Convention on Prohibition of Mines; Hague Convention; Economic Co-operation Promotion Loan Fund Amendment Bill; Draft Policy Fra

ECONOMIC AND FOREIGN AFFAIRS SELECT COMMITTEE
6 May 1998
CONVENTION ON PROHIBITION OF MINES; HAGUE CONVENTION;
ECONOMIC CO-OPERATION PROMOTION LOAN FUND AMENDMENT BILL; DRAFT POLICY FRAMEWORK OF THE DIRECTORATE: PROVINCIAL LIAISON: BRIEFING

Documents handed out:
- The Convention For The Prohibition Of The Use, Stockpiling, Production And Transfer Of Anti-Personnel Mines And On Their Destruction
- South Africa's Consent To Be Bound To The Amended Protocol II And The New Protocol IV Of The Convention On The Prohibition Or Restrictions On The Use Of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious Or To Have Indiscriminate Effects (CCW).
- Explanatory Memorandum Concerning Accession To The 1907 Hague Convention On The Pacific Settlement Of International Disputes.
- Economic Co-Operation Promotion Loan Fund Amendment Bill [B3-98] (see Appendix)
- Draft Policy Framework of the Directorate: Provincial Liaison

Summary
The committee agreed to the ratification of both Conventions regarding anti-personnel mines after a briefing by the deputy director-general. The agreed to the 1907 Hague Convention after a briefing by a departmental official. After briefing and discussion the committee agreed to pass the Economic Co-Operation Promotion Loan Fund Amendment Bill [B3-98] without amendments. Finally the committee was briefed committee on the Draft Policy Framework of the Directorate: Provincial Liaison. It attempts to deal with the various problems experienced due to the fact that provincial delegates now also visit overseas.

Detailed Minutes
PROHIBITION ON ANTI-PERSONNEL MINES & CERTAIN CONVENTIONAL WEAPONS CONVENTIONS
Dr. Abdul Minty, Deputy Director-General, briefed the committee on The Convention for the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and on their destruction as well as South Africa's consent to be bound to the amended protocol II and the new protocol IV of the convention on the prohibition or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects (CCW). [See: Explanatory memorandum]

Mr. Minty then proceeded to ask the members to agree to South Africa's ratification of both conventions and asked to do so as soon as possible in order for the process to be completed by 20 May, when a conference is taking place in Washington. South Africa has been the only non-donor country invited to this conference. The issues to be addressed at this conference are that of de-mining globally as well as technology in de-mining.

Questions by committee members:
Mr. Bruwer (FF - North-West): Has the pace of landmine removal in Mozambique and Angola, satisfied you in all respects?

Mr. Minty response: One can say that South Africa is impatient. We are therefore taking steps with neighbouring countries to speed up the process. South Africa is in a commanding position in terms of our technology and individual experts. Another problem is that the UN sets high standards. South Africa reached this target. Many other countries have not. There has been much pressure to lower the standards so that other countries could get a slice. South Africa resists this of course as you then will not get the confidence of the people. (Our people after they clear mines will go play football there, where as others will produce a certificate). The Mozambican operation has been excellent. The US government pledged another $1 million to the Mozambican project for its conclusion. Angola has a much bigger problem. The UN is involved and the South African company Mecham has had a contract with the UN. South Africa is also collaborating with Angola and Mozambican authorities on an ad hoc basis to see how this process can be speeded up.

Mr. Bruwer (FF- North-West): What would you say is the main problem?

Mr. Minty: One obviously is money, another is infrastructure in the countries. Not all areas are seen as priority areas, therefore you need to develop an internal capacity. Some important areas may be cleared and others demarcated. Each country should develop its national priorities and then South Africa can assist them in those areas. Also an issue which needs to be addressed is the rehabilitation of the victims of these landmines.

Mrs. Fubbs (Gauteng): Who would bear the cost of demining in countries that do not have the financial resources? In the documents handed out there is a reference made to the use of manually emplaced anti-personnel landmines in fenced and marked areas. I am not sure that they should be used at all. They would be equally dangerous and create the same havoc in marked areas.

Mr. Minty: The problem is that there are two conventions. There are more countries subscribing to the one convention. All of these countries however do not agree to a ban. What South Africa is attempting is to go as far as possible with like-minded countries. In the CCW context we are working to compromise positions. The other problem is that the CCW has very few African signatories. We are trying to get these countries to support not only the Ottawa convention but also this control mechanism. The CCW covers more than just landmines. It is a question of extending the areas in which we can achieve results. There are two parallel processes. We are not suggesting as the government that the one is better than the other. Regarding the issue of bearing costs, this has to come from donor countries. One positive aspect is the US that stated it could not sign the ban, but in turn made a large sum available for de-mining.

Rev. Zondi (IFP- Kwazulu-Natal): The convention also focuses on the prohibition of production of anti-personnel landmines. What mechanisms are in place in South Africa to ensure that there are no unofficial actions that retain the use of our technology. I ask this in the context of the alleged mercenary activities of South Africans in other countries. Secondly, what obligations do such conventions as these confer on a country such as South Africa? What other benefits are there other than being a good citizen of the world?

