CRL Briefing: Progress towards Settlement and Finalisation of Old Order Claims, including Reports Submitted to the Land Claims Court; Implementation of Project Kuyasa; with Deputy Minister

Meeting report

Opening Remarks by the Chairperson

The Chairperson asked if there were any apologies.

Apologies were noted by and Ms T Mbabama (DA), Ms Thoko Didiza, Minister of Agriculture, Land Reform and Rural Development, and Deputy Minister Zoleka Capa.

The Committee Secretary read apologies from Mr N Masipa (DA), who was not present due to having to attend a class.

The Chairperson said that Mr Masipa was a “school child”. He welcomed everyone in attendance, and indicated that there were two items on the agenda of the meeting. The first was looking at the progress made in settling and finalising old-order land claims, which were the pre-December 1998 land claims. The second agenda item was a status report on the implementation of Kuyusa.

The Chairperson invited Ms Nomfundo Ntloko-Gobodo, the Chief Land Claims Commissioner at the Commission on Restitution of Land Rights, to proceed with her presentation.

Presentation by the Commission on Restitution of Land Rights
Ms Ntloko-Gobodo thanked the Chairperson and the Committee for the opportunity to present. She said that today, she would be giving a presentation with Ms Cindy Beyane, Acting Deputy Land Claims Commissioner. She was also accompanied by the Regional Land Claims Commissioner, Mr Lebjane Maphutha, and other members of the Commission.

Ms Ntloko-Gobodo indicated that cosmetic changes were made to the presentation but there were no content changes. She said that copies of the updated version had been sent. She proceeded with her presentation.

Old-Order Claims, Lamosa Reports to Land Claims Court and Kuyasa Reports

Cumulative Claims Settled and Finalised from 1995 to 31 March 2023:
- Total number of claims = 82976
- Land cost = R25 537 486 215.16
- Total awards = R53 246 619 048.12

Cumulative Settled Claims since Inception to 30 September 2022:
- All claims settled since inception up to 30 September 2022, which totals over 82 000 claims and more than 450 000 households;
- In terms of awards to claimants, which is either financial or land compensation, the ratio is more or less 50:50 between Financial Compensation (totalling R20 billion) and Land compensation (totalling R24 billion), indicating that the Restitution Programme has and is still meeting its objectives;
- Land compensation further equates to 3.86 million hectares that have been restored.

Land Claims Court Report – 24 January 2024:

Outline of the Seventh Report and Presentation
The Commission submitted its seventh Lamosa report to the Land Claims Court (LCC) on 24 January 2023. The outline of the report submitted is as follows:
- Timeline of Restitution
- Business Process
- Kuyasa Project
- Policy
- Challenges and Remedies
- Outstanding Claims
- Legal Matters

This presentation to the Acting Judge President focuses on statistical information on the number of claims settled and still outstanding; referrals to the LCC, and key issues and challenges.

Statistical Information on Outstanding Settlement of Land Claims

Outstanding Claims @ 30 November 2022:
- KwaZulu-Natal (KZN), Limpopo and Mpumalanga still have the highest number of outstanding claims. KZN has the largest number at 2 095, followed by Mpumalanga with 1 565 and Limpopo with 1 335. These claims are mostly rural in nature and large claims comprising many property parcels and large number of claimants.
- Eastern Cape has a high number of financial compensation claims which have historic backlog payments that are outstanding but are receiving attention.
- Western Cape has several outstanding registered rights and Urban Tenancy Claims, mostly located in the City of Cape Town.
- Free State has five outstanding claims. Of those, three are in the Land Claims Court.
- Gauteng has outstanding rural Labour Tenancy Claims and large Urban Claims that were partially settled, e.g., Alexandra.
- North West has few outstanding claims but each of these outstanding claims has large extend of hectares under claim, which has resulted in the province settling the claim in phases.
- The settlement of claims does not consider the issue of finalisation of some of these claims, including the provision of Post Settlement Support.

Progress on Provincial Referral Targets for Financial Year 2022/2023
It is regretted that the Commission might not be able to refer all the targeted number of claims due to the following reasons:
Legal Aid SA:
Since Legal Aid has taken over the LRMF (Jan 2022), the Commission has been slow with appointing legal representatives for claimants. Secondly, the panellists who were having ongoing matters in court have been having difficulties with LASA tariffs, if not payment turnaround time, to such an extent that some of their mandates were either terminated for lack of accreditation or have withdrawn from being attorneys of record for claimants.

State Attorney:
- State Attorney delays in the appointment of counsel to draft Notice of referrals: The New policy which requires that they comply with their three quotation system requirements, which then prolongs the timeframe – including that of appointing counsel to draft court papers with timeframes.
- Capacity constraints within the offices of the State Attorney. For example, the Pretoria State Attorney is currently allocated to support Gauteng, Limpopo, Mpumalanga, and North West cases.
- All the other attorneys in the offices of the state attorneys in the North West and sometime Pretoria are not confident or competent enough and end reverting the files back to Mr Sipho Mathebula of the Pretoria office.

Business Case, Interim Structure & Audit Reports:
- Concerning the Autonomy of the Commission, a business case was developed which provides a detailed analysis; determination for the Commission to be a Schedule 3A entity.
- A long-term Structure linked to the proposed schedule 3(A) has also been developed and can only be processed with the adoption of the proposed Amendment Bill and the Business Case.
- It is worth noting that the Commission received unqualified Audit during the period but will continue to work on issues highlighted by the Auditor-General.

Additional Challenges and Constraints:
- As part of the Accelerated Research Strategy, preliminary research, as per Rule 3 of the Restitution Rules, is targeted to be completed as a critical key area in our Backlog Reduction Strategy which will allow the finalised at the end of 2022/23 financial year. But indication is that not all research will be completed with approximately nine-percent variance.
- The rejection of offers on valuations made by the Office of the Valuer-General (OVG) is a serious challenge, with approximately R85 million in offers rejected by landowners and R16m of offers referred to the Land Claims Court for determination.
- Valuations of the claimed land in line with the Property Management Act of 2014 remain challenging for the Commission.

