resolutions reached with the traditional leaders. There was some duplication in the Bill, and so the DLA would be proposing some amendments to refine the Bill, but they did not foresee that these would be substantive amendments.

Mr Gwanya said, in closing, that he did not see the Bill as planning legislation but rather as land use management legislation. It would be better to confine discussion to land use management and not include forward planning, which should be done by municipalities.

Discussion
The Chairperson pointed out that the model followed in the Bill seemed to be based on the Gauteng model, broadened to the whole country. He said he was confused by the differentiation between this Bill and planning legislation. He asked to what extent this was reinforced.

Mr Ogunronbi, responded that the term “planning” could be used in  multiple senses. In its presentation the DLA referred to the broader sense. There was a wide range of planning issues and interactions with municipalities were important in this regard. He added that the DLA did not have the mandate to properly address the scope of planning. The sense in which the term was used in the presentation referred only to land use management.

The Chairperson asked if this process would continue after the passing of the Bill.

Mr Ogunronbi replied that the ideal situation would be to have all related laws repealed and combine all those into one law. In practice this was impossible, and so the DLA was restricted to this Bill.

Adv Dirk du Toit, Deputy Minister: DLA, suggested that Members review the proposed section 146, schedules 4 and 5  of the Bill. He noted that the concurrency was clear here.

Mr Ogunronbi referred to the observation that the Gauteng model had been used. He responded that in fact multiple systems were used. There was a need for a uniform system. This legislation was the result of a national debate with provinces. He said it was inevitable that it would tilt toward one or the other system, but he would not say it was more based upon the Gauteng model.

He referred next to an allegation made previously in relation to the Minister. He stated that the Minister had no rights here. In limited cases the Minister could exercise power based on the recommendation of the Land Use Commission. However, the Minister was not a functionary.

The Chairperson queried the fact that the submissions made by certain persons were not taken into account.

Mr A Botha (DA) asked if the Department would entertain the proposal that the Bill could be rejected, or if it was determined to continue with the Bill. He asked the Chairperson to clarify the position.

The Chairperson replied that this was the point at which he should have started, namely by mentioning the letter he had received from Congress of South African Trade Unions (COSATU). He said he would reserve his response until more questions had been taken

Mr D Dlali (ANC) responded to the Mr Botha's query. He expressed his view that the matter of the letter from COSATU should be noted and the Committee meeting should proceed as planned.


Ms Phumelele Ngema, Senior State Law Adviser, Office of the Chief State Law Adviser, stated that the only position the Committee could take was to deal with the Bill, and then make its own decisions as to whether or not the Bill should be adopted or rejected, or whether it should be amended.

Mr Botha referred to the establishment of the Land Use Committees. He said there were contradictory clauses on the appointment of members and participation in the Commission. He referred specifically to clause 9(b) on the prescriptions of the minimum and maximum number of members and the required qualifications. The requisite qualifications were not practical and he asked for reconsideration of this point.

Mr Ogunronbi responded that the clause required a minimum of three elected officials. There was no restriction on how the other twelve persons were appointed. He referred to Clause 21 of the Bill, which made provision for a panel established by the Premier to make recommendations on the appointments.

Mr Botha asked the Department to elaborate on the thinking behind the clause on non–voting members and the qualifications prescribed. He noted the contradiction with 9(b) and referred to inconsistency with the participatory and democratic process.

Mr Botha then referred to Clause 58(1) and 58(2), and queried what would be regarded as “good grounds”, asking by what authority would this be decided and how they could be challenged. He said this should be avoided at all costs. He called for a return to clause 4(e) as the process must remain participatory and democratic.

Mr Ogunronbi agreed that Clause 4 was central. He said the hope was that democracy not be limited to elected representatives only. The job was to ensure that the elections remained democratic and therefore would be an expression of the will of the people.

Adv du Toit drew the Committee's attention to page 16 of the document. He stated that these clauses showed the democratic applications. As to the practicality of the qualifications requirements, he asked the Committee to look at the support structures. He said that many of the sections should be read together with other sections. The whole law must be read, and the cross references would be underlying.

Mr Botha asked if the Minister could be more specific with the references to the Bill.

Adv du Toit responded that he referred to page 16 under chapter 4. Clause 47 referred to the role of executive authority. He further wished to refer to Clause 48.

The Chairperson referred to Clauses 9 and 21.He accepted that the process started at the advertisement phase. He said this was lacking in the Clause 9. He felt it was important for a participative democracy, where all nominations were considered by the proposed Panel.

Mr Botha agreed that Clause 9 was not sufficient. He said that Clause 21 (2) was the issue. It stated that the Premier must establish the Panel. In his view this would not be democratic and did not answer to the provisions of Clause 4(e).

The Chairperson referred to the disqualification criteria in Clause 11 and asked how the Department would define a political office bearer.

Adv du Toit defined this as a ranking party official who did not hold another political designation. He added that the Bill would have to be more clear on this point.

Mr Ogunronbi replied that the Department would seek advice. He said that he believed that it was a person that held office linked to a political party. He reiterated that the DLA would re-define their thoughts on that matter and return with an appropriate response.

Mr A Van Niekerk (DA) sought clarity on what the individual functions of the three spheres of government would be. He also wondered how they would co-ordinate. He stated that a response would be accepted in writing, at a later date.

Adv du Toit asked the Committee if the current situation gave the spatial planning that was needed. This was a really important consideration. It had become a system of consultation and lobbying and he did not think it was right to put these powers in the hands of lobbyists. It would take time to get practices settled, and this would probably happen first at the stronger municipalities. Any neglect of the other municipalities would also have to be addressed.

Mr Van Niekerk stated that the DA supported that. The finer details as to how things had to be done would still have to be argued.

Mr Dlali referred to the clauses on norms and standards, specifically clauses 5(1), and 5(2)(c) and noted that the main culprits in corruption were the developers. He said an effort had to be made to guard against this exploitation.

The meeting was adjourned.

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