Land Court Bill: deliberations; International Conventions: DoJ&CD briefing; with Deputy Minister

Meeting report

International Convention on the Suppression and Punishment of the Crime of Apartheid

Mr John Jeffery, Deputy Minister (DM) of Justice and Constitutional Development (DoJ&CD), gave an overview of the Convention. This was an old convention that the United Nations General Assembly adopted in 1973. It was specifically on the suppression and punishment of the crime of Apartheid.

Article 1

Article 1 stated that Apartheid was a crime against humanity, and that inhuman acts resulting from the policies and practices of Apartheid and similar policies and practices of racial segregation and discrimination were crimes violating the principle of international law. There was a definition of the crime of Apartheid which was not limited to South Africa. Similar policies and practices of racial discrimination and racial segregation, as practised in southern Africa, should apply to the following inhuman acts committed for establishing and maintaining domination of one racial group of persons over another racial group of persons (as mentioned in article 2):

denial of a member or members of that racial group to life (that included murder);
arbitrary illegal arrests;
deliberate imposition on a group or racial group of living conditions calculated to cause its or their physical destruction in whole or part;
legislative measures to prevent a racial group from participating in political life;
other measures designed to divide the population along racial lines;
exploitation of the labour of members of a racial group; and
the persecution of organisations because they oppose Apartheid.

The question may be asked why government had not ratified this sometime before. Deputy Minister Jeffery thought that initially, there was a view from previous administrations that Apartheid was no more in South Africa, and therefore the Convention was unnecessary. However, the suppression of racial groups continued. One would see from the ratification section that many countries had ratified the Convention. One of the most recent countries was Palestine. Uruguay ratified in 2012. Some countries in the former Yugoslavia had also recently ratified the Convention. Montenegro had ratified in 2006.

Another aspect t was that there seemed to be a view from some people in South Africa that Apartheid was not a crime against humanity. In light of that revisionism, it was important that South Africa ratified that Convention. The issues in the Convention would also impact other places. For example, with the issue of the Rohingya in Myanmar, the Gambia had brought a case in the International Court of Justice against the government of Myanmar. The issues in Myanmar would also fall into the definition of Apartheid. The issue of the situation in Palestine also related to the Convention. DM Jeffrey was "sure" that that would cause "opposition to the Convention from the Democratic Alliance (DA)".

Purpose

Ms Kalay Pillay, Deputy Director-General: Legislative Development and Law Reform, DoJ&CD, said the purpose of the presentation was to obtain Parliament's approval for the accession to the International Convention on the Suppression and Punishment of the Crime of Apartheid (ICSPCA) in terms of section 231(2) of the Constitution of the Republic of South Africa,1996.

Documents attached to the presentation were:
Annexure A: Text of the Convention
Annexure B: List of state parties to the Convention
Annexure C: DoJ&CD legal opinion
Annexure D: Department of International Relations and Cooperation (DIRCO) legal opinion.
Annexure E: The Socio-Economic Impact Assessment System (SEIAS) exemption certificate.
Annexure F: Letter to the National Council of Provinces (NCOP) Chairperson.
Annexure G: Letter to the National Speaker.

Summary

• The Convention on the Suppression and Punishment of the Crime of Apartheid ("the Convention") had its roots in the opposition of the United Nations to the discriminatory racial policies of the South African apartheid government.

• The Convention was adopted by the General Assembly on 30 November 1973 and came into force on 18 July 1976.

• There were 110 state parties to the Convention as of 24 August 2022.

• The state of Palestine was the last to accede to the Convention in 2014.

• The Convention declares in Article I that Apartheid is a crime against humanity; and inhuman acts resulting from the policies and practices of Apartheid are crimes violating the principles of international law and the UN Charter, and constitute a serious threat to international peace and security.

Strategic focus of the memorandum

• The accession to the Convention was in accordance with South Africa's international obligations and other international instruments to which it was already a party, such as the International Convention for the Elimination of All Forms of Racial Discrimination (ICERD).

• It was aligned to the Medium-Term Strategic Framework's (MTSF's) Priority 6 ("Social cohesion and safe communities'') and Priority 7 ("A better Africa and World").

• Further, the accession was in line with Chapter 13 of the National Development Plan (Building a Capable State), the National Action Plan (NAP) to combat racism, racial discrimination, xenophobia and related intolerance, the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA), and the DoJ&CD's strategic goal of "advancement of constitutionalism, human rights and the rule of law."

Article II

Article II defined the acts/practices constituting the crime of Apartheid as:

Denial of the right to life and liberty of the person of a racial group/s through murder, torture, imprisonment etc.;

Deliberate imposition of living conditions calculated to cause destruction of a racial group/s;

Preventing a racial group/s from participating in the political, social, economic and cultural life of the country, and deliberate measures to limit the exercise of basic human rights by a racial group/s;

Constitutional implications and process

The Convention supports the implementation of the rights contained in the Constitution, as it seeks to uphold and enforce the rights to human dignity, freedom and equality.
According to the Offices of the Chief State Law Adviser's legal opinions, the Convention was also in line with South Africa's domestic law and international obligations.

