Tag Archive | minister Gugile Nkwinti

Restitution of Land Rights Act reversed

Concourt says land bill “improperly” passed

…,sent to clients 25 August….  The Constitutional Court has upheld anconstitutional-court application that amendments to Restitution of Land Rights Act were improperly processed by Parliament.  The Bill was tabled by Land Reform Minister, Gugile Nkwinti.

Groupings opposed to the legislation successfully argued that the amending Bill went through Parliament without sufficient consultation with affected parties.

The proposal made by the Bill was that further claims may be lodged going back to the 1913 Natives Act but the Bill, about to become an Act, had been in any case “put on hold” for 24 months to allow for existing outstanding claims, some 8,000 of them in terms of previous legislation, to processed first.

Existing claimants brought that particular application against the Bill on the basis that those who lodged claims under the new amendment to the Act would be “jumping the queue” and their claims might or were being ignored. The re-opening of the restitution of land process was therefore greeted by a mixed re-action, a fact not expected by the ANC amongst the populace concerned.

More haste less speed

madlangaOnce again the particular habit now regular of the governing party of hammering legislation through Parliament at the last minute before recess has bounced back on the Cabinet and the Presidency.    Justice Mbuyiseli Madlanga said in his finding that the Constitutional Court could find “no cogent reason” for the apparent haste to sign the Bill into law.

He said that there had been a complete lacking in the required public consultative process by all nine provinces as the Bill went through the NCOP process of approval. He described Parliament’s behaviour with regard to the passage of the Bill as “improper”.

How it started

When the Bill was first tabled in a meeting of the National Assembly’s Rural Development and Land Reform Parliamentary Portfolio Committee, Minister Gugile Nkwinti confirmed that the whole process of land restitution for black persons dispossessed of their land was to be re-opened for a period of five years.

Under questioning,he confirmed that no constitutional changes were envisaged, despite the fact that the new Bill would mean an Act that backdated claims to 1913.    Critics of the Bill noted at the time that the tabling of such legislation was, as they put it, “politically motivated” in the light that it was being processed before national elections and with the then forthcoming provincial elections in mind just around the corner. The outcome of those elections would confirm the Minister’s fear and that of the Cabinet.

Critics also stated that there was insufficient time to process the Bill properly. ANC MPs chose to ignore this warning. Thw whole process has therefore been a waste of public funds.

In the kitty

Minister Nkwinti then announced that Cabinet had set aside R47bn for theGugile_Nkwinti envisaged exercise over a period of five years. Opposition members were again alarmed, stating the country had neither the resources nor court time to process such a plan and, in any case, the Department of Rural Development and Land Reform was already facing an uphill struggle to process and finalise the existing claims it had on their books. Opposition members also called for sight of Treasury approval.

During the course of the Minister’s departmental presentation on strategy leading to the budget vote a week later in Parliament, when confronted by opposition MPs asking for a direct answer as to whether he would call for constitutional change on property rights or not, he replied that there was “no such question arising.”

The whole truth

Since that time the tandem Expropriation Bill has also been returned to Parliament unsigned and similarly passed in haste before a recess but, in this case, in the light of a possible adverse opinion by the Constitutional Court.

Minister Nkwinti chose to issue a statement on the the passage of the Expropriation Bill upon its being voted through the National Assembly although not in the domain of his Ministry.

cronin2This statement completely contradicted the declared motivations of Deputy Minister of Public Works, Jeremy Cronin, who had steered that Bill through Parliament declaring his legislation to be necessary for public works to execute infrastructure projects.

Nkwinti’s statement  claimed  that the Expropriation Bill “would bring about the possibility of at last of speeding-up land restitution and reform” thus laying the groundwork of his new land Rights Bill and contradicting the assurances of Cronin.

The numbers game

In his original briefing on the tandem Restitution of Land Rights Bill, Minister Nkwinti stated at the time that since its inception, the state’s restitution programme had benefited some “370,000 households”.    Normally one refers to “claimants” but it was his way of getting to his point using self-serving mathematics.