Mr. Minty: One of the inhibitions to production will simply be that in the past the contract was offered to the defence force. Any other production was then of course illegal. Legislation is being drafted that will make it henceforth illegal. South Africa is not a donor in the sense that we are providing money to the international community in terms of global de-mining. We have done this with Mozambique, but of course this is a small amount. Under the convention, however we are a non-donor country, we have an obligation to destroy all stockpiles. South Africa has already destroyed the stockpiles in the shortest possible time even before the convention was agreed to. Then there are some voluntary obligations such as providing technical assistance on a voluntary basis. South Africa's commitment is very strong.

Rev. Zondi: Are there opportunities for civilian society to get involved?

Mr. Minty: We have been interacting with civil organisations both at international and local levels. There is a standing arrangement in the Department of Foreign Affairs to meet on a regular basis with the NGOs.

Committee member: Are the victims of landmines compensated with the money received for de-mining?

Mr. Minty: Currently there is no such facility. These people are really left to their countries' national efforts. Here the Red Cross and some religious groups play a role. The problem is that the countries where the problems are, do not have the resources to address these issues. South Africa is trying a put this on the agenda both at the upcoming Washington meeting as well as with the separate countries themselves to see if some global effort can be made. We need to get centres where for example artificial limbs can be made. This of course needs money. There has been some efforts to achieve this, by some plastic manufacturers agreeing to decrease their profit margins.

Mr. Van Niekerk ( NP - Northern Cape): Does South Africa's expertise contribute to our fiscus?

Mr. Minty: Yes, Mecham is now the dominant company. The South African capacity and specialist experience in this field is well known and accepted, however there are advances taking place in this field and the advantage South Africa may now enjoy, may not still be the case in a few year's time.

Mr. Van Niekerk: Are these companies private companies or are they Denel-initiated companies?

Mr. Minty: We have private companies and the Department of Foreign Affairs interacts with Denel on almost a daily basis. Mecham is a Denel subsidiary. We realise that we should include other companies and even potential companies as we realise that these companies do not confer with each other and that there are many issues where these companies still has a militaristic outlook rather than a humanitarian assistance outlook in the manufacturing of these vehicles.

Miss Fubbs wondered whether South Africa's excess personnel in the Defence Force should be employed as a kind of inspectorate to ensure the principles of these conventions are adhered to.

Mr. Minty: The Convention allows for complaints by states. This issue is so sensitive that there are a lot of NGOs unofficially involved in monitoring and fortunately international public opinion is against mining. Regarding the involvement of the SANDF in this matter, it is a high cost operation. The SANDF is involved in the process via talks with the NGOs, therefore there is that kind of link.

The Committee agreed to both conventions.

HAGUE CONVENTION
Mr Stemmet of the Department of Foreign Affairs briefed the committee on the issue of South Africa's accession to the 1907 The Hague Convention On The Pacific Settlement Of International Disputes.

Questions for clarification:
Mr. Bruwer (FF North-West) asked about the frequency of use of this procedure by states.

Mr. Stemmet: The PCA was quite often used in disputes between states up until 1920 when the permanent Court of International Justice (PICJ) was established. After the second World War, the PICJ was succeeded by the International Court of Justice (ICJ). These courts took away a lot of the work of the PCA and therefore it was decided in 1962 that the PCA should also include disputes where non-states are parties. It is especially used today by commercial enterprises. It offers a cheaper and quicker way of settling disputes than the ICJ.

Chairman: Will this apply to trade and all other bilateral agreements between states?

Mr. Stemmet: The arbitration is based on the interpretation of any treaty. Treaties quite often these days makes provision for arbitration and usually is not specified which body will do the arbitration, but because it is an easier and cheaper way of settling disputes, also when commercial entities are involved, disputes are often referred to the PCA.

The committee agreed to the convention.

ECONOMIC CO-OPERATION PROMOTION LOAN FUND AMENDMENT BILL [B3-98]
Dr. A. Sharp stated that the purpose of the bill is to accommodate the changes that were brought about by the reintegration of the former TBVC territories into South Africa. The former government made available soft loans to the TBVC areas to help them finance some of their development programmes. For various reasons not all the phases of these projects have been completed. These projects have now been taken over by the new provincial governments. The Department of Foreign Affairs, no longer has any responsibility to these development projects in the former TBVC territories. The proposal is that the balance of the fund in relation to uncompleted projects should be transferred to the provincial administrations so that they could finance the completion of these projects directly. There shall be no financial burden on the exchequer in the transfer of these funds.

Also it would provide a procedure where funds that are not to be used for specific projects, may be put to good use by the provincial governments.

Questions for clarification:
Mr. Bruwer (FF North-West): How will this fund be controlled after it is no longer the responsibility of Department of Foreign Affairs?

Miss Fubbs: In the transfer of these funds, will these funds be coming directly out of the Foreign Affairs portfolio or will it be transferred firstly to the National Revenue Fund and then distributed to the provinces? My concern is why it was not considered that the Loan Fund should go back to the National Revenue Fund and get redistributed in the form of a conditional grant where it could have been more efficiently and effectively managed? The problem is the process and the measures that have been put forward.
How much exactly is in this loan fund?

Response by Mr. Moir (Department of Foreign Affairs): The money will be made directly available by the Department of Foreign Affairs to the provinces. On the question on why the money is not transferred to the national treasury for further division, the mechanism of the fund needs to be kept in place as there are still other countries involved. What we need to do however is to get the TBVC countries' liabilities off the books. The amendment as proposed and approved by the fiscal authorities, is the only way in achieving this aim.