The accession would not have financial implications, as the UN treaty bodies were implemented and monitored through the existing state membership contributions.

Therefore, there was a need to assert unambiguously that Apartheid was indeed a crime against humanity and that practices associated with Apartheid, racial discrimination and other related intolerance would be punished.

Should Parliament approve the accession, the Department of International Relations and Cooperation would deposit the instrument of accession with the United Nations.

Recommendations

It was recommended that Parliament approve that South Africa accede to the Convention on the Suppression and Punishment of the Crime of Apartheid to Parliament in terms of Section 231 of the Constitution.

Discussion

Ms W Newhoudt-Druchen (ANC) wanted to know why, at this stage in 2022, South Africa needed to sign or accede to that Convention. Over 100 other countries had already ratified it, including Palestine in 2014 (if she recalled correctly), but South Africa had not yet. There was an increase in attempts to suppress other people, and racism still came up many times in this country. People still wanted to go back to the old days -- for example, the old flag still persisted, and people still put it up. She wanted to know why South Africa had attempted only now to accede to that Convention.

Ms N Maseko-Jele (ANC) observed that the Convention talked only about the "don'ts", or things that were not supposed to be done when it came to Apartheid being a crime against humanity. The Convention did not talk to what happened after such a crime. Apartheid had stopped in South Africa, but it had left legacies and divisions in the nation. With those inhuman acts that had taken place, people died, and families were left disgruntled, etc. This Convention, in particular, did not talk about how to rebuild. She asked to be pardoned if she was ignorant of how these treaties were done. Her concern was on the issue of after Apartheid happened. She knew it was an issue of policy, but she asked how the treaties assisted in terms of rebuilding.

Mr X Nqola (ANC) said that first, the Committee needed to agree on the definition of the crime of Apartheid. He completely agreed with the fact that Apartheid was a crime against humanity. He agreed with the view that there were no financial implications. He wanted Parliament to support the signing of the Convention. Considering the fact that it was international law, how strong would the enforceability of the Convention be? As Ms Newhoudt-Druchen had said, some people saw nothing wrong with displaying apartheid flags. Members knew that some racial violence and racial conflict were happening on farms. Considering this was international law, how strong would its enforceability be in helping South Africa combat those kinds of issues?

Deputy Minister's response

DM Jeffery responded that this Convention was adopted in the international struggle, and was very much part of the international struggle against Apartheid. A UN Special Committee on Apartheid was referred to in the Convention. He was not sure why it was not adopted before, but this administration felt that the fact that it was not adopted was a mistake. "We should show our commitment, as the rest of the world did to ending apartheid".

He reminded Members that Apartheid was more broadly defined. It was not just what happened in South Africa -- there were similar practices which may be happening in other parts of the world. The other aspect was that this Convention unequivocally declared Apartheid a crime against humanity. South Africa had issues about a year ago, where certain sections of the population denied that Apartheid was a crime against humanity. He thought that South Africa unequivocally as a country needed to put that to rest by saying as a country that Apartheid was a crime against humanity.

On Ms Maseko-Jele's point of rebuilding, there had not been any focus on rebuilding because this was at the height of the struggle against Apartheid. Rebuilding was an important point that the Department needed to look at. There were broader issues of post-conflict communities across the world. Some would have broader issues, while others would be more specific to that country.

Another point with the Convention was that it was not just negative – article 4, for example, says that the state parties undertake to adopt legislative and other measures necessary to suppress and prevent any encouragement of the crime of Apartheid and similar segregationist policies. There were some positive aspects. The fact that it was broader was shown by the fact that long after the end of Apartheid, as Members would have seen from the list of countries that ratified, a number of other countries had been ratifying that Convention. Guatemala and Honduras ratified in 2005. Moldavia ratified in 2005, and Serbia ratified in 2001. Uruguay ratified in 2012 and Palestine ratified in 2014. Other countries saw that as an ongoing issue. The crime of Apartheid, as far as he could recall, was contained as a crime in the Rome Statute, which set up the International Criminal Court. It was already an international law, but the Convention made it more explicit that it was not just a crime -- it was a crime against humanity.

DM Jeffery answered the question on the impact of the Convention. The Convention was basically saying that South Africa states that Apartheid is a crime against humanity. As far as he knew, the Special Committee on Apartheid was no longer in existence. There were issues that could be taken up with the Human Rights Commission of the United Nations in Geneva. There was a provision for reports to go to the Special Committee on Apartheid. South Africa would need to find out from the Commission on Human Rights what the situation with that was. Otherwise, it was also article 4, in particular, on adopting legislative measures, which was to prevent any encouragement of the crime of Apartheid.

The other issue was the Convention's impact in the international domain. It had not had an impact, although there were a number of parties that were signatories to the Convention. As far as he recalled, the Convention had not been brought up concerning the issue with the Rohingya. Palestine had signed up, but he did not know if it had brought up any issues relating to segregation in Israel and Palestine.

[Ms Tandeka Lujiza, Chief Director: International Legal Relations, DoJ&CD, wrote in the chat box: Reports are no longer required under this Convention, as the UN Committee was dissolved in 1994.]

