State land allocation & support to small scale farmers: update; NCOP Committee quorum

Meeting report

The Chairperson noted that at the end of the meeting she wishes to have a discussion on what quorum means to ensure that all Members have the same understanding and to avoid confusion.

Acting DG’s Overview
DALRRD Acting Director-General, Ms Redani Sadiki, introduced her team and noted DALRRD had prepared a consolidated report on state land allocation and the planned development support for the land being reallocated.

Presentation of State Land 700 000 ha
Mr Terries Ndove, DDG: Land Redistribution and Tenure Reform, and Mr Nasele Mehlomakulu, DDG: Food Security and Agrarian Reform, led the presentation.

A total of 700 000 (691 523) hectares were identified for the Agricultural State Land Allocation Project which is part of the 2020 State of the Nation Address and the Minister’s media briefing held in October 2020. A total of 691 523 hectares were identified by DALRRD for redistribution to beneficiaries of which 99% have been approved for allocation. The remaining 1% will be finalised in the current financial year. A total of 1535 farms were identified across seven provinces of the country apart from Gauteng and Western Cape. Farm assessments have been conducted on 654 farms to determine post-settlement support needs and the process is ongoing.

Of 679 943 hectares processed, 409 673 hectares have been approved in favour of small-scale farmers and where the focus of the development support is going to be placed. North West province tops the list with 229 576 hectares allocated to small-scale farmers.

Before the advert was published, 135 177 ha of land was already allocated to 275 farmers beneficiaries and DALRRD is currently providing training and capacity-building programme to these farmers. Skills audits were done in the following provinces: NW, MP, LP, KZN, FS and GP for which R500 000 was spent. Training commenced in September 2021 and 165 beneficiaries were trained from 94 farms and R1 397 000.45 was spent.

A land capability summary drew the following results: 5% of the 502 480.80 ha assessed was categorised as low to very low quality and not readily useable for agricultural production; 78 % of the assessed land is low to moderate quality and mainly suitable for grazing. The bulk of the assessed farms are suited for animal production and need a lot of assistance in terms of production. Only 17% of the hectares are suitable for plant and crop production with most of these hectares suitable for industrial and grain crops. Vegetable production ha is 5% of the 17%

The following criteria were applied for support funding:
• Black farmers who are 18 years and above and are South African citizens with valid SA IDs
• Farmers who have already received training coordinated through the sub-programme Sector Capacity Development / or any other reputable/accredited training provider
• Farmers from the designated groups (women, youth and people with disabilities) receive priority
• Farmers with proof of current farming activities taking or having taken place (at least 12 months)
• Farmers producing commodities with high potential for job creation – labour intensive would receive priority
• Farmers who are registered on DALRRD Farmer Register or would have concluded their registration prior to the conclusion of their application would be considered
• Farmers not currently receiving support from other DALRRD programmes.

Funds will be disbursed through the existing financial and operational tripartite agreements that DALRRD has with two of the private financial institutions and development partners.
 
Plans for 2022/23 financial year:
• Finalise the allocation of the remaining 11 000 hectares
• Skills audit to establish skills gaps including the level of education of beneficiaries will continue on the remaining farms
• Training on identified skills gaps will continue for the remainder of beneficiaries of allocated farms
• Funds from the National Skills Fund Project grant for 2022/23
• R150 million is set aside to support already assessed, trained and 94 allocated farms
• Given the preparatory work already done (farm assessments, skills audit, training, start-up pack costing) implementation will now commence in 2022/23 in collaboration with provincial departments of agriculture (PDAs).

Discussion
Mr A Arnolds (EFF, Western Cape) stated that DALRRD must ensure that the redistribution process must be free of corruption, it must be just and equitable. He asked why Western Cape is not part of the project. Were there no interested applicants in the Western Cape? His next concern was what challenges DALRRD foresees for the R150 million budget set aside for 2022/23.

He noted that the assessment of 654 farms is only half of what was surveyed, what is the process going forward for the assessment? He was concerned about the displacement aspect of the programme. Are the beneficiaries those who have been occupying the land or were those people displaced by government. The training only covered business and entrepreneurship. His concern was whether all beneficiaries of the programme are capable and experienced farmers and if not whether additional training will be offered to those beneficiaries who are not experienced. His final question was why training is only offered in three provinces.

Mr C Smit (DA, Limpopo) requested a detailed layout per province and per district of the land allocation, the quality analysis thereof and what the land will be used for. He asked why there was no mention of the Western Cape. For the leasing aspect of the land in question and with knowledge of the farming model, DALRRD requires a sustainability model. He requested that it outlines the sustainability model it plans on using. How will they ensure that farmers are self-sustainable, or will it be financing the farmers for a lengthy period? To acquire funding, security is necessary. If DALRRD is planning on getting security, how will risk management take place? Farming presents many challenges such as climate change and failed crops, this may require a restart of the farming model. He asked for DALRRD’s thought process on this because this is only the start and it will only cost more and more.

