ATC210413: Report of the Select Committee on Land Reform, Environment, Mineral Resources and Energy, on the Upgrading of Land Tenure Rights Amendment Bill [B 6B - 2020] (National Assembly – Section 76), dated 13 April 2021.
Report of the Select Committee on Land Reform, Environment, Mineral Resources and Energy, on the Upgrading of Land Tenure Rights Amendment Bill [B 6B - 2020] (National Assembly – Section 76), dated 13 April 2021.
The Department of Rural Development and Land Reform briefed the committee on 16 February 2021 on the Upgrading of Land Tenure Rights Amendment Bill [B 6B - 2020], in a meeting to which provincial legislatures were also invited. The Bill was referred to the committee on 1 December 2020.
The amendments to the Bill, as amended by the National Assembly and referred to the NCOP, emanated from two Constitutional Court judgements namely:
Rahube v Rahube and others CCT 319/17  ZACC 42 (30 October 2018)
The Constitutional Court declared section 2(1) of the Act constitutionally invalid insofar as it automatically converted holders of any deed of grant / right of leasehold into holders of rights of ownership, in violation of women’s rights in terms of section 9(1) of the Constitution. The deadline for Parliament to remedy this defect is 29 April 2021. This is the only Court decision that imposed a deadline.
Herbet v Senqu Municipality
This decision dealt with section 25A of the Act. It sought to extend the application of the Act to former homeland states. There is not a court deadline herein, but the Court declared in 2018 that ULTRA is unconstitutional to the extent that it excluded former homeland states in its application as this violated the principle of “equal protection of the law”. All Parliament is required to do in respect of this Senqujudgment is update the statute book to reflect that section 3 of the Act (as amended by section 25A of the Act) which had an effect of excluding the former homeland states from its application has been amended to extend the application of the Act throughout the Republic of South Africa.
As Bill B6B of 2020, the ULTRA Bill, has been rendered a technical Bill addressing Constitutional Court Judgements, with additional clauses that was not required to comply with the Rahube case removed and with partial reference to the Herbert case retained, the review of public input focused strongly on the four clauses of the Bill. All public input was captured, but the express intention of this consultation was to develop an understanding of the public’s perception of the amendments bringing ULTRA in line with the judgements.
On the 17th February 2021 the committee advertisement calling for public comment on the Bill was published on the Parliamentary Website as well as other electronic social media sites followed by radio adverts in the various provinces. In response to the call for public comments, submissions were received from the Royal Bafokeng Nation (RBN); Banking Association of South Africa; Social Justice Coalition; Corruption Watch; The Land and Accountability Research Centre (LARC);Natural Justice: Lawyers for Communities and the Environment; (NJ) Mr QinisoMkhatywa: Indigenous Land Occupier; and COSATU.
The inputs received, were also forwarded to Department of Justice and Constitutional Development with specific questions attached. The questions focused on themes that could be discussion points during committee deliberations. Specific questions focused on the following:
- Is the Constitutional Court rulings adequately addressed in the wording of the Bill? Although the committee was briefed on the fact that especially in the Rahube case, the pronunciation is already law and that the Bill seeks to amend the wording of the Act, questions may arise regarding the rulings and whether the Bill adequately addresses these. Clarity was sought in this regard.
- Which comments were directly related to the Tenure Act under development, and can be highlighted as such for the committee and respondents?
- Were there any proposed technical corrections that are sound, and can be agreed to without the need to return the Bill to the PC and therefore miss the court deadline?
- Which comments are aimed at the B6 2020 Bill and can therefore be treated as off-topic in terms of the four clauses that were amended in B6B 2020?
It is important to note that out of all the comments captured, only a small percentage of inputs focused on the content of clauses under review with the focus of providing alternative text or suggesting improvement. From this perspective, it is possible to argue that the majority of inputs provide a perspective of public sentiment on the state of land reform, the Department and its Executive, or the technicalities of communicating with the community members most affected by the legislation. These comments, while submitted to the Committee and Department for review, does not provide any insights towards support or rejection of specific aspects of the clauses before the committee.
A breakdown of inputs revealed that 55% of comments captured focused on:
- Comments that focus on tenure security
- Concern over ministerial powers, capacity of department, funding of mandate
Comments received reached 71% of all inputs when the challenges of government communication methods when dealing with rural communities, access to justice is also factored in. Only 6% of comments received provided actual input on the text of the Bill before the committee.
Further to the written submissions, the committee secretariat also received electronic communications and held a number of telephonic discussions from a number of individuals. The communications centered on land challenges, however, but have all been retained for consideration by the Committee and relayed to the Department for a response.
The Select Committee held its Negotiating Mandate meeting on the 7th April 2021 where 6 provinces voted in favour of the bill, one voted against and a further two provinces did not submit any negotiating mandates. Of the six provinces supporting the bill, two proposed amendments, which were not agreed to / supported.
Thereafter, the committee held its Final Mandate meeting on the 13th April 2021, with 7 provinces submitting final mandates supporting the Bill, one not supporting the bill and one province not submitting a final mandate.
The Select Committee on Land Reform, Environment, Mineral Resources and Energy, having deliberated on and considered the subject of the Upgrading of Land Tenure Rights Amendment Bill [B 6B - 2020] (National Assembly – Section 76), referred to it and classified by the JTM as a section 76 Bill, agrees to the Bill.
Report to be considered
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