The Chairperson said that he had received a note from Ms Y Yako (EFF) to say that she was travelling, so she would not be able to join the meeting. He asked for that apology to be noted. Mr S Swart (ACDP) was attending the Chief Whips' Forum. There was a proposal for the support of the Convention, and a seconder.

Ms Maseko-Jele wanted to find out if there was any harm in inserting the issue she had asked about into the Convention.

The Chairperson replied that with international treaties, one could not delete or do anything else -- one must accept it as it was, or reject it.

DM Jeffery added that in the report to the House, the Committee could support Maseko-Jele's point that what was also important was post-conflict, or looking at issues post-conflict.

Adv G Breytenbach (DA) said that the DA reserved its position.

Mr Swart said he would also just need to study the Convention in more detail. He had come online a bit late. He also thanked the Chairperson for noting his apology.

The Chairperson said that the Committee would likely deal with the report on Friday. He assumed that most parties would see it on Thursday, and consult with their caucuses. The Committee would process the report to the House on Friday before it dealt with the Drugs and Drug Trafficking Bill briefing.

Members agreed that that was in order.

International Convention for the Protection of all Persons from Enforced Disappearance

Introduction

DM Jeffery introduced the presentation. This Convention was a more recent one -- it had been negotiated in 2006. Its focus was on enforced disappearances. Enforced disappearances were the arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or by persons or groups of persons acting with the authorisation, support or acquiescence of the state, followed by a refusal to acknowledge the deprivation of liberty, or by the concealment of the fate or whereabouts of the disappeared person, which placed such a person outside the protection of the law.

The Convention was specifically about state-linked disappearances. A kidnapping by people not linked to the state would not form part of that. As Members were aware, South Africa experienced a lot of enforced disappearances by the apartheid state, some of which had come to light through the Truth and Reconciliation Commission (TRC) process. These were people who had been arrested, and had disappeared. Some of the more high profile ones would have been the Pebco Three, the group of Pebco activists who were abducted at the airport, taken off and killed. The Cradock Four were an enforced disappearance which resulted in a killing relatively quickly, but with a denial that it had happened. The Phila Ndwandwe case (where at least the issue came to light during the TRC process), detailed that the perpetrators had abducted her from Swaziland, held her captive on a farm outside Pietermaritzburg, and then murdered her when she refused to work with them.

Other people had disappeared and were still unaccounted for. That was still an ongoing issue. South Africa had victims of enforced disappearance in South Africa, and enforced disappearances were happening in other parts of the world. People disappeared. The state did not acknowledge that it had arrested them, and then concealed it when it had in fact arrested those people, just as the apartheid regime had done.

Purpose

Mr Malesela Leso, Director: International Legal Relations, Constitutional Development Branch, DoJ&CD, said the purpose of the presentation was to request Parliament to approve that South Africa accede to the International Convention for the Protection of All Persons from Enforced Disappearance (CPED) in terms of section 231(2) of the Constitution of the Republic of South Africa,1996.

The following were documents accompanying this presentation:

Annexure A:      Copy of the Convention
Annexure B:      List of state parties to the Convention
Annexure C:      DoJ&CD legal opinion
Annexure D:      DIRCO legal opinion
Annexure E:      SEIAS exemption certificate
Annexure F:      Letter to the National Speaker
Annexure G:      Letter to the NCOP Chairperson

Background Summary

• The Convention was adopted by the UN General Assembly on 20 December 2006.

• SA was involved in the negotiation, and voted in favour of the adoption of the Convention.

• The Convention entered into force on 23 December 2010.

• There were 68 state parties to the Convention as of 24 August 2022.

• There were numerous calls from the Human Rights Council and other Committees urging SA to accede to the Convention.

• Accession would demonstrate SA's commitment to protecting human rights and adherence to international human rights law.

Strategic focus of the Convention

• The Convention defines enforced disappearance as :

"Enforced disappearance is defined as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which places such person outside the protection of the law."

Mr Leso said this was the first universally binding treaty that defined enforced disappearance as a human rights violation. State action was a critical part of what constitutes enforced disappearance. There were five key areas in terms of the obligation of state parties. These were:

• Fight against impunity
• Investigation and prosecution
• Prevention and combating of the phenomenon of enforced disappearance
• Rights of victims
• Rights of children, their abduction and disappearance from parents who have themselves disappeared.

Article 24 (4) states that each state party shall ensure that in its legal system, victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation, such as restitution, rehabilitation, satisfaction (including the restoration of dignity and reputation) and guarantees of non-repetition. This article did not impose an obligation on state parties to create a fund for compensation, but gave victims the right to approach any court to enforce their rights and seek remedies accorded by the Convention.

Substantive matters

• The Convention was broad in terms of its protection and scope:

• It emphasises the protection of victims and the rights of family members of the victims.

• It incorporates many criminal aspects, which differs from other Human Rights treaties.

• The Rome Statute of the International Criminal Court (ICC) provides for enforced disappearance of persons as a crime against humanity.

