Submission to the Portfolio Committee on Land Affairs and Agriculture

Standing of the SACC

1. The South African Council of Churches (SACC) is the facilitating body for a fellowship of 23 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches with a combined constituency of roughly 15 million members and adherents. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.

Land Policy as an Engine of Transformation

2. Land reform is central to the success of South Africa's political and economic transformation. Land represents the basis of economic activity in rural communities and is a vital resource to sustainable livelihoods. The alienation of people from the land was a central and recurring theme in South Africa's history of segregation and apartheid. Dispossession cut the majority of South Africans off from access to independent livelihoods, forcing them into overcrowded "reserves", and leaving them with few survival options other than selling their labour. The fundamental challenge for democratic South Africa is to restore people's access to productive resources, including land, thereby enhancing their social and economic security and self-reliance. Equitable distribution of land and security of tenure are essential to justice, reconciliation and transformation.



3. The Committee of Inquiry into a Comprehensive System of Social Security for South Africa (a.k.a. the Taylor Committee) identified various dimensions of poverty and recommended specific interventions to address these different concerns. With respect to "asset poverty", the Committee underscored the need to provide "access to productive and income-generating assets such as land and credit. ... This addresses the key underlying structural basis of poverty and inequality in South Africa." [Taylor, p. 42] In this regard, the Committee cited the present use of communal land - and the customary laws governing such use - as particular impediments to social security. The Committee's report stated: "Rights to use of communal land should be secure and protected from arbitrary seizure." [Taylor, pp. 55-56] The Committee also found that rural women and disabled people experience the greatest difficulty in gaining access to land. [Taylor, p. 57]



4. Consequently, we believe that primary objectives of state land reform policy should be:
   • To confirm and strengthen the existing tenure rights of people living on communally-owned land;
   • To redistribute land equitably and increase people's access to land, particularly in rural areas, in order to address historical legacies of dispossession and overcrowding;
   • To safeguard the tenure rights of women and other groups that have typically had the least access to land;
   • To enable those with access to land to use it productively, beneficially and in a sustainable manner; and
   • To restore communities' control over their own lives and development by allowing them to participate in decisions about land allocation, tenure and use.
   These, then, constitute the benchmarks against which we must assess the Communal Land Rights Bill.

The SACC Calls for the Withdrawal of the Communal Land Rights Bill

5. In the light of the above principles, we are compelled to oppose the communal Land Rights Bill (hereafter, "the Bill"). We strongly urge the government to withdraw it. This is not a position we have adopted lightly. Normally, the SACC believes it is more constructive to support the spirit and the objectives of well-intentioned but flawed legislation by proposing alternative strategies or language to rectify those shortcomings. This has generally been our approach in the past and has characterised our submissions on earlier drafts of the Bill. In this case, however, we find that we are unable to do so for three reasons:
   
   
   • The Bill's flaws are grave and fundamental. The Bill does not require fine-tuning; it demands a complete overhaul. We discuss our objections to the Bill's paradigm and its specific provisions in greater detail below.
   
   
   
   • There has been insufficient opportunity to develop adequate responses. The review and consultation period on the current draft has been far too brief to permit us to develop and explore the implications of potential amendments on the necessary scale. Although the tabled version is substantially the same as the version approved by Cabinet on 8 October, the Cabinet version differed radically from earlier drafts on which the SACC had convened consultations and formulated consensus responses. Even the 8 October version has been publicly available for a relatively short period of time - and then only during a period when advocacy organizations (and parliament) are being called upon to analyse and respond to an unprecedented number of pieces of major legislation and are finding their capacity to do so strained. This is a major and complex piece of legislation. The Bill was tabled less than two weeks before the commencement of hearings, which has barely allowed time for a handful of SACC staff responsible for land and policy matters to assess its implications. There has certainly been no time for reflection and comment within our member churches, particularly those with first-hand experience in promoting rural development. We have therefore been unable to develop detailed consensus responses to large number of issues raised by the new Bill. We understand that many other key stakeholders have also been unable to engage in meaningful consultations with their respective constituencies. By closing down space for consultation, the abbreviated legislative process has effectively stifled the voices of the rural poor, whose reactions to the proposed Bill must be heard.
   
