ULTRA Bill: Legal Opinion, Motion of desirability and way forward

Meeting report

ULTRA Bill: Background and context
Mr Nathi Mjenxane, Parliamentary Legal Advisor, started off by providing a constitutional context to the work undertaken by the Portfolio Committee on the amendment of the Upgrading of Land Tenure Rights Act (ULTRA) Bill, as well as the background of the Bill.

He said there were two Constitutional Court decisions that had necessitated the amendment of the ULTRA Bill. The first one was the Rahube decision, which was given effect by Clauses 1, 2 and 3. Clause 4 of the Bill dealt with updating the statute book to reflect the Herbert/Senqu decision, and there was significant interest in the Clause, as it amended section 25A of the Bill to be applicable throughout South Africa. The significant public interest in Clause 4 was specifically on section 19 and 20 of the Bill, which dealt with the issue of insecure rights over land, or tenure security, particularly in communal areas. This was because of the lack of clarity of the law in terms of the administration of land in communal areas. The Department of Agriculture and Rural Development had clarified that there was an impending Communal Land Rights Bill which would be introduced in Parliament, relating to the administration of land in communal areas. When introduced, the Bill would amend sections 19 and 20 of the ULTRA Bill to provide extensive and substantive rules in relation to the administration of land and tenure security in communal areas.

Mr Mjenxane advised that there was a court-imposed calendar on the passing of the legislation, and the passing needed to be done within the time limit that had been imposed, so the Committee needed to be guided by the time limit. Public interest may have a delaying effect, which may lead to non-compliance with the court-imposed deadline, which would not be in the best interest of justice. Given the significant public interest on issues of tenure security in communal areas, it would be in the interest of the Portfolio Committee to exclude such matters from the amendment process and focus on updating the Bill to reflect the Constitutional decision in the current round of amendment. All the matters of public interest in section 19 and 20 would need to be postponed to when the Bill was introduced by the Department. The public would not be unprotected in the meantime because Interim Protection of Informal Land Rights Act (IPIRLA) was national legislation which, in the interim, protected the rights of people who had insecure tenure rights over land.

Discussion

Ms M Tlhape (ANC) said that the legal advice was in line with what had been said at a previous meeting, summarising the report from the Content Advisors. She found comfort in the advice that had been given, in that there was no way that there could have been a case of “tick boxes,” as the Committee had done what was reasonable within the constraints and regulations of COVID-19. The public had made an outcry about tenure insecurity during the public hearings, and the Committee would inform them that the issue would be taken care of by the Bill from the Department. The remaining question would always be, what would happen in the meantime. It was comforting to hear that IPIRLA would take care of the insecurity around land tenure rights. She agreed with the legal advice provided by Mr Mjenxane, as similar advice had been given by the Content Advisor at the previous meeting.

Ms N Mahlo (ANC) wanted to know whether the legal advisor would agree that the ULTRA Bill would still need to be amended accordingly, or if his expectation was that the legislature would need to overlook the Senqu judgments and focus only on what the court had ordered Parliament to do to rectify the Act.

Ms A Steyn (DA) said that it was clear what the Portfolio Committee needed to do with the Rahube judgment, but her concern was focused on the Senqu judgment and whether or not it would be a setback for the people. It seemed as if they were awaiting the Communal Land Rights Act (CLARA) to fix problems in communal areas. She wanted to know what the effect would be if they ignored the section 19 and 20 that the Department wanted them to include. She was concerned that the Portfolio Committee was pinning its hopes quite high on the Department to pass the CLARA Act soon, and that this would still leave people insecure. The Committee seemed to be making different pieces of law for people living in different areas of the country, like pre-1994.

Mr M Montwedi (EFF) said that the constitution was the supreme law of the Republic of South Africa, and that sections 25, 6 and 9 of the constitution made it an obligation that Parliament had to pass comprehensive tenure legislation. He insisted that the Committee needed to have a deadline, because the experience from the legacy report was that the Department had difficulty in bringing the legislation to Parliament. He proposed that the Department be given until 31 March next year to submit the Communal Land Tenure Bill to Parliament to deal with tenure issues.

Ms B Tshwete (ANC) agreed with Mr Montwedi that the Department should be given a deadline to deal with communal rights issues.

Mr N Capa (ANC) said that the extensive information provided in the inputs from the stakeholders in the public participation process had helped pave the way for the Committee and the Department to understand the urgency of the other legislation. The issue of Senqu should be dealt with as quickly as possible, and the Department should make enough publicity so that all the people who had concerns about sections 19 and 20 were aware that there was another way of dealing with the legislation.

Inkosi R Cebekhulu (IFP) wanted to get the view of the legal advisors with regard to municipalities extending their boundaries into land under the administration of traditional leaders, taking into account the Spatial Planning and Land Use Management Act (SPLUMA), which allowed municipalities to extend their operations to rural communities. He wanted to know the legal advisors’ advice on linking the tribal land or communal land to the tribes.