• The Rome Statute was incorporated into South African law by virtue of the ICC Implementation Act, so the crime of enforced disappearance was part of SA law.

• The ICC Act focuses on a systematic and widespread fashion of enforced disappearance, in the context of crimes against humanity.

 • The Convention focuses on the occurrence of enforced disappearance at a lesser scale or isolated individual cases.

 Thus, there was a gap regarding enforced disappearances that happen in isolation and do not meet the threshold of the crime against humanity. The Convention would need to be incorporated into domestic law.

 The offence of enforced disappearance was regarded as an extraditable offence for purposes of extradition and mutual legal assistance.

Consultations

 • The Offices of the Chief State Law Advisers at both the DOJ&CD and DIRCO were required to provide an opinion on the accession of the Convention by SA.

 • According to their legal opinions, the Convention also aligned with South Africa's domestic law and international obligations.

 • Should Parliament approve the accession, the DIRCO would deposit the instrument of accession with the United Nations.

Recommendation

It was recommended that Parliament approve that South Africa accede to the International Convention for the Protection of All Persons from Enforced Disappearance in terms of section 231(2) of the Constitution of the Republic of South Africa, 1996.

Discussion

Ms Newhoudt-Druchen said the Convention talked about enforced disappearances and enforced abductions, and asked if that was the same as human trafficking. Human trafficking also involves, for example, the abduction of children. South Africa had seen a rise in that kind of crime, which concerned people. Women were also abducted and trafficked. Did that Convention distinguish between state-sanctioned enforced disappearances and criminal human trafficking abductions? There had also been a rise in business people being abducted for ransom. How were those various crimes distinguished, and which ones fell under the Convention?

Ms Maseko-Jele asked about state enforcement. Was a team in South Africa specifically dealing with those issues related to the Convention, or was the Department leaving it to the police and the Hawks (Directorate for Priority Crime Investigation (DPCI))? The Convention was talking about those who disappeared during apartheid times. She wanted to find out if the Department had a specific team that followed those issues. If those issues were left only to the police, then with South Africa's capacity now, she did not see South Africa winning with that Convention, even if it supported it.

Department's response

DM Jeffery responded to Ms Newhoudt-Druchen's question by saying that the Convention was about state-sponsored disappearances. An enforced disappearance was if it was an arrest and a person's arrest was not acknowledged by the state. Human trafficking generally did not involve states. If it involved states, presumably, they would not be telling people that they abducted people and trafficked them elsewhere. Similarly, with the crime of kidnapping, where somebody abducts a person, and if not done by the state or state agents, or people associated with the state, then it would not be covered by the Convention. Somebody could get murdered and then disappear -- for instance, their body being hidden somewhere -- but if it was by "ordinary criminals" and not the state, then it would not be covered by the Convention. In the Convention, there was a provision on children in article 25, but it related only to the children of people who had been subjected to enforced disappearance. Article 25 also covered what would happen to those children. It was specifically the issue of state repression.

On Ms Maseko-Jele's question, he said that with the post-TRC system, there was a Missing Persons Task Team under the auspices of the National Prosecuting Authority (NPA). Officially, the team's mandate was to find people who had disappeared and who were on a list provided by the TRC. Sometimes, when looking for those people, the team would find other people. There was a process which the DoJ&CD was very involved in exhumations and reburials, which was funded by the President's Fund. That process was limited to the people listed by the TRC.

If the Convention was ratified, the DoJ&CD would have to look at legislative provisions. The Convention would be taking effect post its ratification. It would not apply to the enforced disappearances from the apartheid period. He suggested that the Missing Persons Task Team should come and brief the Committee – it told "fascinating stories," and worked with experts. DNA testing helped the team be able to identify bodies. With the Pebco Three, the team had been able to find fragments of their bodies in a water tank in the Eastern Cape through advanced DNA testing. Most of the bodies had been destroyed by burning, but the perpetrators dumped what remained in the water tank. The team had been able to detect some fragments of the bodies.

Ms Pillay observed that that Convention differed from the apartheid-related Convention, where the clauses relating to that Convention defined Apartheid as a crime against humanity. The other Convention placed certain responsibilities on the DoJ&CD. The DM had already mentioned some of the legislation. Should South Africa accede to the Convention, it would have to amend some of its legislation regarding children and enforced disappearance, amongst others. It also involved other obligations, such as keeping a list of persons reported as victims of enforced disappearances. There was a lot to do regarding the implementation of the convention post-ratification.

Mr Leso said that the Convention did not have a retrospective effect. What that meant was that South Africa's obligations would arise only after it acceded to that Convention. It could not be used to investigate past crimes of enforced disappearance.

Ms Maseko-Jele supported the DM's suggestion that the Committee needed to get the Missing Persons Task Team to come and brief the Committee. She felt that the Committee should also incorporate the information on the section of the NPA working with that team.

The Chairperson said that the Committee would look at its programme.

Ms Newhoudt-Druchen supported acceding to the Convention.

Adv Breytenbach said that the DA reserved its position.

The Chairperson said that the Committee would deal with the report on the Convention on Friday before getting a briefing on the Drugs and Drug Trafficking Bill.

