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BACKGROUND REVERSING THE NEGATIVE LEGACY OF COLONIALISM AND APARTHEID

RESPONSE OF THE DEPARTMENT OF RURAL DEVELOPMENT AND LAND REFORM TO SUBMISSIONS ON THE RESTITUTION OF LAND RIGHTS AMENDMENT BILL 3 FEBRUARY 2014. PRESENTATION OUTLINE. BACKGROUND REVERSING THE NEGATIVE LEGACY OF COLONIALISM AND APARTHEID RESPONSES TO SUBMISSIONS ON THE BILL CONCLUDING REMARKS.

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BACKGROUND REVERSING THE NEGATIVE LEGACY OF COLONIALISM AND APARTHEID

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  1. RESPONSE OF THE DEPARTMENT OF RURAL DEVELOPMENT AND LAND REFORM TO SUBMISSIONS ON THE RESTITUTION OF LAND RIGHTS AMENDMENT BILL 3 FEBRUARY 2014

  2. PRESENTATION OUTLINE • BACKGROUND • REVERSING THE NEGATIVE LEGACY OF COLONIALISM AND APARTHEID • RESPONSES TO SUBMISSIONS ON THE BILL • CONCLUDING REMARKS 2

  3. BACKGROUND • On 15 October 2013 the Department of Rural Development and Land Reform (“DRDLR”) presented the Restitution of Land Rights Amendment Bill (“Bill”) to the Portfolio Committee on Rural Development and Land Reform (“Committee”). • In November 2013 and January 2014 the Committee held public hearings in two Districts in each Province to inform the public and other stakeholders about the Bill, engage them, and obtain their inputs and comments on the contents of the Bill. • The Committee also engaged with individuals and representatives of communities, academics, non-governmental organisations and other formations that made formal representations (written and oral) to it. • The DRDLR attended public hearings with the Committee and was provided with written comments that had been submitted to the Committee. 3

  4. BACKGROUND • As was observed by the DRDLR during its own consultations, and its day-to-day interactions with citizens, the catastrophic consequences [social, economic, cultural and political] of colonialisation and apartheid continue to face the democratic government. • The DRDLR had consulted, inter alia, • With beneficiaries of restitution that evaluated the impact of the restitution programme and requested the government reopen the lodgment of claims. Provincial workshops, and a national workshop attended by 1296 restitution claimants).; • With land reform stakeholders that participated in the National Reference Group; • With ordinary members of the public (through 74 workshops) after the Bill was published by the DRDLR for public comment (in the process receiving 70 formal written comments). 4

  5. BACKGROUND • The DRDLR also appointed independent consultants to conduct a Regulatory Impact Assessment (RIA) to evaluate the feasibility and potential socio-economic impacts of extending the window period for the lodgement of restitution claims. • The RIA report refers to a report by the Surplus Peoples Project that estimated that a minimum of 3.5 million people were involuntarily removed due to colonial and apartheid policies implemented after 19 June 1913 between 1960 and 1983. • This number more than doubles to a figure of 7.5 million of those people who were victims of betterment and homeland consolidation schemes are included. • With approximately 80 000 restitution claims submitted prior to the cut-off date of 31 December 1998, and only an estimated 1.8 million individuals benefitting from the settled claim, less than 22.7% of the 7.5 million has benefitted. 5

  6. REVERSING THE LEGACY • To reverse the legacy of colonialism and apartheid, government operates within the framework of the Constitution, particularly sections 25 (5), (6), (7), (8) and 36 of the Constitution. • The land reform programme (which is made up of land restitution, land redistribution, land tenure reform and land development) is underpinned by three principles: deracialising the rural economy; democratic and equitable allocation and utilisation of land across race, class and gender; and sustained production discipline. • Agrarian transformation is the strategy to be used to achieve social cohesion and development and reverse the ills of colonial subjugation and land dispossession • A single land tenure system with four tiers has been developed to ensure that South Africans, particularly Africans (a definition that includes the Khoi and San), have reasonable access to land with secure rights in order to fulfil their basic needs for housing and productive livelihoods. 6

  7. REVERSING THE LEGACY • The four tiers are as follows: • State and public land: leasehold; • Privately owned land: freehold with limited extent; • Land access by foreign nationals: a combination of free hold with limited extent and leasehold; • Communal land: communal tenure with institutionalised use rights. • New institutions that shall support land reform are: • The Land Commission; • The Office of the Valuer General; • The Land Rights Management Board with Local Committees; • Registrar of Communal Property Associations. 7

