JOINT SUBMISSION OF COSATU AND NUM ON THE COMMUNAL LAND RIGHTS BILL, [B67-2003]
Presented to the Portfolio Committee on Agriculture and Land Affairs
13 November 2003
Land and property rights remain a highly contentious area in South Africa and not without reason. It is well known that systemic dispossession, forced removals and implementation of various discriminatory land laws under apartheid has left a legacy of highly skewed patterns of property relations favouring white ownership in South Africa. The unquestionable need to address this gave rise to the various land reform provisions in the Constitution.
COSATU and NUM view land reform in general (comprising all three components of tenure reform, restitution and redistribution) as a priority area of concern. We believe that the political and constitutional imperatives underlying the need for redress should be treated with equal importance as providing access as a basis for addressing productive and income-generating capacity. This is vital taking into consideration the high rates of poverty and unemployment and prevalence of underdevelopment especially in rural areas.
Accordingly we are grateful to the Committee for affording us the opportunity to make a presentation on our concerns around the Communal Land Rights Bill (hereafter "the Bill").
We strongly believe that there is urgent need for communal land reform. However, reform in this area will affect just 13 percent of land in South Africa, most of which is currently State-owned. Therefore it cannot by itself provide a solution either to severe overcrowding that is prevalent in communal areas or the highly unequal distribution of land. The success of communal land reform measures will only be realised if coupled with meaningful delivery of land redistribution and restitution programmes. However, the current pace of land reform is far too slow with the DLA being unlikely to meet its target of redistributing 30 percent of agricultural land over 15 years. With the underlying cause for this being the insufficient budget allocation for land reform, this raises serious questions as to whether adequate resources will be invested to ensure the implementation of this Bill.
We have made a previous submission to the Department of Land Affairs on the Draft Communal Land Rights Bill published in August 2002. Accordingly our comments made herein take into developments in the process since then.
Communal land reform, while necessary, should not mean rejecting communal land system in its entirety. We believe that there are positive elements, which must be retained such as the principles of collective rights and community involvement in decision-making. However, where relevant reforms must be implemented particularly in relation to addressing the discrimination suffered by African women in relation to land rights and democratising and ensuring accountability of the functioning of traditional leadership at community level.
While there is a need to recognise historical links to an area, we believe that discrimination should not be allowed in respect of specific people or groups who were assimilated at a later stage. This is particularly relevant to groups who were forcibly relocated under apartheid to other regions/communities. While this is one of the underlying reasons for overlapping rights and overcrowding, we believe that this problem should be addressed through the provision of additional land for redistribution. To exclude or provide for diminished rights to such people will only perpetuate the earlier discrimination and dispossession suffered. Further, in this light the role of traditional leaders should be sensitive to the needs of such groups who may not consider themselves to be subject to the authority of the traditional leader.
It must also be borne in mind that the communal system entails a number of different types of rights, which vary in content and nature. These range from exclusive rights to individual plots for the provision of homesteads to communal access/usage for purposes of agriculture. In line with this communal land reform should provide for two distinct types of property relations.
In relation to the first category, we believe that there is need for strong individual and exclusive rights to private ownership in respect of property for the purposes of homesteads. This we believe has different tenure requirements from property for productive purposes. Private ownership in respect of homesteads would remove the vulnerability of individuals to dominant members within the group, who may threaten tenure security. Further, it would remove the specific barriers discouraging investment, for example employer-run housing programmes.
In respect of the second category, we believe that collective rights under the communal system must be retained in respect of property intended for productive purposes. This is as opposed to the approach of transferring ownership of land from the State to groups or individuals, through what is commonly referred to as a titling approach.
Comparative experience in countries such as Kenya indicate that the titling approach has delivered few of the anticipated benefits. The net effect has been to increase landlessness with poorer families selling up their holdings and moving to the cities. The ongoing fragmentation and subdivision of plots have led to the creation of holdings that are not economically viable and worsen circumstances of overcrowding with the only real benefits accruing to local elites. This illustrates how transfer of ownership from the State is likely to impact on the communal system. The transfer is likely to constitute a barrier to State intervention to reverse abuse.
Further, the likely consequence of the State divesting itself of ownership would be the concurrent perception that it no longer holds the responsibility to address the severe underdevelopment in communal areas. We believe that other alternatives should be considered to transferring ownership from the State. One possibility would be the retention of nominal State ownership, whilst strengthening the land rights of occupants and providing for a decentralised community structure that would be responsible for the administration and allocation of the various rights.