Ms T Mbabama (DA) asked if the Portfolio Committee would still be in compliance with the Constitutional Court order if they focused on updating the statute book and postponed the amendment of Sections 19 and 20 in the hope that CLARA would be on time. This was a concern to her, knowing the track record of the Department. She also wanted to know whether the Committee would be able to go out and speak to the public about the amendment of the Act, as the country was still at Level One of the lockdown.

Ms K Mahlatsi (ANC) said that the issue that took the Committee to the public was related to the court order, and they should therefore stick to this issue. There were numerous other issues that had come to light throughout the public hearings which were not limited to the issues had been were referred to by Ms Mbabama. Those issues should not necessarily be dwelt on too much, besides what had been referred to the Committee through the court order. If the legal advisors had spoken about all those issues and given a clear report on them, the meeting would have taken the entire day. She requested that the meeting should focus only on the issues relating to the court order.

Mr N Masipa (DA) said an issue had been raised with regard to the bill being published for public comment before it was introduced in Parliament, in accordance with normal practice and in terms of section 154. He was concerned that the area might pose a constitutional challenge for the Committee, and asked the legal advisor to provide advice with regard to the issue.

Legal advisor’s response

Mr Mjenxane said that the issue of land tenure insecurity -- as provided for in sections 25, 6 and 9 of the Constitution -- could never be properly and extensively dealt with by the inclusion of sections 19 and 20 in ULTRA. The two sections were not in themselves adequate enough to regulate the contentious area of insecure rights to land, particularly in communal areas. There had to be extensive rules which regulated the issue and to that extent, the Department had considered and said it was in the process of developing a Bill which would extensively regulate this area of insecure rights to land in communal areas.

The Committee had the constitutional power to oversee and hold to account the executive Department and to ensure that what was promised to it by the Department was in fact delivered. That may also include the Committee indicating a particular deadline by which it would like to see the Department to bring the Bill, to regulate the particular contentious area. Parliament had the legislative authority to make legislation, through either an existing Bill produced by the Department, a Committee Bill, or a private Member’s Bill.

The issue of public participation which must be conducted in Parliament in the passing of the legislation did not end with the Committee, as this was a section 76 Bill which was also going to go to the National Council of Provinces (NCOP) for further consultation. as well as to the provincial legislatures. It was also within the powers of the Committee to make the Department provide periodic updates on the progress made in bringing the needed Bill. The Committee had received extensive information on matters related to insecure rights to land, and all of that information would inform its work in the process of the technical amendments, as well as any other features which the Committee considered, whether it was work coming from within the Committee or the executive.

The Senqu decision in relation to section 3, 25A, had been made as far back as 2018, and the law as it stood stipulated that as from the date of the order, section 25A of ULTRA should be read as if it made no reference to Section 3. So 25A was the one that suspended the application of sections 3, 19 and 20. Legal advisors in Parliament could pronounce only on the process that must be undertaken by the Committee and when the Bill was referred to Parliament, so the issue of a constitutional obligation to facilitate public involvement was the process it should follow with Parliament after the Bill had been referred to Parliament. The reasonable assumption was that when the Bill was referred to Parliament, the Department had observed all of the legal obligations that it had to discharge before introducing the legislation. However, the legal advisors could not say for certain that the Department could not be challenged for not discharging what it should have -- if indeed, it did not. The legal advisors could pronounce on the extent to which Parliament must observe its duty in section 59 to facilitate public involvement in its legislation-making process.

SPLUMA was the national legislation which set out the powers that had to apply to municipalities, as it related to land use and planning in the areas within their territories. There were laws which governed the powers of traditional leaders and how they must administer land within their jurisdictions. There was definitely an overlap and a need for harmonisation of legislation where there was this kind of overlap. This was not a matter that could be properly administered or managed under this amendment process, as it was a matter of alignment which could best be dealt with in the promised legislation, which would be extensive if it related to the administration of land in traditional areas. Through the ULTRA, the Committee would not be able to determine where the delineation should be between that which was governed by the SPLUMA, as well as what should pertain to traditional jurisdiction over communal land.

Motion of Desirability on processing ULTRA Bill

Ms Albertina Kakaza, Committee Secretary, read the Motion of Desirability on processing the ULTRA Bill [B6-2020] as follows:

The Portfolio Committee on Agriculture, Land reform & Rural Development, having received the Upgrading of Land Tenure Rights Amendment Bill [B6-2020] for consideration and reporting, comply with the National Assembly rules: 9th edition Rule 286. The rule reads as follows:

• If a Bill has been published for public comments in terms of Rule 276 or 259, the Assembly Committee to which the Bill is referred must give interested persons and institutions an opportunity to comment on the Bill.
• If a Bill has not been published for public comment and the Committee to which the Bill is referred considered public comment on the Bill to be necessary, it may, by way of invitation, press statements, advertisements or in any other manner, invite the public to comment on the Bill.
• Rule 284 subsection 4 reads as follows: After due deliberation, the Committee must consider a Motion of Desirability on the subject matter of the Bill and if rejected, must immediately table the Bill and its report on the Bill. If the Motion of Desirability is adopted, the Committee must proceed to deliberate on the details of the legislation.

