Land claims in South Africa: progress report by Minister

Meeting report

Progress Report on the investigation by the Special Investigating Unit (SIU)
The Chairperson introduced the agenda, saying the Minister of Rural Development and Land Reform would address the meeting on the progress report on the investigation by the Special Investigating Unit (SIU). The investigation was initiated by a Proclamation issued by President Zuma in March 2011, at the request of the Portfolio Committee on Rural Development and Land Reform. The investigation was as a result of allegations of irregularities against the Department relating to the application for and awarding of grants, the transfer of land and payment of funds to beneficiaries, irregular expenditure and wasteful and fruitless expenditure.

The Minister of Rural Development and Land Reform, Mr Gugile Nkwinti, replied that the SIU investigation would not be discussed as the report had not been processed by the President or by Cabinet. Only after Cabinet had adopted the report, would it be presented to the Portfolio Committee. It would be imprudent to divert from the prescribed procedure. He requested the item to be withdrawn from the agenda.

In reply to Mr S Ntapane (UDM) asking if the investigation had been completed, the Chairperson said he was under the impression that the report to be presented was a progress report.

Ms P Ngwenya-Mabila (ANC) proposed the matter be deferred for discussion at a later date.

The Chairperson noted that the Minister said it would be an anomaly in law for the President to sign a Proclamation, and then the report resulting from that proclamation was sent to another body to be discussed before the President had seen it. Reports of this nature had to go to the President first for consideration, after which it would be tabled in Cabinet, after which it would be presented to the Portfolio Committee as the Portfolio Committee had requested the report. He asked the meeting to agree or disagree to the proposal by the Minister.

The Chairperson put Ms Ngwenya-Mabila’s proposal that the Minister’s proposal had to be accepted, in other words that the matter had to be removed from the agenda for the day, to the meeting. Ms N November (ANC) seconded the proposal.

The Chairperson said the Committee had requested the Commission to not only report on land claims in the Western Cape as this created the wrong impression that land claims only happened in the Western Cape. There had to be reports on the progress of land claims per province every quarter.

The Minister said that the Acting Commissioner would present the report and the team would respond to the questions raised.

Progress Report on Land Restitution Claims
Mr Tele Maphoto, Acting Chief Land Claims Commissioner, recapped that the Restitution of Land Rights Act was promulgated in 1994 and the Land Claims Commission was established in terms of the Act in 1995. According to records in the Commission, a total of 79 696 land claims were lodged by the cut-off date.

In March 2011 the Commission embarked on a process to verify the accuracy of the number of claims lodged and the number of claims outstanding. In December 2011 the Department of Rural Development and Land Reform started a process to verify the accuracy of information regarding the commitments that had been made to restitution claimants.

The Records Management Project, scheduled to be completed by August 2012, included firstly the scanning of all restitution project files, and secondly the manual counting and analysis of claims based on the scanned project files. The scanning was 95% complete. The counting would determine claims lodged, claims finalised, claims partially settled and claims outstanding.

Through this process, it emerged that there were claims that had been lodged timeously, and the claimants had proof, but the claim were not in the database of the Commission.

The Land Claims Commission had several different incarnations. First it was the Commission on Land Allocation, then it was the Commission on Restitution of Land Rights (CRLR) and currently it was the Land Claims Commission. The method of counting had differed and was complicated by the compacting of several claims into one claim.

The purpose of the Restitution Technical Assistance Project was to determine the full extent of the commitment register. The project verified the details on payments, outstanding balances, and remedial actions taken to date in respect of approval of claims and development grants, physical verification of farms acquired but not transferred, verification of land acquired from private owners and transferred to the state, and verification of the amount of the suspense account and to identify remedial action to be taken.

- A table was provided of outstanding claims broken down by province and category in terms of the stage that the claim was in. There was a total of 3 346 outstanding claims.
- A second table gave the settled restitution claims for the period from 1995 up to the present. There was a total of 76 506 settled claims.
- A third table displayed the number of hectares transferred, broken down by the province. A total of 2.8m hectares had been approved for acquisition, 979 921 hectares had been transferred into the hands of claimant communities and the state. Of the 979 921, 140 262 ha had been transferred into the name of the state due to community disputes and other challenges.
- The final table listed the grants expended since 1995 up to the present broken down by the province. The total amounted to R4, 233, 451,032.93 (see presentation).

