Western Cape Land Claimants Petition: progress report

Normal 0 The Chairperson said that the meeting was a sequel to the meeting held in November 2011 where the intricacy of transfer of state land from one department to another was explained. However, the Committee was more interested in the transfer of land for the benefit of land reform. The public was concerned that land reform was going nowhere slowly. He believed that the departments and parastatals of government might not be aware of the impact the delays caused on land reform. It was the duty of the Committee to enquire as to why there were delays.

Mr Mduduzi Shabane, Director-General: Department of Rural Development and Land Reform, said that the representatives from the relevant National and Provincial Governments were present. However, the City of Cape Town representative was not present as it was not a member of the State Land Disposal Committee.

The Chairperson said that the Committee had invited the City of Cape Town and was curious as to why it was not present. The bulk of the 326 family claims that had been submitted in the Western Cape were claims located in areas around the City of Cape Town and the Committee felt that transfer of land belonging to the City of Cape Town from the city to claimants could not be discussed without the presence of the City of Cape Town.

A councillor from the City of Cape Town was at the meeting in his own capacity to observe and report back to the City of Cape Town through the relevant channels. He asked if he could know the relevant person from the City of Cape Town who was invited to attend the meeting.

The Chairperson answered that the secretary would furnish the name to him.

Rural Development and Land Reform on release of state land for land reform purpose
Mr Vela Mmgwengwe, DRDLR Chief Director: State Land Administration, said that the presentation would deal with State Land processes in response to the letter from the Committee to the DRDLR.

Disposal of State Land may only take place in terms of Law of General Application and the Ministerial authority relating to national department was regarded as custodian of a category of land specified by law. Various laws were administered by provinces. The premier would designate a member of the Executive Council to be responsible for the relevant provincial law.
The Provincial Departments, falling under the relevant MEC, were regarded as the custodian of Provincial State Land. In the Western Cape, both the Provincial Departments of Transport and Public Works were custodians of the state land.

Ordinarily, the power of disposal of immovable assets lay with the Minister or MEC, depending on the level of government. Each executive authority could only dispose of assets falling under their administrative control and such control could be traced back to the law which gave power to dispose of such categories of assets.

The Municipal Council had the power to dispose of an asset. It was required to determine whether an asset was ‘not required for the provision of basic level of service’, as well as determine the value of an asset. Supply chain management regulations and municipal asset transfer regulations also governed how municipal assets were disposed. Municipal land was defined as public land, which included public entities, parastatals, etc. While supply chain management regulations specified that municipalities should develop policies for the disposal of land, they also prescribed what those policies should provide. This made it difficult for the outsider to understand the processes followed by a municipality in disposal of land as the process was defined in policies determined in terms of the supply chain management regulations of that municipality.

In the case of the national sphere, disposal occurred in terms of the State Land Disposal Act and the nine provincial governments made use of their own provincial law.

Initially, the State Land Disposal Committee was created by a signed agreement between the Directors-General of Public Works and Land Affairs to try to manage how disposal of state land had occurred and how state land could be identified for housing or for land reform purposes. In its establishment however, provincial governments had to be invited to be part of the State Land Disposal Committee to ensure certainty of which department – national or provincial - owned a piece of land, depending on its use.

The Provincial State Land Disposal Committee (PSLDC) was an intergovernmental structure, which sought to ensure that each custodian did not dispose of state property that may be required for service delivery objectives of another department. It also ensured that each custodian did not dispose of assets of another because of uncertainty caused by such assets being registered in the name of a pre-1994 government.

The PSLDC only made recommendations on applications brought to it by each custodian. It dealt with applications.

Once internal processes within each custodian had been finalised, the application was ready for submission to the senior manager and executive authority of the relevant custodian. Thus, the responsible custodian official would facilitate state land disposal based on internal policies up to the level when the application was ready for submission to the executive authority. At that point, it went to the PSLDC. In the event of a recommendation, it would go back to the department and for revision, up to the level of the executive authority.

