presentation to the portfolio committee on agriculture & land affairs 12 june 2007

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PRESENTATION TO THE PORTFOLIO COMMITTEE ON

AGRICULTURE & LAND AFFAIRS12 JUNE 2007

IMPLEMENTATION OF THE COMMUNAL LAND RIGHTS

ACT, 2004

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1. OBJECTIVES OF THE CLaRA The Communal Land Rights Act, 2004 (Act

No.11 of 2004 (CLaRA) was promulgated in 2004. The CLaRA seeks:

o To provide for legal security of tenure by transferring communal land, including KwaZulu-Natal Ingonyama land, to communities, or by awarding comparable redress;

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OBJECTIVES conti…

o To provide for the conduct of a land rights enquiry to determine the transition from old order rights to new order rights;

o To provide for the democratic administration of communal land by communities;

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OBJECTIVES conti….

o To provide for Land Rights Boards;

o To provide for the co-operative performance of municipal functions on communal land.

o To amend or repeal certain laws; and

o To provide for matters incidental thereto.

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PREPARATORY WORK

The finalisation of the drafting of the regulations, consultation on these Regulations and tabling them in Parliament have not gone as planned.

The Department prioritised the CLaRA litigation over the finalisation of the Regulations under the CLaRA.

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PREPARATORY WORK

Notwithstanding this, the Department was able to produce draft regulations for internal consultation by 31 March 2007.

The Department has developed a revised action plan for the Regulations (Annexure A).

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PREPARATORY WORK cont.

CLaRA Delegations have been completed.

These need to be consulted on within the Department; and

with the partners as part of the institutional arrangements for the implementation of the CLaRA.

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PREPARATORY WORK conti..

The training curriculum for land clerks and land administrators has been completed and is ready to be registered with the appropriate educational authorities.

Other systems and procedures for the implementation of the CLaRA including the training and communication strategy have been completed.

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PREPARATORY WORK conti..

CLaRA base line study This study commenced in 2006 on all

land affected by the said Act. The quantitative questionnaire has been

completed in NW, MP, FS and LP while KZN has completed 40% of the task.

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PREPARATORY WORK conti…

In LP, MP, FS, NW and KZN draft reports are to be completed by the end of July 2007 - on schedule

In the Eastern Cape draft reports to be completed by end of September 2007.

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PREPARATORY WORK

Draft Implementation manual

The draft CLaRA implementation manual has been completed.

It is presently being consulted on within the Department, other government departments and organs of civil society.

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PREPARATORY WORK conti…

Defending the CLaRA’s constitutionality

The Minister for Agriculture and Land Affairs

was in April 2006 served with court papers

consisting of the affidavits of the four

Applicants and various other supporting and

confirmatory affidavits, including expert and

professional affidavits.

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PREPARATORY WORK conti…

The Applicants seek an order declaring-

all the provisions of the Communal Land Rights Act, 2004 (Act No. 11 of 2004)(“the CLARA”), alternatively only certain of its provisions to be unconstitutional and invalid; and

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PREPARATORY WORK conti…

sections 5, 20 and 28(1) and (4) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003) to be unconstitutional.

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PREPARATORY WORK conti…

The four Applicants respectively

represent the Kalkfontein B and C

Community, the Makuleke Community,

the Magobistad Community and the

Dixie Community.

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PREPARATORY WORK conti…

The Kalkfontein B and C Communities

reside at Kalkfontein 143JR near

Settlers, in the Province of

Mpumalanga, while the Makuleke

Community resides at Ntlhaveni,

Malamulele District, in the Province of

Limpopo.

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PREPARATORY WORK conti…

The Magobistad Village is on the border

between South Africa and Botswana.

The Dixie Community occupies the farm

Dixie 240 KU at Bushbuck Ridge,

Pilgrims Rest District, Limpopo

Province.

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PREPARATORY WORK conti…

The Applicants aver that: the CLaRA seriously undermines their

security of tenure on the land the

communities are currently occupying and

using;

the CLaRA introduces a fourth sphere of

Government in communal areas;

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PREPARATORY WORK conti…

the CLaRA discriminates on the grounds of race and gender ;

the CLaRA undermines customary law-based systems of land administration;

the CLaRA should have been tagged as section 76 Bill and not section 75 Bill

amongst other things.