New-Order Claims:
- The Commission may not, without the upliftment of the interdict, process new order claims in any manner whatsoever as per Lamosa Judgements.
- The Commission has submitted a proposed Strategy to the Minister for consideration on how we could possibly deal with New Order Claims.
- This would also need further engagement with Cabinet for further guidance and endorsement on the agreed way forward.
- As part of the Project Kuyasa, the Commission has prepared a technical process for processing the new order claims.

Financial Implications:
- The current allocated budget is insufficient to impact the goal to accelerate settling of outstanding old land claims.
- The Commission would need an overall budget estimate at R68 billion over an accelerated period of five years.
- At the current budget allocation and settlement rate, the Commission will need approximately 30 years to settle claims at a cost of R172 billion.

Conclusion:
- This Seventh Lamosa report has shown that the Commission is making steady progress in settling land claims. The current performance indicates that the Commission is committed to finalising and settling land claims as a priority.
- The performance under review further demonstrates that the Kuyasa Project has made huge strides in streamlining the business of the Commission with the view of finalising land claims in as short as possible period.
- However, as discussed under constraints and challenges, the shortage of allocation of funding by Treasury remains a challenge, as the predicted budget needed to settle and finalise outstanding claims will not be sufficient. The delay in approval and go-ahead to transition the Commission to autonomy also affects the business of the Commission. External challenges also hamper the settling and finalisation of claims, and external factors such as land invasions and multiple overlapping rights and competing claims need to be taken into consideration before claims can be settled and finalised.
- Despite these challenges, the Commission is on track to settle and finalise 336 and 372 claims, respectively, by the end of March 2023.

Progress on Project Kuyasa
Stakeholder Consultation: Business Case

Progress on the Business case is as follows:
- the Minister has approved Business Case for further consultation.
- Submission was made to DPSA and National Treasury for further consultation.
- Feedback has been received from DPSA regarding the Business case and has been incorporated into the Business case.
- No feedback has been received from National Treasury. However, reminders have been made through the DG’s Office.
- Legislative amendment of the Restitution Act is currently ongoing.

Kuyasa Progress per Work-Stream
- Backlog Reduction Strategy = All deliverables were completed.
- Business Process Improvement = All deliverables were completed.
- Change Management and Communication = All deliverables were completed.
- People Management = All deliverables were completed.
- Organisational Form = All deliverables were completed although, in terms of the updated organisational form report (after approvals), feedback was still needed from the National Treasury on the Business Case.
- Financial Models = All deliverables were completed.
- Settlement models = All deliverables were completed.

Progress on Research Strategy
National - All Types of Research:
- IOP (pure research) targets (Rule three & five) = 798
- Further research (Rule 5) = 551
- Untraceables = 50
- Phased research = 50
- Deferrals = four
- KUYASA = 1 702

[See attached for the detailed presentation]

Discussion
The Chairperson said that the Committee had now received the presentation on the remaining land claims from pre-1998 and the Kuyasa report. The Committee Members would now have the opportunity to pose their questions.

Ms M Thlape (ANC), on the last presentation that the special master gave, said that her confidence was low. Ms Thlape said that looking at the capacity of legal services and challenges within Legal Aid South Africa, she wanted to know if the Ministers from the Department of Agriculture, Land Reform and Rural Development were aware of the low uptake of legal appointments and activities. This was because, to her, this was just red tape that delayed the process. She said it was not working.

Ms Thlape’s connection was cut off.

The Chairperson said that Ms Thlape seemed to be at the House for the plenaries. He said an apology had been received from Ms T Mbabama (DA), and Mr H Kruger (DA) could therefore proceed with his questions and comments.

Mr Kruger apologised for his poor network and said it was due to loadshedding. He thanked the Chairperson for the opportunity and thanked the Commission on Restitution of Land Rights for their presentation. Mr Kruger said this was a work in progress, and he had a few questions. As a new Member of the Committee, his concerns could perhaps have been addressed before. So, he apologised for any repetition in advance.

Mr Kruger said that it was mentioned a few times that if they continued on the path they had been on for the past ten years or so, it would take the Commission on Restitution of Land Rights 30 years to finalise the claims. He also noted that a budget shortage was mentioned. He commented that the cost would be more or less the same if one were to look at what it would cost over 30 years, and if the process was hastened. He knew that the Minister was not present, but money was needed. He asked what the Department was doing to ensure that money was made available so that claims could be finalised within the next five years.

Mr Kruger referred to a slide from the presentation, which pertained to the usage of land and one of the stated uses was mixed-use. He asked what mixed-use was composed of and how it was compiled. He wanted more details on the mixed use of land. He congratulated the Commission for its unqualified audit because, at present, it was uncommon amongst government departments. This was laudable. Mr Kruger said that a proposed strategy was sent to the Minister of DALRRD, and asked that the Committee receive more details as to when they would get to see this strategy so Members could give their inputs on the strategy.

He also asked about District Six. How often is the Department communicating with the District Six beneficiaries, as there seemed to be a communication breakdown between the Department and the beneficiaries?

Mr Kruger said his last question pertained to something he was passionate about – red tape reform. He said that when talking about challenges in not only agriculture but across government, red tape came up as a stumbling block. Mr Kruger recounted that the President appointed in his office Mr Sipho Nkosi (Head of Red Tape Task Team) to reduce and reform red tape, but it seemed as though the problem of red tape was still persistent. Bureaucrats created red tape. From his side, he wanted to know what the Department would be doing about red tape, because it seemed as though, if the red tape could be removed or reformed in the South African government, many of these processes would be faster and the challenges would be sorted out over the next year or so. Mr Kruger said that reducing or putting a red tape reform strategy in place could not be difficult as many countries had done so in the past with much success. He wanted to know if the Department had suggestions on reducing red tape.

In terms of provinces where there was a problem with too many claimants, Mr N Capa (ANC) asked how far the Department had gotten with this problem, especially in Sipaqeni. The situation of poor representation of claimants seemed to be a challenge. Mr Capa wanted to know how far the Department was in resolving the challenge of poor representation. He said that a challenge indicated was that of Schedule 3A institutions, which made it a requirement that there should be first the amendment of this Bill. He wanted to know how the challenges were being addressed, given that the Bill was yet to be amended.