   
   
   • There is limited scope for Parliamentary engagement - Even if the SACC and other civil society organisations were able to present mandated alternative provisions and to engage technical aspects of the Bill, we believe that it is unrealistic to expect Parliament to undertake the complete overhaul of such a major piece of legislation at the present time. Parliament has very few days left and a very heavy agenda. Individual MPs are juggling the competing pressures of wrestling with very complex legislation and trying to prepare for national elections. Although the Bill has once again been tagged section 75, provision should still be made at the provincial level to promote broad discussion of its implications. Instead, the Bill is likely to be rushed through both the National Assembly and the NCOP, leaving insufficient time for thorough and detailed debate in either house or in either the national or provincial spheres. Furthermore, costing requirements effectively preclude the consideration of substantial changes to the current draft; any major amendments to the Bill could necessitate a recosting, making it difficult to schedule enactment before the dissolution of Parliament. Given these realities, a political decision to ensure that the Bill is enacted in some form before the end of this parliament would be tantamount to an abandonment of participatory democracy with respect to this legislation. This is completely unacceptable on a matter so fundamental to South Africa's social and economic transformation.
   
   We are therefore compelled to call on the government to withdraw the CLRB, to initiate a new process of community consultation to build consensus around a revised bill, and to introduce new legislation early in the life of the next Parliament.

Objections to Key Provisions

6. The Bill deals inadequately with several fundamental concerns. It therefore fails to meet the tests set out in paragraph 4 above. In particular, we have reservations about the Bill's:
   • Entrenchment of existing patterns of land distribution;
   • Lack of provision for community control of tenure reform;
   • Vagueness with respect to tenure reform procedures;
   • Lack of flexibility with respect to the incorporation of traditional authorities;
   • Capacity to enhance the tenure rights of women; and
   • Potential to promote productive and sustainable land use.

Entrenchment of Existing Patterns of Land Distribution

7. The present Bill seems primarily concerned with securing tenure rights within the existing pattern of land distribution - a pattern determined to a large extent by past racially discriminatory land policy. It makes little provision for the acquisition and distribution of new land. Although there is a brief chapter providing for comparable redress where old order land rights cannot be legally secured, the mechanism is vague and weak in comparison with earlier drafts of the Bill. Furthermore, leaving decisions about comparable redress to the discretion of the Minister may not satisfy the constitutional requirement [sec 25(6)] that an Act of Parliament provide for comparable redress. There is therefore a danger that the legislation will do little to address the overcrowding and land hunger created by former policies. Instead, it seems likely that the pattern of "new order" rights will substantially reproduce those of the old order.

Lack of Provision for Community Control of Tenure Reform

8. The Bill would make the state, not communities themselves, the primary agent of tenure reform. The Bill leaves multiple matters to the discretion of the Minister, including the initiation of a land rights inquiry, decisions about whether and how to subdivide communal land and/or to reserve portions as state-owned, decisions about which old order rights to convert to new order rights and which to cancel, and the authority to determine who holds new order rights (although there appears to be a contradiction between sections 6 and 18, which appear to give this power to the Minister, and section 24 which seems to give it to the land administration committees). The Minister would also acquire broad powers to impose rules on a community and to approve and register a communal general plan.



9. There is no obligation on the Minister to secure the consent of the community affected with respect to any of these decisions, nor is the Minister even required to consult the relevant community before making a ruling. A community would have no right to initiate the tenure reform process, to compel a land rights inquiry or to accept or reject the outcome of such an enquiry. Land rights enquirers are not compelled to consult communities prior to making their recommendations. Although general statutes governing administrative justice would presumably apply, there is no explicit mechanism by which a community may appeal against a decision of the Minister. It will likely be costly and difficult for communities to challenge the Minister's rulings on such matters.

Procedural Vagueness

10. The process by which old order rights will be converted and communal tenure secured remains unclear. Section 4 requires all old order rights that are insecure to be legally secured as new order rights in terms of the Bill. However, old order rights are not insecure by definition. This implies that the Minister must first determine which old order rights are insecure and need to be converted to new order rights. Even if some land currently held under old order rights is not affected, a very substantial area will inevitably be involved. The Minister must then initiate a land rights enquiry for each area prior to making a decision about the apportionment and transfer of land. Given the large areas in respect of which such enquiries will need to take place, it is not practical to imagine that this process could take place in all areas simultaneously. On what basis will these enquiries be prioritised? Will communities be able to request priority consideration? The need for ministerial action or approval at each stage of the process is likely to become an enormous administrative bottleneck.