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PREPARATORY WORK conti…

The National Minister for Agriculture and Land Affairs and the National Minister for Provincial and Local Government are respectively the First and Second Respondents.

The Premiers of all the Provinces are the other Respondents.

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PREPARATORY WORK conti…

The First and Second respondents have applied their minds on the Application and have come to the conclusion that the Application should be opposed.

The Respondents consider the two pieces of legislation to be constitutional.

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PREPARATORY WORK conti…

The respondents have now served their

Answering Affidavits.

The Applicants now stand obliged to

serve and file their Replying Affidavits.

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PREPARATORY WORK conti…

What is the implication of this litigation in the light of the President’s direction during the State of the Nation that the CLaRA should be implemented from this year?

The implementation of the CLaRA will go on because there is no interdict preventing the implementation of the Act.

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PREPARATORY WORK conti…

This is so despite the agreement between the First Respondent and the Applicants to the effect that the Department of Land Affairs would not implement the CLaRA before July 2007 without giving the Applicants six weeks notice.

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PREPARATORY WORK conti…

This undertaking was based on the thinking at the time that the hearing would take place in July 2007.

However, this agreement has no force of law.

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PREPARATORY WORK conti…

To this end, the Department of Land Affairs is continuing with the preparations for the implementation of the CLaRA despite the litigation that is in place.

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PREPARATORY WORK conti…

THREE PHASES OF PREPARATORY WORK

Phase 1 Land use audits Asset register; Surveying; Registration; and Vesting of land.

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Phase 1:

Land Use Audits:To date, 2 637properties out of an

estimated 80 000 properties have been audited;

It is estimated that it would take a further 18 months to complete this work.

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Phase 1: cont.

Surveying of Communal Land:

About 2,078 million ha of the initial 5,156911 million ha of unsurveyed land have been surveyed.

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Phase 1: cont….

During the last meeting with the Portfolio Committee, the Department reported that up to that time, 811 000 hectares of land had been surveyed.

Since then between 200 000 and

300 000ha of communal land have been surveyed in the Eastern Cape.

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Phase 1: cont….

In KwaZulu-Natal, 2.8 million hectares of land in the Ingonyama Trust land have been surveyed over the past twenty years.

In KwaZulu-Natal, a further 13 891 hectares of land that still need to be surveyed on communal land outside the Ingonyama Trust land.

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Phase 1: cont….

In the North West, the surveying of

360 000ha of communal land is under way in Taung and near to completion.In Limpopo more than 230 000 ha of

communal land are being surveyed in the Giyani District in cooperation with DWAF.

Further surveying of 200 000 ha in the former Venda is in the planning phase.

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Phase 1: cont….

In the Mpumalanga Province, the surveying of 18 000ha of communal land in the Nkomanzi area has been completed.

A further 60 000ha of communal land in the Nsikazi District in Mpumalanga is in the planning and procurement phase.

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Phase 1: cont…. The surveying of the outstanding

14 000ha of communal land in the former QwaQwa is near completion.

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Phase 1: cont….Vesting of State Land:

One third of the 811 000ha of surveyed land has now been processed through the Eastern Cape Provincial State Land Disposal Committee PSLDC) for vesting.

In the other provinces the recently surveyed communal land is going through PSLDCs for vesting recommendations to the Minister.

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Phase 1: cont….

Vesting of land

It is planned that vesting of such land should be completed in the next three years, this is dependant on the completion of the surveying of the land.

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Phase 1: cont….

Registration of communal land: Registration of newly surveyed

communal land will commence as soon as vesting of the properties has been concluded. Preparations for registering the 811 000ha of recently surveyed communal land in the Eastern Cape are under way.

The target is to complete the registration of all unregistered land in three years.

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Three Phases of CLaRA

Phase 2: Institutional arrangements (between DLA and

Provinces, establishment process of Land Rights Boards and Land Administration Committees;

Engagement with DPLG and Departments of Traditional Affairs in the Provinces on co-operation on the implementation of the Traditional leadership and governance Framework Act and the CLaRA.

