RESTITUTION OF LAND RIGHTS AMENDMENT BILL [B35/2013] PRESENTATION TO THE SELECT COMMITTEE ON LAND AND ENVIRONMENTAL AFFAIRS NATIONAL COUNCIL OF PROVINCES 28 February 2014

PRESENTATION OUTLINE OVERVIEW OF THE RESTITUTION PROGRAMME REVIEW / EVALUATION OF THE PROGRAMME REGULATORY IMPACT ASSESSMENT POLICY REFORMS PROVISIONS OF THE BILL ORGANISATIONAL IMPLICATIONS COMMUNICATION IMPLICATIONS CONSULTATIONS UNDERTAKEN

OVERVIEW OF THE RESTITUTION PROGRAMME The mandate for restitution emanates from s25(7) of the Constitution. Land restitution is one of the four elements of land reform, the others being land redistribution, land tenure reform, and land development. The Restitution of Land Rights Act, 1994 provides for the qualification criteria, and regulates the restitution process. The Restitution Act establishes the Commission (to solicit, investigate and attempt to resolve claims through mediation and negotiation) and the Land Claims Court (which adjudicates disputes) as institutions through which the right to restitution is given effect.

OVERVIEW OF THE RESTITUTION PROGRAMME A person, or direct descendant of a person, or an estate, or community is entitled to restitution if it was dispossessed of a right in land, after 19 June 1913, as a result of past racially discriminatory laws or practices and lodged a claim by 31 December 1998. Two cut-off dates are applicable in the restitution programme: Claims for restitution can only be for dispossessions that took place after 19 June 1913. 19 June 1913 being the date on which the Natives Land Act came into effect. Claims for restitution must be lodged not later than 31 December 1998.

REVIEW OF THE RESTITUTION PROGRAMME One of the current challenges of the land reform programme set out in the Green Paper on Land Reform (2011) is a restrictive restitution model. An evaluation of the programme was carried out by the DRDLR, stakeholders and through interactions with beneficiaries of restitution in provincial workshops held between December 2010 and April 2011 led by the Minister, culminating into a national workshop attended by 1296 beneficiaries. The evaluation revealed restrictions in policy in that deserving persons could not participate in the programme: those that did not lodge claims before 31 December 1998, those dispossessed of their land before 19 June 1913, and those dispossessed by Betterment Planning Policies.

REVIEW OF THE RESTITUTION PROGRAMME Reasons provided by those who did not lodge claims are that: research methodology that informed the design of the restitution programme was poor; the window period that was provided to lodge claims was too short; and the communication campaign did not reach every corner of the country. verification systems of the Commission on Restitution of Land Rights are poor; Communities dispossessed because of Betterment Planning Policies in the Eastern Cape were excluded.

REGULATORY IMPACT ASSESSMENT A RIA was conducted. It identifies 2 options: Option 1: Retain the 1998 cut-off date for restitution; or Option 2: Re-open the lodgement of claims by those who did not do so by 31 December 1998 The RIA recommends option 2, the reopening of lodgement of claims. The RIA estimates that 397 000 valid claims will be lodged; and that it will cost between R129 bn to R179 bn, depending on the options that will be selected by claimants, and if those claims are settled in 15 years. The DRDLR is of the view that it would be difficult to quantify the number of claims to be lodged and financial implications.

POLICY REFORMS In the State of the Nation Address, 2013 the Honourable President stated that: “there are proposed amendments to the Restitution of Land Rights Act, 1994 in order to provide for the re-opening of the lodgement of restitution claims, by people who missed the deadline of 31 December 1998. Also to be explored, are exceptions to the June 1913 cut-off date to accommodate claims by the descendants of the Khoi and San as well as heritage sites and historical landmarks.” The Restitution of Land Rights Amendment Bill proposes the amendment of the Restitution Act to provide for reopening of lodgement of claims for a period of five years. A policy on exceptions to the 1913 Natives Land Act cut off date is being developed.