Our concern about the Bill is that it does not take into account the separate tenure and ownership requirements between different types of property rights as illustrated above. It merely approaches tenure reform on the assumption that the transfer of ownership will address tenure security. While we support private ownership for the limited purposes of homesteads, this needs to be approached in a manner that would ensure equitable access to rights. The Bill fails to provide guidance in this regard.
In line with our broader approach to land reform we believe that the Bill should be audited against the following principles:
Section 25(6) of the Constitution provides:
"A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress."
As has been pointed out in other submissions, the Bill raises serious constitutional concerns. Firstly, the Bill fails to give effect to the above right, since it does not provide an upfront right or entitlement to secure tenure or comparable redress. Instead the Minister is empowered with the discretion to provide secure tenure or comparable redress. This is in contrast to other land reform legislation, such as the Restitution of Land Rights Act 22 of 1994 and Extension of Security of Tenure Act 62 of 1997 (ESTA), which provide for the entitlement of the right.
Secondly, the Bill is supposed to set out the extent of the right to either secure tenure or comparable redress. Again this is left to the discretion of the Minister. The Constitution requires "an Act of Parliament" and not the Minister to give effect to the right and determine the nature and extent. Of concern is that the 2002 version of the Bill did attempt to set out the entitlement and extent to which it was to be protected. It is unclear why this has been left out.
Thirdly, the substantial Ministerial and official discretion as noted above as well as in various other provisions of the Bill is open to constitutional challenge. The Constitutional Court has already ruled in various cases that the rights cannot be dependant on the exercise of discretion.
The rights to equality and protection from discrimination on the basis of gender is entrenched under section 9 of the Constitution. We are concerned that the Bill fails to prohibit gender discrimination, which is prevalent in the allocation of property rights under communal systems. Further, there is a need for provisions that address gender in a more proactive manner. For example, rights afforded under this Bill will in most instances accrue to existing holders of rights. Women, who are likely to be in the minority as holders of rights, will therefore be unable to rely on this to access secure tenure or comparable redress.
COSATU made a submission on the Draft Bill published in August 2002. Since then another version was gazetted for public comment in October this year, which raised serious concerns about the significant shift in policy emphasis from the previous version. However, this second gazetted version did not contain the amendments on the role of traditional councils provided in the final version of the Bill approved by Cabinet that is now before this Committee. This has meant that this substantially revised Bill has not been subject to thorough public consultation. Further given the limited time now available we have not had the opportunity to fully assess its implications.
We believe that the Bill will have to be substantially redrafted to meet with its constitutional mandate. However, we do not believe that this will be possible with the time constraints that this Parliament is subject to as result of the 2004 general elections. In this respect we would be strongly opposed to the fast tracking of a flawed Bill purely to meet parliamentary deadlines, despite the serious consequences these may have.
We are extremely concerned that this version of the Bill reflects a considerable shift from the 2002 version. In particular, while the latter was significantly flawed it contained a number of positive elements, which have now been completely removed. These include a stronger emphasis on promoting gender equality, providing for a role of traditional leadership that is more compatible with the Constitution and providing for stronger mechanisms of community participation and involvement.
The Bill omits to provide for a preamble, which is a standard feature in legislation of such a political nature and is found in virtually all other land reform legislation. The preamble would serve an important, practical interpretative purpose and would set out the human rights basis from which the Bill emanates. That the earlier version of the Bill did contain a preamble, provides the first indication of the radical departure of this Bill from the 2002 version.
Our proposal is that provision should be made for a preamble, which should include amongst others the need to address the historical dispossession of communities; to give effect to constitutional requirements in this regard; to address gender discrimination insofar it relates to communal land, to empower communities to democratically participate in the decision-making process in the allocation of communal land rights and to provide for the role of traditional leadership in a manner that is compatible with the Constitution.
As noted earlier the Bill fails to set out the nature and extent of the rights affected by the Bill.
In essence new order rights are those rights, which have been confirmed, converted, conferred or validated by the Minister in terms of the determination provided for in the Bill. It is unclear whether new order rights relate to ownership or merely rights of usage or whether these rights are capable of being transferred through succession or other means.
Old order rights are those rights, which exist prior to the determination made by the Minister. The Bill does not set out what is to happen in the interim period prior to the determination, which is likely to be a considerable time taking into account the requirement to implement a land rights enquiry prior to the determination. By failing to provide secure tenure upfront for all existing communal rights, such rights are likely to remain unprotected in the intervening period.
