Implementation of Constitutional Court & Land Claims Court orders; CRLR Update; with Minister and Deputy Ministers

Meeting report

Minister’s opening remarks

Ms Thoko Didiza, Minister of Agriculture, Land Reform and Rural Development, thanked the Committee for being allowed the opportunity for the Department to present on the court orders given in reference to two matters. The first was in relation to labour tenants, and the second was the Commission on the Restitution of Land Rights.

She said that the Department had worked with the Special Master in setting up his office to enable him start his work, had visited the various provinces on the labour tenants’ claims and provided him with the capacity to execute the implementation plan. The Department had provided him with 93 officials. There had also been an alignment meeting with the Minister of Justice and the responsible judge.

One of the main challenges regarding the Commission involved the capacity in the office of the Valuer General (OVG) that impeded how fast the process could be undertaken. The other issue was that of the research capacity that was found to be wanting, which had led to contestations in the process.

Department on the Labour Tenants Implementation Plan

Mr Mooketsa Ramasodi, Acting Director-General, Department and Agriculture, Land Reform and Rural Development (DALRRD), introduced Mr Thami Mdontswa, Deputy Chief Land Claims Commissioner, DALRRD, who made the presentation.

Mr Mdontswa said the presentation sought to provide an overview of the implementation plan prepared by the Special Master in close collaboration with the Department. The Constitutional Court had confirmed the order of the Land Claims Court compelling the Department to process outstanding labour tenant applications under the supervision of a Special Master of Labour Tenants (SMLT). Professor Richard Levin had been appointed as the SMLT for a period of five years, from 1 January 2020.

The Special Master’s mandate was to supervise, monitor and oversee the functions of the Department in the resolution of outstanding claims in terms of the Land Reform (Labour Tenants) Act, 1996. The Special Master was supported by 93 officials.

According to the Department, 20 325 claims had been submitted, and 9 333 were outstanding. The implementation plan was backed by a seven-step strategy in order to tackle the outstanding cases.

[see presentation attached for details]

Discussion

Ms M Tlhape (ANC) commended the work done by the Special Master, in cooperation with the Department. She asked whether the Department was receiving new applications, and whether the focus was only on the outstanding cases.

She asked whether there were intervention measures in case the Department and the SMLT were not able to achieve the set targets. For example, the implementation plan provided that the SMLT would be adequately capacitated – in case this did not happen, what happened?

Ms A Steyn (DA) asked about the dates of the targets that had been set, seeking clarification on why the specific dates had been set within the timeframe provided, especially in light of the constraints alluded to and the capacity of the Department.

She asked why it was necessary for the Special Master’s office to do validation and look at the capacity of the staff. Was this not done by the Department before the court case? In her opinion, checking the qualification of staff members should have already been done by the Department’s human resources (HR), and maybe the staffing issue was the reason there were so many cases in court against the Department.

She expressed her concern over the issue of the database of the information on the claims made. She questioned whether all the information of all the claimants had been captured somewhere for the information to be transferred to a reliable database that could then be monitored. She had visited Mpumalanga and had received the complaints of people who had proof that they had lodged claims, but they were not reflected in any database.

What would the cost of that database be? Would there be a specialist appointed to ensure the database was in order?

She asked whether the budget of the office of the Special Master was included in the budget presented to the Committee, and if not, she asked where the budget for the Special Master would come from.

Mr S Matiase (EFF) said that the appointment of the Special Master by the courts was a reiteration of the fact that there was a need for the investigation of living and working conditions of labour tenants. He called on the Department to support the Special Master. He urged it to run public campaigns through radio and TV advertisement to call on labour tenants and farm workers who may have claims, to present them to the Special Master’s office.

He proposed that the Special Master be requested to present to the Committee on his work so far, with the challenges and the bottlenecks he was facing, to ensure that the Committee played its oversight role effectively and gave him support where necessary.

Ms N Mahlo (ANC) said she appreciated the work of the Special Master and the Department. She asked about the timeframes for the implementation strategy elements. She commented that the presentation lacked timeframes, which were important for the Committee to play its oversight role.

Ms T Mbabama (DA) appreciated the presence of the Minister and the Deputy Ministers. She commended the Department, but reminded it that a plan was only as good as the implementation.

She asked whether the Department had the budget to implement the database for the land claims, and if they did, how much had been allocated.

