THURSDAY, 26 FEBRUARY 2004
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          PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
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The Council met at 14:03.

The Deputy Chairperson took the Chair and requested members to observe a moment of silence for prayers or meditation.

ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see col 000.

THE NEED FOR SOUTH AFRICA TO REVISIT ITS POLICY OF QUIET DIPLOMACY TOWARDS ZIMBABWE

                         (Draft Resolution)

Mr K D S DURR: Mr Chairman, I move without notice:

That the House notes -

(1) that the European Union has agreed to renew sanctions imposed on an extended list of 95 of the ruling elite of Zimbabwe, including President Mugabe;

(2) further notes the recent SACP statement reported in the Business Day of 19 February 2004, that “a lawless, populist-inspired land-grab by an elite in the inner circles of government was a cruel caricature of the kind of land reform that the rurul poor required”;

(3) recognises that some 34% of the Zimbabwean population has already been displaced from Zimbabwe and that this is worsening by the day, and therefore calls upon the Government to revise its policy of quiet diplomacy and inaction which is interpreted as tacit acceptance and support for President Robert Mugabe.

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M J Mahlangu): Is there an objection? [Interjections.] There is an objection. In view of the objection the motion may not be proceeded with. The motion without notice will now become a notice of motion.

DA MP’S SPEECH DEMONSTRATES DA’S REGRESSION TO THE “SWART GEVAAR” ATTITUDE

                         (Draft Resolution)

Mnr C ACKERMANN: Voorsitter, ek stel sonder kennisgewing voor:

Dat die Raad -

(1) met kommer kennis neem van die feit dat die DA terug is by die dae van swart gevaar;

(2) ook kennis neem van die uitspraak van die Wes-Kaapse DA-leier en -premierskandidaat Theuns Botha dat hy vermoed dat die ANC se skim premierskandidaat swart is en dat die ANC die identiteit van die kandidaat geheim hou omdat dit glo bruin stemme kan beïnvloed, wat niks anders as laakbare rassistiese politiek is wat poog om ou vrese van swart gevaar onder sekere gemeenskappe aan te wakker nie;

(3) bevestig dat hy gister, 26 Februarie 2004, ‘n besluit aangeneem het waarin ‘n ernstige beroep gedoen is op alle Suid-Afrikaners om by te dra tot die bou van ‘n nasionale konsensus wat op ware Suid- Afrikaanse patriotisme gebaseer is en wat as ‘n sleutel-instrument sal dien om ons samelewing werklik nie-rassig te maak, waarmee die DA in hierdie Raad saamgestem het; en

(4) hierdie uitspraak dus met minagting verwerp en mnr Theuns Botha versoek om sy mede-DA-kollegas in hierdie Raad, asook alle welmenende Suid-Afrikaners om verskoning te vra vir sy laakbare optrede. (Translation of Afrikaans draft resolution follows.)

[Mr C ACKERMANN: Chairperson, I move without notice:

That the Council -

(1) notes with concern the fact that the DA has returned to the days of “swart gevaar”;

(2) also notes the statement by the Western Cape DA leader and candidate for premier, Theuns Botha, that he suspects that the ANC’s shadow candidate for premier is black and that the ANC is keeping the identity of the candidate secret because this could apparently influence coloured votes, which is nothing but reprehensible racist politics which attempt to stir up old fears of “swart gevaar” in certain communities;

(3) confirms that yesterday, 26 February 2004, it took a decision in which a serious appeal was made to all South Africans to contribute to the building of a national consensus based on true South African patriotism as a key instrument to truly make our society nonracial, with which the DA in this Council agreed; and (4) therefore rejects this statement with contempt and requests Mr Theuns Botha to apologise to his fellow DA colleagues in this Council, as well as all well-meaning South Africans for his reprehensible behaviour.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M J Mahlangu): Is there an objection to the motion? [Interjections.] In the light of the objection the motion may not be proceeded with. The motion without notice will now become a notice of motion.

GRATITUDE TO AD HOC COMMITTEE FOR OVERSIGHT WORK IN TERMS OF LEKWA TEEMANE MUNICIPALITY IN THE NORTH WEST, AND SUPPORT FOR FINDINGS OF COMMITTEE

                         (Draft Resolution)

The CHIEF WHIP OF THE COUNCIL: Deputy Chairperson, I move without notice:

That the Council -

(1) expresses unreservedly its gratitude to the ad hoc committee for its oversight work carried out in the evaluation of the intervention in the Lekwa Teemane Municipality in North West;

(2) supports the findings of the committee and agrees that intervention by the provincial government is in fact necessary;

(3) resolves that the matter be referred to the committee to -

   (a)   pay  special  attention  to  the  nature  and  scope   of   the
       recommendation in respect of the intervention;


   (b)  engage and consult with the Department of Provincial  and  Local
       Government and other relevant stakeholders to ascertain what the
       appropriate intervention should be in terms of  section  139(1);
       and


   (c)  stipulate clearly the nature of the intervention;

(4) requests the committee to report back to it by not later than Thursday, 4 March 2004; and

(5) resolves that the relevant item be removed from the Order Paper for further consideration and report by the ad hoc committee.

I may add, Chairperson, that I have conferred with the other political parties, except for Mr Durr, whom I could not reach.

Motion agreed to in accordance with section 65 of the Constitution.

                      COMMUNAL LAND RIGHTS BILL

             (Consideration of Bill and Report thereon)

The MINISTER FOR AGRICULTURE AND LAND AFFAIRS: Thank you very much, Deputy Chairperson, hon members, ladies and gentlemen. It is with great pleasure that today, here in this House, the NCOP, we’ve got an opportunity to debate the most important legislation that will finally create a better land dispensation in our country’s rural areas and ensure that, for the first time over the years, our people living in those areas can have their land rights fully recognised by law.

You will recall, Chairperson and hon members, that for a number of years, communities living on communal land in rural areas always had the state as a guardian, the state having nominal trusteeship over their land, a different dispensation to that which a number of us living in urban areas actually had - what choice we wanted to make, and what type of tenure rights we wanted to have. Indeed, this remained a situation in which our rural communities, in terms of land ownership, were in some way second- class citizens.

The Constitution we passed in 1996 challenged us to make everyone’s land tenure rights secure. It outlines various mechanisms of how we would do that, by recognising the need for land reform as a critical process in our democratic dispensation.

Land reform, therefore, in our policy included land restitution, redistribution and tenure reform. Members will agree with me that in the other areas of land reform, such as restitution and redistribution, we’ve laid the basis, and our delivery of land to those who were historically dispossessed speaks for itself.

Yes, we agree that there is a need for improvement. However, on matters of tenure reform, this House, last year, when debating the land Budget also acknowledged that more still needed to be done to ensure that our constitutional obligation with regard to tenure reform could be met.

In trying to deal with the issue of tenure reform, I think it is possible that when we examine, we can look and agree that, yes, some work has been done in this regard. We ensured that the rights that people had, however informal, should be protected in terms of law; hence the Interim Protection of Informal Land Rights Act had to be promulgated.

The Land Reform (Labour Tenants) Act was one such measure. The Extension of Security of Tenure Act was also put in place to guard against arbitrary evictions of people who work on farms, whose tenure rights, linked to the land on which they work, are also protected.

These measures, hon members, were some of the mechanisms that we put in place to secure the rights of persons and communities contemplated in section 25(6) of the Constitution. Clearly, they did little to address the collective wish of our rural communities under communal areas to have full ownership of their land. It deprived them of administering the land that they belong to. It also did not create enough possibilities for them to have choices on how they would want to utilise that land for their own development.

It also did not create an opportunity where representation in terms of participation on the administration of land would actually encompass more people beyond traditional leadership structures. It denied them, most importantly, of an asset base that they could have used to gain an economic livelihood. We, therefore, as the state, had a responsibility to ensure that we addressed the situation and thereby honoured our promise of creating a better life for all our citizens.

The question may be asked, hon members, ``Why has it taken so long?’’ Ten years into our democracy, the plight of rural communities have remained somewhat unchanged, particularly when it comes to legal dispensation. I hope the answer to this question, Deputy Chairperson and members, will in some way address some of the concerns that have been raised, rightly so, by some members of the public about the consultation process.

Firstly, you will recall that the Communal Land Rights Bill before you today represents nine years of research, policy formulation, consultation and legislative drafting. Between 1996 and 1998 the concentration of research and policy work looked at how we could transfer communal land in ownership to communities and thereby establish accredited democratic structures to be responsible for the administration of such land. It weighed heavily, particularly on the role of the state as a bureaucratic administration to actually support such accredited structures.

Also during that period, in 1998, some case studies were done, looking at what had been done by the old apartheid government. One of the clear examples which has always been cited, particularly in the media, is the case of Matlala in Limpopo. It’s an area which used to be under the Lebowa homeland where the state sought to transfer communal land ownership to its rightful owners. One of the things that became clear during that process of research was that where the state seeks to transfer communal land ownership to its rightful owners, in some instances it activates social, cultural and political conflicts, including boundary disputes relating to the ownership of the land in question.

One of the challenges which we looked at in this case was the nature of transfer and ownership that did not clearly define the administrative responsibility over the land in question. The lack of this clarity on powers and functions with regard to the administration soeiof such land, as well as the hands-off approach of the then government created a situation where the traditional authority in the area behaved like it was the sole owner of the land in question.

I think one of the things that we had to look at in drafting a new dispensation was: How do we depart from that past? Two things had to happen. One of those was to create a framework that defines, clearly, the role and powers of traditional leadership. This is what was done by the legislation under the authority of the Department of Provincial and Local Government. Secondly, in looking at our land administration process, we had to clearly define to whom the land is transferred and also what the administrative structures thereof are.

In some way our response, through the Communal Land Rights Bill, was to opt for an approach that created a shift where the proposal was for a blanket creation of so-called `protected rights’ which would secure existing land uses and so uphold the status quo.

However, when we looked at it, the second stage of dealing with that administration was with regard to the registration of rights only on the basis of demand, not as a norm. Also, the issue of comparable redress was to be dealt with on the same basis. In reviewing that procedure or that process, it was clear that it would not be sustainable. We had to acknowledge that that approach clearly does not take into consideration the need for the affirmation of the land rights to its rightful owners.

In some way the difference, therefore, between the approach we had taken then and the one that we are proposing in this Bill is that the owners of such land in communal areas will have full ownership of their rights in land, recognised by law through a title deed. Secondly, the legislation defines the way in which such administration of land will take place.

I must say here, Chairperson, that a concern was raised. It is a concern that, in our view as a department and I am sure in the view of this House as well, we will continue to be engaged in, maybe even after the passage of this Bill, including some of the concerns that have been raised by some of the NGOs as to the nature of administration of such land, particularly under the traditional councils.

Thirdly, the rights of women have, clearly, been recognised, protected and enforced. Such rights, if I may say so, Chairperson, extend to the role that women will play in the administrative structures of such land. The rights of vulnerable members of the communities have been protected in this Bill that we are putting before you.

The most important element in this Bill is that it recognises the need for migration out of the system of collective ownership of land should the time come when the community wants to move towards individual freehold ownership of land. There won’t be a need for other new legislation to allow people to move to land ownership on a freehold basis.