Report of the Portfolio Committee on Justice and Correctional Services on the draft notices determining the salaries and allowances of the Public Protector, Deputy Public Protector and commissioners of the South African Human Rights Commission with effect from 1 April 2021

The Committee directed its attention to its report on the draft notices determining the salaries and allowances of the Public Protector, the Deputy Public Protector and commissioners of the South African Human Rights Commission, with effect from 1 April 2021, dated 31 August 2022

The Chairperson then went through the report to check for corrections.

Mr Henk du Preez, State Law Advisor, DoJ&CD, pointed out that in paragraph 5 of the report, the reference made to the Gazette was not in italics. It was customary to use italics for the title "Gazette".

Ms Maseko-Jele moved for the adoption of the report, and Mr Nqola seconded the proposal.

The Committee took a short break before proceeding to the next item.

Working document on Land Court Bill

Mr Du Preez apologised for the absence of his colleagues. The Chief Director was attending meetings on the regulations for the gender-based violence (GBV) bills. His colleagues had requested him to submit their apologies for not being able to attend the meeting.

He commented that the proposed amendments to the working document on the Amended Land Court Bill, which the DoJ&CD had submitted on Tuesday, were highlighted in blue. Other text was highlighted in yellow. The previous night, while going through the document, he had picked up some additional aspects, which he would present to the Committee.

 (Please see the attached document).

On the long title, Members would recall that at the previous meeting, the Committee had requested the Department to remove the issue of the proposed Land Court of Appeal (LCA) from the Bill. That had taken more time than the Department had expected. The issue of compulsory arbitration would also be removed from the Bill.

He highlighted the part dealing with budgetary matters in yellow. He would come to that part later in the presentation. He had highlighted it primarily for himself, just to ensure that that issue was included in the A-list that the Committee would eventually approve.

Preamble

The only substantive amendment resulted from a proposal made by an interested party who had recommended that the preamble should also make reference to section 34 of the Constitution. The Department had previously conceded that that was a good proposal, and that it could be done. The rest were technical.

Arrangement of sections

Mr Du Preez skipped the arrangement of sections provision. There were many amendments there, as a result of the fact that the LCA provisions would be removed from the Bill.

Definitions

With the definition of the word "claim," amendments were proposed to clarify that that whole definition related to issues that arose under the Restitution of Land Rights Act. A similar proposal was made regarding the definition of "claimant." (Please see the attached document).

Mr Du Preez added that at the previous meeting, a concern had been raised that the Supreme Court of Appeal (SCA) would be flooded with appeals. The definition of "full court" had been inserted to say that a "full court" meant a court consisting of three judges of the Land Court. That would become apparent when the Department dealt with the chapter on appeals.

The term "fit and proper persons" in chapter 3 was also highlighted in blue as an aspect that could be amended. (Please see the attached document).

Chapter 4
 
What made the Bill easy to amend was that there were not many cross-references in the separate clauses, but the Department was proposing to amend the correct reference to the specific sub-paragraph.

It was important to note that that was the specific reference to the rules, as they were issued in terms of the Rules Board for Courts of Law Act. That was why the Department needed to refer there to the provincial or local divisions of the High Court, because the Department referred to a specific set of rules that were initiated in terms of that Act. It was also appreciated that it was not necessary to include the highlighted words in blue. The proposal was for that phrase to be deleted. It was stating the obvious.

Sub-clause 3 was a proposed new sub-clause to ensure that there were rules available when parties went to arbitration before registering a dispute with the court, to provide for when arbitration may be set aside by the court.

Mr Du Preez added that the Department had received a proposal that reference must be made to "state land". It would not take the Department long to determine that. It wanted to go back to the 1993 Act, because it might be that the legislature's intention concerning that sub-clause might not necessarily refer only to state land. The Department had recently struggled with intermittent access to its virtual library, and he was not able to check that. The Department would be able to get back to the Committee very soon on that.

Chapter 5

Mr Du Preez said that this was where the Department would like to get the Committee's guidance. Instead of the Land Court of Appeal being introduced in the Bill, it would be removed from the Bill at that stage. However, one should then replace it with provisions dealing with appeals against judgments or orders of the court and other courts. That would be an attempt to address the Committee's concerns regarding the SCA being flooded with appeals.

He paused to say what the proposal was at that stage. It was for parties to decide whether they would like to appeal to a full court of the Land Court, i.e. a full court consisting of three judges. That would be a "carbon copy" of the existing system in civil appeals in the Superior Courts Act, where one could appeal from a single judge to a full bench consisting of three judges, or the alternative. It was up to the person who wanted to appeal the court's decision of first instance to the SCA. This was a substantive provision that aimed to effect what he had just explained to the Committee. That provision aimed to provide a litigant with the option to appeal to either a full court of the Land Court consisting of three judges, or to the SCA.