On the issue of the 93 officials identified to work on the labour channel issues, she asked what skills were required for the position and what informed the figure of 93. Further, were these new appointments, or had the 93 been identified from the already existing officials in the Department? How had this affected their previous positions?

She asked where the Department would get the land for the labour tenants.

From the presentation, KwaZulu-Natal (KZN) and Mpumalanga had the highest number of claims, yet some provinces like the Western Cape had no applications. She wanted to understand what had led to this. This was despite the fact that in the public hearings for expropriation of land for labour tenants, many people from the provinces, currently with no claims, had come out and expressed their grievances. She also wanted to know if the Department was still taking new applications. She advised the Department to concentrate and advertise in those provinces where they had not received any applications.

On the implementation plan, there were seven steps. She asked whether they were now on step four.

Who were the diverse stakeholders referred to in the presentation? She asked whether they involved farmers and farmers’ associations. Lastly, she asked the meaning of “ADR,” (Alternative Dispute Resolution), as she was not familiar with this abbreviation.

Ms T Breedt (FF+) wanted a clarification on the issue of the spreadsheet that the Department had said they were working from, and which they had consequently provided to the Special Master to work with. What plans were around this, especially since the Department had mentioned they did not have a database and were using a spreadsheet?

Inkosi R Cebekhulu (IFP) said that when the new wave of land reform started, there were farmers that were selling their farms to new landowners, who would then evict their farm tenants. He asked whether those people who moved from those farms into the former homelands would be afforded an opportunity to claim that they were part of those lands from which they had been evicted.

Ms K Mahlatsi (ANC) asked whether the Office of the Special Master was a permanent office, since from the presentation, the office had 32 full-time staff. It was important to understand this, because if it was a permanent office, there was a need to see how to make it fully operational. On the other hand, if it was only for a specific mandate, what would happen to 32 full-time officials at the end of the special mandate?

Further, on the issue of officials, what was the focus and responsibility of the 45% of officials who were not fully focused on labour tenants?

She asked the Department for a breakdown of all the officials who had been seconded to the office of the Special Master Office, their location and their roles.

She also supported the idea that the Department should accept new claims, as 20 000 claims were not enough. She called for the process to be re-opened for more claims. What was the role of provinces in making sure the tenants were assisted in the process, including being made aware of the process?

Lastly, on the basic project management process, she said that the Committee would like to see the risk management plan, and the quality and assurance plan of the Special Master.

Mr N Masipa (DA) wanted clarity on how the numbers were agreed on in terms of the 2021-2023 budget presented, and the number of claims to be handled.

Mr M Montwedi (EFF) commented that more than 10 000 hectares had been stolen, and that was the land to be identified and restored to the people.

He asked the Department who had approved the recruitment of labour workers through labour brokers, who were known to have exploited the workers in the past. How much money had been paid out to the labour broking companies, and how much of that money had actually ended up in the pockets of the workers? Was the Department still intending to use the labour broking companies’ services in the future?

On the issue of the database, based on the fact that the Department had acknowledged the insufficiency of the information provided, was the data provided to the Committee a true reflection of the claims lodged? If not, he asked whether the Department had made provision for genuine cases that had not made it to the database to be dealt with. He said there had been a database acquired for the Land Claims Commission, and wondered why the Department could not use the same database.

He also asked if the reported number of claims was the final number, or if the number was going to increase.

Lastly, he raised the issue of farmers selling their farms as soon as they were aware that the labour tenants had lodged claims. He asked if there were any provisions to protect the labour tenants from these farmers that were evading the process by selling their farms.

Mr Matiase asked whether a budget had been set aside for the acquisition of land to settle labour tenants’ applications, and if so, how much had been set aside. Secondly, he asked if land had been identified that could be acquired.

The Chairperson asked whether there were any plans in place to make sure the process was beneficial and that the capacity -- not at an operational level, but at a managerial level -- was enhanced. For example, there seemed to be a lack of project management skills within the Department. He was concerned at the possibility of lost land claims and untraceable land claims, and wanted to know what the Department was doing to address this concern.

In the past, the Department had used labour brokers to appoint workers. Was this still the case, and if so, how many? What were the reasons for using labour brokers in appointing staff?

