Communal Property Associations (CPA) Amendment Bill: Clause by Clause deliberation

Meeting report

The Chairperson welcomed all present, and indicated that many of the Members had tendered apologies that they would be leaving the meeting early.

Mr P Mnguni (ANC) said all Members should prioritise the meeting, because they were paid for the full day and should not put their personal affairs before Committee matters.

The Chairperson said the meeting might close at 1pm.

Mr T Walters (DA) said there were two matters that needed urgent attention -- the high level panel (HLP) recommendation that the Bill be put on hold, and the proposal to engage Adv Ramasala. He asked if it was important to consider the listed issues.

The Chairperson said the matter raised by Mr Walters had been raised on 31t January, and it had been agreed that the proceedings should continue and other processes would follow.  Dr Anika Classen would be invited to the Committee for interrogation on the recommendations that Members wanted to be clarified.

Mr Walters said he hoped that the delay in tabling issues would not lead to a delay in the proceedings.

Mr Mnguni said Mr Walters was taking the Committee through an unnecessary procedure, as there had been time to ask the questions during the meeting of 31 January, and he remembered that the issues had been discussed exhaustively.  He requested Members to proceed with the clause by clause reading. He advised Mr Walters to apply his mind to the day’s agenda, because his proposals could be misconstrued as a deliberate ploy by the DA to delay the Committee’s proceedings and to limit the achievements of the ANC.

Mr Walters said it was not fair for Mr Mnguni to cast aspersions on him.

The Chairperson said the Committee should proceed with the Bill, as the Committee could not allow the issues raised by the HLP to be settled before proceeding with the Bill.

Mr E Nchabeleng (ANC) agreed with Mr Mnguni that the issues being raised by Mr Walters had been deliberated extensively during the meeting of 31 January.

Mr Mnguni said the deliberation was done at the Committee level, and not at the party level. He would be ready to take Mr Walters on if he so desired.

Mr S Matiase (EFF) said he did not understand why Mr Mnguni was on the war part as his words reflected an unnecessary provocation.  He said Mr Walter’s submission was only a charge to the Committee that the recommendations of the High Level Panel should not be discarded, but should be considered during the deliberation. There should be an agreement that Dr Classen, a member of the HLP, would be invited. It was possible to have a discussion without stalling the process, as the HLP recommendations could be considered when considering the clauses.

Mr Walters said Mr Matiase’s understanding of his submission was right, and pleaded with the Chairperson to manage Mr Mnguni’s temper subsequently.

The Chairperson made a ruling that the disagreement and trade of words between the Mr Walter and Mr Mnguni should stop while the Committee proceeded with the day’s agenda, and directed Members on how the Bill would be read.

Mr K Robertson (DA) read out the contents of the Bill.

CPA Amendment Bill: Clause by Clause deliberation

Clause 1

 

The Chairperson asked if Members agreed with the replacement of ‘Director-General (DG)’ with ‘Registrar’ in line 9 of clause 1(a).

Mr Matiase (EFF) asked if the Registrar would be reporting to the DG

Ms Lucinda le Roux, State Legal Adviser, asked which official would report to the Minister if the Registrar reported to the Director General.

The Chairperson said during earlier discussions it was agreed that the office of the Registrar would be a unit within the Department, not an autonomous body.

Mr Nchabeleng said he was of the opinion that the Registrar referred to in the Bill had the same status as a registrar at a university.

Mr Walter said a phrase must be inserted in the amendment, that the Registrar should be an independent-minded operating entity working with a clear legal mandate. The mandate of the Registrar and expectations could be considered by the Committee.

Mr M Filtane (UDM) said he perceived the Registrar position to be a management position that would be focused on the management of the CPAs. The Registrar was a much more junior position than that of the DG.

Mr A Madella (ANC) agreed with Mr Filtane that the position of the Registrar was a position under the DG which had to be capacitated by the DG to perform its function.

Mr Nchabeleng suggested that the rank of the Registrar should be indicated.

Mr Mnguni said the functions of the Registrar were spelt out on page five of the Bill, and the Committee could wait until it gets to the item, as section 2 (d) covered  the item. He proposed that the issues of clarity would be discussed when Members got to the item on the functions and power of the Registrar as captured in amendment.

