12 February 2004
When enacted, this Bill will provide the basis for a blueprint of the future utilisation of a vast area of land on a sustainable basis. It should provide a mechanism to rectify the results of the injustices of centuries, where land was alienated from the indigenous peoples of South Africa. This occurred through conquest, trickery and ideology, resulting in the eventual overcrowding and degradation of the communal areas. This, in conjunction with the abuse of the traditional system, contributed to the incorrect utilisation of land, as well as the violation of human rights, especially women's rights. The lack of access to capital, inadequate infrastructure, training and support services, market access, etc, are all contributory factors to the current desperate state of affairs in most of the former homeland areas.
The legal entrenchment of the tenure rights of people working the land, whilst recognising the de facto system of traditional leadership, demanded extreme wisdom and insight from both the drafters of this legislation and the Portfolio Committee.
This Bill, because of its importance and its potential to create divisiveness, demands the support, not only of civil society, but also of the total political spectrum. It is, therefore, regrettable that the DA chose, even before its final approval by the Portfolio Committee, to shout it down in the public media. I refer to an article by the Hon. Graham McIntosh in the Natal Witness of 4 November 2003, in which he stated inter alia:
"Apart from the aspect of human rights and democracy, the government's Communal Land Rights Bill is not progressive enough in building a gradual regime of modern property rights. It entrenches rights for traditional leaders who have clearly shown with few exceptions, that they have neither the capacity, nor the energy, nor, as hereditary holders of office, the accountability to administer land rights in a way that will bring development and a market in property rights."
The comment of the DA's political ally in KwaZulu Natal will be appreciated.
This epitomizes the political opportunism, which manifested itself again last week-end and I refer to the Burger of 7 February 2004, where the hon. Andries Botha was quoted. In reaction to the possibility, as expressed by the Chief Land Claims Commissioner, Mr Tozi Gwanya, that in view of special circumstances, 1 500 restitution claims in the Eastern Cape might after careful scrutiny, be reconsidered. Mr Botha said:
"The re-opening of claims would amount to bureaucratic interference and would be irresponsible and unacceptable."
Now I recall that the hon. DA member, Dan Maluleke gave notice in the Portfolio Committee when the relevant legislation was discussed, that he intended tabling members' legislation to re-open the whole process of restitution claims countrywide. I presume he had not only the sanction of his leader, but also of the party caucus to make this statement, as he wasn't repudiated by his party colleagues. The voters will appreciate an unambiguous reply.
Many inputs regarding the Communal Land Rights Bill were made during the period which was set aside for hearings. The portfolio committee listened very carefully to these and attempted to accommodate as many suggestions as possible in the final Bill. Much reference was made to the constitutionality of the draft of the Bill as was tabled originally. In this regard, the legal opinions of Adv. Gilbert Marcus, as sought by the South African Human Rights Commission and that of Mr H J de Waal, as sought by the Legal Resources Centre, Cape Town, a summary and analysis of the Bill by Ms Aninka Claassens, a document entitled "The Communal Land Rights Bill and Women" and a document entitled "Approved version of the CLRB gives extraordinary power to Chiefs, as issued by the NLC", was of particular relevance.
Adv. Marcus identified three fundamental constitutional flaws relating to the discretionary powers of the Minister in the bill, viz:
Firstly, the failure to give effect to the underlying constitutional right, in other words it seeks to transform a constitutionally guaranteed right into a discretionary benefit, the granting of which is entirely subject to ministerial discretion.
Secondly, the problem that, whereas the Constitution states that the extent of the right to secure tenure or comparable redress legally is to be determined by an Act of Parliament, the Bill states that the extent of the right is to be determined by the Minister.
Thirdly, the Bill makes the realisation of constitutional rights subject to the exercise of official discretion, in a manner, which does not give constitutionally adequate guidance to those officials as to how they should exercise such discretion.
The Portfolio Committee referred these objections to the Dept. of Land Affairs for legal opinion. The conclusion was that the Bill does give effect to the entitlement contained in section 25(6) of the Constitution, but conceded that the transformation of a constitutionally guaranteed right into a discretionary benefit, the granting of which is entirely subject to ministerial discretion, is arguable. It was also conceded that the Bill does not determine the extent of comparable redress and could be unconstitutional.
As to the question whether the Bill gives constitutionally consistent guidance to decision makers, the opinion was that no such discretion exists, and if such discretion does indeed exist, the principle laid down by the Constitutional Court that guidance must be provided where a wide discretion is conferred upon a functionary, has been complied with.
