Legal services presentation (awaited document)
The Portfolio Committee on Agriculture, Land Reform and Rural Development met on a virtual platform to consider a motion of desirability on the Preservation and Development of Agricultural Land (PDAL) Bill. The Committee deemed the Bill desirable.
Parliamentary Legal Services briefed the Committee on the legal and constitutional issues raised in the public participation process. Policy issues were not included as this was for the Department of Agriculture, Land Reform and Rural Development to deal with. The Legal Services’ view was that the Bill did not pass constitutional muster. The PDAL Bill was tagged as a Section 76 Bill but it was advised that the Joint Tagging Mechanism (JTM) made no referral to the National House of Traditional Leaders (NHTL) as per Rule 165(a) of the Joint Rules read with Section 39(1)(a) of the Traditional and Khoi-San Leadership Act. During the public hearings, there was an alleged omission of referring to the Bill or including traditional leaders in the content of the Bill, and concerns were raised in the submissions, indicating that the Bill left most of the work to regulation. In response to the legal and constitutional issues, Legal Services considered the applicable legislation and relevant authority and advised regarding whether or not the PDAL Bill should be referred to the NHTL in terms of Section 165(a) of the Joint Rules. The JTM was required to determine whether the Bill concerned customary law or traditional communities. This followed Section 18 of the Traditional Leadership and Governance Framework Act, which was repealed.
There was some disagreement amongst Members whether the Bill affected traditional practices and there were differing views on whether the Bill should be referred to the National House of Traditional Leaders (NHTL). Concerns about delays in doing so were mentioned. It was said the Bill still needed to be considered by the National Council of Provinces (NCOP) so further consultations with traditional leaders could occur there.
The Committee then proceeded to a clause-by-clause reading of the Bill in current form. There was much disagreement amongst Members on the correct procedure for these deliberations. The Committee ultimately decided that the Chairperson would read through the clauses and where Members had issues to raise, this should be flagged for initial discussion otherwise clauses would be taken as “agreed to”. Amendments would only be made in the A-List before there was final adoption of the reworked clauses – discussions today would inform the changes to be included in the A-List. This process would follow in the coming weeks.
During this process, Members raised issues with the definition of land ownership, authorisations and their timeframe, notices published in the Gazette, members of committees, content of national agro-eco information system, right to appeal and inspections.
The process would be continued at the next Committee meeting.
The Chairperson greeted and asked the Committee Secretary to read out the apologies.
Two apologies were received from the Minister and Deputy Minister for prior engagements.
The Chairperson asked what the prior engagement was. He said he would understand if the meeting was scheduled on another day that people could not attend but the Committee had a fixed Tuesday meeting scheduled.
The Committee Secretary said she could not speak to what the prior engagement was.
The Chairperson asked the Committee Secretary to express to the Ministry that their presence was required in Committee meetings and that their diaries needed to align with the Committee’s schedule.
The Chairperson asked if there were other apologies.
The Committee Secretary said yes and read out the apologies.
The Chairperson noted that the Committee Secretary’s connection was poor and asked that it be sorted out to avoid any inconvenience. He greeted everyone in attendance and welcomed the Springbok Team’s victory. The Chairperson congratulated the Springboks and said the team had utilised its victory and slogan “We are stronger together” to rally the nation. He hoped that this would bring about nation-building and allow South Africa to rise as a victorious nation. The nation would see the Springboks on their countrywide tour as a light in this country.
The Chairperson said the Committee was reminded today of the relatively peaceful South Africa as a young democracy, and that the country did not live under the constant tyranny of bombs. Thanks were given that all civilians could go to bed in relative peace with the expectation that they would wake up in the morning without fear of bodily harm or their homes being bombed.
He sent prayers to Gaza and all of Palestine where Palestinians had fewer rights under Apartheid Israeli occupation than enshrined in the Preservation and Development of Agricultural Land (PDAL) Bill being considered in the present meeting. The Chairperson saluted the resistance of the Palestinians as it was their right to resist occupation. This right, he mentioned, was affirmed in numerous international law statutes.
The Chairperson set out the agenda for the meeting which included the consideration and perhaps the adoption of the motion of desirability on the PDAL Bill, followed by a clause-by-clause deliberation on the Bill. He said he would first present the key issues as a summary of each clause, and the content and legal advisers would then highlight the legal questions. He mentioned that the content advisers would present key issues from the public participation process including proposals. The Committee would then deliberate on each clause until there was consensus. If there was no consensus, the content and legal advisers would be given time to put together amendment proposals based on the Committee’s deliberations. He added that, where possible, the legal advisers would advise on how the set clauses would read after deliberations and amendments if made.
He said the Committee would proceed through the “quarter-finals” and give their best consideration until the “semi-finals” were reached. If the Committee continued, there would be considerations and deliberations on amendments and possible amendments that would lead to success despite the obstacles faced. He indicated it was fitting that Madiba Magic was still alive and well and even amid challenges of poverty, inequality, and unemployment, the nation could still gather, demonstrate resilience, and embody the unshakeable belief that “we are stronger together”. The PDAL Bill speaks to what Madiba reminded us of: there was no greater measure of a country’s soul than how it treated its most vulnerable. The Chairperson said the protection of animals affirmed our humanity and role as custodians of the earth and all its citizens.
He prayed for peace and the end of dehumanisation and the perpetration of crimes against humanity. He said that may the people of Palestine, Kashmir, and Western Sahara, which was the colonial outpost in Africa, be granted full human rights. He indicated that the PDAL Bill was being considered and the Committee would extend several bills that needed to be looked at to get a full understanding of the PDAL Bill as it was going to be adopted.
Motion of Desirability: Preservation and Development of Agricultural Land Bill
He asked that the motion of desirability on the PDAL Bill be shared on the screen so he could go through it.
The Committee experienced technological challenges but managed to flight the motion of desirability.
He read the motion of desirability on the PDAL Bill and then asked the Committee for a motion to adopt the motion of desirability.