Mr Matiase there was a need to read the draft Bill in consultation with the principal Act. The intention of the draft Bill was to define the function of an authorised officer in relation to whoever was empowered to assist the CPAs. Based on the general explanatory note, the Bill would do away with the Director General position and replace it with a Registrar. Hence the Committee must apply its mind to what the change sought to achieve. He asked what the authority of the Registrar was in relation to the Director General.

The Chairperson invited Advocate Selo Ramasala, the Head of the Legal Unit, to make clarifications

Adv Ramasala said the authorised officer mentioned had been the person who would be sent to assist the CPAs before the Bill was amended. In terms of the Principal Act, it was appointed by the DG but the amendment provides for the appointment to be made by a Registrar. So the Registrar would appoint the authorised officer, and the Minister appointed the Registrar.

Mr Madella asked for clarification on the alignment between the DG and the Registrar. He asked if the Registrar was independent of the DG.

The Parliamentary Legal adviser said on page 5 of the Bill, it talks of the composition of the office of the Registrar and its powers, and the office of the CPA and its powers. He said the authorized officer was anyone delegated by the Registrar to carry out functions that should be done by the Registrar.

Mr Madella asked for clarity on who appointed the authorised officer -- was it the Minister or the DG?

The Chairperson said certain clarities should be made by the Department, because it was the Department that had drafted the Bill. It should not be seen as a disregard for the Parliamentary legal adviser.

Adv Ramasala said clause 2C (1) indicated that the Minister appoints the Registrar, and 2C (2) said the Registrar, with the consent of the DG, establishes a regional office.

Mr Filtane asked if he could raise another issue on what had been read.

The Chairperson declined, and said the Members should proceed to the definition of ‘Committee’ in Section 1(b).

Mr Filtane referred to clause 1(b) and said ‘Committee’ had been defined in the Principal Act.

Mr Madella asked why there was no distinction between a ‘committee’ and an ‘executive committee,’ as there could be a committee elected for other purposes.

The Chairperson said the definition of committee in the Principal Act differed from that in the Amendment Bill by specifying that the committee in the Amendment Bill was to assist in managing.

Mr Filtane said he was not sure that the term ‘assist’ was intentional, and gave a perception that the management of the affairs of the association was not the responsibility of the executives.

Adv Ramasala said it was intended to mean that the committee assists, because the association manages its own affairs, but the executive assists the committee in the management of its affairs.

Mr Filtane said using the phrase ‘on behalf’ would put the responsibility on the executives. He asked for clarity on the phrase ‘certain labour tenants’

The Chairperson said it had been discussed yesterday that the certain labour tenants referred to those to whom land had been restituted.

Mr Matiase agreed with the proposal made by Mr Filtane, and suggested that the associations in the definition of ‘committee’ in Clause 1 (b) should be reduced to avoid repetition.

Mr Madella said the Principal Bill stated that the committee manages the affairs of the association, which may lead to the total takeover of the association by the committee. He proposed that there should be a link between the definition and the clause that defined the roles and limitations of the committee so that it did not impose itself on the association.

Mr Mnguni said he supported the proposal of Ms Magadla, that the term ‘executive ‘should be added to ‘committee.’ He also agreed that Members should retain the definition of committee contained in the Principal Act.

Mr Walters said most of the ideas were valid and he would like to tie them together by saying that it should read ‘elected by an association to manage its affairs on its behalf in terms of its constitution’. He said ‘on its behalf’ indicated that the property did not belong to the Committee.

The Chairperson said Mr Walters proposed the insertion of ‘in terms of its Constitution’. There was a proposal for the need for a finance management committee, but it was not in the CPA amendment, but in the High Level Panel (HLP). There was also a proposal to add ‘executive’ before ‘committee.’

Adv Ramasala said it would not be a problem to refer to the Constitution, but there was only one committee identified in the Principal Act.

Ms Le Roux agreed with the submission of Adv Ramasala.

The Parliamentary Legal Adviser said his team would formulate the clause to see how well it could be written.

Mr Walters asked for the input of Adv Ramasala on the insertion of ‘Executive’ before ‘committee.’