Ms W Ngwenya (ANC, Gauteng) asked DALRRD to provide information about the methods used to advertise information on the state land allocation and whether it was reachable to the ordinary citizen and immediate farmers. She enquired about the criteria used to select and approve the hectares. On the hectares that have been withdrawn, what were the reasons for the withdrawal? Why is Gauteng allocated only two farms despite having land with high agricultural potential?

Mr Z Mkiva (ANC, Eastern Cape) said that the project is a necessary instrument which must be encouraged by the state. The process requires objectivity when it comes to identifying recipients after the application process. It is important to understand the price that is associated with the evaluation conducted on the pieces of land made available for communities. It is also important to understand the quality of the land made available, and all other details related to the support services.

His second concern was about the adverts. Sometimes adverts are only made available online or in papers which are predominantly in English and sometimes in Afrikaans. It is important to remember that South Africa has 11 official languages. The majority of our people speak indigenous languages. It is critical that indigenous languages are included when making advertisements. He suggested that adverts should not only be advertised in town centres, but in traditional council areas too because the mass of South African citizens are in these areas. Land affects all people, those in rural and urban areas and this will avoid being depicted as favouring a particular section of the community or a location.

Ms M Mokause (EFF, Northern Cape) drew notice to pieces of land in the Northern Cape at Koopmansfontein and at Vryburg in the North West that was left unattended by government. There was a dispute among farmers in these areas because the state did not prioritise them while they were occupying those farms. When the pieces of land were advertised the state disregarded those who require this development. How far is DALRRD in resolving this dispute? In the Northern Cape, there are not many advertisements and occupation occurs without the vast public hearing about the advertisement. What support is given to black farmers, in particular, to prosper on those pieces of land?

Mr M Nhanha (DA, Eastern Cape) said that the presentation did not give much detail about the Eastern Cape except to say it is a separate process that they are following. He requested more detail on this process and how far this is. He noted that his second concern does not form part of the presentation. He recalled that some years ago the Border Rural Committee approached the court forcing government to reopen the restitution process. It caused a lot of mayhem in the Eastern Cape and raised people’s expectations. He acknowledged that DALRRD is still stuck with a backlog of the 2015 claims and asked how far it is with this process.

Department’s response
Mr Ndove thanked the Committee for their questions and acknowledged that the questions assist DALRRD in checking its blind spots as it implements programmes. He assured the Committee that the processes used are transparent, honourable and free of corruption. There was a deliberate effort by DALRRD after the outcry to develop a policy that is transparent and responsive to the challenges. This policy was approved by Cabinet. This policy was used on the basis of the allocations. The criteria applied were engaging, transparent and fair.

The land acquired and used for allocation in this project is land previously identified as homelands. Some of the land was consolidated into a buffer of homelands and apartheid towns and settlements. There is very little of this type of land in the Western Cape. The process followed was very rigorous. The land used is separate from the land with land claims attached to it and the land which has already been officially given to other people. These factors disqualified certain land. There was no discrimination against Western Cape. There is more land allocated to Western Cape under other projects. The purpose of this project was for agricultural purposes for redistribution.

When this process started, there was land that was advertised which was occupied by others. This created the fear of displacement by occupiers. Occupiers were not displaced, and this can be demonstrated in all fairness. Occupiers had their tenure confirmed and were issued with a legal lease to protect their tenure going forward. The only land that was allocated was vacant, not utilized, and abandoned over years.

The breakdown per province has been provided and it should not be a challenge to provide a breakdown per district. DALRRD will do so at a later stage.

On the future of the leases, the lease we are concerned with has an attachment to law. This means that if people do well in maintaining the lease, the lease can be transferred into ownership. A lease may not be equivalent to a title deed, but a lease possesses a level of security. A lease can be used to acquire development and so DALRRD places an emphasis on the security of a lease.

Before the adverts were published, the Minister went to various media platforms to talk about the project to ensure that the nation is well informed. The adverts were placed in local areas using local mediums, including print, local radio stations and SABC stations. This ensured that all languages were catered for. Local posters were made available and there were engagements with local traditional authorities before the process started. In many cases, the information provided directed people to forms for the application in the particular areas. Some people had access to devices and were able to access the forms from the DALRRD website and make the application electronically. These tools jointly ensured that the adverts were accessible.

A beneficiary selection and land allocation policy were used as the basis for our selection criteria of beneficiaries. These tools clearly identified who DALRRD needed to target and what percentage of people fit the criteria detailing age, race, rural areas, gender, and other factors. The selection was very transparent and applied to the land used across the country. 

Land withdrawals occurred because there were challenges in some areas. Different strategies were necessary for different areas; some strategies led to farms being withdrawn. As explained, there was no discrimination in any province and the same goes for Gauteng. There are many other factors that were taken into account.