The 2002 version of the unequivocally included the KwaZulu-Natal Ingonyama Trust land. However, under clause 2(1)(b) this Bill is only to apply to the extent to which this provided for in Chapter 9. Chapter 9 in turn provides for a separate set of arrangements, especially in relation to setting up of the proposed Land Rights Boards. The current Board of the Trust will be retained until the termination of the office of the current Board members. Further, in accordance with clause 32(b), authority of the Trust is to extend beyond the land currently under its authority to all communal land in KwaZulu-Natal. Of concern is that the land administration committees, applicable to all other communal land for in the Bill, does not appear to be applicable to land under the KwaZulu-Natal Ingonyama Trust.
We are concerned that this is going to give rise to inequality between the way communal land is handled. Accordingly, we are of the opinion that the provisions of the original version of the Bill should be reinstated to ensure that land subject to the authority of the Trust will be dealt with in the same manner as all other communal land.
Clause 3 of the Bill provides that upon registration of required community rules, the community would acquire juristic personality. This would then allow it to acquire and hold rights and incur obligations and own, encumber mortgage or servitude property transferred in terms of the Bill.
Firstly, we believe that this provision should be amended to take into account our earlier comments for different tenure approaches depending on whether the land is to be used for productive purposes or homesteads. In respect of the former we believe that nominal state ownership is to be retained with strong legal tenure rights. In respect of the latter provision should be made for the transfer to individual household in the form of private ownership on an equitable basis.
Amendments are also required to clause 6, which provides that the Minister must transfer land after a making a determination. This leaves no room for the distinction that we believe is required as described above.
Further, we believe that there is a need to obtain community mandates in the event of the allocation of free hold rights. Accordingly we believe that there is need for an amendment to be inserted providing for the authority of the community to "guarantee members who elect to have freehold rights".
Clause 4 that old order rights "must be legally secured in terms of this Act". As noted earlier this fails to give effect to the upfront entitlement required by the Constitution.
Clause 15 empowers the Minister to either designate a department official or appoint another person as a land rights enquirer. This provision raises serious concerns.
Firstly, the number of such officials are left entirely to the discretion of the Minister to determine. Considering that all rights to be secured under this Bill must be subject to an enquiry process, clearly indicates that a substantial amount of resources will be required for implementation. The lack of provision in the Bill to ensure appropriate allocations, also taking into account the overall context of inadequate resourcing of land reform, is likely to considerably restrict the implementation of the Bill.
Further, taking into account that the outcome of an enquiry is to inform the final determination, it is vital that such a structure be constituted as a representative body comprising .broad stakeholders as opposed to being limited to a single official.
Of major concern is that clause 21 provides for a land administration community(LAC) to exercise community powers of ownership and administration only in areas where there are no traditional councils. Where traditional councils have been set up in terms of the proposed Traditional Leadership and Governance Framework Act, then the traditional council will exercise such powers. At odds are the complete difference in composition between the two structures.
The members of the LAC are to be elected and may not hold traditional leadership positions. At least a third of the membership must be made up of women and one member must represent the interests of vulnerable community members. Provision is also made for non-voting members representing the Department, the MEC for local government, relevant municipalities etc. In contrast the traditional council is to comprise 60% of traditional leaders and traditional community members selected by a senior traditional leader. The other 40% is to be made up of elected members of the community.
We have serious concerns about traditional councils being given this role in terms of the Bill. We do not believe that a structure, of which only a minority have been elected, can serve in the interests of the community.
We believe that it will be preferable to reinstate the arrangements provided in the 2002 Bill. Here only LACs were provided and these included the participation of traditional leaders in an ex officio capacity. Participation of traditional leaders was to be limited to a maximum of 25% of the total membership and no veto powers were to be applicable. This correctly provides for the role of traditional leadership in line with the Constitution, whilst ensuring that communities were meaningfully empowered to make decisions in respect of land rights.
Owing to the time constraints we were unable to provide a comprehensive analysis of the Bill. Notwithstanding, we have been able to point to serious flaws in the Bill, which would require substantial redrafting. Taking into account the problems with process, the constitutional concerns raised, and improbability of this being able to be rectified within currency of this Parliament, we are left with no option but to call for the Bill to withdrawn.
We believe that this matter needs to be addressed urgently and may be advanced through the setting up of a civil society forum, possibly through NEDLAC. We are committed to assisting in this regard if called upon to do so.