Challenges that affected the settlement of claims were:
▪ historically claims on privately owned land and claims for financial compensation had been prioritised as these assisted in spending the budget.
▪ conflict amongst beneficiaries;
▪ claims on unsurveyed state land;
▪ claims on communal land (occupied);
▪ claims on invaded state land;
▪ long term leases on state land;
▪ state owned entities and municipalities demanding market related prices for land.

Remedial actions planned to overcome the challenges were:
▪ to validate all claims on state land by 2013,
▪ to survey all state land by 2013,
▪ to mediate the conflicts amongst beneficiaries and
▪ engage National Treasury regarding state owned entities and municipalities demanding market related process for land in their possession.

Some claims affected national strategic assets in the form of national and provincial parks, mining land, forestry land, SANDF and SAPS land. The presentation provided breakdown per province of the claims on conservation land, mining land and forestry land. It also provided a breakdown per province of the number of cases in court. There were a total of 152 with the most in KZN (71)and the least in the Western Cape (0).

Discussion
Mr S Ntapane (UDM) complained about receiving the briefing document only at the meeting instead of beforehand, allowing him to come to the meeting prepared. He felt that the Portfolio Committee could not do justice to thrashing out the issues.

Mr Trollip had concerns about record management. The preliminary findings were that claims had been lodged timeously, but the Commission had no record of them. He referred to claims that were lodged with the Commission for Land Allocation of which there was no record currently. He asked why claims had not been recorded properly.

Mr Maphoto replied that during the formative stage of the Commission, the Commission on Land Allocation received, adjudicated and validated the land claims. It then changed from the Commission on Land Allocation to the Commission on Restitution of Land Rights. In the transition process discrepancies crept in. He referred to cases where the claim was lodged timeously, but no records of the claim could be found afterwards in the database of the Commission. The Commission used to be centralised in Pretoria. When it was decentralised, there were problems with the migration of the systems to the provinces. It was an historical issue. This could have caused the anomaly where a claimant had proof he had lodged a claim, but in the provinces there was no record of the claim on the system. These cases formed part of the number of outstanding claims that the Commission was working on to resolve.

Mr Trollip asked if it was realistic to expect the project to be completed by August 2012.

Mr Maphoto replied that the Commission had already manually counted three provinces. The Commission had to put the counting process aside to scan the documents into the database, so that no dockets were kept in offices. All manual files were kept offsite and warehoused. The Commission anticipated this process to finish in August 2012. The Commission used students to do the project.

Mr Trollip quoted the report as saying that 2.8m ha was part of the process, 979 921 ha had been transferred into the name of claimant communities and the state, 140 262 ha had been transferred to the name of the state due to community disputes and other various challenges, and 1.9m ha still had to be transferred. Was there a timeframe attached to this process and what was it?

Mr Maphoto replied that that the identity of the true and rightful beneficiary of the land had to be verified, because there had been an objection by the community. The Commission had to do everything to minimise the potential risk of allocating land to the wrong recipients, because it would be near impossible once the process had reached the post-settlement stage. Regarding the 140 262 ha that had been transferred to the state, the Commission was busy transferring those that were transferable and others were put in abeyance until the situation was ripe for them to be transferred to communities.

Ms Ngwenya-Mabila asked how many of the 76 506 settled restitution claims had been finalized and how many were phased claims and phased payments.

Mr Maphoto replied that the 75 506 claims were settled. They were not further categorised though. Some were finalised, some not. Finalised meant that the state had paid and bought the property. The land sale in some cases had been approved by the Minister, but the money had not been handed over yet.

Ms Ngwenya-Mabila asked which computer database system had been used before and what were its challenges were. She asked if the Commission was sure that it would be able to capture accurate information on the new database system.

Mr Maphoto said that databases were always a challenge. The Commission hoped that the new system would capture the correct information so that the Commission could get a clear picture of what it was dealing with and where it was in the process in order to map the way forward.

Mr Ntapane referred to the heading ‘Hectares transferred 1995 - 31 January 2012’, which stated that in the Eastern Cape 129 075 ha had been approved for acquisition, while only 95 766 ha had been transferred to beneficiaries. What had happened to the difference between the two? He was not sure if this meant the land was registered in the name of the state since there was more than one beneficiary and there was a dispute.