The Portfolio Committee noted the problem areas regarding constitutionality and amended the Bill substantially, to ensure compliance to the Constitution. In Clause 4, the aspect of securing an old order right, or comparable redress is stipulated comprehensively. It also guarantees gender equity. The procedure of assessment which the Minister must follow with comparable redress is outlined clearly in Clause 12 as amended.
Clause 18 of the Bill, which instructs the Minister how to act on a report by a land rights enquirer, was also amended substanially, in order to provide greater clarity and be more specific.
According to the assessment of this side of the House, these amendments, which have been alluded to, in conjunction with other minor amendments, ensure compliance to the provisions of the Constitution and effectively deal with the reservations expressed by Adv Gilbert Marcus, Ms Aninka Claassen and the NLC.
Mr H J de Waal, in an opinion furnished to the Legal Resources Centre, expressed the view that the Bill, read in conjunction with the Traditional Leadership and Governance Framework Bill (B 58-2003) establishes a fully-fledged new sphere of government, specifically in circumstances where it would be unelected and unaccountable. The contention is that it unconstitutionally creates a fourth sphere of government by clause 24, read with clause 19, which vests public/state administrative powers in the Land Administration Committee.
It was also stated that the Traditional Leadership Bill increased the power of a Land Administration Committee when such a LAC is established as a traditional council. It supposedly confers additional functions, which also defines the structures and entrenches the status of the fourth sphere.
The legal advice obtained by the Portfolio Committee advised that neither the Bill nor the Traditional Leadership Bill, creates a fourth sphere of government and that such conclusion misconstrues the overall statutory scheme of both bills and the thrust of a number of their direct provisions. The Portfolio Committee accepted this advice and is convinced that the Bill as amended is constitutional.
Hierdie wetsontwerp sal die gebruiks- en verblyfreg van die bewoners van kommunale grond verseker. Essensieël het dit dus hoofsaaklik betrekking op die grond van die voormalige tuislande en ander geïsoleerde gebiede. Hoewel dit dus in hoofsaak betrekking het op die gebruiks- en verblyfreg been van grondhervorming, het dit ook sekere elemente van herverdeling. In Artikel 38 word die Minister ondermeer bemagtig om vir die doelwitte van die Wet grond aan te koop, te verkry op enige ander manier, ondehewig aan seksie 3 van die Bevordering van Administratiewe Geregtigheid Wet, 2000 (wet no 3 van 2000), grond te onteien, 'n gedeelte grond of 'n reg in grond.
Hierdie onteieningsmagte van die Minister, soos in die Restitusie van Grondregte Wet is niks sinistêrs nie. Dit is egter nie verbasend dat daar in sekere geledere soos bv. die TLU 'n histeriese herrie losbars elke keer dat die woord onteïening in 'n wet verskyn nie. Dit moet gesien word as 'n refleksreaksie waar die apartheidsregering onteiening gebruik het om honderde duisende mense met weinig of geen vergoeding van hul eiendom te vervreem. Herhaalde uitsprake van die Agbare President en die Minister van Grondsake dat grondhervorming in Suid-Afrika binne die voorskrifte van die Grondwet en volgens die bepaling van die wet sal geskied, word doodeenvoudig geïgnoreer of eerder nie vertrou nie.
Aan diesulkes het ek 'n boodskap. Die ANC en sy voorgangers ken die onregverdigheid en ongeregtigheid van kolonialsme en apartheid. In sy boesem dra hy die sweet, die bloed en die trane wat voortvloei uit ongeregtigheid. Sy strewe was na demokrasie en geregtigheid, nie na wraak en retribusie nie. Inderdaad is die boodskap van die ANC een van inklusiwiteit - Suid-Afrika behoort aan al sy mense, Swart en Wit. Kom op die speelveld, word deel van die volkskontrak om Suid-Afrika vir almal 'n beter plek te maak en 'n beter lewe te verseker.
Sluit ook 'n kontrak d.w.s. 'n vaste verbintenis om te verseker die oneweredige besitpatroon van grond in Suid-Afrika reggestel sal word. As daarin geslaag word om suksesvolle nuwe boere op 'n volhoubare basis te verstig, sal die vrese van bestaande boere vir altyd besweer word.
Hierdie ANC regering was, is en sal altyd 'n verantwoordelike regering bly.