In the same manner, the Bill recognises the fact that other communities who previously had freehold status, such as communities at Cala in the Eastern Cape, communities in Mzimkhulu, the Kekane in Hammanskraal, and many others who had their freehold status before, were in some way subsumed in collective ownership by default during the social engineering of the apartheid government.

Therefore, this Bill makes it possible that after the land rights enquiry process has been undertaken, the freehold status can actually be restored to those communities with minimal disruption.

Given the fact that the land in question might be overpopulated and congested, the Bill provides for comparable redress. This comparable redress, in my view, has a redistributive element. In ensuring that we learn from the lessons of the past, such as the Matlala case, we have ensured that there are mechanisms which will facilitate oversight and intervention. The provincial land boards are such structures which will have the responsibility of ensuring that the management and administration of communal land at local level are actually done in accordance with the law.

We have also ensured that, as a state, we don’t take an attitude that says once we have delivered or given the land to their rightful owners our business is finished, and then go away. We have created an opportunity where we have clearly defined the role of municipalities and other organs of state in order to continually give support for development to these communities. We appreciate that this is just the beginning of the process. As we move towards implementation, we will learn through our experiences what more needs to be done to ensure that this newly created dispensation succeeds.

To this end, I want to thank the members of the select committee here in this House who have worked with us starting from 2001, if I may say, when we had the National Land Tenure Conference in Durban, where we looked broadly at the issues around tenure reform in this country. They have even sharpened our earlier drafts to ensure that it takes into consideration the views of many members of the public.

I also want to say, even at this late stage, that the committee, in its wisdom, has indicated to us that there are some things that need to be done to tweak the Bill so that it becomes technically sound. I want to say, indeed, this is the role of legislatures. You would recall that when our initial draft came before the National Assembly, it actually was a draft that came out of a broad range of consultations. However, even then, the portfolio committee in the National Assembly took the responsibility that they have as law-makers. They opened up the process of listening to the members of the communities, giving them more chances to actually raise their view with the committee where, as legislators, the portfolio committee could listen to their views and see how best they could accommodate those views.

Again, in the NCOP, we know that there has been a number of consultations, either directly or indirectly, that has helped the process to improve on what it was. It is our view, Chairperson, that what we have now creates a balance and also serves as a basis to depart from our past and go into the future. As we all know, the road is still long, and I am sure you will be with us, and support us continuously. I thank you. [Applause.]

Rev P MOATSHE: Hon Chair, hon Minister, hon members of the select committee, hon members of this House and members of the department, allow me to place before you documents - that you have on your desk - which are amendments we have tabled before this House, as a select committee, after applying for permission from the presiding officers. The permission was granted that this amendment could be placed before the House for acceptance. I hope that this House will accept this move. Modulasetilo, molaotlhomo oo puo e leng ka ga ona gompieno mo Ntlong eno ya peomolao, o phirimeletswe ke letsatsi ka gonne Lefapha la Temothuo le Merero ya tsa Mafatshe le tsere dingwaga di le robongwe go kwala molaotlhomo o wa mafatshe a selegae. Batho ba ne ba beile diatla mo diphatleng ba letile go o amogela. Baagi ba ba neng ba welwa ke tlhabololo tlhaolele, ba ne ba tlhoka dithata mo mafatsheng a ba neng ba le mo go ona. Jaanong ba ka se tlhola ba kaiwa jaaka bathokadithata le batswakwa mo lefatsheng la borraabona. (Translation of Setswana paragraphs follows.)

[Chairperson, the Bill that is being debated today in this legislative House is long overdue, because the Department of Agriculture and Land Affairs has taken nine years to compose it, as it deals with the subject of rural land ownership.

People have been waiting since then for this legislation. People who were adversely affected by separate development needed to have the rights to the land on which they had resided. Now they will never again be regarded as people without any rights and as foreigners in the land of their forefathers.]

Allow me to show the House how people in the rural areas have been denied the right to own the land they use and occupy. They have been degraded to second class citizens in the country of their own birth. It was the Black Land Act of 1913 which pushed black people to reside in areas that were reserved for their exclusive occupation and use, which later became homelands.

In these homelands only 13% of land was allocated to 70% of the South African population who were living in these areas. Thus these areas are characterised by overcrowding and poverty. People in the former homelands are struggling to produce food for their own survival. They were marginalised, pushed to the periphery to be unnoticed, and they died unnoticed.

Wat die situasie vererger het, was die feit dat hoewel swartmense sedert 1913 gemeenskaplike grond besit en gebruik het, hulle nie toegelaat is om die grond op hulle name te laat registreer nie. In stede daarvan is die grond geregistreer as staatsgrond, of geregistreer as grond gehou deur die Minister van Grondsake, of dit is in trust gehou vir spesifieke gemeenskappe.

Hoewel daar ‘n oortuigende aantal mense is wat leef in die sogenaamde gemeenskaplike areas, en wat dus geen besitreg op die grond het nie, is daar steeds diegene wat onseker is of hulle besitreg het al dan nie. Dit alles veroorsaak groot onsekerheid oor die status van grondregte, wat vererger word deur die gebrek aan beheer oor die grond in gemeenskaplike areas. (Translation of Afrikaans paragraphs follows.)

[What aggravated the situation was the fact that although black people have possessed and used communal land since 1913, they were not allowed to have the land registered in their names. Instead the land was registered as state land, or as land held by the Minister of Land Affairs, or it was held in trust for specific communities.

Though there are a convincing number of people living in the so-called communal areas, and who therefore have no tenure of the land, there are still those who are uncertain whether they have tenure or not. All this causes great uncertainty about the status of land rights, which is exacerbated by the lack of control over the land in communal areas.]

Women’s rights are extremely important. One of the most important provisions of this Bill is to protect the land tenure rights of the most vulnerable groups in our society, like women and children-headed households. It also ensures that these groups participate in decision- making processes through their representation in the Land Rights Board and land administration committees.

Women, particularly African women, have been severely marginalised with regards to access to land. Customary laws and traditional practices denied women the right to be allocated land in their personal capacity. Women’s tenure was linked to their status in relation to male members as wives, mothers, sisters and daughters. Women often became victims of forced evictions when they got divorced or separated from their husbands.

What this Bill is doing is changing that. It gives effect to a constitutional entitlement to secure tenure to persons, including women. The Bill confers the right of ownership of land on women in their own right. This means that single women, for the first time, are given the opportunity to have land title deeds of their own. They will not have to depend on the mercy of a male relative to farm and feed their families. This should be applauded, considering the fact that there is a large number of female-headed households in these areas.

The Bill also entitles women to the same legally secure tenure rights and benefits to land as men. It makes it compulsory for old order rights to be held by both spouses in marriage, and thus, in terms of the Bill, they will be transferred to new order rights in the name of both parties. It does not matter whether they are married by means of a customary marriage. So, the criticism that this Bill confers second class status on women is baseless. Instead, women are getting the same status as men.

Through this Bill, for the first time, women will be able to use their title deeds as security for bank loans, which they can use to develop their land or farm more efficiently. This will eradicate poverty and ensure the economic emancipation of women, as women form the backbone of our communities, and many are heading their households. Having new order rights will benefit the whole community. Those who still question the protection of women’s rights in the Bill should understand that women’s rights are already enshrined in our Constitution, and the Constitution takes precedence over any legislation.

The Bill went further to entrench the women’s representation in institutions which administer and help in the use of land, such as the Land Rights Board and the land administration committees. This ensures that women would have a direct say on how their land is administered. According to the Bill, at least a third of the total membership of a land administration committee and the Land Rights Board must be women. People need to understand that 30% is just a minimum; there can be more. What is needed is for women organisations to work together with Government to educate women in communal areas on their rights so that they can fully participate in these structures.

Traditional councils should act as land administration committees in terms of this Bill. A number of people are opposed to this arrangement on the basis that the institution of traditional leadership is undemocratic, very corrupt and will abuse this power. People need to understand that the role played by traditional leadership in land issues has been part of the African culture for a long time. That could not be wished away by this Bill.

What the Bill has successfully done is to strike a balance between the community norms and traditions, and our democratic ethos and practices. Democracy should not be used to undermine our culture as Africans, but rather to improve our cultural institutions and make them accountable.

It is important to note that it is not within the jurisdiction of this Bill to change the composition of traditional councils. This Bill is only there to provide a framework of how traditional councils, acting as land administration committees, should function in administering land owned by communities.

Coming to provision of services, what I should acknowledge is that this Bill places local government at the centre of the development arena in land reform, particularly in section 37, where the Bill states that -

… no law must prohibit a municipality from providing services and development infrastructure and from performing its constitutional functions on communal land however held or owned.

This proves the fact that through this Bill Government is not abdicating its responsibility to provide services in communal areas, as other people believe.

As already said by the Minister: There are other people who feel that this Bill was not refined to the bone, and that it should have been kept back for some time so that people could make their input. We understand their concerns, but I believe that half a loaf is better than no bread, because the people of this country have waited for the past 10 years to receive this piece of legislation. Therefore, if it is implemented, it implies, like any legislation, that it can be returned to our tables to be looked at again and to be refined to the marrow.

In conclusion, let me say that through this Bill the ANC-led Government has shown its commitment to return the land to its rightful owners, the community. Mayibuye iAfrika is being realised today.

We have shown, yet again, that we aspire to equal treatment for all South Africans and believe in full participation of communities in decision- making processes that affect their lives. Through this Bill there will be no more discrimination against women and rural communities in terms of access to land, and they will have tenure rights like any South African. Therefore, I place this Bill before this House for acceptance. I thank you. [Applause.]

Ms C BOTHA: Deputy Chair, the objects of this Bill are set out very clearly in the memorandum. It aims to formalise the African traditional systems of land tenure within the framework of the Constitution. This it does by legally securing tenure rights of communities and people within the tenure system of their choice. The transfer of ownership from the state to resident communities is a major advance away from a century of inequity. It coincides with the thinking propounded by the development economist, Hernand de Soto, based on his studies in South America wherein he recognised the fact that people who are often considered unbankable - to use a common phrase - because they do not have formally registered assets, may indeed be very bankable if their assets were registered.

This Bill has been very substantially amended, compared to the original Bill which was presented last year and which was widely condemned by virtually all the political parties here and certainly by all of the civil society organisations which have made it their main concern to see that women are treated fairly in the new South Africa. This disjuncture between traditional law and practice with regard to women and the wonderful equality achieved for women in the Constitution, has long been a subject of debate. Thanks to the considerable effort of South African women from all walks of life, and it may surprise you to know that the hon Minister and myself worked very closely to realise this ideal. [Laughter.]

The Constitution leaves no ambiguity as to the position of women. In nothing may they be considered to be second class citizens. The equality clause trumps all, but law and practice seem to divide very comfortably. The background statement in this Bill spells out that existing paternalistic systems prevent social and economic advancement in those areas despite our modern Constitution. It is not clear how individual people, particularly women, will be able to effectively communicate and exercise the choice provided for them in the Bill, especially when this choice does not coincide with that of the entrenched establishment of the community.