This meant, he said, that some “1.83m persons had benefited so far from theland-reform process, as against an estimated 3.5m people who had been forcibly removed from their land as a result of colonialisation and racial and discriminatory laws”.

A new closing deadline for lodgement of land claims was set by the Act as mid-2019 and a booklet on how to lodge a claim published.  Mobile lodgement offices were to visit all areas, the department told subsequently told MPs, and the lodgement process required no fees.

Tough words

Whilst the Constitutional Court has now re-affirmed that the right to restitution “could not be overstated” and that “restitution of land rights equals restoration of dignity”, Justice Madlanga was not prepared to overlook the fact that the time line of the parliamentary process had been manipulated.

“As an example, the process of public participation in the Northern areas was reduced to a shambles by haste”, he said, “and as a result of the truncated process of the NCOP, the whole parliamentary procedure had been tainted”. The NCOP was found to have “not applied its mind to the task.”

Give it time

Pending re-enactment of the Act, the Commission on Restitution on Landland-claims-court Rights may continue to receive claims and acknowledge receipt but only process them once existing outstanding claims that had a closing deadline of 1998 are finalised. After 24 months, further consideration can be made on the possible re-enactment of the legislation.

In conclusion, Opposition parties fear that the new Act will allow traditional chiefs with the additional powers granted in terms of legislation favoured by President Zuma to supersede rights on land already granted to communities.

One way only

Disquiet was also expressed by some MPs with the land acquisition claim alternatives as financial compensation was mainly the choice for claimants.

Some MPs expressed the view that they were “uncomfortable” with a monetary solution as a solution to dispossession since this almost amounted to a bribe.

DA MP Thomas Walters said in his view the reason for the slow rate of land occupation was not, as the ANC claimed, the result of whether or not there was a solution on the willing-buyer, willing-seller principle but rather a reflection of the fact that 92% of land claimants preferred to take cash pay-outs instead of working the land and creating jobs.

Minister Nkwinti strongly denied this as did the Department of Rural Development and Land Reform.

Previous articles on category subject
New approach to land reform – ParlyReportSA
Land reform: Something very sad is going on – ParlyReportSA
Minister says need for legislation on land reform a priority
Agri-SA gives views on minimum wage – ParlyReportSA

Posted in cabinet, Land,Agriculture, LinkedIn, public works, Special Recent Posts0 Comments

Expropriation of land stays constitutional

Minister now quoted in Parly minutes…

In a press media briefing and subsequently in a meeting of the rural development and land reform parliamentary portfolio committee, minister Gugile Nkwinti confirmed that the whole process of land restitution for black persons dispossessed of their land was to be re-opened for a period of five years.   Under questioning, he confirmed that no constitutional changes were envisaged.

During the course of the minister’s departmental presentation on strategy leading to the budget vote, a week later in Parliament, the minister, when confronted by opposition MPs asking for a direct answer as to whether he would call for constitutional change on property rights or not, replied that there was “no such question arising.”

There was considerable satisfaction from opposition members as a consequence since such a statement, they said after the meeting disposed of fears of arbitrary state expropriation of land.

WSWB gone

Nevertheless, the minister was clear in his responses that the process of “willing seller, willing buyer” had been abandoned as a state mechanism.  He emphasised that whilst the principle of market valuation would still apply, it would be up to the new state valuator to establish price and not the parties involved to barter, sometimes endlessly, he commented.

Subsequently, in the newly proposed Bill on property valuation itself, the position was more clearly expressed with the proposal of an office of a Valuer-General,which the department said in its briefing to parliamentarians, had been necessary in order ” to establish an entity to carve through the current settlement process”.

The minister stated during his briefing at the time to parliamentarians that since its inception, the state’s restitution programme had benefited some 370,000 households.   This meant, he said, that some 1.83m persons had benefited so far from the process, as against an estimated 3.5m people who had been “forcibly removed from their land as a result of colonialisation and racial and discriminatory laws”.

The new closing deadline for lodgement of land claims has now been set for mid 2019 and a booklet on how to lodge a claim was circulated amongst members and which is now in public circulation.