  8. Tenure System Reform • State and Public Land • lease hold 2. Private Land • Free hold with limited extent 3.Foreign land ownership • A combination of freehold with limited extent and leasehold; and, 4. Communal land • Communal tenure: communal tenure with institutionalised use rights. 5. Institutions 5.1 Land Management Commission 5.2 Valuer General 5.3 National Rural Youth Service Corps 5.4 National Development Agency with rural cooperatives financing facility Roads, bridges, energy, water services, sanitation, library, crèches, early childhood centres, Police stations, clinics, houses, small rural towns revitalisation. Food Security: Strategic Partnerships: • Mentoring • Co-management • Share equity • Modalities being worked out between the Dept and farmers; big and small Phase III Phase II Agro-village industries; credit facilities Enterprise development Rural development measurables Phase I Meeting Basic Human Needs

  9. REVERSING THE LEGACY • Government shall address the restitution programme as follows: • re-open the lodgement of restitution claims; • provide exceptions to the 1913 Natives Land Act cut-off date to accommodate the descendants of the Khoi and San, heritage sites and historical land-marks; • The following interventions shall be introduced to improve implementation of the programme, in addition to the rationalisation of the structure of the Commission completed in 2011: • Improve the planning and administrative processes of the restitution programme; • The standardisation of the processes of the Commission; • Partnerships with research institutions and universities to improve research • Training and re-skilling of Commission staff • Electronic system to be used in the capturing and processing of claims • The support of the Commission by the NARYSEC youth 9

  10. RESPONSES TO SUBMISSIONS • Commission lacks capacity to implement restitution • It was argued that the Commission lacks capacity to process existing claims; that it will take another 10 to 20 years to complete the finalisation of existing claims; and if new claims are allowed it will take 30 to 40 more years to complete the restitution process. DRDLR Response • 304 posts have been created to facilitate the lodgement of claims. • NARYSEC youth shall assist in the communication campaign, collection of oral history, and in the management of the claim lodgement process. • The capacity required by the Commission to process the claims is currently being reviewed and the required staff shall be appointed once agreement has been reached, and the Bill has been enacted. • Partnerships with research institutions and universities have been entered into regarding the research of claims and skills transfer. 10

  11. RESPONSES TO SUBMISSIONS 2. There is no budget to settle claims • It was argued that the state has not been able to sufficiently budgetfor the restitution programme in the past. It was argued that the situation will worsen in the future as the levels of revenue available to the state decreases as a result of the slow growth of the economy. DRDLR Response • National Treasury was consulted prior to referral of Bill to Parliament. • Funding for the restitution programme is allocated by Parliament. • The land reform programme (which includes land restitution) is one of the five priorities of government, and is aimed at building a united country, and resolving historical injustices, which are two of the six goals of the National Development Plan. • Funding shall therefore be made available as the programme is aligned to the NDP. 11

  12. RESPONSES TO SUBMISSIONS 3. Competing and overlapping claims • It was argued that the re-opening of lodgement of claims will result in competing and overlapping claims, including claims on already restored land. DRDLR Response • New claims will be lodged through an electronic system, which shall capture a description of claimed land. This shall enable the Commission to determine whether there are competing claims, and where they exist the claims shall be researched and processed simultaneously (not consolidated, but processed simultaneously). Provision for that is already contained in the Act. • Disputes emanating from competing or overlapping claims shall be resolved with the assistance of District Land Committees, proposed in the NDP, which are currently being established, failing mediation they shall be referred to the Land Claims Court. 12

  13. RESPONSES TO SUBMISSIONS 4. Uncertainty in the land market and the duration of the reopening It was further argued that the reopening of lodgement of claims will cause uncertainty in the agricultural and property markets; will be a disincentive for farmers to inject capital investment. The lodgment period should be reduced to between 6 months and 2 years. DRDLR Response • The Constitution provides for a right to restitution. It also calls for the healing of “the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights.” This is echoed by the NDP which sets the goals of building a united country and resolving historical injustices as two of its six goals to be achieved by 2030. • Any uncertainty that may be suffered by the market cannot trump the fulfilment of the constitutional obligations of healing past injustices. 13

  14. RESPONSES TO SUBMISSIONS • The Constitution also requires the payment of just and equitable compensation for land owners. Investments made on the claimed land shall be recovered if the claims on those properties are valid and the land must be restored.  • The five year lodgement period proposed in the Bill is informed by the high volumes of claims expected and the information required from each claimant, which is necessary to lodge a claim. The Courts have interpreted the requirements for lodging a claim to mean that all the information must be provided at lodgement of the claim which must be before the cut-off date. Addition or amendment of information is not permitted after the cut-off date for lodgement of claims has passed, and therefore sufficient time must be given to claimants to submit information that may be outstanding when they lodge their claims, which information must be received by the cut-off date for lodgement. 14

