Issued by African National Congress - Parliament
12 February 2004
Madam Speaker;
Honourable Members
The debate today is about what I regard as the most transformatory legislation in South Africa, the Communal Land Rights Bill. This bill will contribute in changing the land ownership patterns in this country. For the first time in the history of South Africa people living in the former homelands will no longer feel like outsiders in this country they will also be the owners of the land they use and occupy. Madam Speaker
Allow me to take you briefly to where our people come from and why it is of urgency to pass this bill in this house today. From the time white settlers arrived in South Africa, black people were pushed out of their land. The land dispossession of black population was driven by a need to reduce competition to white farmers and to create a pool of migrant cheap black labour to work in farms and mines.
The Native land Act of 1913 was the main nail to the land dispossession of black people by the apartheid government. I agree with the then ANC SG Sol Plaatjie when he said that Native Land Act of 1913 was "the start of deliberate and systematic framework to deny black South Africans their birthright".
Through this Act the black people could only reside in areas that were reserved for their exclusive occupation and use, which later become 'homelands' only where 13 percent of land was available for blacks. This meant that 70% of the total South African population who lived in the former homelands was allocated only 13 % of South African land, while the minority whites occupied largest portion and the best land suitable for both farming and housing.
What this meant is that our people were just pushed in overcrowded areas where they even struggle to produce food for survival. These areas are characterised by severe poverty and isolation from economic growth and developmental opportunity. It is the lack of clarity about the status of land rights in these communal areas that inhibit development.
Even though black people occupied and use the land for many years they were not allow to register them in their names. Instead most of the land in these areas is registered in the name of the State as "State land" or registered as being held in trust by the Minister of land Affairs or Ingonyama Trust for specific groups of black .
As a result of lack of clarity on the status of land rights and the breakdown of land administration system in the former homelands, people who occupy the land are sometimes pushed around and disposed of their land to allow "investors" to come in for development which they do not benefit from. Thus a legislative intervention is needed urgently to clarify and secure the land rights of people who occupy and use the land to facilitate development in these areas that will benefit them. Madam speaker People are asking how this bill is going to benefit people in the rural areas. Let me briefly look at the benefits.
For the first time this bill is going to give people living in the communal areas an opportunity to own the land like any other South Africans. It will put to an end to this discrimination towards people living in former homelands or rural areas. It is to give secure tenure rights to communities and individuals living in these areas. The land will no longer be registered in the name of the state, or Ingonyama Trust in case of Kwazulu Natal.
At the moment land tenure rights available to people living in communal land areas are largely based on customary law or on insecure permits granted under laws that were applied to African people alone such as PTOs (Permission to Occupy). These rights do not have legal status and holders of such rights cannot use them as security for bank loans with which to farm or develop the land.
This bill seeks to reverse the historical legacy of colonialism and apartheid by strengthening the land tenure rights of the people living in these communal land areas and to give their land tenure rights the full protection of the law.
This bill also gives the rural people the chance to decide on how they want their land to be registered and to be administered.
As ANC government we do not just decide for the people as the previous apartheid government did, when decisions are to be taken people consulted.
For the first time people in the communal areas are given an opportunity through this bill to decide whether they want their land to be registered in the name of community, the household, the family or an individual in full ownership.
Further more the communities are also given a choice to decide on how their land has to be administer as they are the ones who develop community rules that will serve as guidelines to the Land Administration Committee in its role. The communities are given a right to establish a Land Administration Committee in a democratic fashion to manage and administer communal land on behalf of community.
The communities would have the right to relieve the Land administration Committee of its duties in accordance with community rules if its performance is not satisfactory.
This bill went further to protect the land tenure rights of the most vulnerable groups in our society like women and child headed household. It also ensures that these groups participate in decision-making process through both the land board and traditional council. My colleagues will expand on this to disapprove the argument that this bill does not protect women's land rights.
For the first time in the history of this country the people in former homelands will be able to hold their title deeds with dignity as rightfully owners of the land they occupy or use. Their Deed of Land Tenure rights will be registered in the Deeds Registry System. No one will be able to take away this right as law protects it.
Any deprivation of land tenure right can only take place after the owner of the land in question has given consent and has been fully compensated for this deprivation.
Thus this bill creates mechanisms through which the people in communal areas can defend and protect their land tenure rights.
It is with pride that we acknowledge the fact that registration of land and land tenure rights in the name of the communities and individuals will provide an enabling environment for the socio-economic development in communal land areas and the participation of communities and persons in the mainstream economy in order to create wealth, income and job opportunities. Madam Speaker
I have never see such a crowd of people coming for public hearings as was during the public hearings for the communal land rights bill. 32 organisations including statutory bodies, academic institutions doing research on land issues, community organisations and NGOs representing the interest of women, workers and traditional leaders presented their views.
We had public hearings for four days starting in the morning until the evening. We had to ensure everybody was given a chance to comment on the bill. We even allowed people who were not part of the original programme to come in to present their case. This shows our commitment as parliament to public participation and democracy.
