MP Trollip proposal: individual security for people living under communal land tenure; MP Smalle proposal to amend Lotteries Act: recommendation report; Committee Annual Report

Meeting report

Legislative Proposal to ensure full individual security for people living under communal land tenure
Mr Athol Trollip (DA) said the apologies made at the last meeting by the Whip and Members of the Committee for what had transpired at the previous meeting had been conveyed to him and he accepted and appreciated that attitude and thought the morning’s meeting had begun in a very constructive manner.

Mr Trollip presented his legislative proposal, saying land in the former homeland areas was currently categorised as unsurveyed, unregistered land and trust land, resulting in insecure tenure for the people living in those areas. In addition, the Constitutional Court had declared the legislation passed to ensure the security of tenure in communal areas, CLARA, unconstitutional. That may well have been done on a technicality, however reform of the feudal land tenure practices in communal areas was long overdue.

The legacy of colonialism and apartheid legislation imposed strict regulation on the rights to private land ownerships for people living in communally held land, especially black people in this country. Specifically affected pieces of legislation were the 1913 Native Land Act, the Native Trust and Land Act of 1936, and the Group Areas Act of 1950. Later under the Black Areas Regulations of 1969 only two forms of tenure were recognised in the former Homelands, which were quitrent for surveyed land and permission to occupy for unsurveyed land. While permission to occupy guaranteed permanent occupation, that was not recognised by financial institutions as collateral and could not prevent the state from unilaterally or arbitrarily evicting people living on that land, and also represented what Fernando dos Santos spoke about as ‘dead capital’.

In order to reform the precarious land tenure system Parliament in 2004 enacted the Communal Land Rights Act (CLARA), with three purposes:
- Providing legal security of tenure by transferring communal land, including the KwaZulu-Natal Ingonyama Trust Land, to communities, or by awarding comparable redress;
- Providing for the conducting of a land rights inquiry to determine the transition from old order rights to new order rights; and
- Providing for the democratic administration of communal land by communities.
The proposal was all about the transition from old order rights to new order rights.

In March 2010 four communities occupying communal land in Mpumalanga, Limpopo and the North West Province approached the Constitutional Court in an effort to have CLARA declared unconstitutional on the grounds that it undermined the security of tenure of those living on communal land and that it had been enacted in a procedurally incorrect manner. Further, those communities challenged CLARA on the basis that it would undermine gender equity and grant authority to traditional leaders who had not been elected and whose interests did not necessarily reflect those of the communities.

South Africa was a constitutional state that recognised traditional leaders and the DA and Mr Trollip respected the traditional leaders and the institution of Traditional Leaders and did not wish to undermine those, but also respected the rights of individual South Africans.

In May 2010, CLARA was declared unconstitutional. The court found that the manner in which the legislation was passed was incorrect, as it replaced the indigenous law that regulated land occupation, use and administration in the different provinces, and therefore fundamentally affected the interests of provinces. The court also found that there was inadequate consultation with communities and provincial structures prior to the adoption of the Act. One of the most fundamental requirements when promulgating legislation was that there had to be interaction through public hearings, and the court found that that had been deficient.

The court declared CLARA to be invalid in its entirety due to this procedural anomaly, thus rendering it unnecessary to consider whether the substance of the Act was unconstitutional. However, that did not provide the substantive clarity the country required. There were two further substantive grounds on which the communities concerned argued against CLARA. Firstly, it reconstituted apartheid era boundaries and entrenched existing tribal structures. Secondly, they argued that the Act would perpetuate insecurity of tenure by only titling the outer boundaries of communities and would undermine the ability of local communities to control and manage their land. Finally, prominent academics argued that the Act did not take into account the issue of ‘living customary law’ practices on the ground and sidelined ordinary citizens and public rural voices in the process.

Chief Justice Sandile Ngcobo emphasised that the Constitution obliged the state to see to the ‘restoration of land to people and communities that were dispossessed of land by colonial and apartheid laws and people and communities whose tenure of land is legally insecure as a result of racially discriminatory colonial and apartheid laws must be provided with legally secure tenure or comparable redress’. That was also stated clearly in the National Development Plan (NDP) tabled recently in Parliament, and was a question of restoring existing land that apparently already belonged to the state. Therefore the scapegoat that the Department of Rural Development and Land Reform used for their glacial progress in land reform and restitution that ‘willing buyer, willing seller’ was what constrained them was not acceptable. In the Green Paper of the department, the government and the Department of Rural Development and Land Reform’s commitment to the constitutional principle of ‘willing buyer, willing seller’ was neither confirmed nor denied. That was unacceptable because the right to hold property, movable or immovable, was a guarantee of the Constitution and if this legislation excluded that it undermined the cornerstone to the right to own property.

Chief Justice Sandile Ngcobo also emphasised that Parliament should urgently and diligently enact the constitutionally envisaged legislation that would ensure there was restitution of land to the people and communities that were dispossessed of their land during the apartheid era, which was the fundamental motivation for the submission of the legislative proposal.