It therefore remains an open question whether the latent paternalism that exists won’t continue to stall social and economic advancement. Here I want to turn to what happened in this House yesterday as an example of actions which fuel my fears that women still have a long, hard fight for actual equality ahead of them. I have been asking ad nauseam, you may say, for action on the shameful case of Ambassador Mashabane who seems impervious to the charges of sexual harassment which have successfully been brought against him. [Interjections.] Despite all our protestations of equality for women, he seems more equal than others and to be able to move beyond the law. However, there was another incident yesterday which is really cause for concern.

The hon Minister Skweyiya, who is roundly admired for his dogged determination to expand social support to the poor, was fulsomely praised by one of our members, the hon Gouws, for these very attributes. Instead of responding to her speech, as can be expected from any politician, he then descended to totally unnecessay levels of chauvinism and chose to attack the member in her personal capacity … [Interjections.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M J Mahlangu): Order! Order! Hon member, can we come back to the Bill that we are debating. If you make mention of that in passing I have no problem, but that’s not the subject of the debate. Continue.

Ms C BOTHA: I am pointing out exactly the implications that this Bill has for women. [Interjections.]

… inferring that she, a mere woman, could not have written her speech herself. I want to underscore this approach by male members of Parliament by quoting my own experience in the Free State Legislature where the FF has repeatedly used the same statement towards me. When it comes from them I am not surprised, as they, by nature, are very authoritarian and paternalistic, but when it comes from the ANC then I am really worried. [Interjections.]

What guarantee have women in the communal areas, away from the public eye, that they will not be the target of similar action if men in power tend to conspire, despite our wonderful laws, to do them down. What guarantees have we, considering the lack of action against … [Interjections.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M J Mahlangu): Order! Hon member?

Ms N C KONDLO: Chairperson, on a point of order: Is the hon member prepared to take a question?

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M J Mahlangu): Ms Botha, are you prepared to take a question?

Ms C S BOTHA: If I have time at the end of my speech. Thank you. What guarantees have we, considering the lack of action against men like Mashabane, that the men in their powerful traditional positions will not band together and undermine these tenuous advances?

Hon colleagues, I call on you to give serious thought to this situation. The DA supports this Bill, but that does not mean that we need not retain vigilance over its implementation. This is not just a test case for women in communal areas. It speaks to the rights of all of us.

Mr K D S DURR: Chair, I would like to say to the hon member who just sat down that I can give her the assurance today that an ACDP government will protect her rights. [Interjections.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M J Mahlangu): Order! Order! Continue, Mr Durr.

Mr K D S DURR: Mr Chairman, that Titanic is going to sink. Can I just say that I thought it was a brilliant speech by my hon friend, Rev Moatshe. I think it’s the best speech he ever made in this House actually, and I am very pleased to say that. I recognise this Bill as a product of long and hard negotiation, and I want to congratulate the Minister on the outcome of what I know to be a very difficult negotiation. We welcome the Bill, because it’s absolutely vital that we address these issues and commence the process of building up these former homeland areas as these areas are the highest potential, most fertile, highest rainfall areas in South Africa with the highest agricultural and other potential.

The issues are complex and there are no quick-fix answers. What we are sure of is that if we are to succeed, the current homeland leaders will have to buy into the process for the successful changes that we know must take place. We simply cannot go on with more or less of the same. However, what I also recognise is that what we have put in place is not a solution, but a process towards the solution, and that it is important that that process continues in a dynamic way. I believe we need, Minister, more imaginative answers to the developmental challenges which are also opportunities in those areas. We need, in my view, to make several psychological and material leaps. We need to move from subsistence agriculture to high-value organic food production primarily for export. We have the soils, the pool of labour, the climate and very often the rainfall.

There have been successes in the past with tea and coffee plantations and timber, but there are far higher value crop opportunities. There will have to be a technology transfer and perhaps joint marketing and management arrangements. The growing of herbs, rare spices, flowers, as well as high- value fruits in related agro-industrial activities downstream come to mind. Also Minister, we should seek to shorten and jump the development chain in these areas, attracting high-value and high labour content industries. Not only that, but perhaps we can consider a labour regulation holiday for those areas and perhaps even a tax holiday. I believe the Government should waive certain minimum wage and labour restrictions in these areas and give them a labour regulatory holiday for, say, 20 years to improve their comparative advantages and to give them an advantage over other areas.

However, as I have said earlier, traditional leaders must be made partners in this reformation. They must feel inspired and not threatened by what we are proposing to do. Finally, the greatest engine of reform and growth will, of course, be all of the good reasons that my colleagues have set out, namely to unlock the value of the land and to make people landowners and home owners in these rural areas. Everybody will be amazed by the effect of this - holding of one’s own title deeds, restoration of land rights, the extension of property rights to women. These are all fundamentally very, very important things. It will give homeowners security of tenure and put them on the first rung of the value chain. Nothing will do more for wealth creation in those areas than extending property rights. The reformation of these areas will be and should be a process, as I have said, and not an event. It’s a new beginning and an exciting one that can benefit the community and benefit our whole country. I wish you well with this legislation, Minister. The ACDP supports the legislation.

Mnr J HORNE: Agb Voorsitter, hierdie wet is ‘n beginpunt om die probleem van die grond wat ter sprake is, op te los. Dit is hoogstens ‘n begin om die proses waardeur hoëpotensiaalgrond bestuur word te ontwikkel om mettertyd sy volle potensiaal te bereik.

Gebruikers van die grond het tot op hede geen sekerheid gehad nie. Dit het tot gevolg gehad dat broodnodige kapitaalbesteding nie plaasgevind het nie.

Dit is een van die redes waarom daar so baie skade aan die bodem aangerig is, veral omdat grondvoorligting nie aan die opkomende boere voorsien is nie. Die Nuwe NP hoop dat ander elemente wat nodig is om armoede te help verlig, spoedig in werking gestel sal word.

Kommunale boerdery was tot op hede nog nie ‘n algehele sukses nie. Om van kommunale boerdery ‘n sukses te maak, vereis ‘n baie sterk wil, selfdissipiline en liefde vir die grond. Sonder hierdie eienskappe is ‘n mens op ‘n pad na êrens, maar in werklikheid is jy na nêrens heen onderweg.

Dit is baie goed dat trustgronde onder gemeenskapsrade se jurisdiksie kom, want hulle sal kan toesien dat individue gebruiksreg van die grond bekom.

Tradisionele leiers se grond moet gemeenskapsgrond word sodat die gemeenskap kan besluit oor die gebruiksreg daarvan. As dit kom by die toekenning van grond, het tradisionele leiers se magte in die verlede tot misbruik gelei. Dit sal ‘n groot fout wees indien tradisionele leiers nie betrek word nie. Hulle het groot invloed, en met die regte gebruik van hulle invloed, kan hulle help om die proses suksesvol te maak.

Die kleinboer moet sekerheid kry oor die gebruik van die grond. Dit is die enigste sekerheid wat hy kan gebruik om byvoorbeeld finansiering te kry. Hy het geld nodig om sy insetkoste te betaal. Ek wil weer eens pleit dat ‘n skema geskep word wat bestaansboere, sowel as kleinboere, kan bystaan. Die praktyk het bewys dat opkomende boere geen finansiële hulp by algemene bankdienste kry nie, omdat sekerheid eerste van hulle gevra word.

Daar kan dalk ook bepaal word dat hulle vir ‘n jaar of twee geen rente betaal nie. Daarna moet hulle ‘n lae rentekoersprofiel handhaaf sodat die plafon vir die produksieleningsrekening nie oor ‘n tydperk van ‘n paar maande nie, maar wel na etlike jare bereik kan word.

Vroueregte kry die nodige aandag in die wetgewing, maar dit mag nodig wees om dit in die praktyk vorentoe verder te verbeter. Die staat het ‘n geleentheid om sy grondhervormingsdoelwitte ‘n groot hupstoot te gee. Hierdie wet leen hom daartoe, want hulle wat die grond bewoon het, die regmatige eienaars, is nou wetregtelik die eienaars. Hierdie wet bied ‘n uitdaging aan die Minister en die Departement van Landbou om dit wat hulle reeds oor die afgelope tien jaar gedoen het, verder in ‘n sukses te omskep. Dit is belangrik om te onthou dat Suid-Afrika oor goeie, sowel as swak landboutoestande beskik. Dit is daarom belangrik dat die staat dit sal oorweeg om staatsubsidies aan die landbou te voorsien, anders sal die opkomende boere nie die mas opkom nie.

Suid-Afrika is van die weinige lande in die wêreld wat surplus voedsel produseer en uitvoer. Hierdie wetgewing leen hom daartoe om produksie in hierdie land te verhoog. Die Nuwe NP steun die wet as ‘n beginpunt, en wens die departement en die Regering in sy geheel sukses toe met die uitvoering daarvan. Ek dank u. [Applous.] (Translation of Afrikaans speech follows.)

[Mr J HORNE: Hon Chairperson, this Act is a starting point to resolve the problem of the land under discussion. It is at most a starting point to develop the process through which high potential land would be managed to eventually reach its full potential.

Up to now, users of the land have had no security. This led to the fact that no imperative capital spending took place.

This is one of the reasons why so much damage has been done to the soil, especially since emerging farmers were never briefed on how to use the land. The New NP hopes that other elements necessary for poverty alleviation will soon be put in place.

Up to now, communal farming has not been a resounding success. To make a success out of communal farming requires a strong will, self-discipline and a passion for the soil. Without these characteristics you are on your way to somewhere, but you are in reality heading for nowhere.

It is a good thing that trust land will fall under the jurisdiction of community councils, because they will be able to ensure that individuals will get the right of use of the land.

Traditional leaders’ land must become community land in order for the community to decide on the right of use thereof. Traditional leaders’ powers, as far as the allocation of land is concerned, led to abuse in the past. It will be a big mistake if traditional leaders are not involved. They have huge influence, and with the right application of their influence, they can help the process to become a success.

The small farmer must get security of tenure over the land. This is the only security which he can use to obtain, for example, finance. He needs money to pay for his start-up costs. I would once again appeal that a scheme be established, which could assist subsistence farmers, as well as small farmers. It has been proved that emerging farmers do not get any financial assistance at general banking services, because the first thing required from them is security.

Perhaps it can also be determined that they do not pay interest for a year or two, whereafter they must maintain a low interest profile so that the ceiling for the production loan account can be reached, not within a time span of a few months, but after several years.

The rights of women do get the necessary attention in this piece of legislation, but it may be necessary in the future to further improve this in practice. The state has an opportunity to give its land reform goals a huge boost. This Act lends itself to this, because those who lived on the land, the rightful owners, are now legitimately the owners. This Act poses a challenge to the Minister and Department of Agriculture to change what they already have done over the past ten years into a success. It is important to realise that South Africa has good and bad agricultural conditions. For this reason, it is important that the state considers providing state subsidies to agriculture, or else emerging farmers will never be able to survive.

South Africa is one of the few countries in the world that produces and exports surplus food. This legislation lends itself to increased production in this country.

