Restitution of land (Parliament SA)

Die komitee wat Grondhervorming – Restitusie ondersoek het, het vergaderings op 5 September 2018 onder voorsitterskap van Ms P Ngwenya-Mabila van die ANC plaasgevind.  Daar was ook gedurende Augustus 2018 vergaderings gehou.    Vroeër in 2018 is ‘n mosie ingedien om die Wet te verander dat eiendom onteien moet word sonder vergoeding.   Publieke vergaderings is daarna landwyd gehou en insette is ook via e-pos gelewer.   Die krisisse het glo ontstaan binne die parlement wat ook nie altyd prosedures gevolg het nie.

Parlement te Kaapstad / Parliament in Cape Town
Image result for sa parliament photo


SO-CALLED CRISIS OF LAND REFORM (after 25 years)

CDE acknowledges the contribution to this piece made by Professor Peter Delius, Emeritus Professor of History at the University of the Witwatersrand.  (6 July 2018

“crisis on land restitution”

quote

NOTES:

1 Land Reform has three subdivisions: Land Restitution, which was intended to redress the loss of land by black communities and individuals since 1913; Land Redistribution, which had the objective of changing the skewed pattern of land ownership through the state transferring land to black South Africans; and tenure reform, which was meant to strengthen the forms of tenure in the previously black designated areas. Thus far no legislation has been introduced in relation to tenure that has survived scrutiny by the courts.   
10 For example, a study conducted by the Community Agency for Social Enquiry (CASE) found that the majority of the 179 land restitution projects they assessed were not meeting their developmental objectives. Where agriculture was the main objective, 83% of projects underperformed; where settlement was the main aim, 75% of projects underperformed, and where ecotourism was the main aim, 88% of projects underperformed, HLP Report p,234.

The court gave Parliament 24 months when it declared the 2014 Restitution of Land Rights Act invalid after finding that Parliament’s public consultation process was inadequate.

The original deadline for lodging claims for land restitution was 1998. The Land Restitution Act stipulated that claims must be for loss of land after 1913 as a result of past racially discriminatory laws or practices.4 It was envisaged that the process would primarily provide redress for the so called “black spot” removals that took place under Apartheid, and that it would be completed within five years. Once this goal was achieved land redistribution was to be the central focus of land reform. Five, then ten and finally twenty year deadlines have passed without this goal being achieved:

– The 2017 High Level Panel report to parliament chaired by former president Kgalema Motlanthe claimed that there are still more than 7,000 unsettled, and more than 19,000 un- finalised, ‘old order’ claims (claims lodged before the initial cut-off date of 1998).5 It estimates that at the current rate of progress it will take 43 years before the backlog is cleared.

– In 2014 the Zuma administration, seeking to shore up its rural support base and consolidate its alliance with traditional leaders, reopened the land claims process via the Restitution of Land Rights Amendment Act, 2014. It took this step, despite many thousands of claims for restitution lodged in or before 1998 remaining unresolved.

– In the 12 months after this Act came into effect, approximately 160,000 new claims were lodged, which is double the number in the first round. The Act was challenged by many communities deeply concerned that their decades’ long wait for a resolution of their claims would be further drawn out by the demands of the new policy.

– In 2015 the Constitutional Court declared the Restitution of Land Rights Amendment Act 15 of 2014 to be invalid and stipulated that land claims lodged by 1998 be finalised before a re- enactment of the 2014 Act. The Constitutional Court recognised the validity of the new claims, but it prohibited any further processing of them until all the old order claims had been completely finalised.6

– Parliament was given 24 months to introduce new legislation. Failing that, the Chief Land Claims Commissioner had to apply to Court for an order on the processing of the claims lodged after 1 July 2014.

– In 2018 Treasury modelling has estimated that the new claims already lodged will take 200 years to conclude at a cost of approximately R600 billion. 7

– If the process of lodging new claims is re-opened, the High Level Panel estimates that a total of 397,000 new claims will be made and could take 709 years to finalise.

unquote

a1

BILL VERSIONS – kliek op die verskillende weergawes in verskillende stadiums
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BESPREKINGS VAN VERGADERINGS

Slegs die September 2018 vergaderings is aangehaal, daar is ook ander vergaderings in Augustus 2018 gehou.

