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

Agriculture, Forestry and Fisheries

11 August 2008
Chairperson: Mr R Mohlaloga (ANC)
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Meeting Summary

The Committee heard further submissions on the Land Use Management Bill.

The South African Local Government Association briefly gave a background on the complex problems that were created by apartheid spatial planning, what should be addressed by the Bill and what was contained in the Memorandum on the Objects. SALGA said that although it was consulted in 2001 there had been no consultation in the years since then, and especially not on the latest draft. The main areas of concern were outlined only very briefly, as SALGA was still considering the Bill, but would include the development of norms and standards without consultation of key stakeholders, and the fact that certain provisions were unconstitutional as there was encroachment on the competencies of local government. It was also concerned about lack of clearly defined roles and responsibilities across the three spheres of government relating to spatial planning. Members questioned the comments about consultation and the Department of Land Affairs also commented on its interpretation.

The Legal Resources Centre did not comment, clause-by-clause, on the Bill but indicated that it supported the comments earlier made by the City of Johannesburg, Community Law Centre, Office of the Western Cape Premier and others. This Bill should incorporate what was important from the Development Facilitation Act, and should address the continuation of apartheid-style planning because certain areas had houses of certain values only. Concerns were also expressed on municipal capacity and the adoption of land use schemes. There was a need to consider the constitutional rights and implications, the need for land audits and rapid land release. The right of participation and decision making of rural communities must also be considered. Members asked for clarity on the comments, including the concerns about the sale of municipal land, and the measures that could be taken to address zoning and ordinances.

The Commission on Gender Equality noted that land ownership and its use and management were linked to economic prosperity, race and gender. The policy framework must take cognisance of the need for transformation of apartheid-based settlement patterns and economic development, as well as gender needs. The omission of a definition for “land” was criticised, and it was suggested that particular attention must be paid to the position of municipal-owned land. There was confusion of the roles of the different spheres. Land management was not clearly defined under the Schedules 4 and 5 of the Constitution, and the Bill should therefore give definition to the functions listed there. Land use management policies should expressly include gender equity. Suggestions were made in respect of the need to further clarify clauses 6, 7, and 8 and a consultation process must be introduced into clause 19(2). The powers and functions of the Tribunals must be expanded. Finally, it was submitted that if the Bill did not address land ownership and use by women, this would simply perpetuate the discrimination and marginalisation of women, and that this fact alone was sufficient to call for the redrafting of the Bill.
Members called for clarity on the comments around the definition of State land, particularly the position in respect of municipal land, and some of the current problems with developers were raised. The consultation process was examined. The Minister of Agriculture and Land Affairs commented that this was a sensitive and complicated piece of legislation as it straddled all spheres of the Government. Members reiterated concerns expressed earlier that the submissions would result in a total re-draft of the Bill, but the Department said that in fact many of the amendments were of a consequential nature.

Meeting report

Land Use Management Bill (the Bill or LUMB): Further public hearings
South African Local Government Association (SALGA) submission

Mr Lance Joel Executive Director: Governance, Intergovernmental Relations & Municipal Services, South African Local Government Association, briefly gave a background on the complex problems that were created by apartheid spatial planning. He spoke on the Development Facilitation Act (DFA) and the challenges that were supposed to be addressed by the Bill, as well as what had been set out in the Memorandum on the Objects of the Bill.

Mr Joel said that when the Bill was first published in July 2001, SALGA was consulted. However, in respect of the latest draft of the Bill, the Department of Land Affairs (DLA) did not have meaningful interaction with SALGA. He tabled a diagram showing the mandating process within SALGA. He added that there would be opportunities for consultation when the Bill would be in the NCOP.

Mr Joel spoke briefly about the main areas of concern. These included the development of norms and standards without consultation of key stakeholders. He also spoke on SALGA’s view that certain provisions would be found to be unconstitutional, as they would encroach on Local Government Authority. There remained a lack of clearly defined role and responsibilities across the three spheres of government relating to spatial planning.

Discussion
The Chairperson asked about the problem with consultation, as he said that the presentation indicated that SALGA had been consulted.