He wanted to draw the Committee's attention to the following substantive issue. As a result of the instruction from the Committee to remove "arbitration" from the Bill, one of the principal pieces of legislation that were to be amended to ensure that the Land Court would have jurisdiction over disputes flowing from that Act referred to arbitration being referred to the Judge President of the Land Claims Court (LCC), to appoint an arbitrator. Reference to the Judge President of the LCC would then be replaced with reference to the Director-General (DG) of the specific department.

There were amendments related to the Land Reform Labour Tenants Act. As a result of the instruction the Department had received from the Committee, it had to propose consequential amendments to that Act.

Instead of requesting an arbitrator to be appointed by the court, the proposal was to replace reference to the court with the DG of the specific department. In the schedule itself, that was the only substantive amendment being proposed.

Discussion

Mr W Horn (DA) had technical issues that he wanted to raise, and then a few substantive questions. Section 8(4)(a), as it now read, was somewhat self-contradictory. On the one hand, it said that those judges to be appointed must be judges of the High Court. But then, in the very same vein, it said that at least half must already be judges of the High Court at the time of appointment. Depending on the provision's timing, it might have to be redrafted somewhat. If the intention was that judges of that court would be judges of the High Court, then he thought that the "must be" needed to be removed. It might also be that the wording was borrowed from the current wording around the LCC, where there were secondments. Secondments were also being dealt with in the transitional arrangements. He was not clear from the reading of sections 8(4), and 8(4)(a) specifically, whether the intention was still that judges be seconded, and some be dedicated judges of the Land Court. He believed that that matter needed to be clarified, and possibly redrafted.

The Chairperson asked Mr Horn if the first point he raised could be addressed before moving on to the other points, and Mr Horn agreed.

Mr Du Preez said the Department had also prepared an A-list for the Committee.

The Department could look at the portion of the Bill that Mr Horn mentioned. It might be that the intention was not clearly defined, and it was for the Department to be guided by the Committee. The intention was to ensure that at least half of the judges appointed to the Land Court must be existing judges of the High Court. In the previous round of the justice and correctional services (JCS) cluster interviews, there were judges who were appointed to the High Court who indicated whether they would be willing to serve as judges of either the LCC or the Land Court. That was to capacitate the courts. He highlighted that portion in yellow. With instruction from the Committee, the Department could have a look at a redrafting of that provision. He did not want to prescribe to the Committee, but he was sure that the recommendation from the Department would be to at least retain the principle that one had existing judges serving on the bench of the High Court also be available for service in the Land Court.

The Chairperson asked that for practicality, Members should ask questions on that specific issue. Members could raise other issues once the Committee was done with that particular clause.

Ms Newhoudt-Druchen wanted to raise questions on other issues.

Mr Horn responded to Mr Du Preez. He said there was a good argument to be made that at least half of the component of the bench of the Land Court could be judges that were seconded from other divisions. He saw the logic behind it. He did not think such a scheme was properly reflected in the draft at present.

The Chairperson asked Mr Du Preez to look at that issue and propose an amended draft.

Mr Du Preez asked if Mr Horn could submit a written proposal.

Mr Horn replied that he would do so.

Mr Du Preez continued that because of the deletion of some portions, from a grammar point of view, two sections did not read properly. Those were section 13(2) and section 19(1), where both references to the "prescribed manner" were deleted. Section 19(1) had a better way of dealing with it in the sense that it had a reference to "provided for in the rules", since "prescribed manner" was deleted. He suggested that section 13(2) be relooked at along the lines of section 19(2).

Referring to mediation, he said that section 13(2)(b) stated that once a matter was enrolled, the Judge President must decide immediately whether it was to be referred to mediation. He asked the Department whether it had considered to what extent a Judge President would be able, merely on the initial enrolments, to make (for example) a properly-informed assessment as to whether mediation was the way to go. He knew that there was a safety net provision in the sense that later on in the draft, there was a provision that it could also be done at any stage. He requested the Department to consider that issue.

There was another issue related to mediation that the Committee had raised previously. This involved the current wording, that somebody who may be appointed as a mediator was limited to somebody who was "fit and proper to be appointed in such a way," was going to be the only regulatory framework for who was to be appointable. He felt that something needed to be included, at least to the effect that the rules must, with more specificity and clarity, set out a framework as to who could be appointed as a mediator. Currently, there was court-annexed mediation in magistrate's courts, which was voluntary. When that was set up, there was firstly a pilot, and then it was determined that the mediation rules would be included in an advisory committee regarding norms and standards. The issue of just being fit and proper needed to be further regulated. In South Africa, mediation was not properly regulated. There was not one state-endorsed regulatory authority. There were other authorities who were actually non-profit organisations (NPOs) who claimed to be regulatory authorities. In short, there was no proper regulatory framework in place.

Chapter 5, specifically section 32, dealt with orders of other courts that may be appealed to the Land Court. But if he looked at the jurisdictional aspects, he did not see any provisions that would ultimately enable such appeals. He was unsure if that was a broad provision so that ultimately other legislation could make provision for appeals to that court, so that court then dealt with a court of appeal in respect of other courts. If not, he did not understand why it was there.