Discussion on way forward

Ms Tlhape was comfortable that the process would be taken forward, based on the Committee’s needs and its quest to comply with the court order. The court had initially given the Department 18 months, and upon the Committee’s request, they were afforded an extension. As complex as the matters were, the Committee had been able to rise to the occasion in complying with the court order. She suggested that the Committee move forward, and that all other issues on other sections that the public had raised for the Committee, should be considered as separate processes. The Committee must comply with the technical amendment that had been requested, and go back to Parliament to push the Bill forward so that they could deal with the other matters urgently. The Department should first brief the Committee on the progress they had made thus far in order for it to know that the other issues would be captured in the CLARA Bill before it was concluded.

Ms Steyn said that the Democratic Alliance would not support that the motion proceed on the day, as the party was negotiating its position on the matter and would be able to provide its position only on the coming Thursday. The party’s concern was that the legislation was being handled in a haphazard fashion and that not all members of the community were being given an equal opportunity as part of the process of the Bill.

The Chairperson said that the next meeting on the coming Friday would also be discussing the ULTRA Bill, and that the Committee would like to hear the DA’s position on the matter.  

Mr Capa supported the idea of moving forward, taking into consideration all the inputs and advice and examinations that the Committee had gone through.

Mr Montwedi was uncomfortable with Ms Tlhape’s suggestion, and wanted to know why it was a problem to put a timeline on when the CLARA Bill would be passed. The suggestion of the deadline of 31 March 2021 would prove if there was indeed a commitment from the Department to pass the Bill. He would be able to provide the EFF’s position on the matter after consultation with his party commissar on land.

Mr Masipa was concerned about the piecemeal approach, as well as the executive’s procedural and task execution. The Committee might face constitutional challenges going forward, and that was the area that the Committee and the Department needed to deal with.

Ms Mahlatsi thought it was prudent to take cognisance of the issues relating to the Court order, and the Committee had ample time to consult extensively from different political parties to ensure that they processed and proceeded swiftly to put forward the interests of the people of South Africa. She urged the Committee that they ought to conclude the issue precisely because there was a timeline attached to the issue at hand. She aligned with Ms Tlhaphe’s point that the matter had been brought forward and discussed, and should have been concluded. There would still be more time to discuss the other issues.

Ms Tshwete shared the same sentiments as Ms Tlhape and Ms Mahlatsi -- to move forward in concluding the issue. She added that before they could set a deadline for the Department to implement the CLARA, the Committee would need to consult with the Department to get an idea of the progress they had made in the processing of the Bill.

Inkosi Cebekhulu agreed with moving forward on the matter, as the Committee would not be able to put all the issues into one basket at once and push forward without looking into the challenges individually.

Mr S Matiase (EFF) said that the Committee should avoid applying reactive methods, and asserted that the discussions were completely inconsistent with what it was trying to achieve. The EFF felt that the Committee had no sense of what it wanted to do, and was going back and forth with no clarity. The EFF found it difficult to agree on proceeding with the Motion of Desirability on the Bill, and called for a comprehensive, inclusive and coherent Bill that would address land rights management aspects in the country to ensure that it would meet the aspirations and interests of the citizens of the country.

The Chairperson said that the Committee had done all the necessary work to ensure that South Africans were able to participate, and had managed to navigate through the public hearings during the COVID-19 regulations and challenging times. It needed to be able to separate the issues -- for example, what was asked by the Courts and the issues that had to do with communal land rights. The other issues that had been discussed could be dealt with at the meeting on the coming Friday, as a majority of the Committee Members had supported moving forward with the Motion of Desirability. The parties who needed more time to deliberate on the Motion of Desirability would be allowed to do so, and provide their positions during the meeting on Friday.

The Chairperson asked for a seconder for the discussion of the Motion of Desirability on Friday.

Ms Tlhape and Ms Steyn seconded the parking of the motion of desirability for Friday’s meeting.

Consideration of minutes deferred

The Chairperson asked that the Portfolio Committee use the remaining minutes of the meeting for consideration and adoption of Minutes from the previous term of Parliament, starting with minutes dated 26 June 2020.

Ms Mahlatsi suggested that the minutes also be dealt with on the coming Friday, as most of the Members had received them on the morning of the meeting and had not had a chance to review them.

Ms Tlhape said that Ms Mahlatsi’s request was valid, and added that there were minutes that had been sent to the Members on 3 September, but she was not sure if the minutes at hand were different from those.

Ms Steyn did not have a problem with the minutes being received before the closure of the previous term, but had an issue with the fact that the Members did not know that the minutes would be considered and adopted at the meeting.

Mr Capa agreed with Ms Mahlatsi that the minutes should be dealt with on Friday. He also noted that Ms Tlhape was correct, as the minutes had been received before the end of term.

The Chairperson agreed that the minutes would be considered at the Friday meeting after the business of the day was concluded.

The meeting was adjourned.