The Portfolio Committee on Agriculture, Land Reform and Rural Development met on a virtual platform for a briefing from the Department of Agriculture, Land Reform and Rural Development (DALRRD) on its responses to submissions made by the National House of Traditional and Khoisan Leaders (NHTKL) and the Minister of Forestry, Fisheries and the Environment on the Preservation and Development of Agricultural Land (PDAL) Bill.
The submission from the NHTKL pertained to the Minister of Agriculture, Land Reform and Rural Development’s powers over agricultural land, specifically the 13% of land that was under the custodianship of tribal authorities. The NHTKL raised issues in its submissions on the definitions, agricultural land and classification, declaration of Protected Agricultural Areas (PAA), procedure for declaring protected agricultural areas, agroecosystem authorisations, the procedure for listing an activity and agricultural area and the content of the national agro-eco information system.
The submission from the Minister of Forestry, Fisheries and the Environment pertained to the identification of activities requiring the agro-authorisations and the new decision-making process. The Department of Forestry, Fisheries and the Environment (DFFE) was not in support of the identification of activities requiring agro-authorisations because the National Environmental Management Act, 1998 (Act No. 107 of 1998) (NEMA) currently makes provision for the identification of activities that would have a detrimental impact on the environment. The DFFE stated the Bill sought to create a whole agroecosystem.
The DALRRD recommended that the Portfolio Committee consider the DALRRD’s response to written submissions by the NHTKL and Minister of Forestry, Fisheries and the Environment received on 14 October 2023 and 17 November 2023 regarding the Preservation and Development of Agricultural Land Bill.
The Parliamentary Legal Services and the Office of the Chief State Law Advisers (OCSLA) submitted responses to the Committee on the submissions from the NHTKL and the DFFE. The responses included the legal opinion that the issues that stemmed from the DFFE’s submission were inter-governmental matters that should be resolved as such.
The Committee raised concerns about the submissions from the NHTKL and the DFFE and these included issues on compliance, leadership, Communal Property Associations (CPA), the mandate of the DALRRD and DFFE, the 13% of land under the traditional councils, and the consideration of the ever-changing societal needs regarding land. Members were also concerned with how the DALRRD would resolve the matter regarding the Minster of the DFFE’s submission. They expressed satisfaction with the DALRRD’s responses to the submissions from the NHTKL and DFFE. Furthermore, the Committee considered the consequential amendments to the PDAL Bill’s A-List with the assistance of Parliamentary Legal Services. Concerns raised included the exclusion of certain areas in the A-List that the Department had conceded to and that the Committee had not objected to. Members were also in support of Parliamentary Legal Services submitting the finalised A-List no later than the close of business on 22 November 2023.
The Chairperson asked if there were any apologies.
The Committee Secretary noted that Ms Thoko Didiza, Minister of Agriculture, Land Reform and Rural Development and Ms Zoleka Capa, Deputy Minister, asked to be excused early to attend a Cabinet meeting.
Mr Mcebisi Skwatsha, Deputy Minister, said he had sent an apology too noting that he requested to be excused early to attend a Cabinet meeting. He was unsure if the Committee had not received this apology.
The Committee Secretary apologised and clarified that Deputy Minister Skwatsha’s apology was received.
The Chairperson greeted and said the Committee was meeting at a time when there were whispers of a temporary ceasefire in Gaza and all of Occupied Palestine in the air. The ceasefire would allow for the exchange of hostages. He said it was the 46th day of the wave of ethnic cleansing and genocide where 13 000 Palestinians had been killed and more than 32 000 injured, 75% of whom were innocent children and women. He mentioned that the children of Gaza and Occupied Palestine were honoured on 20 November 2023, as it was World Children’s Day. The Chairperson took an opportunity to salute the collective protest action in solidarity with Palestine, in South Africa, and across the globe, which has resulted in efforts such as the recalling of the Israeli Ambassador back to his Zionist State.
The Chairperson said he cited the developments in Palestine because the issue of land was at the centre of the current meeting’s deliberation. He stated that the Apartheid Israeli Occupation had denied Palestinians their right to own their land after 75 years of occupation. Israel instead chose to pursue systematic genocide, ethnic cleansing, and crimes against humanity. He applauded South Africa for pursuing the Preservation and Development of Agricultural Land (PDAL) Bill as it is a progressive piece of legislation that deals with the effects of dispossession, historic ownership of land, and what is best for ensuring the protection, sustainability, and viability of agricultural land in South Africa.
The Chairperson set out the meeting’s agenda which included the consideration of the National House of Traditional and Khoi-San Leaders’ (NHTKL) submission on the PDAL Bill that the Committee had requested. He said it was the duty of the legal teams from the State and Parliament to consider all submissions related to legislation. The Committee would be considering the submissions from the NHTKL and the Department of Forestry, Fisheries and the Environment (DFFE). Legal and the DALRRD would also comment on both submissions. He added that the Committee would continue with the consideration of the A-List and ensure that all related inputs and amendments were considered.
He said, as decided in the last meeting, that the inputs in the submissions from the NHTKL and DFFE had to be affected by the PDAL. Legal needed to assist on how these inputs could be included in the Bill. The Committee would consider and decide on each amendment, and legal would then advise the Committee on how the final clause would read. The Chairperson said Legal would capture and incorporate all the amendments in the development of the A-List.
The Chairperson mentioned that he had, on numerous occasions, drawn attention to the process of developing legislation and added that it should not be taken for granted because a majority of the country’s citizens were denied this fundamental right. He said South Africans should never again be deprived of the right to participate in processes that affect them and their right to own and preserve land. He asked that the Department of Agriculture, Land Reform and Rural Development (DALRRD) proceed with its presentation.
Deputy Minister Skwatsha suggested that Mr Dipepeneneng Serage, DALRRD, proceed with the presentation.