The Department had no intention to sell the land but rather to redistribute the land. If a need to sell arises, DALRRD will need to determine the value of the land. On the quality of the land, the presentation explained the land assessment and capability exercise taken which indicated what the quality of the land is. For services, Mr Mehlomakulu went into detail on what will occur. The start-up packages and infrastructure related to the needs in a particular area. The land allocation cuts across different areas with different needs such as urban or rural needs. DALRRD made allocations taking into consideration the needs of the land in that particular area.

Mr Nodove replied that he does not have the information on the concern raised by Ms Mokause about Northern Cape and North West, but he can provide a detailed response if given more details about the areas. No displacements have occurred. Some people take good care of the land with farming tools and these pieces of land remain farmable. It would be very insensitive for DALRRD to displace them.

He cannot give details about the areas in Eastern Cape because there is an ongoing process which is engaging with the community and their leadership. There have been challenges because of differences of opinion between the CPA and traditional council and authorities in the Eastern Cape. It is a very sensitive matter which could mislead the Committee and therefore DALRRD cannot respond to the Eastern Cape concerns raised by Mr Nhanha. He noted that the Acting DG heads the land restitution portfolio and will better provide information on this aspect.

Mr Mehlomakulu replied that the training was given of a generic nature to all farmers in the programme, irrespective of the nature of farming they are involved in. It was universal. There is commodity-specific training to follow. If a farmer is involved in livestock, for example, then very specific training will be provided. The training will be expanded as start-up packages are rolled out. The training will go across all provinces. The three provinces identified first for training were prioritised as they have the largest clusters of farms. The exercise is very intense and very technical and an ongoing process which will not stop until every listed farm is reached.

On budget constraints, the R150 million set aside will be used to the best of its ability to plant the seed of the project and source more funding. Land quality assessments made reference to a 1-to-5 index to categorise the quality of the land. The support DALRRD has provided was through capacity development. A skills audit was conducted and tailor-made specific interventions on skills will be developed. DALRRD is using the commodity-specific training manual to assist farmers. In addition, the start-up packages were developed in line with farm capabilities. The budget has also been referenced in the DALRRD Annual Performance Plan.

Ms Sadiki, Acting DG, said the reopening of restitution claims by the Restitution of Land Rights Amendment Act of 2014 was declared unconstitutional and the Office of Chief Land Claims Commissioner was ordered to settle all the old order claims before dealing with the new restitution claims that had been lodged. Thus far, old order claims are still being finalised and no progress can be made yet on the new claims lodged.

Mr Nhanha noted that the aim of his question was to understand the bottlenecks that are causing the backlog and what is being done to address these bottlenecks.

Ms Mokause noted that she will provide a detailed written report on the issues in the Northern Cape and North West.

The Chairperson acknowledged that DALRRD could not provide answers now and asked for a written response by 20 June 2022.

The Acting DG requested Ms Mokause send her written question on Northern Cape and North West today for DALRRD to adequately respond.

Ms Sadiki said that the largest bottleneck for the land restitution process is the budget. Currently, the assessment is that DALRRD needs at least R60 billion for all the old order claims. On an annual basis it is allocated about R3.6 billion for restitution. This includes administration of salaries so in the end, it is left with about R2.5 billion to settle claims. It is inevitable that claims will not be settled in that budget alone. Claims are very complex. A request can be made for DALRRD to make a presentation on the bottlenecks to the Committee.

The Chairperson thanked the Acting DG and her team and dismissed DALRRD.

Quorum Discussion
The Chairperson welcomed Ms Bowers to provide clarity on how a quorum is formed and the difference between voting individually and provincially.

Ms Shahieda Bowers, Procedural Officer: National Council of Provinces, drew the Committee's attention to section 65 of the Constitution.

Section 65 Decisions
(1) Except where the Constitution provides otherwise— (a) each province has one vote, which is cast on behalf of the province by the head of its delegation; and (b) all questions before the National Council of Provinces are agreed when at least five provinces vote in favour of the question.
(2) An Act of Parliament, enacted in accordance with the procedure established by either subsection (1) or subsection (2) of section 76, must provide for a uniform procedure in terms of which provincial legislatures confer authority on their delegations to cast votes on their behalf.

The National Council of Provinces derives its voting power from section 65. Its decisions must be taken in accordance with the Constitution which means voting is made provincially. Each province has one vote. Five provinces present quorum. This is decided by the Council or the committee of the Council.

Section 70: Internal arrangements, proceedings and procedures of National Council
(1) The National Council of Provinces may— (a) determine and control its internal arrangements, proceedings and procedures; and (b) make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
(2) The rules and orders of the National Council of Provinces must provide for— (a) the establishment, composition, powers, functions, procedures and duration of its committees; (b) the participation of all the provinces in its proceedings in a manner consistent with democracy; and (c) the participation in the proceedings of the Council and its committees of minority parties represented in the Council, in a manner consistent with democracy, whenever a matter is to be decided in accordance with section 75.