Mr Capa said he hoped his last question was not throwing anyone under the bus. He also noted that his question perhaps was limited to the Committee. Mr Capa wanted to know about the rejection of claims by land owners, saying that this could provoke a position where revoking Section 25 was needed if it was delaying the process.

Mr S Matiase (EFF) said that the more things changed, the more they stayed the same. The more they thought they were making a breakthrough, the more stuck they found themselves. What he was saying was in the context of the Committee’s recommendation to the Department to establish a Memorandum of Understanding (MoU) and service-level agreement (SLA) with Legal Aid South Africa to process disputes arising from land claims, unlawful evictions from farms, etc.

Mr Matiase said they had wrapped themselves in bureaucratic delays, excuses and all sorts of red tape. He asked what the Committee was being told today, and if there was any intention on the part of the people being paid handsomely to not only make easier the oversight work of the Committee but the lives of South Africans. He asked if there was any commitment on the part of the Department officials, the Minister and her two deputies. Mr Matiase asked why the Department was not cracking the whip.

He said the Committee could not sit back and say this was okay. He submitted that the Department was failing the people of South Africa and that the people in these senior positions had overstayed their tenure. Mr Matiase said that he was in Parliament in Cape Town and would have preferred that this meeting was in person, but he understood that the Chairperson had been abroad and perhaps now in transit.

The Chairperson said that he was in Cape Town.

Mr Matiase said that sense of what was being done needed to be made. If Legal Aid South Africa was not performing as desired, alternative mechanisms need to be found. An institution that could do the work needed to be found. The assumption was because, if Legal Aid South Africa was state-funded and a state institution, it would have the necessary capacity to assist with this matter. But this was not the case.

He asked if the Commission could come in a week with a breakdown of referred cases. He had referred cases to the Office of the Minister, where he got the sense that no headway was being made with these cases. Mr Matiase said that the feedback he had received from the complainants whose cases he had referred was disappointing.

He suggested that, in a week, Legal Aid South Africa and the Department should come before the Committee to provide details on the number of cases referred – resolved and outstanding. He also asked for details on when the outstanding cases would be resolved, and the specific regions. Mr Matiase wanted details on the total number of both old order and new order claims. There also needed to be a distinction between the claims related to land tenure, which were dealt with by the special master, and those about land restitution.

Mr Matiase wanted information on how much had been spent so far on the old order claims. He noted that the Department had said R45 billion had been spent. He said the cost breakdown of old-order claims needed to include details on each province and region. He said that the Department was now stating that, in addition to the R45 billion, the government might need to spend R172 billion over the next 30 to 40 years. Mr Matiase asked if this amount of money was worth what they were doing and what the Department thought of the R172 billion that needed to be spent on land reform and restitution.

He asked if the baseline for this amount of money was the willing-buyer-willing-seller policy arrangement. This policy had been abandoned by the ruling party, which stated that a more flexible and tangible policy needed to be found. Mr Matiase said that the R172 billion could not just be accepted because this amount was unreasonable and unfair. An investigation was needed to get to the bottom of the factors that influenced the Department to make such a projection so that the situation could be arrested. This was because the projection was a fiscal bloodbath and akin to throwing money down the draining. At some point, the Committee needed to say that this was unacceptable, and he trusted, with the leadership of the Chairperson, that the matter of R172 billion over the next 30 years would be resolved.

The Chairperson said this would only be resolved when political parties put their differences aside and expropriation of land without compensation was made a reality.

Ms B Tshwete (ANC) thanked the Chairperson and apologised for any noise as she was on her way to Parliament. She commended the Commission for its clean audit outcome. Ms Tshwete was concerned and disappointed, as there were not many strides made in terms of land claims. She would not lament this because the Committee had shared its feelings on this. She noted that the Commissioner mentioned that there were claims that were rejected by the sellers or farmers. She wanted more details on these rejected claims and how many farms or plots of land they involved. She said that this information was to get a sense of what they were dealing with because the ANC made it clear that the willing-buyer-willing-seller approach was phase one, and it was being accelerated.

She said that the Chairperson was correct that political parties need to stop speaking in slogans and walk the walk of implementation. Section 25 was put before the Committee, and the same people lamenting now were the ones who sadly rejected this section. This was now affecting people that were meant to be serviced. Ms Tshwete wanted more details on the cases where offers were rejected because the Commissioner mentioned that some farmers withdrew and came on board when cases were taken to court. She said that this gave her the sense that there was an element of delay tactics being deliberately solved.

Ms Tshwete proposed that the Office of the Valuer General (OVG), Legal Aid South Africa and the Commission appear before the Committee or that the Committee take a special look and monitor these three entities as they had the potential to delay the national perspective. She said that the rest of her questions would be written submissions due to background noise.

Ms T Mbabama (DA) said that she had just entered the meeting and was therefore not present for the presentation. She apologised and asked the Chairperson to excuse her for making comments.

Ms N Mahlo (ANC) greeted everyone and welcomed the good work done by the Commission in getting a clean audit. She was concerned and unhappy about things not moving in the manner envisioned by the Committee. Ms Mahlo noted that, in the presentation, it was mentioned that there were standard procedures in place. She said that perhaps these standard procedures and policies would assist in implementing the work that was not being implemented on time.

Ms Mahlo said that her question pertained to slide 51 of the presentation which dealt with the issue of research. She said that there were provinces which reflected zero in terms of all types of research in the presentation. She asked how this was possible in South Africa, where people were looking for land. She said that the Commission needed to tell them what was happening with the two provinces that reflected zeros, as she did not think this was proper. Ms Mahlo said this could not be the case when people were crying for land. At the end of the day, they would find that people were not being taken care of in other provinces.

Ms Mahlo said that her biggest concern was that the Committee had requested that the Commission provide information on how many plots of land and farms the government had. She supported the Committee’s statement that the Commission needed to tell the Committee how many old-order and new-order claims there were. This was important.

Ms Mahlo said that, when one went around the provinces, one would find that the Land Redistribution and Agricultural Development (LRAD) government-owned farms, which were distributed to communities, were not finalised. People were put on these farms but nothing had been finalised. She said that the Commission was not helping ensure these farms were given to communities. Ms Mahlo said that this information was needed so that what was happening with these farms was known. The Committee was finishing their term and still did not know how much land there was in their country. She asked if the Commission could provide these details so that there could be communication with South African people on how much land the government had to give to our people.