DALRRD’s Response to Submissions by NHTKL and DFFE on the Preservation and Development of Agricultural Land Bill
Written Submissions from the National House of Traditional and Khoi-San Leaders (NHTKL)
Objects of the Bill
Comment from the NHTKL: It is our view that if the Bill is enacted into law, all agricultural land will become vested in the Department of Agriculture, Land Reform and Rural Development, as custodians. This will affect the 13% of land that falls under traditional councils. It is our view that the Minister can have powers over agricultural land, except for the 13% of land that is under the hands of tribal authorities.
-The Preservation and Development of Agricultural Land Bill (PDALB) objectives are to enhance the regulation of agricultural land use management as currently under the Subdivision of Agricultural Land Act (SALA) and support for agricultural land development to preserve agricultural production.
-Communication of any development of agricultural land as defined in the Act will involve consultation of affected parties, including the traditional council.
Comment from the NHTKL: The use of food security in the Bill did not consider the actual scenarios of household food security in many communities, such as community food security initiatives that were started by women in their backyard gardens, child-headed households, and unemployed people in communities.
-The principle of equitability in Clause 4(1) addresses the balanced participation of all agricultural land users.
-Further, the needs of communities will be addressed in the Agricultural Sector Plan as it will be area-specific. The preservation and development of agricultural land seeks to ensure that all forms of food security initiatives by anyone are promoted.
Clause 1: Definitions
Comment from the NHTKL: This clause reduces ownership rights over agricultural land, meaning South Africans will not have individual ownership of agricultural land. Therefore, even if expropriation of land without compensation is avoided, the Bill will significantly reduce the normal competencies of ownership over agricultural land.
-Clause 1, line 15, relates to agricultural land with the object to promote the preservation and sustainable development of agricultural land. The Bill does not intend to regulate the ownership status of land as prescribed by various legislations but takes its departure from the mentioned object.
Agricultural Land Evaluation and Classification
Comment from the NHTKL
-Clause 5(1)(a) empowers the Minister to establish evaluation and classification systems to appraise, amongst others, the potential and use of agricultural land.
-Clause 5(1)(a) gives the Minister unrestrained power to classify agricultural land. The Minister must consult the landowner in addition to the province.
-No restraining criteria are imposed on this power of the Minister, except the duty to consult with provincial counterparts. This provision should be amended to include a duty on the part of the Minister to consult with the affected landowners and Traditional Councils whose land falls within the contemplated area.
-Comment noted. Clause 5 should be read in totality, considering that Agricultural land evaluation and classification is based on the inherent capability of the natural agricultural resources based on existing scientific, verified natural resources data and the continued refinement thereof. Clause 5 empowers the Minister to fulfil constitutional functional areas of agriculture by establishing and refining land evaluation and classification systems to categorise the capability and potential of agricultural land.
-The continuous development of the said agricultural scientific system will be consultative and transparent in nature.
Declaration of Protected Agricultural Areas (PAA’s)
Comment from the NHTKL
-Clause 11(2) (a) of the Bill provides that the Minister may declare a protected agricultural area to protect “land capable of producing significantly higher levels of agricultural goods”. This provision does not indicate “higher than what”. If this is not clarified, it will in practice, provide the Minister the power to exercise discretion arbitrarily.
-Clause 11 (2)(a) appears to get ahead of the Minister by referring to land capability ratings that include above moderate.
-Clause 11(4) empowers provincial governments to declare provincial protected agricultural areas if they are of significant agricultural importance and to preserve the area primarily for agricultural purposes. This provision allows provincial governments to deem any agricultural land significant and reserve it for agricultural purposes. This will infringe on landowners and Traditional Councils whose land falls within the contemplated area protected property rights, and we therefore request that when doing that provincial governments must consult landowners and Traditional Councils.
-The description of land capable of producing “higher level of agricultural goods” is described in clause 11(2)(a)(i) - (iv). It entails a land capable of producing higher output due to combinations of favourable conditions such as soil type, climate, and terrain.
-The procedure prior to the declaration of a protected agricultural area is described in clause 12 and entails a process of consultation with all affected parties.
Procedure to Declare Protected Agricultural Areas
Comment from the NHTKL
-Clause 12(1)(a)(iv) provides that before the Minister or the Member of the Executive Council (MEC) declares a protected agricultural area, the Minister or MEC must consult with the municipality or municipalities in which the provincial protected agricultural area falls.
-It is our submission that traditional councils and landowners whose land falls within the contemplated area must also be consulted when a protected agricultural area is declared.
-The procedure prior to the declaration of a protected agricultural area is described in clause 12 and entails a process of consultation with all affected parties.
Comment from the NHTKL
-Clause 15(1) introduces a system where agriculturalists and private landowners would need authorisation before they may do certain things on their land in a protected agricultural area.
-Clause 16(1) empowers the Minister to list activities that may not commence on agricultural land, including agricultural land in national and provincial protected agricultural areas, without an agro-system authorisation.
-Clause 16(2) states that the Minister must be convinced that these activities should be capable of having a permanent negative impact on the agricultural potential, capability, or use of agricultural land before they may be listed.
-This compliance burden in this provision is in contrast with the commitment from government’s dedication to doing away with rules and processes that seem unnecessary and delay results. We are of the view that the agroecosystem authorisations be scrapped.
-Comment not agreed with.
-Listing processes inclusive of change of land use and subdivisions of agricultural land authorisations are already in place under the Subdivision of Agricultural Land Act 70 of 1970 and are therefore not a new process. The purpose of the Bill is to preserve especially high value agricultural land for production purposes and as such protect this land from the transformation to non-agricultural land uses.
Procedure for Listing an Activity and Agricultural Area
Comment from the NHTKL
-Clause 17(d)(ii) provides that before the Minister may list an activity requiring an agroecosystem authorisation, the Minister must consult with provincial and local governments in the respective agricultural area.
-Since this law would be applicable to all agricultural land, everyone who owns agricultural land must be consulted when policy decisions regarding agriculture are made.
-Noted however, when listing is conducted, all written comments will be considered in line with clause 17(a) (ii).