In the Western Cape, the PSLDC met once every three months. The current chairperson was from the DRDLR. In terms of land reform opportunities in the Western Cape, there was some land controlled by the Department of Agriculture, Forestry and Fisheries (DAFF). In terms of the Agricultural Credit Act, DAFF made subsidies and loans available to farmers. Some farmers defaulted on those loans and in terms of the Agricultural Debt Management Act 2001, the act allowed for DAFF to acquire certain farms in the process of debt collection. That land was currently in the control of DAFF. However, because the Agricultural Credit Act was repealed by the Agricultural Debt Management Act the land could not be disposed of by the Minister of DAFF, as DAFF no longer had legislative power to dispose land. It could only be disposed by the Minister of DPW.

A substantial amount of land was controlled by the DPW, including agricultural land that was located in the former territory of South Africa pre-1994. The State Land Disposal Act gave the authority to the DPW power to dispose of that land. Some of the land was fertile agricultural land.

The challenge with state land, which was currently being addressed, was who controlled it and on what basis. There had been claims finalised before the Land Claim Commission was aware of who the owner was. Together with other custodians, the Commission had developed a document to ensure that custodians were aware of the investigation of land claims and that there was no uncertainty regarding ownership. There were, however, cases of multiple claimants of a piece of land, whereby the Commission had to investigate and conclude certainty regarding ownership.

The bulk of the state land administered by the DRDLR was land that was previously owned by the former homelands/Bantustan Trust. In the Western Cape, in terms of previous legislation, because no part of the Western Cape was under any homeland pre-1994, DRDLR did not own land in the Western Cape, except the land acquired in terms of the Provision of Land and Assistance Act of 1993, which was land acquired by DRDLR between 2006 and 2011. All of that land was used for land reform purposes. None of it was claimed in terms of the Restitution Act.

In terms of applications for state or private land disposal, the Commission dealt directly with the owner. For state land, government of the Western Cape dealt with the relevant department – DPW or Department of Transport. There was no central database of lands claimed. When a claim necessitated a response it was responded to by the relevant department concerned.

Discussion
Prince B Zulu (ANC) asked which authority was responsible for disposal of land belonging to tribal authorities.

Mr Mmgwengwe replied that the land belonging to traditional councils or tribes was registered in a Trust for that tribe by the Minister. It was not state land. Although the land was registered in the name of the state, was controlled by the DRDLR and the Minister had to sign documentation for its disposal, it was required by law that the tribe must take a resolution that agreed or disagreed with disposal of that land.

Mr Nkosi Mandela (ANC) asked if the slow pace of land restitution could be as a result of the negative impact of having many custodians and departments with rights on the land.

Mr Mmgwengwe replied that indeed, the existence of multiple custodians did impact on the pace in relation to resolution of restitution claims. However, it was a legislative reality that solutions had to be made in context of the legislation, with the particular problem being uncertainty as mentioned earlier.

Mr Mandela asked for clarity on where the power was vested when it came to the final allocation of communal land.

Mr Mmgwengwe replied that communal land was allocated in terms of the customs of a tribe. Site allocation had to be recorded and signed by the Minister as legislative administrator of the land. The decision as to who would use the land lay with the tribe.

Mr S Natapane (UDM) asked what DRDLR’s position was in the case whereby a community with a legitimate claim failed to lodge a claim timeously, yet the land continued to be unoccupied.

Mr Shabane replied that if a claim was not launched within the cut-off date of 31 December 1998, it would not have been investigated and therefore could not be deemed a legitimate claim. It was not legal, in terms of the Restitution Act, to entertain claims that were launched after the cut-off date. DRDLR was aware of many claims launched after the cut-off date and those cases were referred for assistance through the normal land reform process in terms of land redistribution and tenure reform.

