National Assembly - 01 November 2005
TUESDAY, 1 NOVEMBER 2005 __
PROCEEDINGS OF THE NATIONAL ASSEMBLY
____
The House met at 14:01.
The Speaker took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS – see col 000.
NOTICES OF MOTION
The SPEAKER: We now come to notices of motion. Does any member wish to give a notice of motion?
Mr M J Ellis: Madam Speaker, apparently the Chief Whip of the ANC would like me to do one but I have to inform him that I haven’t got one. [Laughter.]
CONGRATULATIONS TO PROTEAS CRICKET TEAM
(Draft Resolution)
Mr T D LEE: Madam Speaker, I move without notice:
That the House –
(1) congratulates the Proteas cricket team on their victory in Port
Elizabeth on Sunday against New Zealand;
(2) notes that this third victory against New Zealand clinched the
one-day cricket series for South Africa; and
(3) wishes the team well in the remaining one-day matches.
The CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, may we engage you on just a little aspect of that motion?
The ANC had the intention to move that motion but by agreement we gave it to the opposition. Our only hang-up is that if we say they have clinched the series it might suggest that they can’t lose the remaining two matches. We want them to win those two matches as well.
Agreed to.
THE PASSING AWAY OF MRS HUBERTE RUPERT
(Draft Resolution) Mr H J BEKKER: Madam Speaker, I move without notice:
That the House –
(1) notes with regret the passing away of Mrs Huberte Rupert, wife of the founder of the Rembrandt Corporation, Dr Anton Rupert, and mother of the industrialist Mr Johann Rupert;
(2) further notes that the late Mrs Rupert played a major role in
supporting and cultivating arts and culture in South Africa,
classical music in particular, also in formerly disadvantaged
communities;
(3) acknowledges that this prominent South African heroine will be
remembered for her quiet strength and determination in support of
her family and so many others in our country; and
(4) expresses its deepest sympathy and condolences to her family and
loved ones.
Agreed to.
The SPEAKER: The condolences will be conveyed to the Rupert family.
SUSPENSION OF RULE 253(1)
(Draft Resolution)
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I move the motion as printed on the Order Paper in the name of the Chief Whip of the Majority Party, as follows:
That Rule 253(1), which provides, inter alia, that the debate on the Second Reading of a Bill may not commence before at least three working days have elapsed since the committee’s report was tabled, be suspended for the purposes of conducting the Second Reading debate on the Diamonds Amendment Bill [B 27B – 2005 (Reintroduced)] (National Assembly – sec 75) today.
Agreed to.
PREVALENCE OF SUICIDE AMONG SA YOUTH
(Member’s Statement)
Ms P BHENGU (ANC): Today more than ever before South African children are faced with challenges that require them to step into adult shoes at a very early age. In too many households children have to become the breadwinners to ensure that there is food on the table and in some instances roles have been reversed for children. It is of great concern to the ANC that the suicide rate among children is on the increase. Reports of children taking their own lives have become all too common. The death of one child is one too many. Our children form part of the most fragile sections of our society and they look to us for guidance and protection. It is our duty to ensure that they have the right to grow up in a safe and secure environment.
The youth of South Africa is our greatest asset. Our children are the
custodians of our future. If we fail our children the future of South
Africa will be very bleak.
The Minister of Social Development has stated that parents and communities need to be empowered to take care of their children and that the wellbeing of each child should be our everyday business. Therefore we call on all community leaders, teachers, parents, non-governmental organisations and all other role-players to assist us so that we can ensure that a support system is in place that will allow our children to enjoy their right to a carefree childhood. Let us give expression to the saying that every child is my child. Thank you.
PROVISION OF HOUSING FOR THE POOR
(Member’s Statement)
Mr A C STEYN (DA): Madam Speaker, the Minister of Housing’s demand that the private sector devote 20% of all future housing developments to low-cost housing is naïve if she believes it will solve the housing crisis. The provision of housing for the poorest of the poor is primarily government’s responsibility and they are failing the poor.
A cursory glance at her annual report shows underexpenditure of R367 million, with the North West, Limpopo, Free State and Western Cape the biggest failures when it comes to delivery. If we look at the number of houses delivered we find that the Eastern Cape spent R572 million to produce 37 000 houses. By contrast the Western Cape spent R511 million but only produced 11 000 houses, less than a third of the number of houses with 90% of the Eastern Cape’s expenditure.
I call upon the hon Minister to get her own house in order before she intervenes in the private sector. She should ensure the cost-effective delivery of houses by government first before passing the responsibility to the private sector. [Applause.]
CRIMINAL INCIDENTS INVOLVING MEMBERS OF THE SAPS
(Member’s Statement)
Mr V B NDLOVU (IFP): Madam Speaker, members of the SA Police Service are, in general, working hard and doing their best with the resources at their disposal under difficult conditions. It is therefore very unfortunate that there always seems to be an incident involving criminal behaviour of members of the SAPS.
We heard last week that a police officer was arrested after paternity tests revealed that he was the father of a child born while the mother was still in detention. The woman, who was held in a police cell for two years, was allegedly raped repeatedly by three police officers.
In a separate incident police are investigating a case of rape after a 25- year-old woman laid a charge after being detained in a Kraaifontein police station cell. She alleged that she was raped by two civilian employees.
We urge the relevant authorities to investigate thoroughly not only the above two cases but all cases involving SAPS officials. Corrupt and criminal members of the SAPS must be weeded out as they are tarnishing the good name of all the honest men and women of the SAPS who work so hard. They must be made to realise that they are not above the law and must not use their position to conduct their criminal activities.
VOTER REGISTRATION WEEKEND
(Member’s Statement)
Mr W M SKHOSANA (ANC): Madam Speaker, the Independent Electoral Commission has set aside the weekend of 19 and 20 November as a registration weekend to give the people who have not yet registered an opportunity to register for the forthcoming municipal elections.
Our Constitution guarantees every adult citizen a right to participate in a free, fair and regular election, voting in an election for any legislative body established in terms of the Constitution. The Freedom Charter declares that the people shall govern.
The forthcoming municipality elections give voters an opportunity to ensure that they vote for representatives that are dedicated to serving the people and are committed to creating a better life for all. Therefore the ANC urges all voters who have not yet registered to make use of this registration opportunity on 19 and 20 November to register so that they can exercise their right to vote so that the will of the people can be heard. [Applause.]
OPERATION BEAR’S CAPE TOWN TO LONDON FUNDRAISING PROJECT
(Member’s Statement)
Mr S N SWART: Madam Speaker, the ACDP would like to wish Operation Bear’s Cape Town to London fundraising project a safe and fruitful trip. This venture commenced outside Parliament this morning.
Steve Heath and Rob Bedeman of Operation Bear will be travelling in a beach buggy from Cape Town to London via Africa and Europe. The trip will involve travelling 60 000km through 22 countries over a period of approximately 16 months.
The aim of the project is firstly to raise public awareness of the horrific increase in the number of child rape and sexual abuse cases taking place in South Africa, Africa and the world and to find solutions to stop this scourge. A further aim is to raise much needed funds for three organisations providing support services to victims of child rape and sexual abuse. These organisations are the Teddy Bear Clinic in Parktown, Operation Bobbi Bear in Winklespruit and the Tygerbear Clinic at Tygerberg Hospital.
It is significant that Operation Bear commenced outside the gates of Parliament where we as elected representatives grapple with the challenges of sexual abuse of children. The special parliamentary task team on sexual
abuse of children confirmed the widespread abuse, particularly sexual abuse, of children and stated that, “the intensity of the spiral of sexual abuse of children in South Africa demands that certain interventions be
effected to eradicate this pervasive problem in our society”.
The ACDP has been at the forefront of this fight and has welcomed certain clauses in the proposed Criminal Law (Sexual Offences) Amendment Bill, such as the broadening of the definition of rape, the criminalisation of harmful HIV-related behaviour and the inclusion of the paedophile register.
We have, however, as the ACDP taken a very strong stance urging that the age of sexual consent should be raised to 18 years. Age of consent offences offer the best legal protection for boys and girls from adult predators. This will prevent adult abusers from claiming that their victims consented.
There is no doubt that there is much to be done to support the exceptional work of these volunteer organisations. The ACDP calls upon all South Africans to support the Operation Bear fundraising project.
UN INVESTIGATION REGARDING OIL-FOR-FOOD PROGRAMME
(Member’s Statement)
Dr P W A MULDER (VF Plus): Agb Speaker, in opdrag van die Verenigde Nasies het ‘n onafhanklike ondersoekspan, onder leiding van mnr Paul Volcker, ondersoek ingestel na ongerymdhede in die Irakse olie-vir-voedselprogram tydens Saddam Hoessein se regeringstyd. Verskeie Suid-Afrikaanse maatskappye en Suid-Afrikaanse burgers, soos mnr Sandi Majali, se name word prominent in die VN-verslag genoem. Mnr Majali het die bewerings as ongegrond en kwaadwillig beskryf en het gedreig met regstappe teen die VN.
Die vraag is, wat gaan die Suid-Afrikaanse regering aan die saak doen? Die Australiese en Jordaniese regerings het reeds kommissies van ondersoek ingestel na die maatskappye van hierdie lande wat in die VN-verslag genoem word.
As alternatief maak die Suid-Afrikaanse korrupsiewet ook voorsiening vir ‘n ondersoek na sulke bewerings. Die VF Plus glo dat ‘n kommissie van ondersoek aangestel behoort te word wat eens en vir altyd dié bewerings kan ondersoek. Dit is die enigste manier hoe by die waarheid uitgekom sal word.
Aangesien mnr Majali die bewerings as totaal ongegrond en kwaadwillig beskryf, behoort hy so ‘n kommissie te ondersteun. Dit gee aan hom die geleentheid om al die bewerings as vals en verkeerd te bewys. Terselfdertyd sal so ‘n ondersoek die Suid-Afrikaanse regering se erns om saam met die VN te werk, én om alle vorme van korrupsie uit te roei, verder bewys.
Die Suid-Afrikaanse regering het destyds die VSA, Amerika, heftig gekritiseer toe president Bush besluite geïgnoreer het en op sy eie Irak binnegeval het. Die VF Plus het die regering in dié stadium gesteun. Die Suid-Afrikaanse regering gaan sekerlik nie die VN se verslag ignoreer nie. Ek dank u. (Translation of Afrikaans member’s statement follows.)
[Dr P W A MULDER (FF Plus): Hon Speaker, on the instructions of the United Nations, an independent investigating team led by Mr Paul Volcker has investigated irregularities in Iraq’s oil-for-food programme while Saddam Hussein was in power.
The names of several South African companies and South African citizens, like Mr Sandi Majali, are mentioned prominently in the UN report. Mr Majali has described the allegations as unfounded and malicious and has threatened to take legal action against the UN.
The question that arises is, what is the South African government going to do about the matter? The Australian and Jordanian governments have already appointed commissions of enquiry to investigate the companies from these countries that are mentioned in the UN report.
Alternatively, the South African Corruption Act also makes provision for an investigation into such allegations. The FF Plus believes that a commission of enquiry should be appointed to investigate these allegations once and for all. This is the only way to get to the truth.
Considering the fact that Mr Majali describes the allegations as entirely unfounded and malicious, he should be in support of such a commission. It gives him the opportunity to prove that all of these allegations are false and incorrect. At the same time such an investigation will serve as further proof that the South African government is committed to co-operating with the UN, as well as to eradicating all forms of corruption.
The South African government criticised the USA, America, vehemently when President Bush ignored decisions and invaded Iraq unilaterally. The FF Plus supported the government at that stage. Surely the South African government is not going to ignore the UN report. I thank you.]
RENEWAL OF FIREARM LICENCES
(Member’s Statement)
Me A VAN WYK (ANC): Mevrou die Speaker, volgens berigte het meer as ‘n halfmiljoen vuurwapeneienaars nog nie aansoek gedoen om hul vuurwapenlisensies te hernieu nie. Dit beteken dat sodanige eienaars die gevaar loop om na 31 Desember in hegtenis geneem te word, én vervolg kan word vir die onwettige besit van ‘n vuurwapen.
Diegene wat die Wet op Beheer van Vuurwapens veronagsaam, kan tot 15 jaar tronkstraf en boetes opgelê word. Wapeneienaars moet ook daarop let dat indien hulle skuldig bevind word aan die onwettige besit van ‘n vuurwapen, ‘n hof dergelike persoon as onbevoeg kan verklaar om ooit weer ‘n wapen te besit.
Landwyd is daar nog net 32 000 aansoeke om hernuwings ontvang. Volgens die Sentrale Vuurwapenregister is daar sowat 2,5 miljoen mense wat wapens besit. Dit beteken dat daar jaarliks ‘n gemiddeld van 625 000 mense lisensies moet hernieu. Die huidige getal aansoeke wat ingehandig is, skiet duidelik te kort en dit beteken dan dat duisende wapeneienaars onwettig in besit van ‘n vuurwapen gaan wees.
Aansoeke om die hernuwing van vuurwapenlisensies is ‘n baie belangrike proses wat die regering in staat sal stel om beter vuurwapenbeheer uit te oefen. Derhalwe wil die ANC ‘n dringende beroep doen op alle vuurwapeneienaars om nie te sloer met aansoeke om hul wapenlisensies te hernieu nie, om sodoende te verseker dat hulle nie strafregtelik vervolg word nie.
Verder versoek ons alle wetsgehoorsame burgers om hulle nie te laat mislei deur doemprofete en teenstaanders van die wetgewing nie, en aktief deel te neem om die getal wapens in die land te verminder. [Applous.] (Translation of Afrikaans member’s statement follows.)
[Ms A VAN WYK (ANC): Madam Speaker, according to reports, more than half a million firearm owners have not yet applied to renew their firearm licences. This means that such owners are running the risk of being arrested after 31 December, and they could be prosecuted for the illegal possession of a firearm.
Those who ignore the Firearms Control Act can be sentenced to up to 15 years’ imprisonment and be fined. Firearm owners should also note that if they are found guilty of the illegal possession of a firearm, a court may declare them unfit to ever own a firearm again.
Only 32 000 applications for renewal have been received countrywide thus far. According to the Central Firearms Register approximately 2,5 million people own firearms. This means that an average of 625 000 people have to renew their licences annually. It is obvious that the present number of applications handed in is too low, and this therefore means that thousands of firearm owners will be illegally in possession of a firearm.
Applications for the renewal of firearm licences constitute a very important process that will enable the government to exercise better control over firearms. The ANC therefore wants to make an urgent appeal to all firearm owners not to delay in renewing their firearm licences, thus ensuring that they are not criminally prosecuted.
Furthermore, we request all law-abiding citizens not to be misled by prophets of doom and opponents of the legislation, and to participate actively in decreasing the number of firearms in the country. [Applause.]]
LACK OF CAPACITY BUILDING AT MUNICIPAL LEVEL
(Member’s Statement)
Mr S SIMMONS (UPSA): Madam Speaker, the interest shown by South Africans in general to join the UPSA is a clear indication that the UPSA will be a force to be reckoned with in the coming local government elections. The UPSA will strive to address the serious shortcomings with regard to poor levels of service delivery by local governments due to a lack of proper capacity building by those currently in power at municipal level.
The UPSA further believes that competence should be the ultimate criterion when public servants are appointed. We believe that when applying affirmative action for the purpose of transformation, the demographics of the region or the province in question should be the deciding factor in rectifying imbalances of employment equity and not national demographics, as is currently the case. This will ensure a greater level of fairness and justice for all South Africans.
Finally, the UPSA bases all its policies and related decisions on Christian principles, norms and standards. I thank you.
URGENT NEED FOR GOVERNMENT TO DISTRIBUTE ANTIRETROVIRALS
(Member’s Statement)
Ms D KOHLER-BARNARD (DA): Madam Speaker, the UN envoy, Stephen Louis, who has been banned from entering this country by the Minister of Health, researched that there are 800 0000 South Africans who are in urgent need of antiretroviral treatment. The DA was shocked to read the latest figures from the Department of Health, showing that fewer than 10% of this number are actually receiving these drugs through the public health system.
On the other hand, countries like Brazil, Kenya and Uganda have shown that when the national leadership throws its weight behind an anti-Aids campaign it is possible to achieve miracles. Well, there are problems in South Africa with adequate staffing levels and facilities, but these problems are not unique to South Africa and have been overcome by other countries. The key problem in our country is the ongoing lack of enthusiasm on the part of top levels of government when it comes to confronting Aids, despite the deaths of almost 1 000 people a day.
As a result of this lack of enthusiasm, the government’s antiretroviral roll-out has been an astounding failure. If the lives of South Africans with Aids are to be saved, then President Mbeki and the Minister of Health must recognise the damage they are doing to South Africa and inject more energy and more commitment into this programme.
APPOINTMENT OF EXPERTS TO INVESTIGATE TRAIN ACCIDENT
(Member’s Statement)
Mr S E ASIYA (ANC): Madam Speaker, the ANC welcomes the appointment of 80 technical experts by the Railway Safety Regulator to probe the collision between the Blue Train, South Africa’s premium luxury train, and the Shosholoza Meyl, the flagship Cape to Gauteng train. Transnet and Spoornet have also launched a joint investigation into the accident.
It is imperative that the cause of the accident is established as soon as possible and that steps are taken to put the necessary preventative measures in place to ensure the safety of all future passengers. Fortunately, there were no fatalities but dozens of passengers suffered injuries and four people were critically injured.
In view of that, we as the ANC want to urge the Railway Safety Regulator to complete the Enquiry as soon as possible. We also want to express our gratitude to all rescue workers, police, doctors and other role-players who assisted at the scene of the accident and we wish all the injured passengers a speedy recovery. I thank you.
PROPOSED GOLF COURSE DEVELOPMENT NEAR SA LARGE TELESCOPE
(Member’s Statement)
Ms C N Z ZIKALALA (IFP): Madam Speaker, Sutherland in the Northern Cape was selected as the site for the largest telescope in the southern hemisphere because it has clear skies and is far from the electric light pollution of cities and towns.
This telescope, which is extremely sensitive to light, could be detrimentally affected by the proposed 500-unit golf course estate, which would increase the electric light in the skies. Golf course developments might generate money for their investors and provide a few jobs for the surrounding communities, but they can also have many negative effects, including the amount of water that they can consume.
Although we do understand that development has to take place, we must be very careful not to pursue development at all costs. We therefore hope that a thorough environmental impact assessment study is conducted, including the effect that the proposed estate would have on the telescope, as well as the real and sustainable benefits that would accrue to the surrounding communities. I thank you.
TITLE DEEDS TO BE HANDED TO DISTRICT SIX CLAIMANTS
(Member’s Statement)
Mr J D ARENDSE (ANC): Madam Speaker, the decision by the ANC-led Cape Town Council on 26 October 2005 to vote in favour of handing over the title deeds of land to 15 remaining District Six claimants of the first pilot project and to 100 claimants of the second claim, is welcomed. The beneficiaries are claimants identified by the District Six Beneficiary Trust and the Land Claims Commissioner.
District Six, one of many areas where communities were forcibly removed by the apartheid government, is a scar on the landscape of Cape Town as much as it is a scar on the conscience of the nation. The fact that the City of Cape Town is trying to right the wrong that was done is commendable.
The ANC urges all the spheres of government to speed up the process of land reform. I thank you.