 

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SA PARLIAMENT:
The Portfolio Committee on Rural Development and Land Reform concluded its public hearings yesterday in Worcester, in the Western Cape, on the amendment of the Restitution of Land Rights Act of 1994. The hearings began on 18 June.The amendments seek to, among other things: develop and keep the National Land Restitution Register; amend the cut-off date for lodging a land claim for restitution; regulate the prioritisation of claims and the appointment of a tenure officer and the conditions and service of Land Claims Court; and to give the Minister powers of delegation and to repeal the Restitution of Land Rights Amendment Act of 2014.

The Standing Chairperson of the Committee, Mr Mguni said everywhere they went in all nine provinces there was an overwhelming support for the reopening of the land claims process. “As a committee, we will process the outcomes of these public hearings and pass these amendments to the National Assembly and the National Council of Provinces for consideration.”
Public hearings concluded SA Parliament~

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More QUOTES of meetings

5 SEPTEMBER 2018 DELIBERATIONS 

Land rights deliberations – besprekings in komitee

On clause 2, Members asked whether the National Land Restitution Register would have an independent body looking after it, given that later in the Bill the independence of the Land Claims Commission would be addressed.
On clause 3, the meaning of the wording ‘… in the province” was questioned.
On clause 4, Members wanted clarity on whether a claim could still be lodged after the specified period.

On clause 5, the Parliamentary Legal Advisor said that in the last meeting that clause had been flagged because part of the wording went beyond the jurisdictional powers of the Commission and he proposed a rewording of the clause which would keep within the jurisdictional powers of the Commission. Members also asked what happened when all the old claims had been dealt with, because there was a limitation on 2014 claims and newer claims as all old claims had to be dealt with first.On the fines determined in clause 6, Members questioned what an appropriate fine would be given the amount of corruption within the country.

On clause 14, Members queried the Minister’s power to delegate to the Chief Land Claims Commissioner if that body became independent.

On the short title of the Bill, Members asked whether the year in which the Bill was initiated was used, or the year in which the Bill was finalised.

The Committee after going through the ‘A’ list and ‘B’ Bill, adopted the Committee report on the Amendment Bill.

Meeting report

Opening remarks
The Chairperson said the Committee was continuing its deliberations on the Restitution of Land Rights Amendment Bill [B 19 – 2017]. She said the Committee would look to complete the clause-by-clause reading of the amendment Bill that day.

Mr P Mnguni (ANC) informed the meeting that he had met with Parliament’s programme whip that morning and had been reminded of the three-day rule before the second reading of the Bill which was scheduled for Tuesday of the following week. That meant that the Committee had to complete its work on the Bill by that day or the following day.

Deliberations on the Restitution of Land Rights Amendment Bill [B 19 – 2017]
The Committee proceeded with a clause-by-clause reading of the Bill.

The Committee agreed to the objectives of the Bill and clause 1 of the Bill.

On clause 2, Mr K Robertson (DA) asked whether the National Land Restitution Register would have an independent body looking after it, given that later in the Bill the independence of the Land Claims Commission would be addressed.

The Chairperson said the Commission was the body that would develop the Register.

Ms Tshepo Mabhela, Legislation Specialist: Department of Rural Development and Land Reform (DRDLR), said that the Department was of the same view. It was about the establishment of the Register, whether the Commission was independent or not.

Mr Michael Prince, Parliamentary Legal Advisor, also concurred on the point. He further pointed out a technical error in clause 2. The amendment was to section 6. and not section 11 as indicated in the Bill and that needed to be corrected.

The Committee adopted clause 2 with the technical correction.

On clause 3, Mr Tshililo Manenzhe, Content Advisor to the Portfolio Committee, questioned the wording ‘… in the province”. What did it mean?

Mr Prince said one could rephrase it as “in the relevant province”, as it would relate to the province in which a claim was lodged.

The Chairperson asked what the difference between the two phrases were.

Mr Prince said there would be no real difference in meaning.

Mr P Madella (ANC) said the key issue was that a particular effort was being made at provincial level to promote land claims.

Mr Robertson said he agreed that it should read “in the relevant province”.

Regarding the phrase ‘relevant province’, Ms N Magadla (ANC) queried instances where it might refer directly to one province but might occur in other provinces as well.

The Chairperson said that claimants were living in different provinces and so, apart from the national advertisements, there was a need to look at the use of the provincial media.

Mr Mnguni said that claims should result in a notice of the claim in the national media and the media ‘in the province’, so the wording as it stood was correct and he proposed that it should be retained.