Ms N Mahlo (ANC) moved to adopt the motion of desirability as read.
Mr N Capa (ANC) seconded the motion to adopt.
The motion of desirability on the PDAL was thus duly adopted.
Legal Services Input: Response to Public Participation Process
The Chairperson indicated that the Committee would deliberate on the details of the legislation and requested that the clause by clause be shared on the screen. He stated that in the interim, the Committee would invite Legal Services from Parliament and the State Law Adviser to speak about the clause by clause.
Ms Zingisa Zenani, Parliamentary Legal Adviser, introduced herself and said her role in the meeting was to highlight the legal and constitutional issues in the Bill that were raised during the public participation process. She indicated that she had prepared a short presentation and asked for it to be shared on the screen.
The Chairperson asked the Committee’s support staff to assist Ms Zenani with her presentation.
The Committee support staff experienced challenges with sharing Ms Zenani’s presentation.
The Chairperson noted that these technological issues were the reason why he preferred in-person meetings but in-person meetings came with a different set of issues with things such as travel.
Ms B Tshwete (ANC) suggested that the Committee Secretary email the Committee the presentation and proceed from there.
The Chairperson asked if the Committee Secretary had emailed the presentation to the Committee and asked for a solution to the issue. He said that virtual meetings were held all year and that the staff should be acquainted with what needs to be done. He asked for assistance from IT personnel.
The Committee Secretary said the presentation was emailed.
The Committee’s support staff resolved the issue and managed to share Ms Zenani’s presentation.
Ms Zenani proceeded with her presentation.
The purpose of the presentation was to cover the legal and connotational issues raised about the PDAL Bill. The policy issues would not be included as it was for the Department of Agriculture, Land Reform and Rural Development (DALRRD) to deal with.
Legal Services’ view was that the Bill as it stood did not pass constitutional muster and, in its analysis, considered all public submissions whether written or oral.
The PDAL Bill was tagged as a Section 76 Bill by the Joint Tagging Mechanism (JTM). Legal Services assisted with the tagging of the Bill and advised the JTM that no referral to the National House of Traditional Leaders (NHTL) was required as per Rule 165(a) of the Joint Rules read with Section 39(1)(a) of the Traditional and Khoi-San Leadership Act.
During the public hearings, there was an alleged omission of referring to the Bill or including traditional leaders in the content of the Bill. There were also concerns raised in the submissions that the Bill left most of the work to regulation which, as per the Bill, had to be put in place by the executive.
In response to the legal and constitutional issues, Legal Services considered the applicable legislation and relevant authority and advised regarding whether or not the PDAL Bill should be referred to the NHTL in terms of Section 165(a) of the Joint Rules. The JTM was required to determine whether the Bill concerned customary law or traditional communities. This followed Section 18 of the Traditional Leadership and Governance Framework Act, which was repealed.
Section 18 of the Traditional Leadership and Governance Framework Act was equivalent to Section 39(1)(a) of the Traditional and Khoi-San Leadership Act which stated that “a Parliamentary Bill (i) which directly affected traditional or Khoi-San communities or pertained to customary law or customs of traditional or Khoi-San communities or (ii) pertaining to any matter referred to in Section 154(2) of the Constitution must, in the case of the bill contemplated in subparagraph (i) and may, in the case of a bill contemplated in subparagraph (ii) before it is passed by the house of Parliament where it is introduced, be referred by the Secretary to Parliament to the NHTL for its comments”. Section 39(1)(b) required the NHTL to comment and submit its comments to the Secretary to Parliament within 60 days from the date of such referral.
Section 163 of the Joint Rules gave the JTM the power to reclassify a bill concerning whether it pertained to customary law or customs of traditional communities.
The objective of the PDAL was to preserve and develop agricultural land as defined.
The Bill may have knock-on effects on the land under the administration of traditional leaders but it did not suggest the taking over of this land.
Addressing the question of whether the Bill suggested the taking over regulation of issues about customary law or customs of traditional communities. Given the proper approach to interpretation, as was decided by the Supreme Court of Appeal of South Africa (SCA) in Natal Joint Municipal Pension Fund v Endumeni Municipality, Legal Services submitted that in its current format, the Bill did not directly affect traditional and Khoi-San communities and it did not concern customary law or customs of traditional communities as required in Section 39 of the Traditional and Khoi-San Leadership Act.
An issue identified was the seeming deferral of most work to regulations. The Institute of Race Relations (IRR) raised the issue that the government intended to introduce many provisions that appeared in the previous Bill through the exercise of regulatory power. To support this proposition, IRR raised concerns about Clause 26 of the Bill which dealt with the content of the national agro-eco information system. The IRR said the Bill should not end up as an example of regulatory circumvention of legislative authority. This proposition was supported by the Constitutional Court’s decision on Minister of Finance v Afribusiness NPC. In this case, the Con Court cautioned against leaving so much work to regulation.
It was the Legal Services’ view that the Bill provided some transparency and detail regarding areas the Minister could regulate after consultation with the relevant Members of the Executive Council (MECs). In this regard, Minister of Finance v Afribusiness NPC is irrelevant because it sought to address a different bill.
Legal Services submitted that the Bill in its current form did not directly affect traditional or Khoi-San communities and did not pertain to customary law or customs of traditional or Khoi-San communities. However, if the Committee had a different view, the JTM could be approached to reclassify the Bill so it could be referred to the NHTL.
It was also considered that Minister of Finance v Afribusiness NPC did find application with the making of regulations by the Minister because the PDAL Bill detailed the areas the Minister regulated on.
The Chairperson thanked Ms Zenani for her presentation and asked if there were further inputs from legal services.
Ms Zenani said she was the only person present from legal services in Parliament.
The Chairperson asked that the Committee proceed with their questions of clarity regarding the presentation.
Dr M Tlhape (ANC) welcomed the presentation and said it was straightforward and indicated that she had no questions.