The Chairperson asked Ms T Breedt (FF+) to proceed.

Mr Kruger said that Ms Breedt was in the plenary for women.

Mr S Dlamini (ANC), having listened to the presentation made, said the challenges were made clear, and he agreed that there should be a discussion with the OVG, Commission and Legal Aid South Africa. This discussion was needed to understand how these entities had been doing their work and why certain challenges were being faced. Mr Dlamini noted and appreciated the comment that related to why Mr Nkosi was appointed to the Presidency to address long-ranging matters. Clarity on whether this appointment was successful was important, not just for the DALRRD but also for other departments. He commended the Commissioner on the report in general and said that it assisted in understanding where they were. He said that work needed to be done with the Commission to find solutions to the present problems, and he expressed that the Committee was not happy in some areas. Mr Dlamini also noted that the Commissioner also indicated areas of displeasure with the work being done.

Mr M Montwedi (EFF) thanked the Chairperson for the opportunity and wanted to find out from the Commission when all the old order claims would be finalised. He also asked if the Commission had quantified the costs needed to ensure the finalisation of old-order claims.

Mr Montwedi said that the last presentation that the Committee received from the Commission indicated that the Free State had finalised old order claims. In the last meeting, he had asked, now that the Free State had finalised old-order claims, if the province had started with their new-order claims, or if they had to wait until all the other provinces had finalised their old-order claims. He wanted a response to this question.

He said that it had been more than 300 years since people were dispossessed of their land, and he wanted to know if a new window would be opened for people who had lost their land 300 years ago. People were given 20 years or so to lodge their claims, and there were several communities that only today were finding out their roots. These communities wanted to approach the Commission to make large land claims. Mr Montwedi wanted to check what the status was in this regard.

Mr Montwedi noted that the Commissioner mentioned that there were rejection of offers in certain cases, and he expressed concern because some of these cases pertained to stolen land. He asked how someone could reject an offer of compensation for land that was not paid for. He wanted to check whether there were legal possibilities for the Department so that these people could be compelled to accept the reasonable offers for stolen land.

He said that he was interested in Section 42(c) of the Restitution of Land Rights Act 22 (1994), which dealt with funding for development. He wanted to know from the Commission, in terms of restitution or the Minister’s discretionary powers, how much went to beneficiaries. Mr Montwedi then asked about the 2022/2023 financial year – how much they reached out to beneficiaries and which provinces. This was because he had a problem with taking such funds and using, allocating and appropriating them under land and development support. It was possible for beneficiaries of restitution to not receive development funding.

He said that the number of officials in the Free State needed to be checked when looking at the presentation. Mr Montwedi agreed that there were no active claims in the Free State because the old order claims had been finalised. However, the numbers were low in the Northern Cape and North West. The Commission was being paid, but what were they doing given these low numbers? Were there people sitting in the office not doing anything?

Mr Montwedi expressed concern about untraceable claims and said the Department was not winning in terms of tracing these claims. He asked why there was no movement towards reaching out to all these beneficiaries.

His last question pertained to claims on state land. Mr Montwedi wanted to know what was happening with claims on state land such as the forestry national parks and military bases. He said that he was worried because models on how to finalise these claims were developed but nothing seemed to be happening.

The Chairperson asked if the Committee had any other concerns and comments.

Ms Thlape apologised for her glitch earlier. In terms of the presentation, she said that, from last week, with the special master and the issue of land acquisition, it remained a mirage for South Africans. It was here but could not be touched until drastic and deliberate actions were taken. Ms Thlape said that when a report like this was received, and in as much as the Commissioner was trying her best, the issue of the capacity of legal services was a bone in the flesh. The Commissioner rightfully pointed out that Legal Aid South Africa took so much to appoint legal representatives. She added that this was a decision made between the Ministers of Justice and DALRRD, and asked if these Ministers were aware of the snail's pace that was taken.

Ms Thlape said that bringing in Legal Aid South Africa was just more red tape, it seemed. And the Committee could not fold its arms as leaders of the two departments did nothing about the issue. She asked why they could not find a way to remove Legal Aid South Africa because, according to this report, they did not have the capacity, and even attorneys in the state sent files back to Pretoria. She said that the three-code system was not working. It took about six to eight months to appoint and attend to the North West. She asked what happened to the issue of the database because relevant people could be found on the database, people who specialised in land claims.

Ms Thlape said that when there were three claims and it took eight months, this was the reason for the outcry that claimants were dying. This was the reason they could trace claimants. The issue of Legal Aid South Africa needed to be looked at.

She said the Kuyasa project becoming an autonomous entity has been another pipe dream since 2019. When looking at what was done in 2019 and the slides about 2020, 2021 and 2022, and back to 2019, her concern was that the project still did not show a timeframe of when it was supposed to be achieved. Ms Thlape asked: if the Commission was still working with under 50%. How were they going to move into being autonomous? She said that the elephant in the room was that legislation needed to be amended. And even if Treasury approved tomorrow, legislation would still need to be amended to accommodate this.

Ms Thlape said this was not going to be achieved because, since they got there, they had received the same presentation that they were on the road to autonomy. She pointed out that, last week, the Committee was in a meeting talking about issues of limiting the bills that came before them and also the NCOP, which was being choked by all these bills. This meant that they could forget and make peace that autonomy was not going to happen now.

What was needed was to have drastic and decisive steps on what needed to be done, because everything else impacted the release and acquisition of land with whatever programmes the Commission was dealing with.

Ms Thlape said that, with all the challenges when it came to the research claims, there were 789 outstanding research claims. She said that last week, they were told in Limpopo that two claims needed to be dealt, but only one claim had been processed since the Committee visited Limpopo. With the 789 outstanding research claims, there still were 551 follow-up research claims and 299 untraceable claims. This was a challenge and outside of the Commission. She was not blaming them for everything, and they needed to zoom into this matter. She said the Minister needed to be asked how assistance could be given because it would be the same story the next time. The Committee, when given such presentations, needed to zoom in and find tangible steps for the Department to deal with these. Otherwise, land acquisition under all these programmes will remain a mirage.  

