DARDLR’s Portfolio Committee meeting: 8 & 9 October 2019

LARC attended the Department of Agriculture, Rural Development and Land Reform’s Portfolio Committee meeting on the 8th and 9th of October.

Significantly, the Commission on Restitution of Land Rights, Ingonyama Trust Board and Advocate Vela Mngwengwe, Acting Deputy Director General (DDG) for Land Tenure and Administration took the committee through the CPA presentation. Most of the presentations were met with disappointment as annual and quarterly targets were not sufficiently met. Issues of lack of capacity, budgetary constraints, underspending were highlighted throughout most of the presentations.

The Chief Land Claims Commissioner presented the annual report of the Commission on Restitution of Land Rights. The Committee was disappointed that the commission had not managed to finalise many of it’s old order claims. These claims are important because in the process of trying to re-open for new claims in 2016, the LAMOSA II judgment which was handed down this year highlights that these old order claims must take priority to the newly lodged ones. Again, because of under capacity, lack of sufficient funds the Restitution process is operating at a snails pace. Further to that the Office of the Valuer General has exacerbated many of the Commission’s problems; as incomplete land valuations have stalled progress on some claims. Out of 1268 restitution valuations targets set, only 1009 were completed. The Land Restitution Programme targets were not met because the implementation of the OVG organogram had not occurred. This meant that the OVG was not capacitated to meet this target even though it believed it would secure the requisite capacity when target was set. In meeting it’s obligations as ordered by the Constitutional Court in the LAMOSA II judgment, the Commission was meant to submit a 6 monthly report with the Land Claims Court, to be dealt with as the Judge President of that Court may deem fit that unpacks the number of outstanding old claims in each of the regions on the basis of which the Commission’s administration is structured; the anticipated date of completion in each region of the processing of the old claims, including short-term targets for the number of old claims to be processed; the nature of any constraints, whether budgetary or otherwise, faced by the Commission in meeting its anticipated completion date; the solutions that have been implemented or are under consideration for addressing the constraints; and(v) such further matters as the Land Claims Court may direct; until all old claims have been processed. The Chief Land Claims Commissioner explained that this process had already taken place and Honourable Steyn from the DA requested the report as it would foreground some of the integral issues that have affected the efficiency of the Restitution process.

The ITB was interrogated by Committee members about the adverse opinion they have received for the second year in a row. The Auditor General of South Africa on the previous day (8th Oct) explained that ITB had received this opinion because there was a disagreement between both parties as to which accounting process ITB should use. The MPs were quite taken aback that ITB felt it should not comply, as it was a entity of the Department of Agriculture, Land Reform and Rural Development, therefore it was guided by Public Finance Management Act and whatever accounting process the Auditor General requested, was the one that ITB had to adhere to. The former judge, Jerome Ngwenya however said that the AG was misrepresenting ITB as an non-compliant entity when in actual fact the AG has again audited IT and ITB as one thing and they are not. ITB is an organ of state and the Trust, which owns the land on behalf of the rural citizens, is not, they explain this further on page 48 of the Annual Report (attached).

The question of ownership was interrogated by the Committee Chairperson, Mr. Mandla Mandela who asked Ngwenya to simply identify who the actual owner of the 2.8 million ha of the former Kwa-Zulu land was; Ngwenya said that it was the community. Because this question related to previous questions about leases, the chair then asked Ngwenya who was paid the actual rental amount then, was it the community. Ngwenya said no, the money was paid into the account of the registered owner, which would be the Trust. The chair then proceeded to ask where the lease comes from if the land does not belong (or is not registered in the name of the community). Ngwenya then explained that no one is forced to take a lease unless they want to first and secondly ITB requires prior written consent through a form (presumably the ITB2) that is sent to the traditional council. He emphasized that without this document a lease cannot be issued. This is a very confusing way to make the new committee understand that the land is vested and not owned by the King Goodwill Zwelithini. Even though their reports emphasise that he holds the land on behalf of the communities living on former Kwa-Zulu land, from my observation the Committee Chair seems to think that unless the communities sign the lease, the land belongs to the community. When they sign the lease they are giving authorisation to IT and ITB to hold their land and therefore opening themselves up to benefiting from the rental income.