Mr N Masipa (DA) understood Ms Zenani’s explanation that the PDAL Bill in its current format did not affect the traditional practices of land managed under traditional leadership. He recalled a question around the definition of land owner which only considered registered land in the Bill. The Department of Agriculture, Land Reform and Rural Development (DALRRD) indicated that the Bill would be extended to include off-register communal and sub-communal land under traditional leaders. He said Ms Zenani’s explanation was simplistic and the Bill was expanded to include communal land areas where matters of inspection, access to property, and search warrants were covered in the Bill. He stated that the interpretation in the presentation fell short if there was to be an expansion of the Bill to cover communal land. He mentioned that as the Committee goes clause by clause, it would find that the land owner defined in the Bill was the owner registered at the deeds office and added that something was missing from Ms Zenani’s interpretation.
Mr N Capa (ANC) thanked legal services for the presentation. He was comfortable with the legal explanation, specifically about the National House of Traditional Leaders (NHTL) and that traditional leaders outside of the house were a part of the process and contributed.
Ms Tshwete thanked legal services for the presentation and had no comments.
Ms T Mbabama (DA) said her comments were covered by Mr Masipa.
Ms T Breedt (FF+) differed from Mr Capa because she felt the issue of the NHTL was not covered and stated that, in this regard, Mr Masipa covered the issue aptly. Although it was not about the NHTL, she felt it still pertained to land managed under it. She said that this was still something that could be looked into in the Bill because her fear was that should the Bill be implemented without the traditional house and council’s approval, it would face the same issues as the Spatial Planning and Land Use Act (SPUMLA). She expressed that she was unsure how this would work but this was her opinion.
Ms N Mahlo (ANC) welcomed the presentation and said she understood everything presented and that the presentation was fine and she had no questions.
Mr M Montwedi (EFF) said everything was not fine for him and agreed with Mr Masipa and Ms Breedt. The presentation mentioned the Committee could still approach the Joint Tagging Mechanism (JTM) for reclassification of the Bill if the Committee felt that the Bill should go to the NHTL. He asked if the Committee could proceed with the reclassification process because the success of the Bill relied on all stakeholders being behind it. Sometimes when the Committee implements laws without the support of those on the ground, the laws' purpose is not fulfilled. He said traditional leaders had to be respected because chiefs were attending public hearings on their own. He mentioned that the committee secretariat extended invitations to the NHTL and provincial houses but the traditional leaders did not attend the public hearings and perhaps this was an indication of the NHTL’s position on the Bill.
The Chairperson asked if the Committee had more comments and questions., and if not, indicated that Ms Zenani could proceed with her responses.
Ms Zenani said Section 39 was concerned with the correct way of tagging. It stated that it must directly affect. In other words, there would be a direct effect against knock-on effects. She said Legal Services would be indebted to the Committee if anything arose during deliberations that convinced it to reconsider its position. Regarding approaching the JTM for reclassification, if the Committee decided to go down that route and the JTM approved the reclassification, the NHTL would have to be given 60 days to consider the Bill and make inputs. She said if the Committee decided to proceed with this approach, consideration needed to be given to the timeframe.
Mr Masipa welcomed the response and indicated that the Bill at the moment touched only a little on NHTL and that there was a point made about the definition of land owner in the Bill not considering communal land. He asked that the Department and Legal Services assist in this regard. He said that if the Bill were to be sent to the NHTL and consider reclassification of the tagging, there would be clauses that would need reconsideration.
Mr Capa asked for assistance because he thought that the legal advisers made it clear that specific areas demonstrated the Bill did not directly affect the NHTL. He asked if some other legislation or sections opposed the ones that were put before the Committee that convinced them there was consideration.
Dr Tlhape reiterated that the presentation was clear and the reason she did not raise the issue of the NHTL was that in the Committee’s engagements, it was agreed that the issue of courtesy and the NHTL was clear. The Committee’s parting thought about this issue was that considering all the steps, the Committee would concurrently find a way to send the Bill to the NHTL so that aspect of courtesy was addressed. She said that the Committee was not disputing that NHTL was not directly affected, it was just a matter of giving the NHTL respect. She did not support the reclassification of the Bill due to the consideration of time. She said Ms Zenani highlighted the issue of time and Mr Capa pointed out that some of the clauses would be affected. She added that the Committee needed to do what was necessary concurrently within the time it had.
Going back to the issue of NHTL, in as much as the Committee was continuing the process, she mentioned that she wanted the Committee Secretariat to be able to point to the work that had been done and the Department to have responses.
The Chairperson thanked the Committee for its comments and said Ms Zenani had shared her responses on the constitutionality of the Bill. He highlighted that, as discussed in the last meeting, the Committee would ensure that traditional leaders had a role and engaged with the Bill. He said the Bill would be sent from the National Assembly (NA) to the National Council of Provinces (NCOP) once the Committee had concluded its process. In doing so, the NHTL would be allowed to engage while it was being looked into through the NCOP processes.
Mr Montwedi asked what the Committee would be relying on legally for the Bill to be sent to the NHTL as the only avenue would be the reclassification of the Bill but since this seemed to not be a preferred approach, he asked what would the Committee be relying on legally. He asked what role courtesy would play in the finalisation of the Bill. He indicated that submissions were closed, and asked if they would be reopened through a back door for traditional leaders.
The Chairperson said traditional leaders were invited to all public hearings, to which they attended and participated and the Committee had received their comments and considered them. He mentioned that the issue was that when the Committee concluded its work, it needed to consider a recommendation for the Bill that could be referred to the NHTL. While the Committee processed the Bill and it was sent to the NCOP, the Committee would ensure that through the Select Committee of Land Reform, Environment, Mineral Resources, and Energy, it would be sent to the NHTL for comments and processing.
He said the Committee would be proceeding to the clause by clause.
Clause by Clause Deliberation
Clause 1 (Definitions), Clause 2 (Objects of the Act), Clause 3 (Application of the Act) and Clause 4 (Principles)
The Committee Secretary interjected and asked if the Chairperson was going to do a clause-by-clause and allow deliberation after each clause was read.