Adv Ramasala said it should be left as ‘committee’ in the definition. He was of the opinion that that the term executive should not be inserted before committee in the Bill, because it would empower the committee to form a committee of committees. The term ‘to assist’ was inserted because of the power assumed by the committee, but it would be alright if the Portfolio Committee decided to change it.

The Chairperson said that the definition had been structured so that it limited the power presently assumed by the executives. A limit should be placed on the power given to the committee due to the autocratic nature of the committee, as reported by beneficiaries. She resolved that the definition be left as it was, and ‘executive’ should be inserted before the term ‘committee.’

Mr Matiase said the choice of word used could be changed, but the original power should be retained by the committee members. The definition of the committee should be left as it was and ‘executive’ should not be added to ‘committee’.

Mr Filtane said the Committee could be corrected, but it should not be overwhelmed by the need to correct the actions of the committees of the CPA. A reasonable committee should know that they were mandated to carry out its functions on behalf of its members for the benefit of the association. He suggested that the phrase ‘on behalf of’ should be retained in the definition, because the phrase clarified the function of the committee.

The Chairperson asked if Members agreed that the term ‘committee’ should be left without ‘executive,’ and if the definition should be left as it is.

Mr Walters agreed with Mr Filtane’s submission.

Mr Mnguni said the confusion was based on comments made against the three inputs from the legal departments and the Committee officials. He said these three should reconsider the issue based on the motivations by the Members, and reach a conclusion on what should be done.

The Chairperson referred to clause 1 (c) and asked if the proposed definition of ‘community’ should be accepted.

Mr Matiase proposed the removal of the term ‘labour tenant’ from the definition.

Mr Mnguni said based on the discussion of the two previous days, the term ‘community’ should be removed because it was intended to refer to the Association, but had been seen to be confusing.

Mr Matiase said he did not agree with the deletion of the term ‘community,’ as it was not a homogenous community and it was also an integral aspect of the Bill, since it was a Communal Property Association.

Mr Filtane said further references were made to ‘community’ in the Bill, and cited the example of page 4, Section 2 h.

Mr Robertson said he agreed with Mr Filtane that ‘community’ should not be removed.

Mr Mnguni said the notion of community had been discussed on 31 January, and it had been overwhelmingly agreed that the definition of ‘community’ should not be used, to avoid confusion. He said the beneficiaries believed that their benefits were taken to larger communities, so the term community had been rejected because it clouded the judgment of people. Therefore, the term ‘association’ should consistently replace term ‘community’.

Mr Walters said the term ‘community’ could be retained, but the definition should be rephrased.

Mr Filtane said land was restituted to a community and not to an association, so it was wrong to do away with the term ‘community’. Also an association was a group of communities that had land benefits.

Mr Madella said the people were first beneficiaries before they became members. It would be alright to say ‘a beneficiary community.’

Mr Nchabeleng said people who had land and title deeds had been forced into CPAs. It was also possible that the land could be shared among the members if they did not want to belong to the CPA, so that they could go back and form a community. Therefore the type of community referred to in this context must be defined. He supported Mr Madella’s submission that it should be written as ‘a beneficiary community’.

The Chairperson referred the issue of the definition of community to the legal department. She said the concern of the people was that the Bill would make it possible for the entire community to share their properties. She told the legal department to qualify the community. There should be a difference between a community and the association.

Mr Walters said a community was a group of people who had rights to a piece of land. Hr agreed with the ‘beneficiary community’ and supported the need for the legal department to reformulate the definition. He said ‘to determine’ in the definition was also of significance, and should be considered.

Adv Ramasala said they would look at the suggestions and try to provide a solution. If ‘community’ in the Bill was deleted, the definition in the Principal Act would remain because the definition in the Amendment Bill was meant to delete the previous definition present in the Principal Act. The word ‘determined’ was a way of determining the community. He said it was not every community, but the community referred to in Section 2. The type of community had been qualified in Section 2.

Mr Filtane said instead of ‘beneficiary community,’ the term should read ‘qualified community’. The Bill referred to potential beneficiaries and not to people who had benefited. He said ‘qualified community’ was that community that qualified for beneficiation.