There was a lacuna; there was a piece of legislation enacted by Parliament that was rejected by the Constitutional Court more than 21 months ago, the lacuna failed to be filled and the DA believed that that lacuna should be filled by consideration of the Private Member’s bill.

The objects of the proposal were:
▪ That legislation vesting ownership directly with the people currently living on communal land be drafted. The drafting of that legislation was not only necessitated by the findings of the unconstitutionality of CLARA but also by the need to expedite the process of transferring land historically owned by the former homelands to individuals who resided thereon.
▪ That all land under question is surveyed and registered in the Deeds Registry as part of comprehensive land or state owned land audit;
▪ The formal registration process of individual deeds titles, land and buildings, must be implemented according to the guidelines set out in the Deeds Registry Act;
▪ The rates collection system that applied in municipal areas is applied to communally held land as prescribed by the Municipal Systems Act (MSA);
▪ The challenge of collective land tenure in the former homelands is addressed. For example, by converting collective land rights (and other tenuous land rights and land use rights) into other forms of land ownership, which placed more power in the hands of the people of South Africa and not solely in the hands of traditional or state appointed custodians;
▪ In congruence with the National Development Plan, tenure of security for communal farmers is created.
The Committee agreed that relevant stakeholders would be invited to make submissions.

The NDP stipulated that ‘tenure security is vital to secure incomes for all existing farmers and for new entrants’ and ‘better land use in communal areas has the potential to improve the livelihoods of at least 370,000 people’. The NDP therefore recommended the investigation of ‘the possibility of flexible systems of land use for different kinds of farming on communal lands’.

In terms of financial implications for the State, there would be survey costs and transaction costs, but land would not have to be bought because the land was already vested with the state. The achievement of the legislative proposal would not cost the state unduly.

The Chairperson thanked Mr Trollip. Members would like to get into substantive issues but he asked that they stick to clarity-seeking questions.

Discussion
Ms Kubayi welcomed the presentation on such a critical matter; others might consider it a sensitive matter noting what was happening in neighbouring countries on issues of land. She noted that Mr Trollip was also a Member of the Portfolio Committee on Rural Development and Land Reform and that the proposal had been submitted earlier. She asked if there was any indication of what that department was trying to do, and if the introduction of the Green Paper process would address some of the issues raised in the proposal?

Mr Trollip responded that the Green Paper on Rural Development and Land Reform dealt with many issues around land reform that essentially meant that the State would acquire strategically located land to locate previously disadvantaged and dispossessed people. It did not look at dealing with the security of title of people residing on communal areas. Even the stakeholder groupings that had been grouped into six different groups to look at that piece of legislation and the department was proposing that one stakeholder grouping of traditional leaders be considered after the other five components of that legislation, and hence wanted to implement legislation on a piecemeal basis emanating from the Green Paper. The concern was that it did nothing to the reform of feudal land ownership and the insecurity of title of the people living on the land.

Mr Trollip was aware that there was sensitivity around this issue. The concern was that once people who resided in poor rural areas were given title of land there might be the temptation to sell the land in order to get money and then find themselves without any home or any space to live. Equally it empowered people and allowed them to leverage capital to buy a tractor, to educate a daughter, to make their land work for them, and ownership secured title. He did not believe that the Green Paper dealt with the actual transformation or reform of the feudal land tenure system in communally held land.

Ms Molebatsi noted that one of the reasons given for the unconstitutionality of CLARA was because there was no proper consultation, and asked whether there were public hearings?

Mr Trollip replied that the courts found that provinces (because it affected all provinces that had traditional or communal land where there were former homelands or Bantustans) were not consulted by Parliament. That was partly why the legislation was rejected, but the point he was stressing was there were four groups of people that lived in rural areas that applied to the court to have the legislation turned down because they too felt that they had not been consulted and their voices and concerns had not been taken into account in the public hearing process.

Mr F Bhengu (ANC) suggested that the Minister or the department be invited to look into this matter.

The Chairperson said looking at the current economic status of South Africa characterised by poor rural communities, there was the danger of their possibly disposing of their land as they wished. South Africans were taking land to use as collateral to the banks and thoughts were on the lines of recolonising South Africa. He asked how that envisaged challenge would be balanced?

Mr Trollip responded that that was a very good and vexing question. Banks loaned money that was invested with them, but not enough people in this country had the capacity to invest with banks so foreign investment was used to loan to people in this country. Taiwan was a very small country with very little agricultural land. When the Japanese colonised Taiwan and built canals and started planting rice for their own people using Taiwanese people as labour, the Japanese said the Taiwanese were lazy, incompetent, illiterate and untrainable. Once they were off the yoke of the Japanese they reformed the feudal system and gave people title to their land. Those that did not want to work their land sold it to others and went to the city with something in their pocket, whereas in this country people left rural areas to seek greener pastures in the cities with nothing in their pockets. At least with the proposed system they would be able to take something to start a life. Also people who owned something took care of it. There were examples across the globe where entitlement brought economic growth and prosperity.