The Chairperson said he would read through the clauses and then adopt them at the end. However, if a clause-by-clause deliberation and then adoption was required, he would do so. He asked what the Committee’s preference was.
The Committee Secretary indicated that when the Chairperson read the definitions, she thought he would ensure after reading each definition that the Committee agreed with the definition.
The Chairperson said he anticipated the Committee’s interjections as he was reading to raise concerns. He thought the Committee was proceeding accordingly and that adoption would take place at the end. He said reading each clause and then discussing would take too much time and asked if Members preferred that he read and then interject where necessary or a clause-by-clause deliberation.
Mr Masipa said his understanding was that the agenda was the consideration of the motion of desirability followed by the Committee’s consideration of the inputs from the public participation process. He said the Committee had received inputs from the public participation process that had not been looked at that were needed in the PDAL Bill, inputs the Committee felt it needed to sponsor for certain amendments of the Bill. He highlighted that the Bill was still in the format and was a DALRRD Bill. He said his submission was that the Committee deliberate on these inputs in the current meeting and do the clause-by-clause deliberation the following week.
The Chairperson said having agreed with the adoption of a motion of desirability, the Committee had to deliberate on each clause of the Bill until there was a consensus. If there was no consensus, Legal Services and the state law adviser would be allowed time to propose amendments based on the Committee’s deliberations. Where possible, legal advisers would advise the Committee to proceed to the final clause which would be read after capturing proposed amendments, if any. In terms of the procedure, he mentioned that this was why he was reading through the Bill so inputs could be effected if any arose. He asked if he should proceed reading until there was an interjection or read through the Bill and adopt it at the end.
Ms Tshwete said for the sake of time and progress, the Chairperson should read through the Bill and the Committee engage at the end. She said that public hearings had been held and the Committee had engaged on the documents, therefore, the Members knew which sections and clauses needed to be engaged. She said the Chairperson should read through the Bill, and the issues would then be noted and engaged on later.
Mr Masipa supported a clause-by-clause deliberation and consideration of inputs so the Bill could become law. He highlighted that the Committee was in the law-making process and these amendments, such as that of land ownership, were considered essential. He said the Department conceded that these amendments were essential and needed to ensure that the Bill addressed the issues raised.
The Chairperson noted there were still more steps to the process where the Committee would invite legal advisers to develop the A-list. The Committee would be required to adopt the A-list and consider the B-list. He stated that he would also read each clause that would be presented and adopted by the Committee and added that this work still needed to be done after the current meeting.
Dr Tlhape agreed with the Chairperson’s summary of the process and said she was quiet because she was following the Chairperson in that if there were issues, Members should interject. She said some of the issues had been ventilated in previous engagements and there was consensus. She added that the issues could not be raised again as there had been discussions on them.
She expressed that she was happy with the A-list and said the Committee was looking at notes and comparing. She said issues that had been engaged on with legal advisers, DALRRD, and stakeholders would not be refined in the Bill.
The Chairperson said he would proceed with reading the Bill clause-by-clause and the Committee could interject where necessary. The Chairperson noted that he could not see raised hands because of the presentation so the Committee could just interject.
Clause 5 (Agricultural land evaluation and classification) and Clause 6 (Preparation of provincial agricultural sector plans) to Clause 7(a)(ii) (Purpose of provincial agricultural sector plans)
Mr Masipa said he was looking at the programme sent to the Committee and it stated that Legal Services would lead deliberation. He asked if Legal Services was meant to lead this deliberation or the next deliberation.
The Chairperson clarified that Legal Services was only going to speak to the constitutionality of the Bill, however, he or the content advisers would read through the Bill. He said if Mr Masipa had a preference on who read the Bill, the Committee Secretary could take over the reading.
Mr Masipa said he did not want the discussion to be between just him and the Chairperson, and added that he hoped that the Members would weigh in. he said that changes could not be made to the Bill as the document was a PDF. In the last discussion, it was decided that a Word document would be used when dealing with the clause-by-clause. He indicated that the clauses that needed to be changed had not been addressed; what had been addressed was the issue of land ownership but the rest of the clauses would be considered using a Word document as discussed. This would be done as when the Committee processed the Agricultural Product Standards Amendment Bill.
The Chairperson said in terms of procedure, the Committee would go through the A-list and deliberate on it in the following week before the adoption of the PDAL Bill and proceeded with the reading of the Bill.
Clause 12(3) (Procedure to declare protected agricultural areas) to Clause 13 (Review, withdrawal and amendment of protected agricultural areas)
Dr Tlhape interjected and asked that before proceeding to Chapter 3 of the Bill, Members needed to agree on Chapters 1 and 2. This was to ensure that what the Committee agreed on was clear.
The Chairperson asked for a motion to adopt Chapters 1 and 2.
Mr Masipa said there was an issue with the definition of land ownership that only included land owners registered with the Deeds Registry. The definition of land ownership needed to be looked at so that it could be expanded to include communal land. This definition was found in Chapter 1 of the Bill. He highlighted that in Chapter 2, concerning Clause 11 which spoke to agricultural land food production, agricultural land was not used only for food production but also for other activities such as timber, wool or agricultural feed. He indicated that Clause 11 needed to be looked at again. He said the Department agreed with these changes and from a law-making view, these changes needed to be supported.
The Chairperson asked for a motion to adopt Chapters 1 and 2 of the Bill.
Ms Mahlo moved for the adoption of Chapters 1 and 2 of the PDAL Bill.
Ms Mbabama had a point of order and asked if there would be a motion of adoption without considering Mr Masipa’s suggestions. She expressed her confusion on her matter.
The Chairperson noted that he could not see hands and said Members could just interject.
Dr Tlhape wanted to note that they would be adopted during the A-list process so that when matters arose, Legal Services would capture them. She agreed to note these matters and stated that the Committee would be going through the same process so that there could be adoption during the A-list process.
