Land Use Management Bill [B27-2008]: public hearings

Agriculture, Land Reform and Rural Development

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

Various civil society organisations and different spheres of government briefed the Committee on the Land Use Management Bill. These entities were unanimous that the Bill did not adequately address pertinent issues and that it raised several constitutional concerns. They expressed their disapproval at the Department for excluding them from the drafting of the Bill.

Members posed various questions that pertained to the constitutionality of the Bill, the power struggles involved and whether these entities had been consulted by the Department. The ANC members indicated that the Constitution was not cast in stone and that it had to be amended if it would be to the benefit of the poor and marginalized, as many entities over-relied on section 44(2) of the Constitution.

Meeting report

Land Use Management Bill (LUMB): Public Submissions
City of Johannesburg (COJ) Submission

A delegation led by Professor Philip Harrison, Executive Director, Urban Management: COJ, briefed the Committee on the COJ’s input on the LUMB.

He indicated that some expectations that pertained to the Land use regulators had been met, but that the Department had failed to address existing legislation and ordinances and that the roles of the different spheres of government had not been adequately clarified.

He added that the COJ had identified seven areas of major concern. There had been a lack of integration with environmental management and other forms of planning and international good practise had included the full integration of environmental management and development applications.

LUMB was further criticised in that it did not provide clarity on what constituted national and provincial interests, which might lead to future protestation and litigation as there would be continued co-existence of separate and parallel legislation that provided no clarity on how LUMB would address this.

Professor Harrison noted that the lack of attention to the role of spatial policy in LUMB had been worrying as it gave insufficient weight and emphasis to the importance of spatial planning, which had been deemed important by the 2001 White Paper.

He added that the Department had failed to recognise the importance of engineering and social infrastructure despite the fact that the current electricity crisis highlighted their importance. If engineering and social infrastructure had been included then their role would have been adequately covered as it had been considered as important for any land use management schemes.

The COJ recognised that informality had been a major feature of the urban landscape and that there were currently 180 informal settlements. LUMB gave no guidance or procedures as to how it would deal with this urban reality as government had planned to regularise informal settlements by 2014. It was considered worrying that the clause that dealt with extra-ordinary measures for dealing with tenure and settlement within the Development Facilitation Act (DFA) had not been included in LUMB.

Professor Harrison said that it had been difficult to comment on the provisions of LUMB in the absence of the Regulations. He noted that Land Use Regulators should be prohibited from serving on the Land Use Tribunal if they submitted applications in that jurisdiction.

Adv Dirk du Toit, Deputy Minister of Agriculture and Land Affairs, thanked the City of Johannesburg for their presentation, but noted that the slide presentation had been different from the written submission. He said that the submission contained important and substantive information and asked that copies of the slide presentation be distributed.

Dr A Van Niekerk (DA) thanked the COJ for their submission as the LUMB had been in the pipe line for more then seven years now. He asked whether the COJ had been consulted by the drafters of the Bill.

Adv P Holomisa (ANC) asked what the response of the Department of Land Affairs was to the COJ’s submission.

Professor Harrison said that the process had been going on since 2001 and that the COJ had not been consulted on LUMB.

Mr A Nortje, Legal Compliance, COJ,  added that from the very first draft of LUMB in 2001, the COJ’s legal department gave their input on the Bill and that the COJ had been involved with the Gauteng Provincial Government on the drafting of the Gauteng Land Act.

Ms Nicolene Le Roux, Assistant Director, Legal Administration: COJ,  noted that the COJ had been involved in the 2001 and 2003 versions of the Bill, but that no interaction between the Department and the COJ had taken place on LUMB. She added that the submissions that had been made by the COJ had only been acknowledged in writing.

Dr Van Niekerk asked whether any input made by the COJ had been included in LUMB.

Ms Le Roux replied that the COJ had been happy to see that some of the comments made on the Bill found its way into the Land Regulator clause, but that no other input by the COJ had been incorporated into LUMB.

Mr D Dlali (ANC) asked what the normal process of engagement between the COJ and the Department was.

Professor Harrison replied that the formal process consisted of submissions which the COJ had done, and that the informal process, consisting of workshops, had also been valued.