The Chairperson asked if any Members still wanted to pose other questions. If not, he would pose his questions.

He said that restitution, although not only a mechanism to address unequal land ownership patterns, did affect people – especially in rural communal areas where communal land claims had been lodged. The Chairperson, in terms of the autonomy of the Commission, said that Section 5 of the Restitution of Land Rights Act dealt with the Commission’s meetings. He asked in meetings of the Commission in what ways the meetings were useful in enhancing the performance of the Commission.

Legally speaking, how many members did the Commission have, and what was the Quorum for the meetings? He said that it was important for them to understand the implementation of some of these sections, especially now as the Commission moved towards autonomy.

In his understanding, there were three statutory meetings of the Commission annually. He requested that the Commission share with the Committee the minutes of the three meetings held in 2022. The Chairperson said this would help the Committee understand the nature of the meetings when it came to the finalisation of land claims which the Commission alluded would take about 30 years.

The Chairperson said that, in welcoming the performance shown in the presentation, one needed to note that the Commission performed less than in 2019. He asked for an explanation as to why this was the case. He said that they knew the budget was insufficient and that property valuation posed a limitation.

He also asked what the Commission could do to get back to the 2019 performance regarding the settlement of claims.

He said the report stated that numerous landowners raised objections to the quality of research and other technicalities. He said the Committee welcomed the accelerated research strategy but there had been several initiatives in the past including using academic and research institutions. He asked if all those initiatives had not desired outcomes. He noted that the report no longer referred to those initiatives, as it stated that the Commission had developed standardised formats for all Rule Three research reports.

The Chairperson said that research on untraceable land claims remained a concern, and there had been recommendations to the Commission about dealing with this matter – for example, accessing the Home Affairs database such as the South African Social Security Agency (SASSA) database and working with institutions of traditional leadership. He asked if these proposals had been tried. If so, what was the outcome? He asked the Commission for their responses.

Responses from the Commission on Restitution of Land Rights and the DALRRD

The Commissioner thanked the Chairperson and the Committee. She said other officials from the Commission would assist her with her responses. Ms Ntloko-Gobodo responded to Ms Thlape’s concern and said that the Minister had been made aware of the challenges faced by Legal Aid SA. The Commission continued to engage with Legal Aid SA to resolve some of these challenges.

In terms of the question on land acquisition, this was the focus of the Land Development Support (LDS) and therefore outside of the mandate of the Commission. The Commissioner said that, according to the Restitution Act, their focus was on claims lodged before the cutoff date. And these claims were settled in terms of what was considered a valid and legal claim as per the Restitution Act.

Ms Ntloko-Gobodo said that the database given to Legal Aid SA would be provided to the Committee. She noted the Committee’s concerns regarding the year 2019 and the Kuyasa Project. The Commissioner said she would ask the Deputy Commissioner to respond to this and the issue of timeframes for legislative amendments.

The Commissioner responded to Mr Kruger’s issue on red tape. She said that Project Kuyasa was developed to reduce some red tape and the Commission had created new standard operating procedures and policies. She added that the Commission had also reviewed all of its processes to reduce the numbers. A full analysis was done on this.

Regarding Mr Capa’s concern with Sipaqeni, she said that with claims like this – where there was financial compensation – the Province of the Eastern Cape continued to pay. As indicated, what needed to be done first was what was called verification. The verification came from the person or family who was originally dispossessed. The payment was made per household, but in certain instances, households wanted the payment to be broken down and each individual receive a payment. The Commissioner said that, for them to be paid, proof and specific standard documents were needed to ascertain that the correct beneficiaries were being paid. Money could not be paid until this was done. This also caused delays, but the province continued to make payments for all projects like this.

The Commissioner said the Commission also focused on a dedicated strategy to fast-track claims with outstanding payments in the Eastern Cape. She said that the Deputy Commissioner would deal with the issue of 3A entities and the amendment of the Bill. She said that the rejection of the offers happened under the Property Evaluation Act, where the Valuer-General (VG) had an obligation in law to conduct an evaluation. The evaluation is conducted based on five principles under Section 25 of the Constitution. The VG was the only one entitled under section 12 of the Act to conduct a valuation. Once the Commission received the evaluation certificate, the certificate had to be given to the landowner or the claimant who had to accept it and if they did not accept it, motivation as to why it needed to be sent to the OVG.

The Commissioner gave an example: if landowners or claimants felt the OVG left out certain portions, the VG would then have to give the Commission the final certificate, which was the certificate given to the landowner. After this, the question of just and equitable compensation had to be determined and if the landowner refused because the basis for most offer rejections was that the landowner was not receiving market value. This meant that they had to return to the question of the market value and the Commission had no other options unless the Minister provided alternative compensation which was separate from the valuation of the VG. Otherwise, the court would have to determine what was regarded as just and equitable compensation.

She said the Commission could only make an offer based on the OVG’s valuation. There was a list of rejected projects in this regard and the list would be made available to the Committee.

She said, with the issue of the Service Level Agreement (SLA) and Legal Aid South Africa, that the Commission had indicated that there were challenges highlighted and continuous engagement. The Commissioner said that, in the last 12 years, the Commission had met its Annual Plan Performance (APP) targets and expanded its budget for all those years. This meant they had used all the monies allocated each year. The question the Committee should ask was whether, if the Commission was allocated more money and resources, it would not be possible for them to fast-track the settlement of claims.

The Commissioner said it would be unfair to expect them to fast-track the settlement of claims with the current budget because they would not be able to do so. She said they always had to monitor how many settlement agreements were signed off each financial year so that there was no over-commitment on their part or the Department’s part. Their budget generally was around R3.2 billion each year, and their highest budget was close to R3.8bn or R9bn, but this included compensation of employees (CoE) and goods and services such as researchers. The balance of this budget was referred to as the household budget –used for land acquisition and financial compensation.

The Commissioner said that, until this last financial year, they had spent all of their budget and met their targets. This reflected the commitment of the staff in the Commission despite the difficult circumstances they work under. She said that the fact that the Commission had set up the Kuyasa strategy, where they had tabulated what they could do within the five years if additional resources were made, including warm bodies. She added that the fact that the Commission had refined its policies and standard operating procedures acknowledged the fact that, as a Commission, there was an expectation that they fast-track the settlement of claims.