STATE OF CAPE TOWN METRO SINCE ANC TOOK CONTROL
(Member’s Statement)
Mr W P DOMAN (DA): Madam Speaker, the standard knee-jerk response of the ANC-controlled councils to lack of delivery is to attribute these problems to a lack of capacity or of skilled staff. The Deputy President has even suggested that career local government officials are leaving because they cannot take the pressure. It is perhaps now an opportune moment to analyse the facts.
Since the ANC took full control of the Cape Town Metro a process of ethnic cleansing of the top categories of staff has been raging unabated. In a survey conducted by the DA, and confirmed by the city manager this morning in the media, it has been established that this year alone 586 top-level officials resigned and 89 professional career local government officials in the City of Cape Town have taken the so-called voluntary separation package at a cost of R30 million.
The City of Cape Town has budgeted some R340 million for the current financial year for restructuring. The 18 sewerage treatment plants in Cape Town, for example, are in dire need of upgrading but the ANC claims there is a lack of funds.
President Mbeki agreed that parties should discipline their councillors in order that they behave and perform. This should also include the policies they pursue and the misdirection of ratepayers’ money. Therefore the ANC should take responsibility for what is happening in Cape Town. [Applause.]
SUBSIDIES ON AGRICULTURAL COMMODITIES BY EU AND USA
(Member’s Statement)
Dr M SEFULARO (ANC): Madam Speaker, the ANC notes the international debate on the reduction of subsidies on agricultural commodities by the USA and the EU that is now linked to the requirement that developing countries open up access to their services in their own countries.
We believe that the proposed requirements would have serious implications for developing countries. That developed countries already enjoy undue advantage in the global trade arena is a fact. Giving them access concessions to industrial products and other services in developing countries as a trade-off for the removal of agricultural subsidies will impede the export of services from developing countries, especially African, to developed countries.
We should discourage this trade-off from happening at the next round of the WTO talks in Hong Kong in December 2005. The matter of access to services should not be linked to the reduction of agricultural subsidies in the EU and the USA. Thank you.
BORDER DISPUTE BETWEEN ERITREA AND ETHIOPIA
(Member’s Statement)
Adv Z L MADASA (ANC): Thank you, Madam Speaker. The ANC notes with great concern the latest developments during the last two weeks on the border between Eritrea and Ethiopia. According to reports emanating from UN officials and the UN Secretary General’s office Eritrea has banned UN peacekeeping flights over its territory.
Lately Eritrea has also restricted UN peacekeeper movements on the ground, restricting them to the main roads only. The report further says that both Eritrea and Ethiopia are amassing troops near the border between the two countries.
The ANC is concerned that these developments do not accord with the peace agreements and guidelines set out by the UN to solve the long-standing border dispute between the two countries. Eritrea and Ethiopia have fought over this and thousands of lives have been lost.
The ANC, once more, reiterates the AU position that without lasting peace and security, proper development cannot take place on the continent. Therefore the ANC calls upon the two countries to show restraint and adhere to the UN guidelines in order to solve the border dispute. Thank you. [Applause.]
GOLF COURSE DEVELOPMENT AT SUTHERLAND
(Minister’s Response)
The DEPUTY MINISTER OF SCIENCE AND TECHNOLOGY: Madam Speaker, we would like to thank the hon member from the IFP for bringing to our attention the proposed golf course development at Sutherland. I must say that I was not aware of that proposed development.
The site is very important to us, as the hon member pointed out. The telescope will be formally launched on 10 November 2005. This is the largest telescope of its kind in the southern hemisphere and one of the largest in the world. It is South African designed and it really will make a big impact in the world of astronomy, and so we cannot afford to have developments jeopardise the potential success and the potential activities of this telescope. So thank you for bringing that to our attention.
Similarly, the same member mentioned some very important points, which we would support regarding golf course developments. Our water resources are very precious to us and, although the game of golf might be important to many people, we cannot afford to jeopardise our precious water resources. And so we do have to undertake careful environmental impact assessments in every case of a golf course development. Thank you, hon member. [Applause.]
CORRUPT MEMBERS OF SAPS; RENEWAL OF FIREARM LICENCES
(Minister’s Response)
The MINISTER OF CORRECTIONAL SERVICES: Madam Speaker, I wish to respond to two issues raised, and the first one was raised by uBaba uNdlovu [Mr Ndlovu].
Not all our policemen and policewomen are as bad as it would seem. Yes, there are those who do commit some of these terrible crimes. It is therefore imperative for the public to come forward and report this criminal behaviour.
Those who are found guilty, whether they are policemen or policewomen, must be dealt with severely by the courts. We agree that some of these incidents seem to happen quite regularly now. However, as the JCPS cluster we will definitely look into that.
The second response is, as follows: As the JCPS cluster we support the call that was made by our organisation, the ANC, to the owners of firearms to renew their licences in order not to be on the wrong side of the law. I appeal to the public not to listen to any of the misleading anarchists who tell you not to renew your licences. Go and renew your firearm licences; it’s the right thing to do.
PRIVATE SECTOR PARTICIPATION IN DELIVERY OF HOUSING TO POOR; ROLL-OUT OF ANTIRETROVIRALS BY GOVERNMENT.
(Minister’s Response)
The MINISTER OF EDUCATION: Madam Speaker, the commitment of the Minister of Housing to the delivery of housing to the people of our country is undoubted. I think that in the short time since her appointment, one only has to look at the various developments she has supported: The very visible N2 Gateway project, which is growing apace, as well as the enhanced delivery that we are seeing in many local communities.
I think that there is nothing wrong with the Minister of Housing calling for private-public partnerships and for participation of the private sector in the delivery of housing to the poor in South Africa. The delivery of housing to the poor in our country would be of great benefit to business as well, and therefore it is important that business plays a role.
The commitment of our government to housing delivery is undoubted. The Minister of Housing has committed herself to ensuring that we accelerate the provision of housing and that we address some of the gaps that the hon member from the DA referred to. However, I think that private-public partnerships are an accepted model throughout the world and it is absolutely necessary that in South Africa we also have those models.
With respect to the matter of the person referred to by the hon Kohler- Barnard, I think that the hon member should study our immigration laws. According to our laws the hon Minister of Health cannot bar any person from entering South Africa as long as they have the appropriate instruments to enter our country, that is a passport or visa, whatever the requirement may be. Therefore the person referred to by the hon member has not been barred from entering the country. So I really think that the member should study the law and ensure that when statements are made, they are made appropriately.
Our programme of providing treatment and care in South Africa, particularly the provision of antiretrovirals, is recorded as one of the largest and most significant interventions of many programmes throughout the world. Certainly, the take-up of ARVs is increasing and we are certainly, as government, through providing public finances, responding to the challenge and plight of the pandemic in our country.
Finally, to the UPSA, we would remind them of the fate of many who began as they did, and we will see at the jousts, what happens. Thank you. [Applause.]
PLIGHT OF CHILDREN IN SOUTH AFRICA
(Minister’s Response)
The MINISTER OF SOCIAL DEVELOPMENT: Madam Speaker, I just wanted to add to the statement of Ms Phumzile Bhengu, to the effect that the death of one child is one death too many. I want to agree with her on that, and I think that the motion is timely and it should affect all the members of this House.
The issue of children is not Mrs Bhengu’s alone, or that of government alone; it is an issue that all South Africans should be concerned about. We expect, basically, each and every member, in his or her constituency, to be the voice that speaks on behalf of all children.
More importantly, no household should be headed by a child. The powers that all of us have been given as parliamentarians should be used to ensure that those children become part and parcel of South Africa and receive what we promise each and every child: a brighter future and the heightening of their hope for a better South Africa.
On the issue raised by the ACDP, of raising money for children, we sincerely believe that that is the correct approach. Throughout Africa that issue cannot be left to governments alone; it is an issue that all of us individually, the private sector, all non-governmental organisations and the whole of civil society should be part and parcel of. Thank you.
WORLD TRADE ORGANISATION NEGOTIATIONS IN HONG KONG
(Minister’s Response)
The DEPUTY MINISTER OF TRADE AND INDUSTRY: Madam Speaker, I want to respond to a statement that was made on the World Trade Organisation negotiations. What we have, in fact, seen is an extremely modest offer by the United States on domestic support and a wholly inadequate offer by the European Union on agricultural market access, coupled with highly ambitious demands directed at what’s called advanced developing countries, not just in the area of services as was mentioned in the statement, but also, critically, in the area of industrial tariffs, the so-called non-agricultural market access negotiations.
We need to recall that Doha was supposed to launch a development round. Dealing with the issue of unfair trade in agriculture was quite central to the promotion of anything that could credibly be called “development”. We would also expect the development round to produce an outcome in other subjects, including in non-agricultural market access, Nama, and in services in which the main focus should be the asymmetrical promotion of opportunities for increased access to developed country markets for goods and services of export interests of developing countries.
The principles of development and proportionality require that this should not come at the price of huge adjustment costs, which impede development in developing countries. The House can rest assured that South Africa, in partnership with other developing countries, has been working and will continue to work to do all that we can to ensure that Hong Kong takes a step towards a development outcome, and also can rest assured that we will do all that we can to prevent the present negotiations resulting in a situation in which we trade huge adjustments in services and the Nama negotiations for only modest or non-existent gains in agricultural trade. Thank you. [Applause.]
DIAMONDS AMENDMENT BILL
(Second Reading debate)
The MINISTER OF MINERALS AND ENERGY: Madam Speaker, hon Ministers, Deputy Ministers, colleagues and members of the industry seated in the gallery who, I am informed, have come here in full support of this legislation, I table before you the most important Bill that my department has introduced in the mining sector since the Mineral and Petroleum Resources Development Act of 2002, namely the Diamonds Amendment Bill. Allow me to introduce to you the core issues of the Bill we are debating this afternoon.
Most of us are aware of the important role that mining has played in South Africa in all respects, be it political, social or economic. Diamond mining, as the pioneer of organised mining in South Africa, was the forerunner of other forms of mining, and its role in our country has therefore been significant. Through this Bill we intend to increase the contribution that diamonds will make to our economy by increasing downstream activity.
The problem of being over-reliant on resource mining is typified by what we see in Kimberley today. Kimberley is internationally recognised for its contribution to diamond production, and yet we see how the community of Kimberley suffers once lucrative mines are decommissioned because of low quantities of diamonds or because the deposits have become inaccessible. There was little meaningful development that took place in Kimberley when, by all accounts, it had the potential to become one of the wealthiest cities in the world.
While we still have the resources in the ground, we need to ensure that we maximise the benefits that they can bring. This legislation seeks to create a framework for downstream value addition and investment in the diamond- manufacturing sector.
It is clear from my interactions with Ministers of mining from other African countries that we are not alone in our frustrations with the divorce of diamond mining from the other more lucrative aspects of the industry. The positive changes taking place on the African continent allow us to find ways of exploring the downstream side of the diamond industry. There are many synergies to be gained from co-operation with other African diamond producers in areas such as aggregation, developing of a unique regional brand and style, and specialisation, as well as the marketing of our diamonds.
It is necessary for these countries to also look at transforming this industry by passing relevant legislation that will enable them to thrive not only in cutting and polishing African diamonds in Africa, but also to see diamonds moving from the mine to the fingers of consumers. Indeed, hon members were here when we all heard President Mogae of Botswana last week on the importance of us co-operating in this sector, and requesting our support in making aggregation of diamonds possible in Botswana.
I can say today that, through this Bill, by way of a notice in the Gazette, we can exempt any person or category of persons from offering their rough diamonds for purchase to the State Diamond Trader or the Diamond Export and Exchange Centre. It would therefore be possible to cater for such a request from the President of Botswana in order to increase regional economic activity and co-operation in this regard.
During the public hearings and through the media, we had a number of concerns being put forward with regard to this Bill. Some of them included the fact that South Africans do not have the ability to cut, polish and manufacture jewellery from the diamonds that we mine. We heard that it is not economically viable to cut and polish diamonds in South Africa and that diamond-producing countries should not become polishers and manufacturers, but should only concentrate on mining activities, which produce the diamonds, leaving the downstream activities to the developed countries.
I have already alluded to the problems of focusing only on mining and therefore I do not need to elaborate on the dangers of pursuing an approach that actually does not encompass the entire value chain. On the issue of the skills and abilities of South Africans to effectively engage in the downstream side of this industry, we recognise where we come from and know that training will need to take place, as well as that greater levels of investment will be required in this regard.
We are committed to ensuring that our people receive the required training and skills development so that the necessary competencies that are required by this legislation can be acquired. Fortunately, as a department, we have been in discussions with players from major diamond centres to support our skills development. We are also fortunate that some major players in the diamond industry have been watching our developments here in Parliament with great interest, with a view to investing in downstream processing. Such investments, be they from India, Israel, New York, Antwerp or wherever, will bring with them the latest technology in cutting and polishing diamonds.
We have also been informed, during the hearings on this Bill, about the possible loss of thousands of jobs on the production side should beneficiation be encouraged. I am pleased to hear that the hon members of the portfolio committee did question this position and asked whether assurances could be given that these jobs would be sustained if the Bill were not passed. The response was “no”. There are no guarantees on this front. What we can guarantee, though, is that through the successful implementation of this legislation there will be a number of jobs created in the downstream.
Some of the concerns raised were valid while others were nothing but myths that were created by people who do not want to see the status quo changed. We have listened to these concerns, and many have been dealt with in the amendments that followed the tabling of this Bill.
One such view that we would like to challenge is the distinction being made between “cuttables” and “noncuttables”, as we believe that this is a nonissue for now. We have yet to be convinced that certain categories of rough diamonds cannot be cut in South Africa. We would like to allow ourselves to compete with Antwerp and even with the Indian centres.
With investors bringing in their technology and expertise, I believe that, in time, we will be able to compete successfully with established players in the industry. We have seen that the Indian companies in the sector have followed diamonds where they are, and I do not think there is anything stopping them from following diamonds to cut and polish here in South Africa. Therefore until we have proof that some of our diamonds are “uncuttable”, we are not going to discriminate.
The objectives of the Diamonds Amendment Bill are for us as a country, which is one of the largest producers of diamonds in the world, amongst other things, to be able to drive the beneficiation of diamonds; to be able to provide for the local supply of diamonds to ensure that diamonds are beneficiated here in South Africa; to ensure that cutters and tool-makers obtain a regular supply of unpolished diamonds, and to create more jobs in the beneficiation industry.
In this regard, the Bill establishes what we call the State Diamond Trader, who will acquire and supply unpolished diamonds to local diamond beneficiators and promote the industry through the necessary research, support and development as deemed necessary from time to time. I have to emphasise that the State Diamond Trader will put whatever portion of the production cycle is deemed to support local beneficiation at competitive market prices. Because we are confident that we will not compromise the producers, we have built in mechanisms to resolve disputes in this regard.
The Bill further establishes the Diamond Export and Exchange Centre where all rough diamonds that are to be exported, for control purposes, will be channelled so as to allow local producers to buy if they can utilise them. Here, foreigners will also be able to purchase goods that they want for export purposes. Under certain conditions like when we have an oversupply in South Africa, rough diamonds could be exported directly without being offered for sale at the Diamond Export and Exchange Centre.
The regulator will have the right to declare any place in the country a diamond export and exchange centre, as it deems fit. These export and exchange centres need not necessarily be premises in Johannesburg or in Kimberley, or in Qunu. The regulator will decide, when it deems fit, which area is going to be the export and exchange centre. We have allowed this in order to have flexibility so that we do not stifle the industry.
Members will be aware that the export duty that was in the principal Act, which was supposed to operate as a deterrent to exporting diamonds, will now be dealt with through the money Bill that is being looked at by the National Treasury, and they have assured us that this Bill will be introduced in Parliament early next year.
To conclude, the regulatory function accompanying the above proposed structures will be done by what we call the Diamond and Precious Metals Regulator, which structure will replace the present day Diamond Board.
I would like to thank all the members and all the people who participated in the run-up to this debate. I would also like to thank all the hon members for their support of this legislation. Of course, I would like to thank the officials and the department who had to spend endless time, endless nights, and long weeks in Cape Town, trying to assist the portfolio committee to understand the provisions of this legislation. Thank you. [Applause.]
Mnu E N MTHETHWA: Somlomo, malungu ahloniphekile ePhalamende, maqabane nesizwe sonke, ngo-1955 emhlanganweni wabantu bakakhogolose i-ANC nezinye izinhlangano zaqhamuka nombono wokuthi umnotho waleli zwe kumele udliwe yiwo wonke umuntu. Ngo-2005, ngalo Mthethosivivinywa esiwenzayo sesenza lelo phupho libe yiqiniso. (Translation of Zulu paragraph follows.)
[Mr E N MTHETHWA: Speaker, hon members of Parliament, comrades and the whole nation, in 1955 at the congress of the people the ANC and its allies came up with the idea that the national wealth of this country should be shared among all. In 2005, with this Amendment Bill, we are making that dream a reality.]
The ANC’s strategy and tactics direct us to ensure the redistribution of wealth and income in favour of those previously excluded from the economic mainstream. One of the reasons for having this Bill within the parameters as set out in the Freedom Charter and the ANC’s programme of national democratic revolution is the equitable access to raw material. So, those who never had access to wealth will now be afforded an opportunity so that their businesses flourish as well. Those whose businesses were closed as a result of having no access will be opened.
The Bill also seeks to maximise value addition, especially in the downstream industry. With this Bill we want to expel the myth that there will be job losses. Last year we met the De Beers Group, which informed us that of seven mines they have, only two were financially viable; the rest faced possible closure. So this Bill will never be the reason for job losses.
We also want to create an African mix as opposed to a London mix. As the Minister said in support of the President of Botswana, His Excellency F Mogae, South Africa is comfortable with diamonds being aggregated in Gaborone. In any event, the diamond is Africa’s precious stone not London’s. [Applause.]
There are mechanisms to achieve these objectives, some of which the Minister has covered. I will emphasise one point on the restructuring of the SA Diamond Board in that perhaps the reason for this restructuring is that beneficiation has never happened under the auspices of the board. Secondly, not even in its dual role of regulation and promotion has the board helped us achieve our national target as set out in the Freedom Charter and government’s economic policy.
In its place we will create the SA Diamond and Precious Metals Regulator, of which the Minister has spoken, and establish the State Diamond Trader - SDT, which the Minister has also spoken about. One needs to say that this institution will be a pillar in the process of sharing this important mineral wealth. Any South African will be in a position to purchase diamonds from this institution. The SDT will reserve a certain portion of the commodity that it deems fit, as was said earlier on.
As far as the issue of noncuttable and cuttable diamonds is concerned, firstly, we want to inform this House that in our own research we’ve only come across this term in South Africa and that elsewhere there is no distinction. People just cut diamonds and create jobs as a result. Therefore the non-cuttable diamond is not an issue.
We felt it necessary that the democratic state needed to intervene on the issue to ensure that all shared the mineral wealth of this country. To this extent, we oppose the prophets of doom such as the leader of the DA, Tony Leon, who is suggesting that government is nationalising the industry. We are available here for free political education, because nationalisation is not equal to sharing. [Applause.] This is unfortunate but consistent with the reactionary thought of the man and the party.
On the other hand, we have consistently said throughout the public hearings that we could not fold our arms all the time in the face of rampant capitalism. This is underpinned by the market forces to which all should kneel in prayer: Everyone for himself, God for us all and the devil take the hindmost.