The New NP supports the legislation as a starting point and wishes the department and the Government as a whole all of the best in the implementation thereof. I thank you. [Applause.]]

Mr R M NYAKANE: Chair, allow me to approach my debate in this fashion: God created man out of dust, which is part of the soil - land, of course. When he dies, his body will be returned to the soil.

We are told that Adam was the first man ever created on this planet. God put him in the Garden of Eden which was full of assorted fruits and vegetables, birds, animals, insects, you name it. He granted him ownership of this land, authority and control over everything for the sustenance of his life. Therefore land ownership has since become a crucial issue.

The racially discriminatory laws, such as the 1913 and 1936 Land Acts, were merely manifestations of man’s greed for the land. These laws created a situation whereby land rights were inequitably accessed by the citizens of this country.

This piece of legislation we are dealing with today, together with others already passed by this House, such as the Extension of Security of Tenure Land Act, land redistribution and restitution laws are imperative for the redress of past unjust practices. For transformation to take place, the passage of this legislation becomes, therefore, a must. Land ownership by a person means individual empowerment. Empowerment in this sense means that value will be added to the piece of his/her land, be it for residence or business purposes.

Most emerging farmers own plots which range on average from 5 to 50 hectares under the permission to occupy status. These plots can’t be pledged for collateral in circumstances where the farmer intends to secure a loan. Financial institutions only recognise title deeds. The intention of this Bill is therefore to, amongst other things, redress these anomalies.

The Black Administration Act of 1927 and the Black Authorities Act of 1951 have placed traditional authorities in a difficult position - a difficult position in the sense that a perception developed whereby tribal authorities have since laboured under the impression that they own the land, yet they were merely custodians of the land they occupied. The Government remained the sole owner of these trust lands. It was basically for this reason that the Ingonyama Trust was established in 1994.

Why do I raise these issues? Individual persons and emerging farmers in possession of PTO titles might face problems with the traditional authorities when they apply for the conversion of these PTOs into title deeds, because disloyalty to the tribal authority might ensue. Defaults in honouring tribal levies in favour of payment of property rates, which in turn offer services, could occur.

One other issue I need to raise is that there are probably millions of historically disadvantaged people who are subjects of the tribal authorities that are party to Ingonyama Trust land. Do these people stand an equal chance to convert their PTOs into title deeds?

There are a few farms under the Vankuna Tribal Authority near Tzaneen where I stay and come from. This tribe has bought farms such as Burgersdorp, Sedan and Juliesburg and the tribe is in possession of title deeds. What happens in the situation where a tribe, as well as the Ingonyama Trust, are unwilling to shed portions of their land for personal ownership?

I raise these issues because problems similar to these might crop up during the application of this legislation. Otherwise, the UDM has no reason to halt the process of transformation and we, therefore, support this Bill. Thank you. [Applause.]

Nkk J N VILAKAZI: Sihlalo ohloniphekileyo neNdlu yonke, Ngqongqoshe ohloniphekileyo womnyango, siwuthakasela kakhulu lo mthetho osezithebeni thina beqembu leNkatha yeNkululeko yeSizwe, i-IFP, futhi siyethemba ukuthi nabaholi bomdabu bazowuthokozela lo mthetho.

Amakhosi siwabone ehlangana eba yimbumba ekhuluma ngamalungelo awo emhlabeni wesizwe. Namhlanje sidinga lama lungelo okubhekela umhlaba ongaphansi kwawo amakhosi kanye nesizwe. Siyawabongela amakhosi umhlaba wonke eNingizimu Afrika ngokumela okungokwawo kwendabuko kuze kube manje. Thina beqembu leNkatha sidume ngakho ukwazisa amakhosi esizwe. Umhlaba ongaphansi kwawo amakhosi awuphathele isizwe, amasiko nokunye nokunye. Yingakho nje silithokozela kakhulu leli holide lamagugu esizwe elibuye libizwe nge-Heritage Day.

Lo mThethosivivinywa sibona ukuthi uzobhekelela abesifazane nabantwana ekuvikeleni isithunzi sabo nokuxhashazwa kwabo okungafanele okuqondene nokwabiwa komhlaba. Iqembu le-IFP liyavumelana nabomnyango uma bethi ukusebenza kahle kwalo mthetho kuncike ekubuyisweni komhlaba owahlwithwa kubanikazi bawo kungafanele. Siyabona ubuyiselwa kubanikazi bawo umhlaba, esethemba ukuthi kuzophothulwa maduze nje.

Esikushoyo nje ukuthi umhlaba okukhulunywa ngawo lapha uthinta indawo yamakhosi nabantu bawo, ibe vele phela inkosi iyinkosi ngabantu. Yisiko lelo. Isizwe esingenamasiko asazi lapho siqhamuka khona nalapho siya khona. Umthetho uyadingeka ngaso sonke isikhathi ukubhekela amalungelo abantu ezindaweni abahlezi kuzo noma ngabe isemakhaya noma emadolobheni.

Uzobuye lo mthetho usebenze kulezi zindawo usebenzisa umThethosisekelo wezwe, uqinisa ubunikazi. Lapha ubhekela ngisho nabesifazane, abakhubazekile kanye nentsha yethu. Lo mthetho siwushayela ihlombe ngoba kuzokwenziwa into efanayo izwe lonke, kuhluke kuphela kokungamagugu ethu namasiko ethu kanjalo kanjalo. Akukho soka lingenasici, kusemhlabeni lapha. Kuyobonakala ususebenza lo mthetho ukuthi akukho yini okushayisanayo. Kuhle phela ngoba umthetho uyachibiyelwa uma kunesidingo esibalulekile. Egameni le-IFP sithi siyawemukela lo mthetho, ikakhulu ngoba yithina ebesilokhu sikhale njalo ngamalungelo amakhosi nomhlaba ukuthi akucaciswe phela kumThethosisekelo wezwe. [Ubuwelewele.]

Thina be-IFP sithi siyawusekela. [Ubuwelewele.] Amakhosi awendabuko, amele amalungelo abantu futhi amele abantu. [Ubuwelewele.] Noma ningamemeza, amakhosi amele abantu, niyakwemukela noma anikwemukeli. [Ubuwelewele.] Ngiyabonga. (Translation of isiZulu paragraphs follows.)

[Mrs J N VILAKAZI: Hon Chairperson and the House at large, hon Minister of the department, we as the IFP applaud this Bill under discussion and we hope that the traditional leaders will welcome it.

We have seen traditional leaders coming together in solidarity to discuss their land rights in the country. Today we need these rights to keep the land in custody of traditional leaders and the nation. We congratulate all traditional leaders throughout the country of South Africa for having stood up for what has been naturally theirs until today.

We, as the IFP, are well known for holding traditional leaders in high esteem. The traditional leaders keep the land under their jurisdiction and protect the culture on behalf of the nation. That is why we celebrate the Heritage Day holiday.

We look at this Bill as a means of protecting the dignity of women and children against abuse when it comes to matters relating to land distribution.

The IFP agrees with the departmental officials when they say that proper functioning of this law depends on the return of land which was unfairly confiscated from its rightful owners. We see land being returned to its owners and we hope this will be finalised in the near future.

All that we are saying is that the land in question involves land that belongs to traditional leaders and their communities. After all, the king owes his throne to the people. That is how culture operates. A nation without culture has no knowledge of where it comes from and where it is going.

The rule of law is always essential to safeguard people’s rights, whether they reside in rural areas or in the cities.

This law will also operate in these places in accordance with the country’s Constitution to enforce ownership. In this case it even provides for women, the disabled and our youth.

We applaud this law, because it will be applied uniformly throughout the country. There will be different variations in terms of values, culture, etc.

Nothing is perfect in this world. When this law becomes operational, only then will some hiccups be identified, which is not a problem because a law can always be amended if there is a serious need to do so.

We, on behalf of the IFP, support this Bill, especially because we are the ones who have always been complaining about the rights of traditional leaders and about land, demanding that the Constitution should clarify these issues.]

The DEPUTY CHAIRPERSON OF THE NCOP (Mr M J Mahlangu): Order! [Interjections.] Order! Order!

Mr M A SULLIMAN: Chairperson, Comrade Minister and hon members, as correctly stated by President Thabo Mbeki in his statement of 8 January, the ANC-led Government has laid the basis in the past 10 years for further improvement of the system of governance to ensure that it serves the people of South Africa even more effectively and efficiently and that, through a system of participatory governance, it should reflect the translation into reality of the perspective that the people shall govern.

The Bill before us today, hon members, is one of the examples of those perspectives on reality that Government has set up to transform and translate our people into governing themselves. This is the Government’s response to apartheid legacies under which mostly blacks in South Africa occupied a very low percentage of our land.

What this Bill does, is to give secure tenure rights to communities and individuals living in communal areas. For the first time, through this Bill, people living in the former homelands will have an opportunity to own their land like any other South African citizen. Through this Bill their tenure rights will be protected by law and no one will take away their land without their consent. If the owner gives consent, he or she has to be fully compensated.

The community, as the rightful owner of communal land, will have all the rights, responsibilities and obligations associated with ownership. It will be able to use the land for the benefit of the community. Registration of land tenure rights in the name of communities and individuals will provide an enabling environment for the socioeconomic development in communal land areas and the participation of communities and persons in the mainstream economy in order to create wealth, income and job opportunities in those areas.

The Bill itself realises the importance of development in communal areas. Section 28(1)(a) gives the Land Rights Board the responsibility to advise and assist the community generally and, in particular, with matters relating to sustainable land ownership and use.

We cannot talk about development in rural areas without empowering the poor, and no empowerment will take place without security of tenure. It is for this reason that this Bill is very important and has to be passed by this august House.

This Bill also gives people in the communal areas the opportunity to decide on how they want their land to be registered or administered. They are given an opportunity to decide whether they want their land to be registered in the name of the community, the household, the family or an individual for full ownership. The intention is to provide people with a range of choices to choose the one they are comfortable with and to design the system to be flexible to accommodate change over time.

Furthermore, the communities are also given a choice of how their land has to be administered. They are the ones who develop community rules which serve as guidelines to the land administration committee, which is given a responsibility by this Bill to administer the land on behalf of the community.

I should emphasise the fact that the community owns the land, and that the land administration is there just to administer the land. If the community is not happy with the land administration committee, they have the right to relieve the committee of its duties in accordance with community rules.

All this proves the fact that the ANC Government is committed to allow people to make their decisions on matters that affect them directly. We do not just decide for people as the previous government did.

Hon members, it should be borne in mind - Mrs Vilakazi, she is not here now

• that at all times that the ANC respects the institution of traditional leadership and recognises that it has a big role to play in the advancement of the interests of our people within the context of a democratic setting. That is why at all times there was an ongoing consultation process with the traditional leadership about this Bill, working with them also in a common effort to improve the lives of our people in those rural areas.

In conclusion, we want to congratulate the hon Minister and officials in the department for working very closely with the select committee on this particular Bill. We called them so many times and they never refused to come and assist us.

The introduction of this Bill is a delivery by the ANC Government on promises it made to the people of South Africa of, amongst other things, creating a better life for all. I would like to move for the adoption of this particular Bill. [Applause.]

