The Committee heard the Department’s responses to the submissions made thus far on the Land Use Management Bill and noted that other submissions were still to be made. The Department noted that it had been holding extensive consultations from 2001 right up to 2008. The 2008 version of the Bill reflected comments made by stakeholders. He clarified that in some cases individual office bearers of organisations, rather than the organisation itself, may have been consulted so the claims about non-consultation were not correct.
The Department then summarised the submissions made by each of the commentators and provided a response, as set out fully in the attached documentation. It was agreed that the definition of “restrictive conditions” raised by the City of would be looked at, and the suggestion to change the heading of Clause 5 was accepted. Johannesburg Municipality’s suggestion that the Municipal Land Use Committees’ composition and appointment were not supported, as the Department did not wish to be overly prescriptive However, the comment on clause 32 was accepted, as also comments on synchronisation of clauses 27 and 33, and clause 35 and 37(2)(ii)(aa).
The Western Cape Office Of the Premier had called for greater powers for the provinces, and had said that the Bill was altering certain principles. The Department was seeing the matter in the context of the Constitution’s section 44, and believed that no power was being removed. However, it did accept comments in relation to, and would amend Clause 8. The Community Law Centre’s comments around the problematic overlaps in the Bill in constitutional functions were accepted by the Department. The Department agreed that clause 73 would be removed. The FW de Klerk Centre for Constitutional Rights had highlighted the need to balance environmental concerns with Land Use, and this was being taken care of. The Department clarified the consultation processes that had been queried. The Department did not, however, agree with the Urban Landmarks submission that the Bill did not address apartheid spatial planning patterns. It would, however, accept the suggestion of mechanised and expedited procedure. Concerns raised by the SA National Biodiversity Institute would be considered. The submission by the South African Planning Institute was also disputed, as it seemed to misunderstand the applications, and was incorrect on areas of accountability.
The Department commented briefly on the claims that parts of the Bill would be difficult to defend, saying this was debatable, said that the Minister of Finance would have to comment on the allegations of the South African Property Rights Foundation, noted where other submissions duplicated comments that it had already addressed, and commented on the Department’s assistance in capacity building, in response to the Agri SA submission. It was noted that the powers of traditional leaders, as raised by Contralesa, remained unchanged.
Members commented that so many submissions had been accepted that it appeared that the Bill needed to be completely redrafted. Members were disappointed that the contributions of traditional leaders were not included in the document, and queried why rural landowners did not hold title deeds, why houses in townships were of lower value than those in the formerly-white suburbs, the use of the word “township”, and the response to the comments around delays, particularly in the Eastern Cape.
Land Use Management Bill (the Bill)
The Chairperson said that the Commission On Gender Equality (CGE) and the South African Local Government Association (SALGA) wanted to present their submission on the Land Use Management Bill. He suggested that these submissions could be heard on 7 August. He reminded the Committee that the Bill should be with the National Assembly by 17 August 2008.
Mr M Dlali (ANC) said that doors should remain open for late submissions. He suggested that consideration of amendments should be shelved for a later date after the two outstanding presentations were heard. The Department could deal with comments that came from the submissions.
Mr K Van Niekerk (DA) commented that the consultation was very important, as was evident during the hearings.
Mr Thozi Gwanya, Director General, Department Of Land Affairs, said that the Department of Land Affairs (DLA or Department) had looked at all the presentations and reflected on some of these issues with the State Law Advisers. Areas of concern would be presented to the Committee for comment. The Department had looked at some constitutional issues, the repeal of legislation and amendments. The Department had consulted stakeholders since 2001 and they were still consulting in 2008.
The 2001 Bill was totally different to the 2008 Bill due to contributions from the stakeholders. He emphasised that consultation was done with different entities. The organisations that claimed that they were not consulted had in fact been contacted in an individual capacity. He cited the example that the Chairperson of South African National Biodiversity Institute was consulted, although the organisation itself was not directly approached. He noted also that e-mails had been sent to other organisations, asking for responses, but these were not always responded to.
The Department then commented on each submission as follows:
City of Johannesburg submission
Mr Gwanya noted that the City of Johannesburg was generally supportive of the Bill, but that some improvements were suggested. He went through the suggestions one by one (see attached presentation).
Mr Sunday Ogunronbi, Director Land Planning and Property Law, noted that the definition of “restrictive conditions” raised by the Johannesburg municipality would be looked at. The Department would also take on board the suggestion to change the heading of Clause 5 on “compulsory norms and standards”.
Johannesburg Municipality submission
In regard to the submission by Johannesburg Municipality, a suggestion had been made that the Municipal Land Use Committees (MLUC) should be lead by legally qualified personnel. The Department did not want to be overly prescriptive because smaller municipalities would suffer. Municipalities with financial muscle could do so this already in practice without a need to specify it by amending the Bill. The Department further felt, in relation to the appointment of a Committee that the Executive would appoint a selection committee that would be responsible for the appointment. The Department also believed that the politicians should decide on the terms of office and this should not be in the Bill.
