We can't pick and choose which sections of the Constitution we want to uphold - Kevin Mileham

DA MP says bold, decisive steps needed to address injustices of 1913 Land Act, says Bill won't achieve this

Speech by Kevin Mileham, DA Shadow Deputy Minister of Rural Development and Land Reform, on the Restitution of Land Rights Bill, Parliament, Cape Town, February 26 2014


Mark Twain is reported to have said "Buy land. They're not making it anymore." And he could not have been more correct. Land is a limited resource. 

As our population grows, more of us need to fit onto the same piece of earth. But with that comes a host of challenges.

Property rights are guaranteed by Section 25 of the Constitution of South Africa.

This constitution - the grondwet ¬ or base law - on which all our other legislation rests, was adopted in this Parliament in 1996. Amongst other things, it provides for the restitution of property (or equitable redress) to persons or communities dispossessed of their property after 19 June 1913 as a result of racially discriminatory laws or practices. 

It also provides that no person may be deprived of their property through expropriation unless they have been compensated - and that the compensation shall either be agreed to by those affected, or decided and approved by a court.

We can't pick and choose which sections of the Constitution we want to uphold and which we don't. In other words, we can't scream for land restitution, without acknowledging that compensation must be paid if we are going to take someone else's land away, and likewise, we can't demand that our right to ownership of land must be protected without acknowledging that those who were dispossessed of their land under the apartheid regime are entitled to redress.

The Democratic Alliance acknowledges the injustice of the 1913 Native Land Act and subsequent apartheid legislation in skewing the land ownership patterns in South Africa and depriving her people of their wealth and opportunity. 

We recognize that land reform and land restitution require bold, decisive steps to address these injustices. 

But, Honourable Speaker, this government, and this Bill in its current form are not going to do it! Under the ANC, the process of land restitution has stalled, and no end is in sight for claims lodged under the previous window period.

Tales of corruption and maladministration are rife, as my colleague, Hon. Swathe, has mentioned. An investigation into the restitution process by the Special Investigating Unit (SIU) found: illegal land grants to the value of at least R96.6 million, 636 examples of non-existent or false beneficiaries, forgery of valuation documents and officials' family members listed as beneficiaries. 

If this is part of the "Good Story", then it reflects very poorly on the ANC government. 

The Democratic Alliance therefore proposes the following amendments to strengthen the legislation, to ensure the constitutional rights of all South Africans, and to better facilitate a fair, open and effective land restitution process.

Firstly, it is of vital importance that the re-opening process be properly communicated. Everywhere we went during the public participation process, we heard complaints that people had not heard about the earlier land claims deadline, or that they were not properly informed how to go about submitting a claim.

The DA proposes that an intensive 6-month media and communication campaign be rolled out across the country before the window is re-opened. 

Once the communication campaign is concluded, we propose a limited claims window be opened. The DA proposes that the cut-off for new claims be limited to 30 June 2015. 

This will provide owner, investor and producer certainty. 

These first conditions are inextricably linked. Unless a proper communication programme is implemented, the claims process will indubitably fail. 

But we go one step further: We propose that this be the last claim window and that anyone who submits a claim, must show good cause as to why they had not claimed during the earlier claims window. And frankly, the failure to properly communicate the original land claims process should suffice in that regard!

Then we propose that the nomination and appointment of Land Claims Commissioners be handled through parliamentary procedures on the recommendation of a multi-party committee - along the lines of the Chapter 9 appointments. 

This will ensure a more impartial and better qualified Commission than one that is left entirely to the minister's discretion.

We also recommend that the investigation and verification of claims be outsourced to a private contractor that has the appropriate skills and resources to provide an even-handed analysis of the merits of each claim, in as speedy a manner as possible.

One of the most frequent complaints we heard was that the claims take far too long to process. This addresses exactly that issue.

A further factor that we must take into consideration is that when a claim is challenged, the Commission carries all the costs for the claimant, while the landowner bears the burden of his or her own legal costs. This can frequently run into millions of rands. We propose that the Commission be responsible for the legal costs of all parties where a matter is referred to the Land Claims Court. 

One possible side effect (apart from easing the burden on the landowner) is that fewer claims should end up in Court, if the Commission is doing its job properly!

Speaker, we have been saying for a long time that the re-opening of land claims is unsustainable if government fails to allocate adequate funding to settle all new and existing claims.

With an estimated R18 billion required to settle the outstanding claims from the first claims window, and a further R179 billion necessary to settle the estimated 397 000 new claims, it appears that this is yet another unfunded election promise the ANC has no intention of delivering upon.

We therefore demand that necessary funding to settle both new and existing claims be put in place in the Medium Term Expenditure Framework before the window is re-opened.

The slow pace of land restitution and land reform are part of the horror story that Zuma's government uses to divide this country. This is a complaint from all parts of South Africa. 

The DA recognizes that the pace must be significantly increased, and therefore proposes that the Commission be set a 6-year deadline from the date that the lodgement window closes to settle all claims. 

This will again provide certainty for landowners, commercial agriculture and investors, and will ensure that claimants have their claims speedily dealt with.

Lastly, Speaker, we need to address the issue of food security and productivity. My colleague, Hon. Steyn, has spoken to this extensively, but suffice to say that South Africa cannot afford to have productive farm land become unutilized and barren. By Minister Nkwinti's own admission, 90% of land restitution has failed to keep land productive.

Despite the claims of the ANC, it is NOT the principle of willing buyer, willing seller that has failed - it is the ANC's administration!

We therefore propose that where productive agricultural land is claimed, either alternative state-owned land be provided in restitution, or financial compensation be paid out, or, where the farmer is willing to sell his/her property, an approved business plan and adequate funds, equipment and other resources be provided before transfer takes place.

Speaker, we have always supported restitution in principle, and it is our belief that Land Restitution can work. But only if it is done in an open, fair and efficient manner. 

A failure to implement such a land restitution process actually jeopardizes all the property rights guaranteed by the Constitution. 

The DA's support of this bill is conditional on the passing of the amendments I have proposed.

Thank you.

Issued by the DA, February 26 2014

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