Ms Breedt said Dr Tlhape was causing confusion and indicated that her impression was that Mr Masipa’s proposal needed to be deliberated before the adoption of sections. She did not see where else the Committee could discuss Mr Masipa’s proposal and said that if the Committee could not deliberate Mr Masipa’s proposal presently, then when would it do so as the deliberations were currently in process.
The Chairperson reiterated that he anticipated interjections during his reading of the Bill so that there could be engagement on issues. The Committee was now on Chapter 3 of the Bill and there had been no interjections. He said that the Committee Secretary noted Mr Masipa’s proposal, which will be considered when moving to the A-list. He said if the Committee wanted to deliberate the proposal, it could do so. He indicated that he would take the Committee’s lead on this.
He said his procedure was to read through the Bill and wait for interjections and added that Dr Tlhape suggested that since the Committee had dispensed with Chapters 1 and 2, there should be adoption in agreement with these chapters.
He reiterated that Mr Masipa’s proposal has been noted, and asked for a motion of adoption.
Ms Mahlo moved to adopt Chapters 1 and 2 of the Bill.
Ms Breedt asked if the deliberation of Mr Masipa’s proposal would be disregarded or done at a later stage. She noted that the Chairperson anticipated interjections but she anticipated an opportunity for discussion and added that it was not clear whether Mr Masipa’s proposal would be deliberated on.
The Chairperson said if Ms Breedt wished to deliberate on the proposal, then the Committee could do so. He indicated that the Committee Secretary had noted Mr Masipa’s proposal and that it would be considered during drafting of the A-list. If the Committee felt that the proposal had not found its way into the A-list, the matter could be deliberated again.
Ms Tshwete seconded the motion to adopt Chapters 1 and 2 of the Bill and said that the back and forth seemed to be due to the Members not listening and being preoccupied. She said that the constant back and forth was not useful because some Members were waiting for buses going to Parliament in less than 30 minutes. She asked the Committee in isiXhosa to listen properly to what the procedure was. She would not translate what she said.
Ms Mbabama said there seemed to be different understandings of the word “adoption”. Adoption to her meant that there was complete agreement on what was stated and no changes were needed and this was perhaps where the confusion was. She said the Chairperson was suggesting that the Committee adopt and deliberate later and asked the Committee Secretary to go through the correct procedure; perhaps Members had forgotten the exact procedure but the exact procedure needed to be followed. She said the Committee should not blame each other for not listening as everyone was present but what was needed was to find the correct procedure.
The Chairperson said the Committee was in the process of adoption and going through each clause, Members would dispense of this, and where there were issues, the Committee Secretary would note them. He said there was still a bill that needed to be brought before the Committee which needed to be adopted so the adoption in the current meeting did not mean the Committee would dispense of the Bill. The Committee still needed to go through the A-list process which needed to be drafted, made a final document, and adopted.
He said the Committee Secretary would clarify the procedure.
The Committee Secretary said she thought the Chairperson had explained the meeting’s procedure in his opening. The Chairperson would introduce the clauses and after, the legal and content advisers would highlight the issues raised during public submissions. Members would then deliberate and after a consensus was reached, there would be agreements with each clause until the last clause of the Bill.
The Chairperson said the procedure the Committee Secretary outlined was the one the Committee was in the process of doing.
Mr Masipa said what the Committee Secretary outlined and what the Committee was doing were two different things. The Committee Secretary was talking about deliberation which Members agreed on. He said this was the point he wanted to make because once there was a motion for adoption, there was an issue.
He said the word adoption needed to be defined because the ANC seemed to have a collective understanding of the word that the rest of the Committee did not. He indicated that his understanding was that the Chairperson would lead deliberations that involved content and legal advisers.
The Chairperson suggested using the word “agree” instead of “adopt”. He said the Committee was done with Chapters 1 and 2 of the Bill and the points Mr Masipa raised were duly noted by the Committee Secretary.
Mr Capa asked for clarification because his understanding was that there was an agreement with the chapters while considering Mr Masipa’s proposal. He felt there was a misunderstanding around this but the Committee Secretary would be taking note of Mr Masipa’s proposal for the next meeting.
He asked what was the disagreement with the adoption of the first two chapters with consideration of Mr Masipa's proposal, so the Committee could proceed. He suspected proceeding to the next section would face the same problems. He said the Committee would raise an issue there was agreement on and this issue would be noted for the next meeting.
The Chairperson said the term adoption would be replaced with the term agreement as it made Mr Masipa uncomfortable and that adoption will take place when dealing with the A-list. He asked if the Committee supported Chapters 1 and 2 as agreed on and asked for a motion for agreement.
Ms Tlhape moved in agreement with Chapters 1 and 2 as ventilated on the platform.
Ms Tshwete seconded Ms Tlhape’s motion.
The Chairperson proceeded to Chapter 3 of the Bill and asked the Committee to interject where necessary.
Clause 14 (General objectives of agro-system management) and Clause 15 (Agro-ecosystem authorisations)
Mr Masipa had an issue with authorisations and said that the timeline for authorisations was important because authorisations took a lot of time. He suggested that a specific timeframe for how long the authorisation of an application should be set out. This timeframe would be in line with other laws that concerned authorisations. He suggested that the timeframe be at least 30 days.
The Chairperson wanted to know which clause Mr Masipa was talking about to assist.
Mr Masipa said he was speaking about Clause 15(2) which needed to set out a specific timeframe for authorisations. He suggested that the clause be written as follows:
“The competent authority may grant within 30 days an agro-ecosystem authorisation for the commencement of a listed activity on agricultural land, subject to subsections (3) to (6)”.
He noted that Legal Services could assist with the wording of this clause and said that a specified timeframe needed to be added. He highlighted that the timeframe could be added in many areas under Clause 15 but Clause 15(2) seemed to be the best place. He took issue with the use of “may” in Clause 15(2) and suggested it be replaced with “must”.