Content of National Agro-Eco Information System
Comment from the NHTKL
-Clause 26(g) states that the information regarding the landowner or land user that must be recorded in the national agro-eco information system may include the nationality and gender of the owner or user.
-Of the view that the Bill should strictly regulate the sale of agricultural land to foreigners, who lack permanent residence. Further, the interests of emerging farmers should be prioritised before considering foreign nationals.
-Noted. The Bill does not address land ownership.
Written Submissions from the Department of Forestry, Fisheries and the Environment (DFFE)
Identification of Activities Requiring Agro-Authorisations
Comment from the DFFE
-It is stated that the identification of activities requiring agro-authorisations for persons conducting activities on agricultural land is not supported.
-It is stated in the letter that the provisions of the Bill in that respect are not supported because the National Environmental Management Act, 1998 (Act No. 107 of 1998) (NEMA) currently makes provision for the identification of activities that would have a detrimental impact on the environment, which includes agricultural land and provides for authorisation of those activities. It is further stated that the Environmental Impact Assessment Regulations, 2014, and the Listing Notices made in terms of those regulations already include agricultural activities and activities to be undertaken on sensitive environments, which could include high agricultural potential land. It is further stated that if further agricultural activities require listing, DALRRD would identify them and request the Minister of Forestry, Fisheries, and the Environment to list them in the list notices.
-The Bill seeks to create a whole agroecosystem, its management and information system. Agroecosystem authorisations are an integral part of a system which, in addition to agroecosystem management and authorisations, also provides for listing of activities on agricultural land, procedures for listing and delisting activities on agricultural land, identification of competent authorities and consideration of applications by competent authorities.
New Decision-Making Process
Comment from the DFFE
-The introduction of a new decision-making process through the Bill, which involves listing activities in agroecosystems for an agroecosystem authorisation, is also not supported.
-As per above, agroecosystems activities and their authorisations on agricultural land are agriculture matters falling within agriculture mandate and DALRRD will be abdicating responsibility by not regulating them.
-DALRRD considers that upon commencement of the proposed legislation, the listing of agroecosystem activities on agricultural land by notices under section 24 of NEMA will become ultra vires. In terms of Section 24K of NEMA, the Minister of Forestry, Fisheries and the Environment is required to consult with other competent authorities responsible for administering other laws relating to activities requiring authorisations for activities impacting on the environment. Both departments will continue to consult each other on matters affecting agroecosystems that impact the environment.
Recommendation from the DALRRD
The Portfolio Committee to consider DALRRD’s response to written submissions by the NHTKL and Minister of Forestry, Fisheries and the Environment received on 14 October 2023 and 17 November 2023 regarding the Preservation and Development of Agricultural Land Bill.
[For the detailed presentation, see attached]
Mr Serage said the DALRRD thoroughly considered all the comments from the NHTKL and the DFFE. The DALRRD could not concede to these submitted comments because South Africa needed the PDAL Bill to preserve and protect agricultural land. A law was needed to ensure the protection and preservation of high-value agricultural land for food production, irrespective of who owned the land.
The Chairperson thanked the DALRRD for the presentation and asked Parliamentary Legal Services and the Office of the Chief State Law Adviser (OCSLA) to share their response to the submissions the NHTKL and DFFE made.
Responses from Parliamentary Legal Services and the Office of the Chief State Law Adviser (OCSLA)
Ms Zingisa Zenani, Parliamentary Legal Adviser, said she would hand over to Mr Siviwe Njikela, Senior Parliamentary Legal Adviser.
Mr Njikela greeted the Committee and said he would be dealing with the differences between the executive and the technical issues related to the content of the Bill. He said it was apparent that the DFFE and DALRRD had differences in terms of approach. The differences in approach made things difficult because when the Bill was introduced in Parliament, it was assumed that there had been sufficient consultation and deliberation within the Executive.
He mentioned that it becomes tricky for Parliament as a separate arm of government to deal with differences between departments. He asked that Legal should not deal with the differences within the executive. However, if Legal had to deal with this issue, he proposed that time be given to Legal to engage with the presentations thoroughly so that the Committee could be advised appropriately. He stated that Legal would prefer that the executive settle the matter internally and return to Parliament with a concrete position that each department agreed on. He also highlighted that Legal was of the view that intervening in this matter would be awkward on its part.
Mr Njikela said Legal was satisfied with the many issues raised and asked the Chairperson to grant Legal Services more time to consider the submissions presented in the current meeting and consolidate a legal opinion that would guide the Committee in dealing with the submissions.
Adv Shaun van Breda, Senior State Law Advisor, Office of the Chief State Law Adviser, concurred with Mr Njikela and Ms Zenani in terms of the submission made by the DFFE. He said that the matter is inter-governmental, and he could not comment on it. He added that it was for the Committee to consider. He stated that there should not be conflict as the objects of the Bill fell within the mandate of the DALRRD.
Regarding the NHTKL, Adv van Breda was satisfied with the DALRRD’s response. The Bill allowed traditional communities to make written representations on proposed declarations of protected agricultural areas and listed activities. On the issue of the limitation of land and property rights, he said the only concern that could arise was regarding the declaration of listed activities and not the declaration of protected agricultural areas. This was because the listed activities could limit the enjoyment of property.
He noted that Clause 16(2) stated that the Minister may only identify activities that may have a permanent negative impact on the agricultural potential, capability, suitability, or use of agricultural land. Further, the Minister may list activities that do not require agroecosystems authorisation.
He said the Bill made provision for interested parties to provide written comments on proposed listed activities and these comments had to be considered by the Minister. There was a just administrative process in the Bill, and those unsatisfied with application outcomes could appeal to the Minister. He mentioned that there was also the option of judicial review for those unsatisfied with the appeal outcome.
If determined in court that there was a limitation of a property right, the DALRRD must demonstrate that such a limitation was justified in terms of Section 36 of the Constitution. He stated that the court’s decision had to be rational and follow the Constitution. The court needed to ensure that such deprivations were justified and not arbitrary. Adv van Breda was satisfied with the DALRRD’s responses and noted that there were safeguards in terms of the possible limitation of a property right about the declaration of a protected agricultural area or listed activity.