Ms Le Roux added that the COJ had actively been involved in the drafting of the Gauteng Development Planning Act, which consisted of both formal and informal processes of engagement.

Ms C Nkuna (ANC) said that the COJ highlighted several deficiencies on LUMB and asked for clarity on how the regularisation of informal settlements would be achieved.

Professor Harrison noted that there had been limited areas that could be addressed and that the Bill had to specify what Provincial and National interest comprised of. One of the major problems with LUMB had been the effect that it would have on the environment. This, coupled with the reference made to spatial planning, would neither better nor re-shape the Land Use Management System.

In relation to the formalisation of informal settlements, Professor Harrison said that formalisation was a very lengthy process and that the COJ had decided to adopt the Brazilian model of formalisation as it entailed a detailed assessment, followed by a proclamation, designating the zone as a “designated zone of public interest”. This process would eventually culminate in the zone being declared a “transitional zone”. The Brazilian model had been considered successful as led to fast-tracked rezoning. The implementation of the Brazilian model could be problematic for the COJ as LUMB repealed the DFA in its entirety. This had been considered as a big mistake by the COJ as the DFA covered some pertinent issues.

The Chairperson asked Professor Harrison to elaborate on the Brazilian model.

Ms B Ntuli (ANC) said that the restrictive conditions that pertained to the powers of land use regulators  would attract opposition from private land owners. She asked what the COJ proposed for clause 35 that dealt with this issue should entail.

Professor Harrison noted that some of the functions had been considered problematic by the COJ as this clause did not allow for the delegation of powers to other officials to process and grant permission to applicants.

Ms Ntuli asked why the COJ considered regulations and polices as being better then norms and standards.

Professor Harrison replied that LUMB set out principles that had to determine norms and standards, but it did not provide clarity on the role of regulations and policies. This was confusing as the norms and standards had been considered to be inadequate. The Bill did not provide for the inclusion of policy directives, which had been considered as important for this clause.

Ms Le Roux added that some of the obligations and rights accorded to land use regulators could lead to litigation and corruption by disgruntled applicants. No clarity had been given on the type of reward that would be given, as these regulators had the same powers as magistrates in LUMB.
Mr Dlali asked the COJ to clarify its view on National and Provincial Spatial Planning and why regulations and policy directives were deemed to be important.

Professor Harrison replied that co-operative governance was very important as local and provincial governments could not conduct proper spatial planning by themselves. LUMB did not specify what would happen to the Acts and Ordinances enacted by municipalities and the Gauteng Provincial Government.

Gauteng Provincial Department Of Finance And Economic Development (GPDFED)

A delegation from the GPDFED, led by Mr Sibusiso Xaba, Head of Department, briefed the Committee on the areas of concern with the LUMB.

Mr Xaba indicated that there had been no consultation with the Provinces before LUMB had been finalised and that it was unconstitutional as it prevailed over provincial legislation on land use management. He added that LUMB had to clarify, define and state the precise functional areas it was legislating for and he questioned the capacity of the Department in processing first time applications.

He concluded that there had been considerable improvement on the LUMB, but emphasised the need for further improvements. He noted that the GPDFED was fully committed to cooperate with the parliamentary process in order to finalise the LUMB so that South Africa could have the best possible planning law.

Ms Ntuli said that Mr Xaba had noted that there had been a number of problems in LUMB and asked him to mention specifically the areas that could be strengthened.

Ms Ntuli asked whether the environmental issues raised by Mr Xaba could not be better managed by the Memorandum of Understanding, and what exactly the contentious provisions were in LUMB that might create practical legal implications at implementation.

Mr Dlali said that the Committee had not been presented with a copy of the study mentioned by Mr Xaba in his oral submission. He noted that it was very important for entities to include such evidence. He added that the GPDFED had simply made assertions about LUMB and that it was very important to come with alternate suggestions.

Mr Dlali noted that the main problem with the three spheres of government had been that they each would challenge anyone who dared to interfere with their powers and functions.

Mr Xaba replied that no recommendations had been made as some of the points raised by the GPDFED still had to be clarified. However the South African Constitution had been very particular on the separation of powers of the three spheres of government, and he thought that the ramification of LUMB would be different for each sphere.

Mr Xaba noted that there would always be power struggles as government agencies and structures guarded their powers and functions against those who wanted to infringe on it.