The Chairperson thanked Mr Masipa for raising the issue of authorisations and asked if the Members had comments on this issue.
Ms Breedt agreed with the addition of a 30-day timeframe for authorisations.
Ms Mbabama also agreed with the addition of a 30-day timeframe for authorisations.
The Chairperson said the suggestion to add a specified timeframe for the authorisation of applications was duly noted.
Clause 16 (Listing of activity and agricultural area) to Clause 17(c) (Procedure for listing activity and agricultural area)
Ms Breedt interjected and said the Department had agreed to consider publishing the notice and the included list of activities in the gazette and other media. She was not sure if the Committee should insert this.
The Chairperson asked if Ms Breedt wanted other media to be included in Clause 17(a).
Ms Breedt said yes since the Department agreed to consider it.
The Chairperson said Ms Breedt’s suggestion that Clause 17(a) should state “publish a notice in the gazette and other media” would be duly noted.
Clause 17(d) (Procedure for listing activity and agricultural area) to Clause 18 (Procedure for delisting or amending an activity or agricultural area), Clause 19 (Identification of competent authority) and Clause 20 (Consideration of application by competent authority)
The Chairperson asked for a motion of agreement on Chapter 3 of the Bill.
Mr Masipa noted that his hand had been up for a while and said he was worried that the Chairperson was reading too fast, and indicated that he was unsure if the Chairperson could see the Committee’s hands.
The Chairperson said he had already noted that because the Bill was on the screen, he could not see the Committee’s hands. He said he had asked Members to interject when needed and asked that Mr Masipa follow along so he could interject.
Mr Masipa said he knew his issue had been highlighted as broadly covered in the legislation but it still needed to be raised, where the legislation's interactions with the Spatial Planning and Land Use Management Act (SPLUMA) and the Integrated Development Plan (IDP) were unclear. He said this was an area that as lawmakers, the Committee could not be vague about and say it was broadly covered by the law. He said the legislation needed to show that it worked with SPLUMA and the IDP. He said he did not have a specific area in the Bill where this interaction could be clarified but the Committee needed to consider the issue. His suggestion pertained to Clause 17(d)(ii) where the Minister had to consult the municipality and added that SPLUMA had overall planning authority in municipalities.
The Chairperson noted Mr Masipa’s point and asked for a motion of agreement on Chapter 3 of the Bill.
Mr Capa motioned to agree and Ms Mahlo seconded the motion. There was agreement on Chapter 3.
Clauses 21 to 21(7)(e) (Establishment of committees)
Ms Breedt had a question about persons who resided in South Africa permanently and who possessed a residence permit being appointed to the advisory or technical committee mentioned in Clause 21(7) of the Bill. She noted that her question was addressed in Clause 21(7)(b).
Mr Masipa said the Committee needed to be careful with a clause such as Clause 21(7)(b). He gave an example and said the DALRRD had a scheme for veterinarian doctors that budgeted for 326 posts but there were 103 vacancies because South Africa did not have the skills required. To exclude people who were not permanent residents or foreign nationals was not a good idea. He asked that it made be clear that the persons not eligible to sit on advisory and technical committees were foreign nationals or people who were not permanent residents of South Africa. This was because expertise was needed that could not be found in South Africa.
The Chairperson asked what changes to Clause 21(7)(b) Mr. Masipa proposed because it stated “A person may not be appointed as a member of the advisory or technical committee if such person (b) does not permanently reside in the Republic”.
Mr Masipa asked if the clause meant that foreign nationals who resided in South Africa would be eligible to be a member of the advisory or technical committee.
The Chairperson said the foreign nationals needed to be permanent residents of South Africa and possess a residence permit.
Ms Tshwete said she was trying to avoid a debate between the Chairperson and Mr Masipa and that Clause 21(7) was clear on who could not be members of these committees. Persons who were not South African citizens, foreign nationals or not, and persons who did not reside in South Africa permanently. She said the clause was clear unless Mr Masipa wanted to discuss the nitty gritty of what is meant by South African citizen or dual citizenship and added that the Committee was not the proper forum to discuss such technical issues. She suggested that Clause 21(7) remain unchanged as it was clear, especially in subsections (a) and (b).
Mr Capa said it was a mistake to think that non-permanent residents in South Africa were just foreign nationals and that there were South Africans who were not permanent residents. These South Africans would be relevant for the job of being a member of the advisory or technical committee. He said this was not a situation that would require hiring people outside of South Africa, so the talk of scarce skills was not applicable in this instance.
Dr Tlhape agreed with Ms Tshwete that Clause 21(7) was clear and said, where possible, the Committee should not tamper with the legal meaning of terms such as foreign nationals. Regarding Mr Masipa’s example of veterinarian doctors and scarce expertise, she said the veterinarian doctors who were foreign nationals were not hired permanently or put on advisory committees. These doctors were put on contracts that were renewed each year. She indicated that this issue might affect other legislation and since it has been discussed, it needed to be left alone and not tampered with.
Clause 21(f) (Establishment of committees) to Clause 22 (Appointment of technical and other advisers), Clause 23 (Performance assessment framework)
The Chairperson asked for a motion of agreement with Chapter 4 of the Bill.
Mr Capa motioned for the agreement with Chapter 4 of the Bill.
Mr Masipa said he was looking at the rule because he wanted to find the term motion of agreement which he did not understand. He asked if Mr Capa agreed that Clause 21(7)(b) needed to be changed so that it was clear on the issue of foreign nationals and mentioned that he said he wanted to be sure. He asked if the motion was for the consideration and deliberation on the inputs or agreeing with what the Chairperson had read.
The Chairperson asked Mr Masipa to listen to the proceedings and the inputs being made. He said that Ms Tshwete spoke on the issue of foreign nationals and suggested that no changes be made to Clause 21(7) and her suggestion was supported by Mr Capa and Dr Tlhape. He emphasised that the motion of agreement pertained to Ms Tshwete’s suggestion.