The Committee adopted clause 3 as it stood.

On clause 4, Mr Robertson wanted clarity on whether a claim could still be lodged after the specified period.

Mr Prince said that clause 4 amended subsection 5 of section 12 and that a claim could be lodged, on good cause, but no later than five years after the legislation had come into effect.

Ms Mabhela said that the Commissioner could prescribe a cut-off date for the lodging of claims but that that date could be no later than five years after acceptance of the legislation.

The Committee adopted clause 4.

On clause 5, Mr Prince said that in the last meeting with the Committee, that clause had been flagged because part of the wording went beyond the jurisdictional powers of the Commission and he proposed an amendment which would keep within the jurisdictional powers of the Commission.

The proposed amendments were:
Regarding: “16A.(1) Upon finalisation or referral to the court…”, the words ‘in terms of section 14’ would be added so that it would read “16A.(1) Upon finalisation or referral in terms of section 14 to the court…”

And regarding line 50 “… subsection (1) to determine whether a claimant who lodged a claim on or before 31 December 1998 has a valid claim.” Would change to “ … subsection (1) in order to investigate the merits of a claim lodged on or before 31 December 1998.”

Ms Mabhela said the revised wording was being proposed to keep the legislation in line with the mandate of the Commission because the current wording of the amendment went beyond the powers of the Commission.

Mr Madella asked what happened when all the old claims had been dealt with, because there was a limitation on 2014 claims and newer claims as all old claims had to be dealt with first.

Mr Mnguni said claims were processed on a ‘first come first served’ basis but the earlier claims might be fraudulent claims, so the amendments were trying to define a priority for all the claims and accommodate all stakeholders.

Mr Prince said that subsection 2 would not affect new claims, and section 16A subsection 1 meant that the Commission had to publish a notice in the gazette as to when the Commission would start processing claims.

The Committee adopted the revised wording of clause 5.

On the fines as determined in clause 6, Mr Robertson questioned what an appropriate fine was,  given the amount of corruption within the country.

The Chairperson said the fines were dependant on each case individually.

Mr Prince explained that the Minister published a schedule regarding the fines which would be commensurate with the period of imprisonment. The fines were, for example, R10 000 for three months and R20 000 for six months.

Ms Mabhela said the Act would prescribe the fines but issues such as mitigation and extenuating circumstances would be taken into account.

Mr Robertson questioned whether a six-month prison sentence was enough, given the level of corruption.

Ms Mabhela said that the Committee had, in fact, changed it from three months to six months in the 2014 Amendment Act.

Mr Mnguni agreed with Mr Robertson and suggested a maximum of 12 months instead of six months.

Mr Robertson said there were cases where millions of Rands were squandered and that six months was insufficient jail time. He seconded the proposal of 12 months as the maximum, unless the terms set out were guided by other legislation.

Mr Prince said the duration of the prison sentence was policy driven and, in that case, was based on the stated corruption in the country and, therefore, a period of 12 months’ imprisonment could be set.

Ms Magadla supported the view of 12 months.

The Committee adopted clause 6 with the amendment of a maximum period of 12 months’ imprisonment instead of six months’.

The Committee adopted clauses 7 to 13.

On clause 14, Mr Robertson queried the Minister’s power to delegate to the Chief Land Claims Commissioner if the that body became independent.

Ms Mabhela said that currently the Director-General was the Accounting Officer of the Commission.  At a later stage, if the Commission became independent, then amendments might have to be made.

The Committee adopted clauses 14 and 15

On the short title of the Bill, the Chairperson asked whether the year in which the Bill was initiated was used, or the year the Bill in which it was finalised.

Mr Prince said that when the Bill was printed in its final form the year reflected would be 2018, but it was left as 2017, the year it was initiated, for now.

The Chairperson said that the meeting would adjourn for the drafting of the ‘A’ list and the ‘B’ Bill and when that was done it would be considered together with the Committee report.

unquote

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SEPTEMBER 2018

Ms P Ngwenya-Mabila of the ANC chaired the meeting on 5 September 2018 in Parliament regarding the Restitution of Land Rights Amendment Bill:

Finalisation.

