RESTITUTION OF LAND RIGHTS ACT AMENDMENT BILL, 2013

SUBMISSIONS TO THE PORTFOLIO COMMITTEE ON RURAL DEVELOPMENT AND LAND REFORM

29 January 20141

contents

2

1. INTRODUCTION AND CONTEXT….…………...………………3

2. AMENDMENT OF SECTION 2: The effect of re-opening of claims…...…...…...…...…...…...…...…...…...…...…...…...….....7

3. AMENDMENT OF SECTION 22: Appointment of judges…...10

4. PROTECTING THE INDEPENDENCE OF THE COMMISSION…...…...…...…...…...…...…...…...…...…...…..11

5. ENSURING TRANSFERS POST-AWARD……………………12

6. AMENDING SECTION 33: Addressing costs and productivity…...…...…...…...…...…...…...…...…...…...…...….19

7. AMENDING SECTION 29(4): The need for expanded legal aid……...…...…...…...…...…...…...…...…...…...…...…....…...22

8. BETTERMENT PLANNING AND RESTITUTION …………...24

LAND CLAIMS AND LAND UNDER THE JURISDICTION OF TRADITIONAL LEADERS.…..………………………………….27

Re-opening claims: later claims and prior claims

Status of claims claims* Claimed# #ClaimsExpected

Total lodgedIndividuals Beneficiariescosts

79 696

1.7MR22.5 BN

400 0007.5M

4 886 0008 932 850

R129 BNR179bn^

Not gazetted 7226

Gazetted but not yet settled 1507

Settled (claims as lodged), i.e. claim forms

59415

Settled (claims as settled), i.e. claim forms + rights

79582

In process of being implemented 20592

Implementation finalised 58990

3

The budget - challenge

Programme R million 2009/10 2010/11 2011/12 2012/13 2013/14 2014/15

Administration 574.8 686.6 934.4 1 091.3 940.7 893.0

Geo-spatial and cadastral Services 311.0 371.7 583.0 595.9 508.5 542.5

Rural Development 76.8 360.5 786.3 1 041.2 1 227.4 1 278.7

Restitution 2 331.6 3 776.6 2 376.3 2 961.5 3 388.0 3 717.3 14 834.00

Land Reform 2 569.6 1 937.2 3 317.8 3 284.2 3 395.1 3 473.8

Total 5 863.8 7 122.9 7 997.7 8 974.1 9 459.7 9 905.3 49 323.50

4

The backlog• Currently there are total commitments of R6.179 billion,

which includes commitments that are older than 3 years (R1.309 billion) due to community and family disputes, untraceable claimants and changes in the settlement options.

http://www.pmg.org.za/atc131031-budgetary-review-and-recommendation-report-portfolio-committee-rural-development-and-land-reform....

• “The Committee expressed concerns because 50 per

cent of the total land awarded to claimants or 1, 5 million hectares had not been transferred to beneficiaries. This suggested that there was enormous work ahead for the Commission on Restitution of Land Rights to finalise all the work”

5

4 proposals to address the backlog and meet the challenge of re opening

• Independent commission• Ringfence prior claims• Transfer within 12 months• Real redistribution

6

Unfair burden on restitution [LRC:5]

Your ad hoc committee report:•Many of the beneficiaries of land restitution are from lower-income communities. •The redistribution programme has benefited fewer households and no longer targets lower-income households. The transition from the pro-poor SLAG to LRAD removed the emphasis on households earning less than R 1 500 per month and began to target contributions from beneficiaries of land redistribution. “Large sums of money were increasingly benefitting the few.”

The burden of addressing the unequal distribution of land pre-1994 is increasingly falling on the land restitution programme. If this trend continues with the re-opening of land claims, this may lead to an over-subscription of land claims that goes beyond the scope and capacity of the restitution programme.

7

Independent commission [LRC:13]

• Policy independence – restitution cannot be be made subject to RADP

• Over reliance on section 42D and avoiding court supervision under section 14(3A)(x)… we propose that all settlement agreements be considered by the court and made court orders to ensure certainty for all parties

• capacity

8

12 months to transfer [LRC:18]

• amend the Act to require the transfer of land to successful claimants within twelve months after the finalisation of a claim.