This is a complex statutory fund. Since 1994 with the amalgamation of the TBVC countries, the National Treasury had the obligation to ensure that this statutory fund remain intact. Therefore all the obligations prior to 1994 still remain obligations today. The provisions however of the Loan Fund state that these loans and grants can only be granted to foreign countries. Therefore it made it impossible to transfer any more funds for the completion of these projects approved before 1994. What we are doing by the amendment is to create a mechanism to set aside the limitation of foreign countries for the purpose of the former TBVC countries. The Department of Foreign Affairs is going to take two steps in this process. By writing off the liabilities of provinces at stake by seeing these as grants. Secondly it won't be fair to the provinces to expect them to complete these projects approved on an ad hoc basis on their own budget. The fund has the capacity to make available the amounts agreed to in the project agreements. The Department of Foreign Affairs knows exactly what amounts are outstanding and this will be made available to the relevant provinces' treasuries. The transfer will take place by doing a summary for each province and all the outstanding projects with the correct amounts and then make this amount available to the treasuries of the provinces, indicating the specific amounts allocated to the specific projects. The amount available in the fund as on the last financial year is R273 million. In this process if the bill is accepted, the Department of Foreign Affairs will write off liabilities to the fund to the amount of R417 million. From the R273 million available in the fund, an amount of R138 million will be made available to the Eastern Cape, North-west province and the Northern Province. This will leave R100 million which will be made available to the Exchequer to be used for priority projects of the government.

In most cases the projects on the ground were not completed because of a lack of funding and because the Department of Foreign Affairs did not have the legal capacity to administer the fund. Everything came to a halt. If these outstanding grants to the former TBVC projects are taken care of, the only outstanding issue remains the small outstanding amounts still owed by other countries, Swaziland, Mozambique, Malawi etc. These are in proportion about 15-20% of the utilisation of the whole fund. These are so limited that the opinion is that the money from and for these countries can be made available to the Exchequer. As soon as the outstanding liabilities are recovered from other countries, the Department of Foreign Affairs will be in a position to close the fund.

Mr. Van Niekerk (NP- Northern Cape): What are the controlling mechanisms to see that these funds really get to the projects?

Response by Mr. Moir: The only way in which the Department of Foreign Affairs can make sure that the money is used for the purposes of the specified projects, is to give the details of the projects together with the amounts outstanding together with the actual payment to the treasurers of the provinces. This is the best we can do. It is then up to the provinces. The Department of Foreign Affairs cannot create an administrative mechanism to ensure this. The treasurers of the provinces do have the legal capacity and framework to ensure that the money is allocated to the correct projects.

Mr. Van Niekerk (NP - Northern Cape) asked why it took the Department of Foreign Affairs four years to bring this amendment to parliament. What controlling mechanisms did the Department of Foreign Affairs have with the TBVC states to see that the money was utilised for the right projects?

Mr. Moir answered that as far back as 1994, Dr. Sharp and colleagues talked to the Department of Finance on these issues. The people doing the administration of these projects in effect left the service with the restructuring of the Department of Foreign Affairs and these projects stopped. There was a lack of co-ordination in terms of timing in both the Treasury and the Department of Foreign Affairs. There could have been improvements but thinks that no-one can solely take the blame.

With regards to the control of the fund with the former TBVC countries, the Department of Foreign Affairs made use of the assistance of the Development Bank as their agent to drive these projects. The projects were paid in a way as the projects actually progressed. The Development Bank ensured that the projects were carried out. The Department of Foreign Affairs did not have the capacity to ensure the efficient allocation of these resources.

Comment by another member: All the provinces who are going to receive these funds are currently having financial difficulties and it is easy for them to utilise the funds for other purposes

Chairman: The concerns raised by the members are on the administrative side. The Department of Foreign Affairs is doing this in consultation with the Ministry of Finance. The concerns are valid, however.

Ms. Fubbs stated that she is deeply concerned about the implications that the department will not be able to enforce the use of the money for the specific projects in question. Point 5 does not state that the province has to complete the project. Provinces can redirect the money to other areas as they are pleased.

Mr. Bruwer (FF- North-West) said that he had heard all the arguments but noted that it is not the responsibility of the Department of Foreign Affairs to work on these projects. The Act needs to be changed due to the nature of it and so he moved that the Bill should be adopted.

Mr. Moir stated that he noted the real concerns raised by the members on what will happen with the money. He still believes that the restrictions laid on government institutions in this regard is efficient to address these problems. He agreed that a strong plea should be made to the provinces that the funds should be used correctly and that the projects are finalised. He will forward a complete list of all the projects and the allocated amounts to the members.

The chairperson, , Mr. Lebona (ANC - Freestate), asked members if they agree on the provisions of the proposed amendment to the Bill. There were no objections and the Bill was accepted.

DRAFT POLICY FRAMEWORK OF THE DIRECTORATE: PROVINCIAL LIAISON
Dr. Phologone (Department of Foreign Affairs) briefed the committee on the Draft Policy Framework of the Directorate: Provincial Liaison. He stated the aim of the Directorate is to deal with intra-governmental relations with regard to relations with the foreign community. The document is only is only a draft which is the result of consultations with provinces and Foreign Affairs missions abroad. It attempts to deal with the various problems experienced due to the fact that provincial delegates now also visit overseas. The reasons for this approach are summed up on page six of the document.