Umnotho waleli zwe oyifa labantwana bengabade kumele kuhlomule kuwo isizwe sikaLuthuli noTambo. Osozimboni abayizikhondla kulo mkhakha kumele baliqonde kahle kamhlophe iqhaza okufanele balibambe ekukhulisweni komnotho wezwe lethu. Leli gxathu libheke ekukhulisenei labo abasafufusa kule mboni nengumgogodla emnothweni wezwe lakithi. Sithi ubucwebe be-Afrika abudliwe yisizwe sonkana kungahlomuli abambalwa. Ngiyabonga. [Ihlombe.] (Translation of Zulu paragraph follows.)
[The wealth of this country is the inheritance of the South African. The nation of Luthuli and Tambo must benefit. Giant companies in this sector must understand very well the role that they have to play in the economic growth of our country. This step is aimed at those who are emerging in this industry, which is the backbone of our country’s economy. We are saying that the diamonds of Africa shall be shared by the whole nation, and not just a few. Thank you. [Applause.]]
Adv H C SCHMIDT: Hon Speaker, this Bill will create a State Diamond Trader to buy rough diamonds at a volume and value to be determined by the Minister by regulation. It will also replace the SA Diamond Board, which is largely made up of industry representatives and funded by levies. It will replace it with the state-funded and government-dominated SA Diamond and Precious Metals Regulator.
These two state institutions are introduced under the pretext of providing more equitable access to diamonds for the local industry. However noble these objectives are, the interference in the market by compelling diamond producers to offer a certain fixed percentage of their production to the State Diamond Trader does not only take away the freedom of choice by the producers, as to which market and at which price diamonds will be sold, but it is also subject to the unfettered discretion of the Minister, once again to be determined by regulation.
This Bill was gazetted on 30 August 2005 and a 21-day period was allowed for comment from interested parties. As the Bill, in its current form, differed substantially from previous drafts the 21-day period was totally insufficient to study and prepare for the possible consequences of the Bill, indicating the undue haste with which the ANC tried to push this Bill through Parliament.
The yet-to-be-introduced money Bill will remove the constitutional objections against the Diamonds Amendment Bill, due to the fact that the export duty to be levied on all diamonds to be exported will be dealt with in the money Bill. The money Bill will run concurrently with the implementation of this Bill. This is important for ensuring that the export duty is not levied on the export of diamonds upon the date of implementation of this Bill, before the money Bill has indeed been accepted by Parliament.
This Bill has caused government to revert to a protectionist stance in respect of the diamond manufacturing industry, which employs approximately 2 500 workers, at a time when the industry should be globalising and competing with the diamond manufacturing centres of India, Israel, the United States and China. Establishing new barriers to trade will not assist the South African economy in attracting foreign and local investors. Currently, no export duty is raised on the export of any other precious metal or mineral, except the current export duty on diamonds from which producers have been exempted.
The Minister has publicly indicated that the 15% export duty is too high, but that the five per cent proposed by the industry is too low. What export duty will be payable is anyone’s guess at the moment. The unfettered discretion of the Minister in determining whether a producer is to be exempted from exporting diamonds through the Diamond Export and Exchange Centre is arguably unconstitutional, in light of the Daewood Constitutional Court case, which decided that the legislature has to provide guidance to the Minister when a discretion has to be exercised in terms of legislation.
The important distinction between economically cuttable and uneconomically cuttable diamonds was removed, with the consequence that all export duties, at this point in time, should be levied on all diamonds produced in South Africa, whether such diamonds can be economically cut in South Africa or not. In short, and I will stand by what the hon leader of the DA has said, “What the Bill is doing is basically nationalisation through the back door.”
The Chamber of Mines estimated that the Bill will potentially cause thousands of existing jobs to be lost in the mining industry - I hope you heard that. [Interjections.] These losses will far outweigh the jobs that will be created by investment and beneficiation. Trans Hex a small JSE- listed diamond company also criticised the Bill and warned against possible closure of several of its operations – in fact, I think it mentioned 12 out of 21 operations – should a high export duty eventually be implemented.
The introduction of so many new state institutions to control the purchase and sale of diamonds represents an unwarranted intrusion of the state into the market. The government is in effect reverting to the failed economics of the colonial and postcolonial era in Africa to the great detriment of private enterprise and popular wellbeing.
In 1998 the department stated that barriers to mineral exports, economic and otherwise, would be identified and appropriate strategies for their removal would be devised. All measures that restrict the sale of South Africa’s minerals on foreign markets would be opposed. That is what they said in 1998, exactly the opposite of what is happening today.
This legislation will harm BEE investment in the diamond sector despite the Bill’s stated intentions, because only diamond producers, among all mineral producers, will be subject to export duties and other restrictions. The legislation may even violate the constitutional right to equality.
The ANC and its allies, Cosatu and the National Union of Mine Workers, argue that restricting the export of diamonds and making them more available to local buyers will increase opportunities for investment and beneficiation. This, in itself, will not ensure equitable access to rough diamonds. The government should use export-processing zones and regulatory relief rather than discriminatory legislation in export duties.
The reality is that rising trade barriers and regulatory costs will not only hurt primary producers, but will affect local business all along the production chain. Bulldozing this Bill through Parliament will destroy jobs, discourage BEE investment and harm economic growth. The ANC government is not helping the people; it is helping themselves, as we have said before. The DA will oppose the Bill. I thank you. [Applause.]
Mr E J LUCAS: Madam Deputy Speaker, the IFP would, firstly, like to take this opportunity and congratulate Ms Lindiwe Hendricks on her appointment as Minister of Minerals and Energy. We would also like to thank the Deputy Minister and the department for their participation in the hearings. The relevant industries and all shareholders should also be thanked for their submissions and constructive participation, which contributed to the meeting being open, although maybe a bit heated at times, but nevertheless informative.
The diamond industry is a very old one and consists of a few role-players. We must thank the industry for developing up to the level of what we have today. There is no doubt that a great deal of marketing had to be done. It is also important that new entrants into the industry be encouraged.
The divergent roles that diamonds have played in the fortunes of various African countries cannot be underestimated. On the one hand we have Botswana, which is a good example of prosperity that can be achieved if diamonds are handled correctly. At the other extreme we have countries where blood diamonds are exchanged for weapons, and ultimately fund wars and conflict which cause such destruction and suffering. The introduction of the Kimberley process has contributed towards stopping dealings in blood diamonds.
In order for the diamond industry in South Africa to truly develop and grow, there has to be beneficiation. We are therefore glad that the Bill addresses beneficiation, as this has been the driving force in accepting the Diamonds Amendment Bill. We sincerely hope that the introduction of the State Diamond Trader will open opportunities for historically disadvantaged South Africans. It is important that the regulator monitors the process closely.
Concerns around cuttable and uncuttable diamonds need to be clarified. We have been led to believe that only India has the necessary skills to cut very small diamonds. However, at the hearings we were told that there are dealers in South Africa who are able to do this. It is therefore important for us to establish the facts, which will certainly influence the cutting and polishing industry worldwide.
The IFP’s concern around the money Bill still stands. Members will recall that the Mineral and Petroleum Resources Development Bill still has the money Bill outstanding. The difference being that the Department of Minerals and Energy has assured us that the money Bill will run concurrently with the implementation of the Diamonds Amendment Bill. I sincerely hope that Treasury will take into account the submissions made by the industry at the hearings. The IFP supports the Bill. [Applause.]
Mr G T MADIKIZA: Madam Deputy Speaker and hon members, the objectives of the Bill before us are noble, indeed. Any government would want to ensure that an industry as large and lucrative as the South African diamond industry is properly regulated and operates with the best interests of society in mind.
However, these noble intentions have been translated into a piece of legislation with a very definite Draconian touch to it. The Bill is peppered with unfettered powers for the Minister, powers which could have been assigned to the regulator, the board or even Parliament. Whilst the Bill is clearly named the Diamonds Amendment Bill and deals exclusively with the diamond industry, it creates a regulator for diamonds and precious metals. This name has very little to do with the function of the regulator but coincidentally creates an excellent reason to dilute the representation of the diamond industry with the inclusion of representatives from the precious metals industry.
On the whole, the noble objectives of the Bill could have been arrived at in a far less aggressive manner and definitely with far less centralised power in the hands of the Minister. South Africa should benefit from its natural resources. But this legislation would undermine that objective because, in its current form, it will undoubtedly lead to strained relations with the industry and even imperil some businesses and jobs. The UDM does, however, support the Bill. I thank you. [Applause.]
The DEPUTY MINISTER OF MINERALS AND ENERGY: Deputy speaker, hon Ministers, Deputy Ministers, hon members . . .
. . . ndithe mandiyifakele isiqholo le ndawo, ndize kukwazi ukuba namandla. [ . . . let me add more taste in this area, so that I can have strength.]
Firstly, let me address Adv Schmidt, who is worried about nationalisation. I want to remind the advocate to perhaps go to the archives of this Parliament, where he will read that in 1903 the Parliament of South Africa adopted a proclamation that declared that 50% of all mines in this country would belong to the government of South Africa. From then to date those shares have not been seen.
However, what I want to say is that this was not called nationalisation, perhaps because those diamonds were shipped away to the mother country, England. Now that we are saying that these diamonds must support the people of this country, the children of this motherland, it is claimed that we are carrying out nationalisation. [Applause.]
When Sam Nujoma took over the government of Namibia he declared that 50% of their diamonds would belong to the Namibian people, through their government. The government of Botswana, under Sir Seretse Khama, also declared that 50% of the country’s diamond industry would belong to the government, and nobody called them Communists – they don’t even look like Communists. [Applause.]
I want to say that all the DA wants is for South Africa to continue to be the economic colony of other countries. [Applause.] I also want to remind the UDM that . . .
. . . uMphathiswa useza kulawula. UMphathiswa unamandla awanikwe ngama-70 ekhulwini abantu baseMzantsi Afrika.[ . . . the Minister will still manage. The Minister has power bestowed upon her by 70% of the people of South Africa.]
All power to the people!
I stand to add my support to the Minister on the Diamonds Amendment Bill, which she has just introduced to you this afternoon. Our aim with this Bill is to enhance and protect the diamond trade by making diamonds accessible to those South Africans who were previously denied opportunities in this industry, even when they could afford to buy these beautiful stones.
We also want to protect this trade from the threat of synthetic diamonds being passed off as genuine, legitimate diamonds. To this end, we have made it mandatory for consumers to be protected by ensuring that they have a right to know that the diamond they are buying is natural or synthetic, for pricing reasons.
Ngokucacileyo, idayimani ephekwe kwi-microwave e-laboratory iintsuku ezintathu yaze yavuthwa, ayinakufana naleyo . . . [Clearly, a diamond that has been cooked in a microwave in a laboratory for three days and has become ready, will not be similar to that . . . ] . . . produced by mother nature over three billion years. Failure to do this will be regarded as deception, and will be punishable. Enhanced diamonds are also artificially improved and therefore, in the same vein as synthetic diamonds, they have to be declared as such, as this will also affect their pricing.
This Bill introduces a new era in the regulation of the diamond trade in South Africa by combining the diamond trade with the precious metals trade through the Diamond and Precious Metals Regulator. This regulator will, in essence, replace the current toothless SA Diamond Board, the SADB, which had both the promotion and regulation functions. These functions are now to be split, where the regulator will focus only on the administration of the law, and the newly established State Diamond Trader, SDT, on promotion.
The board of the regulator will consist of four members from the business sector, unlike now, where the SA Diamond Board has become a mass meeting or a branch meeting of businesspersons who make favourable laws to serve their interests. We are putting an end to this situation.
Wawukhe weva phi ngemeko apho . . . [Did you ever hear of a situation . . . ]
. . . where the players are also referees. To make sure that this happens, the regulator will be funded through the fiscus, and not from levies, and we do not apologise for that.
I understand that there were questions as to why it is necessary for the state to enter the diamond trading industry through the establishment of the State Diamond Trader. Again, the state had to do this in order to address a market failure. The state is the only organisation that can contribute to and ensure equitable access.
Most unpolished diamonds were exported, with the non-site holders, the majority of whom were black players or black entrepreneurs, unable to access unpolished diamonds. Many diamond-cutting factories were lying idle. As I speak to you now, there is a modern precinct in Kimberley that is lying idle just because no one wants to supply it with rough diamonds.
Unpolished diamonds were also being offered, at a very high price, in large parcels to avoid their being bought in South Africa, thereby qualifying for export duty exemptions.
Bebeyibaleka nerhafu le. [They evaded tax.]
South Africa has missed its opportunities, and this Bill gives us the opportunity of “country of origin branding opportunities”. Kulo nyaka ndikhe ndaya eJapan naseChina . . . [This year I went to Japan and China . . . ]
. . . where they are crazy about South African diamonds.
Abayazi yonke le nto yokuba kuthiwe iidayimani zaseMzantsi Afrika ziphelile. [They do not understand the notion that South African diamonds are depleted.]
They believe that South Africa is the world’s diamond capital.
Ezona dayimani ziphucukile ziphuma apha eMzantsi Afrika. Kungoko kukho le pasile ekuzanywa ukubhida ingqondo yethu ngayo ngokuba ixutywe, ibe ingenakuphumelela zingekho iidayimani zalapha eMzantsi Afrika. Kulungile ke, siza kuzenzela ngokwethu le pasile. [Kwaqhwatywa.] Asidingi mntu uza kusixubela yona noza kusiqhatha apha.
UMphathiswa utshilo ukuba nabavela eAmsterdam, eAntwerp, naseYurophu jikelele, beza kwiiofisi zethu bephethe imali eninzi, bevinjwe iidayimani ze bagoduke naloo mali baye eYurophu. Nabo bathi: “Mphathiswa, nceda uphumeze lo Mthetho uYilwayo ukuze nathi size kukwazi ukuza kuqhuba ushishino apho.” [Kwaqhwatywa.] (Translation of Xhosa paragraphs follows.)
[The most precious diamonds come from South Africa. That is why there is this parcel that is used to confuse our minds by mixing it, while it cannot succeed without South African diamonds. It’s all right, we will create our own parcel. [Applause.] We do not need a person to mix it for us and deceive us here.
The Minister said that even those coming from Amsterdam, Antwerp and Europe as a whole come to our offices carrying a lot of money, and then, without any diamonds, they return to Europe with their money. They said: “Minister, please approve this Bill so that we can come and do business here.”] [Applause.]]
The price of imported diamonds can be inflated because there are middlemen involved – fortunately no women. [Laughter.] Each time a diamond changes hands, it changes value.
We know that there are people who are waiting in the wings for this piece of legislation to be passed so that they can come and polish their diamonds here in our country.
I also take this opportunity to bid farewell to one of our friends in South Africa, a person who shared the same vision as us, Mr Charles Bornstein, the former South African consul in Antwerp, Belgium. His intentions were to bring Belgian entrepreneurs to bolster this sector in South Africa. This is a day on which he would have rejoiced with us at seeing the passing of this piece of legislation, but he passed away only two weeks ago, after a short illness. However, we will continue where he left off. We will ensure that his mission becomes a reality. [Applause.]
It is people like him and those who tirelessly write to us about the unavailability of rough diamonds for manufacturing who forced us to make these changes, which we believe will give people equitable access to rough diamonds from our country.
There has been an insinuation that the State Diamond Trader will be biased towards certain clients, and will be corrupt. Hon members, I can assure you that the board of the State Diamond Trader will be tasked with ensuring that the State Diamond Trader fulfils its mandate of equitable distribution and local beneficiation of unpolished diamonds. The trader will monitor its clients to ensure that the beneficiaries have access to diamonds, and these will translate unpolished diamonds into polished diamonds and diamond jewellery in our country.
Permits to export unpolished diamonds will be strictly controlled and will be granted on a merit basis. The influence of investors will be minimised because the domination of government members on the board will ensure that this does not happen. The trader will have the duty to monitor the market, both locally and internationally.
To conclude, I believe that this piece of legislation is groundbreaking and will soon be emulated in our neighbouring countries that are also diamond producers. Gone are the days when Africans had to supply cheap raw materials to Europe, where they are beneficiated in the developed countries and come back to Africa at exorbitant prices as manufactured goods.
This piece of legislation will help us have an African diamond mix, and not a London mix. By passing this Bill, hon members, you will be allowing South Africa and Africa to take control of their destiny. Mayibuye iAfrika! [Bring Africa back!] [Applause.] Ibuyile iAfrika! [Africa is back.] [Applause.] Thank you, Madam Deputy Speaker. [Time expired.]
Mr H B CUPIDO: Madam Deputy Speaker, the Diamonds Amendment Bill provides the assurance that the emerging markets in South Africa will have an opportunity to benefit from the mineral wealth of this country. Against this positive scenario there are the dire predictions from major stakeholders in the mining industry.
Government should have addressed these fears by commissioning an urgent impact analysis study, as has been suggested by the mining conglomerates. The ACDP takes cognisance of the government’s determination to regain control of a valuable resource in the interests of local beneficiation.
The proposed export duty aimed at encouraging the big players not to export and the proposed establishment of the State Diamond Trader do not make it clear that the government’s intervention in the control of the market is the means by which it intends to hammer home the transformation of the mining industry, as envisaged by the Diamonds Amendment Bill. This sudden shift from free market principles is a matter of grave concern for the ACDP and we call upon government to clarify the political economic framework within which it will address the transformation of the industry.
In conclusion, the ACDP supports local beneficiation, but cautions against interventions that are not guaranteed to realise the objectives and may be seriously detrimental to the economy. Thank you. [Time expired.]
Mnr W D SPIES: Agb Speaker, in die beperkte tyd tot my beskikking kan ek nie veel meer sê nie as dat die VF Plus baie graag wil sien dat Suid-Afrika se minerale plaaslik verwerk moet word tot voordeel van die plaaslike gemeenskappe. Die Anglo-Boere-oorlog, ‘n honderd jaar gelede, is juis daaroor geveg. Ons steun dié beginsel sterk, en sal ook help met enige poging om dít reg te kry. Die regering se doel is juis om ‘n omgewing te skep waarin dit moontlik is om juis dít te bewerkstellig.
Die eerste prys is ‘n land wat so goed regeer word dat daar so ‘n aangename sakeklimaat, woon- en werksomstandighede heers dat dit nie vir die regering nodig is om wette te maak om sakebedrywighede in die land te hou nie. Die feit dat dit juis nodig is om hierdie wette in dié verband te maak, dui reeds op ‘n diepliggende probleem. Die VF Plus steun die mate waarin die nuwe wette onder bespreking probeer om deel van die probleem en dan ook die simptome aan te spreek. (Translation of Afrikaans paragraphs follows.)
[Mr W D SPIES: Hon Speaker, in the limited time available to me I cannot say much more than that the FF Plus would very much like to see South Africa’s minerals being processed locally for the benefit of the local communities. A hundred years ago, the Anglo-Boer War was fought for this very reason. We strongly support this principle, and we will join in any attempt to make it possible. The government aims precisely to create an environment in which it is possible to accomplish this.
The first prize is a country that is governed so well that a pleasant business climate, living and employment conditions prevail, making it unnecessary for the government to make laws to keep business enterprises in the country. The very fact that it is necessary to make these laws in this context already indicates that there is a deep-seated problem.
The FF Plus supports the extent to which the new laws under discussion try to address part of the problem and the symptoms as well.]
During the public hearings a member of the portfolio committee referred to the Freedom Charter and its reference to nationalisation of mines and mineral wealth. She then suggested that when the ANC publicly denounced the notion of nationalisation of mines and minerals in the 1990s it actually changed to a more pragmatic approach of redistribution through regulation and taxation.
In fact, it could be argued that, to the extent that mines were not actually nationalised, a similar outcome is now being accomplished by the creation of a legal framework, which effectively places an entire industry under the effective control of the government of the day, and the Minister in particular.