Mr Du Preez indicated that the Bill also dealt with budgetary aspects. Currently, the budgetary aspects are not there. Whilst the Committee was largely a technical committee in the JCS cluster, he understood that there were very specific requirements around any legislation that dealt with budgets, and attempts to impose budgetary obligations on government. The Committee would have to look into that carefully if the intention was to bring a further version that did include certain provisions that imposed budgetary obligations on the government.

He said it must be taken into consideration that South Africa had an existing court structure which was regulated in terms of the Superior Courts Act. The Land Court, like any other high court, would fall under the Office of the Chief Justice (OCJ). The budgetary provisions were already there. That was why it was unnecessary to include a provision of that nature in the Bill.

On the usefulness of clause 32, he said that provision was a general provision to provide for other pieces of legislation that would eventually expand the jurisdiction of the Land Court. That provision provided for the future extension of the jurisdiction of the Land Court.

Regarding the wording, "to be provided for in the rules," if one put it that way, one could foresee that something would happen in the future. The Act could commence and one could wait for the rules. The rules needed to be in place before the commencement of the Act.

The qualifications of mediators were something that the Department could look at. There were two options. Firstly, a provision similar to the qualifications of persons to be appointed as judges could be included. Secondly, concerning mediators, a part on qualifications could be included in the Bill itself, or in the rules.

The Chairperson asked Mr Du Preez to repeat his last point.

Mr Du Preez noted that the tentative proposal from the Committee's side was to insert a provision that would require the rules to provide for the qualifications of mediators to be appointed in terms of the Bill. An alternative was possibly to have a provision in the Bill itself to deal with the qualifications or appropriateness of mediators. He added that a case would be referred for mediation by the presiding judge. The parties would have input of the specific individual. It would not suffice to send a dispute for mediation to a criminal law expert. That dispute would be sent to a mediator who had experience in land reform issues, for example.

The Judge President would not always be in the position, from the papers in front of them, to identify issues that would be referred to mediation. But it was still a possibility, and the reference to a judge as soon as the case appeared before them to identify certain issues that may be referred for mediation, was then a "backup".

The Chairperson asked Mr Horn if he would be covered if, for instance, in the Act (not in the regulations), Mr Du Preez's suggestion that it must be a person who had experience in land adjudication matters was used.

Mr Horn's view was that the Committee should make provision in the Bill, saying that the rules may, for example, further regulate who was deemed fit and proper to be a mediator. That gave a bit of "flexibility" around the issue. Regarding someone with experience, that was a "fluid" concept. What he deemed to be somebody experienced in adjudication of land matters and what somebody else deemed experienced might be vastly different. The ability to strengthen the framework around who was appointable needed to be looked into.

Ms Newhoudt-Druchen observed that Mr Du Preez had said that he would come back to the issue of budgetary implications. She wanted to check if that had been covered.

On appeals, Mr Du Preez said that a person who was appealing could decide whether to appeal, or how they wanted to appeal.

Mr Du Preez said he had responded to a question on a provision specifically dealing with budgetary matters. Once the Bill became an Act of Parliament and commenced, it needed to be read in conjunction with the Superior Courts Act. The Land Court would, in any event, not be a separate court. Instead, it would form part of the OCJ. That was where the budgetary implications came in and where the budgetary regulations and statutory provisions were contained. There would be sufficient oversight with regard to budgetary matters of that specific court.

On whether a litigant would have an option to approach a full court of the Land Court, or the SCA, the formula contained in section 16 of the Superior Courts Act also introduced the principle that a person may, from a court of first instance being a single judge, either appeal to a full court or to the SCA. In his view, that was where the wisdom of legal counsel would come in -- to say whether to approach a full court, or if it was a matter of such extreme importance, that there was a need to go to the SCA. But the principle was there that one would have the choice. The advantage of the choice of forum of appeal was that the parties or aggrieved person may decide which forum to approach. To a certain extent, it would introduce a filtering mechanism to reduce the potential increase in the caseload of the SCA.

Ms Newhoudt-Druched and Adv Breytenbach said that their questions had been covered.

The Chairperson asked Mr Du Preez to take into consideration the issues that Members had raised, and said that Mr Horn would circulate his proposal to the Committee and to Mr Du Preez so that the necessary changes could be made, and the Committee could move to the next stage.

Members agreed that that was in order.

Mr Du Preez said he was ready to present the A-list to the Committee. If the Committee was satisfied with the majority of the provisions reflected in the working document, then the Department could highlight and amend the A-list accordingly.

The Chairperson asked Members if the Committee could go through the A-list that day, except for the issues which were flagged.

Members agreed to go through the A-list.

A-list: Land Court Bill

Mr Du Preez presented the A-list (please see the attached document).

The Department apologised for not having submitted that document earlier.

He noted that the proposed amendments from the Members would be inserted into the A-list. Most clauses would have technical amendments made to them, and some would be re-numbered. He had highlighted most of the issues when he took the Committee through the working document. An important issue was the removal of the references to arbitration. For example, clause 21 would be rejected by the Committee and not replaced by a new clause.

