Restitution Amendment Bill still in the NCOP

Recent news reports purport that the Restitution of Amendment Bill [B-2013] has been passed in parliament. These reports are misleading as this is not entirely the case.  The Restitution Amendment Bill was approved by the National Assembly on 25 February. But a few months ago the bill was retagged a section 76 bill following advice by the parliamentary legal advisors. This meant the bill would not only go through the National Assembly process, but also had to go to the National Council of Provinces (NCOP) with the possibility of another set of hearings facilitated by this house. The bill is currently in the NCOP and still requires it to deliberate before it is passed. Given the tight time frames, it is questionable if the bill will be passed should parliamentary procedure be followed.

The hearings by the NCOP would be in addition to those that were convened by the Portfolio Committee on Rural Development and Land Reform (Portfolio Committee) when the Bill was before the National Assembly.  The hearings by the Portfolio Committee were held in all nine provinces between November 2013 and January of this year.  While many people who attended the hearings welcomed the spirit behind the main amendment- reopening the lodgement process for land claims for a period of five years-they also questioned it given the current backlog that the Department of Rural Development and Land Reform (DRDLR) is experiencing. In these hearings, many people who lodged claims before the 1998 deadline recounted their experiences and shared their frustrations with corrupt officials, opaque administrative processes and lack of post-settlement support. The hearings showed Members of Parliament (MPs) some of the faces behind the 8733 number of outstanding claims. This number does not include the 20592 of claims that have been settled but have not been finalised, where the minister has signed a 42D agreement but implementation has not taken place.

The issue of capacity, as well as financial and human resources was also raised in the hearings and in particular by Non Governmental Organisations, academics and interest groups. According to its Regulatory Impact Assessment (RIA), the DRDLR expects 397 000 valid claims to be lodged when the process is reopened. It estimates that to settle these claims will cost R129-179 billion over a 15-year period. This amounts to R8.6-11.9 billion annually. On 19 February the Portfolio Committee heard a presentation by Treasury that was meant to address questions on the budget. Treasury was not forthcoming in this regard, and instead gave a vague budget of approximately R30billion that it has  already allocated to DRDLR’s programmes. The presentation by Treasury did however get the minister to confirm that “it [the reopening of claims] will be funded through the fiscus”. Minister Nkwinti continued to tell the Portfolio Committee, “Treasury has actually underscored the fact that this is a government programme. It does not require a stand-alone budget; it requires a normal budget.”

The budget for the reopening of land claims has been at the centre of the debate about the bill in parliament.  It was expected that the budget speech would put the matter to rest. In response to questions about the budget, MP Mandla Mandela was quoted in the Business Day saying, “in less than 24 hours Finance Minister Pravin Gordhan will announce that funds will be made available”. It was therefore perplexing to learn that Treasury has allocated R8.7billion over the medium term for the settlement of land restitution claims.

Academics and land reform experts both cautioned MPs about passing the bill without an adequate budget. Most of them were of the thinking that if not adequately budgeted for, the reopening would be a hollow promise and could potentially compromise claims lodged before the 1998 deadline. A concern also voiced was that traditional leaders, relatively resourced, would obstruct claims that are currently in the system by lodging counter claims.

In their response, the Department reiterated that current claims would be prioritized but they will not legislate ring fencing existing claims. President Zuma’s statements in the National House of Traditional Leaders yesterday showed that concerns about this bill privileging traditional leaders are founded. The president told members, “in my view, you could put together your resources to look at this law, to look at the claims on behalf of your people, so that no-one is left outside”. Although, the president spoke of the Bill as if it is already law, this is not the case. The bill is currently before the NCOP and still requires this house of parliament to deliberate on it before it is passed.



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