QUOTE
The Committee met very briefly to ensure that all amendments decided upon in the morning session had been correctly made in the final copy of the Restitution of Land Rights Amendment Bill. The Committee adopted the amendments. The Chairperson read through a two-page report to be published in the Announcements, Tablings and Committee Report. The report was adopted by the Committee.
A technical amendment was made to Clause 2 to ensure correct reference to section 6 of the Act. Two changes were made to Clause 5, firstly to link referrals to the Court to Section 14 and, secondly, to correct the powers of the Commission to investigate claims, and not to determine claims. Finally, in Clause 6(e ) offences against a claimant would be liable to a term of imprisonment of 12 months, not six months.

Consideration of the amendments to the Restitution of Land rights Amendment Bill [B 19-2017]
Members were issued with a document indicating the changes made, as discussed in the earlier meeting.  The Chairperson asked Members to consult both the original Bill and the changes before them.

B list
The Chairperson presented the changes made to the Bill by the Legal Advisor and Committee staff following the decisions taken in the meeting that morning.

Clause 2: Section 6 of Act 22 of 1994 sub-section 2 
The Committee had identified a technical error in that Clause 2 referred to section 11, instead of section 6. That had been corrected.

Clause 5: Insertion of 16A 
16A(1) The referral to the court had been tightened up by inserting a reference to section 14 to ensure the authenticity of referrals.
16A(2) Two lines in the processing of claims had been deleted. Instead of being able to determine the validity of a claim, it gave the Commission the right to “Investigate the claims”.
The Clause had been re-written and replaced the previous version.

Clause 6: section 17 
In subsection (e) a change was made in terms of the maximum period of imprisonment from six months to 12 months.

The Chairperson informed the Committee that those were the only changes to the Bill. She asked for a proposal for the adoption of the amendments.

Ms C Matsimbi (ANC) proposed the adoption of the amendments to the Restitution of Land Rights Amendment Bill [B 19-2017]. Mr A Madella (ANC) seconded the adoption of the amendments.

Consideration of the Report of the Portfolio Committee of Rural Development and Land Reform on the Restitution of Land rights Amendment Bill [B 19-2017]
The two-page report was handed out to Members and read by the Chairperson.

Clause 2
On page 2, in line 18, after “Section”,  omit “11” and substitute it with “6”.

The Chairperson asked if all Members agreed with the statement. The Committee agreed.

Clause 5
The clause was rejected in its entirety and a new clause 5 added.

The Chairperson asked if all Members agreed with the statement. The Committee agreed.

New Clause
Insertion of section 16A in Act 22 of 1994
5.The following section is hereby inserted after section 16 of the principal Act:
“Processing of claims
16A.
 (1) Upon the finalisation or referral in terms of section 14 to the Court of all claims lodged on or before 31 December 1998, the Chief Land Claims Commissioner shall certify in writing that such claims have been finalised or referred to the Court, and shall publish a notice in the Gazette and in the media circulating nationally and in the province, stating the date on which the Commission shall start processing claims lodged
from 1 July 2014 until 28 July 2016; and in terms of the Restitution of Land Rights Amendment Act, 2017.
(2) Notwithstanding anything to the contrary contained in subsection (1), when processing claims lodged on or before 31 December 1998, the Commission may on a case by case basis and where it would be in the interest of justice to do so, consider a claim contemplated in paragraphs (a) or (b) of subsection (1)  in order to investigate the merits of a claim lodged on or before 31 December 1998.”.’’.

The Chairperson asked if all Members agreed with the statement. The Committee agreed.

Clause 6
On page 4, in line 19, after “three” omit “six” and substitute with “12”.

The Chairperson asked if all Members agreed with the statement. The Committee agreed.

The Chairperson noted that all Members had agreed to the report. She asked for a Member to propose the adoption.

Mr R Cebekhulu (IFP) proposed the adoption of the report.

Mr P Mnguni (ANC) indicated that he would second the proposal but, first, he cautioned that there might be an error in the Bill as the numerals were not transcribed in a consistent form. Six had been written in letters as a word and twelve was written in numerals.

The Chairperson suggested that it might have been an error.

Mr Michael Prince, Parliamentary Legal Advisor, indicated that the numbers were correct and had been written in the drafting style. He explained that numbers under ten were written in word format and numbers above ten were written in numerals.

The Chairperson thanked Mr Prince for explaining the legal way of doing things. She accepted the proposal for adoption by Mr Cebekhulu. The adoption had been seconded by Mr Mnguni. That was the end of the meetings on the Restitution of Land rights Amendment Bill [B 19-2017].

UNQUOTE

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