Minister Didiza apologised for joining the meeting late and asked that Legal Services send the areas where there were differences in approach so that she could speak with the DFFE about a resolution. This was so that the DALRRD could provide the Committee with a response on the matter.
Dr M Tlhape (ANC) appreciated the NHTKL's cooperation in sending submissions on the PDAL Bill. She was satisfied with the Department’s responses to the submissions from the NHTKL and DFFE. She also was happy about the State Law Adviser putting the Committee at ease. The authorisation of agro-systems and identification of high agricultural land would be done scientifically.
She said a submission was made about the Bill not leaving leadership behind when the Minister formulated a panel of advisors and added that leadership needed to be taken on board at each step. She agreed with the Department that issues of compliance needed to be dealt with firmly. This was not the case with all traditional leaders, but in some instances, Communal Property Associations (CPA) were notorious for allocating land to developers. She stated that the Department could not relent on issues of compliance if the objectives of the Bill were to be achieved.
She noted the Minister’s response on how the issue between the DALRRD and DFFE would be addressed and said it would be unfortunate if the DFFE’s mandate had agricultural elements although she understood where the DALRRD was coming from. She supported agricultural authorisations or activities being regulated within the DALRRD. She added that it would be unfortunate if some of the DALRRD’s delegated powers had to be given to the DFFE.
Dr Tlhape said Legal needed time to advise the Committee as the Minister responded that she would deal with this issue through discussion with the Minister of the DFFE.
Mr N Masipa (DA) welcomed the presentation and said he was taken aback regarding Legal Services’ response to the matter. He said that the matter required the separation of powers and the Ministers of DFFE and DALRRD needed to discuss and then comment on it.
He said the Constitution, in terms of the environment, stated that everyone has the right to an environment that is protected for the benefit of present and future generations. He indicated that he was quoting the Constitution because he believed that agricultural land needed to be protected. The concern at the moment was who was responsible for the protection of agricultural land. His opinion was that the DFFE had powers over various agricultural areas but for agriculture to survive, certain powers needed to be given to the DALRRD.
He highlighted that in the public hearings, the Committee heard complaints from communities about their land being taken for mining purposes, especially in communal areas. The DFFE was there to issue licenses and do environmental assessments. He said his concern was that these things were ignored. Mr Masipa’s submission was that he agreed with the DALRRD that certain powers were needed in the Department to ensure the proper management of agricultural land.
He stated that he was concerned with the submission from the NHTKL of about 13% of the land that fell under the traditional councils. He said most of the concerns with the Bill due to how it was drafted would be resolved through the regulations. The concern with the NHTKL wanting to be in charge of various land activities was that even before the Bill, the traditional authorities had allowed businesses to invade their land.
Mr Masipa said there was a need for speed regarding ensuring that some of these regulations were in place as soon as possible. Especially regulations about communal land in areas where people felt their agricultural land was being invaded. He hoped this would not create constitutional issues with the Bill and said that the PDAL Bill did not have constitutional issues but rather implantation ones. The implementation issues needed to be ironed out soon.
He wanted to emphasise the importance of protecting agricultural land for the benefit of communities and farmers. He added that a resolution to the issue between the DFFE and DALRRD was needed soon. He suggested that the Committee request that the Minister of the DALRRD appear before them and brief them on this issue once a resolution with DFFE is reached. This was so the Committee could move forward with the Bill and avoid a situation where the Bill was contested in court. Mr Masipa said the Committee needed to ensure that all the boxes about the processing of this Bill were ticked.
Mr N Capa (ANC) appreciated the responses from the legal advisers as their responses were informative and indicated that work had been done regarding the issues raised in the submissions from the NHTKL and DFFE. He thought NHTKL would understand the benefit of having land under their authority protected by legislation. This protection gave them some power instead of considering it a competition.
He stated that the Bill assisted and strengthened the real authority the NHTKL has and said that the mention of the 13% of the land that remained after the dispossession of people was not something to be proud of. He indicated that DALRRD and the legal advisers did a good job in terms of explanations. He said the position the Minister of the DALRRD was taking was important and asked whether the DALRRD had sought legal counsel before taking its position on the matter.
He highlighted that the executive needed to reach a common understanding in terms of the legislation and the position taken on it before the legislation came before the Committees. The Department’s intention with this Bill was clear, the purpose of the PDAL Bill was to protect and preserve agricultural land. He said the Bill should not be taken at any point as a competition between the DALRRD and DFFE. The DFFE should be happy that some of its work concerning environmental issues and land protection was being done through this Bill.
He emphasised that there needed to be a mutual understanding within the executive on the Bill to ensure that the protection of land was not seen as grounds for competition.
He was satisfied with the explanations and the emphasis on the Bill being for protecting agricultural land and nothing else. He said this was because it avoided the problem that came with the mixing of land protection and land administration, an issue that traditional authorities were still struggling with.
Ms T Mbabama (DA) concurred with Mr Masipa and had no further comments on the matter at hand.
Mr S Matiase (EFF) said he had been listening and taking notes and expressed that land must be protected and used with care for the benefit of future generations. Where needed, government should act through the formulation of legislation and regulation to assist with preserving and utilising agricultural land. In addition, government needed to ensure a balance in the distribution of land for agricultural, industrial, residential and commercial purposes. He said when government distributed land, it needed to take into account the needs of South Africans, which were ever-evolving.
Land that had been used for agricultural purposes for decades and then abandoned perhaps would not be viable in the present for food production which needs to be taken into account. He said legislation needed to be flexible and take into account such changes and evolving societal needs. Mr Matiase stated that if consideration was given to his suggestion, he would be happy with government’s proposed intervention.
Ms T Breedt (FF+) said that the Department’s stance was clear on the submissions from the NHTKL and DFFE. She noted that the Committee had covered her questions and she had no further comments.