The Chairperson recalled that she had made a ruling that the community should not be linked to Section 2, as the term ‘community’ could not be linked in isolation to Section 2.

Mr Madella said there was a difference in how the community was defined in the Principal Act and the Amendment Bill. He said the ‘wish’ to become a CPA came before the ‘determination’ of the CPA’s right in the Principal Act, while in the Amendment Bill the “determination’ of the right came before the ‘wish’ to form a CPA. He said the emphasis gave a new meaning to the definition.

Mr Mnguni said the beneficiary community, as recommended by Mr Madella, should be adopted.

He said he was concerned about the invitation to the Department to clarify the issues after its presentation, and expressed displeasure at the tendency of the Committee of risking engaging in an over-reach. He was concerned that the invitation to the Department to further clarify issues was contrary to the laws of separation of power.

The Chairperson said the Committee could not avoid the participation of the Department throughout the process. The Department would be invited to clarify issues, but the Committee would make the final decisions.

Mr Matiase said Mr Mnguni had made the point on over-reach for the second time. He had three submissions: either the Committee retreat to learn the process of adopting a Bill; for Mr Mnguni’s proposal on over-reach to be subjected to a test; or for Mr Mnguni, being the Chief Whip, to take action against the Committee. He would not like a reoccurrence of ‘a point of order.’

Mr Walters read clauses 1 (d) to 1 (h).

The Chairperson asked if there were any comments on the CPA’s office.

Members accepted the definition of ‘CPA Office’ and ‘Department’

Mr Mnguni said clause 1 (e), which proposed to remove ‘holding of property in common,’ would deprive the people of their rights because beneficiaries would be reduced to managers. He asked why the Department should oppose the holding of properties in common, because that was the essence of the association.

Mr Walters asked if the law supported people holding property together. There was a need to understand the logic behind the removal of the clause so that Members could decide if it was necessary to delete, retain or redefine it.

The Chairperson said holding property in common meant the acquisition, owning and managing of property by any association on behalf of its members, in accordance with the terms of the constitution.

Mr Walters asked why it had been pointed out for removal.

The Chairperson requested the Department to motivate the reason for its removal.

Adv Ramasala said the deletion was proposed because the Department was trying to make it clear that the association would manage and administer CPA property, against the current belief that the CPA owned the property. He said the Department was taking ownership away from the legal entity, and not the beneficiaries. The Department had received feedback that the CPA properties should be owned by the CPA. If the Committee decided that the CPA must continue to own the property, then it must delete the request for deletion in the Amendment Bill so that it remained as written in the Principal Act.

The Parliamentary Legal Adviser said the proposal had been rejected by the Committee during the meeting of 31 January. The reason given was that the committee was not a legal entity, and only the CPA was a legal entity. If the decision was upheld, then the clause that called for the deletion of ‘holding of property in common’ should be deleted.

Mr Madella said he did not agree with the position reached on the issue from the public hearings. It would be right to ensure that the ownership was restored to the beneficiaries.

Mr Walters said the situation where a few people hijacked property and sold it without the owner’s consent was wrong. The right of beneficiaries to own the land should be preferred, so it should not be deleted but could be reframed.

The Parliamentary Legal Adviser read the Principal Act and said the CPA owned the property in common on behalf of its members.

Mr Mnguni said it would be good for the Committee staff to summarise the discussions of the two days previous to the meeting so that it could serve as a guide with the corrections. It made sense for people to own their properties. Avoiding deletion of ‘the ownership of people in common’ would be a good response to the request of the people during the public hearings.

Mr Filtane supported Mr Mnguni’s submission. He said if community could not own properties because it was not a legal entity, the CPA must be allowed to own so that the fear of the people may be averted.  

The Chairperson said that if all Members agreed with the proposal, then Clause 1 (e) should be deleted to ensure that properties held in common by the association would be upheld.

Mr Matiase said all Members agreed that properties should be held in common.  

Mr Mnguni said the proposed deletion of ‘holding of property in common’ should be deleted. Section 25 of the Constitution states that no one should be deprived of their property. There was a consensus on the issue.

Mr Walters said he would hold his reservation.  He recommended that the issue should be revisited at the end of the Bill. What should be avoided was that a certain group of people were empowered to become autocratic, and it was important to observe how the decision would consequently play out.