The FF Plus is concerned that the legal framework, introduced by the so- called MPRD last year, and followed by these amendments to the Diamonds Act are doing just that. I believe that many constructive suggestions were made during the public hearings by the stakeholders from the industry. Except for listening to the warning from the Chamber of Mines that the proposed Bill would constitute a money Bill, which would render it unconstitutional, the inputs from the industry were largely ignored.
The FF Plus can therefore not support this Bill.
Mr C M MORKEL: Madam Deputy Speaker, our progressive Constitution demands of us to redress the imbalances of the past. The Diamonds Amendment Bill extends this principle to give equitable access to cutters, polishers and manufacturing jewellers, whether they are black or white, who have historically been denied access to rough diamonds mined in South Africa so that beneficiation could earn such local beneficiators more revenue, create more jobs and increase the tax base and foreign reserves to fund socioeconomic development in other areas of government spending.
The objectives of the Bill are therefore undeniably noble and no single public submission raised any objection to these objectives. Yet some valid concerns around the potential unintended consequences of the transformation mechanisms of the Bill included: the uncertainty around the as yet undetermined percentage of diamonds produced by South African mines that would have to be sold to the State Diamond Trader; uncertainty around the percentage levy on the value of rough diamonds intended for export.
However, the ministry and the department have since allayed some of these concerns when they gave assurances that the above-mentioned percentages and exemptions would be adjusted in an agile and flexible manner to maintain a healthy balance between promoting equitable access to rough diamonds and the commercial imperatives of the industry according to the principles of supply and demand.
I am also particularly encouraged by the olive branches extended by government and the dominant role it plays in the industry. Examples of this include a signal from the Minister that the export levy could be a single digit percentage whilst a world-branded leader like De Beers, for example, has expressed its willingness to give away 50% of its local diamond deal to achieve transformation.
How is this willing seller, willing buyer approach in any way a form of nationalisation via the back door or front door? All have committed to transformation and nurturing the goose that lays the diamond-encrusted egg. It is up to this and the next generation therefore to build on the ashes and mine dumps of the past, a new economy that creates more jobs and entrepreneurs.
After consultation with the stakeholders at the public hearings, especially those in Namaqualand with whom I have worked over the last 12 months, I have no other choice but to support this Bill. Thank you. [Applause.]
Mr S K LOUW: Madam Deputy Speaker, hon members, we are once again reminded that an artist can change his paintings, but a diamond will retain its carats. Yes, it’s all about that shiny pebble that was identified as a 21 ct diamond, later named the Eureka, and the next important discovery, the 83 ct Star of South Africa, which was also found in the vicinity of Kimberley in the Griqualand region. It is needless to mention the Cullinan that is mounted in the Queen’s crown. This is the wealth of our country upon which the Freedom Charter principle “the people shall share in the country’s wealth” is built.
The Bill is a response to the diamond industry’s inability to develop the downstream part of the value chain and its inability to transform. As the ANC government we are committed to add value to our natural resources, implementing broad-based black economic empowerment regulations in the industry, and the development of local capacity.
The essence of the Bill is to discourage the export of uncut diamonds. The intended trading process is as follows: Uncut diamonds will first be offered to the State Diamond Trader or the Diamond Export and Exchange Centre, and emerging jewellery manufacturers can get rough diamonds from them.
During our oversight visit we had an opportunity to visit the Trans Hex operations in Bellville, as well as De Beers in Kimberley. We also went abroad to India and London to get an understanding of the market dynamics. During our visit one question continued to emerge, namely why we could not polish diamonds locally, as technology has improved tremendously and diamonds as small as 0,05 ct can be polished in our country.
By polishing them in this country we will be adding value and creating jobs. As a result, masses of our people will be skilled and empowered in this industry. As the ANC-led government we foresee a bright future for this industry and this should be attributed to the contemplated impact of the Bill.
The Bill is intended to unleash the economic potential of this industry in our country, as we believe that the diamond industry can do more for our economy. We must not lose sight of the fact that 10 years ago thousands of our people were retrenched from the diamond cutting industry in Kimberley. In Limpopo more than 1 500 workers were employed, and because of the unavailability and inaccessibility of rough diamonds they could not continue with their operations and were forced to close down. The unavailability of rough diamonds has led to the closure of many factories in this country.
The promulgation of this Bill will result in a serious shake-up of the sector. The implementation of this Bill could lead to the establishment of industrial development zones in diamond-producing areas. Taking into consideration that more than 6 000 miners were recently retrenched from the mines in Buffelsfontein and Hartebeesfontein, and 1 000 in Koffiefontein and Jagersfontein, this legislative development offers hope to those who were victims of retrenchments as they can be employed in the cutting and polishing industry.
This Bill seeks to stimulate more jewellery manufacturing and gem cutting, especially by the historically disadvantaged groups. It is imperative to note that globally we are the fourth largest diamond-producing country and yet we cannot beneficiate. This is what we are told by the so-called experts.
During our deliberations in the committee our government, especially the Department of Minerals and Energy, were heavily criticised by major mining houses. They predicted that job losses and mine closures were imminent if the Bill were to be processed. We know that they know that this is very far from the truth and that it is undoubtedly an empty threat. In reality, mines close because of the depletion of minerals in the mined area.
Their concern and fears emanate from the fact that they will be losing their grip on a monopoly, especially on the site-holding system that is currently being used by the major stakeholders in this industry. That also means uneconomical terms and conditions are set up by the main stakeholders in order to force the competition out of the market. The processing of the Diamonds Amendment Bill will bury those operational conditions in the dustbin of history.
We have also done away with the section 59 process. The Diamond Board was almost like a lame duck. It could not give a proper account of the number of rough diamonds being sent out of the country. The Diamond Board is now being replaced by a state regulator, and the board will consist of two members of the industry, two from labour, one from the precious metals industry and nine others at the Minister’s discretion.
The time has arrived for structures to be accountable. The days of structures not being accountable are over. The new regulator will take total control of this process. We are often tempted to ask one question: Why is the South African rough diamond content in the London mix so important? This is because of the fact that rough diamonds add value to the London mix. Or are they not devaluing South African goods in that mix? Should we then not be looking at branding South African rough diamonds? The answer is yes, our diamonds add tremendously high value to the London mix. The London mix can hardly be sold without South African diamonds.
One critical issue that reflected negatively on the department from the producers’ viewpoint was the delay in the issuing of permits to prospect, yet the producers don’t follow the correct process as set out by the Mineral and Petroleum Resources Development Act and the scorecard set up by the department.
All diamonds and any other mineral producers must comply with the necessary criteria – mining houses must have a clear environmental plan of how to rehabilitate the area where mining will take place, a proper social plan in which they give a clear progress report of community development, and comply with the mining charter by having a broad-based black economic empowerment partner. By so doing we believe there can be no delays in the processing of permits. We will rather welcome them to stimulate our economy and create jobs.
One issue that is critical that we have to address now is that of the nationalisation of the mines as mentioned by the opposition speakers. It is a fact that our people were forcefully removed from the areas where they lived by “them” because of the wealth of this country, because of the diamonds in the areas in which we lived; because of that our people were forcefully removed through the barrel of a gun, and therefore they are the last to speak. [Interjections.] This is our time. We are transforming and we have to ensure that things go the right way in our country. [Applause.] I thank you. [Applause.]
The MINISTER OF MINERALS AND ENERGY: Madam Deputy Speaker, I must say I was surprised at this turnaround by the DA, because since this Bill served before the portfolio committee I, the Deputy Minister, the DG and the officials have walked all the way with the committee up to this stage, and really, Adv Schmidt, at no time when I was sitting in, responding to people’s concerns, did you raise the issues that you are raising now. All I can say is that you are here to sing your leader’s song, which I read about in the newspapers for the first time. [Interjections.]
But let me say that the hon member Schmidt does not understand the notion of nationalisation and he’s using the term incorrectly. The intervention by the state in the market in the event of the markets failing to meet the public good is a tried and tested economic principle. This, in no way, amounts to nationalisation, as Keynes, who acknowledged this principle, would not have agreed to nationalisation.
The market has for centuries failed to promote beneficiation of our local minerals and it is for this reason that the state has intervened in the market, not as a player, but as a facilitator, through access promotion to raw materials. The State Diamond Trader that we are talking about will neither own nor trade in these minerals. Rather, it will make them available to our local cutters and polishers.
On the issue of the Minister’s unfettered power, which everyone is talking about, I would like to remind the hon member that there’s not even a single authority in this country that enjoys unfettered powers. All powers of the executive are exercised subject to a myriad of legislation, including our very own Constitution. The Promotion of Administrative Justice Act enjoins the Minister to exercise executive powers in a manner that is both reasonable as well as fair.
Furthermore, regarding the exemptions that you think are giving the Minister unfettered powers; the registration of unpolished diamonds does not offer me unfettered discretion. This an enabling instrument to regulate the flow of diamonds, as well as to provide a greater variety of diamonds to the manufacturers in South Africa. So, this mechanism has nothing to do with the constitutionality or otherwise of the legislation.
I would like to respond to the issue of the regulator - I think the hon Louw has dealt with that very well - and would just like to say that this is not a government-dominated regulator. Government only has four representatives in the regulator: four will come from the industry, two will come from Labour; there’s still the CEO, the chairperson and other people to be appointed by the Minister, so I don’t know what that was about. [Interjections.] And please stop heckling! [Interjections.]
Unfortunately, most members, including Adv Schmidt, spent too much time on an issue, which is not before this Parliament today, and that is the export duty. The export duty is not part of this legislation, but the fact of the matter is that they need to understand why we had the export duty in to begin with. The intention, a noble one, is to discourage exports of our rough diamonds without value addition. We obviously do not also have an intention of creating illegal trade in diamonds, so when Treasury looks at this matter we are going to make an input that will ensure that we achieve our objective, which is to encourage beneficiation and create access to rough diamonds in this country.
Lastly, it is not correct that this Bill has been bulldozed through Parliament. We believe that sufficient time has been given to everyone involved, the industry included, to participate in the process of this Bill. All standard processes have been followed for the Bill to be debated by this House today, so I’m happy for the parties that have participated in the debate that are going to support this Bill, and obviously it will become law today. Thank you. [Applause.]
Debate concluded.
Bill read a second time (Democratic Alliance, Freedom Front Plus and African Christian Democratic Party dissenting).
PRECIOUS METALS BILL
(Second Reading debate)
The MINISTER OF MINERALS AND ENERGY: Hon Deputy Speaker, colleagues, hon members, allow me to introduce to you the critical issues emanating from the Precious Metals Bill, which, like the Diamonds Amendment Bill, will have a positive impact on downstream beneficiation of our minerals. These two Bills from the mining sector complement each other as without these necessary amendments in the Precious Metals Bill we can never get to a stage where we are able to have diamonds from “mine to finger” because we do need precious metals to blend with our diamonds.
During the course of the public debates on these two Bills over the past few weeks, we have seen this Precious Metals Bill being somewhat overshadowed by the Diamonds Amendment Bill. I hope hon members will accord the same status to these two pieces of legislation we are debating this afternoon.
Even within the precious metals sector there is a different reaction to this Bill in the sense that those in the gold sector, which has been regulated for years through other legislative measures, did not have many concerns, but the platinum group minerals, which was not regulated, were very vocal about issues that the gold sector has been implementing all these years. These discrepancies of the past resulted in a situation where the gold sector had comparatively moved further in the beneficiation route than their counterparts in the platinum group minerals.
I must also emphasise that these levels of beneficiation, even though they were happening, are not enough, hence the reason why we are passing this legislation today. I am confident the hon members will support this Bill, as an increase in beneficiation, particularly in the platinum group metals, is very desirable for South Africa, and will make a very important contribution to our achieving faster economic growth.
South Africa is well endowed with both these minerals with a reserve base of approximately 87% in platinum group minerals and 40,7% in gold and we are the number one producer in the world for both these commodities at approximately 59% and 14% respectively on the supply side. However, although we have these resources we are not the leading beneficiators. And you may ask: Why, with all the years of gold’s production in South Africa, are we not the leading beneficiators? That is the reason why the two pieces of legislation are before us today, and I see a great potential for us to become a world leader in beneficiation of platinum, particularly with its role in industrial applications, as well as its purported role in reducing carbon emissions.
This Bill will go a long way in addressing this increased contribution. So, as hon members will be coming here to debate this legislation, I hope we won’t fail our people and our country and that we will support this Bill.
This Bill will be administered by the Diamond and Precious Metals Regulator, which was established in terms of the Diamonds Amendment Act that we have just debated and I will not allude to it further as I think we exhausted it in the last debate.
The object of the Bill is to provide for acquisition, possession, smelting, beneficiation, use and disposal of precious metals. The Bill therefore seeks to bring clarity on the definition of “unwrought precious metals” as contained in the Mining Rights Act of 1967, as the previous definitions had some shortcomings. There is now a clear distinction between unwrought precious metals and semifabricated precious metals. This allows for legislation that is less stringent on semifabricated precious metals, as well as less stringent control measures. We believe these less stringent measures and less stringent control measures will lead to further beneficiation of this mineral resource.
The reason for determining the percentages of purity in the definition to a level of three nines is to refine precious metals to a higher level of purity before they are worked into semifabricated products. Also, the percentages provide an additional distinction between unwrought and semifabricated precious stones.
The Bill deregulates the possession of silver as it is mined in very minute quantities in South Africa, mainly as a by-product and its value has declined over the years. It is in the order of ten whilst the other precious metals are in the order of hundreds of dollars. People were worried, asking why are we deregulating silver, actually not understanding that we are making it easy for people to work with this resource. So, we are making it easily accessible for use in jewellery making by deregulating it. So, there will be no regulation at all. You can do as you please with silver in this country.
Every applicant for a permit or a licence will be required to comply with the objectives of this Bill, as well as the broad-based socioeconomic empowerment. We expect that through this Bill we will encourage local beneficiation. We do not expect local beneficiation to be compromised by international demands so as to ensure broad participation throughout the value chain.
The Bill introduces new types of licences, namely the refining licence and the beneficiation licence. The refining licence will allow the holder thereof to hold unwrought precious metals and be able to directly sell semifabricated precious metals to the holders of a jewellery permit and a beneficiation licence. Industries that will derive benefits from the beneficiation licence would be industries in the IT, avionics and electronics industries who do not hold a refining licence but may want to work with both unwrought, as well as semifabricated precious metals. The licence, we expect, will be issued for a period of ten years.
We understand that this industry has been operating under shrouded rules of secrecy virtually designed for it by itself. Acknowledging the above, we believe that this piece of legislation extends security of tenure in that the period of transition is two years in which all companies will have the opportunity to comply with and operate within the environment created by this legislative framework. This indeed creates a certainty in that every operation’s lifespan will then be linked to the refinery licence.
In conclusion, I believe that we now have a balanced piece of legislation that will have a favourable impact on the South African economy. We need to recognise that the structural shift that is taking place in our economy requires us to increasingly focus on the value adding aspects of the mining sector. Whilst such changes might be uncomfortable for vested interests, they are very necessary for our long-term sustainable growth.
I look forward to members supporting this Bill and favourably embracing the changes that need to take place if we really do want to transform our economy and our society. I thank you, Madam Deputy Speaker. [Applause.]
Ms N F MATHIBELA: Madam Deputy Speaker, hon members, Ministers, Deputy Ministers, ladies and gentlemen in the gallery, I greet you. The ANC supports this legislation. We support this Bill.
The legislation on precious metals is celebrated in the context of the 50th anniversary of the Freedom Charter. This legislation seeks to translate the clause, “The people shall share in the country’s wealth,” into reality. As the ANC, we continue to develop legislation that is in the interest of all South Africans.
The Precious Metals Bill and the Diamonds Amendment Bill are pieces of legislation premised on the following: accountability, transparency, economic growth, deracialisation of the industry through broad-based BEE, skills development and the development of the local industry through beneficiation. As the ANC we believe that legislative development will go a long way in contributing positively to job creation and skills development.
Some of the industry’s players say that jobs will be lost if this legislation is promulgated. But, when we asked them to promise that jobs would not be lost if the legislation was stopped, they failed to commit themselves. The issue of probable job losses bandied about by industry players is being used as a decoy to delay transformation.
Maloko a mantle, re le ANC, re itse sentle gore go mekgatlho ya sepolotiki le ya borakgwebo e e sa ikemisetsang go nna karolo ya kago-seša le tswelelopele ya intaseteri ya gauta le polatinamo. Re le ANC, re dumela gore khumo ya Aforika Borwa ke ya batho botlhe. Ka molao o moša re dumela gore batho ba tlile go kotula go le gontsi.
Re ikemiseditse go fedisa tshotlego le khumanego mo bathong ba Aforika Borwa. Batho ba Aforika Borwa ba tshwanetse go kotula mo diporojekeng. Tiriso ya molao o moša e tlile go neelana ka diporojeke, katiso le diphatlhatiro. Bašwa le basadi ba tshwanetse go bona katiso ya go betla le go kgabisa gauta, teemane le polatinamo.
Kgabiso ya polatinamo, gauta le taemane e tlhodile ditiro lefatsheng ka bophara. Re le puso ya ANC, re itse sentle gore ekonomi ya Aforika Borwa e tlile go gola le ditiro di tlile go sireletsega. Re le ANC, re ikemiseditse go diragatsa se batho ba Aforika Borwa ba ileng ba se kopa ka Kliptown ka 1955, fa ba dumelana ka Freedom Charter. Freedom Charter ke lekwalo la batho botlhe ba Aforika Borwa, bantsho le basweu ba kopane.
Re le ANC, re dumela gore batho ba tshwanetse go tshela ba itekanetse le gore ba tshwanetse go dira mo ba batlang. Re dumela gore borra- le bommakgwebo ba tshwanetse go dira kgwebo mo maphateng otlhe a ikonomi ya Aforika Borwa. Precious Metals Bill e ikemiseditse go dira gore batho botlhe ba dire kgwebo mo lephateng la intaseteri ya meepo. (Translation of Tswana paragraphs follows.)
[Hon members, as the ANC, we are aware that there are political parties and business organisations that do not intend to be part of the reconstruction and development of the gold and platinum industry. We, the ANC, believe that the wealth of South Africa belongs to its people. We believe that people will benefit a lot from this new piece of legislation.
We intend to bring suffering and poverty to an end for all the people of South Africa. The people should benefit from this Bill, as new projects will be initiated, training will be provided and new job opportunities will open up. The youth and women have to be given training in handcrafts and in gold, diamond and platinum design.
Platinum, gold and diamond design has created jobs worldwide. The ANC-led government knows very well that the South African economy will grow to secure jobs. As the ANC, we intend to implement the aspirations that the people of South Africa set down at Kliptown in 1955, when they drafted the Freedom Charter. The Freedom Charter is a document of all the people of South Africa, both black and white.
The ANC believes that people should live under healthy conditions and work wherever they want. We believe that businessmen and businesswomen should do business in all sectors of the economy in South Africa. The Precious Metals Bill will allow all the people to do business in the mining industry.]
The citizens of the country, led by the ANC, in 1992 proclaimed:
The mineral wealth beneath the soil is the national heritage of all South Africans, including future generations. As a diminishing resource, it should be used with due regard to socioeconomic needs and environmental conservation.
The ANC is committed to ensuring that the mineral value chain is developed downstream and the skills base created. The legislation is a logical tool and vehicle in ensuring that the mineral wealth of the country benefits all citizens.