The Chairperson said the decision to use the term agree instead of adopt was because of Mr Masipa’s submission. He asked Mr Masipa to move with the Committee as the Bill was read and changes were affected and noted by the Committee Secretary.
Ms Tshwete asked Mr Masipa to follow the proceedings because he kept changing his mind. She said that the word “agree” was his suggestion and it was accommodated because he was confused with the word “adopt”. She added that Mr Masipa needed to stick with his suggestions.
The Chairperson asked that Ms Tshwete be allowed to speak as everyone was allowed to finish speaking and that Ms Mbabama would follow and if Mr Masipa wanted to speak, he would go after Ms Mbabama.
Ms Tshwete said she did not know what was going on with Mr Masipa. His suggestion was to use the word agree as there was confusion with the word adopt.
Mr Masipa said he was not confused about the word agree.
Ms Tshwete said Mr Masipa needed to decide what he wanted to suggest to the Committee as the back and forth made the Committee look incompetent.
Ms Mbabama said the Chairperson did not need Ms Tshwete to protect him and that Ms Tshwete needed to stop for a bit.
She seconded Mr Masipa's suggestion that the word adopt needed to be dropped. She said the Chairperson suggested the word agree which was fine. She indicated that she did not know if Legal Services was still present but she did not understand the need to agree on anything and that the Committee was just putting forth inputs about what needed to be changed so the Committee Secretary could note it. She indicated that she did not know what agreeing or not agreeing was doing for the Committee at this stage. She suggested that the motion of agreement be discarded and the Committee proceed with interjections and if there were objections there were objections but if not, the Committee would proceed.
The Chairperson said Ms Mbabama’s suggestion was what he was doing initially which was to read the Bill until Members interjected with suggestions to change certain clauses which the Committee Secretary would note. The Committee would then proceed with the reading of the Bill. He stated that his initial suggestion was that at the end of reading all the clauses, the Committee adopt the changes made and this was because the Committee still needed to deal with the A-list.
The Chairperson said he did not need protection but that he had accommodated Mr Masipa who wanted the Committee to agree on each chapter. Whereas Ms Tlhape wanted the Committee to adopt each chapter. He said he would go back to his initial procedure and would stop with the motions of agreement and instead read through the Bill. The Committee would then decide on a way forward at the end of the reading.
Mr Masipa said the Committee were lawmakers and addressed each other as Honourable Members not “bhuti” or “comrade” and asked the Chairperson to rule on this. He added that as lawmakers, there were procedures that needed to be noted when questioned. The words agreed and adopted at this stage, pertained to considering inputs made on clauses. He added that the words pertained to agreeing on and not on the deliberation of certain inputs on the clauses. He said this process was led by Legal Services and it felt as though the ANC side of the Committee had a position on this Bill which was to push through the Bill and the non-ANC side of the Committee was not being considered. He said that Members are lawmakers and all inputs needed to be considered.
The Chairperson said the Committee was at this juncture because Mr Masipa was being accommodated and that the suggestion to use the word agree was Mr Masipa’s. He said Mr Masipa had been accommodated.
The issue with Ms Tshwete was not ruled on because she corrected herself and referred to Mr Masipa as Honourable Member Masipa. The Chairperson asked that Mr Masipa follow proceedings so things did not have to be repeated.
Dr Tlhape said the Committee was moving in the right direction by deliberating and agreeing on clauses and added that this did not take away from previous deliberations and agreements on proposed changes. The Committee Secretary and Legal Services would note all previous deliberations and draft a paper considering these deliberations which would be adopted when dealing with the A-list. This was the reason for the Committee deciding to drop adoption and proceed with agreeing. She wanted Members to continue the interjection and deliberation work so that all the inputs would be collected. When the Committee dealt with the drafted A-list, there could be discussion on whether the inputs were included or not and the reasons thereof.
In terms of Clause 15(2) and the issue raised on the need for a specified timeframe for authorisations, she said it needed to be considered if the 30-day timeframe accommodated possible litigation. She asked what would happen if, after 30 days, there was no authorisation and there was a decision to litigate. The term reasonable timeframe was there so that the courts could decide a reasonable timeframe. She asked that the litigation issue be considered when Legal Services considers the suggestion of a specified timeframe.
The Chairperson noted that his gadget was on 7% battery life because there was load-shedding in Acacia Park. He asked Dr Tlhape to take over in the event his gadget died.
Clause 24 (Establishment of national agro-eco information system), Clause 25(Objectives of national agro-eco information system), Clause 26 (Content of national agro-eco information system)
Ms Breedt said Clause 26(g)(ii) stated that “The national agro-eco information system may contain the following information: information on the land owner, and on the land user, where applicable,
concerning nationality and gender”. She said most agricultural land was owned through trusts; therefore, she did not see how this clause would be applied. She added that it would be challenging to get this information and would be against the law if the information was not provided. She did not think this information was necessary and she wanted to know the Committee’s opinions on this.
The Chairperson asked the Committee its opinions on Clause 26(g)(ii).
Mr Masipa said this issue was raised as it spoke about gender and nationality when most land is owned through businesses and this meant that the information was not applicable. He said the request for this information was just doing Stats SA’s job of understanding who owned farms and where people lived and added that information on the land owner and land user was sufficient. He suggested that nationality and gender requirements be done away with and proposed that the alternative could be juristic persons or sole proprietors. Mr Masipa did not know what the information on gender and nationality would do for the Bill.
Dr Tlhape said the issue of businesses and trusts owning land could be solved by information being provided on the gender and nationality of trustees and business directors. She said this information helped with understanding, for example, women-owned land. She added that the information was for statistics, not politics.
The Chairperson said the reality was that most of the land in South Africa was owned by foreign nationals and settler colonialists so information that assisted with understanding who owned land in South Africa was important.
He said the Committee would be proceeding with the reading of the Bill because it was requested that there be no motions for agreement on these issues. The Committee Secretary noted the inputs made and Legal Services would consider them when dealing with the A-List. Legal Services would also speak to whether or not these inputs were included in the A-list and the reasons thereof.