The minister emphasised his point that claim forms would not be distributed but that  claimants, whether they be a direct descendant, a juristic person such as a company or trust  or a “representative of a community”, who felt they had a right because they were dispossessed of land rights had to call first upon a land affairs lodgement office.Mobile lodgement offices would visit all areas, the department told MPs, and the lodgement process required no fees.

Backlog

Under questioning, the minister confirmed that over 8,000 claims were still outstanding from the previous lodgement process and that these would be finalised with the new process now being instituted.    R24bn has so far been expended in financial settlements or land purchases.

The minister said he had not set a target for any new claims but he was confident that the programme would be achieved at a faster rate this time around because claims could be lodged electronically.

Disquiet was expressed by some MPs that land acquisition and financial compensation were the choice for claimants.   Some MPs expressed the view that they were “uncomfortable” with a monetary solution as a solution to dispossession as this almost amounted to a bribe.

DA MP Thomas Walters said in his view the reason for the slow rate of land occupation was not, as the ANC claimed, the result of whether or not there was a solution on the willing-buyer, willing-seller principle but rather a reflection of the fact that 92% of land claimants preferred to take cash pay-outs instead of working the land and creating jobs.

Minister Nkwinti stated that both avenues of compensation were a correct solution since in all approved cases, the parties had been wronged and deserved redress.

What started the latest row

As part of the package, minister Nkwinti said, he had made a further proposal, much publicised, that farm workers would be enabled by law to have a share of the land they have worked on according to their service in years.     Public comment had been called for and the results would be put to Parliament.    Only then could the final result become a debatable issue.

Minister Nkwinti made special reference to the complex issues surrounding land acquisition and land claims in the Western Cape, which he said were “very complex”.    In answer to questions on the Khoi and San issues and their claims going back further into South Africa’s history, the minister said the current process was to reverse the legacy of the 1913 Native’s Act and the damage caused by apartheid.

However, he said, some sort of agreement had to be made on the Khoi and San issues and in one instance already such matters had been dealt when applicants had asked for preservation of an area as a heritage site and government had made the acquisition accordingly.    A separate report to the President’s Office was to be made on the Khoi and San issue.

EFF members of the committee rejected the proposals as unworkable and said they “would not turn around the situation where the majority farm workers who had been evicted over the years would see redress and where 40,000 white farm owners remained owning agricultural land.”

Other articles in this category or as background
http://parlyreportsa.co.za//cabinetpresidential/new-approach-to-land-reform/
http://parlyreportsa.co.za//cabinetpresidential/minister-says-need-for-legislation-on-land-reform-a-priority/

Posted in Facebook and Twitter, Justice, constitutional, Land,Agriculture0 Comments

New approach to land reform

Playing fields altered in land reform legislation….

Gugile_NkwintiIn a newly proposed Bill on property valuation, the government’s new policy in respect of rural development and land reform department is more clearly expressed with the proposal of an office of a Valuer-General.  Public comment on the Bill is called for.

It appears that the minister of rural development and land reform, Gugile Nkwinti, will table in Parliament a Property Valuation Bill primarily, and presumably, to establish an entity to carve through the current settlement process problems surrounding money settlement terms.

“Willing-buyer-willing-seller” not working

The new proposals, in the background rationale to the draft Bill, state that “the willing-buyer-willing-seller approach to land reform is not working at a sufficient level to achieve the desired land reform targets”. It goes on to say that government’s plan is to deliver 25 million hectares of commercial agricultural land by 2015 and so far, only 25% of this has been achieved.

The explanatory memorandum of the Bill says, “New legislation is required to give effect to the provisions of the Constitution which provide for land reform and land restitution and to facilitate land reform and land restitution through the valuation of property in order to determine the purchase price for or payment in respect of property”.

Market value to be “assigned”

The approach involves market value being assigned to specific pieces of land. The Bill says that the minister’s concern is that actual market value is not being applied in a number of land reform initiatives. Escalated prices tend to be offered. This slows down the entire land reform process and this is where the office of the Valuer-General will come in.