Lastly, he asked about the lack of claims in the Western and Northern Cape and whether that was a true reflection of things, or if was it a challenge that the indigenous people had not been engaged in the process. The indigenous people of the Western and Northern Cape had been removed from the farms and put in concentration camps where they lived in abhorrent living conditions, so he asked if everything had been done to engage them to submit their claims.

Department’s response

Minister Didiza thanked the Chairperson and other Members of the Committee for their questions and guidance.

The Labour Tenants Act, No 3 of 1996, defined who a labour tenant was, and it excluded farm workers. She said that while this might have been a mistake on the part of the lawmakers then, labour tenants had been those staying on that land till 2 June 1995. She appreciated the concerns made about farm workers and said that probably, when the matter went into the National Assembly, Members would discuss how to address the issue of the farm workers.

She answered the question of which land the labour tenants would be relocated to, and said that most of the claimants were residing on the farms on which they had made the claims, and would be allocated those lands. For those who chose alternative parcels of land, the Department would make acquisitions of the alternative land.

On the issue of the number of claims, she said that once the Labour Tenants Act of 1996 had been passed, there had been massive public communication across the country on the process. Some of the claims lodged had been settled and the remaining number had led to the court case where the Special Master was appointed to supervise in order to ensure the Department executed.

The reason why the Special Master needed to validate the staff of the Department was that the mandate of the Special Master was to lead the process, and he was an independent master of the court. As such, he had the power to ensure the quality of the people he was working with. That was within the Special Master’s mandate to ensure the plan was implemented.

The Department had provided a budget to capacitate the office of the Special Master. The Special Master asked for four officials at chief director level to work with him to produce the plan, and that had been done. The court order provided that the Special Master was to work with the Department, and it was against this background that some of the officials working with the Special Master were from the Department. These were officials who were previously working on labour tenant issues even in the provinces. The new hires were appointed in line with the five years’ mandate of the Special Master, and their appointment had taken into consideration this timeline.

She was not if that the court order provided for new applications. The mandate of the Special Master was on the old cases, and she was not sure they could advertise for new claims.

They would work on a risk and quality assurance plan, and this would be presented to the Committee.

On the issue of the Special Master presenting before the Committee, she said that they would pass along the message to the Special Master. She was not sure if his mandate would allow him, as he was appointed by the court, but that was a matter the Special Master would have clarify with the Land Claims Court and the Minister of Justice responsible for the judiciary.

Mr Mdontswa continued answering the outstanding questions. He said that there was a deadline for submitting the claims, as per legislation.

Referring to the database, he said that indeed they had the information on spreadsheets, and the issue of the reliability of the data was based on the fact that the information was on spreadsheets, and not on the content of the information. They were preparing a business case for the database that would be used by the Department for the different products they offered.

The Special Master had requested the court for a master data specialist to be appointed who would be responsible for updating the database, which request had been approved. The database would be a reporting tool for progress reports.

He said the mandate of the Special Master, as contained in the court judgment, was to supervise the implementation of the Department’s implementation of the outstanding applications. Therefore, the work as it related to the investigation of the socioeconomic conditions was important, but the Department may look into other ways of generating that information. The International Labour Organisation (ILO) had done a report in 2014/2015 documenting the socioeconomic conditions of farm workers. However, one of the criticisms of the report was that it looked at farm workers, but not at farm dwellers.

Also, in 2016, the Commission of Inquiry into the socio-economic conditions of farm dwellers did a report on farm dwellers in Mpumalanga, so the suggestion of a comprehensive socio-economic report, as suggested by Members of the Committee, would be building on these works done in the past.

The budget targets had been set on the basis of levers that were available, such as land acquisition and just and equitable compensation. As such, dividing the budget by the number of claims may not necessarily be correct, as there were progressive farmers donating land to ensure security of tenure to labour tenants.

Regarding the number of claims in the Western Cape, he answered that due to a certain system, most of the people did not meet the statutory requirements of labour tenants, such as farm workers who were specifically excluded from the definition of labour tenants.

The steps of the plan were sequential and contemporaneous, and work was currently being done as per the implementation plan, including the activities for each plan.

He said the Department’s stakeholders included farmers associations, commodity associations, labour tenants themselves and their organisations, non-governmental organizations (NGOs), and various formations that worked in those spaces.

There was indeed a connection between labour tenants’ applications and evictions, and it was not a new trend. The restitution process covered those people who were physically moved out of farms, who were labour tenants.