  15. RESPONSES TO SUBMISSIONS 5. Reversing the gains already made in settled claims It was argued that the reopening of lodgement of claims will reverse the gains made in the settlement of current claims and will further delay the restitution process. One of the example commentators referred to is that of District Six, where records indicate that approximately 60 000 people were removed but only 2500 claims were lodged. DRDLR Response • Many of the current settlements have left out thousands of victims of forced removals, such as in District Six. The argument itself in fact demonstrates that many deserving people were left out of the restitution process when they did not lodge claims by 31 December 1998. It is exactly this injustice that re-opening seeks to address. 15

  16. RESPONSES TO SUBMISSIONS 6. Motive and timing of the Bill Commentators have questioned the motive behind the reopening of land claims, alleging that it is motivated by malice, politics, and it proposed to address land redistribution failures. They have argued that the timing of the Bill (considered just before the elections) is an election ploy. DRDLR Response • All programmes of government are required to be aligned with the NDP. A three phased approach to implementation has been determined by the Presidency, being • (1) critical steps to be taken in 2013 to unlock implementation, • (2) the 2014-19 planning cycle will constitute the first of five year planning cycles that will advance the goals of the NDP, and • (3) the planning cycles of 2019-24 and 2024-29 will be used to initiate the remaining activities, building on previous cycles and be informed by the review of performance. 16

  17. RESPONSES TO SUBMISSIONS • The extension of the date for lodgement of claims is part of phases one of the implementation of the NDP that being the unlocking of the implementation of an inclusive land restitution programme. • The Bill is a culmination of the work that the DRDLR has been doing since 2009 as part of the alignment of the land reform policies to its mandate. • It had been envisaged that the Bill would be signed into law in 2013, as part of marking the Centenary of the 1913 Natives Land Act. • Stakeholders in the National Reference Group required time to consider policy proposals that were made and consult with their constituencies. In the spirit of inclusive decision making the required additional time was provided, and this led to considerable delays, leading to the Bill being dealt with during the time on which it is being processed. 17

  18. RESPONSES TO SUBMISSIONS 7. The Bill is ethnically selective • Representatives of some of Khoi and San structures and a few academics argued that the reopening of lodgement of claims without addressing pre-1913 dispossessions is ethnically selective as the descendants of the Khoi and San will, once again, be left out of the process. DRDLR Response • The Bill provides for the reopening of lodgement of claims to deserving persons that did not claim by 31 December 1998 including the Khoi and San, provided that dispossessions took place after 19 June 1913. • The policy on exceptions to the 1913 Natives Land Act cut-off date shall provide redress to the descendants of the Khoi and San, heritage sites and historical land-marks. 18

  19. RESPONSES TO SUBMISSIONS 8. Challenges with CPAs Commentators indicated various challenges faced by Communal Property Associations, their conflicts with traditional structures and conflict within the beneficiaries and beneficiaries with the executive committees of the CPAs. DRDLR Response • Institutional governance, support by the State and accountability reforms (of communal property associations) shall be put in place to manage land held communally through amendments to the Communal Property Associations Act, 1996. • The amendments shall also align governance and administration in CPAs to the fourth tier of the single land tenure system communal tenure with institutionalised landuse, as set out in the “Wagon Wheel Model” as follows: 19

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  23. RESPONSES TO SUBMISSIONS 9. Intention to transfer land to Traditional Councils • It was alleged that the Minister made announcements that the land would no longer be transferred to CPAs, but to Traditional Councils and this means that when lodgement of claims is re-opened only traditional leaders shall benefit. It is argued that traditional leaders abuse their powers over their communities and use community assets, including land, for their personal benefit. DRDLR Response • The institution of traditional leadership is recognised in the Constitution. • The recognition was informed by the fact that colonialism and apartheid had tried to destroy it. • COGTA is presently processing legislation that recognises traditional councils. • Arguments that the institution is backward, etc. is a colonial view of the institution. 23