Mr Filtane said possession and ownership were different things, so there was a need to redraft so that the intention of the Committee would be achieved.

The Chairperson said Members should remember that the definition was as it was in the Principal Act.

Mr Matiase agreed that the proposal for the deletion of ‘holding of property in common’ should be deleted. The Committee must avoiding tampering with ownership.

The Chairperson asked if the clause should be left as it was in the Principal Act.

Ms Vuyiswa Nxasana, Acting Deputy Director General, said she did not disagree with the deletion. However, questions had been asked if communal ownership was the correct way of owning land. Joint ownership had been a root cause of problems and conflicts in the communities.  The issue of communal ownership as a legal person had other unintended consequences that were known to the Department. Communal ownership was applied only to landed properties. and posed a lot of challenge to beneficiaries.

Mr Walters said he did not support the deletion of the proposal. He agreed with what Mr Filtane had suggested, and would want the Committee to discuss it further.

Mr Mnguni said Mr Filtane had come to two positions, and proposed that the Committee should stand by the first position which he had motivated. There was deep insight in Ms Nxasana’s submission, but it was not acceptable because she was a member of the Department.  His understanding about the CPAs was that they were like cooperatives, but this time on land ownership. The complaints of people were that the joint holding was being taken away, and the removal of the proposal would appease them.

The Chairperson said the view of the majority was to delete the proposed deletion in Clause 1e, to withhold the holding of property in common by the CPA.

Mr Filtane said there was a need to get a legal clarification on the choice of the Committee in 1 (e). There should be a stringent measure for the disposal of property and there could not be disposal of a property that was not owned.

Chairperson asked if the Parliamentary Legal Adviser agreed with the decision of the Committee on the removal of the proposal for deletion, and was told that the confusion arose due to the fact that the Act made reference to two types of juristic persons -- the CPA and individuals. The whole essence of the CPA was the communal ownership. The Committee had clarified during the meeting of 31 January  that the only juristic person was the CPA, and there was would be no consequence for the deletion.

The Chairperson asked if the proposal for the deletion of ‘interim committee’ in clause 1(f) should be upheld.

Mr Filtane said there was a need to motivate for the removal of the interim committee.

Adv Ramasala said in the past there had been a two-part process of starting a CPA -- the provisional and the fully fledged CPA. The provisions of the new Bill to support the elimination of the provisional CPAs brought about the removal of ‘interim committee.’

The Chairperson asked if Members agreed to uphold the deletion of ‘interim committee.’

Mr Filtane agreed that the Portfolio Committee should uphold the deletion.

The Chairperson upheld the decision to delete the tern ‘interim committee,’ and asked if the definition of ‘labour tenants’ should be upheld.

Mr Mnguni referred to clause 1(g) and said when labour tenants were restituted, they became beneficiaries and were equal to other beneficiaries.

 

Adv Ramasala said ‘labour tenant’ was used because reference was made to it in the Bill, as in the definition of ‘community.’

Mr Matiase agreed with the definition as long as ‘labour tenants’ would not feature in the definition of ‘community’.

Mr Nchabeleng said labour tenants became land owners after the land had been restituted to them, so they were no longer labour tenants.

The Parliamentary Legal Adviser said ‘labour tenant’ had come on board because the Department had wanted to extend the definition of community to include labour tenant. However, it had been decided during the meeting of 31 January that the current definition of community did not exclude labour tenant. When labour tenants had been restituted; they ceased to be labour tenants but rather beneficiaries. He proposed that it should be deleted, if it had no significance in the Bill.

The Committee agreed with the adviser’s submission.

The Chairperson referred to clause 1(h) and asked if Members agreed that ‘provisional association’ had the same meaning as ‘interim committee’ in the context of the Bill, and should be deleted.

Mr Matiase agreed with the Chairperson’s proposal.

In respect of clauses 1 (i), 1(j), 1(k) and 1 (l), Members agreed with proposals made for Registrar, register, registration officer and similar entities without any deliberation.

The Chairperson thanked Members of the Committee and the delegates from the Department. She said time would be scheduled to continue with the proceedings on the Bill.

The meeting was adjourned.