The Commissioner said that the settlement of claims could only be fast-tracked if additional recourses were made available. If this could not be done, the Commission would have to continue to settle claims at their current pace. Their pace was not due to not wanting to settle more claims but rather due to the fact their available capacity determined their pace.

She said the total number of old order claims was about 79 000 plus. Old order claims referred to claims that were lodged before the cutoff date of 1998. The new order claims launched before the Constitutional Court declared the amendment act as unconstitutional totalled 163 000. They did not know if all of these claims were valid or not because the Land Claims Court interdicted them. This meant they could not touch these claims until the old-order claims were settled. This was the conundrum that the Commission was expected to settle the old order claims before dealing with the new order claims.

But with the budget and expectation regarding the order of Land Access Movement of South Africa (LAMOSA), the Commission had to prioritise old order claims. She said that the Commission was prioritising these claims but at the pace that their budget and resources allowed. The Commissioner said that if their budget was increased, the Commission had a strategy to fast-track the settlement of claims.

She said that the Commission stated these old order claims could be settled in five years if additional resources were available. They would need around R68 billion to do this. There was a breakdown that the Commission would resubmit to the Committee on how they arrived at the desired budget and capacity across provinces. Extensive work had been done in terms of locating where the claims were situated. The Commissioner added that there were districts, the nature and extent of the claims still outstanding. There were also details on the portions, hectares and complexity of the claims.

On special masters’ presentation, she said this was a process outside the Commission’s mandate. Their mandate was to deal with claims under restitution and they did have labour tenants that they dealt with under restitution. The labour tenants that the special master dealt with were completely separate from the Commission and did not affect it at all.

The Commissioner responded to Ms Tshwete and said she disagreed with her statement that not much progress had been made with the settlement of land claims. She added that if one were to look at the old order claims, over 90% of these claims were settled. What was now left was the balance. And the Commission proposed that these be settled under the backlog reduction strategy which was part of Kuyasa. She said a detailed summary would be provided of the rejected offers.

The Commissioner said that they appreciated the opportunity to be a part of a meeting where the OVG and Legal Aid SA were present. She responded to Ms Mahlo’s concern and said that the research indicated was just the last outstanding research that was there, and the Commission was dealing with it using both internal and external services providers. The research was broken down, and there was a full strategy in place that the Commission was working with. The Commission anticipated that all of this research would be concluded within the year.

The Commissioner said that the Commission was not responsible for LRAD farms; this was the work of the Department, not the Commission. The question of how much land was available was also a concern of the Department. She said that the Commission only dealt with land that fell under Section 2 of the Restitution Act. Based on this, a claim was submitted, and the Commission then conducted research to determine if the claim was valid. This was then followed by the Commission restoring per the claim submitted. The Commissioner said it did not look at how much land government had. She said that there were state land claims, and those were also settled.

She noted Mr Dlamini’s comments and indicated that the Commission had red tape problems. But, as indicated, this concern was being dealt with through proposals that formed part of the business case. She said that the Business Case could be made available to the Committee.

On Mr Montwedi’s question about when the Commission would finish all the other claims, she responded that it depended on the budget allocation. If the Commission was allocated a budget that would allow them to implement its backlog five-year strategy, it would finish in five years. If not, the Commission would continue settling claims at the pace their budget allocation allowed.

It was indicated that, potentially, the settlement of claims – when looking at the number of claims settled each year and the budget – could take 30 years. The Free State was done with most of the work and the Commission partnered the Free State with the Eastern Cape. The Free State was assisting the Eastern Cape with the settlement of claimants adjacent to the Free State such as the Joe Gqabi District. The Free State as an office had challenges in the past three years that did not have offices, as the last offices were declared inhabitable in terms of the Act that dealt with buildings. Commissioner said they had been engaging with Public Works and other parties to ensure this was resolved.

She said that Mr Lengane Bogatsu (Chief Director: North West, and Acting Chief Director: Free State) was allocated to be a Chief Director in the Free State so he could do work both in the Free State and North West. She said he was also now supporting the Eastern Cape as the Chief Director of the Free State. The Commission said Section 42(c) of the Restitution Act dealt with discretionary grants that the Minister allocated towards development. With its limited budget, the Commission had to acquire land, pay financial compensation and allocate monies towards development. The Commission did not get separate funds for discretionary grants. There were discretionary grants that were approved with settled claims that the Commission continued to pay, which also impacted the number of recently approved claims. The Commission had to balance money for settling claims and the grants approved or allocated to communities.

On the untraceable claimants, she said that this matter was not stagnant because, a lot of the time, the number of claims that were researched or needed to be researched increased. After all, the Commission found claimants that were untraceable before. The Commission was using the suggestions they were given, but perhaps it could do better. The Commission did continue to find these beneficiaries. Once they were found, the claims were with projects to be researched or outstanding projects. The Commission then continued with the process.

She said tracing agents were used and there was communication with various departments. The Commission had people who made phone calls and went to places where the claimants once lived or were known to be living to find them. She said there were success stories and the Commission was able to turn the untraceable into claims that needed to be dealt with.

On state land, the Commission had SLAs with other departments, and the Commissioner hoped that the Deputy Commissioner would touch on this – especially the SLA the Commission signed with the Department of Forestry, Fisheries and the Environment for coordination purposes.
 
On the autonomy, the Commissioner said that it had been indicated that, in line with the Restitution Act, the Commission had to comply. The Commission was ready to meet its obligations in terms of autonomy, but approval and budgets were required for them to do this. The statutory meeting minutes required by the Restitution Act would be made available to the Committee. The Commission continued to meet its obligations in this regard.

On the question of how many members of the Commission were there, she said that she would have to clarify because the Auditor-General’s (AG) findings in 2019 were a qualified audit. After all, the Commission was not operating how a standalone commission should. The Commissioner said that what they have done in the interim was to have the Commission as stated in law and a Branch that dealt with Restitution which acted as the implementer of what was awarded by the Commission. The Commissioner said that, for example, the Truth and Reconciliation Commission’s mandate was to listen, investigate and then provide recommendations to the Department of Justice. She said there was a separation of roles in this example which applied to the Commission on Restitution of Land Rights. The Commission was supposed to receive, investigate and recommend the claims for settlement, and the Branch on restitution was meant to implement the settlements on behalf of the Minister.