Objectives of the bill includes the establishment, functions and powers of the Office of the Valuer-General; the appointment and responsibilities of the Valuer-General; provision for the valuation of property that has been identified for land reform or expropriation for purposes of determining a value as well as property that has been identified for acquisition or disposal by a department, organ of state or a municipality and to provide for the repeal of the Land Affairs Act.

A review committee is to be established to deal with objections to valuations.

Further Bill backdates claims

In tandem, the minister has also published a draft Restitution of Land Rights Amendment Bill and both drafts give the public until 22 June 2013 to make comment.

This proposed legislation intends extending the date for lodging a claim for restitution to 18 June 2018 and backdates the period to much earlier periods in South Africa’s land restitution history apparently to accommodated some of the San tribe issues.

This bill will also introduce penalties for the fraudulent lodging of claims.

Posted in Cabinet,Presidential, Facebook and Twitter, human settlements, Justice, constitutional, Land,Agriculture, LinkedIn, Public utilities0 Comments

Minister says need for legislation on land reform a priority

In presenting the first draft of the re-written Spatial Planning and Land Use Management Bill (SPLUMB), Sunday Ogunronbi, executive manager of the spatial planning and information, was accompanied by his minister Gugile Nkwinti. The presentation from the department of rural development and land reform was highlighted by the minister’s remark in presenting the Bill who said, “The need for legislation in land use is urgent and has to precede any policy need”.

Ogunronbi told parliamentarians that there had to be a set of norms and standards outlined by over-arching legislation applying to all tiers of government. Past practices, such as “building 60,000 homes without providing a school”, had to be stopped, he said.

Throughout the entire presentation it became quite evident that the major obstacle to any such legislation was the present inability to enforce any one set of rules and regulations in all three tiers of government.

The main issue to develop in the debate that followed the presentation on the Bill was a discussion on what constitutes “the national interest”, an all important  expression term used in the new Bill part of which is an enabling clause which gave the minister the right to act in situations at all levels of government.

It emerged from the meeting that any clause defining what constitutes the national interest, in the case of the minister’s powers, had to go before the state law advisors since it formed the kernel of much of that which was proposed in the Bill.

Chair of the parliamentary portfolio committee involved, Phumelele Sizani, provided an example of conflict “in the national interest”, quoting the construction of a nuclear energy power plant at Oyster Bay, saying it was a sure fact that the Oyster Bay community would disagree with any such move being “in the national interest”.

Any decision to proceed as the wording stood would simply allow parties to pursue constitutional redress.   SPLUMB had to be carefully crafted to avoid such issues, he said.

Current land use realities were outlined by Ogunronbi in his presentation, not the least of which were – in the urban context – the issue of irregular land use and eviction strategies against a background of formality and informality; different planning laws and embedded power relations and best practices for weaker municipalities.
In the rural context, realities faced were the endless argument between communal ownership over titling versus freehold; weak enforcement of regulations at lower levels of government; unresolved tenure issues regarding rural land; lack of spatial and cadastral data; and traditional leadership problems.

Ogunronbi said that the current Development Facilitation Act was always of a temporary nature and was and must be replaced by SPLUMB, following the constitutional court findings which found that municipal planning is the exclusive competence of municipal government.

The reality was that despite the noble objectives of the SPLUMB document before them, to integrate policies for the development and use of land with other policies and programmes at different levels of government and with different departments, was going to be an arduous task. “If the Bill took 10 years to develop, it will take another five years to get any form of commonality on local ordinances”, he noted.

The development principles espoused by SPLUMB were, Ogunronbi said, that it should be used to guide and direct spatial planning, land use management and land development; that it would also guide decisions made by a the newly proposed tribunal, to which cases were to be submitted and, finally, it would be applied by national, provincial and municipal institutions in developing their own spatial planning policies and developmental frameworks.

The reality was that there remained always complex relationships between all players and even high-level policy outcomes were at times totally contradictory. Nevertheless, a start had to be made, Ogunronbi said.