Ms N Tseki, Director, Land Use Management: GPDFED, added that during the drafting of LUMB no formal approach had been made by the Department and that some issues raised in the oral submission had been different to that of the written submission, as the Department contacted the GPDFED for a consultation process a week before the GPDFED had been due to appear at the public hearings. The GPDFED made extensive and substantive comments, but none of these had been incorporated as part of LUMB.

Congress of Traditional Leaders of South Africa (CONTRALESA) and Houses Of Traditional Leaders (HTL) submission
Prince Zolile Burns-Ncamashe, Deputy Chair: Eastern Cape House of Traditional Leaders, noted that the Constitution stipulated the role of traditional leadership in democratic and co-operative governance in South Africa. Due to this, CONTRALESA had been of the opinion that the role of traditional leaders in land use management should be specifically acknowledged and written into the long title of the LUMB, that definitions that pertained to traditional leadership be defined and that the National House of Traditional Leaders (NHTL) should be consulted when norms and standards for land use management that affected rural and communal land were decided upon.

He added that Clauses 5(a) and (b)(ii), and Clause 6(2) had to be amended so that it included support and assistance to traditional councils and local houses of traditional leaders when they performed their land use management functions.

Adv Holomisa said that LUMB and the Constitution gave credence to the three spheres of government, which countered Prince Burns-Ncamashe’s notion that a new sphere of government be created to accommodate traditional leader

The Chairperson added that traditional leaders did sit on local councils where important issues that pertained to local governance and related measures were decided on.

Prince Burns-Ncamashe replied that the House of Traditional Leaders had been a transformed and structural engagement which placed it in a very influential position to respond to the challenges at local level as traditional leaders were based where the people were. CONTRALESA was not asking for a new sphere of government to be created, but rather a chance to enhance the process.

Ms Ntuli said that she had been happy to see the input from CONTRALESA as Chapter 12 of the Constitution had been clear on the important role and function of Traditional Leaders, who could clearly not be excluded from this process.

Mr Dlali noted that the cross-referencing had been very confusing and that spatial and town planning had been considered a nightmare. The authority of Traditional Leaders only applied to certain jurisdictions.

Adv Holomisa asked whether Traditional Leaders had any powers at local level and asked to what extent Traditional Leaders would be able to deal with the subdivision of land.

Prince Burns-Ncamashe replied that the National House of Traditional Leaders (NHTL) had not been recognised in LUMB and that the drafters of LUMB had not seen the need for the referral to the NHTL. He added that the NHTL understood the imperatives around transformation and democracy, and that democracy would be strengthened within Africa as South Africa could not operate in isolation.

He added that the NHTL had been dealing with land issues before, and that they would hire experts if the need for that arose. He remained concerned about the grey area around the powers and functions of Traditional Leaders in LUMB.

Institute For Constitutional And Labour Law Studies (IFCALLS) Submission
Mr Johan Kruger, Executive Director: IFCALLS,  said that the Institute had been of the opinion that phrases such as “public interest”, “balanced economic development “ and “imbalances of the past” had not been described and particularised in clause 1. He added that the LUMB was considered to be unconstitutional as it infringed on section 44(2) of the Constitution.

Mr Kruger noted that the Bill and the Memorandum on the Objects of the LUMB, attached to the Bill, did not indicate nor explain why the intervention of Parliament as postulated in section 44(2) of the Constitution was required through the introduction of the LUMB. He said that the prescription and regulation of land usage as envisaged in Clause 32 of the LUMB was unnecessary, and that the current regulatory framework was sufficient on all three spheres of government.

Ms Nkuna asked what the Institute proposed that the definition of “Balanced Economic Development” should read. She also asked why the Institute said that Parliament did not have the mandate to pass LUMB, as this would be considered by the NCOP as well.

Mr Kruger replied that the Institute would be happy to redefine “Balanced Economic Development”, but that time did not allow for this at present. The Institute would furnish the Committee with a definition in the near future. He said that it had been suggested that LUMB was unconstitutional as no ground had been laid as to how Parliament could intervene.

Mr Van Niekerk asked whether the Institute only assessed the constitutionality of LUMB.

Mr Kruger replied that the Institute focussed on the constitutionality of LUMB and not the necessity for LUMB.