Ms N Mahlo (ANC) said she acknowledged and appreciated the presentation from the DALRRD and the responses from Legal Services. She was also satisfied with the responses from the DALRRD and Legal Services. She stated that the Committee had already touched on the important issues and therefore she had no further comments.
The Chairperson said the submissions from the NHTKL and DFFE were sent to Legal Services on time and therefore Legal Service’s request for more time was unacceptable. He expressed that it was concerning that Legal Services had not looked at the submissions and needed more time.
He said the question of how this should be dealt with needed to be asked within the Committee because the process had taken much-needed time and the Committee could no longer postpone matters. He commented that the Committee needed to conclude its work on this Bill.
He wanted to ascertain when the legal advisers would return to the Committee with a response to the legal issue at hand and said that they had to submit their responses no later than the close of business on Friday. He stated that plenaries were scheduled for Friday but the legal advisers needed to make the submissions. This was so that the Committee could schedule a meeting on Tuesday to ensure that the Committee proceeded with the work related to the Bill.
The Chairperson asked if the Committee had thoughts on this.
Mr Masipa agreed with the Chairperson’s proposal and suggested that the DFFE be allowed to present its issues to the Committee. He said he suggested the presentation from the DFFE be spoken on so that when the Committee considered the A-List, it could just be motioned. He added that the processing of the Bill was too far along for the Committee to stop and indicated that the Committee needed the DFFE’s input on the Bill so that concessions could be made in terms of certain powers. Mr Masipa agreed with the DALRRD that some of the powers vested in the DFFE would need to be moved to the DALRRD and said a presentation from the DFFE could help avoid departments taking each other to court after the finalisation of the Bill.
Dr Tlhape agreed that Legal Services had enough time to process submissions.
The DALRRD indicated that the responses had been sent to the DFFE for follow-up. She agreed with Mr Masipa that there was no time and the Committee could not relent. She indicated that time was an issue and even extending the courtesy to the NHTKL to make a submission was an issue because of time. She suggested that the Committee set aside an hour on Thursday evening to deal with the matter so that the Committee could progress with the processing of the Bill on Tuesday.
Mr Capa concurred with the inputs made by Mr Masipa and Dr Tlhape. He said he did not comment on the delay because he got the sense that the reason for the reluctance to address the matter was that Legal Services was afraid of pitting one department against another. He stated that the only compromise to be made was that Ministers from DALRRD and DFFE meet and resolve the matter within a short amount of time.
He agreed that there was no time for dragging the matter and therefore he took seriously the inputs the DALRRD made.
Parliamentary Legal Services
Ms Zenani apologised on behalf of Legal Services for delaying the process and said it was not meant to come across as dismissive of the submissions made by the NHTK. Legal Services’ response to the submissions from the NHTKL would have been short and they wanted to formalise it. She said if the Committee felt as though the response had to be presented in the meeting so it could be processed, that could be done. However, it had to be noted that the issues the NHTKL had raised were not new and had already been deliberated on.
She said the NHTKL raised the issue of the inclusion of traditional leaders amongst the groups specified for consultation in the Bill and added that the matter had been raised and discussed in the Committee. She said traditional leaders would not be excluded in terms of consultation and noted that the Bill was consultative and the issue raised was not a new proposal.
The NHTKL raised a point related to Clause 26(g) and suggested that the Bill should regulate the sale of agricultural land to foreigners who are not permanent residents. She said the Department’s response to this issue was appropriate. The Department stated that the purpose of the Bill was to preserve and protect land and therefore, the sale and ownership of land was not a part of the Bill’s mandate.
Ms Zenani emphasised the request for more time regarding the NHTKL because the Legal Services thought a formal submission was needed.
Mr Serage wanted to emphasise that the issues the NHTKL raised were not contrary to the objectives of the Bill. The Department was willing to set aside time to assure the traditional authorities that their rights would not be lost through the enactment of the Bill. The Bill would ensure the protection and productiveness of the NHTKL’s land.
Mr Serage said the main issue that needed to be addressed with the assistance of the Committee was the DFFE matter. He added that the Minister of the DALRRD has written to the Minister of the DFFE.
In terms of the process, he said that certain individuals from the DFFE would be consulted as the process with the Ministers unfolded.
He said the DFFE’s submission was a surprise as the Department had been consulted as far back as 2014 when the Bill was first introduced. The DFFE had also supported the DALRRD throughout the Bill's processing and acknowledged that the PDAL’s Bill mandate was beyond the scope of the DFFE’s laws. He added that the DFFE had agreed with the DALRRD. He said the DFFE had difficulties with the agroecosystem which would still be submitted and be the responsibility of the Minister from the DALRRD. This was because the Minister would have the necessary competencies to declare land for agricultural purposes. He stated that environmental services were not within the scope of the DALRRD.
He commented that the DALRRD was humbled by the Committee’s support and said that he would try on a technical level to resolve the matter as it had taken the DALRRD by surprise. He said the DALRRD would reach out to the DFFE because he did not believe the matters raised encroached on the DFFE’s responsibilities. There was a clear delineation between environmental and agricultural protections and in terms of the Conservation of Agricultural Resources Act, the DALRRD understood its bounds. Mr Serage said DALRRD had never had these kinds of challenges with the DFFE before.
Ms Zenani reiterated that the deliberation on the submission by the NHTKL was not done in terms of Rule 165(a) of the Joint Rules but rather as a courtesy to the NHTKL. Legal Services' strong view was that the issue raised in the submission by the DFFE was an intergovernmental one.
The Chairperson asked the Committee to proceed with their follow-up questions.
Mr Masipa asked if the issue between the DFFE and DALRRD about the power to execute certain tasks, such as agroecological assessments, was a constitutional matter. He said Legal Services should have perhaps informed the Committee on whether this issue gave rise to a constitutionality problem. He said his concern was implementation, which would be addressed through the regulations, and he anticipated such issues with the implementation and regulations. He wanted to know if the DFFE matter affected the constitutionality of the Bil and added that Legal Services needed to provide a substantive answer to the Committee on this.