A number of members asked whether the Department of Foreign Affairs has a protocol of South African customs available for foreign visitors and whether there is a training programme in protocol when members are invited to foreign embassies. Dr. Phologone replied that a protocol explaining different cultural practices does not exist but there is a general South African protocol available to foreign visitors. The Department of Foreign Affairs is relying on provinces to look into this and develop their own protocols on the cultures in their provinces. The members appealed to the Department of Foreign Affairs

Appendix 1
2. EXECUTIVE SUMMARY ON THE CONSULTATIVE WORKSHOP ON COOPERATIVE GOVERNANCE HELD ON 26 AND 27 JUNE 1997

BACKGROUND
Following the elections in 1994 and the establishment of a democratic Government in South Africa, nine Provinces were established in accordance with the New Constitution. This consequently entailed the establishment of 840 Local Governments. Since 1994, Provinces and Local Government delegations have embarked on international visits in an effort to promote investment and trade for their respective Governments.

Emanating from the processes alluded to above, it was deemed imperative to establish the Directorate Provincial Liaison and Intergovernmental Relations within the Department of Foreign Affairs, with specific responsibilities of coordinating participation of the second and third spheres of Government in international relations.

CONTENT:
On the 26th and 27th June 1997 the Directorate Provincial Liaison organised a Workshop, entitled Co-operative Governance with specific reference to International Relations. The Workshop was attended by all Provincial contact persons dealing with International Relations, National Departments, Provincial and Local Governments associations and SATOUR.

PURPOSE:
Against this background, the Directorate deemed it fit to hold the above workshop to inter alia discuss the following:
- The role of the Department with specific reference to the Directorate:
Provincial Liaison and Inter-governmental Relations;
- Co-ordination (not organisation) of Provincial and Local Governments international visits;
- International agreements;
- Twinning;
- Finance: A brief overview of implications of Missions effecting payments on behalf of Provincial Governments while on visits abroad;
- Training of Provincial and Local Governments contact persons;
- Co-operation between the Department of Foreign Affairs, particularly the Directorate: Provincial Liaison and Inter-governmental Relations, and Provincial and Local Governments; and
- International Promotion and marketing of Provincial and Local Governments.

These topics were carefully selected by the Directorate in close consultation with Provinces and Local Governments Associations in order to arrive at a structured participation of South Africa in international relations as a Sovereign State.

PROBLEMS IDENTIFIED

Uncoordinated visits:
National Departments, Portfolio Committees, Premiers, Provincial MEC's Provincial Portfolio Committees as well as Local Governments visit in many instances the same countries to discuss similar topics with similar institutions. This undoubtedly leads to improper representation of South Africa as a country.

Unclear objectives:
Study and exploratory requests give no clear indication of issues to be discussed by these delegations to South Africa's mission's abroad and countries being visited. Subsequently little practical results are achieved from such visits

Institutional Arrangements:
South Africa is structured in a way that does not relate to equivalent institutional arrangements in other countries. For instance, who will be the counterparts of Premiers MEC's and Provincial Portfolio Committees in such countries as Botswana, Bulgaria, France, Uganda, etc.

International Practice and Customs:
International visits are undertaken by invitation from a host country. Currently Provincial and Local Governments are inviting themselves with, as already pointed out, unclear objectives. As a result the South African Missions are inundated with problems relating to appointments and agendas for such visits.

International Agreements:
Clear guidelines should be formulated on the competencies of Provinces and Local Government with regard to International agreements. The questions are: are Provinces subjects of International Law and what are the implications of agreements entered into thus far?

Financial Implications:
As a result of these uncoordinated visits the Department of Foreign Affairs, through its Missions abroad, has incurred R47 295 770 during the 995 - 1996 financial year on behalf of Provinces and National Departments. Much as it is difficult to recover this money from Provinces, Foreign Affairs and indeed Missions have also not budgeted for such expenses.

Size of Delegations:
The Missions have strongly recommended that the number of delegates be restricted to between six and eight. These recommendations have been brought to the attention of the Provinces and Local Governments. In spite of the above, we still receive requests to coordinate visits of about ten to twenty people, at one stage a forty eight person delegation from Gauteng visited Brazil.

The Missions have indicated that it is almost impossible to arrange appointments for such large delegation. It is furthermore becoming increasingly costly to effect payments for transport and accommodation for such large delegations and the ever increasing number of visits.

Feedback and Reports:
Very few Provinces provide the Directorate and Missions with reports and feedback. There is never a follow-up on what was discussed and agreed upon. Local Governments are the worst culprits in this regard.

RECOMMENDATIONS:
The Directorate: Provincial Liaison has completed guidelines on the following:
- Twinning Agreements
- Visits for Local and Provincial Governments
- Diplomatic training
- Membership of Local Governments International Organizations
- Financial procedures with regard to payments effected by Missions for such visits and reimbursement thereof.

1998

B3-98 - Economic Co-Operation Promotion Loan Fund Amendment Bill

REPUBLIC OF SOUTH AFRICA

ECONOMIC CO-OPERATION PROMOTION LOAN FUND

AMENDMENT BILL

(As introduced in the National Assembly)

(MINISTER OF FOREIGN AFFAIRS)

[B3-98]

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from

existing enactments.