Adv Holomisa asked who the patrons of the Institute were.

Mr Kruger replied that the Institute could not divulge who their patrons were, but that the Institute had been an initiative of the Solidarity Trade Union.

Mr Dlali said that the Institute relied too much on section 44 of the Constitution and that they had to explain how social economic benefits could be addressed.

Mr Kruger replied that section 44 of the Constitution highlighted relevant issues and it had been those issues that the Institute had underlined, as they could lead to abuse, especially with Land Reform Legislation

In relation to national legislation, Mr Kruger said that in this case national might prevail over provincial legislation, with some form of accommodation for provinces, but not in the required fashion and that the definition of “public interest” had to be placed in context as it could lead to abuse.

AGRI-SA Submission
Ms Annelize Crosby, Parliamentary Liaison Officer, Agri-SA, said that the main concern with the LUMB was the possible rezoning of valuable agricultural land for commercial interests. The definition that dealt with “land development” had been considered to be quite broad and vague and it was in addition considered that the Memorandum on the Objects of the Bill should include matters such as rural development, economic growth and the protection of natural resources.

In relation to clause 5, Agri-SA indicated that the Minister could determine norms and standards without consulting civil society. This was viewed as problematic, as there needed to be consultation at least with the Departments of Trade and Industry, Water and Forestry, and Environmental Affairs and Tourism.

There had been general consensus that municipalities might not have the capacity to adequately act as Land Use Regulators, and also on the point that it was unclear as to how the Land Use Regulator would have the sole jurisdiction to determine a change in land use.

Ms Ntuli asked whether AGRI-SA suggested that the powers and functions of Land Use Regulators should be limited and whether AGRI-SA’s submission focussed on urban planning or rural planning.

Ms Crosby replied that AGRI-SA had been concerned that agricultural land would be lost to commercial development, particularly given that South Africa had very little arable land. She added that LUMB seemed to be focussed on urban planning. AGRI-SA had been of the view that the Minister had an important role to play in what happened to the limited agricultural land.

Mr D Ribbens Attorney for AGRI-SA, said that, given the current food crisis, it could be disastrous to rezone agricultural land for commercial interests.

Ms Crosby noted that it was very important for Parliament to pass the Sustainable Utilisation and Protection of Agricultural Land (SUPA) legislation, as it was important that agricultural land received adequate protection.

Urban Landmark Submission
Mr Stephen Berrisford, Director : Urban LandMark, noted that the submission by Urban LandMark was clear on the critical importance for the redress of apartheid spatial injustices, and the development of efficient and sustainable human settlements that were to the benefit of all South Africans.

It was noted that LUMB added yet another layer of legislation to existing duplicative and discriminatory legislative frameworks. It was not clear how it related to provincial Ordinances and the Less Formal Township Establishment Act.

In addition, the Development Facilitation Act (DFA) introduced innovation and invaluable routes for approvals in both the commercial and developmental sectors. If the DFA was repealed it would leave serious gaps, especially in some provinces.

Urban LandMark proposed that there must be clarity given as to what sphere made which decisions, and also that there must be clarity on the scrapping of Apartheid land development and planning legislation. Due to the multitude of problems Urban LandMark encountered with the LUMB, it feared that it would not meet the needs of poor South Africans.

Mr Dlali asked for an explanation as to why LUMB had been considered “risk legislation” by Urban LandMark.

Mr Berrisford replied that certain Acts that pertained to Land Use Management, enacted by current provinces and former Apartheid provinces, were still considered valid and that the Department could not solve this issue on its own. He added that an intergovernmental process was required, as national legislation could not just override the Acts enacted by these provinces.

Mr Dlali asked how integration between the different races could be achieved, as black areas had generally been placed far away from city centres.

Mr Berrisford replied that townships had been regulated under different apartheid legislation
from Indian, Coloured and White areas, and that there was a need for unified schemes to address this imbalance. The Regulations of this apartheid legislation had been attained even though the Acts themselves had been repealed.

Ms Ntuli noted that the time had come to review the meaning of “Township” as it had been associated with everything that was bad. She added that properties in townships had generally been valued at much lower rates, due to the mere fact of the property being situated in a township.