Mr Joel replied that Bill impacted on local government and consultation was of paramount importance. There was no proper engagement between SALGA and the Department even though SALGA had been consulted.

Ms M Ngwenya (ANC) asked whether SALGA wanted the reversal of the process, as their representatives were the people who had to implement the Bill.

Mr Joel replied that the matter could proceed in two ways; either there could be amendments proposed here, or SALGA could present proposed amendments at the NCOP Select Committee.

Mr A Nel (DA) said that it would be futile to continue with the Bill if the main players had not been properly consulted or engaged with.

Mr D Dlali (ANC) he indicated that he had not seen SALGA’s written submission, and the slides that had been presented today were mere complaints than submissions. He asked about the memorandum that SALGA had spoken of.

The Chairperson replied that the memo was at the back of the Bill.

Mr Dlali complained about the missing parts of the presentation. He stated that the Bill no longer “belonged” to the Department, as it was now in the hands of the Committee. The Committee expected the submissions to put forward any proposed amendments.

Mr Joel said that he acknowledged the need for a Bill of this nature. SALGA was still in the process of responding fully to the Bill, and was currently at something of a disadvantage.

Ms B Ntuli (ANC) asked what exactly were SALGA’s concerns, and she asked whether SALGA did see the Bill.

The Chairperson cautioned the Committee not to ignore SALGA’s very valid concerns

Legal Resources Centre (LRC) Submission
Mr Kobus Pienaar, Attorney, Legal Resources Centre, said that he would not present a traditional clause-by-clause comment. The concerns that the LRC had were already set out quite fully in submissions by the City of Johannesburg, Community Law Centre, Office of the Western Cape Premier and others. He submitted that the country was “in a mess”, and it would take a great deal to sort out the problems. He then suggested that the Bill should incorporate what was important from the Development Facilitation Act (DFA). He spoke about the continuing apartheid-type planning in urban and rural centres. He stressed the need for the rationalisation and alignment across all spheres of the Government.

He said that the LRC shared concerns about the municipal capacity and the instruction to prepare and adopt land use schemes. The repeal of the DFA and the Development and Planning Commission (DPC) should be looked at carefully. He spoke on the alignment of legislation and executive functions, to achieve the reconstruction and development of the country. He spoke on the impact of the Constitution on the Bill, and the need for land audits and rapid land release. Lastly he mentioned the right of participation and decision making of rural communities.

Discussion
Mr Dlali said that Mr Pienaar seemed not to be reading through the Bill, but he had largely repeated what had already been said in other submissions. He then asked for clarity on principles of good governance and application to the Land Use regulator.

Mr Pienaar replied that the Legal Resources Centre was instrumental in ensuring that consultation provisions regarding the Bill were properly met.

The Chairperson asked for clarity on the concern about the sale of municipal land.

Mr Pienaar replied that the LUMB should ensure that all municipalities conformed to proper audits. Most municipal land was donated through the Crown Act, with conditions of Title that that it could not be sold.

Ms Ntuli asked for clarity on the legislation that should be aligned to the Reconstruction and Development programmes. She wanted to know the reasons that the national government could not repeal provincial legislation. She asked what measures could be taken to address racial zoning. She observed that the submissions had not dealt with land that was being claimed.

Mr Pienaar replied that the apartheid Ordinances could be realigned with the LUMB. He mentioned that houses that were earmarked as low income households were built in formerly black-designated areas. That served to perpetuate apartheid spatial planning. The Minister of Housing was working hard to implement what was known as integrated settlement, where mixed income housing would be built to try to move away from the former racially-oriented type of settlements.

Commission on Gender Equality (CGE) Submission
Adv K Anirudrha, Parliamentary Officer, Commission on Gender Equality, set out the role and function of the CGE, and noted that land ownership and its use and management were linked to economic prosperity, race and gender. Therefore it was necessary to develop a coherent policy framework taking cognisance of the need for transformation of apartheid-based settlement patterns and economic development. It must also encapsulate gender needs and the comments raised would be made in that context.

Adv Anirudhra said that the omission of a definition for “land” was very important, as it was a nebulous concept that could be confused with “property”. Land owned by a municipality was not regarded at state property, and this undermined the legitimacy of a national land use policy framework. He suggested that the definition should embrace all land owned by all three spheres of government.