Some prophets of doom and gloom predict that about 8 500 jobs will be lost if the Bill is promulgated. As the ANC government, we have observed an immense shedding of jobs since the advent of democracy and we feel that that does not augur well. It is quite interesting to note that between 1994 and 2003, about 176 824 jobs were lost in the mining industry. The development of a local beneficiation industry will address the challenges of job losses and job scarcity.
The Chamber of Mines says the Precious Metals Bill will neither provide greater downstream beneficiation opportunities, nor create greater access to precious metals primarily in the jewellery trade and in generalised manufacturing, and that the Bill is likely to affect beneficiation in this country negatively and be counterproductive.
Re le puso ya ANC, ga re dumela se Mokgatlho wa Meepo o se buang. Re dumela gore Precious Metals Bill e tlile go oketsa bokgoni jwa rona jwa go kgabisa gauta, polatinamo le taemane. Re le ANC, ga re kitla re dumela go bolelelwa dilo tse di fosagetseng. (Translation of Tswana paragraph follows.)
[As the ANC, we do not agree with what the Chamber of Mines says. We believe that the Precious Metals Bill will enhance our skills development in gold, platinum and diamond design. The ANC will not be misled.]
Some so-called experts tell us that our competitive edge lies in mining minerals and that we cannot beneficiate. In some instances, we are told that the sector is highly technical and therefore it cannot be BEE- compliant. As the ANC, we regard that as a myth used by forces of maintenance to delay change. On that note, we say that no amount of scare tactics will stop the train of transformation as it effects change in this industry.
The leader of the DA, the hon Tony Leon, said that the ANC was not helping the people, that it was helping itself and it must be stopped. [Interjections.] It becomes clear that the hon Tony Leon forgets that the ANC is the custodian of the interests of the people of South Africa. We assure the hon Tony Leon that his future lies in good hands in the ANC, and he must lighten up and phola [relax.]
We are the only organisation that has a vision for the country, and we believe that South Africa belongs to all who live in it, black and white. I thank you. [Applause.]
Adv H C SCHMIDT: Madam Chair, this Bill intends to ensure local beneficiation of the country’s precious metals, such as gold and the platinum group of metals, to promote sound development of precious metal enterprises and to ensure that the precious metal resources are exploited and developed in the best interests of the country.
However, and as indicated during the presentation by the Chamber of Mines and we unfortunately have to agree, this Bill will not achieve these intentions and could unfortunately actually undermine the achievement of these intentions.
The main reason for this statement is, inter alia, owing to the introduction of a new category of precious metals, being “semifabricated precious metals”, following the introduction of a new beneficiation licence, which complicates rather than simplifies the existing position.
In addition thereto, the introduction of the Diamond and Precious Metals Regulator introduces an additional layer of regulatory control for the industry. The regulator will also have unlimited discretion, as no guidance on how the discretion is to be exercised is provided in the Bill. We are back to the problem in the Diamonds Amendment Bill, Madam Minister.
The position creates uncertainty and is possibly unconstitutional, an issue raised during the presentations. And I beg to differ, hon Minister: During your single appearance at the diamond hearings when the department came to brief the committee on the responses, I indicated in fact our possible opposition to the Bill - you were there - on the basis that certain fundamental parts of the Bill were non-negotiable. And I indicated that to you.
The issuing and renewal of licences and permits, which are currently simple administrative processes, will be more difficult and cumbersome and will ensure more uncertainty. The beneficiation licence will introduce additional administrative burdens without any benefit to beneficiation.
The further imposition of a permit to import will also introduce new additional administrative burdens, which have practical considerations that could negatively affect current agreements, investor confidence and local employment. The approval for export not only creates a new administrative burden, but also provides no criteria, once again, for the Minister, who has unlimited discretion, which is also arguably unconstitutional.
Whilst the introduction of the regulator and the associated costs and administrative procedure are questionable, the Bill will unfortunately neither provide greater downstream beneficiation opportunities nor create greater access to precious metals primarily in the jewellery trade and in generalised manufacturing.
In terms of this Bill, the platinum sector, which is currently not regulated, will in addition to the gold sector also be regulated. The argument of equitable access to precious metals is not, in our view, addressed fundamentally in this Bill. Mentioning it as an objective of this Bill is misleading to say the least. The Bill does very little, if anything, to promote equitable access, in particular for the poor society. The regulation of the platinum group of metals will not in itself ensure local beneficiation nor equitable access, whilst the introduction of a state-owned and state-controlled Diamond and Precious Metals Regulator to regulate the industry will not assist in reaching this objective.
Although we agree with the intent expressed in the Bill of making South Africa a major international minerals beneficiation country – with which we agree - in order to grow the local beneficiation industry in South Africa, this Bill, with the accompanying Diamonds Amendment Bill as I have stated before, will neither ensure this nor will it ensure the offset in the loss of jobs expected in the production sector, which is currently believed to provide 417 000 workers with employment.
The wide and unfettered discretion allocated to the Minister is arguably unconstitutional in light of the lack of guidance and criteria set out in the Bill in terms whereof the Minister is expected to exercise her various discretions.
This Bill is therefore likely to be counterproductive and to affect beneficiation negatively. The DA will therefore be opposing the Bill. I thank you, Madam Chair. [Applause.]
Mr E J LUCAS: Chairperson, the Precious Metals Bill, which repeals the remaining provisions of the Mining Rights Act of 1991, is an important piece of legislation as it provides for the acquisition, possession, smelting, refining, beneficiation and disposal of precious metals. The fact that there will only be one regulator for both the diamond and precious metals industries will in itself result in savings on administration costs.
We in the IFP see beneficiation as a crucial component to the real development and growth of the various industries within the mining sector. It is therefore encouraging that this Bill makes provision for a precious metal beneficiation licence, which will be issued for a period of 10 years and renewable for further periods not exceeding 10 years.
We hope that this will provide a much-needed boost for beneficiation in the industry. The requirement for the transportation of precious metals will be that the persons transporting it must be in possession of a certificate. It is interesting to note that even though catalytic converters are being manufactured in South Africa, South African cars are not being fitted with them; only cars that the manufacturers export are being fitted with converters. I believe that the motor industry should be engaged in this discussion.
The precious metals industry has to take a serious look at the involvement of the historically disadvantaged South Africans in the business, because their involvement and participation must be increased. At the hearings it was said that incentives are required for business to make investments and to develop skills. The IFP agrees with this sentiment. I do believe that, as we proceed, impediments in the industry will be taken care of. The major task is that we, as South Africans, must take up the challenge and work together.
The IFP supports the Bill. I thank you.
The DEPUTY MINISTER OF MINERALS AND ENERGY: Chairperson, Ministers and hon members . . .
. . . . Mna ndikhule esikolweni kusithwa bantwana amagqwetha akrele-krele kakhulu . . . [ . . . I grew up at school with teachings that said: Children, lawyers are very intelligent . . . ]
However, this is not the case with the advocates in the DA. Everything is complicated. All these Bills are very complicated for the advocate. I don’t know where he studied his law. I used to think that lawyers make the best parliamentarians because they know the law. I don’t know what’s happening now. [Interjections.] This Bill is unconstitutional. I have a right to joke; I’m a human being. All the serious Bills that we have ever had in this Parliament are allegedly unconstitutional.
Andazi ke noba thina lo Mgaqo-Siseko asiwazi na kanti wawungabhalwa sithi na? [I do not know whether we do not understand this Constitution; didn’t we draft it?]
These bills go through hundreds of law advisers and lawyers.
Andazi ukuba zigqitha kanjani kubo. [I do not know how they passed them . . . ]
Mr W P DOMAN: But politics play a role.
The DEPUTY MINISTER OF MINERALS AND ENERGY: I think politics and the law are not very different. The law is about politics and politics is about the law. Hon members, allow me again to clarify issues pertaining to the Precious Metals Bill, as introduced by the Minister for consideration and adoption by this House.
Just to reiterate, I would like to remind hon members that this Bill and the Diamonds Amendment Bill complement each other; in the sense that one cannot have an excellent piece of jewellery manufactured without the use of both precious metals and diamonds, and we have both in South Africa.
I would like to deal in more detail with the licences and permits that we propose in this Bill, besides the new definitions of unwrought and semifabricated precious metals, these licences are central to the changes we are proposing. A refining licence, which would replace the recovery- works licence and generally allows holders to deal with unwrought precious metals will also be required for dealing in all platinum group metals and not only platinum and iridium as is currently the case.
Through this legislation the refining licence holder will be permitted to sell precious metals in semifabricated form to jewellers and precious metal beneficiation licensees. This will facilitate the flow of precious metals to jewellers and other beneficiators in the precious metals value-addition chain. We must remember therefore that the holder of this licence will also be able to acquire semifabricated precious metals for the purpose of recycling such metals.
Contrary to popular belief, the introduction of the beneficiation licence was thoroughly thought through and it was done purposefully. The licence caters for people other than jewellers who use both unwrought and semifabricated precious metals to produce final goods. It is also suitable for researchers. Again there will be no need for people to apply to the Receiver of Revenue and the SA Police Service to obtain this licence, as it will now all be done under one roof, which is much simpler, not complicated, Adv Schmidt.
People in this trade currently have to rely on a special permit to work with unwrought precious metals, which is rather cumbersome. Therefore the beneficiation licence will be valid for 10 years and renewable, and this will also be an added advantage for our jewellers.
We have also retained the jewellers’ permit for jewellery manufacturers; however, it is now valid for five years instead of one year, as it currently stands. In addition, the onerous process of applying for the permit at different departments will be removed and on top of that the licensee will only be expected to keep proper books of account as compared to a register.
The centralisation of the administration of the Precious Metals Bill within the Department of Minerals and Energy is very critical, particularly for jewellery manufacturers. This centralisation is also important for the department, because it will now be possible for us to monitor the use of precious metals with confidence and to satisfy ourselves that the levels of value addition in our country will sustain development in our country far beyond mining.
Our reasons for deregulating silver, as the Minister has already indicated, are based on the volumes produced in the country. I would also like to remind hon members that part of our reasons for regulating metals is to curb crime related to theft and smuggling of metals, which negatively affect our mining industry. That is why there are more stringent rules around unwrought precious metals like gold and platinum group metals, which include platinum, palladium, rhodium, iridium, osmium and ruthenium.
Let us look at the implications of deregulating, for example, silver. Any person who has a legitimate business will now be able to acquire silver in the same way that he or she is able to acquire copper, and to use this metal for manufacturing jewellery and other articles. They will not need to keep a register, which is burdensome. They will not need a safe of a prescribed category, and they will be able to dispose of their finished product as they see fit.
What this means for groups like Gabane, for women’s groups and also crafts people in our rural areas, is that they can adopt their traditional skills to produce craft jewellery made out of silver or copper, without having to go through the existing processes that actually hamper progress in this sector.
Before I sit, I want to raise a matter of concern of this government about the restructuring that we see happening in the mining industry. There is a new fashion today; everybody is creating a PLC. Zonke ezi PLC zazingekho [All these PLCs were not there] . . . when we were not talking about restructuring our laws, when we were not talking about involving the black majority in the mining industry.
We just want to warn the industry that this government is not sleeping, even if we look as if we are sleeping. These days we open our eyes, even when we are praying. We closed our eyes once and the country was taken; even our cows were taken. It is only when the women saw that the children didn’t have milk that the men woke up. [Laughter.]
Now we are saying that we are not prepared to close our eyes whilst they are ring-fencing our iron out there. We are asking why are they ring- fencing that iron? Well, we want to ring-fence our platinum out there. We want to ask: Why ring-fence and form a PLC in London or ring-fence our diamonds and form a PLC in Luxembourg?
There is not a single diamond mine in Luxembourg or in London and therefore if there is a plan to take away the assets of this country there will be war. I just want to warn everybody. Thank you very much. Ibuyile iAfrica. [Africa is back.]
Mr H B CUPIDO: Madam Chair, the Precious Metals Bill will bring into effect additional administrative procedures. The ACDP notes that the industry’s stakeholders have voiced their objections to the fact that the proposed licensing changes, in particular, will increase the administrative burden. The Bill requires motivating documentation that is comprehensive and well prepared. This has been criticised as an unnecessary addition to the administrative workload.
The ACDP supports the emphasis that is placed on the administrative procedure that will promote orderliness and transparency. It is our hope that the new administrative procedure that will come about will be streamlined for maximum efficiency. The ACDP maintains a strong awareness of the job creation potential within the administrative sphere that is apparent in this new scenario.
The ACDP further recommends the SA Diamond and Precious Metals Regulator Act as a central operations body for the administrative component of this Bill. I thank you.
Mr C T MOLEFE: Chairperson, hon Ministers and Deputy Ministers present here, hon members, and everyone who is with us today, in 1994 all those who had been discriminated against proudly chanted the slogan: “Freedom in our lifetime!” Today, through the debates that we have around the two Bills, we are saying, “Access and beneficiation in our lifetime!”
Today, on 1 November 2005, through the debates on both Bills, we are embracing the Freedom Charter clause that dictates unequivocally that, “We all shall share in the country’s wealth
Setswana, Moatefokate Schmidt, ra re bana ba motho ba kgaogana tlhogo ya tsie. [In Setswana, Adv Schmidt, we say siblings share whatever little food there is.] We believe that the time has come for the previously disadvantaged to share in the minerals of our country. [Interjections.]
Moulana M R SAYEDALI-SHAH: Yes, the thing is that you don’t share; it is just the cronies that get everything. That is the problem.
Mr C T MOLEFE: I wish hon De Lille was here because she promised the President that she would be dealing with these noisemakers. It doesn’t help this country to have people like you.
This piece of legislation is monumental as it seeks to transform the precious metals industry, which is 119 years old, after the first discovery of gold on a small farm in the Witwatersrand in 1867. This has been 119 years of sheer exploitation of the masses of our people, characterised by race-based ownership. Those that oppose this Bill indirectly agree with the continued exclusive white ownership of this industry, and this Bill is therefore addressing such issues.
Although he specifically talked about diamond beneficiation, hon President Mogae of Botswana also emphasised the urgent need for regional countries to access and beneficiate their minerals. It is for this reason therefore that we call upon the DA and other political parties to join the citizens of this country in our chant: “Access and beneficiation in our lifetime!”
Local beneficiation or manufacturing has the potential to reduce the impact of the ongoing job losses in the mining sector. Some industry role-players said during the hearings that these Bills are going to lead to job losses.
However, there is one thing that I liked during our hearings: whenever Cosatu took the stage to tell them that that is blatant lies, they all ran away from the hearings; even some of these hon members who have been talking on this Bill today, absconded. They were never there, but today they want to tell us who were there, about what the industry said. In particular, the Chamber of Mines and Emplex, when persistently asked whether this Bill is going to lead to job losses, said: “No, there is no way that it would be doing this because, anyway, 178 000 jobs were lost between 1994 and 2003 in the mining industry. This is the reason why even today we have Cosatu marching and protesting about the issue of job losses, and not about the introduction of this Bill.”
Cosatu, for that matter, supported the two Bills, whilst a section of the industry objected to them. The DA, today, vocally declared their opposition to the transformation process. This confirms the notion that in content and in character the DA remains the DP. Therefore, as a people, we must say no to their Animal Farm-type of approach that says: “All animals are equal, but some are more equal than others.” Remember, the Freedom Charter says: “All shall be equal before the law.” [Interjections.]
Mr M J ELLIS: That’s what we say.
Moulana M R SAYEDALI-SHAH: But to the ANC it’s not so.
Mr C T MOLEFE: Chairperson, the Chamber of Mines was established in 1887, but today we remain a country with scarce beneficiating and manufacturing skills. Furthermore, we have one company, Johnson Matthey, which is the preferred manufacturer in this country and has been in existence for many years.
Why are we not skilled, and why are we not beneficiating in this country? For so many years, out of their own volition, they never transformed the industry. It is for this reason that we are saying that the Bills that are being introduced will level the playing fields and allow the previously disadvantaged masses of our country to have a stake in the minerals of our country.
In conclusion, we want to say that the ANC, together with the citizens of this country, supports this Bill. And finally, as the chairperson said earlier on, he will take members of the DA to a workshop. I don’t think they will ever change, because they are there to oppose whatever the ANC raises. Even when you tell them that they are members of the DA they will oppose that and perhaps say that they are members of the DP. Thank you, Chairperson. [Laughter.][Applause.]
The MINISTER OF MINERALS AND ENERGY: I believe your last statement, hon member. Hon Chairperson, really . . .
. . . abantu endikhule nabo bangayazi laa nto kwakusithiwa yi-LP. Niyalikhumbula ela cwecwe likhulu elalidlala kwi-gramafoni? Lalisithi lakuba nomkrwelo litsho njalo kulaa ndawo inye, lingadluli. Uyazi, uAdv Schmidt uvele waba lelo cwecwe linomkrwelo ngoba yonke laa nto ebeyithethe kwi-Diamonds Ammendment Bill okanye uMthetho oyilwayo wezeeDayimane uphinde yona.
Yilaa nto ke ibithethwa nguSekela-Mphathiswa, ezibuza ukuba kanti aba bantu basemthethweni abazongcungela na kanti, ingakumbi xa kuthethwa ngomthetho. Ngoko ke andizi kuziphendula ezi zinto uMnu uSchmidt azithethileyo kuba asizo zinto eziphuma kuye ngaphakathi njengelungu lekomiti.
Kwaye ngaphezulu - ndikukhumbuze Adv Schmidt - ngelaa xesha lo Mthetho uyilwayo ubuphambi kwekomiti khange uwuphikise. Waye wathi wena awuzi kuvota, hayi ukuba awuzi kuwuvotela. (Translation of Xhosa paragraphs follows.)
[ . . . people with whom I grew up would know what an LP record is. Do you remember that big vinyl record that used to be played on a gramophone? If by any chance the surface got scratched, it would play in one place continuously without going further. Advocate Schmidt is behaving just like such a damaged LP record today because he repeats what he spoke about in the debate on the Diamonds Amendment Bill.
The Deputy Minister also made her comments about legal people, as we thought that they were bright and that they were experts, especially with regard to legal matters, and I understand why. I, therefore, am not going to waste time responding to Mr Schmidt’s comments because I am sure they do not come from him personally as a member of the committee.
Furthermore – if I may remind you, Adv Schmidt - you did not voice any objection to this Bill when it was tabled before the portfolio committee. You also said that you were not going to vote, and not that you would not vote in support of it.]
Mr M J ELLIS: Why don’t you check with the caucus?
The MINISTER OF MINERALS AND ENERGY: Today you have changed your mind.
Let me tell you . . . [Interjections.]
Mr M J ELLIS: Tell us about the declaration of war. The MINISTER OF MINERALS AND ENERGY: . . what we have done, Adv Schmidt, and I‘ll try and assist you, firstly, contrary to what you say, the definition of semiprecious metals, which is an enabler in this legislation, actually reduces the regulatory and administrative burden. This will allow downstream beneficiation, more freedom and also allow members of the industry to focus on their businesses.
Secondly, in this second Bill we have a longer transitional period of two years as compared to the one that we had in the first Bill, the Diamonds Amendment Bill. This is to allow companies that have long-term contracts to do what they need to do in order to comply with this new legislative framework.
Finally, the administrative procedures that are proposed here are meant to streamline the application for and granting of all the licenses and permits that are required. Now, several members, such as hon member Mathibela, and the comrade from the ANC who spoke before me, have spoken about this story of job losses.
