Tag Archive | Restitution of Land Rights Amendment Bill

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

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NEDLAC gets called to task

NEDLAC not clear on performance……

nedlac logo smallDespite having received an unqualified audit from the auditor general on its annual financial statements, National Economic and Labour Development Labour Council (NEDLAC) officials were requested by the parliamentary portfolio committee on labour to re-present their financial statements to give more clarity on how their 2013/4 budget had been spent.  Once again, chairperson Lumka Yengeni  established that any labour portfolio committee meeting  is no walkover.

Members of the committee complained that the figures presented by NEDLAC needed to be presented on a quarter by quarter basis and had to show specifics of categories spent against budget. Five working days was given for such a report to be in the hands of chair of the committee, Lumka Yengeni.

Mkhize left for family reasons…

Alistair Smith, Executive Director of NEDLAC, who replaced Herbert Mkhize in the 2011/2 year, the same year as that being subjected to special forensic audit by the auditor general, is now himself resigning. When asked by Ian Ollis (DA) why this was so, he said that he wished to spend more time with his family, indicating that total retirement from the business world was on the cards.

The committee noted that the special forensic audit, only recently commissioned, was not of specific interest at this stage as it was a separate matter not connected to the year under review and in any case the report was not yet ready.  However, chair Lumka Yengeni said the financial report now presented to the committee by NEDLAC gave no idea of performance against objectives and equally no idea of programme targets, all of which was the purpose of parliamentary oversight.

Alistair Smith in his review promised to meet the deadline for a fresh report and said that whilst it was the job of NEDLAC to promote economic growth, social equity and decent work through a culture of social dialogue and engagement to bring about effective participation in policymaking and legislation, performance was dependant on stakeholder partners.

Urgent talks on future

He warned MPs that in the short to medium term South Africa’s growth prospects are constrained by global conditions and domestic factors, including low investment and savings, weak domestic demand, low business confidence, energy constraints and challenges in our labour market.    “We need to have urgent conversations about how to tackle these growth constraints and these conversations must be guided by a willingness to resist quick-fix and knee jerk solutions”, he said.

Alistair Smith pointed to the fact that in the area of legislation NEDLAC had achieved much in 2013/2014 despite the constraints of a difficult year due to elections and a change in ministers and their portfolio responsibilities.

Dealt with by NEDLAC during the year had been the Restitution of Land Rights Amendment Bill; the Gas Amendment Bill; the Expropriation Bill; the Public Administration Management Bill and the Unemployment Insurance Amendment Bill, Alistair Smith reported.

New legislation ahead

Currently in hand were meetings and study groups dealing with a new Housing Consumer Protection Bill; amendments to the Occupational Health and Safety Act: compensation factors added to the Compensation for Occupational Injuries Act: regulations for assessment of work of equal value; and a review of the Codes of Good Practice on dismissal factors.

He also warned parliamentarians that it was “necessary that we take stock of the state of our society and especially of the socio-economic challenges that threaten our social cohesion and may eventually even threaten our hard won democratic gains.”

NEDLAC’s balance sheet showed that of the appropriation of over just under R27m, well over 26m had been spent in time and that the long outstanding risk management committee was about to be formed. A complete renovation of the entity’s headquarters, known as NEDLAC House, had been concluded at a cost of R30m.

Also completed,  Alistair Smith said, was work on the Extension of Security of Tenure Amendment Bill and much had taken place with regard to the extended public works programme; access to housing finance; small business financing;  and research on tax matters for the Davis Tax Commission.  Of immediate concern, he concluded, were meetings concerning the National Land Transport Bill.
Other articles in this category or as background
http://parlyreportsa.co.za/cabinetpresidential/nedlac-gets-a-stronger-voice-in-sez-management/
http://parlyreportsa.co.za/bee/back-comes-gender-bill-for-rethink/

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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.

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