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 Title of bill: Tagging of bill: Date of Introduction: Date of Committee report: Recommendation: Particulars of the bill Restitution of Land Rights Amendment Bill 74 75 76 ATC number ATC number Object X 77

Support X

Divide

Processes followed in the party Have you received a legal opinion on the bill? Yes X Is the bill constitutional? Yes X Has the NCOP member been fully briefed on the bill? Yes X Has your whip group been fully briefed? Yes X Has the bill been discussed by your study group? Yes X

No No No No No

Processes followed in committee Did the committee receive a legal opinion on the bill? Yes X Did the committee conduct public hearings? Yes X Were relevant stakeholders consulted on the bill? Yes X Did the committee consider a regulatory impact assessment? Yes X Did the committee consider the financial impact of the bill? Yes Was the DAs position adequately recorded (minority view or Yes otherwise) in the committee report?

No No No No No X No X

The DAs policy position on this issue is clear: Land reform is a moral and political imperative and represents an opportunity to invigorate rural economies by giving rural dwellers greater access to productive assets. (Pg. 3) Insufficient funding and institutional challenges in the Department of Rural Development and 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 related they 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

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 lapse it 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 What are the consequences of the bill?

Section

1, 4, 11, The Bill re-opens the window period for land restitution claims (persons dispossessed of 12, 13(a) 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. Section 2(b) What are the consequences of the bill? 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. Other considerations N/A Section 2(c) What are the consequences of the bill? 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. What is the relevant DA Policy? The DA moved this amendment.

Other considerations 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. Section 3 What are the consequences of the bill? This section makes provision for the notice of the claim to be published in national and provincial media. What is the relevant DA Policy? We support this amendment. Other considerations N/A Section 5 What are the consequences of the bill? 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. Other considerations

Section 6

What are the consequences of the bill? 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, it amends 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.

Other Considerations We 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. Section 7 What are the consequences of the bill? This section provides transitional arrangements for the two current judges of the Land Claims Court. What is the relevant DA Policy? We support this amendment. Other considerations N/A Section 8, 9, 10 What are the consequences of the bill? These sections delete sections of the original act concerning the Land Claims Court, as all relevant detail is included in s6 supra. What is the relevant DA Policy? We support this amendment. Other considerations N/A Section 13(b) What are the consequences of the bill? 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. What is the relevant DA Policy? We support this amendment. Other considerations N/A Section 13(c) What are the consequences of the bill? 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).

What is the relevant DA Policy? We support this amendment. Other considerations N/A