During public hearing most presenters complain that the Department on this bill did not consult them sufficiently. What we should point out on this issue is that it took almost 9 years of consultation by the Department before final draft, which was submitted to parliament. The final submitted bill to parliament was actual the twelve version. In all the versions the public was accorded a chance to comment.
As a committee we asked the department to provide list of organisations and names of people consulted. I should tell this house that the list is very exhausted.
We believe that as Committee we have given a chance through public hearings to all stakeholders even those who said they did not have chance to comment on bill while it was still with the Department. Some of their comments and suggestions were taken up in this bill. The bill, which we present in front of this house today, is different from the draft the department submitted to parliament. This bill has addressed almost all of the concerns raised in the public hearings.
While on this madam speaker I should on behalf of the Committee thank all stakeholders who made contribution towards development of this bill. Your contribution was very valuable, as I have mentioned it resulted to change that you see in this present bill.
Let me touch briefly on the main issues raised by stakeholders during public hearings. My colleagues from ANC will expand on these.
Firstly the main issue raised was around the issue of discretionary power given to the Minister of Land Affairs to determine whether the rights of holders of old order rights are to be converted into new order rights the content and extend of such rights.
It was argued that it is unconstitutional to give these rights to secure tenure to the Mister while there is no guidance to the Minister on how to exercise these rights. As Committee we thought they were correct hence the amendment to the clause.
However, It seems that in every bill dealing with the land reforms the power given to the Minister is always questioned. What people fail to realise is that a Minister like any other executive is bound by the supreme law of this country, so she would be guided by the Constitution in whatever decision she takes.
The constitutionality of the bill was also raised on the basis that it creates a fourth sphere of government in the form of Land Administration Committee.
As a committee we sought the advice of parliament legal advisers on the constitutionality of the bill relating to this issue. The Legal advisors presented evidence to show that this bill is constitutional.
The report from them refuted the suggestion that the Land Administration Committee creates fourth sphere of government on the basis that it does not possess attributes of a sphere of government because it does not have legislative and executive authority provided by the Constitution as in the three spheres of government. It is just an administrative body.
The second main issue that was raised is that the bill does not protect the women's land rights. Madam speaker it is with great pride to mention in this house that this gab in the bill we are presenting in the house today has been closed. In this bill these concerns have been addressed by making it compulsory for woman to be entitled to the same legally secure tenure rights and benefits to land as man. It makes also old order rights to be held by both spouses in marriage and thus could be transfer to new order rights under name of both partners.
What also people need to understand is that women's rights are already enshrined in our Constitution. The Constitution takes precedence over any legislation.
The third issue raised is around the role and composition of the traditional Councils. Most the criticism on the role of traditional councils was based on what they perceive as undemocratic nature of traditional leadership institution, which is prone to corruption and cannot be held accountable as administrators of land on behalf of the community.
In terms of the composition, the bill through the Traditional Leadership and Governance Framework Bill, provides at least 30 % of the membership of traditional council must be made up of women.
It also says while 40% of the members are elected the remaining 60% should compromise of traditional leaders.
However it should be understood that changing composition of traditional council is out of jurisdiction of this bill it is under Traditional leadership and Governance Framework Bill.
We could not in this bill change the composition of traditional otherwise we will be creating another traditional council outside the framework provided in TLGFB, which is illegal. As ANC we understand that this institution need to be transformed and we see the framework provided through the TLGFB as the first step towards democratising the institution of traditional leadership.
People need to understand that the role played by traditional leadership in land issues has been part of the African culture. Democracy should not by anyway undermine our culture, but used to develop our cultural institutions to make sure that they are accountable to people. President Mbeki put it nicely when he said that "this bill would not undermine communal relations and elements of culture consistent with democracy and human rights".
The final main issue raised was the lack of community participation in the process of determination of their land. The complaint was that in the bill submitted to the Committee there was no provision for community participation in the land rights enquiry and the communities were not allowed to make comment on the land enquirer's report, which the Minister of Land affairs will base determination of the land in question.
In the amended bill we are presenting in this house this has been taken care of. In this bill communities are given opportunity to participate in the land rights enquiry process and to inspect the report and make representation before it is submitted to the Minister. Madam speaker
Before I sit down I should on behalf of the Committee commend the Department and the Ministry for all the work they have done. This bill has been one of contentious peace of legislation. The Department has tried its best in accommodating concerns from opposite side of stakeholders. Developing tenure legislation is a very difficult job considering the legacy of deep problems inherited from apartheid.
Let me conclude by saying, through this bill the dignity of black people in communal areas would be restored. Through this bill people will be proud owners of the land they occupy and use.
Through this bill people would have Title Deeds as legal document to show their rightful ownership of communal land and no one would take that away from them. Through this bill no more black people should be treated as outsiders in the land of their ancestors.
Through this bill the ANC has delivered one major peace of law to benefit all South Africans, especially rural people and traditional leaders.
This shows despite all the obstacles we face as ANC government to redress the imbalances of the past we are committed to see all South African have secure tenure rights.
The ANC support the bill.
Thank You