Section 70 provides the NCOP with the power to make its own rules. The rules were amended and Version 10 was adopted on 14 December 2021. The only amendment about committee business is about the election of the chairperson at the start of the Parliament in rule 150. The concern was that there was not a uniform procedure to elect the chairperson at the start of parliament. To address this and provide uniformity it was decided to provide this rule and make it clear. Rule 150 says that whenever it is necessary to elect a chairperson of a committee, the committee must elect one of its members. The question must be put forward by the secretary of the committee. The question may be decided only if a majority of the Members of a committee is present. The question is decided by a majority of the committee. This process refers to individual voting. As noted in section 70, only in cases of section 75 matters, is individual voting used.

Rule 150 was amended to remedy challenges that NCOP committees were experiencing specifically at the start of a parliament when selection of a chairperson is made. As committees did not have standard procedures in meetings, it was considered that in normal meetings, the usual procedure of elections is by way of individual vote and the majority vote makes the decision.

Rule 109 outlines that the committee must select one of its members as chairperson of that subcommittee. The principal committee of the subcommittee must appoint the chairperson of that subcommittee. Rule 109 already provides for that meeting procedure which is generally used across meetings. Rule 114 on quorum and decisions says that a committee may proceed with business irrespective of the number of delegates present but when a question is to be decided, delegates representing at least five provinces must be present. The question is decided by a supporting vote of at least five provinces.

Section 65 of the Constitution is clear that all decisions in the National Council of Provinces are taken along provincial lines, this is what distinguishes the National Council of Provinces and its mandate from the National Assembly. Section 70 says that only when we deal with section 75 matters we will deal with individual voting, and provision for this is made in rule 109 and rule 114.

In the case of committee minutes and reports, regardless of the subject matter or content of the report, it is dealt with in terms of section 65 of the Constitution which outlines provincial voting. It is only when faced with section 75 legislation that it is dealt with by individual voting.

Mr Smit noted that the matter of quorum and voting presents a dilemma. The head of delegation carries the province mandate or decision. The committee composition is then supposed to be one member per province and that member carries that province’s vote. The problem is that sometimes there are two members from the same province from different political parties. In the case of the head of the provincial delegation not being in the meeting, but the other delegation member is present, who has the voting power?

Mr Bawa explained the way the Committee has done its business thus far. When the committee has two members for a province, the ruling party of the province is looked at and recognised. If the ruling party is not there, then the other member will be the de facto. Voting quorum is not a requirement for presentations. Quorum is only required for voting purposes. In the case of minutes and reports, members or representatives of that province is looked at. Only members who were present in the meeting can vote on minutes as these members are speaking on behalf of their province. When it comes to dealing with section 76 legislation, the matter is sent to the province for a conferral to give input.

Ms Bowers noted that the Committee is following the correct process and is functioning correctly. The conferral of the Committee to the provinces is the purpose of mandate before the National Council of Provinces. This mandate is on the permanent delegate and only comes into play when the Committee is dealing with section 76 legislation. The Mandating Procedures of Provinces Act is clear as it stipulates when mandates are required. Mandates are not required for committee reports and minutes. When there are two members present for the province, it goes according to proportional representation. The member of the province which has the greater political proportionality of party representation, that delegate has the voting right.

The Chairperson urged the Committee to speak on the meaning of quorum and the difference between voting individually and provincially to ensure they are on the same page.

Mr Smit said that it was necessary for the Committee to gain clarity on this matter. He asked if the Member in the ruling party gets the vote for a province.

Ms Bowers replied that Mr Smit is correct. A dilemma is presented when a member that was not present in a meeting needs to vote on minutes. If this member was not present, they cannot testify to what happened in the meeting. If the province member was not present, they should not vote but rather allow someone else that was present to vote.

The Chairperson acknowledged that the Committee has now gained clarity on the matter and reminded Members to raise this matter in their respective forums.

Mr Smit asked for Limpopo province in the case of himself and Ms Mamorobela, if Ms Mamorobela has the voting right in minutes and reports instead of him because she is the majority party’s representative.

Mr Bawa confirmed that this is correct for the case of Limpopo. He further alerted members that there must be a separation drawn between quorum and voting.

Ms Bowers confirmed that the Members have the correct understanding. Her final remark to the Committee was that a special delegate can have voting power if the permanent delegate is not present, providing the special delegate is from the same province.

Mr Bawa noted the process the Committee will follow moving forward. In the case of minutes, members need to separate voting from quorum. Quorum will be a representation of members present, the person in the provincial representation is the one allowed to vote.

The Committee adopted the minutes of the previous meeting and the meeting was adjourned.