ATC201103: Report of the Portfolio Committee on Agriculture, Land Reform and Rural Development on the Upgrading of Land Tenure Rights Amendment Bill [B6 – 2020] (National Assembly – Section 76), dated 03 November 2020

Agriculture, Land Reform and Rural Development

Report of the Portfolio Committee on Agriculture, Land Reform and Rural Development on the Upgrading of Land Tenure Rights Amendment Bill [B6 – 2020] (National Assembly – Section 76), dated 03 November 2020.

 

The Portfolio Committee on Agriculture, Land Reform and Rural Development (the Committee) having considered the subject of the Upgrading of Land Tenure Rights Amendment Bill [B6– 2020] referred to it (see ATC, dated 6 May 2020) and classified by the Joint Tagging Mechanism (JTM) as a Section 76 Bill (see ATC, dated 25 February 2020), reports on the Bill with amendments [B6A – 2020].

 

Contextual background

 

Section 25(6) and (9) of the Constitution of the Republic of South Africa place an obligation on Parliament to pass legislation that ensures that a person or community whose tenure is legally insecure as a result of past racially discriminatory laws or practices is entitled to either tenure that is legally secure or comparable redress.  

 

The Upgrading of Land Tenure Rights Amendment Bill was necessitated by the orders of the Constitutional Court in the matters of Rahube v Rahube and Herbert NO and Others v Senqu Municipality and Others, respectively. In both matters, the Constitutional Court found that the Upgrading of Land Tenure Rights Act (ULTRA), 1991 (Act No. 112 of 1991 as amended) was unconstitutional because it discriminated against the rights of women to independently own property (Rahube matter); and lack of applicability of Section 3 of ULTRA in the former TBVC states, i.e. Transkei, Bophuthatswana, Venda and Ciskei (Senqu matter). In the Rahube v Rahube matter, the Constitutional Court ordered Parliament to remedy the defects in the law (ULTRA) within 18 months; and the Committee sought an extension which expires on 29 April 2021. In the Senqu matter, the Court ordered that as of the date of the judgement, Section 25A must be read as if it did not refer to Section 3, it thus wrote the amendment into law.  

 

Public involvement processes facilitated by the Committee demonstrated that complex tenure insecurity in the communal areas, especially the former homeland areas and TBVC states, could not be addressed through Sections 19 and 20 of the Upgrading of Land Tenure Rights Act (ULTRA), which Clause 4 of the Bill sought to activate.  A comprehensive legislation envisaged in Sections 25(6) and (9), that is, the Communal Land Tenure Bill (CLTB), is required.

 

Given the above, the Committee decided to focus on the instructions of the Constitutional Court order in relation to the Rahube v Rahube matter, taking into consideration the following:

 

• Clause 4 of the Bill as introduced triggered the application of Sections 19 and 20 to the entire Republic of South Africa. Members of the public called for the Committee to introduce constitutional safeguards and protections of informal land rights, if 19 and 20 were to be extended to apply throughout the Republic.
• Redrafting the Bill so that it addresses the complex tenure insecurity concerns, especially informal land rights held in terms of customary law or practices, amongst other forms of insecure tenure, would require more time and further consultation; and the Committee was not going to meet the deadline set by the Constitutional Court (given that an extension had already been granted). 
• The Department of Agriculture, Land Reform and Rural Development (the Department) reported that the safeguards and protections of informal land rights would be provided for in a comprehensive legislation, that is, the Communal Land Tenure Bill (CLTB), to be tabled in Parliament before the end of the financial year (2020/21).
• The Committee decided to prioritise oversight on the development and tabling of the CLTB before the end of the financial year as promised by the Department.

 

The Committee, having deliberated on the motion of desirability of the Bill, noted that the Economic Freedom Fighters (EFF) and the Democratic Alliance (DA) did not agree with the motion because, in their view the Bill in its current form is flawed; it is a tinkering with an old order legislation; they did not believe that the Committee should be confined to the Constitutional Court order; and  for different reasons, preferred a complete overhaul of the Principal Act which would require an application to the National Assembly and a second request for extension of the deadline to amend the ULTRA as directed by the Constitutional Court. The EFF further rejected the Bill in its totality while the DA had reservations on Clauses 3 and 4. 

 

Committee Amendments

 

The Committee, having concluded deliberations on the Upgrading of Land Tenure Rights Amendment Bill, reports on the Bill with the following amendments:

 

CLAUSE 1

 

1. On page 3, in line 14 after 1A before ‘‘This Minister’’ to insert ‘‘(a)’’.

 

1. On page 3, in line 15, after ‘‘Gazette’’, to insert ‘‘, one local newspaper, relevant social media and at the local municipality office;’’.

 

1. On page 3, in line 16, after conversion to omit ‘‘.’’.

 

1. On page 3, in line 16, to insert ‘‘; and

 

1. On page 3, after line 16, to insert:

‘‘(b) The Minister must inform in writing, the affected parties of the progress of such application.’’

 

1. On page 3, from line 25 after ‘‘(1B)’’ to omit ‘‘institute an inquiry, in the prescribed manner’’ and insert ‘‘designate a person as contemplated under section 24D in order to assist the Minister in determining the facts relating to the conversion of land tenure rights and the objection thereto.’’

 

1. On page 3, in line 28, to omit ‘‘’’.’’

 

1. On page 3, after line 28, to insert:

‘‘(1E) The person designated in terms of subsection (1D) shall -

1. have the powers of a designated person contemplated in section 24D; and
2. assist the parties in mediating on the objection; and report to the Minister on the outcome of such mediation’’.

 

CLAUSE 4

 

1. Clause 4 rejected.

 

NEW CLAUSE 4

 

1. The following section is hereby substituted for Section 25A of the principal Act:

 

‘‘Application of Act

 

25A. As from coming into operation of the Land Affairs General Amendment Act, 1998, the provisions of this Act, excluding Sections 19 and 20, shall apply throughout the Republic.’’

 

The amendment effected by the Committee on Clause 4 of the Bill, consequentially amended the memorandum of objects to reflect the decision of the Constitutional Court in the Herbet // Senqu matter.

 

Report to be considered.