If there are jobs to be lost, who will shout first? It is the unions. The unions will stand up and shout if their members are going to lose jobs. When the trade unions came before the portfolio committee they never raised the issue of job losses owing to this piece of legislation. Even the people who were alleging that there would be job losses couldn’t justify their claims when they were asked: “In the event of this piece of legislation being withdrawn, do you guarantee that there won’t be job losses?” They couldn’t because here we are dealing with mineral resources, which by their nature will come to an end.
So when the resource comes to an end and the area is not mined, jobs are going to be lost. This is the reason we as government are saying that now, during the lifetime of a mine, come up with a plan that you are going to execute once the resources are exhausted down there.
The industry has to understand that we seriously want those plans to be placed on the table when they come to us to say that after they have mined this mine, this is what is going to happen to their workers. You train them and give them skills that will enable them, even if they go back home, to be able to create livelihoods for themselves.
I think, as you said, hon member Mathibela, this story of job losses is just a decoy by our detractors to try and stop or halt our transformation agenda, which is something they cannot and will not do.
Talking about job losses in the face of these two Bills actually shows short-sightedness, because for the long-term sustainability of the industry, it needs to invest in areas other than mining, which is going to enable the industry to live beyond its lifespan.
If we create beneficiation, we start giving our young people new skills in cutting, polishing and tool-making, etc. I am talking here about skills that, even when the mines have closed down, could be exported to other countries either in Africa or elsewhere. Therefore we believe that this is going to enable us to attract investment into the country, grow our manufacturing base and create more jobs in the downstream.
I thank all members and all parties who have supported this piece of legislation. Thank you, Madam Chairperson. [Applause.]
Debate concluded. Bill read a second time (Democratic Alliance dissenting).
REFLECTING ON CHARACTER OF OTHER MEMBERS WITHOUT PRIOR WARNING
(Ruling)
The HOUSE CHAIRPERSON (Ms C-S Botha): After members’ statements on 25 October 2005 and in response to a remark by the hon Minister of Education regarding a ruling I had given earlier, I stated that I would consult Hansard and return with a ruling.
Having now had an opportunity to study Hansard, I wish to rule as follows: The Minister of Education contended that members should not reflect on the skills or abilities of other members without due notice to those members that such references would be made.
Whilst it is practice in this House that members, as a courtesy, inform other members beforehand if they are going to attack them politically, whether or not that has been done is not for the Chair to rule on, nor would it have been feasible in this instance as the hon Chief Whip of the Opposition was responding directly to an earlier statement by the hon Chief Whip of the Majority Party on the same matter.
In my ruling at the time I pointed out to the majority party that they did have another slot in which to respond to the points raised by Mr Gibson, but they elected not to use that opportunity.
To the extent that the Chair was asked to express itself, I remain satisfied that the member’s statement by the hon the Chief Whip of the Opposition did not amount to a personal attack on hon Mr N T Godi as there was no reflection on his character or conduct. In view of the aforementioned, I now regard the matter as disposed of.
NURSING BILL
(Second Reading debate)
The MINISTER OF HEALTH: Chairperson, hon members, I am tabling the Nursing Bill today, which replaces the legislation that currently regulates the nursing profession. The current legislation dates from 1978, and no longer reflects either government policy or changes in thinking concerning the manner in which the nursing profession is structured, hence it was necessary to replace the current law in its entirety.
Before I deal with the substance of the Bill, kindly allow me to provide a brief historic context: In 1994 four nursing councils existed, namely the Bophuthatswana, Ciskei, South African and Transkei nursing councils. As you may all be aware, these were established based on the discriminatory laws of the apartheid government.
We had to abolish all these councils and establish an interim one at national level. That interim council was mandated to come up with amendments regarding the composition of the council. Our approach towards the professional councils was to give them autonomy to do their work properly. The amendment in terms of the composition proposed that the nursing council should consist of 39 members comprised, as follows: 12 professional nurses in four enrolled categories, elected by the profession; 18 members appointed by the Minister, with nine of these being community representatives; six professional nurses; two nursing students and one Department of Health representative.
The first democratic SA Nursing Council was inaugurated in 1998 for a period of five years. The council was elected through an open election process; however, there were serious problems that were observed. The election results did not reflect the country’s demographics, its geography or the skills needed to have an effective council. As a result, my predecessor had to make sure that the 18 members that she appointed were representative and had the skills necessary to complement the elected group. The same situation repeated itself during my tenure with the 2003 nursing council elections.
I need to indicate that the same issues also characterise the other four professional councils, so it is not only the Nursing Council that has these challenges. In 2001 I then appointed a task team with the mandate of looking into the transformation of statutory health councils, since the pace of transformation within these councils was not satisfactory.
The task team consisted of members from government, members serving in the statutory health councils, council officials and academics. They made several recommendations, which have been used as a basis for the drafting of the Nursing Bill. The other professional councils are in the process of reviewing their legislative frameworks, based on those recommendations as well.
I need to highlight this aspect to indicate that the contents of the Bill before us are the result of a carefully considered and thoroughly debated exercise. I am pleased to highlight the following key areas in the Nursing Bill: The language used in the Bill makes for easy reading, especially for members of the public whose interests the Bill seeks to protect.
Some of the objectives of the Nursing Council, as listed in the Bill, are: to promote the provision of nursing services to the inhabitants of our country that comply with universal norms and values; to establish, improve and control standards and quality of nursing education and training within the ambit of the Act and any other applicable laws; and to maintain professional conduct and practice standards for practitioners.
The Bill significantly increases the accountability of the Nursing Council and strengthens the requirement for sound corporate governance. No statutory, professional, regulatory body operates in a vacuum. It must be accountable to somebody. Since government is the elected representative of the people of our country, the new Nursing Bill makes the Nursing Council accountable to the Minister of Health for the performance of its functions and duties. It requires the council to prepare strategic plans that spell out how the council will achieve its objectives under the Act, and to report every six months on the status of nursing and on matters of public importance.
The Bill also makes provision for codes, such as a code of conduct, which members of the council must observe. If a member of the council fails to do his or her job as a member, or engages in unauthorised or fruitless, wasteful expenditure of council funds, the Minister may terminate his or her membership.
Of major importance is to ensure that the Nursing Council, like all other statutory councils, remains true to its mandate of protecting the public. The council is not a representative association for nurses. It is a regulatory body that must ensure that professional standards and ethics in nursing are upheld, so that the public trust in nurses is maintained and that nursing continues to be a profession of which all nurses can be proud.
The composition of the council has been reduced from the present 39 members to 25. This is to facilitate improved efficiency and corporate governance through a smaller and more streamlined council. Instead of holding extremely expensive elections every time it is necessary to appoint a new council, members will now be appointed by way of a process of nominations put forward by members of the profession.
I want to emphasise that the Nursing Council is an expert body that requires members who are knowledgeable about the many and varied aspects of nursing: nursing education, professional ethics and the manner in which nurses are required to conduct themselves as professionals.
Most of those serving on the Nursing Council will be required to have expertise in nursing, but this knowledge will be complemented by those with expertise in areas such as finance, law, consumer affairs, human rights and ethics. Creating this balance is critical for the Nursing Council to carry out its mandate. Community representation is catered for, but I wish to stress that this too will need people with proven skills in community work.
Our nurses are crucial to the delivery of health services in South Africa. They are an extremely valuable and much-needed component of our heath system. We must have a regulatory body that is able to ensure that we have a flourishing and highly professional pool of nurses in South Africa to continue the good work that the nurses do in our country.
The Bill makes it mandatory for employers to submit annual returns of nurses in their staff establishment, thus assisting with human resources planning and enabling the Nursing Council to hold employers accountable for nurses in their staff establishment being properly licensed to work in terms of their registration.
The final democratic accountability and ultimate responsibility of guiding the development and strengthening of the health system, promoting health care and protecting the public lies with the Minister of Health. The Minister of Health therefore has put into place mechanisms to assist the Minister in fulfilling this role. All statutory health professional councils have to work more closely with government to ensure that the health system is able to achieve the goal of providing good quality services.
Their assistance in this regard is through ensuring that our health professionals remain competent and possess the best skills for the public to entrust their lives to them when illness, disease or infirmity strikes. Linked to this issue is the question of professional conduct and discipline.
The Bill now provides for a professional conduct committee, thus moving away from the notion of disciplinary action. We favour a shift in approach from only being punitive to one that encompasses corrective and rehabilitative approaches as well. This does not mean in any way that drastic disciplinary steps will not be taken where the need arises and the situation warrants such action.
The Bill makes provision for the establishment of two appeals committees. The first is the appeals committee on any decision taken by council. This is in line with other democratic principles in pursuance of good corporate governance.
The other committee refers to an appeals committee on the outcome of the professional conduct committee. Presently any person who is disgruntled about the outcome of the professional conduct committee has only the High Court as an avenue for recourse. This kind of appeals committee, which will be appointed by the Nursing Council, is empowered to set aside the findings of the professional conduct committee if the facts warrant such action.
In terms of financial management, the Nursing Council does not fall within the ambit of the Public Finance Management Act, and so sections addressing corporate governance had to be included in the Bill. The Bill stipulates that the registrar will be the accounting officer of the council and the roles and functions of the registrar and council are clearly outlined.
The Nursing Council has been empowered to investigate the standard of nursing services in any health establishment, thus complementing the role of the Department of Health, or private hospital groups in the maintenance of proper nursing standards. In the past few years we have seen increasing numbers of nurses venturing into private practice, or increasingly being employed in the private health sector. Provision has been made to regulate private practice for nurses, which in the past was nonexistent. This is partly due to the fact that nurses have not traditionally been practising nursing privately.
As a mechanism to promote continuous improvement of knowledge and skills, and thus impact positively on the quality of care, continuing professional development is advocated in this Bill. This is in line with other health professions and international trends designed to entrench the culture of life-long learning and skills improvement in the health sciences.
This House, however, needs to note that the introduction of continuous professional development for nurses will be developmental in nature, given the fact that some nurses are working in remote rural areas where there may be impediments to accessing suitable continuing professional development, CPD, programmes.
The introduction of community service for nurses in this Bill is one of the highlights, and part of the broader programme, requiring health professionals to give back to the communities across the country, especially those who reside in rural areas. At present ten other categories of health professionals have to perform community service as a condition for full registration with their respective councils as independent professionals.
Community service provides an opportunity for our newly qualified graduates to strengthen their cognitive, affective and psychomotor skills in their chosen professions. Performing community service should not be onerous for the nursing profession, which, unlike the medical and pharmacy professions, is not required to do internship on completion of training.
Lastly, the National Health Act, Act 61 of 2003, makes provision for the establishment of a forum for statutory health professional councils, where all chairpersons and registrars of statutory councils will be members. This forum will give the Nursing Council an opportunity to collaborate closely with the other health professional councils on transverse issues.
When Parliament passes this Bill, it will have paved the way for the major steps to be taken in improving the regulation of the nursing profession to ensure improvement of service delivery to all the citizens of our country.
I wish to thank the Portfolio Committee on Health, its chairperson, Comrade James Ngculu, the NCOP, the SA Nursing Council, various stakeholders, and in particular my staff for the hard work that they have put in to see this Bill finalised. I thank you for listening to me.
Ms D KOHLER-BARNARD: Madam Chair, the function of a democratic government is to represent the wishes of the people. What it is not is a series of committees set up to rubber stamp the wishes of a few individuals who hold views counter to those of the majority nor to treat the country’s professional adult citizens like children who are incapable of managing their own affairs.
There are 180 000 nurses in this country. Nursing organisations across the board presented extensive documentation based on a wealth of experience and a full range of views of those nurses to the Portfolio Committee on Health. The committee listened to their presentations over just two and a half days and then ignored them completely.
The strong reservation of nursing organisations about this Bill centred largely around two issues. Firstly, the Minister proposes to seize complete control of the nursing council – an independent statutory body, which is supposed to represent the nursing profession. This council will now become an organ of government, which is accountable only to the Minister of Health, and not the nurses - which is fundamentally undemocratic and unrepresentative. No longer will council members have the right to vote for the professionals they feel best suited to represent them. Indeed, they have been thoroughly disenfranchised.
During the public hearings, the Democratic Nurses Organisation of South Africa, Denosa, stated that by removing their right to vote for the members of their own council, the autonomy and independence of the council would be severely compromised. They were deeply concerned that the Minister of Health would now be in full control of a council that was, in fact, created to regulate the nursing profession and its affairs – something that has nothing to do with the Minister.
The Health and Other Service Personnel Trade Union of South Africa, Hospersa, also argued that the Minister should not appoint council members as this “clearly departs from principles of democracy”. The Aids Law Project wanted references to the Minister to be removed and the nursing council tasked to perform its functions in accordance with national health policy.
The Society of Private Nursing Practitioners said that South Africa had pioneered the principle that nurses should be governed by nurses and was strongly opposed to removing the right of nurses to vote for their own representatives on the council. They did not want the Minister to play a determinant role in the process of electing representatives. Nor did they want her to have anything to do with choosing the chairperson.
The School of Health and Rehabilitation Sciences, a division of Nursing and Midwifery at the University of Cape Town, said the Bill was of great concern to the profession, as it would mean that there was no opportunity for self-determination of the professions by the professionals and that indeed a hallmark of being a professional would have been removed.
The Federation of Unions of South Africa, Fedusa, said that to have all the members of the Nursing Council appointed by the Minister would clearly depart from the principles of democracy. They wished to know what criteria the Minister would use to appoint these people. This is a question which still remains unanswered.
Finally, Medi-Clinic and its 6 500 nurses said that it would be good administrative practice for the council, and not the Minister, to elect its own chairperson.
Now, despite all this, a handful of ANC representatives decided that South African nurses were incapable of running their own affairs. It seems that nurses made the fatal error of electing too many white women to represent them. So, the Minister of Health will now do the job for them.
Moreover, unlike the existing Bill, which requires that a wide range of interest groups be represented on the council, the new law places few constraints on the Minister’s decision-making. For example, ”three persons must represent communities”. Which communities?
I noted with amazement a passing comment by the chairperson during the public hearings that we must not allow an uncontrolled implementation of democracy. Let me repeat that: We must not allow an uncontrolled implementation of democracy. What country are you living in? The ANC, it seems, had already decided long before this farce of a public hearing process was concluded that the nurses of South Africa were not capable of electing their own representations.
Secondly, the Bill requires nurses to do a year of community service although most nurses already do two years of work in public facilities during the course of their training. The committee refused to even consider the proposal that at least part of this training constitutes community service.
The DA disagrees with the entire medical conscription system. It has already proved to be a nightmare for our young doctors. The representatives of the nurses of South Africa said no, but the ANC members said they knew better. The Nursing Bill places a significant obligation on student nurses to carry out a year of community service. But there is no simultaneous obligation on the state to ensure effective implementation and management of the programme.
The Minister of Health, Manto Tshabalala-Msimang, needs to recognise that unless she stops treating health staff like toy soldiers to be shunted around at will, they will continue to leave this country in droves. Indeed, reports in the newspapers today, indicate that the placing of young doctors continues to be beset by utter chaos. And doctors are again being left hanging until the last minute for a decision about where she intends to send them.
ANC committee members completely ignored the concerns of nurses. And, moreover it appears that the Minister intends introducing the nurses’ community service next year, although two months is simply not enough time to prepare this correctly.
On the one hand the Minister of Health has implored medical professionals to remain in the country while on the other hand her every action seems to be telling them that they will only be treated with disdain if they remain.
This Nursing Bill encapsulates exactly why the Minister’s attitude towards health professionals is so problematic. Everyone in South Africa is aware of the extent of the medical brain drain crisis. At the Rob Ferreira Hospital, for example, which the DA recently identified as one the five worst in the country, fewer than 50% of the nursing posts it needs are actually filled.
Over 4 000 nurses left the public sector last year, and if this trend continues the already appalling working conditions in our hospitals will worsen, prompting a snowballing of resignations. This country will be unable to sustain the necessary standards of service delivery and the DA considers it outrageous that after 11 years this problem has worsened and not improved.
In such circumstances, one might think that no legislative intervention affecting health professionals would even be considered without carefully considering the implications for health staff morale. But it is very clear that the Minister of Health did not do this in relation to nurses’ community service.
In short, this Bill serves as yet another indication that the Minister neither trusts health professionals to manage their own affairs, nor is prepared to treat them with respect or consideration.
The DA will most definitely not support this Bill. [Applause.]
Mr L V J NGCULU: Chairperson, we are repealing yet another piece of legislation that we have inherited from our old order, the Nursing Act of
- Hitherto this was the Act that regulated nursing practice, including education and training. We are therefore putting this Bill, among others, into the casket of history.
The portfolio committee held public hearings on the Bill and allowed for a long process of interaction for people who came to make their submissions. On the whole, most of the submissions supported the principle of the legislation whilst raising concerns on specific issues. As a committee we have attempted to accommodate the submissions. This Bill is therefore the product of a long consultative process.
We take exception, of course, to the views as raised by the DA member of Parliament, hon Dianne Kohler-Barnard, who states that this process of public hearings, which is enshrined in our Constitution and the Rules of Parliament, is a rubber stamp, perhaps indicating a failure to understand what oversight is all about. Perhaps, most importantly, for members who have not been participating in this process in the portfolio committee, the University of Cape Town representative praised the chairperson of the portfolio committee on the manner in which he conducted the public hearings. Hon Dianne Kohler-Barnard was actually present.
The Bill therefore establishes the council whose purpose it is to serve and protect the public in matters involving health services. It must ensure that it maintains the professional conduct and practice standards set for practitioners. The composition of the council will be predominantly from the nursing profession itself, yet again another proposal that did not come from the ANC, that did not come from other political parties, but came from Denosa, the SA Nursing Council and a number of other organisations. Hence this concern is actually accommodated in the Bill.
Sixteen of the 25 members of the council come from the nursing profession. This was a proposal of Denosa and others and it is therefore important that even the provision about the chairperson, who must be elected after consultation with the Minister, was endorsed and adopted by Denosa, the SA Nursing Council and others.
I am not very certain where the DA actually takes its positions from. It is not informed by these questions, and we are stressing this point because we are aware, firstly, that especially the DA has this fixation with attacks on the leadership of our government. The accusation that this provision takes away the powers of nurses is actually to paralyse the truth. This is far from the truth, because Denosa and the SA Nursing Council actually supported this position.
One of the things that we need to understand, and I am fairly confident of this as I stand here, is that Denosa and the SA Nursing Council, in particular, will feel offended to hear the DA speaking on their behalf. They voiced their concerns to us. We interacted on the issues they raised. At the end of it all we came to a collective agreement that the provision on the composition of the council was reasonable and complied with the democratic process, in particular that we deal with this as an elected Parliament, and that, in this equation, the executive has a constitutionally defined role.
Therefore, for any political party, in particular the DA, to claim what they are claiming, when they themselves are beset by the huge problems of the undemocratic nature of governance within their party, is actually an insult to the democratic Constitution as a whole.
Another key provision of the Bill is the issue of continuing professional development, a situation where our nurses will ensure that they are apace with development. This provision will ensure that nurses keep abreast of developments in their professional field, as well as with research and training. The question was fully supported.
The question about community service was again fully supported and agreed upon after a long discussion. There were a number of disagreements about the timing of this. We indicated that people must not predetermine the regulations, because those things will be determined in the regulations.