He said that the Department had 95 officials, not 93 officials. Some were on contract, and there were no middlemen. There was a breakdown of who the officials were and where they were located. The 45% not working on the labour tenants were addressing other tenure situations.

Referring to labour brokers, Mr Mdontswa said that four years ago, the court had required the Department to provide information on its work in relation to labour tenants. The Department did not have the capacity to send officials to do that work, and it was then that the Department had used labour brokers in order to respond to the court order. The labour brokers were mentioned in the implementation plan in relation to that short time, and of the 93 officials mentioned, none of them had been employed through a labour broker.

Commission on Restitution of Land Rights

Ms Ntloko Gobodo, Chief Land Claims Commissioner, presented to the Committee the report the Commission had presented to the Lands Claim Court, as per the Constitutional Court order dated 19 March 2019, which required it to present a report every six months to the Land Claims Court.

As per the court order, the report included information on the number of outstanding old order claims, the anticipated date of completion, the constraints faced in completing those claims, and the solutions implemented so far in addressing those constraints.

One of the main aims of Project Kuyasa was a backlog reduction strategy that included data analysis and refinement to facilitate determination of the final total number of outstanding cases, and fast-tracking the settlement of all outstanding claims. The Commission had engaged an external audit of the land claims.

Of the outstanding cases, 44% were in the research and gazetting stage, 15% were at the settlement “negotiation stage”, 14% at the valuation stage, and 3% at the court stage.

Project Kuyasa had identified three main blockage areas in the processing of land claims. The analysis showed that the bulk of the outstanding claims tended to be concentrated at research and gazetting, land valuation, and negotiations/settlement stages of the business process. The Commission also faced budgetary and human resource constraints.

[see presentation attached for details]

Discussion

Ms Tlhape expressed her concern on the time it was taking the Commission to settle the claims. According to the targets, it might take them 10-15 years to settle the remaining cases. She asked whether they really needed 30 years to resettle people who had been waiting for so many years. She asked what the Commission could do to fast-track the process.

What would it take for the Commission to address some of the challenges such as capacity and research in order to fast-track the process?

She asked about the service level agreement (SLA) with the Office of the Valuer General, and whether this impacted on the acceleration of their work.

Why had the report of the external agent on provincial statistics not been verified?

She inquired about the timelines for the Commission to be autonomous, and whether the Minister had approved their plan for autonomy.

Ms Steyn asked for a clarification as to why there were still so many cases outstanding at the Land Claims Court. She wanted to know if the issue was the policy or its implementation.

She asked whether there were still service providers appointed, and what their role was.

Did the Commission have a database of all the claims? Were people notified when their claims were researched upon and found not to be valid? Why had the Commission not fulfilled the moratorium?

Mr Matiase said it was important to note that the process of land restitution was a tragic failure. It was unfair as it compensated white settlers who had unfairly and wrongfully taken away land from the people. Unless this was acknowledged, the Committee would continue moving goal posts and expect miracles from the Commission. The process must stop.

Ms Breedt responded to Mr Matiase, asking him to refrain from his one-sided opinion and the spewing of hatred.

She expressed her concerns about the timeframes.

She asked about a specific person who was willing to sell his land and had contacted the Commission about it. What was the Commission’s stand on this, in terms of willing buyer and willing seller?

Ms Mahlatsi asked if the SLA with the Office of the Valuer General had changed anything in respect of getting valuations done.

She asked whether the Commission had had conversations with the Minister about autonomy. She recalled that the last time, the Commission had indicated to the Committee that they did not have the capacity to be autonomous.

Mr Masipa asked what lessons the Commission had learnt from the Kuyasa project. What were the policy gaps in Kuyasa, as indicated in the presentation, and what had been done to address them?

He asked what the process of appointing the external agent to verify the data was, and what had been done since their appointment.

What was the capacity situation of the Commission to ensure the 74% time reduction of their work?

Mr Montwedi asked what informed the Commission’s annual targets. How many more years would it take for the Commission to settle these cases, having in mind there were cases that had been interdicted by the courts? He said it would take the Commission 25 to 30 years to settle these cases. He asked whether the Commission had presented a business case to the Department that would reduce the number of years it would take to settle the cases.

He asked about the plans for the autonomy of the Commission. Did it have the capacity to be autonomous?