______ Words underlined with a solid line indicate insertions in existing enactments.

BILL

To amend the Economic Co-operation Promotion Loan Fund Act, 1968, so as to provide that any amounts owing in terms of loans granted to the governments of the former Republics of Transkei, Bophuthatswana, Venda and Ciskei under that Act shall not be repayable; to provide that moneys in the Economic Co-operation Promotion Loan Fund may be used to complete any project which is the subject of an agreement entered into with any of the said governments; to provide that any payment for such completion shall be made to the provincial government which has taken over the project in question; and to authorise the Minister of Foreign Affairs to pay moneys in the said fund not required for immediate use into the National Revenue Fund; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows-Amendment of section 3 of Act 68 of 1968, as substituted by section 1 of Act 29 of 1986

1. Section 3 of the Economic Co-operation Promotion Loan Fund Act, 1968 (hereinafter referred to as the principal Act). is hereby amended by the addition of the

following subsections;

(3) Any amounts owing in terms of loans granted under subsection out of the fund to the government of the former Republic of Transkei, Bophuthatswana, Venda or Ciskei shall not be repayable to the fund.

(4) Moneys in the fund may be used to complete any project which at the commencement of the Constitution of the Republic of South Africa, 1993 (Act No.200 of 1993). was the subject of an agreement entered into with any government referred to in subsection (3).

(5) Any payment for the completion of a project referred to in subsection (4) 15 shall, notwithstanding the terms and conditions of the relevant agreement, be

made to the provincial government which has taken over the project in

question.".

Amendment of section 5 of Act 68 of 1968, as substituted by section 3 of Act 29 of

1986

2. Section 5 of the principal Act is hereby amended by the addition of the following subsection:

"(3) Notwithstanding subsection ()), the Minister may pay into the National Revenue Fund such an amount of the moneys contemplated in subsection (1) as the Minister, in consultation with the Minister of Finance, may determine.".

Short title

3. This Act shall be called the Economic Co-operation Promotion Loan Fund 10 Amendment Act, 1998.

MEMORANDUM ON THE OBJECTS OF THE ECONOMIC CO-OPERATION PROMOTION LOAN FUND AMENDMENT BILL, 1998

Objects

Acting in terms of section 3(2) of the Economic Co-operation Promotion Loan Fund Act. 1968 (Act No.68 of 1968), hereinafter referred to as 'the Act'. the Minister of Foreign Affairs entered into agreements with the governments of the former Republics of Transkei. Bophuthatswana. Venda and Ciskei in terms of which loans were granted to those governments for development projects within their respective areas of jurisdiction. In the case of the former Republic of Bophuthatswana there was also a separate agreement providing for a non-refundable financial grant from the Economic Co-operation Promotion loan Fund for the development of the Winterveld area. With the enactment of the Constitution of the Republic of South Africa. 1993 (Act No. 200 of 1993). thc said former Republics ceased to exist and the rights and obligations of the lender and borrower by virtue of the said agreements. were merged and were vested in the Republic of South Africa. In that respect. the Bill merely endorses a factual situation. The said former governments no longer exist. and if the Government of the Republic would be required to repay the amounts owing under the loans granted to the former governments it would simply mean that it would make the payments concerned to itself. The capacities of debtor and creditor have by merger become vested in the same entity.

The development projects which formed the subject of the said agreements and which had at the commencement of the said Constitution not been completed were taken over by the provincial governments within whose areas of jurisdiction the localities of the development projects are situated. The Bill proposes to provide that all payments as contemplated in the relevant agreements which may be required for the completion of those projects shall be paid to the provincial governments concerned.

The Bill also provides that the Minister of Foreign Affairs. acting in consultation with the Minister of Finance. may pay money which is not required and which will not be used for any existing development project into the National Revenue Fund, established by section 213 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996).

Consultation

The following departments and institutions were consulted.

Office of the Auditor-General

Office of the (then) Public Service Commission

Department of State Expenditure

Department of Finance

Eastern Cape Provincial Administration

North West Provincial Administration

Northern Province Provincial Administration

Parliamentary procedure

The State Law Advisers are of the opinion that this Bill must he dealt with in accordance with section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.

1997

Prevention of Illegal Evictions and Unlawful Occupation of Land Bill [B89B-98]

REPUBLIC OF SOUTH AFRICA

PREVENTION OF ILLEGAL EVICTIONS FROM AND UNLAWFUL OCCUPATION OF LAND BILL

(As amended by the Portfolio Committee on Housing (National Assembly))

(MINISTER OF HOUSING)

[B 89B-97]

BILL

To provide for the prohibition of unlawful eviction; to provide for procedures for the eviction of unlawful Occupiers; and to repeal the Prevention of Illegal Squatting Act, 1951, and other obsolete laws; and to provide for matters incidental thereto.