The Commissioner said that the Minister was responsible for restitution and its implementation. The Commission’s mandate was to investigate and provide the Minister with a list of recommendations on the available claims for the Minister to implement. The Minister used the Director-General of the DALRRD to do this work. The Commission operated in two roles, which were not meant to be the case. For example, Mr Bogatsu in the North West had two roles. He was an implementer on behalf of the Commissioner, which meant he received and ensured that claims were researched and arrived at the point where they are validated in terms of Section 42(d) and signed and approved. His second role was that he was responsible for the Branch on restitution, and he had to ensure that, for approved claims where the claimants had opted for restoration, the implementation recommendation of transfer of land and financial compensation was made. He had to ensure that each beneficiary received the deal with the setting up of CPAs. Mr Bogatsu also had to ensure that there was coordination with the Department to ensure that the Department dealt with the question of post-settlement.

The Commissioner said this was currently what the Commission was doing. In the interim, the Commission had separated the people who were supposed to be working for the Commission and those who were supposed to work for the Department under restitution. She said that this separation was, however, to a certain extent, artificial because the Commission was still doing all the work that needed to be done.

In terms of why they were able to expand in 2019 and 2020, she explained that it was because they had higher budgets and more people. With the merging of the two departments, and with the interim structure and the resignations of people due to the high-pressure environment, the Commission continued to lose people. Also, at some point, government had a moratorium on filling vacant posts, which affected the Commission. When the interim structure was confirmed, it was half of what was available at the beginning of the Commission. The Commission was working with fewer staff members. This impacted their work.

The Commissioner said that, in 2020, the Commission had challenges with COVID-19, where they had projected more claims but they had reviewed their APPs, as they were working from home and could not do their work. She said that they were continuing with doing research using both internal and external support. The Commissioner said that the process of dealing with untraceable was still something they were dealing with. From her perspective, there was movement on this front, but it was a challenge to a certain extent. However, a challenge the Commission was addressing. A communication strategy was approved where they continued to do district-based consultations with claimants. The Commission targeted areas with outstanding claims and claimants with outstanding claims were also invited to their offices. The Commission found that many of the claimants that called and wrote to the Commission to find out when their claims would be dealt with were new order claimants because they were already in touch with old order claimants. This was the challenge the Commission faced because they could not attend to the new ones until they were done with old order claims or the interdict was lifted.

New order claims could not be dealt with even within the Free State unless the Commission went back to court to seek clarity because there is only Commission and interdict. She said there was a case in the Free State which was the Vulamasango Case lodged by an NGO of the same name that sought for government to start settling new order claims, especially betterment claims. This was because the Commission had stopped the lodging of them during the old order phase. She said this matter could force the Commission to start dealing with new order claims even before old order claims were finalised. She said this case, however, was still pending.

The Commissioner asked Ms Beyane to provide clarity on issues about Kuyasa.

Ms Beyane thanked the Commissioner, the Chairperson and the Committee. She addressed the question on the Commission’s standard operating procedures. She said she had presented before that, under Kuyasa, they were looking at streamlining the business process and doing away with a lot of the red tape. She said it was presented that, on average, it took about 543 weeks to settle claims which was about 20 years. Ms Beyane said that the streamlining of business processes was looking to reduce the amount of time claims were settled in. One of the reasons for the long timeframes was the centralisation and the existence of one Regional Land Claims Commissioner. She said this was why duplication was found within the system and many things were being done on a provincial and national level. Ms Beyane said that once these issues were resolved, the time taken to settle claims would be reduced.

She said that the Commission, when modelling Kuyasa, focused on Academia and the Mackenzie 7S framework – which looked at the structure, systems, skills, staff and style. The Commission ensured that these were synchronised. She said that this was the basis of their work on reducing red tape.

Ms Beyane said that when the Commission started Kuyasa, it indicated that a database needed to be developed. An independent auditor audited this database. And it could be seen that since the beginning of Kuyasa, old order claims had been reduced from 7 500 to 6 500. The Commission settled claims every day. This was why the Commissioner had referred to the new order claims that they were not allowed to deal with, which sat at 160 000.

She said that the database did not only represent statistics but the various other sectors, such as portions of land identified and their related costs. It also identified the blockages within their business process. Ms Beyane said the R69 billion came from this specific audit and statistic. She said that modelling had been done. Today, they were reporting on research. And if research was finalised, it needed to be added to the database.

Ms Beyane said that if they took very long, the R69 billion could increase to R176 billion. The Commission put forward a backlog strategy that, with sufficient funding, could be implemented and finalised in five years. In terms of when Kuyasa was meant to be complete, she said that the Commission had indicated 2021/2022. But due to COVID-19, this has been pushed back. COVID-19 caused a delay in the delivery of Kuyasa targets around 2022/2023.

She said that the Commissioner had explained to some extent the difference between the Commission and the Branch Restitution. Ms Beyane said she wanted to give statistics on the meetings that had happened, which contributed to the board’s performance management. Ms Beyane said that there were meant to be three commissioner meetings, and the Commission had complied with this for the past few years. Where commissioners were meeting, there were monthly branch management meetings. However, due to the lack of implementation of the interim structure, the Deputy Commissioner of Land Claims chaired the branch management meetings. There were regional coordination meetings every month, which created consistency in terms of the implementation of the Commission’s methods across provinces. Ms Beyane said that there were operational implementation meetings. When it came to budgeting their finances, there were finance meetings which they called FinCom. She said that minutes of the Commission and the various branch meetings and forums would be made available to the Committee.

On state land and settlement models, she said that she had identified six priority sectors. This was because the issue of land claims was a risk for investment in sectors. Therefore, the Commission was included in sector master plans and strategies. For example, with the DFFE, the Commission was included in its master plan and its reporting. This meant that when the DFFE reported to its Portfolio Committee every quarter, the Commission was present too. The Commission had a specific task team which looked at the unblocking of challenges in both private and state land every quarter.

These were some steps the Commission had taken to accelerate claims within the six key strategies. The settlement models were focused on the sustainability of packages given to claimants and ensuring that sectors were coordinated.  