• Claims finalised before this Bill becomes law should be required to be transferred within 12 months of its promulgation.

• Delays beyond this deadline should only be allowable with court approval.

9

Prior claims ringfenced [LRC:10]Amend sections 1, 10, 11, 29, 35, egSection 10 of the principal Act is amended by the insertion of the following subsection after subsection (6):“(7) Where a later claim is lodged for land in respect of which one or more prior claims were lodged, the following applies:a)the Commission may not on account of such later claim delay the processing of any prior claims in terms of Chapter II of this Act;b)neither the Minister nor any other party may on account of such later claim delay the conclusion of any agreement as contemplated in section 14(3) or 42D in respect of any prior claim, save with the consent of all the interested parties in respect of the prior claim;c)the later claim must not delay the adjudication by the Court of any prior claim, save with the consent of all the interested parties in respect of the prior claim or by order of the Court;d)the claimant who lodged the later claim is not an interested party in respect of a prior claim for any purposes in terms of this Act, save with the consent of the prior claimant or by order of the Court.”

10

Betterment [LRC:26]Magisterial district betterment declarations under ten betterment proclamations prov

Cathcart (1) East London (4) Fort Beaufort (1) Glen Grey (26) Herbert (5)

Herschel (23) Keiskammahoek (15) King Williams’ Town (77) Kuruman (9)Mafeking (1) Middledrift (33) Peddie (13) Queenstown (20) Stutterheim (2)Taung (9) Victoria (11) Vryburg (7)

Cape257

Bergville (1) Empangeni (1) Entonjaneni – Melmoth (1) Eshowe (2) Estcourt (2) Harding (9) Ixopo (1) Kranskop (9) Mahlabatini (2) Mapumulo (1) Msinga (1) Ndwedwe (1) New Hanover (2) Nongoma (3) Nqutu (3) Pietermaritzburg & New Hanover (15) Pietermaritzburg (5) Polela (2) Port Shepstone (6) Richmond (2) Umzinto (1)

Natal 70

Harrismith (1) Thaba Nchu (2) OFS3

Cullinan (2) Delareyville (1) Groblersdal (9) Letaba (14) Marico (12) Pietersburg (49)

Potgietersrus (39) Pretoria (3) Rustenburg (33) Sisba (13) Soutpansberg (14)Swartruggens (14) Warm Baths (8) Waterberg (3)

Tvl214

11

Customary land rights compatible with restitution

12

1998 vs 2013:Customary land rights remain uncertain in absence of statute;Traditional leadership power entrenched through TLGFA – but mechanisms to ensure accountability and democratisation failed;Upshot: chiefs complicit in dispossession now in positions of unfettered power. Claiming ownership of all land within jurisdiction.Upshot: property rights of community members as claimants and ‘sub’-community claims unprotected. Violation of their s25 rights.Restitution plagued by TL resistance to land ownership within their boundaries of jurisdiction. NO LEGAL BASIS FOR THIS ASSERTION.In fact, layered property rights made possible by the restitution process is in line with living customary law as recognised by the Constitutional Court. It also provides a desperately required avenue of resistance to unaccountable leaders. TONGOANERecommendations: ensure protection and promotion of CPAs within traditional council jurisdictions. Promote the development of CPA structures as a mechanism for the democratisation of customary land holding. Where appropriate, CPAs to slot into traditional structures.

A purposeful land claims court

• Challenge: lack of permanent appointees to LCC• Proposed solution: only current HC judges to be

appointed.• Experience shows that this solution leads to

severe delays. Serial delays already central challenge of restitution process.

• Recommendation: don’t limit pool. • Labour Court model: emphasis on knowledge of

relevant legal field.

13

Way forward

• if you want to pass an amendment, fix the existing process and this is how to do it,

• don’t make it more dysfunctional by rushing the process.

14