DA Memorandum

8/12/2019 DA Memorandum

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MEMORANDUM TO CAUCUS ON RESTITUTION OF LAND RIGHTS AMENDMENT BILL

Portfolio: Rural Development & Land Reform

Shadow Minister: Mpowele Swathe

Deputy Shadow Minister: Kevin Mileham

NCOP delegate: Darryl Worth

Date of Second Reading debate: TBC

Particulars of the bill

Title of bill: Restitution of Land Rights Amendment Bill

Tagging of bill: 74 75 76 X 77

Date of Introduction: ATC number

Date of Committee report: ATC number

Recommendation: Support X Object Divide

Processes followed in the party

Have you received a legal opinion on the bill? Yes X No

Is the bill constitutional? Yes X No

Has the NCOP member been fully briefed on the bill? Yes X No

Has your whip group been fully briefed? Yes X No

Has the bill been discussed by your study group? Yes X No

Processes followed in committee

Did the committee receive a legal opinion on the bill? Yes X NoDid the committee conduct public hearings? Yes X No

Were relevant stakeholders consulted on the bill? Yes X No

Did the committee consider a regulatory impact assessment? Yes X No

Did the committee consider the financial impact of the bill? Yes No X

Was the DAs position adequately recorded (minority view or

otherwise) in the committee report?

Yes No X

The DAs policy position on this issue is clear:

Land reform is a moral and political imperative and represents an opportunity to invigoraterural economies by giving rural dwellers greater access to productive assets. (Pg. 3)

Insufficient funding and institutional challenges in the Department of Rural Developmentand Land Reform cannot be allowed to undermine the land reform process. (Pg. 4)

In national government, the DA will:o Significantly increase the budgets allocated to land reform. A DA government would

commit an additional R10 billion to land reform over the next five years with a

specific emphasis on the creation of more effective structures for post-settlement

support for both restitution and redistribution beneficiaries. (Pg. 20)

Note that most of the amendments are not policy relatedthey are technical or operational in

nature. The fundamental policy position is whether or not we support the re-opening of the claims

window. We are emphatically on record that we do. We did manage to get one of our policy

positions included, namely the creation of a National Land Restitution Register.

In light of the above, it is a principle decision to support the amendments to the Act. The

implementation thereof is the primary concern. The funding of land restitution gives us a strong


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weapon we can continue to utilise, even after the Bill is passed, to point to the ANCs delivery

failure. From a redress and reconciliation perspective, it would be foolhardy in the extreme to take

an adverse position on land restitution, particularly going into the elections. I have discussed this

matter with my whip group, with my study group, with the chief whip, our researchers and the

NCOP delegates. We unanimously agreed to support with reservations.

Note that there is a strong possibility that this bill will lapseit has been tagged as s76, and the

second reading debate has not yet been scheduled as far as I am aware.

Practical implications of the bill

Section What are the consequences of the bill?

1, 4, 11,

12, 13(a)

The Bill re-opens the window period for land restitution claims (persons dispossessed of

their land post 1913 by racially discriminatory legislation) until 30 June 2019.

What is the DA policy position on this consequence of the bill?

The DA supports the re-opening of land claims in the interests of redress of apartheid

and colonial injustices.

Other considerations

The single biggest reservation the DA has with the bill is its financial implications. The RIA

estimated that new land claims will cost the fiscus between R129 and R179 billion to

settle. National Treasury has indicated that there is no additional funding available for

the Department (and has, in fact, cut its budget for Land Restitution). This appears to be

no more than empty promises.


2(b) This section prioritizes claims lodged during the initial claim window (prior to 31

December 1998) which had not been finalized at the commencement of this Bill.

What is the relevant DA Policy?

We support this proposal.


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2(c) This section mandates the creation of a National Land Restitution Register, in which all

the details of land claims shall be kept. It requires that it be kept up to date, and, subject

to the provisions of PAIA regarding access to personal details, shall be open to the public.


The DA moved this amendment.


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We originally asked that it be completely open to the public (via a web interface), but this

was rejected out of privacy concerns for the claimants. We felt that this was

disingenuous, as all claims are gazetted with full personal particulars of the claimants.


3 This section makes provision for the notice of the claim to be published in national and

provincial media.


We support this amendment.


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5 This section amends the offences and penalties. In particular, it includes as an offence:

[Any person who] prevents, obstructs, or unduly influences a claimant or any other

person from pursuing his or her rights provided for in this Act.

In addition, it increases the penalty in terms of s17(1) offences to imprisonment not

exceeding 6 months.

Subsection 2 is amended to make provision for imprisonment on a charge of fraud in the

case of anyone convicted of lodging a claim with the intention of defrauding the State.

What is the relevant DA policy?

The DA supports this amendment.



6 This section amends the Act to make the Land Claims Court a permanent court of

equivalent status to the High Court. It provides that it be chaired by a Judge President

and so many judges as may be determined by the President. It further requires that all

judges of the Court be judges of the High Court, appointed by the President on advice

from the JSC.

It sets the remuneration, terms and conditions of service and tenure of office in terms of

Judges Remuneration and Conditions of Employment Act. Lastly, itamends the process

of appointment of acting judges to bring it in line with that of judges of the High Court.

What is the relevant DA policy?

The DA supports this amendment with reservations.


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Other ConsiderationsWe are concerned about the essentially unlimited tenure of acting judges, who are

appointed by the Minister of Justice and Constitutional Development in consultation

with the Judge President of the Court.


7 This section provides transitional arrangements for the two current judges of the Land

Claims Court.




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8, 9, 10 These sections delete sections of the original act concerning the Land Claims Court, as all

relevant detail is included in s6 supra.




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13(b) This section mandates the Minister to utilise the same criteria (s33) as the Land Claims

Court when making a decision to enter into an agreement regarding a land claim.




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13(c) This section amends the delegation power of the minister in terms of sections 42C and

42E to limit it to the DG of Rural Devt & Land Reform, or the Chief Land Claims

Commissioner, or a regional land claims commissioner (previously any other officer of

the State).


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DA Memorandum

Documents

Transcript of DA Memorandum