He then spoke about the confusion of roles among different spheres of Government. It fully supported the comments already made by University of Western Cape.

In regard to the definition of power at all levels of government, he noted that land management was not identified in a clear manner under Schedules 4 and 5 of the Constitution. However, in Schedule 4B there was recognition that local government must play a role in spatial development, and therefore municipal planning had been identified. However, in Schedule 4A the Constitution stated that national and provincial government could execute functions related to land use management, in certain areas, but the extent of the powers was not defined and there were potential overlaps. The CGE recommended that the Bill must give definitions for the functions listed in these schedules, and enumerate the allocation of powers.

The GCE noted that historically many women had been excluded from owning land, for various reasons, including their poor economic standing which did not allow them to purchase land. The CGE recommended that land use management policies should expand the principle of equity to expressly include gender equity. Similar considerations should apply in respect of the norms and standards under clause 5.

CGE further recommended that Clauses 6 and 7 should be expanded to outline the envisaged mechanisms that were supposed to ensure compliance. In respect of Clause 8, it was noted that the Bill had not spoken to the powers and functions of the Municipal Land Use Committee, which created confusion. It recommended that the candidates must be identified after a public nomination process, and that the appointments must embrace gender, race and skills. Public participation should also apply to the cooperation agreements mentioned in clause 19(2), and therefore CGE recommended that a notice of an agreement must be published at least 30 days prior to it becoming effective, to allow the community to raise objections.

The CGE further commented that the provincial tribunals must receive administrative and other support from the Department of Agriculture and Land Affairs. The powers and functions of these tribunals were not clearly set out, and there must be provision for appeal.

Finally the CGE urged that if the Bill did not address land ownership and use by women in general and rural women in particular, including labour tenants, this would simply perpetuate the discrimination and marginalisation of women, and that this fact alone was sufficient to call for the redrafting of the Bill.

Discussion
Ms Ntuli asked for clarity on the comments around the definition of State land.

Adv Anirudhra replied that the definition should include all land owned by any organ of the State and municipality. Land owned by the municipality became public property.

Mr Thozi Gwanya, Director General, Department of Land Affairs, amplified that the current position was that municipalities could sell land when they wanted to raise funds.

Mr Sunday Ogunronbi, Director: Land Planning and Property Law, Department of Land Affairs, said that municipal land remained State land even though the officials might dispose of municipal land without clear guidelines.

Mr Sibusiso Xaba, Head: Legal Department, DLA, said that there were two systems that were guiding the disposal of state land, namely the national and the provincial government guidelines. The municipalities were not catered for, due to an omission in the 1993 legislation.

Mr Pienaar said that most municipal land was granted for free in the 1870s, with conditions that stipulated that land could only be used for development of the municipalities. The Crown Lands Act also stipulated that the donated land could be taken back without compensation for the land itself, as compensation was limited to encompass only the development on such land. Government land included the land owned by the para statals.

Ms Ntuli asked about the land affected by the LUMB.

Mr Nel said that the inhabitants of Namaqualand were still waiting for their Title Deeds for huge tracts, of about 1,8 million hectares.

Mr Dlali suggested that the Bill should address the uncontrolled disposal of land by the municipal officials. He pointed out that developers would approach the South African National Civic Organisation (SANCO) and ward councillors to build shopping malls. He asked for clarity on municipal cooperation. He also needed clarity on the comments about the land use regulators.

Mr Pienaar responded that the National Government should assist the municipalities in Land Use Management, but it should be spelt out rather than saying the Minister would have cross cutting power. Agreements on the sale of land should be published to enable the public to participate. He said that currently municipalities could not be challenged by law on their decision to sell land.

The Chairperson said that the process around this Bill had started in 2001 and there were political changes at local government level. He wanted clarity on what the Constitution said regarding consultation.