The Chairperson was concerned about administration. CLARA created a land administration structure, also in rural communities where traditional councils were still in operation in terms of the Traditional Leaders Governance Framework Act that should be responsible for that administration. The requirement of the establishment of the council referred to in that Act dictated that one third of that structure should be women. Did the legislative proposal take into account the interests of women?

Mr Trollip said it was very important that when he read, he quoted because those were the people who went to the courts and said they believed their rights were going to be undermined. Submissions from twenty civic organisations included those of women.

Ms J Kilian (COPE) supported the notion of engagement with the Minister and the relevant department, but the Committee was not compelled to wait for them to give feedback.

The Chairperson thanked Mr Trollip; he would be informed of the date for deliberations. He asked Mr Trollip to do further research so that he would be able to add value to the deliberations.

He advised Members that although the proposal came under the umbrella of the DA, it was a Private Member’s Legislative proposal, and to refrain from party politics. Relevant stakeholders would be invited to make submissions.

Smalle proposal to amend the Lotteries Act 1997 (Act No 57 of 1997)
The draft Committee Recommendation Report was tabled. The Committee made the following observations with regard to their recommendation:
▪ The legislative proposal of Hon F Smalle preempted legislation soon to be introduced by the Department of Public Trade and Industry in the form of the Lotteries Amendment Bill.
▪ The legislative proposal proposed by Hon Smalle would be addressed by the Lotteries Amendment Bill, which would be introduced in the Cabinet. The Bill would be tabled in Parliament in September 2012.
▪ Furthermore, the Committee would monitor the progress of the introduction of the legislation.

In light of the above, the Committee was of the view that the legislative proposal of Hon Smalle was not feasible and it should not proceed with it.

Mr van der Westhuizen was not happy with the word “feasible” in the last paragraph.

The Chairperson agreed that that wording be changed to something more suitable.

The report was adopted with amendments.

Committee Annual Report
Ms M Mdaka (ANC) complained that she was again listed as an alternate Member.

Ms Kubayi explained that a letter had been sent to the Speaker’s Office, so the correction was being attended to.

Ms Kilian asked for clarity that the ANC had seven permanent Members and two alternates, with Ms Mdaka being changed that would mean the ANC had eight Members and one alternate. The DA had two permanent Members, and COPE only had one Member and tried to ensure an alternate. She asked if that was correct?

The Chairperson explained that some Members had been with the Committee from 1 April 2011 and some were no longer Members of the Committee as at 31 March 2012.

Ms Kubayi added that if Ms Mdaka remained as an alternate there would not be sufficient Members for a quorum, which was why it had to be corrected. Due to issues of quorum the ANC needed two alternates.

Mr van der Westhuizen noted that there was nothing under the mission statement heading.

Ms Kubayi said that was why a decision was taken to have a strategic plan. It would be unfair to develop a mission statement now, as it was not in the reporting time.

Ms Kilian suggested referring to the Committee’s duties in terms of the rules.

The Chairperson agreed to take what the rules said until a statement was developed. Previous reports reflected ‘none’, but it was felt that undermined the work of the Committee.

Ms Kilian referred to the Davidson proposal to regulate business interests of State employees and the column headed publication date of report in the ATC. If a report was adopted it should have been published in the ATC, was it an error in the report or an error in processing at the ATC?

The Chairperson replied it was an error in reporting and would be corrected.

Mr van der Westhuizen did not think the relevant government priority of fighting crime and corruption should apply to the Ollis proposal to amend the Labour Relations Act or the Smalle proposal to amend the Lotteries Act.

Ms Kubayi said the relevant government priority for the Labour Relations Act should be creation of decent work; but fighting crime and corruption was correct for the Lotteries Act because it was dealing with corruption in the Lotteries Board.

Ms Kilian asked whether the Trollip proposal to amend the Executive Members’ Ethics Act was not published in the ATC yet because the column did not reflect dates.

The Chairperson said the records would be checked and the report amended accordingly.

Ms Kubayi said that also applied to the Lotteries Act.

Ms Kilian suggested adding a column to explain why there was a delay in the processing of some proposals. She referred to Ms Lovemore’s proposal to amend the Electoral Act and was not aware why the Committee had not processed that report and the status of why it was delayed was not reflected in the report.

The Chairperson agreed that a remarks column was needed. Initially it was reported as ‘not to proceed’ or ‘to proceed’, which was not correct. There were reasons not to proceed and an explanation was needed.

Ms Molebatsi noted that the proposal to ensure full individual security of tenure for people living under communal land tenure was by Ms Lindiwe Mazibuko, was it Ms Mazibuko, or Mr Trollip, or both?

The Chairperson explained that Ms Mazibuko initially proposed but withdrew; Mr Trollip presented a new proposal.

Ms Kilian noted the estimated costs of R145 148, and asked what that was made up of, and whether all committees had to submit estimated costs in their annual reports.

The Chairperson said costs included transport costs, study tours, accommodation and so on.

The report was adopted with amendments.

Adoption of minutes
Minutes of Committee meeting held on 9 May 2012 were adopted.

The meeting was adjourned.