Mr Ntapane asked what ‘National Security Value’ meant under the heading ‘Common Elements of National Strategic Assets’.

Mr Maphoto explained what this meant by using the example of Madimba Military Base next to the Limpopo River. There was a claim on the land, but the Commission would keep the defence force there and look for another suitable piece of land to allocate to the people. The same went for the Hoedspruit Air Force Base. The Air Force would stay on the land, and another area would be allocated to the people making the land claim.

Mr R Cebekhulu (IFP) said that land claims files changed hands time and again due to Commission staff coming and going. The Commission staff also did not communicate with the communities and claimants whose claims they were processing. How was staff monitored and managed to see how much work they were getting through? He felt that Commission staff attitudes left much to be desired. When calls were made to the offices, they were rarely answered. There were no responses from the Commission offices. What measures were in place to monitor performance and operations at the Commission offices?

The Commission employed many young staff who left for greener pastures as they had more lucrative opportunities elsewhere. The Commission then had to assign other staff to carry on with the work.

Mr Maphoto replied that the Commission was aware that sometimes they do not answer call, or reply to queries. The Minister and senior Commission staff always reiterated that staff had to focus on improving customer relations. Surveys were done to determine the quality of the service. If there were persistent problems with the service, Mr Maphoto could be contacted.

Mr Ntapane asked why there were so many unresearched claims. What was the reason for this?

Ms Ngwenya-Mabila asked what process was in place to fast-track the processing of claims, in the light of the huge number of claims that still had to be researched.

Mr Maphoto replied that the Commission was establishing a research team to track and fast-track unresearched claims. As more claims reached the finalisation stage, it needed more resources. It was then necessary to focus available resources on those claims which had reached the finalisation stage, and set aside the claims in the unresearched stages. The research team would process the unresearched claims, so that they could be validated, put into the system and processed.

Mr B Zulu (ANC) referred to Outstanding Claims in the presentation and asked why KZN had so many (1 359) claims that were not researched.

Mr Maphoto replied that there were many land claims lodged in KZN of which many were complicated cases. The department was focussing on KZN to unlock unresearched claims and get them to the next phase. This would reduce the number of unresearched claims.

Mr Ntapane asked if the scanning had been completed and how much physical counting was done.

Mr Maphoto replied that three provinces were done. 95% of the work was done already. It would be completed when scanning was completed.

Mr Maphoto replied that he had alluded to the reasons why some claims have not been researched. The more claims reached the finalisation stage, the more efforts it required. This was why some of the unresearched claims did not move at the pace that was required. The method of work was to process the claims in batches of 100 from the research stage to the stage where settlements had been finalised.

Mr Zulu asked who maintained farms which had been transferred to the custody of the state because of disputes, and how long were they kept in the possession of the state before being returned to the possession of the claimants.

Mr Cebekhulu asked about the fourth challenge under the heading ‘Challenges Affecting Settlements of Claims’ which referred to ‘Claims on communal land (occupied)’. He asked if communities had been given communal shared land to live on, while there were other communities claiming the land belonged to them.

Ms Ngwenya-Mabila asked if there was any remedial action in place to resolve conflicts amongst competing beneficiaries in the process of land restitution.

Mr Maphoto replied that due to the process, because land was under the jurisdiction of a different tribal leader, it could not be restored to the original occupants. There were challenges in claims and they were difficult to settle.

The Minister responded on the issue of claims for communal land that was occupied. This was the reason that the issue of communal land had been isolated in the Green Paper. The Department was developing a proposal in the form of a model. It had met with Contralesa and Contralesa agreed to the model. It would still meet with the House of Traditional Leaders. The model was complementary between traditional and democratic institutions with specified roles for the traditional councils in particular. He hoped to soon have a proposal for the country for further discussion, because a long-term, sustainable solution was needed. It had to take into account food security and make provision for modernising some of the institutions that related to live stock management and veld management in communal areas.

