Institute for Poverty, Land and Agrarian Studies (UWC)

1. INSTITUTE FOR POVERTY, LAND AND AGRARIAN STUDIES (PLAAS) Presentation onCommunal Property Associations Amendment Bill of 2017As published in the Government Gazette, 7 April 2017 Institute for Poverty, Land and Agrarian Studies (UWC)

2. Introduction (PLAAS) • Institute in the Faculty of Economic and Management Sciences at the University of the Western Cape. • Engages in research, training, policy development and advocacy in relation to land and agrarian reform, rural governance and natural resource management. • Strives to play a critical yet constructive role in processes of social, economic and political transformation.

3. Our response • Insofar astheBill indicates that the state will invest more financial and institutional resources in supporting CPAs, we welcome it. • Insofar as the Bill weakens the powers of CPAs to own and manage property jointly in terms of a democratic written constitution – by implying that CPAs will only administer and manage land while another entity owns it – then we oppose it.

4. Original intent & background CPAA 1996 • Designed to provide a new form of legal entity through which people could jointly hold land, and manage it democratically in terms of a democratic constitution. • Intended for beneficiaries of restitution, redistribution and tenure reform. • After transfer of title, CPAs own land and CPA members, represented by a committee, govern land in terms of democratic principles laid out in an agreed constitution.

5. History & background CPAA 1996 • The CPA model = Kenyan law professor HWO OkothOgendo, who advocated for moving away from a ‘trusteeship’ approach, where ownership is held on behalf of a group of people via traditional intermediaries, or indirect rule (the model adopted by the colonial and apartheid regimes), TO enable communities of people themselves to own and manage their own land through a legally recognised structure, or legal entity. • Subverting this history is the essence of the CPA model, and this needs to be recognised when considering the proposed amendments in the CPA Amendment Bill.

6. CPA Office and registrar • Section 2B - establishment of a Communal Property Associations Office • Section 2C & 2D – Appointment and Functions of Registrar • Welcome the provisions regarding the much-needed establishment of a Communal Property Associations Office and Registrar in the Department, and their responsibility to provide support to CPAs, but argue that the definition of such support is left vague and open-ended and as a result does not adequately address the lack of institutional capacity and systems to ensure robust landholding institutions.

7. Removal of provisional CPAs • We support the removal of the provisions for registration of provisional CPAs. • The Department has in several cases provided provisional registration of CPAs and then failed to finalise their registration or transfer property to these CPAs. As a result, the property rights of beneficiaries have been put in jeopardy. • All CPAs should be properly registered and rights transferred to them.

8. Ownership: CPA function to ‘hold’ or to ‘administer and manage’ • In Section 8(b) the Bill makes a major change to the main purpose of a CPA: from owning land (‘holding’) to ‘administering and managing’ land • Section 18A(7)propose transfer of ownership to communities “group of persons, including labour tenants…whose rights to a particular property are determined by shared rules under a written constitution...” • Our response to this is straightforward: the ‘community’ cannot own land. Only a legal entity can own property, in the name of a community, and the legal entity created for land reform purposes is the CPA. • In this manner, the CPA Amendment Bill appears to undermine the original intent of the CPA Act.

9. Status of existing CPAs – expropriation of property rights? • Section 18A(7) of the bill strips CPAs of ownership rights in favour of limited administration and management roles. “Communal land registered in the name of an association must, within 24 months from the date of commencement of this Act, be registered in the name of the community or name preferred by the community.’’ • If applied to existing CPAs, the amended act would convert these CPAs from landholding institutions to land management institutions. • Does this not constitute expropriation of property rights?

10. Extension of provisions to labour tenants • The CPA Act always governed labour tenantsIF they established a CPA – Study by Ruth Hall (2003) - Farm Tenure. • The emphasis is problematic and contrary to the purpose of the Labour Tenants Act, which envisages upgrading of tenure, including to ownership. • The emphasis on labour tenants in the Amendment Bill suggests that the state may retain ownership of commercial farmland (when settling labour tenant claims or redistributing land), while ownership may be transferred to traditional councils in communal areas. • In both cases, residents do not become landowners themselves, and their rights are contingent on the ownership of this land by the state or by traditional authorities.

11. State power and Ministerial consent • The Bill provides for very extensive state powers over community land, and increases the Director-General and Registrar’s authority to provide or withhold consent for key community decisions. • Section 12(1) gives the Director-General, the Department and Registrar ultimate decision-making power in terms of any transaction pertaining to land. • The right of first refusal, coupled with ministerial consent required for any transaction, amounts to ‘double jeopardy’. • This means that the democratically elected CPA committee can make decisions, but these decisions will have to be approved by the Minister or by the Registrar. • If the state wanted to protect communities, it would develop mechanism to ensure that proper procedures are followed.

12. General plan • Section 2A. (1) …, 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). • This addresses land use while failing to address what is widely recognised to be a key cause of dysfunction in CPAs: the failure to clarify internal allocations of land rights. • Public participation?

13. Recommendations • On the basis of the analysis and arguments outlined above, we suggest strongly that the Bill not be passed in its current form. We recommend that it be withdrawn and redrafted after due consideration of these and other arguments. • We call for a public debate on the issue of whether or not black South Africans should receive land with full ownership rights, or their equivalent in law, when they are beneficiaries of land reform processes of various kinds, including land restitution, land redistribution, the reform of the status of labour tenants, and communal tenure reform.

14. Thank you!!

15. Nkuzi Development Association • “Most of the existing CPA were not invited to participate in the public consultation held on the 10th and 11th August 2017. Those who attended knew about the hearing by a word of mouth, especially from people who are privileged to have been contacted by government officials.” • “The hearings were held in two districts, i.e., Nkowankowa Community Hall and Tayob Hall in Mokopane. Therefore, no consideration was made for the vastness of the province as well as the diversity of communities in terms of languages spoken” • “The Bill was not available prior consultation to the participants and even those who managed to attend could not get copies of the Bill in other provincial languages other than English” • “Consultation session in Nkowankowa was rushed through and police were called to intimidate members of the public who were genuinely raising their concerns on the Bill and the consultation process”