We agreed that no provision would be made in the Bill regarding the question of foreigners having to do community service. Foreigners’ professions will, firstly, have to be verified and, secondly, we do not agree with some of the issues that are raised regarding foreigners not doing community service in South Africa. We in the ANC are convinced that the issue of community service is essential to our health system. I am surprised to hear the DA today calling it medical conscription. When I look at some of them on their benches, few of them had the guts to join the End Conscription Campaign when the call actually came to defy conscription.
The key question about community service is to address the needs of our health system and the human resources. We must ensure that where needs arise, especially in rural and other underserviced areas, people have access to the health system. Equally important is that community service plays a part in intervention to ensure that our health services actually meet the basic needs of our people, in particular their health needs.
The ANC is proud of this legislation. We are fairly confident that it will bring public confidence to the profession in general and to the SA Nursing Council in particular.
We have also heard, and again we applaud it, the nursing profession and Denosa and others saying that this Bill brings them, as the nursing profession, self-confidence for the first time. They will be proud when they put their epaulettes on their shoulders. Today, for the first time in the democratic order, they are recognised as a profession. Hence we stated earlier on that they would regard it as an affront to have the DP spokesperson speaking on their behalf, because she has no standing at all in the eyes of Denosa and the progressive nurses. [Interjections.]
Another important point we must understand is that the other critical provision of the legislation will also allow nurses to do dispensing, diagnose and also supply and keep medicines. Again, this is a very important provision, given the challenges of human resources in our country.
When hon Dianne Kohler-Barnard stands up here and decries the challenges facing our health system when interventions are made to address these particular questions, we cannot but conclude that the DA has no interest in resolving the problems of our health system. We are actually reminded of what the hon Marthinus van Schalkwyk once said, namely that the DA said when things go wrong in South Africa, they celebrate. This Bill will ensure that things will not go wrong in South Africa. We have no place to celebrate.
We would therefore like to thank the Department of Health, in particular, who were with us throughout our deliberations on this Bill. I am certain that they will be happy to see the fruits of their labour as this House passes this Bill today.
As regards the howling, the heckling and the interjections that came from the DA today, please ignore them. [Interjections.] This House never behaves in the manner in which the DA behaves. We always maintain the dignity and we are certain that the profession regulated in this Bill will be proud of the work we have done.
I would like to thank all members of the portfolio committee in particular who worked diligently on this Bill. I am aware we all differed on this Bill. We all had differences of approach, but at the end of the day we came with a good product, and the product is the Nursing Bill in front of us. The ANC is once again proud of being associated with yet another progressive piece of legislation on our way to a better life for all.
Thank you very much. [Applause.]
Dr R RABINOWITZ: Chairperson, what do we, as legislators and members of the public, wish for our nurses: That they be compassionate, competent and accountable. They do not have to be Florence Nightingale, but they certainly should not be like the nurse who sent a mother home because the mother had arrived without a clinic card, with her baby who had asthma, and the nurse wanted to punish her, resulting in the baby dying at home.
How do we create good nurses who have high morale? We believe we do this by building a framework which gives them pride in their work, gives them a safe supportive environment, both physical and emotional, gives them job satisfaction, gives them incentives for promotion, gives them adequate payment and ensures that they’re not overstressed, and trains them adequately, both theoretically and practically, so that they are responsible and professional.
Our current framework, unfortunately, does the opposite, due to our overcentralised health system, stress caused largely by HIV/Aids, inadequate equipment and poor working conditions, and shocking security. Added to this, we have a sense of entitlement, which is not balanced by a sense of responsibility, poor monitoring information systems, and salaries that do not compensate for the negatives.
The IFP would change the entire health system. We would place authority clearly at district and provincial level, and let discipline be important but fair, close to where the nurses work. We would put in place one of the best private health care systems in the world to work for the public through private-public partnerships, which go to best bidders, not to best buddies.
We would have independent ombudsmen and standards compliance bodies, which make sure that minimum standards are maintained in all public and private health establishments. We would emphasise that responsibilities are as important as rights, and we would have a completely different Aids policy, implementing an unambiguous policy that treats HIV as an ordinary disease without secrecy provisions, and we would have more testing, more treatment, more training and more support.
The current system fails because it is top-down, the Minister decides everything for everyone, responsibility is confusing, civil society is co- opted, public-private partnerships go to best buddies, not bidders, and instead of accountability we have charters.
How does the nursing council Bill fit into the overall picture with the same flaws, only more? I will mention four of the worst. The council is not elected; the IFP would have preferred it to be democratically elected and provided freedom of choice. Community service, if not handled, will lead to nurses leaving in droves; the IFP would have preferred room for exemptions, and nurses drawn to underserved areas by incentives.
The special provision for nurses to do quasi-medical and pharmacy work could, in our opinion, be dangerous; the IFP would prefer a primary health care nurse category, with the nurses licensed to do the work for which they are qualified.
As far as foreign nurses are concerned, experience and training should be welcomed in our hospitals. They will now be interfered with.
Unfortunately, because of the short-term needs of the country, the IFP will support the Bill. Thank you. [Time expired.] [Applause.]
Ms M N S MANANA: Chairperson, hon Minister, hon members, I feel very honoured and privileged to take part in this important debate. I rise on behalf of the ANC and as a nurse to support this Bill. This is the most important piece of legislation that affects nurses and midwives in the country. Nursing is a caring profession and is practised by a person who is registered with the council as a professional nurse, midwife, staff nurse and auxiliary nurse, as stated in clause 31.
I must state from the onset that the member from the DA indicated that she is not going to support this Bill, as usual. As members of the committee, we are not amazed by her behaviour. But, as the ANC, we will continue to try to make a better life for our people, as we promised them.
Amongst the objectives of this Bill are the following: to promote guidelines regarding health standards and standards of nursing education and training, and to provide for the registration of nurses and the keeping of registers. Regarding education and training, a nursing institution that intends to conduct a nursing education and training programme in order to prepare persons for practice in any one of the categories as mentioned above must, firstly, apply to the council in writing for accreditation, and submit information on the education and training programme to be provided, and how it will meet the prescribed standards and conditions for education and training.
Secondly, a nursing institution must furnish any other information that may be required by the council for accreditation or approval of the education and training programme. It must also be paid the fees as prescribed by the council. The council may refuse or grant conditional or provisional accreditation. The council must then issue an accreditation certificate for a nursing education institution. Concerning contravention of this clause, the institution or person guilty of an offence will be convicted, fined or imprisoned for two years or get both a fine and imprisonment.
When it comes to registration prerequisites to practice: In terms of this Act, no person may practise unless registered to practise in the category for which he is trained - any new category may be created by the Minister. An employer must employ and retain persons to perform functions pertaining to the profession with necessary qualifications and be registered as such.
The registrar may only register a person if satisfied that the information and documentation in support of the application for registration meet the requirements. Upon receipt of the prescribed fee, a certificate will be issued to authorise the application to practise in the nursing profession. If the registrar is not satisfied regarding the information and documentation submitted, he or she must refuse to issue a registration certificate and must inform the applicant in writing of the reason for such decision.
Regarding the registration of learners: In line with the functions of the council pertaining to nursing education, the Bill provides an additional mechanism for protecting the public through registration of learners. In addition, health facilities are requested to restrict access to clinical facilities for the purpose of training to those learners that are registered with the council as learners.
Ngithanda ukwazisa abantu ukuthi uma ufuna ukufundela ukuba ngumhlengikazi kufanele ubhalise kulo mkhandlu. Abantu mabaqaphele, khona bengeke badlelwe izimali zabo yizikole ezingekho emthethweni ezithi ziqeqesha abahlengikazi zibe nazo zingabhalisile kulo mkhandlu.
Izindawo lapho abahlengikazi befunda khona kufanele zibikwe, zinikwe imvume ngumkhandlu. Kufanele zilandele imigomo yalo mkhandlu wamanesi. Uma zehluleka ukwenze njalo, zifana nezephula umthetho. Umuntu ongakwenzi lokho angajeziswa aphinde aboshwe iminyaka emibili. (Translation of Zulu paragraphs follows.)
[I would like to inform people that if they want to study to become a nurse, they must register with this council. People should be aware so that they won’t be robbed of their money by these fly-by-night educational institutions that are claiming to be training nurses without being registered with this council.
Institutions where nurses are studying should be reported and given a permit by the council. They must follow the guidelines set by the nursing council, failing which they will be breaking the law. Any person who does not do this may be prosecuted and sentenced to two years in jail.]
The council may provide limited registration to a person if he or she has a qualification that does not meet the required standards of education and training; does not comply with clause 31; does not have the required professional knowledge, skills and ability; and is in the Republic for a limited period for the purpose of practise, research or education.
A person may register an additional qualification after applying to the council in writing for such registration, if he or she complies with conditions, furnishes the prescribed particulars and pays a prescribed fee. The council must ensure that the prescribed ethical conduct pertaining to research related to the practise of nursing is adhered to. Regarding a person who acts in contravention of the ethical rules or any other law, the council may institute appropriate disciplinary action against that person.
All categories of nurses are going to be kept in one register, unlike before where there were separate prescribed registers and enrolment lists in respect of different prescribed categories of practitioners. The register must be kept and maintained by the office of the registrar. A register for non-practising members will be kept. Persons who go back into practice will have their names moved to the main register.
The introduction of community service for nurses through this Bill is part of the roll-out programme of community service concerning health professionals. Currently, I am sure there are nine to 10 other professions that have started to do community service, such as doctors and pharmacists. This is not an internship as nurses do it on completion of their training. A person who is a citizen of South Africa and intends to register for the first time to practise as a professional in a prescribed category must perform remunerative community service for one year at a public health facility.
Removal from and restoration . . . [Interjections.]
The HOUSE CHAIRPERSON (Ms C-S Botha): Hon member, I regret your time has expired. Please conclude.
Ms M N S MANANA: In conclusion, this Bill will assist the public regarding its purpose. The council will uphold human rights as enshrined in the Constitution. [Applause.]
Ms N C NKABINDE: Madam Chair and hon members, up until now the nursing profession has been regulated by a 27-year-old piece of legislation. It comes as no surprise that this legislation is outdated in various ways.
The primary deficiency in the old Act is the focus on rights concerning the nursing profession, as opposed to the rights of the public to proper health care. Certainly, the profession requires protection of its members’ rights, but not to the exclusion of the rights of the public. The Bill achieves this balance between the rights of the nurses and those of the public through a better defined and, hopefully, better functioning council and registrar.
Further, the Bill places a very high standard of conduct upon the profession and recognises that nurses, like teachers and police officers, form the backbone of our society. But whilst we rightly demand the highest of standards and professional conduct from these individuals, we should also recognise their value to society by providing adequate compensation. The salaries that most nurses currently receive simply cannot sufficiently reflect their value.
We urge the Minister to reassess the current salary structures of nurses who are in the Public Service. We support the Bill. [Applause.][Time expired.]
The HOUSE CHAIRPERSON (Ms C-S Botha): Hon Matsemela. Hon members, this is her maiden speech. [Applause.]
Ms M L MATSEMELA: Madam Chair, hon Minister of Health, hon members, I am privileged to stand at this podium for the first time to speak in this important debate. I am privileged, because I come from an organisation, the ANC, committed to the quality of life of our people, and in particular their health status. The Bill is therefore another attempt on the road to better health care for all our people, in particular the poor.
Against this background, we in the ANC are guided by the seminal document, the Freedom Charter, adopted by the Congress of the People on 26 June 1955, 55 years ago. As we celebrate our achievements, we are continuously mindful of the historic task facing us in the ANC, that of creating a better life for all. In this regard, our challenge in the health sector is to create a comprehensive programme to eliminate the vast inequalities inherited, and that is, increased efficiency, effectiveness, quality and governance. This needs a determined political will.
As the government of the day, the ANC has, through the overwhelming mandate given by the electorate, obtained the right to give expression to their aspirations. Every citizen in this country has the right to achieve optimal health, and it is the responsibility of the state to provide this. Health and health care, like other social services, and particularly where they serve women and children, must not be allowed to suffer.
Central to this are the role of statutory councils and its role relating to governance of the health sector in South Africa, in particular in regard to health professionals, medical schemes, medicines control and research. The Bill before us today seeks to do precisely that, namely to strengthen it in terms of its membership, operational procedures, accountability, good governance, and so forth.
With regard to the latter, the Bill is unambiguous. Chapter 3, clause 46, provides for the mechanisms to deal with matters in regard to unprofessional conduct, and it is indeed significant that the support for this clause was amplified during the public hearings. As a movement for fundamental change, the ANC welcomes this provision, given that we place a high premium on the disposition of those who get appointed to positions of leadership.
We believe that they should be informed by the desire and the commitment to serve. They should be persons who unite and guide the council and inspire confidence. Moreover, we are vigilant about those who use councils such as the Nursing Council to create their own fiefdoms with scant regard for the ethos that should guide this.
We have made significant progress with respect to delivering on the aspect of the Freedom Charter which relates directly to the provision of health services. We are delivering health services free at the point of delivery to children under the age of six and to pregnant and lactating women, as well as to people with disabilities and for those who cannot afford it.
One of the key priorities of this government and the national Department of Health is obviously to improve the quality of care primarily to restore the dignity of our people. In this regard we will remain vigilant against any unprofessional conduct by health professionals, and in terms of this Bill, that of nurses and midwives. We will ensure that the application and the conduct of nurses and midwives are improved at all levels and that community participation in health issues is strengthened.
Key challenges facing our health sector include the persistently low morale of nursing staff, enhancing the recruitment and retention of health workers in general, lack of proper management and utilisation of resources and enacting legislation to ensure the entire nation has access to safe and affordable medicines. Some of these challenges require collective prioritisation, communities and health users taking greater responsibility for the delivery of health care at all levels.
We believe that the transformation of the statutory council will enable them not only to reflect the diversity of the South African health professionals, but also to promote and protect standards of conduct to protect the rights and interests of patients and clients.
In conclusion, I therefore deem the Nursing Bill essential for good governance. It ensures norms and standards and accountability, and last, but not least, promotes efficiency and compassionate delivery of services.
The ANC supports the Bill. I thank you. [Applause.]
Mrs C DUDLEY: Madam Chair, frustrated Eastern Cape health workers last week lashed out at the health department for gross staff shortages at public hospitals and clinics, saying they were simply unable to attend to the large numbers of patients who flock there daily. At some clinics hundreds of patients are turned away every day after queueing for hours, because nurses are overburdened and unable to cope. [Interjections.] You may not care, but the people of South Africa do!
Exhausted nurses have had enough and are resigning. This Bill sadly does nothing to boost the confidence of the nursing profession or alleviate the mounting stresses and impending crisis. The ACDP is committed to quality health care delivery and recognises the need for legislation, which protects the public. Patients’ safety and quality care continue to be elusive, however, as chronic and critical shortages of the health care workforce continue to increase. The World Bank has identified nurses and midwives as the most cost-effective resource for delivering high-quality health care in both new and established economies.
The health care system in South Africa, as it is in many other countries, is nurse centred, and this Bill defines who a nurse is, and what a nurse can and cannot do, primarily for the purpose of protecting the public. It is essential that health professionals being regulated are also competent to practise, and that competencies for nursing roles are linked with relevant education. The general content of the Bill is supported by nurses. However, there are grave concerns that the Bill does little to instil confidence in nursing as a profession, and this is important if we hope to retain and attract nurses to this profession. The Bill gives unfettered power to the Minister to determine what should be happening to nurses and midwives, burdens the most impoverished professional group and ignores democratic processes.
For this reason the ADCP will vote against this Bill.
Mrs M M MALUMISE: Chairperson, just for information’s sake, Madam Dianne Kohler-Barnard, it is unfortunate that you didn’t hear what the SA Nursing Council and Denosa were saying to us after the presentation, and the manner in which they said that we were so accommodating and thanked us for it. [Applause.]
It is no coincidence that the Bill before us today comes at a time when we are celebrating 50 years of the Freedom Charter and, as the ANC, we are indeed reflecting on the significant progress we have made as a country in regard to delivering on the aspects of the Freedom Charter as it relates to the health sector in particular.
In the January 8, 2005 statement, our movement has declared itself thus, and I quote:
We will strive to improve service in health facilities through improved training, recruitment and retention of health personnel, improved infrastructure and enhanced health promotion and awareness.
In context, this ANC-led government has, through government’s ten-year review, created a barometer to gauge our successes and challenges in relation to transformation and to develop an understanding of the challenges still facing us.
As a movement steeped in the tradition of introspection, we are obviously cautious of what still needs to be done to arrive at an equitable system that will help redress the backlogs, improve access, increase efficiency and ensure accountability by all, particularly those in management.
When we assumed government in 1994, we, for the implementation of the Freedom Charter, adopted the Reconstruction and Development Programme as an integrated, coherent, socioeconomic policy framework for meeting the basic needs of all our people.
As first priorities in this regard, the RDP identified land, housing, water, electricity, telecommunications, transport and a clean and healthy environment, nutrition, health care and social welfare. It said that, in this way, we would be able to begin to reconstruct family and community life in our society. The RDP therefore committed the democratic government to move our country decisively forward towards social transformation and the eradication of poverty and underdevelopment.
It is indeed appropriate that we juxtapose this debate against the background prescripts of the RDP and the Freedom Charter, and we therefore have no doubt that the role being played by the government in policy formulation, creating the legislative framework, setting norms and standards for health, governance and regulation of the health sector, is the correct one. The mandate given to us by the overwhelming majority of our people is testimony to this.
The Nursing Bill we are debating today is but one of the critical instruments that will ensure the transformation of statutory councils for health. This Bill therefore establishes a fully transformed and representative SA Nursing Council. This Bill therefore recognises the critical importance of the nursing profession, and provides for the upholding and maintenance of the professional and ethical standards of nursing.
In this regard, clause 58 provides for a Minister of Health, after consultation with the council, to make regulations in relation to the appointment to and functioning of the council; registration of requirements relating to qualifications; accreditation of the education and training institutions and private practice; professional conduct; inquiries; appeals and penalties; removal from and restoration to the register, and so on.
In terms of the report of the task team on statutory councils that was appointed by the Minister, not only is it the prerogative of government to set policy for governance within the framework of the Constitution, but it is also its responsibility.
As the ANC, we welcome these provisions since they will ensure accountability as opposed to having a situation where councils are a law unto themselves. We believe that councils should be fulfilling the responsibilities they are entrusted with. Hence, we are endorsing the critical role the Minister has to play, as enshrined in the Bill.
An important component of accountability is transparency, and regular monitoring of the council’s performance and evaluation of delivery on its mandate in terms of quality and quantity are critical elements that must inform these regulations. We believe that a prerequisite for inculcating accountability is for each member on the council to have a clear understanding of his/her duties. The demand put to the current SA Nursing Council is to continue its good work and reinforce accountability and improvement of quality of service.
The Bill also ensures that private education and training institutions comply with all regulations governing the nursing profession. This will primarily be to ensure the convergence of practice and policy, as outlined in the 1997 White Paper on the Transformation of the Health System.
Yes, health professionals are the cornerstones of the health system, and they are entrusted not only with improving the quality of care, but also contributing towards the human dignity of those in their care. In this regard, the Constitution, through chapter 2, section 27, has placed the burden of this on us as government. By extension, the national Department of Health has to realise this right. We therefore argue that for effective service delivery, a clear understanding of the constitutional and legislative imperatives is critical.
The debate on the need for transformation of the health sector in general and statutory councils in particular, must be seen in the context of the developmental state, which must, in our situation, continue to create the framework within which health is promoted. [Time expired.][Applause.]
