DISCUSSION DOCUMENT PRESENTED TO THE
PORTFOLIO COMMITTEE ON AGRICULTURE AND
LAND AFFAIRS
ON
IN
1
Background
1.1
On
1.2
The
purpose of that meeting was to allow the GLRCC to present to the PC the
concerns regarding sub-section 2(1)(e) of the Restitution of Land Rights Act no
22 of 1994 as amended which states that restitution claims must be lodged
before 31 December 1998 and to request for the re-opening of the lodgement of
claims.
1.3
A
promise to the effect that the PC will go back to
1.4
Subsequently
a lot of correspondence and telephonic discussions between the PC and the GLRCC
took place which culminated in an invitation for today’s meeting.
2
Our View Point
2.1
Amongst
the first issues that the ANC led government addressed after taking over in
1994 was that of forced removals.
2.2
These
discussions led to the promulgation of the Constitution of the
2.3
Emanating
from the new Constitution, many Acts were promulgated amongst which, was the
Restitution of Land Rights Act 22 of 1994 as amended.
2.4
The
objective of the Restitution of Land Rights Act 22 of 1994 as amended, through
the establishment of the Commission on Restitution of Land Rights, was to
restore or compensate victims of forced removals for the property lost because
of the then racially discriminatory laws passed since 1913.
2.5
Included
amongst these discriminatory laws were the following:
o
The
o
The
Native Administration Act of 1927;
o
The
Development Trust and Land Act of 1936;
o
The
o
The
Group Areas Acts of 1950 and 1966;
o
The
Rural Coloured Areas Act of 1963; and
o
The
Community Development Act of 1966
2.6
Chapter
2 – The Bill of Rights, section 25, sub-section (6) and (7) of the Constitution
of the Republic of South Africa, Act 108 of 1996 deals with property and
entitles a right to victims of forced removals and reads as follows:
2.6.1
Sub-section
6: “A person or community whose tenure of land is legally insecure as a result
of past discriminatory laws or practices is entitled, to the extent provided by
an Act of Parliament, either to tenure which is legally secure or to comparable
redress.”
2.6.2
Sub-section
7: “A person or community dispossessed of property after
2.7
Sub-sections
(6), (7) and (9) expressly instructs Parliament to enact legislation that will
ensure that victims of forced removals are given tenure which is legally secure
or comparable redress, or restitution of property or equitable redress.
2.8
We
note that the Constitution is silent on the issue of time frames save to place
an onus on Parliament to decide the degree that the envisaged Act should allow.
2.9
Subsequently
the Restitution of Land Rights Act No. 22 of 1994 as amended was promulgated.
2.10
It
is therefore suprising to notice that included in this Act was sub-section
2(1)(e), the cut-off date, which conflicts directly with both sub-sections
25(6) and 25(7) of the Constitution of the Republic of South Africa.
2.11
We
believe it conflicts with the Constitution in that it removed the Right
conferred by these two sub-sections from the multitude of authentic potential
Restitution claimants.
2.12
It
is also our contention that for a right that appears in the Bill of Rights to
be removed, the Constitution must be amended. But in this case an Act of
Parliament was used to remove that right.
2.13
It
is said in Chapter 1, section 2 of the Constitution of the Republic of South
Africa, Act 108 of 1996 that, “The Constitution is the supreme law of the
Republic of South Africa, law or conduct inconsistent with it is invalid, and
the obligations imposed by it must be fulfilled.”
2.14
Furthermore,
sub-section 36(2) of the Constitution of the
2.15
Our
differences with the legislators of the Restitution of Land Rights Act no. 22
of 1994 as amended, specifically sub-section 2(1)(e) is in the interpretation
of the clause: “......to the extent provided by an Act of Parliament,....”, in
both sub-sections 25(6) and 25(7) of the Constitution of the Republic of South
Africa, Act 108 of 1996.
2.16
We
believe that the inclusion of sub-section 2(1)(e) in the Restitution of Land
Rights Act no 22 of 1994 as amended was the result of Parliament’s
interpretation that the above mentioned clause in the Constitution implies it
has the power to limit the rights conferred by sections 25(6) and 25(7) of the
Constitution without amending them.
2.17
If
this was the intention of the drafters of the Constitution, the implication is
that Restitution is not a right and should not have been included in the Bill
of Rights.
2.18
Our
other observation is that the two sub-clauses still appear in the Constitution
under the Bill of Rights long after the closing date for submission of claims.
2.19
Why
are these sub-sections not removed from the Constitution as they now don’t
serve any purpose?
2.20
Our
own interpretation of the clause: “...to the extent provided by an Act of
Parliament.....”, is that in enacting legislation on Restitution, Parliament
should:
2.20.1
Decide
what comparable redress must be given
2.20.2
Decide
how much equitable redress to pay out; and
2.20.3
Decide
whether expropriation should be an option
2.21
We
wish to reiterate that in our opinion, the process of campaigning, receiving,
processing and settling restitution claims was not given enough time as
evidenced by the submission of the Commission on Restitution of Land Rights in
the Germiston meeting of the
2.22
According
to this submission, under paragraph 3.1.2, the Commission’s campaign was
undertaken only from
2.23
Was
the campaign done in good faith, or was it just to ensure that there is
something to report on?
2.24
We
do not want to respond to 1st and 2nd bullets of the
critical issues in paragraph 6.3 of the Commission’s submission because there
is no scientific evidence to back them up.
2.25
The
claim that most people did not lodge claims for patriotic reasons such as: “I
can’t claim against my own government that I have fought for, for so long.”
etc, undermines the intelligence of victims of removals and shows the kind of
attitude adopted by the Commission towards the whole question of land
restitution.
3
Conclusion
3.1
In
view of the issues raised above, we wish to reiterate that we are still of the
opinion that the Government’s decision to address the issue of restitution of
land rights was done in a spirit of goodwill and we still perceive it as a very
good gesture in that its aim was to restore dignity to those communities who
suffered the humiliation of forced removals.
3.2
We
also wish to request Parliament to listen to the voices of all those who are in
favour of the re-opening of the lodgement of claims such as the Land Summit and
other stake holders.
3.3
Lastly
we wish to thank you Honourable Chairperson, Honourable members of the
Portfolio Committee on Agriculture and Land Affairs and members from the
Department of Land Affairs for having accorded us the opportunity to
participate in this historic meeting and hope that our presentation will receive
your favourable consideration
We thank you.
.