The MINISTER FOR AGRICULTURE AND LAND AFFAIRS: Thank you very much, hon Chairperson and hon members, for participating in the debate and also to those who were giving affirmation and applause for what we have done.

I would like to say, hon Botha, that indeed you are right. We worked together in the women’s coalition; you were my Deputy Secretary then. I just hope that one day you will come back home to the ANC. [Interjections.] Currently, I think, you are just on the road between two points. Maybe it’s not bad, but at some stage you’ll have to reconsider where you are. From the way in which you participated in this debat today, except for some of the references that you made when you diverted, I actually thought that maybe at the end you were going to say you are now joining the ANC. Angibonge kuwe Mphatsisihlalo nakuwo onkhe emalunga, ngisho kutsi lendlela lesikhulume ngayo nalesibeke ngayo tincomo tekutsi ngabe yini loku lesifuna kutsi kwenteke. Kutasisita kutsi loMtsetfosivivinyo nase ungumtsetfo wente kutsi ukwati kuvikela kahle emalungelo ebantfu ngekwemihlaba.

Make Vilakazi-ke ekukhulumeni kwakhe uye wakhuluma ngekutsi bona njengeliCembu leNkatha, kudala vele bakhulumela emakhosi nebunikati bemihlaba yawo. Cha, ngiyamuva-ke lapho. Kodvwa mine-ke njengelilunga laka- ANC, nome ngiyiNdvuna ngifuna kusho kutsi tsine asikacali nyalo. Kusukela nga 1912 nakusungulwa lenhlangano lebitwa ngekutsi yi-ANC kwakukhona emakhosi kanye nabo bonkhe bantfu.

Ngikhuluma nje iNkhosi, babe Luthuli, ingulomunye webantfu labebabaholi balenhlangano. Asishongo kutsi ngobe yiNkhosi yeluhlanga akukafaneli kutsi abe ngumholi wetfu tsine tifundziswa netitatanyiswa. Sasimhlonipha njengekwesikhundla sakhe kanye nangebuholi bakhe.

Banyenti labanye baholi labangemakhosi lengingababala, ngisho nakhona lapha ePhalamende kanye nakuleNdlu yaka-NCOP. Tsine asikhulumi nje ngemlomo kuphela kodvwa sibeke lamanyenti emakhosi futsi siyawahlonipha, akhuluma ngekukhululeka nakalapha ka-ANC. Ngisho nalapho bangasavumelani natsi khona singete sasho kubo kutsi njengobe senehlukene natsi tsine-ANC sesiyanilahla njengobe ningemakhosi. Siyaye sikhulumisane nabo sifakane imilomo kutsi cha, asibonisaneni majaha. Kitsi lokubalulekile sive bese tsine silandzela ngemuva. [Kuhlaba lulwimi.]

Lokunye lokubalulekile mhlawumbe lengingakukhumbuta Make Vilakati kutsi tsine singu-ANC; sakhulume ngisho nakunguyazane yetfu, nga 1997, satsi njengobe sikhulumile kuMtsetfosisekelo, wanga 1994 sitakwenta njani-ke njengenhlangano kutsi sicocisane sikwati nekufaka kwasemculwini wetfu waka- ANC kubaluleka kwendzawo nesigaba semakhosi.

Nangingatsi nje pheceleti ngisebentise lulwimi lwakaGeorge, ngesincumo (resolution) lesinye saka-ANC sanga 1997, sakubeka ngalokusebaleni kutimisela kwetfu kutsi bunikati, kumbe emandla ebukhosi abonelelwe emtsetfweni kwendlula uMtsetfosisekelo. Loku-ke sikwentile.

Siyati kutsi bakhona labanye bantfu labebatsi sitsatsa kancane, asenti kahle, kodvwa-ke njengenhlangano leyatiko kutsi kubaluleke kangakanani kufaka wonkhe umuntfu, nguloyo aniketwe litfuba. Ngiko nje sitsetse lesikhatsi lesidze kangaka kuze sakhe umgwacosiseko lobeka kahle kutsi ngabe emandla ebukhosi kuledemokrasi lesikhuluma ngayo ayini. (Translation of Siswati paragraphs follows.)

[I thank you, Chairperson, and all members. I also want to say that the manner in which we spoke and presented our proposals with regard to what it is exactly that we want to be done, will help us when the Bill becomes law, because it will be able to protect the people with regard to land tenure rights.

In her speech, Mrs Vilakazi spoke abouth the fact that it’s a long time since they, as the IFP, started to speak about the ownership of land by the traditional leaders. True, I agree with that. However, I, as a member of the ANC, though I am a Minister, want to point out that we, the organisation, did not start yesterday. We started in 1912, and at the inception of the ANC there were kings, chiefs and everybody.

I would mention only one, Chief Luthuli, who was one of our leaders of the ANC. We did not reject him just because he was a natural chief or say he could not lead us as we are the learned and highly respected. We respected him for his position and leadership skills.

There are many other leaders who are kings whom I can mention, even here in Parliament and in this House, the NCOP. We do not just pay lip service; we have appointed many chiefs and kings and we respect them. They speak freely in our midst as the ANC. Even when they don’t agree with us, we don’t say to them that since they have diverted from us, as the ANC, we will also reject them because of their status as kings or chiefs. We call them to our midst and sit down with them and discuss these issues. What is most important to us, are the communities that they lead, and we follow. [Interjections.]

One other important thing about which I should maybe remind you, Mrs Vilakazi, is that we in the ANC spoke in our caucus meetings in 1997, and we said since we have spoken on it in our interim Constitution of 1994, what are we as a party going to do to discuss and include the importance of the kings’ portfolio in our Constitution?

If I may speak in English, I wish to say one of the resolutions of the ANC in 1997 clearly stated our determination that the ownership or the powers of the traditional leaders should be catered for in the law, even over the constitutional powers. That is what we did.

We know that there are many people who were saying we are slow and we don’t do things properly, but this party knows how important it is to involve everybody, giving opportunities to all, and that is why it took us so long to come up with a procedure that clearly stated how and what the role of the traditional leadership in our democracy is that is so widely spoken about.]

We did this, not because we were or wanted to be fashionable, but because we believed that the role of traditional institutions in our democracy is very critical for growth and development. Also, we have unashamedly said that when the apartheid regime took power, they actually interfered with the role of traditional leaders and the essence of who they are. They even prostituted our customs because, as we know, there have been many instances, we can all agree in this House, where things have not gone according to what our traditional customs are.

Therefore, part of the White Paper on Traditional Leadership was to really redefine in accordance with our custom the role and place of a traditional system in our society and thereby define the role and powers of the traditional leaders in our system. Mrs Vilakazi, you have said correctly that the role of traditional leaders is intertwined with their people. Therefore, when they hold land in trust, they hold it on behalf of the people; it is not theirs. Therefore, what this means is that the authority vests with the communities and their leaders. It’s similar with all of us as members of our parties - we may be elected representatives, but we don’t derive our powers out of ourselves, but out of those members and communities that we represent.

Therefore, the manner in which we crafted the Bill was done in such a way that it reflects this relationship. It is for that reason that we make sure that even if it might be an accepted norm, we also clearly define and protect the rights of all, while at the same time not undermining the role and the leadership responsibility of traditional leadership in those communities. That is why, hon Durr, we have sought not to antagonise the traditional leadership in this Bill. We have sought to hold a view that brings them into the equation.

I think it is important for us to share that the process, particularly to consult and work with traditional leadership, was a long one because, indeed, we did not want to create tensions and conflicts in those communities.

I want to say that even the amakhosi acknowledged that there is a need for democratisation within their institution. They also acknowledged that there is a lot of work that we will have to do collectively to ensure that we can democratise the institution of traditional leadership. Also, they didn’t just say it in words; they reflected that through give and take.

We all know that not all the elements that are in the Bill are acceptable to traditional leadership. I am sure my chief here from the ANC would have loved the Bill; he would have loved to have had all the powers to decide who becomes members of the administrative structures, but we had to tamper with some of these expectations. We also had to listen to the communities and civil society to ensure that we created a balance. At the same time, as hon members have said, one of the challenges, like any challenge in law, is when it comes to the implementation of the Bill. How do we guard against the issues that hon Botha has raised to ensure that the participation of women in those structures is affirmed? We deal with issues of chauvinism where it arises, but we also empower those women through capacities to ensure that they can effectively do their duty.

You will know, hon members, that even in this House and in the National Assembly, when women in their numbers came to Parliament for the first time in 1994 to be part of the public representatives, it was not an easy thing, even amongst our male comrades and patriots. It took some time for them to accept that things have changed. I think the way in which women have excelled in this Parliament and in public society has clearly indicated that there is a positive element in our Constitution that accepted gender equity.

It is our responsibility as women and men in this legislature to ensure that when we go back to our constituencies, we have to assist the traditional councils, the administrative committees and the women’s organisations so that they can give the necessary support to the members who will participate in these structures.

On the issue that Mr Nyakane raised about whether or not the people who are under Ingonyama Trust land will be able to convert, I want to assure you that, in the discussions with the board and Isilo himself, they were in full support of what we are saying in this legislation.

I want to cite just a few examples. If you look at some of the land restitution claims that have been in the Ingonyama Trust land such as Mbangweni, Mbilamabaso, in KwaZulu-Natal, the Ingonyama Trust never stood in the way of those communities to get their land in title.

If you look at the Ingonyama Trust Act, even as it stands today, one of the provisions of that Act was to transfer the land to the respective communities. Therefore, in my view, I don’t foresee that there would be difficulties in that regard.

You also raised a question regarding whether or not farmers or small farmers and other individuals who want to convert to freehold title will be allowed to do so in those communities. I actually would say, in my view, given what we’ve seen in the restitution cases, that even where land has been transferred, there has been an agreement on demarcation of that land to households or homesteads where people will have the full rights to their land. As you yourself said, this is a process towards a solution - I think it was Durr who said so. I think that this is a process towards the democratisation in rural communities.

However, that process will have to be affirmed by a change of attitude regarding our financial institutions. There should not be too much pressure, because there is a lot of fear amongst rural communities around the issue of having individual titles, namely that once such a title is transferred, people will go and borrow against their titles and then they would lose their land immediately. I think, as part of the democratisation of South Africa, and particularly with regards to issues of empowerment, we should ensure that, as members, in terms of the application of the charter as well as our legislation, we are able also to affect a change of mind amongst our financial institutions to look at new ways of creating confidence in those communities to be able to use their land as collateral.

I would also like to talk about the issues of property rates. I know you will still debate this Bill in this House, but I just want to assure members that, as part of the discussion in Cabinet and bilaterally with the Minister for local government, and as the Department of Land Affairs, we made a requisition that all people who have benefited as a result of land reform, including through the Communal Land Rights Bill, would have to be exempted from paying rates for a period of at least 10 years. We said that, because we believe it is important to assist those communities to develop and have an economic livelihood which will assist them to be able to advance the rates. It is therefore important that we do not abuse the system. I think uNkosi will assist me in order to ensure that some of our leaders don’t abuse that system. Some of our leaders may, once we have passed the Property Rates Bill, start to charge homesteads when they are excluded in terms of the law.