Mr Ogunronbi said that the comment in relation to Chapter 3, Part 2 was a reference to a drafting style and it did not affect the content of the Bill.
A comment had been raised around Clause 32. The DLA considered that it should propose a sub-clause to deal with the de-proclaimed land. When the land was no longer used for mining then it could be used for something else.
The Department would take the suggestion on synchronisation of Clauses 27 and 33 with what was in the current arrangement of the Act.
On the question of compensation, he said that the Department would accept the suggestion in relation to clause 35 and the Department therefore agreed that Clause 35(a) would fall away.
The suggestions on Clause 37(2)(ii)(aa) were similarly being accepted.
Western Cape Office of the Premier submission
Mr Ogunronbi then commented on the submission made by the Western Cape Office Of the Premier (WCOP). This had called for greater powers for the provinces.
The WCOP had claimed that the Bill was altering long-standing principles such as “town planning”. The Department had deliberately decided to use land use planning, because town planning was not applicable to planning in the rural areas.
The WCOP had then challenged the use of the tribunal as the Land Use Regulator for the province. Mr Ogunronbi pointed out that the land use scheme would be done as a by-law of the Municipality, and not the Province, so as not to subordinate local government municipalities. He said that the Western Cape wanted to control the municipalities, but also wanted the national government to keep away. The Department suggested that this must be seen in the context of Section 44 of the Constitution. He submitted that nothing the Department was proposed was in fact interfering with the mandates under the Constitution. The Department would not take power from elected officials. Clause 8 and 44 of the Bill stated clearly that there was a role for elected officials. He said, however, that the Department would propose further amendments to Clause 8 of the Bill.
Community Law Centre, University of Western Cape submission
Mr Ogunronbi then moved to the submission of the Community Law Centre, University of Western Cape (the Centre). The Centre’s submissions were positive contributions on the Bill. The Centre had assisted in the definition of the problematic overlap between constitutional functions between municipalities and provinces. The Department agreed, on reconsideration, that the Bill did seem to create an overlap in the allocation and distribution of powers. The 2008 version addressed all the concerns of the Centre. The Department was confident of the fact that the Intergovernmental Relations Act clearly defined the relations between the three spheres of the Government.
Mr Ogunronbi did concede that clause 73 of the Bill overstepped the Constitution and therefore would be removed.
He noted that the Provincial Growth and Development Strategy (PGDS) and the National Growth and Development Strategy were clearly addressed in the 2008 Bill.
F W De Klerk Centre for Constitutional Rights (CFCR) submission
Mr Ogunronbi said that the Department had felt that the submission highlighted the need to balance environmental concerns with Land Use. The Department had taken care of the environmental concerns.
Mr Ogunronbi said that the comment in relation to Clause 4(2) had been taken care of in the 2008 Bill, and therefore there was now no need for further amendment. This clause now set out the need to take public interest into account.
The Department had been aware that all the affected Ministries were consulted when Norms and Standards were determined.
In relation to the comment around the need to consult the Department of Agriculture, the Land Use Regulator worked with the Department of Agriculture when dealing with Land Use change of agricultural land.
Urban Landmarks submission
Mr Ogunronbi said that the Department did not agree with the submission by Urban Landmarks that the Bill dealt with what had already been catered for in legislation.
Other concerns that were made by Urban Landmarks were reflected in, and had already been dealt with in his response to those submissions.
Mr Gwanya said that the Department disputed the allegation that the Bill did not address apartheid spatial planning patterns. People were entitled to decide where and what type of development they wanted in which area. The National Spatial Planning Framework clearly said that apartheid spatial planning should be reversed.
He summarised, in this regard, that the Bill had clear guidelines for each sphere of Government.
The Department would review the list of laws to be repealed, but provinces could also repeal laws affecting them. Several Clauses had clearly covered environmental concerns. The Department would take on board the suggestion of mechanised expedited procedure.
South African National Biodiversity Institute (SANBI) submission
Mr Ogunronbi said that SANBI was largely supportive of the Bill, but he emphasised that the Department would look at the concerns raised by the SANBI.
South African Planning Institute submission
Mr Ogunronbi stated that the Department did not agree with the allegation that the Bill was based on tiers, not spheres of Government. In this regard he pointed out that the Municipal Systems Act recognised that the Department of Land Affairs was to do Land Planning, the Department of Water Affairs was to do Water Planning, and the Department of Transport was to deal with Transport Planning. The Department had assisted the municipalities to do Land Use Management Schemes.
Mr Ogunronbi said that it was not true that Bill removed powers from elected officials. He said it was apparent that the SA Planning Institute had not looked at the Bill thoroughly. He noted that the district municipalities could not do Land Use Management Schemes. They could only co-ordinate or align the municipalities.