Mr Capa said he had raised this question but it was not addressed. He asked if the DALRRD had sought legal advice in terms of the DFFE matter or had the DALRRD communicated the issue with the Minister first and decided to seek legal advice later.
The Chairperson asked Legal Services if there were any constitutional matters that the Committee needed to address in terms of the DFFE matter.
Ms Zenani said no constitutional matters could arise due to the DFFE matter. The issue regarding the mandate of the DFFE and DALRRD could be resolved through the intergovernmental process if both departments were clear on whose mandate certain activities fell under.
Adv van Breda concurred with Ms Zenani in terms of the constitutionality issue. On the issue around the DFFE’s submission, he wanted to add that the purpose of the Bill was not to provide for environmental protection in terms of Section 24 of the Constitution. The purpose of the Bill was to give effect to Section 27(1)(b) of the Constitution which was to ensure that everyone had sufficient access to food. He said it could benefit the environment but that was not the purpose of the Bill. Adv van Breda was satisfied with the objectives of the Bill and its implementation within the mandate of the DALRRD and added that there were no constitutional issues in this regard.
Mr Serage said DALRRD was assured by the Office of the Chief State Law Adviser (OCSLA) that there were no constitutional issues. He said even the matters the DFFE presided over were not a part of its principal legislation but rather its subordinate legislation. The DALRRD would engage with the DFFE so that there could be an understanding of why the DFFE wanted to preside over certain things when the DALRRD had the instruments in its laws to preside over these things.
He said that he would engage the DFFE on the constitutional mandate of each department as there is a clear delineation between what environmental protection is and what agricultural production is. The Conservation of Agricultural Resources Act does, to a great extent, regulate sustainability but not environmental issues. The DALRRD consulted the DFFE throughout the process, which started in 2014. The DFFE was the DALRRD’s main stakeholder in terms of the Bill until the submission from the Minister of the DFFE was received. He said that the Minister of DALRRD seems to not have received this submission yet as it was sent to the Committee. He said the DFFE’s submission was a surprise to the DALRRD.
Ms Mbabama thanked the Chairperson for the indulgence. She felt that consultation by the DALRRD was a challenge and this was an issue that stakeholders in the provinces and NHTKL had raised. She wanted to know how the DALRRD planned to ensure thorough consultation with all stakeholders. This was because there seemed to be no clear outline in the Bill other than publication notices in the government gazettes and other media.
Mr Capa said the silence regarding his question on whether the DALRRD sought legal advice told him that legal advice was not sought. The Minister of the DALRRD was now going to meet with the Minister of the DFFE who had been legally advised. He suggested that the Minister of the DALRRD be freely advised as she did not seem to be up to date on the matter.
The Chairperson said that the Committee needed to wrap up the discussion as the Committee still needed to consider the A-List. He wanted to ensure that Legal Services engaged with the Committee Secretariat on submitting their responses without delay and said that Legal Services responses needed to be circulated amongst the Committee before the end of business on Friday.
The Chairperson said the Committee would continue to process the Bill and invited Legal Services to go through the A-List.
Consideration of the A-List
Clause 11: Declaration of Protected Agricultural Areas
The amendments are as follows:
- On page 10, in line 43, after "Gazette" to insert "and other media".
- On page 11, in line 3, after "food" to insert "and other agricultural"
- On page 11, in line 4, after "Gazette" to insert "and other media".
Clause 12: Procedure to declare protected agricultural areas
The amendments are as follows:
- On page 11, in line 17, after "Gazette" to insert ", other media"
- On page 11, in line 32, after "Gazette" to insert "and other media".
Clause 13: Review, withdrawal and amendment of protected agricultural areas
The amendments are as follows:
- On page 11, in line 43, after "Gazette" to insert "and other media".
Clause 16: Listing of activity and agricultural area
The amendments are as follows:
- On page 13, in line 2, after "Gazette" to insert "and other media".
Clause 17: Procedure for listing an activity and agricultural area
The amendments are as follows:
- On page 13, in line 25, after "Gazette" to insert "and other media".
See A-List attached
Mr Masipa raised a point of order and said that Ms Zenani’s presentation was too fast. He asked her to slow down.
The Chairperson asked the Committee for further input and told Ms Zenani to take the Committee clause by clause.
Ms Zenani apologised and said she assumed she would be presenting the changes made to the last presented A-List. She said she was reading the consequential amendments from the last sitting.
The Chairperson thanked Ms Zenani and asked if the Committee had opinions on the clauses that had just been presented.
Mr Masipa asked to start with the first clause that was presented.
The Chairperson asked if Mr Masipa wanted to make an input.
Mr Masipa asked to return to the first clause of the A-List which dealt with the land owner definition. He noted that clause 1 spoke about persons or the community and said that the Committee had discussed the issue of juristic persons and he wanted to know whether “juristic persons” would be included too.
The Chairperson did not want a dialogue between Ms Zenani and Mr Masipa about the issue, as it was clarified in last week’s meeting. He said Mr Masipa had asked this question last week and it was answered.
Mr Masipa thought his issue would be considered.
The Chairperson said the matter was addressed last week. He remembered it well; clarification was given regarding what “person” and “community” meant. He said that it could not be that Mr Masipa was asking the same question that had been addressed.
Mr Masipa said perhaps he had not been loud enough about the fact that he did not agree and noted that his objections to the response to his issue had not been made clear.
The Chairperson asked Legal Services to proceed.
Ms Zenani proceeded with her reading of the amendments in the A-List.
Clause 6: Preparation of provincial agricultural sector plans
The amendments are as follows:
- On page 9, in line 32, after "Gazette" to insert "and other media".
Clauses 13 (Review, withdrawal and amendment of protected agricultural areas), 16 (Listing of activity and agricultural area), 17 (Procedure for listing an activity and agricultural area)
The amendments are listed above.