How the communities were benefiting on the ground was one of the recurring themes with most of the MPs questions to the ITB. Notably Honourable Masipa from the DA and other committee members asked the Board about the actual projects i.e schools, clinics built or other up-liftment projects that have been done in KZN. The Committee Chair asked about the percentages that ITB had shared with the Committee stating that 10% of rental income goes to ITB and 90% goes back to communities. What outputs does ITB have to show their use of the money? This question was evaded by both the Ngwenya and the CFO, Mr. Mia. The Committee Chair subsequently asked the Board to submit a 5 year report, with a time period of between 2014 – 2019, detailing what in each year the board has been ploughing back to communities and each traditional council. From the first quarter performance and financial report presented, under Programme Three: Traditional Council Support; with a quarterly target of 11 traditional councils to benefit from this programme; none of traditional councils were trained, because the training manual still needed to be developed. As a whole, ITB explained that they underspent on traditional council support programme because there was no significant requests for disbursements of funds from community beneficiaries. We have people like mam Linah Nkosi who is a member of Traditional Council in Jozini, she is unemployed with children to support. As a person with a lease, even though through her deceased partner, she should be able to assisted by ITB who also claim to give out school bursaries and the like. Honourable Steyn from the DA said that she did not believe that ITB was doing what it’s saying it’s doing on the ground and suggested having public hearings in KZN.

With matters pertaining to the leases, Honourable Montwedi from the EFF, asked how much of the land is leased to private business? Who the biggest private companies leasing from ITB are. Have any communities been removed from their land to make way for the private business? From information about third party leases that Pakkies has provided us, we know this to be true.  He also asked for clarity on the issue and process of PTO conversion.  The rental income was another hot topic that Honourable Montwedi requested a break down of, specifically unpacking how much of this income was from residential and how much commercial? Honourable Tshwete from the ANC asked for a detailed list of PTOs that have been converted since this process started. She asked for the list to contain the date of lease; name of lessee; use of land; termination date; rental fee; number of hectares and written consent form, which is all information that exists on the lease and the ITB2 form. She said that this information would assist the Commitee in understanding the gravity of the situation. She further enquired about the 7th March 2018 moratorium that was put by then Committee Chair, Mrs. Ngwenya-Mabila on ITB, preventing them from concluding leasing without having developed a comprehensive PTO to lease conversion policy with the department and planned for public participation etc. Honourable Tshwete asked why the ITB has since been issuing leases and ignoring the moratorium.

Honourable Tshwete has also enquired about the details of the a former employee of the Trust, who as the Land Tenure Management head has been put on special leave. The ITB has finally completed its organogram, however Honourable Mahlo from the ANC was disappointed that the organogram did not include more women, youth and differently abled persons. Honourable Mbambama from the DA who is a returning Committee member and quite familiar with ITB issues was a bit milder on them this time. She suggested that perhaps the Department, the Committee and ITB should have a sit down and critically engage with the Trust about what should actually be done with it. I am unsure if this sit down would have a different mandate to the Ministerial Task Team on ITB established by the Presidency of which the Minister of DALRRD is a part.

Advocate Vela Mngwengwe, Acting Deputy Director General (DDG) for Land Tenure and Administration presented on the annual report of the Communal Property Associations. Notably he highlighted that there are 1599 registered CPAs, with the most 400 being from MP. Under the heading, Institutional Arrangements, The report mentions a working collaboration between the Department and other stakeholders in providing the necessary support to CPAs. CPA District Forums for example, were established to provide peer learning/ review and information sharing. The challenges faced as a Department when it comes to CPA’s were centred on decision taken by some communities to opt for financial compensation after registering CPA; some CPAs refuse to vacate office when term expires. The Department has tried to intervene through first layer by conducting 6 workshops on corporate governance for officials, district forum members and CPA members. The Department has tried to intervene at a second layer, which is litigation. The Advocate further elaborated that there are currently 13 matters involving CPAs & 4 CPAs that are under judicial administration. As a Department they are also currently upgrading the Land Administration Web to include CPA module which would electronically capture and update CPA information, including electronic registration of CPAs and uploading of CPA documents.

Questions from MPs:

Hon. Montwedi: Lots of hectares are under control of CPAs. I am worried about the lack of institutional support provided to CPAs. Since you are aware of issues with CPAs what do you think should be done to resolve this issue?

Hon. Steyn: I remember the land committee going to public hearings around the CPA and working through CPA Amendment Act. During that process were these issues not addressed? And information you have provided about CPAs is not detailed enough, we need a full report on CPAs.

Hon. Mbambama: It’s time to call a spade a spade, CPAs are failing. We need to find a solution around CPAs. How will they comply if they do not have the skills? Will we ever have the capacity to look after CPAs?

Hon. Tlhape: There are structural and institutional dynamics of CPAs that the department will not address because of own capacity issues. And I must say you have lost the war on CPAs.

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