The Chairperson asked DRDLR to respond more specifically to the question on why there were delays, how the DRDLR was dealing with improving the problem of delays and the issue of multiple ownership of state land impacting negatively on the pace of restitution. He also appealed to all Departments present to contribute in terms of explaining the role each Department played in the procedure. The Committee wished to understand the procedure fully.

Ms A Steyn (DA) asked how far the DRDLR was in the process of finalising the asset register to better understand who managed the land.

Mr Mmgwengwe replied that DRDLR did have an asset register, but the quality and accuracy of the data was continually being improved. It was more or less 90% accurate. Although the PFMA provided for transfer of assets from one accounting officer to another, there was no PFMA in 1994 and some departments did not have electronic records of state land. There was also an absence of some records. Further, there was no practical handover when the new government took charge of state land administration. Because of how land was registered, the process involved the deeds office having to determine which land belonged in which department and this process corrupted the asset register. The reason for qualifications would have been outlined in presentation on the Annual Report and was a subject for another discussion.

Ms Steyn asked if the document on the procedure for state land claims – from the point of a claim through to the end point at the Disposal Committee - was available and known at all levels, not only nationally, but at the level of the provinces, municipalities and councils.

Mr Mmgwengwe replied that the procedure document was finalised in October 2011 and was awaiting the Director-General’s approval and signature. Once signed, it would be available to everyone. It was developed between the Commission and the branches for Land Reform for the purpose of dividing processes and envisaged structures to be developed with the involvement of provincial government to deal directly with claims on state land. The document would be made available to the Committee once it had been signed. The disposal of land in the Western Cape would be dealt with by the Commission and Western Cape government.

Ms Steyn asked why, if the asset register was 90% complete, there were still problems with delays.

The Chairperson explained that in South Africa, pre-1994, if the land was owned by Bantustan, it was owned by DRDLR. Land outside the Bantustan pre-1994 belonged to DPW. The full asset register of DPW and DRDLR would give a better picture of what state land was available. It was now clear that DRDLR owned only Bantustan land and land acquired through the Provision of Land and Assistance Act. DPW owned the bulk of the former Bantustan land and municipal land. The Constitution of the new South Africa regarded municipal land as public land, not as state land. The question was ‘who was the public?’ and ‘what land was available for the public through municipalities?’. The public felt that government continually wanted to buy commercial farming land, yet it was sitting on so much land that could be disposed for land reform purposes.

Adding to the complexity, there was also land in Defence, Agriculture, Water Affairs, etc and all owned land, but the problem was flogged only at one horse, the former Department of Land Affairs. The government should divulge exactly what land it owned. Parliament ought to know what land was available for land reform outside of Bantustan land.

Another problem was when the public occupied vacant land and the problems were diverted to DRDLR. Various departments owned the land. The public was under the impression that the Constitution obligated DRDLR to own state land. The Constitution gave state land to 265 municipalities. On top of that, 10 governments were also given land.

The Committee would ask DRDLR for its asset register on Bantustan land and land reform in Bantustan areas, not land reform in South Africa per se. Local municipalities also had to come to the party. The challenge to understand what caused land reform delays in South Africa was beyond the delays on the part of the DRDLR. It was a serious national question to be addressed in the current year.

The Director-General commented that he was satisfied with the Chairperson’s response to the Member’s question on delays.

Prince Zulu said that he was concerned that there were laws that allowed many departments to own land. He asked if the law could be amended so that one department controlled the asset register for the country.

Progress on addressing grievances by Western Cape Land Claimants: Disposal of State Land for Land Reform
Mr Michael Worsnip, DRDLR Chief Director: Restitution Support, Regional Land Claims Commission, provided the background for the Land Claims Petition: Western Cape.

The Western Cape Province Land Restitution Claimants had lodged a petition with the Speaker of the National Assembly through Ms A Steyn (DA) regarding the process of land claims in the Western Cape. The petition highlighted three broad areas: limitations of the legislative framework for Restitution; grievances on the processing of claims and conduct of officials; and settlement of specific land claims.