Clause 27(1) (Right to appeal)
Ms Breedt asked if “any person” should not be “affected person who is aggrieved” because the former was quite broad and the latter gave the person locus standing regarding who could be aggrieved.
The Chairperson said it was English and it meant that anyone aggrieved could appeal. He said the Committee Secretary noted the suggestion and it would be sent to Legal.
Clause 27(2) (Right to appeal) to Clause 28 (Appointment of advisory appeal panel), Clause 29 (Investigation and consideration by advisory appeal panel), Clause 30 (Consideration of appeal by Minister) and Clause 31(Compliance inspections)
Mr Masipa said Clause 31(3)(a) which said “An inspector contemplated in subsection (1), subject to subsection (6), may (a) enter any agricultural land at any reasonable time without previous notice for the purpose of ascertaining an issue required to ensure compliance with this Act” was brought up during oral submissions. The suggestion was that at least an appointment needed to be made and Mr Masipa seconded this suggestion. Prior notice was needed because a person cannot just show up to people’s farms.
The Chairperson said Legal Services would speak to this suggestion of prior notice. He said that when notices were sent to farmers, there was a tendency to clean up before the arrival of inspectors. The Committee had seen on oversight visits that there were farms that refused to grant access to even a Parliamentary body. He said farms that hired foreign nationals would hide these workers when an appointment was made so that they would not be caught and that spot checks allowed people in charge to uncover the realities of the state of these farms. This was the reason for the checks at a reasonable time without previous notice. The Chairperson wanted the Legal Team to consider this aspect too.
Ms Breedt said she understood the Chairperson’s point but this Bill was not about criminality but rather the management of agricultural land and that this was a safety issue considering the high amount of farm murders and attacks. Clause 31(a) was unreasonable, and arriving at someone’s farm to inspect it without notice was an invasion of privacy. She wanted Legal Services to advise on this because she agreed with Mr Masipa that an appointment was needed. She added that these were difficult times in South Africa and no prior notice was not fair.
Dr Tlhape said this matter had been deliberated on and the Chairperson’s response summarised the deliberations. She said the Committee Members who opposed this clause visited agricultural offices without appointments and these visits had nothing to do with criminality, rather it was part of oversight. She said the Chairperson was correct, when notices are given, farmers hide things including documentation. She noted that during the Committee’s oversight visits, there were many closed gates and said there was nothing wrong with this clause and that it being raised as an issue was fine. However, it needed to be considered that this clause had been discussed before and there was agreement in the Committee.
The Chairperson said the inputs raised would be noted and Legal Services would speak to it when the A-list was dealt with.
Clause 31(3)(b) to Clause 31(3)(g) (Compliance inspections)
Ms Breedt said she was vehemently against Clause 31(3)(g) because not even the South African Police Services (SAPS) had the power to seize property without a warrant and added that inspectors should not have more power than SAPS. She indicated that she was against inspectors seizing property without proper procedure.
Mr Capa said that as a country with laws, where substances or property were prohibited, appointed authorities were supposed to remove these things or demand the removal of these things. He said this did not only apply to the Bill but to other legislation too.
Dr Tlhape said inspectors would have competency areas and all appointed persons would be given a scope. She said if there was misconduct or farmers were unhappy with certain conduct, in terms of the inspectors, there would be recourse. However, there could not be toothless inspectors and this was an issue the Committee discussed. She said the Committee discussed how to enforce some of the things in the Bill and power taken from relevant authorities. She indicated that there was recourse for SAPS misconduct and there would be with the inspectors. Dr Tlhape said this, however, should not be pre-empted. She suggested that the clause remain as is.
Mr Masipa said Clause 31(3)(g) was draconian and there had to be a search warrant before seizing property. He indicated that the agricultural researcher made this point. Mr Masipa said the inclusion of this clause would be overboard. The process mentioned in the clause had to be done through legal means or inspectors would not have the protection of the law. He added that the clause needed to be looked at.
Ms Tshwete said the clause needed to remain as is because it dealt with the issue of compliance and that there could not be professional inspectors who were incompetent. She said these inspectors knew the law and what was expected of them. She wanted to remind the Committee that during one of the oversight visits, a farm worker had died operating machinery they were not licensed to operate. With this in mind, the Committee included in their mandate the issue of compliance which this clause spoke to.
Mr Masipa said where Eskom’s land and servitude were concerned, there was generally electrical infrastructure present, and many of these areas were restricted and required authorisation to access for safety and legal reasons. Inspectors were expected to provide reasonable notice regarding these areas for the purpose of safety and to ascertain if the inspector could be legally authorised. He said this also applied to paperwork.
He expressed that this was his submission because he did not want the Committee to set themselves up with flawed legislation.
The Chairperson said these inputs would be duly noted and addressed by Legal Services.
Clause 31(4) (Compliance inspections) to Clause 32 (Contravention directives) and Clause 33 (Investigation and gathering of data on agricultural land)
The Chairperson completed reading Chapter 6 of the Bill and suggested the Committee end here because there was a plenary at 2 pm in Parliament. He requested that the Committee Secretary find a time, perhaps Friday between 9 am and 10 am for the Committee to conclude the clause-by-clause deliberation. He asked the Committee if this was acceptable.
The Committee agreed.
The Chairperson said this brought them to the end of the meeting and the clause-by-clause would be concluded as soon as there was a date for the Committee to meet. He thanked Members for being present and for the robust engagement. He hoped that the Committee Secretary and Legal Services captured the engagements so they could be affected when dealing with the A-list.
He thanked the Committee’s staff and Legal Services whom the Committee hoped to call on when the clause-by-clause deliberation was concluded and reminded the Committee there was a sitting at 2 pm. He said it had to be done timeously for those joining online so that the Committee had the necessary numbers.
The Chairperson wished the Committee a great week ahead.
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