CPA Amendment Bill: DRDLR’s response and public comments perspectives 31.01.2018

Objective of this presentation On the basis of discussion between Members of the Committee on 22/11/2017; 30/01/2018 and records of public hearings on CAAB, this presentation seeks to: To highlight of key concerns drawn from public comments; To asses if the inputs and concerns were adequately; and To identify unresolved questions.

Issues raised: significance on the basis of prevalence in the provincial consultations (1 least raised and 9 most raised)

KEY ISSUES LP NW WC EC KZN MP NC FS CPA Forum x   CPA Office Powers of the CPA Registrar; and the Minister x  Membership lists (not updated) Quorum: (60% of individuals, HH or families) CPAs independence Dept. presence; capacity & M&E Ex-Co term of office; and Accountability of Executive Committees  x Constitutions Labour tenants & restitution CPAs land ownership vs admin & management & title deeds Community vs Association Traditional Councils/chiefs Dept. capacity Municipalities

Key issues  LP NW WC EC KZN MP NC FS Corruption by government officials   x Corruption and nepotism by CPA Execs Poor implementation CPA conflicts & tensions Forced communities Settlement support protection of individual rights within groups participatory democratic principles Dissolve CPAs & transfer land to households Looting of resources by Executive Com’s Include penalties – there must be consequences Annual reports of CPAs Evictions farm lease and no title deeds water and mineral rights Sale of CPA farms without consent of members

Association, CPA Committee and Community Misconception of CPA and CPA Committees vs ‘community’ CPA is the broader association with all the members (who are members of a community as defined in the principal legislation). New aspects of the community ‘community’ means a group of persons, which wishes to have its rights to or in particular property determined by shared rules under a written constitution and which wishes or is required to form an association as contemplated in section 2; (the Principal Act) ‘community’ means a group of persons, including labour tenants contemplated in section 2(6), whose rights to a particular property are determined by shared rules under a written constitution and which wishes or is required to form an association as contemplated in section 2;’’ (The Bill)

Requirement for general plans Response appear to focus on land development in communal areas ( e.g.. lephalale, Sekhukhune etc. concern: 2A. (1) Before property contemplated in section 2 is registered in terms of the Deeds Registries Act, 1937 (Act No. 47 of 1937), the Department shall have a general plan for such property prepared and approved in terms of the Land Survey Act, 1997 (Act No. 8 of 1997). (Read with Clause 18A(7) – 1502 general plans must be prepared in 2 years). SPLUMA (2013), DRA (1937)and LSA (1997) not adequate? NB. some of the properties to be transferred (restitution) are agricultural land. (See Clause 2A)

Powers of the Minister and Registrar Bank Accounts 9(1)(iii)(aa) CPA Certificate, Community Resolution with a required majority not enough? Enforceable with Banks? Doesn’t a requirement of a letter open up opportunity for collusion and corruption? Registrar Trust deficit with govt. officials – The registrar must independent and neutral - Appointment process?

Ownership vs land administrative & management According to the DRDLR, the amendment: “…seeks to make it clear that it is the community, not the CPA in isolation, that owns the property. CPA committee members have been dealing with property as owners and the amendment seeks to make it clear that the property belongs to a community”. See the wording of the Bill 8(b) “by substitution in subsection (2) for paragraph (b) of the following paragraph: ‘‘(b) the association has, as its main object the [holding of property in common] administration and management of community property on behalf of a community;’’; If an association don’t own land who? Why form an association then? Clause 18A(7) – takes land away from existing CPAs

60% vs 50+1 majority Increasing threshold does not solve a problem of farms being sold without anybody knowing; . Any precedence of 60% threshold in corporate law? Crowd renting still possible, unless the department verifies all members of CPAs; and closely monitors the operations

Issues to follow up CPAs on communal land under traditional councils: the SEIA recommendations Communal Land Tenure Bill and CPA Amendment Bill - Clause 9.4(1); Clause 28(3) Restoration of land rights (restitution) and the Bill Clause 2.1(d) Labour Tenants/Land Reform Act and the CPA Amendment Bill ESTA and CPA Amendment Bill (Section 4) Constitutionality of some of the Clauses

Concluding remarks Given the list of concerns and complaints by the members of the public, and having concluded processing the Bill, these questions could be asked: Do the amendments clarify the objectives of the CPAs? Does the Bill give a clear distinction of CPA (association) and CPA committee? Community and CPA members Does this Bill strengthen CPAs or weaken them? In terms of land ownership, land management, and land use? Are the clear support mechanisms to enable the CPA Office to provide effective support to CPAs, to go beyond compliance with the Act to socio-economic empowerment of members (material wellbeing); conflicts within CPAs as well as with Traditional Councils. What are the unintended consequences of this Bill? Are there any constitutional impediments (both procedural [public consultation] and substantive issues)?