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Three Phases of CLaRA

Phase 3: CLaRA Project Cycle (5 stages), viz: Cycle 1: Preliminary stage; Cycle 2: Feasibility or documentation or

preparatory stage; Cycle 3: Determination stage; Cycle 4: Implementation stage; and Cycle 5: Monitoring and evaluation. Cycle is overarching and cuts across the 4

stages.

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Cost Implications Over a Period of 20 years Preliminary cost estimates of

implementing the CLaRA indicate that the total bill over a period of twenty years will not be less than R7 billion.

This relates to the main cost drivers alluded to below.

This excludes the costs for the appropriate organisational structure and the critical human resources required.

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Cost Implications conti…

The question that needs to be asked is as follows: What are the consequences of not developing and investing such money on communal lands?

The White Paper on South African Land Policy describes succinctly the inherited colonial and apartheid legacies on communal land.

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Cost Implications conti…

These legacies include the following:

Insecure land rights for persons or communities;

Lack of clarity of rights and who owns what in communal areas;

Chaotic land administration systems

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Cost Implications conti…

Overcrowding as a result of dumping of persons and or communities on other peoples land as well as a result of the general population growth in these communal areas;

Lack of economic development and investment as a result of the absence of an enabling legal environment for development and investment to occur

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Cost Implications conti…..

We attach for your information a paper by Professor H. Vilakazi (Annexure B) on the issue of the transformation of communal areas and the consequences of our failure to address the inherited colonial and apartheid legacies in the land and agrarian sectors on communal lands.

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Cost Implications conti…..

The cost of not making such an investment in the communal lands is too ghastly to contemplate.

The chasm that exists currently between the first economy and the second economy will never be bridged and poverty and underdevelopment will forever be the characteristic feature of the communal lands. Let us take advice from Professor H. Vilakazi.

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Main cost drivers for the Implementation of the CLaRA Surveying of the outer boundaries; Surveying of the inner boundaries; Surveying of the excluded rights; Conducting of land rights enquiries; Registration of Deeds; Conveyancing of Deeds;

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Main cost drivers conti….

Set up costs for 6 Land Rights Boards; Structure costs for Land Rights Boards; Secretariat for Land Rights Boards; Operating costs for Land Rights Boards; Set up and running costs for Land

administration committees;

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Main cost drivers conti……

Internal and external training and development;

Communication; Acquisition of land for comparable

redress (this is the redistributive aspect of the CLaRA);

Dispute resolution costs; and Information technology costs (IT).

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Cost Savers in the Implementation of the CLaRA Institutional arrangements (cost saver)

Both the NIF and BPR processes map out the institutional arrangements for the implementation of the CLaRA within the IGRA framework.

– Such envisaged institutional arrangements mean that some of the functions emanating from the CLaRA will be performed by other partners either through a delegation or agency arrangements or even assignment to provinces.

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Cost Savers conti….

Transformation of traditional authorities into traditional councils (cost saver); The transformation process has began in

some provinces; The maintenance and operational costs could

be shared; Alignment with DPLG on the proposed

establishment of the Department of Traditional Affairs in that Ministry will also minimise the costs of implementing CLaRA.

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Key Benefits Arising from the Implementation of the CLaRA Divesting the State of the ownership

of communal land by transferring communal land, including KwaZulu-Natal Ingonyama land, to persons or communities in ownership, or by awarding comparable redress and thus giving effect to section 25(6) of the Constitution.

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Key Benefits conti…

Provision of an enabling legal environment for development and investment to take place in communal areas in the former homelands and Ex-South African Development Trust (SADT) areas subject to other essential factors being in place contemporaneously.

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Key Benefits conti…

Such a legal environment will unlock the economic potential of the communal lands and thereby restore the persons or communities human dignity

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Key Benefits conti….

Provision for the democratic administration of communal land by communities to replace the current chaotic land administration systems in the former homelands and Ex-South African Development Trust (SADT) areas.

This will also facilitate the integration of communal lands into the unitary system of land administration in South Africa.

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Key Benefits conti….

Contribution towards planned and integrated human settlements and better management and use of the natural resources.

Contribution towards the alignment of planning and integration of the communal lands into the IDPs, ABPs, PDGSs and NSDP and other planning frameworks and strategic agenda for traditional leadership and the implementation of ASGISA.

THE END