Clause 20: Consideration of application by competent authority
The amendments are as follows:
- On page 14, from line 38, to omit subsection (2) and to substitute the following subsection:
"(2)(a) The competent authority must consider an application for an agroecosystem authorisation and provide the applicant with a decision in respect of such application within 30 days of receipt of the application, or within a reasonable time as may be prescribed for certain specified agroecosystem authorisations and must, in the case of a refusal, provide written reasons for such refusal.
(b) The competent authority must keep and maintain a written record of all applications submitted for agroecosystem authorisations and the reasons for his or her decisions in respect of such applications.".
Clause 21: Establishment of committees
The amendments are as follows:
- On page 15, in line 8, after "Gazette" to insert ", other media".
- On page 15, in line 31, to omit "or ".
- On page 15, in line 33, to omit "." and to substitute "; or".
- On page 15, after line 33, to add the following paragraph:
"(g) is disqualified from serving as a director of a company in terms of section 69 of the Companies Act, 2008 (Act No. 71 of 2008)."
Clause 26: Content of national agro-eco information system
The amendments are as follows:
- On page 17, from line 14, to omit sub-paragraph (ii) and to substitute the following sub-paragraph:
"(ii) subject to the provisions of the Protection of Personal Information Act, 2013 (Act No. 4 of 2013), information on the land owner and land user and where such land owner or land user is a natural person, the nationality and gender of such land owner or land user; and".
Clause 31: Compliance inspections
The amendments are as follows:
- On page 18, in line 55, to omit "previous" and substitute "prior".
Clause 35: Regulations
- On page 21, in line 8, after "authorisations" to insert ", including the reasonable time within which a competent authority may consider and respond to applications for certain specified agroecosystem authorisations".
Ms Zenani said the amendment to Clause 35 addressed the proposed amendment in Clause 15(2) which was incorporated in Clause 20.
See A-List attached
The Chairperson asked if the Committee had questions or comments related to the presented A-List.
Mr Masipa said there was a list of areas that had been excluded and this had been discussed and the Department agreed, the Committee had also not objected. He asked why these areas were not considered and if Legal Services could take the Committee through the excluded areas. This was so the Committee could understand the rationale behind the exclusion of comments that DALRRD and the Committee accepted.
He said the Committee went through the process to ensure that the public’s inputs and the inputs that entailed significant changes to the Bill were considered in drafting the A-List before the Committee proceeded to the Bill.
Ms Mahlo said the amendments presented in terms of the A-List captured most of what the Committee asked to be included. She said the Committee was going to be happy with the inclusion of ‘other media’ regarding dealing with the issue of communication as this had been suggested.
The Chairperson said in terms of processing legislation and as part of public participation, the Committee had the duty to consider submissions from stakeholders. He said the Committee had been reminded that the Department had made concessions for some of the inputs from stakeholders. This included the Department agreeing to the amendments not reflected in the drafted A-List.
He said he had noticed in the final A-List that the proposal by stakeholders for notices to be published in other media aside from the gazette was included in the relevant clauses, however, other proposals were still not included. The Chairperson asked if there was a specific reason for Legal Services’ exclusion of the other proposals from stakeholders, as highlighted in the last meeting. This question was the exception of Clause 31(1)(a) which most of the Committee emphasised should remain the same.
He stated that the Committee did not oppose the other specific proposals from stakeholders and the concessions from the DALRRD. He listed the clauses related to the specific proposals the Department made concessions for, that were not included in the A-List. The mentioned clauses were 15(4)(f), 15(5), 20(1)(i), 20(1)(a) and (v), 21, 22 and 31(1)(3). The Chairperson asked Legal Services to respond to the questions posed.
Responses from the Parliamentary Legal Services and OCSLA
Mr Njikela said Legal Services was concerned that there had been deliberations on certain issues. This was because Legal Services had some differences in terms of the Committee’s specific resolutions on the amendments that were excluded. He said Legal Services believed that it had captured the specific resolutions from the Committee but was subject to correction.
He asked the OCSLA to indicate if Parliamentary Legal Services had missed something.
Adv van Breda agreed with Mr Njikela. He said the A-List reflected the Committee’s resolutions. This issue was discussed last week when the Content Adviser raised certain stakeholder proposals from the public hearings. He mentioned that the said proposals were discussed during the deliberations, and the concessions the DALRRD made were not concessions the Committee made during the clause-by-clause process.
He highlighted that the initial A-List reflected what most of the Committee conceded on, and the presented amended A-List included consequential amendments to the initial A-List. This included the Committee’s indication that notices should be published in other media not just the gazette. He said Legal Services, therefore, made the consequential amendments to the clauses related to publication in the gazette.
He mentioned that the only amendment reflected was the one related to publication in other media outside of the gazette, and he agreed with Mr Njikela but was open to correction.
The Chairperson asked if the Committee had further comments.
Mr Masipa said that a submission was made during the last A-List deliberation to ensure that the points the DALRRD did not accept were captured in terms of the support for them. He said the submissions consisted of quite a few points that were rejected by most of the Committee.
He mentioned that the submissions on things such as authorisation for the inspection of farms were made but the submissions that were accepted and noted by the Committee were sent to the legal advisers. The submissions sent to legal advisers were those that were accepted and not rejected by the Committee. He said the Committee would have deliberated on the submissions that the DALRDD had conceded on and the Committee had rejected.
He stated that Clause 11(2)(b) was reflected on, which was clear and understandable. The Committee understood that in terms of this clause, the definition of food production would limit other agricultural processes that took place on farms. He said the Committee had indicated this had to be included in the A-List but it had not been included.
He commented that the suggestion to include juristic persons such as trusts and legal entities had been rejected, but it was important in drafting the A-List that all inputs were considered. All inputs accepted by the DALRRD needed to be considered in the A-List. He said this was so that it could be reflected that the Committee did not object to the items the DALRRD accepted.
Mr Masipa said he would understand the argument if this was about the inputs the Committee had objected to.