Ms Beyane said that the method that was observed in the Free State would also be observed in four other provinces, with a smaller number of claims. These provinces were the Gauteng, Western Cape, North West and the Northern Cape. There was a strategy that was implemented that the Commission had adopted that would be implanted in these provinces from this financial year. The Commission was looking to accelerate implementation in these provinces, with some of them estimating that all old order claims would be settled in five to seven years.

Ms Beyane said that the Commission had learned from the situation in Free State about how to deal with reallocating things to ensure that specific skill vases were not lost. She said that the Acting Head of the Free State was in the meeting and could provide more insight into their findings and lessons learned, which they were taking to other provinces.

On the question about autonomy, she indicated that the interim structure to the Department in 2021/20221, and the draft Bill had been ready in the previous financial year of 2022/2023 but the business case required further.

She said that, when it came to the issue of financing, the Commission was in the process of engaging the National Treasury on financing for the next MTEF. On average, the Commission received between R3.3bn and R3.5bn. The Commission had also prepared a draft cabinet memorandum that would probably be finalised after the budgeting process with Treasury, on increasing financing for the Commission to finalise old order claims. The meeting regarding MTEF planning happened yesterday and was about setting out guidelines.

The Commissioner asked the Chairperson to allow her to answer two questions she had left out. On District Six, she said that the Commission was required to submit quarterly reports on District Six via the court. These reports were also shared with the community. With District Six, there were various role players. This included Civic, and these submissions were made as well. There was further communication with each household affected either in phase or phase two. There was regular communication with claimants that were ready for another phase.

The Commissioner said that the Deputy Minister, Mr Mcebisi Skwatsha, continued to communicate with the beneficiaries and he communicated with the Commission on a potential meeting with some of the claimants regarding the number of claims settled to date.

She said it had been indicated that 3.8 million hectares of land had been acquired, and the cost of the land acquisition was R25 billion. For financial compensation of R21 million, this benefited 2.2 million individuals and over 452 000 households. It also benefited about 175 female-headed households. But the numbers changed as the claims continued to be settled. The total cost was R54 billion, with R5 billion being the grants allocated to these communities.

Follow-up discussion
The Chairperson thanked the Commissioner and the Deputy Commissioner. He asked if the Committee had follow-up questions on the Commission’s presentation.

Ms Mbabama thanked the Chairperson and said they had been listening to presentations from the Commissioner for four years now as the Sixth Parliament. She said the Commissioner had said the same thing about the issues impeding progress. She suggested that to see what the Committee could do to assist, the Committee needed to meet on the side for a discussion. Ms Mbabama said that this was a budget and capacity problem because the Commission was doing its job and the Minister had noted that it did great work under the limitations.

Ms Mbabama asked what recourse the Committee could take to deal with a problem outside of the entity itself. She was asking these questions because she did not have the answers. She asked if it was a matter of getting the National Treasury and the Minister before the Committee to ask if they were just going to accept that land claims would not be done or if Treasury had plans in the future for potential recourse.

The Chairperson thanked Ms Mbabama. He noted no further questions and allowed the Commissioner to proceed with her responses.

The Commissioner said the Deputy Minister was present, and his hand was up. She said their political principal would best answer some of the Committee’s concerns. So, she asked that the Deputy Minister be allowed to respond.

The Chairperson thanked the Commissioner and asked if there were further inputs on the Commission’s presentation. He noted that there were no other follow-up inputs, and handed over to the officials of the Department.

Deputy Minister Skwatsha apologised for arriving late to the meeting. He thanked the Chairperson for the opportunity. On Ms Thlape’s low confidence and her call for decisive action, he said her concerns could not be ignored. He also noted that Ms Thlape stated that if the meeting between the Minister of Justice and the Minister of DALRRD did not deliver in enhancing the work being done decisively, then this needed to be looked into.

On the question about District Six, she said that they were looking into a potential meeting with everyone to ensure information was communicated. He said the Committee would remember that the former Deputy President was there last year.

The Deputy Minister said that, with the issue of land and how much there was of it, the former Minister had instituted a land audit which was compiled into a booklet that was still available and could be revised and then brought to the Committee.

He said that the second-last matter he wanted to raise was connected to the question asked by Ms Mbabama and pertained to the opening of a new window. The Deputy Minister said that, if the Committee recalled, the opening of the window occurred during Former President Nelson Mandela's term, and there had been numerous re-openings. The thinking behind this reason the Former Minister gave in support of the Commission was that the autonomy of the Commission could give South Africans an opportunity. This was because the Commission would be operating continuously.

On the question raised by Mr Montwedi and Ms Mbabama, he said that his understanding was that these issues were tactics to arrive at a specific situation which was an equitable, non-racial and non-sexist South Africa. He said that the Commissioner had painfully explained this matter. As Ms Mbabama had raised, the Committee could engage on the side. But as the Department, they were assessing how to move forward, and this would be presented to Cabinet. Cabinet would then look into how, at this juncture, they would move forward in terms of financial and human resources needed to achieve what was necessary.

The Deputy Minister said that his submission was that Ms Mbabama raised a good question and it was one the political authority of the Department was facing – of how to achieve an equitable South Africa in light of the challenges faced. This was a challenge they needed to look into. All of the Committee’s inputs and frustrations were understood and taken seriously.

The Chairperson thanked the Deputy Minister and said that he believed that the executive of the Department, which included the Minister and the Deputy Ministers, in taking this issue forward, needed to decide on a date for a discussion with Legal Aid South Africa, the Minister of Justice and Constitutional Development, Commissioner of Land Claims and the Special Master.

He said that this matter also required National Treasury to look into funding possibilities. The Chairperson said that he believed that the only way in which the settlement of claims could be fast-tracked was through the implementation of expropriation without compensation. Only then would this gross injustice that has led to land hunger be resolved. The Chairperson said that this was the Committee’s only meeting agenda item, and he thanked everyone that availed themselves to attend.

He said that mini-plenaries were taking place in the Good Hope Chamber, and they would continue in the afternoon. The Chairperson said that he would see those who are in the parliamentary precinct in the House. He said those joining virtually should do so early so the engagement could run smoothly.

The Chairperson sent his well wishes to the Committee.

The meeting was adjourned.