SPLUMB had therefore been worded, he said, to introduce development principles, norms and standards; processes of inter-governmental support and spatial development framework principals, which would apply across all national, provincial, regional and municipal levels. Municipal planning tribunals represented by large cross-sections of stakeholders were proposed and the principles of applying what was in the national interest addressed.

Ogunronbi said the roles of each of the subject matters was outlined by SPLUMB but there still remained considerable areas of concern which would have to be debated, such as what exactly was meant by “municipal planning”, what was meant by “a provincial interest” and what practical instruments could be designed to overcome the overlap of all the different tiers of land use strategy and use in the application of SPLUMB.

Most importantly, the role of traditional leaders had to be fleshed out and defined, he said.

Much input was needed before a final Bill could be placed before the House and urgency was the keynote. The minister reminded all that he had in terms of constitutional requirements Parliament had until 30 August 2012 to finalise this legislation.

The chair of the committee, Phumelele Sizani, reminded all MPS that with such a difficult deadline and without the time for lengthy procedures such as long public hearings conducted in both the national assembly structure and in the nine provinces, it might be said because of the rush that “Parliament had not applied its mind when approving or disapproving of such a Bill” without the right kind of public input.

But time, he said, mitigated against such lengthy procedures and “democratic shortcuts” had to be found.

It was confirmed, after discussions with all present including the minister, that there had been considerable institutional contact, such as with Mintek regarding mining interests and certainly with all metros on SPLUMB.

Meetings with SALGA and traditional chiefs had been started by the department itself and considerable development has taken place after consultation with municipalities.  Metros had also been dealt with and a debate commenced. SALGA had made lengthy and useful input, as had the Legal Resources Centre, both making recommendations for improvement and both basically endorsing the proposals.

But how could Parliament, chair Sizani asked, respond to the general question, ‘Had the general public been involved as well as certain obvious stakeholder consultation?’

It was decided and agreed unanimously that urgently Controlesa (the Congress of Traditional Leaders of South Africa) and NCOP had to be included in a parliamentary “road show” on the SPLUM Bill that would visit all nine provinces at public places with advertisements beforehand, to debate SPLUMB so that MPs could establish a wider sphere of opinion on the proposed Bill.

Outstanding issues to be looked at immediately was the makeup of tribunals and the clauses instructing municipalities to draw up their own land use schemes for approval within five years. The committee observed that probably the only way to ensure the sustainability of SPLUMB was through a system of taxes and consequent fines for non-observance.

Posted in Cabinet,Presidential, Justice, constitutional, Land,Agriculture, Trade & Industry0 Comments


This website is Archival

If you want your publications as they come from Parliament please contact ParlyReportSA directly. All information on this site is posted two weeks after client alert reports sent out.

Upcoming Articles

  1. MPRDA : Shale gas developers not satisfied
  2. Environmental Bill changes EIAs
  3. Border Mangement Bill grinds through Parliament

Earlier Editorials

Earlier Stories

  • Anti Corruption Unit overwhelmed

    Focus on top down elements of patronage  ….editorial….As Parliament went into short recess, the Anti-Corruption Unit, the combined team made up of SARS, Hawks, the National Prosecuting Authority and Justice Department, divulged […]

  • PIC comes under pressure to disclose

    Unlisted investments of PIC queried…. When asked for information on how the Public Investment Corporation (PIC) had invested its funds, Dr  Daniel Matjila, Chief Executive Officer, told parliamentarians that the most […]

  • International Arbitration Bill to replace BITs

    Arbitration Bill gets SA in line with UNCTRAL ….. The tabling of the International Arbitration Bill in Parliament will see ‘normalisation’ on a number of issues regarding arbitration between foreign companies […]

  • Parliament rattled by Sizani departure

    Closed ranks on Sizani resignation….. As South Africa struggles with the backlash of having had three finance ministers rotated in four days and news echoes around the parliamentary precinct that […]

  • Protected Disclosures Bill: employer to be involved

    New Protected Disclosures Bill ups protection…. sent to clients 21 January……The Portfolio Committee on Justice and Constitutional Affairs will shortly be debating the recently tabled Protected Disclosures Amendment Bill which proposes a duty […]