The Green Paper pointed out that the current model of land restitution created the problem of creating communities within communities. The smaller community was called a Communal Property Association (CPA). Under apartheid one group of people were removed from their land. After 1994 another group of people claimed the land. The restitution model created this conflict problem. It was dealt with separately in the Green Paper. The amendment that the Minister and the department were proposing in the working group for legislative reform dealt with this conflict situation, because at the moment there was no mechanism to resolve it. These were policy matters and the Minister expressed hope that it would be resolved broadly in the amendments to the legislation.

There were also conflicts in non-communal areas. The Department of Rural Development and Land Reform had no control over trusts and did not deal with them. The Department of Justice and Constitutional Development dealt with trusts. In cases where no trusts were established, it was difficult to manage the relationships created by restitution. He expressed the hope that the Green Paper would also deal with this challenge. He said that in some cases chairpersons of CPA structures had no regard for the law. The law required annual reports on the state of the CPAs to the Department, which they ignored. The Department’s management of these structures and processes were not good. Only in 2011, because the Portfolio Committee had raised it, did reporting start. Out of that report, the Portfolio Committee learned that 39 CPAs had sold land without recourse to the owners. The Committee had insisted that the department focussed on issues of governance in this regard. It wanted clear policies and clear legislation that was enforceable. The Department was working on these issues.

The Minister said that the Members would recall when government was talking about the Green Paper, even the one that was leaked to the media, it referred to the Land Rights Management Board. The current facility, the Land Rights Management Facility intervened during evictions, but did not deal with social issues beyond that. The Land Rights Management Board went beyond this. The department applied the Green Paper approach to it in the sense that a framework with underlying principles was provided and through debate and discussion, South Africans had to provide the detail. This body dealt with the social issues.

It was not only people that had been given land, that had conflict. Anybody who had rights to land could be and were engaged in conflicts. There were a large number of unresolved conflicts, because there was no mechanism in place to resolve it.

The Land Rights Management Board would pilot conflict resolution mechanisms. It would develop models to resolve conflicts between rival parties. It would bring together all parties concerned such as the police and all the relevant government departments, in order to resolve conflicts in a lasting way. For example, farmers accused government of looking after only the interests of evictees and ignoring their interests.

These were policy issues that the Minister felt he had to address in the meeting. His departmental team would respond to the more technical questions.

Mr Maphoto replied that the transfer of land to the state was a temporary matter. The Commission compared information which the state land register unit had with the information at the Deeds Office. Some properties were identified. The Commission was gradually transferring those properties that could be transferred. There were pieces of land that could not be transferred yet. The Commission had to make sure that land was handed over into the proper hands or that institutions had been set up to manage the land

Mr Maphoto said that community disputes were not easy. It was very difficult. Some showed progress and some were in a stalemate. The Minister alluded to these problems when he mentioned the board that was anticipated in the Green Paper. The board could be used to appoint seasoned negotiators to unlock the disputes. There was progress, but there were heavy challenges with regards to community disputes. This was why the transfer of state land to beneficiaries was delayed in some cases. The Commission wanted to make sure that it acted responsibly and handed the land over to its rightful owners.

Mr Trollip said notwithstanding the responses, there were claims that were lodged timeously, but there was no record of them. He was also concerned about the 2.8m ha that had been approved but only ±1m ha had been transferred to beneficiaries. This body was established in 1995 and it was now 2012. The Department was still talking about historical and vague reasons for bad record-keeping. He did not want to be presumptuous, because he was new to the Committee. Possibly decentralisation was the reason for the bad record-keeping. Parliament had to take the authenticity of deadlines seriously. He promised to monitor whether the Commission would stick to its deadline of August 2012. It could not continue to give vague reasons. This environment was conducive to fraud and corruption. He accepted that there were problem cases, but it had to be isolated cases, not 1.9ha of untransferred land.

The Chairperson said that the most vexing question that came up from the 18 January meeting was the slow pace of land transfer in the Western Cape. He wanted the Minister to explain this situation and the institution that was handling this. The Chairperson had had to approach the Minister to report to him that the Portfolio Committee had received complaints from sources in the different departments in the Western Cape, stating that the transfer of state land to beneficiaries was happening exceptionally slowly, both in the Western Cape and in the rest of the country. The Minister was not aware that there was a committee called the Provincial State Land Disposal Committee. It was set up to dispose state land to communities. In the 18 January meeting, a woman who was the chairperson of that committee said that that committee did not do its work. “Today’s report stated that 140 262 ha which should have been in the hands of the community”, were still in the hands of the state.