Mr Berrisford replied that the DFA had made away with “townships” whereas LUMB reintroduced the term “Township”. From a legal point of view, all South Africans lived in townships.

A representative of the Department of Agriculture and Land Affairs said that the task had not been easy and that the ideal situation would be to repeal all the old laws. The Department could not amend the Constitution, via LUMB, and there had been general recognition that there had been distinct constitutional issues.

He added that before the DFA had been repealed, contractors had made a lot of money as there were no controls in place to monitor this process and that there had been too many disadvantages. He said that many areas did not have Land Use Schemes and that the LUMB could not determine land value.

Mr Berrisford noted that Government had to intervene in a manner that was of benefit to the poor and not of benefit to those who already accrued a lot of benefits.

Mr Dlali noted that if the decision was made that a Constitutional amendment must be made in order to accommodate LUMB, then this must be done, as people had been suffering under Apartheid legislation for too long. He asked the Department to be quite frank and open with the Committee.

South African Planners Institute (SAPI) Submission
Mr A Adams, President, SAPI, indicated that no reference had been made to the Intergovernmental Relations Framework Act and that none of the bodies proposed in the Bill related to the structures established in that Act.

The Bill also took away power from elected officials such as councillors and MECs, as the Bill made no provisions for these officials to either play an Executive or an oversight role in decision-making. This was unconstitutional, as the Public Finance Management Act and the Municipal Finance Management Act had been clear on the important role that an elected official played in the ultimate arbitration of decisions that emanated from within his organisation.

The LUMB provided no guidance on the sustainable utilisation of land as a resource and no recognition of the difference between land use management as defined in the 2001 White Paper and strategic spatial planning had been forthcoming.

Sapi decided that it would draft the National Spatial Planning Act that would adequately address the issues that LUMB did not cover.

The Chairperson asked which entity commissioned the study mentioned by Mr Adams and whether he could provide the Committee with copies.

Mr Adams replied that the study had been commissioned by National Treasury and that it had not yet been released to the public.

The representative of the Department indicated that it had several consultations with SAPI and that it had met on several occasions with Mr Adams. He added that he had records of those meetings and SAPI had made a submission in 2006.

The Chairperson asked the Department when last it had consulted with SAPI.

The Departmental representative replied that the Department had last met with SAPI in 2006 when a copy of the Bill was handed over to Mr Adams. Mr Adams then indicated that SAPI opposed the Bill in principle, regardless of the contents.

Mr Adams replied that people wore different hats. The consultation that he had been referring to was a letter that Mr Adams wrote to the Minister on her appointment. He said that half-truths were being peddled as truths by the Department.

The Department indicated that it did not know the membership of SAPI as the South African Congress of Planners officially represented planners, and not SAPI.

Mr Adams replied that LUMB had been universally rejected as no organisation had supported it and that there had been mention of taking the Department to the Constitutional Court. He noted that LUMB had been in the pipeline for more than seven years and that it was wrong for government officials to get away with such impunity.

Ms Ntuli said that Mr Adams had raised serious issues and that she was aware that some municipalities still had old and outdated Ordinances, which did not look at the needs of black people due to apartheid.

Mr Adams noted that there had been huge problems with municipal infrastructure and that the role of government had to be assessed. He added that current legislation and LUMB had to clarify how they would address the constitutional issues raised, and that most municipalities had the capacity to deal with land issues as 70% of their business pertained to land issues.

Ms Ntuli said that the Constitution was not cast in stone and that certain concessions had been made for the sake of reconciliation. She added that the Constitution had to be amended if doing so would mean that it would benefit the poor.

The Department said  that it would report to the Committee on the issues raised at the next meeting. The representative requested clarity from SAPI on whether it had read LUMB.

Mr Adams replied that there was nothing good about LUMB and that it had to be redrafted.

South African Constitutional Property Rights Foundation (SAPRF) Submission
Mr Peter Meakin, representative of SAPRF noted that SAPRF was of the opinion that the LUMB would not achieve certain key and laudable objects, directives of principles, unless and until the entry cost to unused and unimproved land in South Africa was eliminated and replaced with annual user charges like rates and taxes.

Due to shortage of time the full submission was not presented, but Members were referred to the full written submission (see attached document). There was no discussion on the submission.

The meeting was adjourned.

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