The Chairperson pointed out that the processing of legislation was a continuous process and that the Committee did not always repeat discussions that were made. He said the Committee relied on Legal Services to use its prerogative where there were no conflicting issues. For example, the Committee did not deliberate on the issue of notices but it was still included in the A-List where other issues were not.
He asked if the Committee was comfortable with amendments not being included in the PDAL Bill despite the DALRRD agreeing with these amendments. He inquired if Legal Services should effect the straightforward amendments that seek to strengthen or simplify the Bill in the final A-list. If so, the Chairperson said Legal Services needs to effect these changes no later than 22 November 2023. He asked the Committee for input.
Mr Masipa said he perhaps missed parts of the Chairperson’s comment but he was in full support of the request for an updated A-List to be sent to the Committee the following day, no later than close of business.
The Chairperson said if there were no further inputs, the Committee would like to request the final A-List be sent through.
Mr Njikela asked the Committee Secretariat to meet with the OCSLA and Parliamentary Legal Services after the conclusion of the meeting. This was so that there could be a discussion on how the legal advisers could proceed so the deadline could be met.
The Chairperson said Mr Njikela’s request was in order. He said that during the requested engagement, perhaps the legal advisers could take note of the definition of land owner and revert to the Committee if the utilisation of a juristic person made a major difference. He indicated that this brought the deliberations to an end. The Committee would now proceed to the adoption of outstanding minutes.
Adoption of Minutes
The Chairperson asked the Committee Secretary to share the minutes from 3 November 2023 on the screen, and he went through them. He asked for a motion for the adoption of the minutes.
Ms Mahlo motioned to adopt the minutes and Mr Capa seconded the motion.
The Chairperson asked if there were matters arising from the minutes and with no matters arising, the minutes were duly adopted.
He then went through the minutes from 7 November 2023.
Mr Capa asked for clarity purposes if Members of the Committee were allowed to raise a view as part of the collective political party they belonged to. For example, Mr Masipa raised a view stating as “the members of the DA”, he asked if this was allowed and said his question was simply for clarification purposes.
The Chairperson said these were minutes and Mr Masipa tabled a statement. He expressed that he was unsure of how Mr Capa wanted this to be captured in the minutes.
Mr Capa said he would raise this as part of matters arising.
The Chairperson said these were the minutes and the minutes had to be a true reflection of the meeting. He continued going through the minutes and asked for a motion to adopt the minutes from 7 November 2023.
Ms Mbabama motioned to adopt the minutes and Mr Capa seconded the motion.
The Chairperson asked if there were matters arising from the minutes.
Mr Capa said his issue was on page 2 and that he wanted to know if Members of the Committee were allowed to raise issues on behalf of the other Committee Members for their political party.
The Chairperson said he believed that Mr Masipa, when tabling his statement, did state that it was his and his other party members' view. He asked Mr Masipa to clarify if this was his view or the DA party members.
Ms Mbabama said she had discussed this with Mr Masipa and it was her and his view as DA party members.
The Chairperson thanked Ms Mbabama for the clarification and said to Mr Capa that Mr Masipa’s view was the DA’s position and he was not only speaking for himself but on behalf of the DA party members.
Ms Mahlo understood Mr Capa's concerns because Committee Members had never stated positions as members of specific political parties. She thought as the Committee of Parliament, Members needed to come together and not be segregated along the political party lines. She stated that she had never seen minutes that reflected a Committee Member’s position as being on behalf of the ANC. She said it seemed as though the Committee was starting to work in silos and asked if the legal advisers could assist on the matter.
The Chairperson said the Committee did not need to ask for Legal Services as the Committee Secretariat was present and could assist with the procedure. He asked the Committee Secretary to provide clarification on the matter about Mr Masipa's statement on behalf of the DA party members.
The Committee Secretary said the minutes reflected what took place in the meeting. She said unfortunately, she was not part of the meeting but what was written in the minutes reflected what had transpired. This meant that if the statement was said on behalf of the DA party members, it was correct to capture it as such.
The Chairperson said he shared the same understanding as the Committee Secretary, therefore, the statement captured was true to what transpired in the meeting as the minutes reflected what happened. He said Ms Mbabama also reemphasised that the statement was indeed on behalf of the DA party members and not just Mr Masipa.
Ms Mbabama said these concerns should have been raised at the time Mr Masipa made the statement because these were the minutes and the minutes could not be changed.
The Chairperson said it was clear that no one was suggesting that the minutes be changed and that the Committee was just raising their concerns. Ms Mbabama however, had reassured the Committee that the position was the DA’s position and therefore, this matter was settled. The Chairperson asked if there were other matters arising.
Mr Capa thanked the Chairperson for the clarification on his issue and said that his question was not intended to suggest the changing of the minutes but was for clarification purposes. He said if he had made a statement on behalf of the ANC, Mr Masipa would have objected and noted that this was a matter for the study group. Mr Capa was clear on the fact that the DA party members had caucused on the matter beforehand.
The Chairperson asked if there were other matters arising and with no matters arising, the minutes from 7 November 2023 were duly adopted.
The Chairperson went through the minutes from 14 November 2023 and asked for a motion for the adoption of the minutes.
Ms Mahlo motioned for the adoption of the minutes and Mr Capa seconded the motion.
The Chairperson asked if there were matters arising from the minutes, and with no matters arising, the minutes were duly adopted.
Closing remarks from the Chairperson
The Chairperson said the Committee had concluded with its programme for the day and thanked the Committee for their attendance. He also thanked the executive and department officials from the DALRRD, the legal advisers from Parliamentary Legal Services, and the OCSLA. He extended thanks to the media, all those in attendance, and the Committee’s staff.
He reminded the Committee that there was a plenary meeting at 2 pm and said that Members were expected to be seated at 2 pm and those joining online needed to join the meeting timeously. He wished the Committee well and noted that Legal Services would remain on the platform to discuss the submission of the final A-List.
[The meeting was adjourned.]
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