Part of the Government’s intervention, with regards to rural development, is that because we understand that unless we can build the capacities of those rural communities, where else are they going to get the resources to pay for the rates? So, that exemption for 10 years is to ensure that there are many interventions that we must do in this period, within 10 years, so that at the time when we expect those members to pay for rates, at least, they would have built some economic and asset base. It is our hope therefore that a lot of what we are doing today, is to lay the foundation for development. As you yourselves have said, unless we actually change the ownership patterns in our society by default, we are affecting development.

Tat’uMoatshe, I would like to thank you for your intervention because, indeed, as you say, this has helped us to affirm, in reality, not theoretically, what we have said as the ANC in terms of ensuring that we would secure the tenure rights of our citizens, regardless of who they are and where they are. This is the commitment we made and it’s a commitment we’ll continue to live by.

I would like to say, Chairperson, the role that you as a chair of the committee and your members have played in ensuring that you work with us in improving the quality of this Bill has made us feel that we do have legislators who can add value to the work that we as the executive do, so that, indeed, the product that our society receives, is a product that is improved.

Chairperson, I would like to thank your Whippery who have also worked with our committee and ourselves to ensure that we arrive at this point today. We also want to thank you for the leadership that you have given. I trust, therefore, that from now on our task will be to oversee the implementation of this Bill.

Mama uVilakazi usho kahle wathi akukho soka lingenasici. Ubuqinisile-ke mama ngoba impela noma yimuphi umthetho uma siwudlulisa lapha kule Ndlu kuye kuthi uma ngabe usubekwa kube khona izinto ezibonakalisayo ukuthi ukwenza nokucabanga akufani, bese-ke lokho kuveza isidingo sokuchibiyela.

Ngethemba ukuthi nathi, njengamalungu ale Ndlu, sizothi uma sesiwubeka lo mthetho uma kukhona lapho sibona khona ukuthi kunesici bese siphinda sibuya futhi kule Ndlu, sichibiyele. Lokho kuchibiyela kuyokwenza ukuthi ngempela amava ethu esesiwatholile asisize ukuthi senze lo mthetho usebenze ngendlela. Ngiyabonga, Sihlalo. [Ihlombe.] (Translation of isiZulu paragraphs follows.)

[The MINISTER FOR AGRICULTURE AND LAND AFFAIRS: Mrs Vilakazi, you put it well when you said that no one is an angel. You were very right, because with every Bill in this House that is passed and implemented, there are certain things that show that doing and thinking are not the same, and that raises the need to amend.

I trust that, as members of this House, when we implement this Bill and find out that it has flaws, we will come back to this House and amend it. Such amendments, together with the experience we have gained, will help us make this Bill work perfectly. Thank you, Chairperson. [Applause.]]

Debate concluded.

Proposed amendments agreed to.

Bill, subject to proposed amendments, agreed to in accordance with section 75 of the Constitution.

POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES BILL

(Consideration of Bill and of Report of ad hoc Select Committee on Powers and Privileges of Parliament thereon)

Mr T S SETONA: Hon Chairperson, hon members, fellow colleagues and comrades, the passage of this Bill today represents another important milestone in the history of our country and its people in the ongoing task of transforming and democratising our society. When our people spoke on that historic day, 27 April 1994, amongst others, they charged us, their representatives, to shape and craft a Constitution that will be based on, amongst others, the principles and values of transparency, accountability, democracy, nonsexism, nonracism and supremacy of law.

This august House heeded this mandate to the letter by crafting and drafting the most democratic and progressive Constitution that has not only inspired the people of our country but, more importantly, the nations beyond our borders and shores.

The adoption of the democratic Constitution on 8 May 1996, which repealed the Interim Constitution of 1993, set our country on an irreversable path towards breaking ranks with the past. This was a past in which Parliament was used as an instrument to banish Nomzamo Madikizela-Mandela to Brandfort, a past in which Parliament was an instrument to banish Robert Sobukwe.

We present this Bill this afternoon in the midst of the dawn of the third democratic elections, the decade of freedom and the 10th anniversary of our Parliament. We would, as a nation and country, fail in our duty if we forget that in the last days of his life, the late Comrade Peter Mokaba opted not to be with his family, friends and comrades in pursuit of this Bill that we are dealing with today.

This House must acknowledge that in the last days of his life, Peter Mokaba was a Chairperson of the National Assembly Ad Hoc Committee on Powers and Privileges. It is therefore fitting that in this debate we once again honour him for the contribution and leadership he provided to this Parliament and society in general.

This Bill took almost two years before being finalised, unlike many other Bills that we deal with. It was not an ordinary Bill, but a Bill deriving from the Constitution, the supreme law of our country. This Bill attempts to realign the present legislation on powers and privileges with the Constitution, and to repeal the obsolete laws that deal with the powers and privileges of Parliament.

Chapter one of the Bill deals with definitions. We in the committee have no objections to the definitions as they are stated. However, we acknowledge that there are chronological and alphabetical problems with the sections that deal with definitions. The view of the committee is that this matter must be handled at the level of the finalisation of the printing of the Bill. It is not a political matter. It belongs at that level.

Chapter two of the Bill provides for the description of the precincts of Parliament. It goes further by saying that the Speaker and Chairperson of the NCOP exercise joint control over Parliament. This should be done not in the legislation, but in the Standing Rules of Parliament. Members of security services enter into or remain in the precinct to perform policing functions only with the permission and under the authority of the Chairperson of the NCOP or the Speaker.

The execution and processing of warrants of arrest may also only be done with the permission of the Speaker or the Chairperson. This is the thrust of Chapter two of the Bill.

Chapter three deals with privileges, immunities, independence and protection of members and Parliament. The Constitution provides for freedom of speech in Parliament and provincial legislatures, subject to the Rules and Orders of Parliament. The Bill therefore does not deal with the form and manner in which this freedom is exercised. The committee recommends that the Rules of Parliament must provide for this particular provision, as the Constitution does not specifically provide for freedom of speech in the Joint Sitting of the Houses of Parliament. This is provided for in clause six. It is therefore recommended that this lacuna be referred to the Constitutional Review Committee. Since this is a constitutional matter, it cannot be addressed in the legislation or the Rules of Parliament.

A further lacuna is that the Constitution does not provide for a Deputy Minister having freedom of speech in a joint committee of the House. Another matter is that an official in the national or provincial executive has the freedom of speech in the NCOP and its committees, but not in the National Assembly. We believe that, constitutionally, this is an inconsistency. This matter should also be referred to the Constitutional Review Committee for consideration.

Clause seven deals with the prohibition of acts in respect of Parliament and members. Acts that are prohibited include the following: A person may not impede the functioning of Parliament; assault or threaten a member because of his or her conduct in the House; cause a disturbance whilst the House or a committee is in session, or fail to comply with an instruction by a duly authorised official.

Chapter eight deals with improper influencing of members. A person may not by fraud, intimidation, force, insult, or threat of any kind or by offer or promise of inducement or benefit influence another member in the performance of his or her duty. Influencing a member to be absent or compelling a member to be for or against a particular position is prohibited.

A member may not ask for or receive any fee, compensation, gift, reward, favour or benefit for voting in a particular manner or for not voting. Promoting or opposing anything pending or making a representation to the House or a committee is also prohibited.

Clause nine deals with attendance in court. In terms of this clause the Bill provides that a member cannot be compelled to attend a court hearing on a civil matter or as a witness in a criminal matter when the Speaker or Chairperson has not issued an authorisation in that respect. This is not an attempt to undermine the independence of the judiciary. Some learned collegues will say we are undermining the autonomy of the judiciary. However, we are dealing with matters where a House is supposed to deal with business that affects millions of people in this country. Sometimes we require a quorum for the business of the House to proceed. It is under such circumstances that the presiding officers will consider whether to grant or not to grant this request. It will not be a free-for-all.

The chapter dealing with disciplinary action against members provides that a House has all the powers that are necessary for inquiring into and pronouncing upon any matter declared by or under section 13 to be in contempt of Parliament by a member and taking disciplinary action provided therefore.

A committee must be established to deal with this enquiry. This enquiry needs to be conducted in accordance with a procedure that is fair and reasonable. The ad hoc committee recommends that the rules to provide for these procedures should be in place when the legislation takes effect. It is the House that finds a member guilty of contempt, and provision is made for sanctions, amongst others, that range from a formal warning, an apology to the House and the withholding of certain facilities provided to members for a specified period. It will be at the discretion of the House to decide what facilities they are going to withhold.

A member occupying any Parliamentary position may be removed or suspended for a specified period from any Parliamentary position occupied by the member. A fine which does not exceed the equivalent of one month’s salary and allowances can also be imposed. It further provides for the suspension, with or without remuneration, for a period not exceeding 30 days, and that a member may not be suspended unless the House has found that member to be guilty of a serious or repeated contempt, and that none of the other penalities will be sufficient. The committee also recommended that as far as it is possible, unparliamentatry behaviour be codified in the Rules, not in this legislation.

Chapter five sets out how witnesses are subpoenaed to appear before a House or committee. It provides that the person can only be subpoenaed by the Secretary of Parliament on the instruction of the Speaker or the Chairperson or the chair of the committee with the concurrence of the Speaker or the Chairperson. It does not give chairpersons of committees powers. They must concur with the presiding officers.

A very important aspect is covered in clause 16, dealing with the privileges of witnesses. Witnesses being examined under oath or affirmation may be required to answer any question or produce any document, despite the fact that doing so would incriminate themselves or would tend to expose them to criminal or civil proceedings or damages. Provision is made that evidence given under oath or affirmation by a person may be not used against that person in any court or place outside Parliament where the person stands trial on charges of perjury.

This is a constitutional provision, as well. I think Mr Lever will explain this thing far better. Clause 15 provides for certain limitations regarding the types of subject matter about which a witness may be questioned, or a type of document that the witness may be requested to produce. This limitation should be set out in the rules. This could deal with matters, amongst others, such as classified documents, sensitive information of a commercial or economic nature, private affairs of individuals or institutions supplied in confidence, and matters which are or may become the subject of sensitive negotiations with governments or other bodies.

Clause 17 makes it an offence for a person who has been subpoenaed not to appear or failing to remain in attendance. It is also an offence to refuse to be sworn in or without sufficient cause fail to answer fully and satisfactorily all questions lawfully put.

Chapter six deals with publications and broadcasting. It deals with the broadcasting of proceedings, as well as the publication of the proceedings. This will be dealt with further by my colleagues. I think the hon Ramodibe and the Chief Whip of the Council will deal with that.

Chapter seven, which is the last chapter, deals with the protection of the members of the public. For the first time this Bill gives members of the public protection against immunities and privileges of Members of Parliament. It break ranks with the past where a member of Parliament could, in the House, make unfounded, unwarranted and reckless statements about members of the public, and was protected by this immunity.

An entirely new and innovative provision is that of providing members of the public that are aggrieved by a statement or remark made by a member in or before a House about that person, to have a response recorded. That member of the public will have a right to respond to the statement and that response will be recorded in the documents of Parliament.