The Portfolio Committee on Rural Development and Land Reform had considered the petition containing 326 family claims and had requested the Regional Land Claims Commissioner to respond to the matters raised in it. Having considered the Commission's responses, the Committee tabled its report and recommendations in the National Assembly. The Commission and DRDLR had indicated commitment to purchasing land based on identified needs and in line with policy framework. The Commission submitted a Claims Progress Report to the Portfolio Committee quarterly and the next report was due in February 2012. The processing of claims was envisaged to be spread over two financial years, being finalised by December 2013, depending on the processes and budget allocations. The Commission would attempt to utilise presently available land and was having ongoing discussions with relevant national, provincial and local authority to identify and release suitable state land, where necessary. Monthly meetings with the City of Cape Town were proving to be fruitful. The Commission would present to claimants the options for their consideration. The Commission had been holding ongoing engagements with the Institution for the Restoration of Aborigines in South Africa (IRASA). [See document for status on land applications]. In relation to Protea Village, land had been released by the City of Cape Town but unfortunately the matter was in the Appeals Court and the process was on hold.

The process was moving steadily ahead. A list of all properties that had been requested for restitution purposes from the National DPW and from the Provincial Departments of Human Settlements and of Transport was provided in the document handed out.

Discussion
Mr Mandela asked how DRDLR would ensure that the claims would be fast-tracked. He also asked how the number of claimants and the validity of claimants was verified, when for example, some claimants refused to identify themselves. Further, the presentation did not offer concrete facts such as the number of claimants per claim and how many claimants could be accommodated.

The Chairperson added that since the time of the quarterly report, which stated the number of claimants per claim, he would be interested if there was a deviation in numbers since then.

Mr D Smit, Director: Operational Management, Regional Land Claims Commission of the DRDLR, replied that only the land requests where there had been progress had been presented. In fact, Stellenbosch had eight claimants; Constantia had 160 claimants; in Claremont, 60 of 72 claimants had been verified as interested in going to Claremont; Hout Bay had eight claimants; Protea Village had 54 claimants; in Raapkraal, four out of eight claimants took financial compensation; and Goodwood had 140 claimants.

Ms Steyn asked if, since the Commission had to utilise all available state land and since the document in the Director-General’s office would divulge how state land would be disposed, a list could be shared with the Committee on all available state land, as well as which department, province, or city was responsible for disposal of that state land.

Ms Steyn asked who had instigated the court case which was delaying the Protea Village land claim and whether it could have been solved prior to going to court.

Mr Smit replied that a particular person representing a group of people in the area had objections to the land claim and this was the reason for the delay. The court had filed in favour of the claimants but the matter was then taken on appeal. Unfortunately, the situation was beyond the control of the Commission and it was a sad situation for the claimants, who had to wait indefinitely until the Appeals process was concluded.

Ms Steyn commented that provinces were concerned that there may not be enough judges available to deal with the land claim court cases and that if this were true, there could be further delays.

Mr Tele Maphoto, Acting Chief Land Claims Commissioner: DRDLR, said that the issue of a shortage of judges was a national problem and few judges were allocated to the Land Claims Court by the Department of Justice. This was a frustration for land claimants as well as the DRDLR. Another issue was that court cases always took time as there were several processes and legal delays before the actual hearing in court.

Ms Ngwenya-Mabila asked what the options were if people did not accept available land, financial compensation, or the development of land options. She also asked how long it generally took to find other suitable land to restore them to their original land.

The Chairperson added that in 1994, the government made a law which created the Commission which was supposed to be on the side of the claimant. He was concerned that the claimant was not empowered to be restored to their original land and presented with alternatives.

Mr Mmgwengwe agreed that refusal of alternative land was a challenge. They could not be forced to accept the land.

Prince Zulu noted that there were six claims still waiting for land to be released for restitution from the provincial department of Human Settlements. He asked what caused the delay and who was responsible for the land to be released.