  24. RESPONSES TO SUBMISSIONS • Sections 35 (3) and 42D (3) of the Restitution Act which empower the Court and Minister to award land provides that for communities to claim, and where land is to be awarded to the community, the Court and Minister must determine conditions that they consider necessary to “ensure that all the members of the dispossessed community shall have access to the land or the compensation in question, on a basis which is fair and non-discriminatory towards any person, including a tenant, and which ensures the accountability of the person who holds the land or compensation on behalf of the community to the members of such community”. This is a control measure within the act designed to protect communities. • There is no ground to deny communities that choose to transfer title to their land to a Traditional Council, where there is compliance with the above sections. 24

  25. RESPONSES TO SUBMISSIONS 10. A need for further engagements on the Bill It was argued that there was insufficient consultation on the Bill. DRDLR Response • As set out above, extensive engagements were held with stakeholders, including claimants who lodged their claims before 31 December 1998 (through provincial and national workshops attended by thousands of such claimants) on whether the lodgement of claims should be reopened. • Consultations on the Bill were held through 74 workshops that were held during consultations by the DRDLR prior to the introduction of the Bill to Parliament. 70 written comments were also received by the DRDLR. 25

  26. RESPONSES TO SUBMISSIONS 11. A remedy in section 6 (2) (b) of the Restitution Act It was argued that the Commission should usesection 6 (2) (b) in the Restitution Act to address the plight of those that did not lodge claims. DRDLR Response • Section 6 (2) (b) provides that “the Commission may, at a meeting or through the Chief Land Claims Commissioner, a Regional Land Claims Commissioner or a person designated by any such commissioner make recommendations or give advice to the Minister regarding the most appropriate form of alternative relief, if any, for those claimants who do not qualify for the restitution of rights in land in terms of this Act”. • Section 6 (2) (b) only applies to “claimants”. • Claimants are defined in the Restitution Act as persons that lodged claims. 26

  27. RESPONSES TO SUBMISSIONS 12. Independent Commission It was argued that there should be an independent Commission that is capacitated and allocated sufficient funding and infrastructure similar to the South African Revenue Services, and others argued that the work of the Commission must be privatised to an international audit firm. DRDLR Response • The CRLR is a national public entity as defined in the Public Finance Management Act, 1999. • It is funded from moneys appropriated by Parliament. • It must therefore be accountable to Parliament, and to the Minister (who is the executive authority) 27

  28. RESPONSES TO SUBMISSIONS 13. Non-restoration to new claimants where land was claimed before 1998 • It was argued that the Restitution Act must be amended to provide that there will be no restoration of already claimed land, where settlement has been reached or landowner successfully defended the claim. DRDLR Response • The Constitutional Court in the case of KSD Municipality held that restoration of rights in land takes primacy over all forms of restitution. • Where research reveals that a claimant is entitled to restoration and it is feasible, and in the public interest to do so, restoration shall take place. 28

  29. RESPONSES TO SUBMISSIONS 14. Ring-fence claims • It has been argued that the claims that were lodged before 31 December 1998 must be ring-fenced or prioritised. DRDLR Response • In order to ensure the prioritization of the claims lodged before 31 December 1998, it is proposed that section 6 (2) (d) be amended as follows: 6 (2) The Commission may, at a meeting or through the Chief Land Claims Commissioner, a regional land claims commissioner or a person designated by any such commissioner- (d) “ensure that priority is given to claims that were lodged on or before 31 December 1998, thereafter those which affect a substantial number of persons, or persons who have suffered substantial losses as a result of dispossession or persons with particularly pressing needs” 29

  30. RESPONSES TO SUBMISSIONS Provisions Relating to Judges • Commentators opposed that judges of the Land Claims Court must first be judges of the High Court, arguing that the amendment shall rob the Court of people with experience in land matters from being Judges. Concerns were also raised that the Bill does not provide for a gender balance in the Land Claims Court. DRDLR Response • The Restitution Act provides for the appointment of Assessors, who will be persons that have the skills relevant to the matter, to assist the Court wherever the hearing of the matter will include oral evidence. The skills and expertise of those who are experts in land matters can and will be brought in through the appointment of such persons as assessors of the court. • The Judicial Service Commission takes into account gender as one of the considerations when recommending appointments to the Bench. 30

  31. CONCLUDING REMARKS Other comments relating to issues not on the Bill • Stakeholders raised other issues that were not necessarily provided for in the Bill. These issues shall be considered in the review of the operational procedures of the Commission • Individuals and communities also made enquiries about their claims. The Chief Land Claims Commissioner shall provide a separate written response on how those enquiries have been dealt with. • The public hearings have further alerted the DRDLR to the plight of those dispossessed of their land by colonialism and apartheid. The DRDLR shall intensify its efforts of reversing the legacy of colonialism and apartheid. 31

  32. THANK YOU 32

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