Chapter eight deals with provincial legislatures. In the main this chapter makes provision for certain clauses to be made applicable to provincial legislatures and their members, and also recognises that in terms of the Constitution, provincial legislatures are, in their own right, autonomous and independent. They must therefore formulate their own legislation in this particular respect.

There are a number of other matters that the committee has expressed itself on that I would not like to repeat, and I hope that members who are going to speak on this Bill will reflect on those matters.

In conclusion, I want to thank all members of the committee who have participated in the process of consideration of this Bill. I also want to express special gratitude to a former member of this House, hon Moosa, who was an inspiration to most of us with his expertise. He was originally the chairperson of the subcommittee dealing with powers and privileges, and I hope all of us who were part of that committee learned a great deal from that hon member. I thank you.

Mr J HORNE: Hon Chairperson, dealing with this Bill has been a very long and sometimes very frustrating process, but I must admit it was also a very thorough process, which will always serve as a good example of how Parliament, and not the state, can prepare legislation. We cannot debate and accept this legislation without properly thanking several role-players who, over the years, provided us with very valuable inputs with regard to this legislation.

When acknowledging the contributions of role-players, one always runs the risk of excluding certain people. We must, however, think of the valuable contributions made by Professors Murray and Soltau, Mr Fink Haysom, the Human Rights Commission, our own law advisors and, specifically, Mr Palmer and the Research Department of Information Services.

Al die lede van die komitee sal egter saamstem dat ons baie groot dank verskuldig is aan adv Anton Meyer vir die uiters waardevolle werk wat hy ten opsigte van hierdie wetgewing gedoen het. Telkemale moes hy maar weer teruggaan en groot dele van die wetsontwerp herformuleer. Hy het deurgaans verseker dat die komitee op die regte spoor bly en het spesifiek toegesien dat hierdie wetgewing in ooreenstemming met die Grondwet is.

In dié verband is dit belangrik om daarop te let dat hierdie wetgewing nie ‘n herhaling of inperking van die voorregte oor vryheid van spraak, vervat in artikel 58 van die Grondwet, behels nie. Dit brei egter die voorregte uit sodat dit ook van toepassing sal wees in ‘n gesamentlike sitting van die Nasionale Vergadering en die Nasionale Raad van Provinsies. Hierdie voorbeeld dien as ‘n bewys van die belangrike rol wat adv Meyer in die komitee vervul het, en daarom kan ons nie anders as om ons opregte dank teenoor hom uit te spreek nie. (Translation of Afrikaans paragraphs follows.)

[All the members of the committee will agree, however, that we owe Adv Anton Meyer a huge debt of gratitude for the valuable work that he had done with regard to this legislation. He had to go back time and again and reformulate large sections of the Bill. He ensured throughout that the committee remained on the right track and specifically ensured that this legislation corresponded with the Constitution.

In this regard it is important to note that this legislation is not a repetition or limitation of the privileges relating to freedom of speech, as contained in section 58 of the Constitution. It extends the privileges, however, so that it will also be applicable in a joint sitting of the National Assembly and the National Council of Provinces. This example serves as proof of the important role that Adv Meyer played in the committee, and for that reason we cannot but convey our sincere gratitude to him.] In analysing this Bill, the question should be asked whether this Bill adheres to certain very clear established principles. Firstly, it adheres to the doctrine of the separation of powers in that power is not all concentrated in one place, but Parliament has the power to regulate its own affairs without outside interference.

Secondly, democracy requires open and critical debate of matters of public interest. In claiming privileges, Parliament has to respect the Constitution, and this Bill further ensures that open debate can occur freely.

Thirdly, this Bill certainly sets out which acts would constitute contempt of Parliament. Broadly stated, contempt of Parliament is to act in a way that imputes the functioning of Parliament. Contempt, as specified in this Bill, includes bribing or attempting to bribe a member of the House, failing to appear before a committee of the House on request, obstructing, assaulting or threatening a member and disobeying the rules and orders of Parliament. Die verslag van die komitee wat aanvaar word, dui egter ‘n klomp aangeleenthede aan wat nie in hierdie wetsontwerp gehanteer word nie en waaraan dringend aandag geskenk sal moet word. Hierdie wetsontwerp is nie die gepaste plek vir genoemde aangeleenthede nie, maar die Reëlskomitee en die Grondwetlike Hersieningskomitee sal dringend na die verslag moet kyk, want na 10 jaar van parlementêre demokrasie is hierdie aangeleenthede uiters belangrik vir die behoorlike funksionering van die Parlement. (Translation of Afrikaans paragraph follows.)

[The committee report that is being adopted nevertheless indicates a number of matters not dealt with in this Bill and to which attention will have to be devoted urgently. This Bill is not the most appropriate place for the aforementioned matters, but the Rules Committee and the Constitutional Review Committee will have to look at the report urgently, because after 10 years of parliamentary democracy these matters are extremely important for the proper functioning of Parliament.] I am of the view that this Bill represents a huge improvement on the present Powers and Privileges Act of 1963 and is in line with the provisions of our democratic Constitution.

I have no reservations in supporting this Bill on behalf of the New NP. I thank you. [Applause.]

Ms D M RAMODIBE: Chairperson, comrades, members, ladies and gentlemen, the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill before the House is long overdue and long awaited.

Nakong tse fetileng tsa kgatello, ha melao e ne e etswa ke ba neng ba laola ka tshepe, Palamente e ne e le hodimo ho molao. Kajeno re bona molao wa demokrasi o sireletsa motho e mong le e mong, o sa kgethe ho fapana ha mmala kapa yona Palamente. Ke ka moo re tshwanetseng ho hlompha dilemo tse leshome tsa demokrasi. [During the erstwhile apartheid period, when those who ruled with an iron fist laid down the law, Parliament used to be above the law. Today we see democracy protecting everyone, regardless of race or what Parliament says. That is why we should respect 10 years of democracy.]

The Constitution of South Africa contains various powers, privileges and immunities for members of Parliament, delegates to the National Council of Provinces and members of the provincial legislatures to enable them to execute their functions properly. It includes the right to speak freely and without fear in the legislature, as well as the right of the House to regulate its own affairs without any outside interference.

It provides that other privileges and immunities may be prescribed by national legislation or the rules and orders of the respective legislatures. In line with the constitutional mandate, the Joint Subcommittee on Powers, Privileges and Immunities of Parliament and Provincial Legislatures, at its meeting in April 2001, resolved that an ad hoc National Assembly committee, which would confer with an equivalent National Council of Provinces committee, be appointed by resolution of both Houses.

The National Assembly resolved on 4 April 2001 that an ad hoc committee, hereafter referred to as ``the committee’’, be constituted to consider recommendations of the joint subcommittee and introduce a Bill in accordance with Chapter 13 of the National Assembly Rules. The aim of the Bill is to define and declare certain powers and immunities of Parliament, provincial legislatures, members of the National Assembly, delegates to the National Council of Provinces and members of the provincial legislatures.

Chapter two of the Bill is about the precincts of Parliament as the area of land and any building or part of a building under the control of Parliament, or provided or used for the purpose of the legislature.

Sena se supa hore ena ke tulo kapa moaho o leng tlasa taolo ya Palamente kapa moaho o sebedisetswang ho tsamaisa mosebetsi wa Palamente. Re bua ka Ntlo eo ho yona re tshwarelang ditaba le tsamaiso ya Mmuso; mahlakore a potipotileng Ntlo ya Palamente, ho akaretsa jarete, tshingwana le sebaka se bulehileng se tshwarahaneng ebile se bapile le Palamente; ho akaretsa diphaposi le moo re kopanelang teng ho tsamaisa mosebetsi le sepheo sa Palamente. Moaho kapa karolo ya moaho, e sebedisetswang tsamaiso ya Palamente. Tumello ya Setshwantsho sa Molao e supa hape le moo ntlo kapa komiti ya Palamente, ntle ho moo Palamente e dutseng ho tsamaisa mosebetsi wa Palamente

Ha e le Baduladitulo, kapa Dibui tsa Palamente, bona ba laola le ho busa moo komiti e dutseng teng, ho tsamaisa mosebetsi wa Palamente. Ho tshwarwa ha mopalamente tikolohong ya Palamente. Tumello ya Setshwantsho sa Molao e thibela mang kapa mang ho fana ka dipampiri tsa lekgotla la dinyewe, e leng disamonse, diphaposing tsa Palamente, ntle le ho fumana tumello ya moofisiri wa Sebui kapa eo a mo kgethileng.

Ho ba teng ha batshireletso tikolohong ya Palamente. Tumello ya Setshwantsho sa Molao e thibela maloko a tshireletso, e leng sepolesa le sesole, ho kena kapa ho ba teng kapa ho etsa mosebetsi wa sepolesa tikolohong ya Palamente, ntle le tumello ya Dibui kapa eo ba mo kgethileng.

Moo ba tshireletso ba sebetsang, ho sireletsa Palamente, tumello ya Setshwantsho sa Molao e ba dumella hore ha ho ena le kotsi e tobileng bophelo ba e mong wa Palamente, ba tshireletso, ntle le tumelloe, ba ka thusa ho thibela kotsi. Empa ba tla tshwanela ho tsebisa Dibui ka morao ho ketso eo. (Translation of Sesotho paragraphs follows.)

[This shows that this place is ruled by Parliament, or this is the place where Parliament works. We are talking about a place in which we hold parliamentary meetings and perform the procedural work of the Government; the areas around the parliamentary complex, the yard, the garden and the open area next to Parliament, including the rooms and Houses in which we meet to do the work of Parliament; and the building or part of the building that is used for running Parliament. The Bill also makes reference to the House or committees, with the exception of the sittings of Parliament.

The Chairpersons or Speaker of Parliament preside over committee sittings to facilitate Parliament’s work, and the way in which members are treated in Parliament. The Bill prevents anyone from submitting court papers, summonses of the court, in Parliament without the permission of the Speaker’s office or that of anyone chosen by the Speaker.

About the absence of those who provide protection around Parliament, the Bill prevents members of our protection unit, which is from the police and the army, from entering, occupying or doing police work on Parliament’s premises, except with the permission of the Speaker or whomever they have chosen to represent them.

The Bill allows those who provide a protection service to do so without obtaining permission if it is to prevent any harm to come to the life of any of the people in Parliament. However, they have to inform the presiding officers after the incident.] Chair of Committees, Chapter three is about privileges, immunities, independence and protection of members and Parliament. The Bill here seeks to provide freedom of speech for Cabinet members, Deputy Ministers, members of the National Assembly and delegates to the National Council of Provinces in joint sittings of the National Assembly and the National Council of Provinces.

This privilege exempts categories of people mentioned from any liability for civil or criminal proceedings, arrest, imprisonment or damages for anything they have said or produced before or submitted to a joint sitting of the House, the relevant House or one of its committees.