11. The Bill requires each community to establish a land administration committee, but here again the process - or rather the timing - is unclear. Are communities required to establish committees as soon as the Bill comes into effect? Does this requirement become effective only once the Minister has initiated a land rights enquiry for an area in preparation for the conversion of old order rights? Presumably a community cannot establish a land administration committee before it adopts rules, but this is not explicitly prohibited in the Bill.

Role of Traditional Authorities

12. The 8 October draft of the Bill required that if a community had a traditional council recognized in terms of the Traditional Leadership and Governance Framework Act, such council would automatically perform and exercise the functions and powers of a land administration committee for that community. The tabled version of the Bill [sec. 21(2)] merely says that a traditional council "may" serve as a land administration committee. This less rigid approach is welcome, but its implications are unclear. To avoid confusion, the Bill should indicate clearly that it is up to the community to decide who should serve on its land administration committee. There should be no possibility of a traditional council seizing control of land administration over the objections of the community.



13. Some communities may wish their land administration committee to be made up of a broad cross-section of residents, including traditional leaders. However, section 22(2) prevents this. Communities are offered only two options: to authorise a traditional council to act as a land administration committee or to elect a committee that excludes all traditional leaders. The rationale for this provision is obscure. It seems to inhibit communities from developing hybrid administrative structures that integrate traditional leaders in ways that each deems appropriate.



14. It might be argued that the Traditional Leadership and Governance Framework Bill (TLGFB) provides the mechanism to introduce a greater degree of community participation in the deliberations of traditional councils. However, in terms of section 3(2) of the TLGFB, only one quarter of a traditional council need be elected. The rest must be appointed by the principal traditional leader. Moreover, although the TLGFB stipulates that traditional councils must meet the new compositional requirements within four years - including the requirement that at least one third of the members of such councils must be women - there is no sanction for failure to meet this deadline.

Women's Tenure Security

15. Currently, women experience discrimination in the allocation of land under communal tenure and even greater tenure insecurity than men. In areas where traditional authorities administer communal land in terms of customary law, women typically have access to land only through their relationships with men. When those relationships end, whether through death or divorce, women frequently lose their homes and access to land. Although the Bill states clearly that new order tenure rights may vest in women, the Bill does not guarantee women access to land or security of tenure. To the contrary, insofar as the Bill envisions the possibility that land will continue to be administered by traditional authorities, this problem is likely to be perpetuated.

Productive and Sustainable Land Use

16. Land redistribution and tenure reform are necessary, but not sufficient, conditions for the promotion of productive and sustainable land use. Many of the SACC's members have learned that it is not enough simply to give people land. In order for people to use land beneficially, they must have reliable access to other resources. In rural areas, these would typically include water, seeds and fertiliser, implements, agricultural extension services, etc.



17. It is not clear that either national or provincial departments of land affairs and agriculture or local authorities currently have the capacity and resources to enable people to use land productively and sustainably. Certainly the Bill does nothing to enhance the capacity of these agencies. The projected annual cost of implementing the legislation - R68.3 million - obviously leaves no room for addressing these concerns.



18. Indeed, the Bill seeks to curtail costs by shifting responsibility for land administration from municipalities onto voluntary community bodies. Unless these bodies are given adequate support, land administration is likely to suffer, resulting in allocation and boundary disputes and further inhibiting productive and sustainable land use.



19. Insofar as the Bill applies to land owned by churches, it could also disrupt efforts currently underway in some denominations to explore multi-dimensional and sustainable agrarian development in partnership with communities residing on this land if it is implemented insensitively.

Conclusion

20. In light of these grave concerns, the lack of time to develop adequate alternatives and the limited number of legislative days remaining in the current Parliament, we strongly urge the withdrawal of the current Communal Land Rights Bill. We recommend that the Department undertake an extensive programme of community consultation with an eye to revising the Bill extensively so that new legislation can be tabled early in the next parliament.