PREAMBLE

WHEREAS no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property;

AND WHEREAS no one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances;

AND WHEREAS it is desirable that the law should regulate the eviction of unlawful occupiers from land in a fair manner, while recognising the right of land owners to apply to a court for an eviction order in appropriate circumstances;

AND WHEREAS special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and that it should be recognised that the needs of those groups should be considered;

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows

Definitions

1. In this Act, unless the context indicates otherwise-

(i) "building or structure" includes any hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter; (ii)

(ii) "consent" means the express or tacit consent, whether in writing or otherwise, of the owner or person in charge to the occupation by the occupier of the land in question; (x)

(iii) "court" means any division of the High Court or the magistrate's court in whose area of jurisdiction the land in question is situated; (iv)

(iv) "evict" means to deprive a person of occupation of a building or structure, or the land on which such building or structure is erected, against his or her will, and "eviction" has a corresponding meaning; (xi)

(v) "land" includes a portion of land; (iii)

(vi) "Minister" means the Minister designated by the State President; (v)

(vii) "municipality" means a municipality in terms of section 10B of the Local Government Transition Act, 1993 (Act No.209 of 1993); (vi)

(viii) "organ of state" means an organ of state as defined in section 239 of the Constitution of the Republic of South Africa, 1996 (Act No.108 of 1996); (ix)

(ix) "owner'' means the registered owner of land, including an organ of state; (i)

(x) "person in charge" means a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question; (viii)

(xi) "unlawful occupier" means a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act, 1997, and excluding a person whose informal right to land, but for the provisions of this Act, would be protected by the provisions of the Interim Protection of informal Land Rights Act, 1996 (Act No.31 of 1996). (vii)

Application of Act

2. This Act applies in respect of all land throughout the Republic.

Prohibition of receipt or solicitation of consideration in respect of unlawful occupation of land

3. (1) No person may directly or indirectly receive or solicit payment of any money or other consideration as a fee or charge for arranging or organising or permitting a person to occupy land without the consent of the owner or person in charge of that land.

(2) Any person who contravenes a provision of subsection (I) is guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding two years, or to both such fine and such imprisonment.

(3) The court which convicts any person of a contravention of this section, must order any money or other consideration received by that person which have been seized, to be forfeited, and the said money and the proceeds of such other consideration must be paid to the person or persons from whom the money or other consideration was received, and where such person or persons cannot be positively identified, into the National Revenue Fund.

(4) If any money has been received in contravention of subsection (1) but has not been seized or made available for purposes of confiscation, the court which convicts any person of a contravention of this section. may order the amount proved to the satisfaction of the court to have been received by such person to be paid to the person or persons from whom the money or other consideration was received, and where such person or persons cannot be positively identified. into the National Revenue Fund, and such order has the effect of and may be executed against such person as if it were a civil judgment in favour of that person or persons from whom the money or other consideration was received or in favour of the State.

Eviction of unlawful occupiers

4. (1) Notwithstanding anything to the contrary contained in any law or the common law. the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.

(2) At least 14 days before the hearing of the proceedings contemplated in subsection 50 (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.

(3) Subject to the provisions of subsection (2), the procedure for the serving of notices and filing of papers is as prescribed by the rules of the court in question.

(4) Subject to the provisions of subsection (2), if a court is satisfied that service cannot conveniently or expeditiously be effected in the manner provided in the rules of the court, service must be effected in the manner directed by the court: Provided that the court must consider the rights of the unlawful occupier to receive adequate notice and to defend the case.

(5) The notice of proceedings contemplated in subsection (2) must-

(a) state that proceedings are being instituted in terms of subsection (I) for an order for the eviction of the unlawful occupier;

(b) indicate on what date and at what time the court will hear the proceedings;

(c) set out the grounds for the proposed eviction; and

(d) state that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid.

(6) If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.

(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children. disabled persons and households headed by women.

(8) If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine-

(a) a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and

(b) the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a).

(9) In determining a just and equitable date contemplated in subsection (8), the court must have regard to all relevant factors, including the period the unlawful occupier and his or her family have resided on the land in question.

(10) The court which orders the eviction of any person in terms of this section may make an order for the demolition and removal of the buildings or structures that were occupied by such person on the land in question.

(11) A court may, at the request of the sheriff, authorise any person to assist the sheriff to carry out an order for eviction, demolition or removal subject to conditions determined by the court: Provided that the sheriff must at all times be present during such eviction. demolition or removal.

(12) Any order for the eviction of an unlawful occupier or for the demolition or removal of buildings or structures in terms of this section is subject to the conditions deemed reasonable by the court. and the court may, on good cause shown, vary any condition for an eviction order.

Urgent proceedings for eviction

5. (1) Notwithstanding the provisions of section 4, the owner or person in charge of land may institute urgent proceedings for the eviction of an unlawful occupier of that land pending the outcome of proceedings for a final order, and the court may grant such an order if it is satisfied that-

(a) there is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land:

(b) the likely hardship to the owner or any other affected person if an order for eviction is not granted. exceeds the likely hardship to the unlawful occupier against whom the order is sought, if an order for eviction is granted; and

(c) there is no other effective remedy available.

(2) Before the hearing of the proceedings contemplated in subsection (1), the court must give written and effective notice of the intention of the owner or person in charge to obtain an order for eviction of the unlawful occupier to the unlawful occupier and the municipality in whose area of jurisdiction the land is situated.