PROVISIONS OF THE BILL Clause 1 of the Bill amends section 2 (1) (e) of the Restitution Act, to extend the date for the lodging of claims for restitution from 31 December 1998 to 30 June 2019 (a five year lodgment period) Clause 2 of the Bill inserts new provisions in section 6 of the Restitution Act for: Mandatory prioritisation of claims lodged no later than 31 December 1998 which will not be finalised on the date that the Bill comes into effect. The establishment of a National Restitution Register, for the Commission to enter details of claims in that register, and for the register to be open to the public, subject to the Promotion of Access to Information Act, 2000

PROVISIONS OF THE BILL Clause 3 of the Bill amends section 11 (1) of the Act to provide that the details of a claim must be published in the media circulating nationally and in the province in which the land is situated [not just in the district]. Clause 4 is a consequential amendments of section 12 (5) which refers to the cut off date for lodgement. Clause 5 of the Bill amends section 17 of the Act which provides for offences: to create a new offence where a person unlawfully prevents a person from pursuing his or her rights provided for in this Act, to create a new offence where a person lodges a claim with an intention to defraud the state

PROVISIONS OF THE BILL Clause 6 of the Bill amends section 22 of the Restitution Act, providing that: the Land Claims Court shall consists of a Judge President & as many Judges as may be determined by the President. the Judges will be appointed from Judges of the High Court. Judges will be appointed for a period fixed by the President, for as long as they remain Judges of the High Court. Acting Judges to be appointed by the Minister of Justice and Constitutional Development. Clauses 7 of the Bill provides for transitional arrangements, that current Judges of the Land Claims Court remain as such Clauses 8, 9 & 10 deletes sections 23, 26 and 26A as matters provided therein are covered in clause 6.

PROVISIONS OF THE BILL Clause 11, 12 & 13 (a) are consequential amendments of sections which refer to the cut off date for lodgment Clause 13 (b) requires the Minister to consider factors affecting feasibility for restoration when settling a claim in terms of s42D Clause 13 (c) provides for the extension of Minister’s power of delegation Clause 14 contains the short title of the Bill.

ORGANISATIONAL IMPLICATIONS (COMMISSION) To increase current administrative capacity, the DRDLR will take the following steps: Establish 14 lodgement offices located across South Africa (as phase one of the lodgment process) and one mobile unit per Province; Phase two shall entail the rolling out of lodgement in 52 lodgement offices (i.e. in DRDLR Office); Employ 304 additional staff members to assist in the lodgement of land claims; Use trained youth from the National Rural Youth Service Corps; NARYSEC youth shall assist in the communication campaign, collection of oral history, and in the management of the claim lodgement process;

ORGANISATIONAL IMPLICATIONS (COMMISSION) The capacity required by the Commission to process the claims is currently being reviewed and the required staff shall be appointed once agreement has been reached, and the Bill has been enacted; Partnerships with research institutions and universities have been entered into regarding the research of claims and skills transfer; The estimated budget for the above interventions for the lodgement period is about R549 million over the Medium Term Strategic Framework period.

COMMUNICATION IMPLICATIONS The DRDLR and GCIS shall implement a comprehensive communication plan which will be aimed at ensuring that all affected parties are informed of the extended date for the lodging of a claim for the restitution of a right in land. Central to the communication campaign shall be the distribution of the citizens’ manual on land claims which will be translated to all official languages and those languages spoken by the Khoi and San Communities, and in braille. The manual shall be distributed by the NARYSEC youth. Another important element of the campaign shall be the collection of oral history from those who have lived through the catastrophic effects of the 1913 Natives Land Act

CONSULTATIONS UNDERTAKEN ON THE BILL Consultations by the DRDLR The DRDLR consulted with restitution beneficiaries through 9 provincial and 1 national workshop. The objective of the workshops was to evaluate the impact of the land restitution programme. The national workshop was attended by 1296 delegates. 75 Consultative Workshops were held by the DRDLR with stakeholders, mostly with communities, in all Provinces. The main objective of the consultative workshops was to inform the public and other stakeholders about the Bill, engage them, and obtain their inputs and comments on the contents of the Bill. 70 individuals and organisations submitted written comments. The written and oral comments collected from workshops were evaluated and amendments were made to the Bill.

CONSULTATIONS UNDERTAKEN ON THE BILL Consultations by the Portfolio Committee (National Assembly) The Portfolio Committee on Rural Development and Land Reform held public hearings in two Districts in each Province, and held a national hearings in Parliament (where oral submissions were made). The Districts which the Portfolio Committee held public hearings were not the same as those where the DRDLR held its hearings. The attendance in the public hearings was very good. The written and oral comments collected from workshops were evaluated and amendments were made to the Bill. The DRDLR submits that the consultations it conducted and those conducted by the National Assembly Portfolio Committee on Rural Development and Land Reform reached substantial parts of all Provinces.

THANK YOU …