Ms P Ngwenya-Mabila (ANC) asked what the reason was for Hout Bay claimants not accepting land in Nooitgedacht (Retreat).

Mr Worsnip replied that the reason for not accepting land seemed to be about whether the land and area met the needs of the community. They could not be forced to accept the land.

Ms Ngwenya-Mabila asked what date the service provider for the feasibility study in Constantia had been appointed and when the study was expected to be completed, so that progress could be tracked.

Ms Smit replied that the service provider would start work in January for a time period of six months. A report would be made available in July 2012.

Ms Ngwenya-Mabila asked if the offices awaiting correspondence from beneficiaries had a deadline for submissions, so that when there were no longer submissions, the matter could be closed.

Mr Worsnip replied that this was a difficult issue. Beneficiaries made promises to submit documentation, but weeks passed and they were not forthcoming. Correspondence to validate claims was required. Without pre-empting a conflict situation, at some point, it may be necessary to decide whether the claim in fact existed.

Ms Ngwenya-Mabila asked what progress had been made with the code of conduct for officials with regard to interacting with the public.

Mr Worsnip replied that it was critically important that claimants knew that officials were there to help them. The Commission was in the process of ensuring careful adherence to standards, that letters were answered, that people were treated with respect and queries dealt with as soon as possibly. There had been improvement in that.

Ms Steyn asked what the nature of the verification was that still needed to be finalised. She presumed the full report would be received in February 2012.

Mr Worsnip commented that verification was standard procedure within the processing of restitution claims to check that the person was indeed who they said they were and had a right to the claim.

Ms Steyn asked if there was a time frame for verification of land claims. The pressure was on the DRDLR for finalisation of land claims by December 2013, yet all the claims were not necessarily valid.

Mr Smit replied that verification would be completed in time but even when it was complete, the register had to be updated. For example, when a family member died, the family structure had to be updated.

The Chairperson said that ironically people were dying while waiting for their land, while the Land Claims Commission had a legal requirement to update and verify family structures when people died. This was a separate debate, however the Committee needed quarterly reports on all claims, not because of a petition or because of lawyers representing claimants. The Committee expected blow by blow, province by province updates on all claims. If the Western Cape was experiencing problems, it was a wonder how other provinces were faring. The Restitution Act of 1994 surely envisaged prioritising poor people, not whether Departments would be willing or not willing to release land for restitution purposes. The matter had to be resolved together with the DPW and the Portfolio Committees would jointly engage on it.

The Chairperson asked that in February, the DRDLR should prioritise sharing the Special Investigation Unit findings with the Committee (as requested the previous year), which related to DRDLF officials abusing land. In the same context, he suggested that SALGA be invited to meet with the Committee to deal with the issue of public land. Meeting with the parastatals would be a challenge as there were more than 500 of them. Since they owned public land and not state land, they would not be involved in state land disposal but would be involved bilaterally.

It appeared that even when a department was willing to dispose of land, there were other categories affecting claims, such as environmental impact assessments (EIAs), division of land and other processes. There had to be a way to deal with streamlining processes and clarifying which department makes determinations on certain land. Parliament would be irrelevant if it continued to allow bureaucracy.

Ms Jacqueline Samson, Chief Director: Human Settlement Planning at Provincial Government; Western Cape Department of Human Settlements, said that as members of the PSLDC, their role as custodian for Western Cape State Land was, through bilateral agreement, to make land available to successful claimants for human settlement development - if land was not for core use - within a particular profile or beneficiary income level. The list of properties currently available, in-the-process of being made available and available but undeveloped had been submitted to the Committee.

The Chairperson asked if, apart from category or core use, there were any other requirements before release of the land for land reform purposes.

Ms Samson replied that there were no other requirements. The process was managed by the DRDLR and when submission was made to the Western Cape Department of Human Settlements to make land available, they acknowledged that processes had been duly followed. In terms of the bilateral agreement, Western Cape Department of Human Settlements had ownership of the land and transferred the land parcel to the end beneficiary. There were no other transfers of ownership. The only other process involved was a land availability agreement regarding use of the land.