(3) The notice of proceedings contemplated in subsection (2) must-

(a) state that proceedings will be instituted in terms of subsection (1) for an order for the eviction of the unlawful occupier;

(b) indicate on what date and at what time the court will hear the proceedings;

(c) set out the grounds for the proposed eviction; and

(d) state that the unlawful occupier is entitled to appear before the court and defend the case and has the right to apply for legal aid.

Eviction at instance of organ of state

6. (1) An organ of state may institute proceedings for the eviction of an unlawful occupier from land which falls within its area of jurisdiction, except where the unlawful occupier is a mortgagor and the land in question is sold in a sale of execution pursuant to a mortgage, and the court may grant such an order if it is just and equitable to do so, after considering all the relevant circumstances, and if-

(a) the consent of that organ of state is required for the erection of a building or structure on that land or for the occupation of the land, and the unlawful occupier is occupying a building or structure on that land without such consent having been obtained; or

(b) it is in the public interest to grant such an order.

(2) For the purposes of this section, 'public interest" includes the interest of the health and safety of those occupying the land and the public in general.

(3) In deciding whether it is just and equitable to grant an order for eviction, the court must have regard to-

(a) the circumstances under which the unlawful occupier occupied the land and erected the building or structure;

(b) the period the unlawful occupier and his or her family have resided on the land in question; and

(c) the availability to the unlawful occupier of suitable alternative accommodation or land.

(4) An organ of state contemplated in subsection (1) may, before instituting such proceedings, give not less than 14 days' written notice to the owner or person in charge of the land to institute proceedings for the eviction of the unlawful occupier.

(5) If an organ of state gives the owner or person in charge of land notice in terms of subsection (4) to institute proceedings for eviction, and the owner or person in charge fails to do so within the period stipulated in the notice, the court may, at the request of the organ of state, order the owner or person in charge of the land to pay the costs of the proceedings contemplated in subsection (1).

(6) The procedures set out in section 4 apply, with the necessary changes, to any proceedings in terms of subsection (1).

Mediation

7. (1) If the municipality in whose area of jurisdiction the land in question is situated is not the owner of the land the municipality may, on the conditions that it may determine, appoint one or more persons with expertise in dispute resolution to facilitate meetings of interested parties and to attempt to mediate and settle any dispute in terms of this Act: Provided that the parties may at any time, by agreement, appoint another person to facilitate meetings or mediate a dispute, on the conditions that the municipality may determine.

(2) If the municipality in whose area of jurisdiction the land in question is situated is the owner of the land in question. the Director-General of the provincial administration of the province concerned, or his or her nominee, may, on the conditions that he or she may determine, appoint one or more persons with expertise in dispute resolution to facilitate meetings of interested parties and to attempt to mediate and settle any dispute in terms of this Act: Provided that the parties may at any time, by agreement, appoint another person to facilitate meetings or mediate a dispute, on the conditions that the said Director-General may determine.

(3) A party may request the municipality to appoint one or more persons in terms of subsections (1) and (2), for the purposes of those subsections.

(4) A person appointed in terms of subsection (1) or (2) who is not in the full-time service of the State may be paid the remuneration and allowances that may be determined by the body or official who appointed that person for services performed by him or her.

(5) All discussions, disclosures and submissions which take place or are made during the mediation process shall be privileged, unless the parties agree to the contrary.

Offences and private prosecutions

8. (1) No person may evict an unlawful occupier except on the authority of an order of a competent court.

(2) No person may wilfully obstruct or interfere with an official in the employ of the State or a mediator in the performance of his or her duties in terms of this Act.

(3) Any person who contravenes a provision of subsection (1) or (2) is guilty of an offence and liable on conviction to a fine, or to imprisonment not exceeding two years, or to both such fine and such imprisonment.

(4) Any person whose rights or interests have been prejudiced by a contravention of subsection (1) has the right to institute a private prosecution of the alleged offender.

(5) The provisions of the Criminal Procedure Act, 1977 (Act No.51 of 1977), apply to a private prosecution in terms of this Act: Provided that if-

(a) the person prosecuting privately does so through a person entitled to practice as an advocate or an attorney in the Republic;

(b) the person prosecuting privately has given written notice to the public prosecutor with jurisdiction that he or she intends to do so; and

(c) the public prosecutor has not within 28 days of receipt of such notice, stated in writing that he or she intends to prosecute the alleged offence, then-

(i) the person prosecuting privately need not produce a certificate issued by the Attorney-General stating that he or she has refused to prosecute the accused;

(ii) the person prosecuting privately need not provide security for such action; (iii) the accused is entitled to an order for costs against the person prosecuting

privately if-

(aa) the charge against the accused is dismissed or the accused is acquitted or

a decision in favour of the accused is given on appeal; and

(bb) the court finds that such prosecution was unfounded or vexatious; and

(iv) the Attorney-General is barred from prosecuting except with the leave of the court concerned.

Jurisdiction of magistrate's court

9. Notwithstanding any provision of any other law, a magistrate's court has jurisdiction to issue any order, or instruction or to impose any penalty authorised by the provisions of this Act.

Transfer of powers, duties or functions

10. The President may by proclamation in the Gazette, either generally or in respect of such area or in such circumstances as may be specified in the proclamation, provide that any power, duty or function which in terms of this Act is permitted or required to be exercised, carried out or performed by any authority or person mentioned in the Act, may be or must be, as the case may be, exercised, carried out or performed by such authority or person, including a person in the service of such authority or an organ of state, as may be specified in the proclamation.