Mr Gwanya added that provinces could deal with Land Schemes related applications when local municipalities did not have the necessary expertise, but not the district municipalities.
He said that all the Provinces were in the process of repealing apartheid legislation that hindered land use.
Finally, he noted that the Department saw no need to provide direction to provinces on spatial planning.
Gauteng Finance and Economic Affairs submission
Mr Ogunronbi said that the claim that some parts of the Bill would be very difficult to defend was debatable. Lawyers would always argue over laws. The provisions in the Bill were acceptable as long as they could be defended, in his view, as there was no one definitive answer to anything.
Institute for Constitutional and Labour Law Studies submission
Mr Ogunronbi said that the Department would not address nuances such as “imbalances of the past”. He noted that other concerns had been raised, but these were similar to, and had already been addressed by him in his response to other submissions.
The Chairperson noted that he thought that Clause 5 of the Bill should be strengthened.
South African Property Rights Foundation submission
Mr Ogunronbi pointed out that the Minister of Finance was better qualified to address the concerns of the Foundation because they were tax related.
P E Classen submission
Mr Ogunronbi said that the Bill had addressed the environmental concerns. Mr Classen was not specific on how the Bill was not applicable to the Western Cape.
Francois Theunissen submission
Mr Ogunronbi pointed out that Mr Theunissen’s submissions closely mirrored those that were submitted by the Western Cape Premier’s Office. He said that these comments had been addressed previously
Agri SA submission
Mr Ogunronbi said that the Department had been working on a number of issues that were aligned to the Bill of 2008. All land was subject to Land Use Schemes that were guided by the National and Provincial regulations. In respect of land development, the definition was all encompassing. Directive principles had addressed the concepts of rural development, economic growth, protection of natural resources and maintenance of food production.
He noted that the issue of the norms and standards had already been addressed in relation to other submissions with similar concern.
He said that the National and the Provincial Departments would provide capacity building to fulfil the envisaged functions as municipal land use regulations. He said that the Land Use Schemes covered municipal land and the schemes were the products of consultation with the Committees.
He said, in answer to a submission, that the Department saw no need to mention the Conservation of Agricultural Resources Act.
Congress of Traditional Leaders (Contralesa) submission
Mr Ogunronbi said that the powers of traditional leaders within their domains would be recognised. They were entitled to participate and deliberate Land Use within their domains, in conjunction with municipalities.
Mr Dlali said that each and every submission had resulted in the Department recognising the need for amendments, and this meant that effectively the whole Bill had to be rewritten. He said that he failed to understand why the all the concerns that were raised in the submissions were not included in the initial drafting of the Bill.
The Chairperson reiterated Mr Dlali’s observation.
Ms C Nkuna (ANC) was deeply saddened by the fact that Traditional Leaders’ contributions were not in the document. She pointed out that in fact the lives of rural people were greatly affected by how the traditional leadership exercised governance. Traditional leadership was part of the African culture. She asked the reason why rural people did not have title deeds, even though they owned land.
Ms L Ngwenya (ANC) asked for clarity on the capacity of the local government because so much power had been devolved to municipalities.
Mr Ogunronbi replied that the Provincial and National Government would provide the capacity for the envisaged devolution of powers.
Adv P Holomisa (ANC) said that the Department seemed to be pretending that the institution of traditional leadership did not exist at all. He said that even the Constitution contained scant details around the role of traditional leaders. He reiterated that the majority of the small municipalities were situated in areas that were ruled by traditional leadership.
Mr Dlali said that the South African Geomatics Society had expressed concerns about delays when Land Use applications were forwarded to the Eastern Cape departments. He wanted to know what could be done to solve that.
Mr Ogunronbi replied that there was lot of red tape in Land Use Applications. He cited an example of a person wishing to build a shopping mall. Lawyers who represented some other interest could, for instance, claim that the land was a butterfly breeding ground, and this would result in long delays while the claims were tested.
Ms C Nkuna asked the reason that the values of the township house were low compared to those in the suburbs. She felt that the word “ township” was used for discriminatory purposes.
Mr Colin Brocker, Head: Legal Services, DLA, replied that the word “township” was actually derived from the English law, but he agreed that in South Africa it had acquired negative connotations. The houses in a suburb like Sandton had more value because of freehold rights that were previously applicable to the previously-white residential areas only. A house in Soweto did not, due to previous government policies, have the same rights. He assured Ms Nkuna that from a strictly legal standpoint the word “township” did not have any derogatory connotations.
Mr Ogunronbi said that the use of word “township” when related to the change from an informal settlement to a township was meant purely for legal purposes. Land Use schemes required that land should be registered in the Deeds Registry. Most land in rural areas, especially in the former homelands, was not surveyed and registered in the Deeds Registry. Registration would enable the land to have a title deed, which would then be allocated to the registered owners.
The Chairperson noted that his house was situated in a formerly white “suburb”, but it was legally referred to as a “township”.
The meeting was adjourned.
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