Ms Steyn asked which party bore the costs of the survey, subdivision of land, servicing, etc of identified land.

Ms Samson replied that normally the entire land parcel was made available in its existing state. The Western Cape Department of Human Settlements did not develop townships or provide additional resources to prepare the land, survey or rezone for the end user. This would be at the cost of the beneficiary. However, the Western Cape Department of Human Settlements was responsible for rates and taxes, liability and securing of the land.

The Chairperson asked for clarification on whether the subsidy would be for building a house and the price of the plot would be owed to Human Settlements.

Ms Samson replied that in most cases, the property was made available at no cost. For a housing subsidy, the individual beneficiary must qualify in terms of policy, usually through DRDLR.

Mr Frederick Johnson, Regional Manager: Department of Public Works, said that the DPW was also a member of the PSLDC and attended to all requests received for land restitution. If the land was available, they responded via the PSLDC to make the land available for reform purposes.

The Chairperson asked if there were additional procedures or transfers involved before the land would be made available.

Mr Johnson replied that the land was made available free of charge and there was no reason for delays. In some cases in the past, the process of obtaining the signature from the Minister took time, but that situation had subsequently been fast-tracked as it this was now done internally.

Mr Barry Levinrad, Acting Director: Land Reform; Western Cape Department of Rural Development and Land Reform, said that he participated in the PSLDC though it was normally chaired by the DRDLR Deputy Director responsible for state land. He was responsible for land redistribution and tenure reform. He wished to add to the presentation by his colleagues that the DRDLR had a substructure of the PSLDC - a Screening Committee - with representatives from the various departments, which enabled requests for disposal to be screened to ensure that rural/farm land to be disposed of or vested indeed had land reform opportunities. Tenure reform was also a focus, with respect and attendance to the rights of the existing occupants of the rural land. Though this additional aspect of disposal may cause a delay, it was very important, as there were farms in the province, administered by DAFF or DPW, that did afford land reform opportunities. On occasion DRDLR was forced, for example, by order of the Public Protector, to make state land available to other parties rather than for land reform-only purposes, especially when there were tenure rights, to find a settlement to accommodate all parties.

Ms Babalwa Magoda, Chief Director of the Provincial Shared Service Centre: Western Cape: Department of Rural Development and Land Reform, said that most of the work in the PSLDC was to assist Departments with vesting (who owned the land) and disposal of land. There was no land for disposal in the Western Cape and the previous year, no land in the Western Cape had been tabled for disposal. Since 2009, in her experience in the PSLDC there had been no state land disposal by any Department, although there may have been disposal in other provinces through bilateral agreement with the Commission.

The Chairperson said that Parliament’s purpose was to get land to the people in the most painless and cheapest possible way. The story received in the meeting was worrisome. The next step would be for the petitioners to approach the Human Rights Commission to say that Parliament was not assisting them. Perhaps the public were not aware of the processes, but Parliament had the responsibility to find out the truth about land disposal for land reform. He suggested that the Committee meet with the outstanding provincial departments of Public Works and Transport and that Ms Magoda report back on land disposal of all provinces, including pre 2009. The problem of delays needed to be solved, not only in provinces, but also nationally.

Finally, the perception by the public was that DRDLR was failing in its duty to make land, which was owned by Departments, available for reform. There had to be something wrong with the law that a Commission had to negotiate release of land that belonged to the state. Land owned by parastatals and municipalities was public land and land owned by the state was state land. There were Departments buying farms in the Eastern Cape, changing state land and private land into public land, then holding it without using it. Parliament refused to be toy telephones, talking to people who were not there. The Committee was responsible to the nation, who could not get land because it was owned and could not be used.

As reported by the Auditor General, the asset register had to be finalised.

The meeting was adjourned.