Ms Mahlo stressed the need for cooperation between the Commission and the Department. The cooperation would help the Commission to define a clear organisational mandate, and structures that would help the Committee to exercise their oversight mandate.

She asked for a plan in writing by the Commission on improving their stakeholder management communication systems, specially to ensure that people in the rural areas received information.

Lastly, she implored the Commission to refrain from presenting issues they had previously reported to the Committee.

The Chairperson welcomed what the Commission presented to the Land Claims Court. He asked why the statistics on the outstanding cases were as of 1 July 2020, and not as of 1October 2020, as expected.

He said that 44% of the claims were at the beginning stage of the process -- that was research and gazettement. This was contrary to the court directives that this was to be completed in 2017/2018. He asked the Commission whether the issue was the quality of the work done by the service providers appointed to help the Commission with this task, and if so, why the Commission paid for sub-standard work.

When the external agent had been appointed, why had the data not been verified, and what had been done since his appointment?

He was concerned whether the Commission had adequate capacity to reduce the turnaround time by 74%, as reported.

He asked what the impediments to the autonomy of the Commission were, as it had been presenting on the same issue to the Committee for four years. He asked it to set definite team lines, targets and dates to achieve autonomy.

He asked how much it would cost, and the timelines to settle all the outstanding land cases.

Commission’s response

Ms Gobodo said that the presentation was on what the Commission had presented to the Land Claims Court. The first presentation was what they had communicated to the court, and the second presentation was on project Kuyasa. Most of the questions asked were related to the second presentation, for which she would request time to present to the Committee.

On the timelines, the Commission gave a breakdown in the presentation on project Kuyasa.

Referring to capacity issues, she said that since they were a part of the Department, the Department had the mandate to fill these vacancies, but the Department was facing challenges due to the merging of the two departments.

She answered that they had a fully-fledged proposal on autonomy that required approval. The Commission wanted to be autonomous, but they had to be fully capacitated.

The claims sent to the Land Claims Court were cases that could not be settled administratively -- for example, where the owner was contesting the validity of the claim, or there were competing claims. The Commission would make available to the Committee the list of these cases, as requested.

She said that they had a database of outstanding claims. The Kuyasa project had helped them audit the claims, as had the use of the external agent as well.

She answered that most of the service providers did not really help them, as some of the work was sub-standard, despite being given the standard required in the sign off. The Commission had undertaken some processes to deal with that, and with the outstanding research.

They had engaged the landowners who were willing to sell their land after a verification and valuation process by the Office of the Valuer General (OVG).

Regarding the SLA with the OVG, the SLA was helping the Commission to identify and communicate gaps. The SLA had allowed the Commission to work with the OVG in advertising for valuers to help the OVG with the process, but there was a lot to be done.

She said the lesson learnt from the Kuyasa project was in the presentation that the Commission had not had a chance to present to the Committee.

For the 74% time reduction to happen, the Commission would need the requisite capacity.

Referring to the budget and time frames, she said the Commission had spent all of the budget in the previous years, and the budget was not enough for them to target more claims. In order to fast-track the settlement of the claims, it needed adequate capacity in terms of proper human resources, budget and business processes.

She said that new order claims were those that were lodged by law through court orders, but the Commission could deal only with the old order claims -- new claims would be dealt with if new legislation was put in place.

She said a breakdown of the outstanding claims was in the Kuyasa project presentation.

On the issue of expropriation, the Commission used section 25(3) of the Constitution, and section 42(e) the Restitution Act. The Commission still used the Expropriation Act of 1965 and as such, they did not have the capacity to deal with expropriation, and were waiting for the Committee of Parliament to finalise their work, and maybe that would provide the Committee with an opportunity to process more claims.

Concluding remarks by the Deputy Ministers

Mr Mcebisi Skwatsha, Deputy Minister, Agriculture, Land Reform and Rural Development, thanked the Chairperson and the Committee for the engagement, which strengthened their resolve to serve the people of South Africa in their work, despite the challenges. He appreciated the engagement of the day, and said that some of the issues bordered on policy, but with the help of the Committee, the Ministry and Department, they would be able to go forward.

Mr Sidumo Dlamini, Deputy Minister, Agriculture, Land Reform and Rural Development, thanked the Chairperson and the Committee for their support.

The meeting was adjourned