SUBMISSION ON: THE LOCAL GOVERNMENT MUNICIPAL SYSTEMS BILL, 2000

TO: THE PORTFOLIO COMMITTEE ON PROVINCIAL AND LOCAL GOVERNMENT

FROM: THE COMMISSION ON RESTITUTION OF LAND RIGHTS

1. INTRODUCTION

1.1 The Commission on Restitution of Land Rights was established in terms of the Restitution of Land Rights Act 22 of 1994, as amended (the Restitution Act). Its purpose is to provide for the restitution of rights in land to persons or communities dispossessed of such rights after the 19th June 1913 as a result of past racially discriminatory laws or practices.

1.2 The preamble to the Constitution provides that the Constitution was adopted as the supreme law of the Republic, to ensure among other things, that divisions of the past are healed and a society is established based on democratic values, social justice and fundamental human rights. The constitution was adopted to also ensure that the quality of life of all citizens is improved and that the potential of each person in freed.

1.3 The right to restitution is one of the socio-economic rights protected in the Constitution of the Republic of South Africa, 1996 (the Constitution) .

1.4 Section 25(7) of the Constitution provides that:

A person or community dispossessed of property after 19th June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

1.5 Section 8(1) of the Constitution states that:

This Bill of Rights applies to all laws, and binds the legislature, the executive, the judiciary and all organs of state.

    1. Section 25(7) is part of the Bill of Rights.
    2. The Local Government Municipal Systems Bill, 2000 ( the MSB) deals with the third tier of government
    3. Local Government is a third tier of government. It is therefore bound by section

      4. both section 8(1) and section 25(7) of the Constitution as well as the Restitution of Land Rights Act 22 of 1994 as amended.

    4. Chapter 5 of the MSB, namely Integrated Development Planning, must therefore refer to restitution as one of the constitutional responsibilities for local government.
    5. It should also mention how municipalities are to ensure that they include urban restitution as part of their development plans.

2. DISCUSSION

    1. The Restitution Act is the Act of Parliament which provides for restitution as per the provisions of section 25(7) of the Constitution.
    2. Section 35 of the Restitution Act provides for different forms of restitution as:

  1. restoration of land or any rights in land;
  2. a right in alternative state land;
  3. payment of compensation;
  4. priority access government housing and land development programmes; or
  5. any alternative relief.

2.3 The state may enter into settlement agreements with claimants without having to approach the Land Claims Court. Such settlement agreements must be in keeping with what the Land Claims Court may order in terms of section 35 of the Restitution Act.

2.4 Section 42D of the Restitution Act provides for powers of the Minister in case of certain agreements.

2.5 It provides : Powers of the Minister in case of certain agreements:

  1. If the Minister is satisfied that a claimant is entitled to restitution of a right in land in terms of section 2, and that the claim for such restitution was lodged not later than the 31st December 1998, he or she may enter into an agreement with the parties who are interested in the claim providing for one or more of the following:

  1. the award to the claimant of land, ……

    2. (i) ……….;

    (ii) ……….;

  2. the payment of compensation to such claimant;

  3. both an award and payment of compensation to such claimant;

  4. the acquisition or expropriation by the State of such land, portion of land or other right in land;

  5. the manner in which the rights awarded are to be held or the compensation is to be paid or held; or

  6. such other terms and conditions as the minister considers appropriate

    1. The White Paper on South African Land Policy provides that the urban restitution programme offers the opportunity to ‘re-integrate’ and re-construct’ cities and towns that still bear the scars of racial zoning.
    2. In line with this policy, the Minister of Agriculture and Land Affairs has been entering into settlement agreements with urban claimants.
    3. Some of these agreements, e.g. the PELCRA and West Bank agreements, bound municipalities to play an integral role in the settlement agreement to ensure the ‘reintegration’ and ‘re-construction’ of their towns.
    4. There is a need to ensure that settlement agreements of this nature form part and parcel of the Integrated Development Plans (IDP’s) of municipalities through out the country.
    5. This means that municipalities should be bound, when developing their IDP’s, to ensure that they take into account restitution claims on land which falls under their ‘jurisdiction’.
    6. Sections 4(2) of the MSB provides that:

The council of a municipality and, to the extent of their delegated authority, …., must, within the municipality’s financial and administrative capacity and having regard to practical considerations-

  1. together with national and provincial organs of state assist in the progressive realisation of the fundamental rights contained in the Constitution.
    1. Similarly, section 20(1)(c) of the MSB provides that municipal planning must be developmentally oriented to ensure that municipalities assist national and provincial organs of the state in the progressive realisation of the fundamental rights contained in the Constitution.
    2. It is submitted that municipalities have a duty to implement urban restitution which needs to be spelt out much clearer than in a general clause referring to ‘fundamental rights’.
    3. Section 21 of the MSB also needs to make reference to the duty of municipalities to assist in the progressive realisation of rights contained in sections 24, 25, 26, 27 and 29 of the Constitution. The right to restitution is provided for in section 25(7) of the Constitution.
    4. Section 22 of the MSB state that each municipality must adopt a single, inclusive plan, for the development of the municipality which-
  1. links, integrates and co-ordinates plans and proposals for the development of the municipality
    1. The said plans include restitution claims and/or settlement agreements entered into in resolving those claims.
    2. Section 23 of the MSB provides for core components of the IDP’s. Subsection (a) thereof says the IDP must reflect the municipal council’s vision for the long-term development of the municipality with special emphasis on the municipality’s most critical development needs and internal transformation.
    3. The Commission on Restitution of Land Rights submits that the vision of municipalities should include how they are going to deal urban restitution as an opportunity to reintegrate and reconstruct their towns.
  1. RECOMMENDATIONS
    1. Municipalities have so far not seen land reform in general and restitution of land rights in particular as part of their responsibilities and priorities.
    2. The MSB is an appropriate opportunity for local government, as a third tier of government to make plans (IDP’s) which will assist it in discharging its constitutional obligation to deal with restitution
    3. One of the ways to ensure that municipalities take this constitutional obligation more seriously is to legislate that their vision, plans (IDP’s) must include restitution within their ‘jurisdiction’
    4. The relevant sections of the MSB need be amended as suggested.