Mr Zulu (ANC) said that the Minister said that he had taken charge of the process himself. Every three months the Minister and this committee had to report to the Portfolio Committee. In November it was agreed with the Director General that the Portfolio Committee wanted three-monthly reports on these figures. He asked if this Provincial State Land Disposal Committee was replicated in other provinces. These structures had to have a program that stated when the land was going to be transferred. A report on this had to be presented at the next meeting in May 2012. This report had to include all the land except for the disputed 142 262 ha.

Mr Trollip said that 2.8 ha had been acquired for the settlement of land claims. 979 821 ha had been transferred. The Portfolio Committee wanted a program for the transfer of the rest of the land.

The Chairperson said that the Committee wanted to avoid petitions from the provinces. The Commission indicated that there were 280 court cases. Treasury needed to help out. Of the 280 cases, 98 were in the hands of the state together with communities. Court cases created the diversion of funds through virements, and distorted the approved budget.

He commented that Judge Fikile Bam had died at the end of 2011. He was the Chief Justice who had been overseeing these affairs. The process had to be managed. The Chairperson did not want the media to say that land restitution was going nowhere slowly and blame it on the Chairperson of the Portfolio Committee.

The Chairperson said that the Minister did reports on the performance of each province. He had established multi-sectoral committees in all provinces. Land restitution was very fragmented. The land committees were chaired by the Deputy Minister and they met once a month.

The Chairperson said that he had never received a report on these land committees. This was why the decision was made on 18 January 2012 to have a progress report on land restitution. He wanted a copy of the report at the next Portfolio Committee meeting on 15 February 2012. It did not have to wait for May.

The Chairperson said that the Minister had committed to giving reports on performance. The Western Cape had more complications about the allocation of land. No standards were set for parameters. Very junior lawyers were used to negotiate with experienced lawyers and estate agents, but things were stabilising.

The Chairperson commented that the Portfolio Committee had its own records. It also used the reports from PMG to verify what was said.

Mr Trollip said that the Chairperson talked about a quarterly report. Did all senior officials in the Department sign performance agreements? If they did not perform, the Minister had to state what the situation was around performance agreements.

The Chairperson said that the best method was to ask the department to state in writing what the status of the different officials were in terms of performance agreements. He asked the DG to bring a report on this.

The Minister said that he was put on the spot, but it was a valid and very important point. He asked for two weeks within which he would provide the report on performance agreements.

Committee Research into living conditions of agricultural workers and farm dwellers
The Chairperson said that the Committee, together with the Portfolio Committees on Labour, Human Settlements, Agriculture, Police, and Justice and Constitutional Development would be embarking on research into the living conditions of agricultural workers and farm dwellers. The research would be financed by the International Labour Organisation (ILO).

He noted that Human Rights Watch (HRW) had embarked on a campaign to prompt buyers and consumers of South African wines to ask about the living conditions of workers on the farms where these wines were produced. This could adversely affect the popularity that the SA wine industry was experiencing internationally, possibly resulting in sales and export cuts.

While he did not want to defend unjust practices on farms, he objected to the fact that the Western Cape was singled out. He also objected to the fact that the report was not based on scientific research but on reports from third parties in the form of NGOs working with farm dwellers. Agri-SA would not be part of the research project, because it would decrease the credibility of the research. It would seem as if Agri-SA would want to white-wash the negative outcomes of the research. NGOs working with farm dwellers and farm workers as well as the Human Rights Commission, would participate in the research in order to make it comprehensive, objective and credible.

The census did not look at particular issues, but the broad situation, which meant that it could not be used to extract this information. This research project would also show that the parliamentary committees were not spectators, but involved in finding solutions.

Study tour to India to visit a land reform project
He said the Committee was planning a study tour to India to visit a land reform project in Karala, near Delhi. This project used a model of land reform that took into account indigent families. The exact date and logistical details would be decided upon.

Adoption of the minutes of a Portfolio Committee meetings
The minutes of 18 January 2012 and 23 November 2011 were adopted.

The Chairperson thanked all present for their participation and adjourned the meeting.