Adv Anthea Gordon, Parliamentary Legal Adviser,  said that she appreciated the fact that the Bill could change owing to consultation processes, as it was expected that submissions should feed into and enhance legislation. The Constitution stated that draft legislation must be published for comment before it was introduced in Parliament or the Provincial Legislature. She cited an example of another Bill that had experienced problems when this was not followed. Stakeholders had been complaining about consultation in relation to the National Environmental Management Amendment Bill. Planning was not the core pillar of the Bill, but rather another component.

Ms Ntuli said that it was to differentiate whether the Bill was about land use, or planning.

Mr Gwanya agreed that consultation had caused many changes to the Bill, and that was the reason the Bill had evolved to be what it was in its present form. He emphasised that SALGA was consulted but that the actual person consulted had then changed jobs and moved to work somewhere else.

Mr Joel stated that the Department of Provincial and Local Government was a national department. SALGA was an association that represented all municipalities. He said that there had been no consultation between the DLA and SALGA in the last five years. He then asked for reasons why SALGA had not been engaged on the new version of the Bill. He added that SALGA was not being negative or difficult about the problem, because there were possibilities to find a way forward.

Mr Gwanya replied that the Department had consulted different municipalities and interacted with them.

Hon Lulu Xingwana, Minister of Agriculture and Land Affairs, said that the Bill took a long time and it was a sensitive and complicated piece of legislation as it straddled all spheres of the Government. There were questions whether the Bill belonged to the Presidency, the Department of Provincial and Local Government (DPLG), or the Department of Land Affairs. In 2007 a decision was made that the Bill belonged to the DLA. Parliament would look at the constitutionality of the Bill.

Ms Gordon said that she was working with a small team, but they were in a process of increasing capacity. Parliamentary Legal Services was supposed to guide the Committee and Parliament on the Bill. There were instances where pieces of legislations would conflict, but this was no ideal situation. The LUMB was the over-arching piece of legislation in respect of anything that had to do with land use.

Ms Phumelele Ngema, Senior State Law Advisor, Office of the Chief State Law Adviser, said that local government fed up to provincial government, which in turn would feed up into national government, and hence the need to co-exist. The best way was to schedule the Land Use Management Bill as a Section 76 Bill, because it was a product of broad consultation.

Ms Gordon said that three sections of the Constitution were applicable; namely Section 118 at Provincial level, Section 59 for the National Assembly and Section 72 for the National Council Of Provinces. All these sections placed an obligation that the legislative process involved public participation. Consultation was an ongoing process, because there was still a chance at the NCOP for further comment to be received.

The Hon Minister asked a hypothetical question on what would happen if the Minister would claim that she was not consulted.

Ms Gordon replied that Bills were published for all stakeholders to comment. Nothing would stop the public from going to the NCOP and the provincial legislatures with their views. There were effectively four chances open to stakeholders to participate in the legislative process.

Mr Gwanya stated that SALGA agreed that there was lack of clarity on the role of the three spheres of Government, even though they had not properly engaged with them. He said that the Intergovernmental Relations Framework Act strengthened the linkages between the spheres of Government.

Mr Dlali asked for clarity on how the repeal of legislation.

Mr Ogunronbi replied that the national level could repeal national legislation and the provincial legislature could only repeal or amend legislation applicable to them.

Ms Ntuli enquired about the definition of land.

Mr Ogunronbi replied that the Commission for Gender Equality definition encompassed land owned by the municipalities. LUMB referred to all land, therefore there was no need to be specific.

Mr Gwanya said that if privately owned land fell under the Land Use Scheme, that land would have to abide by the laws of that Land Use Scheme.

Mr Dlali asked for clarity on some of the comments raised. He then asked about the definition of Community as raised by the Legal resources centre. Mr Dlali indicated that he was disturbed by an observation that the comments in each of the submissions in effect required the Department to make amendments. That amounted to the rewriting of the whole Bill from scratch. The Committee had held a two day workshop to try to extract all the important issues. The Department had not taken the deliberations of the workshop into consideration. He said that the Communal Land Rights Act (ClaRA) said one thing but the Bill seemed to deal with something else.

Mr Gwanya replied that there was no need to rewrite the Bill. Although it seemed that many amendments were required, the majority of them were consequential. He noted that the Municipal Systems Act dealt with the definition of the “community”.

The meeting was adjourned

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