Repeal and amendment of laws, and savings

11. (1) The laws mentioned in Schedule I are hereby repealed to the extent indicated S in the third column thereof.

(2) The Extension of Security of Tenure Act, 1997, is hereby amended to the extent indicated in Schedule II.

(3) Any law in force in those parts of the Republic which formerly constituted the

national territories of the entities known as Transkei, Bophuthatswana, Venda, Ciskei, Gazankulu, KaNgwane, KwaZulu, KwaNdebele, Lebowa and QwaQwa, is hereby repealed to the extent that such law is inconsistent with or deals with any matter dealt with by this Act.

(4) Notwithstanding subsection (1), any transit area declared in terms of section 6 of the Prevention of Illegal Squatting Act, 1951 (Act No.52 of 1951), and all by-laws relating to such transit area, shall continue to exist as if that Act has not been repealed, until such transit area is abolished by the relevant local authority.

Regulations

12. The Minister may make regulations in respect of any matter which is required to be prescribed by the Minister in terms of this Act or which is necessary or desirable in order to achieve the objectives of this Act, and any such regulation may create offences and provide for penalties in respect thereof.

Short title

13. This Act is called the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act, 1998.

SCHEDULE I

LAWS REPEALED

(Section 11(1))

No. and year of law

Short title

Extent of repeal

Act No.52 of 1951

Prevention of Illegal Squatting Act, 1951

The whole

Act No.24 of 1952

Prevention of Illegal Squatting Amendment Act, 1952

The whole

Act No.62 of 1955

General Law Amendment Act, 1955

Section 30

Act No.76 of 1963

Black Laws Amendment Act, 1963

Section 12

Act No.92 of 1976

Prevention of Illegal Squatting Amendment Act. 1976

The whole

Act No.72 of 1977

Prevention of Illegal Squatting Amendment Act. 1977

The whole

Act No.33 of 1980

Prevention of Illegal Squatting Amendment Act, 1980

The whole

Act No.68 of 1986

Abolition of Influx Control Act, 1986

Sections 2, 3,4,5,6,7, 8,9, 10, 11, 12, 13,14 and 15

Act No.104 of 1988

Prevention of Illegal Squatting Amendment Act, 1988

The whole

Act No.80 of 1990

Prevention of Illegal Squatting Amendment Act, 1990

The whole

Act No.108 of 1991

Abolition of Racially Based Land Measures Act, 1991

Sections 20 and 21

Act No. 113 of 1991

Less Formal Township Establishment Act, 1991

Section 31, and that part of the Schedule amending the Prevention of Illegal Squatting Act,

1951

Act No. 134 of 1992

Provincial and Local Authority Affairs Amendment Act, 1992

Section 1

Act No.88 of 1996

Abolition of Restrictions on the Jurisdiction of Courts Act, 1996

Sections 3 and 4

SCHEDULE II

LAWS AMENDED

(Section 11(2))

1. Section 29 of the Extension of Security of Tenure Act, 1997, is hereby amended by the substitution for subsection (2) of the following subsection:

"(2) The provisions of the Prevention of Illegal [Squatting Act, 1951 (Act No. 52 of 1951)] Evictions from and Unlawful Occupation of Land Act, 1998, shall not apply to an occupier in respect of land which he or she is entitled to occupy or use in terms of this Act.".

MEMORANDUM ON THE OBJECTS OF THE PREVENTION OF

ILLEGAL EVICTIONS FROM AND UNLAWFUL OCCUPATION OF

LAND BILL

1. The principal objects of the Bill are to provide for the prohibition of unlawful eviction, for fair procedures for the eviction of unlawful occupiers who occupy land without the permission of the owner or the person in charge of such land, and to repeal the Prevention of Illegal Squatting Act, 1951.

2. The Bill was originally drafted with the intention of amending the Prevention of

Illegal Squatting Act, 1951 (Act No.52 of 1951), and as a joint venture with the

Department of Land Affairs would have been included in the Extension of Security of

Tenure Bill, 1997. After consultation with, inter alia, the State Law Advisers, it was

decided to draft two separate bills.

3. The Bill provides for the following main matters:

(a) The prohibition of receipt or solicitation of consideration in respect of the unlawful occupation of land;

(b) procedures for the eviction of unlawful occupiers of land;

(c) urgent proceedings for the eviction of any unlawful occupier pending the outcome of proceedings for a final order;

(d) the continued existence of transit areas declared in terms of section 6 of the Prevention of Illegal Squatting Act, 195 1, until such transit areas are abolished by the relevant local authorities;

(e) mediation procedures;

(f) procedures for private prosecutions; and

(g) the criminalisation of unlawful evictions.

4. Legislation which is contrary to the Constitution of the Republic of South Africa,

1996 (Act No. 108 of 1996), or the aims of the Bill, are repealed.

5. The Bill shall apply in respect of all land throughout the Republic.

6. This Bill has been drafted in consultation with the Department of Land Affairs as it complements that Department's Extension of Security of Tenure Bill, 1997, and it is envisioned that the Bill shall, in the near future, be administered by the Minister responsible for Land Affairs.

7. In the opinion of the Department of Housing and the State Law Advisers this Bill should be dealt with in terms of section 75 of the Constitution.