The Bill only deals with freedom of speech in joint sittings, since the Constitution already provides for freedom of speech in the respective Houses of Parliament. The Bill also seeks to protect members from improper interference and bribery. It prohibits people from interfering with the work of Parliament or any office committees or with the free performance by a member of his or her functions; threatening or obstructing a member going to a meeting, or from a parliamentary meeting or from a committee meeting; assaulting or threatening a member or depriving a member of any benefit because of the member’s conduct in Parliament or a committee; creating or taking part in a disturbance within the precincts of Parliament while Parliament or any office committee is sitting, and contravening an instruction by duly authorised staff members regarding the presence of persons at a particular meeting or regarding the possession of any article, including a firearm, in the precincts of Parliament.

A person may not improperly influence a member in his or her conduct by means of fraud, intimidation, force or threat, nor can anyone induce a member to be absent from Parliament or a committee or try to force a member to declare him or herself in favour … [Time expired.] [Applause.]

Mr L G LEVER: Chairperson, the 1963 legislation which regulated the powers and immunities of members of Parliament was no longer consonant with our new Constitution, and the Bill before the House now corrects that. The Bill provides the legislative framework for the powers, privileges and immunities of members of Parliament and the provincial legislatures.

The hon Setona gave a very comprehensive outline of the contents of the Bill, and I will try not to repeat and simply emphasise a few points that I think do need emphasis. Some of the powers and privileges and immunities are set out in our Constitution, but others are established by tradition. This Bill provides the legal framework. However, it’s important also to note that there is still a lot of work to be done to clearly deliniate the full limits of these rights and immunities, and also the manner in which they will be enforced.

Most of this work will have to take place in the Rules Committees of the relevant Houses and legislatures. Some of the issues that the Rules Committees will have to deal with relate to the degree to which a member’s right to freedom of speech may legitimately be limited, the adoption of a procedure setting out the relevant rules for inquiries relating to disciplinary action against members for contempt, and the question whether reflections on members of another House or legislature or the deliberate misleading of the House or a committee should constitute contempt of the House.

There are also issues relating to the loss of membership or other sanctions for nonattendance of meetings of the House or its committees. Two issues have been referred to the Constitutional Review Committee, and these issues include the rights to freedom of speech in Joint Sittings of the two Houses of Parliament, as well as the rights of Deputy Ministers who are not members of Parliament.

The Bill provides a good foundation for the work that still needs to be done and, therefore, the DA supports this Bill. Thank you. [Applause.]

Mr M E SURTY: Thank you, Chairperson of Committees. I think Mr Lever quite correctly points out that the powers and privileges in this legislation derives from the Constitution, which is the supreme law of this country, of this land, and a Constitution in which rights such as the freedom of expression are firmly entrenched.

It is this very freedom of expression that entitles me to say, even though I’m a member of the ANC, that I agree with the DA that South Africa deserves better. I agree with them, because South Africa certainly deserves a better opposition. I agree with them that South Africa requires an opposition that is neither regressive, nor against transformation.

So, I could agree with them, but I could also express my views about a political party and its inclinations towards tendencies which seem to benefit a privileged few. That is my right. It’s entrenched in the Constitution, and I can certainly use this right for various purposes: to inform the public, to argue the case, to argue, very strongly so, the achievements of the ANC over the past decade, to say how well the ANC has succeeded in transforming our society, making it a nonracial and nonsexist society. These are the rights that we derive from the Constitution, and these are rights the Constitution only limits when there is hate speech which is based on race, gender or religion.

Now, it’s important to enjoy this right and to also be able to have the benefit, in a House such as this, to ask whether, in fact, the information that we received, that Mr Raju, who is a black member of the DA, has been suspended, and the only other remaining member, Ms Sono, has been withdrawn. [Interjections.] Is it because they are black, or is it because of their lack of participation in the due processes of this Parliament?

Now, these questions can be asked, and I’m protected in doing so by virtue of the Constitution and by virtue of the powers and privileges. I do so on the basis that I would want to ask the opposition why, for example, Mr Krumbock and Ms Antoinette Versveld, who hardly participate in meetings, are still not withdrawn or suspended by the political party, but the only two members who are diligently involved in the committee work of the various committees are either withdrawn or suspended. [Interjections.] This is my right, and as long as I do not impinge on the integrity of a member, I’m entitled to enjoy this constitutional right, which is conferred on me through this Constitution.

I also think that one must understand that in the context of this particular legislation I use it as an example, and I think that the right is also available to the opposition to be able to respond to the issues that I’ve raised. For example, I would like to say and I would like to recognise and acknowledge that Mr Lever has been a dedicated member of the committee, has added value to the committee, notwithstanding the fact that he’s a member of the DA, and I would like to know and ask why it is that Mr Lever is leaving the DA? Is it because he’s disillusioned with the policies of the political party? Is it because he’s unhappy with the state of affairs within the DA? I may ask these questions. It is my constitutional right.

Let me get a little more philosophical about this. I thought Mr Setona had, quite correctly, dealt very comprehensively with this - I agree again with Mr Lever - Bill. I also think what this Bill does and what we should understand, is that this Bill here confers powers and privileges on Parliament. It seeks to protect the dignity, the integrity and the decorum of Parliament.

It says that Parliament and its representatives, through these institutions, must be able to do their work without any obstruction and without any hindrance. It emphasises the importance of ethical conduct on the part of members. It states, also, that Parliament itself derives its powers through the Constitution, which entitles it to develop rules and procedures which will govern its internal relationships.

So, we, as public representatives, must collectively be able to do that. It also says that we have this particular freedom, and I see that, in the context of those powers that the Constitution has conferred on us, we’ve done extremely well. We’ve ensured that whilst we are a House that represents provincial interests, we did not marginalise party-political interests. That is a constitutional value which we’ve enshrined.

It also does another thing. This is what Mr Setona referred to and I think it’s important for the purpose of understanding the rationale and the philosophy underlying this particular Bill, namely that it allows members to exercise their functions in the best interests of the electorate. That means it will allow them to hold Ministers, the executive, accountable for what they do, either in terms of policy, in action or in terms of the law. That is the right that is conferred on Parliament as a whole.

It also, then, entitles these committees and members within those committees to investigate any statements, possibly such as the one that I’ve made in relation to certain inferences that could be drawn, if necessary and appropriate. It allows that kind of latitude for Parliament to ensure that, in the conduct of its business, it is able to best represent the interests of this country and to give it all rights and powers to summon whomever to Parliament, be it a Minister, be it an official or any other person who may have information. I also think that must not be lost.

As a round-up, I think I also have to mention two aspects. One is that this Bill here provides a framework for public representatives, whether they are in Parliament or whether they are in provincial legislatures; and it does not preclude, but in fact suggests that the provincial legislatures develop legislation with regard to other aspects that fall within their jurisdiction.

So, it’s particularly important for us, as the NCOP, to ensure that we do not transgress or infringe on the integrity or independence of our provincial institutions. This Bill does exactly that. It says certain provisions apply universally.

I would like to commend the committee, including the previous chairperson and the current one, for basically inviting all the stakeholders, provinces, local government and even the National Assembly to a workshop where we put our heads together and tried to find out what the best law is that we can develop which can serve the interests of this Parliament and ensure, as Mr Lever correctly said, that it’s consonant with the provisions of the Constitution. So, that is the point that I thought I should say as the penultimate point.

My last point, really, is to say that this Act does something that the previous Act did not do, and it does so quite meticulously. It ensures, reinforces and re-emphasises the importance of ethical conduct of members of Parliament and that, as public representatives, they must ensure that there is no conflict of interest, must ensure that they are neither induced by gifts or any other promises to act in a particular way.

So, while normal lobbying in the ordinary cause is permissible, if it occurs to enrich the particular member, it is unethical, unacceptable and, in fact, has sanctions. I think we’ve gone a long way in achieving what we believe is a very useful piece of legislation. The Bill has gone through 15 drafts, and I think the work of the National Assembly and its committee must be acknowledged. Mr Hendrikse and his team of members have done extremely well. Also, the members who serve in this particular committee have done admirably well, and I think we, as a House, must acknowledge and recognise it.

We urge all members to support the Bill, notwithstanding our earlier remarks. Thank you very much. [Applause.]

Debate concluded.

The CHAIRPERSON OF COMMITTEES: I shall now put the question. The question is that the Bill be agreed to. In accordance with Rule 63, I shall first allow political parties the opportunity to make their declarations of vote if they so wish. There are none.

Bill agreed to in terms of section 75 of the Constitution.

The Council adjourned at 16:01. ____

            ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS

ANNOUNCEMENTS

National Assembly and National Council of Provinces

1. Classification of Bills by Joint Tagging Mechanism:

 (1)    The Joint Tagging Mechanism (JTM) on 26 February 2004  in  terms
     of Joint Rule 160(3), classified the following Bill  as  a  section
     75 Bill:


     (i)      National   Environmental   Management:   Protected   Areas
          Amendment Bill [B 2 - 2004] (National Assembly - sec 75).

1. Bills passed by Houses - to be submitted to President for assent: (1) Bills passed by National Assembly on 26 February 2004:

   (i) National Environmental Management Second Amendment Bill [B 56B - 2003] (National Council of Provinces - sec 76);

   (ii) National Gambling Bill [B 48D - 2003] (National Assembly - sec 76);

   (iii) Prevention and Combating of Corrupt Activities Bill [B 19D - 2002] (National Assembly - sec 75);

   (iv) South African Social Security Agency Bill [B 51D - 2003] (National Assembly - sec 76); and

   (v) Social Assistance Bill [B 57D - 2003] (National Assembly - sec 76).

 (2)    Bill passed by National Council  of  Provinces  on  26  February
     2004:
     (i)      Powers,  Privileges  and  Immunities  of  Parliament   and
          Provincial Legislatures Bill [B 74 - 2003] (National  Assembly
          - sec 75).

TABLINGS

National Assembly and National Council of Provinces

1. The Minister of Home Affairs

 A list of  approved  early  naturalisation  applications  in  terms  of
 section 5(9) of the South African Citizenship Act, 1995 (Act No  88  of
 1995) for the period 1 January 2003 to 31 December 2003.


 Copies of the list are available  from  the  Office  of  the  Clerk  of
 Papers.

1. The Minister of Housing

 Report and Financial Statements of Vote 17 - Department of Housing  for
 2002-2003. National Council of Provinces

1. The Chairperson

 The following statement has been submitted to the National  Council  of
 Provinces by the MEC of Local Government in the province of the Western
 Cape under section 106(3) of the Local  Government:  Municipal  Systems
 Act, 2000 (Act No 32 of 2000):


     Investigation  in  terms  of  section  106(1)(b)   of   the   Local
     Government: Municipal Systems Act, 2000 (Act No 32  of  2000)  into
     allegations of  maladministration,  non-compliance  with  statutory
     obligations  or  other  serious  malpractices  committed   by   any
     person(s) in  the  Kannaland  Municipality  or  any  person(s)  who
     associate or associated with the Kannaland Municipality.


 Referred  to   the   Select   Committee   on   Local   Government   and
 Administration.


 Copies of the statement are available from the Office of the  Clerk  of
 Papers.

COMMITTEE REPORTS

National Assembly and National Council of Provinces

Insert 1ATC2602e