He said one usually referred to clauses in an A-list, not a "part". But since an A-list was merely an instruction to the persons who prepare the B-version of the Bill, he felt that the instruction, in that case, would be clear, and there would not be any confusion. The Department would proofread the A-list and the B-version before they were made officially available to the Committee.

Clause 26

Some of the clauses, for example clause 26, would be rejected and not replaced by a new clause.

Clause 27

The proposal for clause 27 was to reject the clause because too many amendments were to be effected. It might be more appropriate to reject the clause and to replace it with a new clause which would be re-numbered as clause 25. That was the issue of "pre-trial conferences" being replaced by "conferences."

Clause 28

Mr Du Preez wanted to propose rejecting clause 28, because 19 amendments in a clause seemed like a lot. There was a lot of proofreading that had to be done to that specific clause.

The references to arbitration were part of the consequential amendments to ensure that reference to arbitration was removed from the Bill.

Clause 31

Clause 31 also had 19 amendments, which were primarily of a technical nature.

Chapter 5

Mr Du Preez said the Department would be guided by the Bills Office, the Committee Secretaries and Content Advisors. The proposal was to reject the whole of chapter 5 and replace it with a new chapter. That new chapter would contain only two provisions, one of which would deal with appeals against judgments or orders of the court, where one would then have the option of approaching a full court, or the SCA. The other provision dealt with appeals in more detail, which had been indicated to the Committee earlier in the working document.

Clause 49

With clause 49, the heading of the clause was being replaced, and the clause would be re-numbered. A technical amendment would also be made.

Clause 50

The clause dealing with finances. It would be removed from the Bill.

Clause 51

The clause would be renumbered, and technical amendments made. It would become clause 34. Clause 51 dealt with transitional arrangements. There was a substantive part to be included in the working document, and that was the provision dealing with the existing judges of the LCC.

Clause 52

The clause would be re-numbered.

Clause 53

The clause dealing with regulations. In Mr Du Preez's view, there were too many amendments to mention in an A-list. The Department recommended that it might be more appropriate to reject and replace the clause with a refined clause.

Clause 54

This was the short title and commencement, which would be renumbered as clause 37. Reference to 2021 would be replaced by reference to 2022. He did not think it was necessary to refer to "Schedule to the Bill" in an A-list, and would probably delete the words "to the Bill". Since there were a number of amendments to the Schedule, mainly those technical amendments dealing with replacing 2021 with 2022, the Department recommended that it might be easier to reject the existing Schedule, and replace it with a new Schedule.

Introductory provisions

These would also be amended.

Long title

Mr Du Preez had highlighted this in the document, as a reminder that the reference to budgetary matters needed to be deleted from the long title.

Preamble

There was one substantive provision to be included in the preamble, and the rest were technical amendments to ensure that the preamble read consistently.

Arrangement of sections

This was also referred to as the index. Mr Du Preez's view was that rejecting the index and replacing it with a new one was simpler. That would be the index of the Bill as amended by the Committee. From approximately 54 clauses, the Bill would then end at clause 37.

In closing his presentation, Mr Du Preez said that he would prepare a separate clause (and not a working document), just to indicate to the Committee where those proposed amendments relating to mediators would be slotted in. The main object at that stage of the process was for the Committee to approve the A-list.

Discussion

The Chairperson asked Mr Du Preez if the A-list would be completed by the following Tuesday, because the Committee would be meeting on that day to deal with the Bill.

Mr Du Preez replied that he would try his best to be ready for the Committee, or to be on standby for the Committee after it had received a briefing from the Department on the Drugs and Drug Trafficking Bill on Friday. If the Committee had time available, the Department could present it to the Committee then, but Tuesday was fine otherwise.

The Chairperson asked if Mr Du Preez would be ready on Friday, to which Mr Du Preez replied that he would try his best to do so. He did not know what would happen in the meantime with other bills that he was working on, but he would try his best. He would indicate to the Committee Secretary at the close of business on Thursday 1 September, whether he would be in a position to present the A-list to the Committee for approval.

Members agreed that that would be fine.

The Chairperson thanked Mr Du Preez for his hard work -- it was much appreciated. If Mr Du Preez indicated by close of business the following day, then the Committee could say for now that he was provisionally scheduled to present on Friday. The Committee was definitely meeting on Tuesday, and moving towards finalising the Land Court Bill.

He asked Mr Horn when his proposal would be ready for circulation.

Mr Horn replied that he would submit it the following day. He asked if he needed to provide the proposal to Mr Du Preez, and the Chairperson confirmed that that was the case.

The Chairperson said that on Friday, the Committee would be dealing with the adoption of the two treaties that had been presented earlier in the meeting, and would then receive a briefing on the Drugs and Drug Trafficking Bill. If Mr Du Preez was ready, it would also deal with the Land Court Bill. Friday's meeting would not be long -- the issues the Committee had to deal with would not take long to deal with, except for the Land Court Bill (if the A-list was ready by Friday).

The Committee had just received another Bill, namely the Maintenance Amendment Bill. That Bill would be circulated and then go through the Committee Secretariat. The Committee would schedule a day to get a briefing on that Bill, so that it could advertise it for public comment.

The meeting was adjourned.