Ms P TSHWETE: Madam Chairperson, hon Minister of Health and Deputy Minister of Arts and Culture, hon members, it is a privilege and an honour for me to be taking part in this debate on the Nursing Bill. This is part of a process of consolidating the developmental nature of the South African state.
I would like to remind hon Kohler-Barnard that one of the requirements of section 5 of the Nursing Act of 1978, up to 1992, is for the Minister to appoint an officer of the Department of Health and at least two people who are not registered with any existing professional council.
The list of members is long, but the interesting part is that of the 10 registered nurses, five were to be white - which was then European, I think – three Bantu, one coloured and one Indian, to be elected in accordance with the prescribed manner and procedures by white, Bantu, coloured and Indian registered nurses and midwives, respectively. [Interjections.] This is totally not right and not in line with the present dispensation. [Interjections.]
Asizi kuthatha imigaqo-nkqubo kaRina Venter apha. Siza kuqhuba sibheke phambili, kwaye anizi kuphatha niphethwe. [Kwahlekwa.] [We are not going to use Rina Venter’s policies here. We are moving forward and you will not rule while you are being ruled. [Laughter.]]
We are not going to accept and be driven by Rina Venter’s policies . . .
. . . kulo rhulumente simlweleyo. [ . . . not in the new government we fought for.]
Kohler-Barnard . . .
An HON MEMBER: The honourable . . .
Ms P TSHWETE: . . . hon Kohler-Barnard – by the way, sometimes I even forget that you are honourable when you speak at the meetings, because at times you become so rude – is busy talking about cockroaches in our hospitals. She’s not talking about Rina Venter, who did not even know that it was important to have a hospital in a rural area. [Interjections.]
The role of the Nursing Council . . . listen! Wait, I’ll tell you. The role of the Nursing Council is primarily to protect and serve public interests, for your information. The Nursing Council therefore is acting on behalf of the Minister, and it is the Minister of Health who has to exercise stewardship over communities on the role of the council. Thus the Nursing Council, on behalf of the Minister, must ensure that health care users, not patients this time, receive health care services in a dignified and respectable manner, without their constitutional right being infringed upon.
This time the nomination of members of the council, as well as the short listing thereof, will be done through elections, because these processes have proven to be very costly . . .
. . . ezi nkqubo uzifunayo wena. [ . . . the ones you advocate.]
Remember, R1,4 million was spent on an election in which participation by the nursing profession was only seven per cent. There can’t be any justification for continuing costly exercises such as these, when the turnout continues to be low and the racial composition is not addressed by these elections.
Uyabona ke apho kubuhlungu khona? Sele besithi yizani size kunyula, bathi yizani neNdiya elinye. Bayanixelela ukuba yenzani ntoni. Ngoku bathi uMphathiswa wethu bakabe ngunopopi, angabi nandima ayidlalayo kwibhunga. (Translation of Xhosa paragraph follows.)
[Can you see where the problem is with that? When it is time for elections, they even tell you that you should have one Indian person. They prescribe for you. They now want our Minister to rubberstamp policies and not take part in the council.]
That is what they are saying, and we are not going to allow that. [Applause.] The ANC government is saying that the Bill intends to transform the Nursing Council. We are transforming the Nursing Council.
Le naniyifakile nina, ethi . . . [The one you appointed, which says . . . ]
. . . one Bantu, one White, one Indian; we are transforming it. This time the Nursing Council is going to be made up of 25 members, whether you like it or not. [Interjections.]
Again, we say as the ANC, let us provide the skills that are needed by the Nursing Council. We want to ensure that it is nonsexist, nonracist, and that it moves away from being prescriptive. The Minister will appoint, after consultation with the Nursing Council, a chairperson . . .
. . . nithanda ningathandi. Kufanelekile ukuba uMphathiswa abe nendima ebalulekileyo ayidlalayo kuba wena . . . [ . . . like it or not. It is vital for the Minister to play a significant role because you . . . ]
. . . hon Kohler-Barnard, when you go to these hospitals you expect the Minister to answer or to be accountable. Why is the Minister not going to play a role in the Nursing Council this time? It’s not going to be like that. Therefore it is quite right for the Minister of Health to appoint the chairperson and the registrar of the Nursing Council, after consultation with the Nursing Council.
In conclusion, I would like to thank our chairperson, Comrade James Ngculu, for his leadership and support.
UQabane uNgculu akhange angaxhaswa yi-Denosa. Futhi musani ukusebenzisa igama leDenosa, iya kunibetha, ngoba khange izithethe ezi zinto benizithetha apha. [Comrade Ngculu has always enjoyed the support of Denosa. May I also ask you not to implicate Denosa, as it is totally opposed to that because it never pronounced on any of the things you talked about.]
The ANC supports the Bill. I thank you. [Applause.]
UNGQONGQOSHE WEZEMPILO: Mphathisihlalo, nginemizuzu emincane kabi yokuthi ngiphendule kodwa ngicela ukubonga bonke laba abeseke lo Mthetho. Ngicela ukusho nje kumhlonishwa u-Rabinowitz ukuthi lo Mthetho esiwushaya namhlanje ufuna ukubhekelela zonke lezi zinto abekhuluma ngazo. Kodwa angiboni ukuthi uyoke usiphathe lesi situlo, ngakho ungazikhohlisi. [Uhleko.]
MaNkabinde siyabonga kakhulu ngalokhu okhuluma ngakho ukuthi kufanele sibhekisise kahle imiholo yamanesi. Siphansi phezulu nokwenza konke lokho hhayi emanesini kuphela. Siyabonga kakhulu.
Ngicela futhi ukusho ukuthiu-Dianne akazi nokuthi sikhuluma ngani. Ukhuluma ngezinye nje izinto. Thina sikhuluma ngomthetho lapha kodwa yena ukhuluma ngezinye izinto ezingekho emthethweni. Kufanele sikufunde ukuthi uma kuzokhulunywa lapha kukhulunywa kanjani. Angisho nje ukuthi nina be-DA angive nginizwela. Ngisho iphephandaba i-Business Day lithi lona onikhulumelayo unifakela amahloni ngoba akwenzayo . . . (Translation of Zulu paragraphs follows.)
[The MINISTER OF HEALTH: Chairperson, I have very few minutes in which to respond, but I should like to thank all those who supported this Bill. I wish to say to the hon Rabinowitz that this Bill that we are passing today aims at looking at all the things that she spoke about. But I do not think she will ever be in this seat, so she must not fool herself. [Laughter.]
Ms Nkabinde, we thank you very much for the point you raised about the nurses’ salary structures. We are looking at that issue right now, and not only the nurses’ salaries. We thank you very much.
Let me please say once again that Dianne does not even know what we are talking about here. She is just talking about other things. We are talking about a Bill here and yet she talks about things that do not even appear in the Bill. We need to learn how to speak here at the podium. Well, let me also say that I feel very sorry for the DA. Even the Business Day newspaper correctly said that your spokesperson on health issues shames you because what she does . . ]
. . . she is developing a reputation as a thoroughly unreliable source of information on her specialist subject . . . Ngiyanizwela. Funani omunye umuntu. [Uhleko.] Kodwa ake ngithi-ke ukunifundisa. [I feel very sorry for you. Look for another person. [Laughter.] But let me give you a few lessons.]
As I said, I would like to take this opportunity to educate the DA on the meaning of democracy. Democracy means the right of the people of this country to elect their own representatives to ensure that their interests are protected at all times. The people of this country have elected the ANC . . . [Interjections.]
The HOUSE CHAIRPERSON (Ms C-S Botha): Order, please, members! Order! Order, please!
The MINISTER OF HEALTH: . . . to represent their interests here in this House and they did so with an overwhelming majority.
Beningobani-ke nina, nimele bani futhi? [Who are you after all, who are you representing?]
So what we do as the representatives of the people is to promote and defend their interests at all times. Therefore the Bill in front of us is primarily and fundamentally about the protection and promotion of the people’s interests through the establishment of a council that will ensure the highest standards of professional conduct by those who belong to the nursing profession.
Aniwufundidisanga nakahle lo Mthetho futhi anazi nokuthi uthini. Benihleli nje ningavulile izindlebe. [You did not even study this Bill properly and you do not even know what it says. You were just idly sitting and not listening.]
I am not surprised that the DA, through its spokesperson . . .
. . . sengimchazile-ke ukuthi ungumuntu onjani . . . [ . . . I have already described what kind of a person she is . . . ]
. . . used the objective of the Nursing Council to promote parochial interests of nurses by nurses.
Kufana nani lokho. [That is very much like them.]
Their basic understanding of democracy is one in which the parochial interests of an inward-looking group are promoted, and they defend some minority interests against some imagined enemies falling outside the group. [Interjections.]
Such a narrow understanding of the professional council is archaic and should be banished to the annals of history, together with the DA. The nurses of this country have spoken and have nothing to fear from their elected representatives, because they are part of the people they serve.
Ngakho-ke ngiyabonga kakhulu kulaba abeseke lo Mthetho. Hlalani ninjalo nina! [Ihlombe.] [Therefore I thank all those who supported this Bill. You, remain as you are! [Applause.]]
Debate concluded.
Question put: That the Bill be read a second time.
Division demanded.
The House divided:
AYES-165: Ainslie, A R; Anthony, T G; Arendse, J D; Asiya, S E; Baloyi, M R; Bekker, H J; Beukman, F; Bhamjee, Y S; Bhengu, F; Bhengu , M J; Bhengu, P; Bloem, D V; Bogopane-Zulu, H I; Bonhomme, T J; Booi, M S; Botha, N G W; Burgess, C V; Cachalia, I M; Cele, M A; Chauke, H P; Chikunga, L S; Combrinck, J J; Cwele, S C; Dambuza, B N; Diale, L N; Dikgacwi, M M; Direko, I W; Dithebe, S L; Dlhamini, B W; Dodovu, T S; Fihla, N B; Frolick, C T; Fubbs , J L; Gaum, A H; Gcwabaza, N E ; George, M E; Gololo, C L; Goniwe, M T; Greyling, C H F; Gumede, M M; Hogan, B A; Jacobus, L ; Jeffery, J H; Johnson, M; Kalako, M U; Kasienyane, O R; Khoarai, L P; Kholwane, S E; Khumalo, K K; Khumalo, K M; Komphela, B M; Koornhof, G W; Kota, Z A; Landers, L T; Lekgetho, G; Lekgoro, M K; Lekgoro, M M S; Lishivha, T E; Lucas, E J; Ludwabe, C I; Luthuli, A N; Mabena, D C; Mabuyakhulu, D V; Madella, A F; Maduma , L D; Madumise, M M; Magau, K R; Magubane, N E ; Magwanishe, G B; Mahlangu-Nkabinde, G L; Mahote, S; Maine, M S; Makasi, X C; Makgate, M W; Malahlela, M J; Maloney, L; Maluleka, H P; Manana, M N S; Martins, B A D; Mashangoane, P R; Mashigo, R J; Mashile, B L; Masutha, T M; Mathibela, N F; Matsemela, M L; Matsomela, M J J ; Maunye, M M; Mayatula, S M; Meruti, M V; Mgabadeli, H C; Mkhize, Z S; Mlangeni, A; Mngomezulu, G P; Mnyandu, B J; Moatshe, M S; Modisenyane, L J; Mofokeng, T R; Mohamed, I J; Mokoena, A D; Molefe, C T; Montsitsi, S D; Moss, M I; Motubatse-Hounkpatin, S D; Mpontshane, A M; Mshudulu, S A; Mthembu, B; Mtshali, E; Mzondeki, M J G; Ndou, R S; Ndzanga, R A; Nel, A C; Nene, N M; Ngcengwane, N D; Ngcobo, B T; Ngcobo, E N N; Ngculu, L V J; Ngele, N J; Ngema, M V; Ngwenya, W; Nhlengethwa, D G; Njobe, M A A; Nkabinde, N C; Ntuli, B M; Ntuli, M M; Ntuli, R S; Ntuli, S B; Nxumalo, M D; Nxumalo, S N ; Nzimande, L P M; Olifant, D A A; Oliphant, G G; Phala, M J; Phungula, J P; Pieterse, R D; Rabinowitz, R; Ramodibe, D M; Ramphele, T D H; Scheemann, G D; Schippers, J; September , C C; Sibande, M P; Sibanyoni, J B; Siboza, S ; Sigcau, Sylvia N; Sikakane, M R; Skhosana, W M; Smith, P F; Smith , V G; Sonto, M R; Sosibo, J E; Sotyu, M M; Tobias, T V; Tolo, L J; Tsenoli, S L; Tshabalala-Msimang, M E; Tshivhase, T J; Tshwete, P; Turok, B; Van der Heever, R P Z; Van Wyk, A; Vezi, T E; Vos, S C; Wang, Y; Xingwana, L M ; Zikalala, C N.
NOES-29: Blanché, J P I; Boinamo, G G; Delport, J T; Doman, W P; Dreyer, A M; Dudley, C; Ellis, M J; Farrow, S B; Gibson, D H M; Jankielsohn, L; Joubert, L K; Kohler-Barnard, D; Labuschagne, L B; Lee, T D; Lowe, C M; Masango, S J; Minnie, K J; Morgan, G R; Rabie, P J; Sayedali-Shah, M R; Selfe, J; Smuts, M; Steyn, A C; Swart, M; Swart, P; Swathe, M M; Trent, E W; Van Dyk, S M; Weber, H.
As the result of the division showed that there was not a majority of the members of the Assembly present for a vote to be taken on a Bill as required by Rule 25(2)(a), decision of question postponed.
The House adjourned at 17:58. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
FRIDAY, 28 OCTOBER 2005
ANNOUNCEMENTS
National Assembly and National Council of Provinces
The Speaker and the Chairperson
- Classification of Bills by Joint Tagging Mechanism (JTM)
(1) The JTM on 25 October 2005 in terms of Joint Rule 160(3),
classified the following Bill as a section 75 Bill:
i) Electricity Regulation Bill [B 29 – 2005 (Reintroduced)]
(National Assembly – sec 75)
TABLINGS
National Assembly and National Council of Provinces
-
The Minister for Justice and Constitutional Development
a) Report and Financial Statements of the Legal Aid Board for 2004- 2005, including the Report of the Auditor-General on the Financial Statements for 2004-2005 [RP 199-2005].
COMMITTEE REPORTS
National Assembly
-
Report of the Portfolio Committee on Communications on the Independent Communications Authority of South Africa Amendment Bill [B 32-2005] (National Assembly-sec 75), dated 27 October 2005:
The Portfolio Committee on Communications, having considered the subject of the Independent Communications Authority of South Africa Amendment Bill [B 32-2005] (National Assembly-sec 75), referred to it, and classified by the Joint Tagging Mechanism as a section 75 Bill, presents the Independent Communications Authority of South Africa Amendment Bill [B 32B – 2005].
-
Report of the Portfolio Committee on Communications on the Convergence Bill [B 9-2005] (National Assembly-sec 75), dated 27 October 2005:
The Portfolio Committee on Communications, having considered the subject of the Convergence Bill [B 9-2005] (National Assembly-sec 75), referred to it, and classified by the Joint Tagging Mechanism as a section 75 Bill, presents the Electronic Communications Bill [B 9B – 2005].
-
Report of the Portfolio Committee on Finance on a Study Tour to Australia and New Zealand during the period 5 - 15 June 2005: “Rationalisation of the Regulation of the Financial Services Sector”, dated 21 October 2005:
Introduction
Between 5 and 15 June 2005, members of the Portfolio Committee on
Finance undertook a study tour to Australia and New Zealand to learn
from those countries’ experiences of rationalizing institutions
responsible for the regulation of the financial sector. The present
study tour needs to be seen as complementing a similar study tour to
Britain undertaken by the Portfolio Committee on Finance in the
previous parliament. The present report needs to be read together with
the report on that visit published in the ATC dated 4 December 2003.
An active debate is underway in South Africa about rationalizing the
institutions responsible for regulation of the financial sector. At
present prudential regulation of the banking sector is the
responsibility of the South African Reserve Bank, while a number of
other institutions reporting to three government departments are
responsible for prudential regulation of other financial institutions
and market conduct/consumer protection. In addition, issues of
transformation and extending financial services to lower income people
are being dealt with through the Financial Sector Charter Council.
While no firm decisions have yet been taken on the precise form which a
rationalization process in South Africa should assume, there is a
growing consensus that simply maintaining the status quo is not an
option.
The Significance of the Australasian Experience
The British “model”, studied by our predecessors in the last
Parliament, represents one key experience. In 1997, the Labour
Government established a single financial regulator, the Financial
Services Authority. As with most significant reform episodes, this was
given impetus by a perceived failure of the previous regulatory system
– in this case prompted by the collapse of the Barings Bank. The
essential feature of the British single financial regulator model is
that one authority, the Financial Services Authority, is responsible
both for prudential regulation of all financial institutions and for
market conduct/consumer protection regulation. Under this system, the
Bank of England has no direct role in prudential regulation of the
banks, but retains responsibility for overall stability of the
financial system – a responsibility which it discharges mainly through
the publication of a regular Financial Stability Report.
The Australian system represents a significant systemic alternative to
the British single regulator model – known as the “twin peaks” model.
It came into existence in 1998, as a response to recommendations of the
Financial System Inquiry (the Wallis Committee) report published in
1996. One of the significant factors underlying the Australian reform
was a perception that lines of demarcation between the operation of
banks and other financial institutions were becoming blurred and that a
system of prudential regulation that focused largely on banks was
inadequate to the emerging reality of financial markets. The essential
feature of the Australian “twin peaks” model is the establishment of
two distinct institutions responsible for prudential regulation and
market conduct/consumer protection regulation respectively.
The Australian Prudential Regulatory Authority (APRA) is responsible
for the supervision of banks, long term and short term insurance
companies and superannuation (retirement) funds. As in the British
system, the Reserve Bank has no direct responsibility for prudential
regulation of the banks – although it retains responsibility for
monetary policy and the maintenance of financial stability, including
stability of the payments system.
The other “peak” in the Australian system is the Australian Securities
and Investments Commission (ASIC) which is responsible for market
conduct and consumer protection across the financial system. ASIC is
also responsible for company registration (not just of financial sector
companies) as well as insolvency and securities regulation. It has a
large enforcement division staffed by lawyers, analysts and
investigators that prepare cases for prosecution.
Both APRA and ASIC operate independently of government but according to
mandates set out in laws and policy directives set out by Treasury
Ministers. They both participate, along with the Treasury and Reserve
Bank, in the Council of Financial Regulators (CFR) that operates as a
coordinating mechanism.
New Zealand does not represent a systemic model, but is interesting as
a country that is moving from a system described as “light regulation”
towards establishing a stronger system of regulation. New Zealand has
specific characteristics arising from the fact that most financial
institutions operating in the country are Australian. The system to
adopt is, nevertheless, subject to debate with no obvious indication
that the Australian model will necessarily be adopted in New Zealand.
Assessment by Persons Interviewed
The Committee was extremely fortunate to be able to meet with a broad
range of knowledgeable persons from most of the significant
institutions as well as with academics who have followed developments
in the field. This included the Chairpersons of both APRA and ASIC (for
a full list of respondents see Appendix).
All respondents from Australia expressed general satisfaction with the
“twin peaks” system and indicated that there was no dynamic that would
lead Australia to adopt a single financial regulatory system in the
near future. A number said that they were not necessarily recommending
it as a model for others to emulate, or arguing that it was better than
the single financial regulatory system, but all felt that it was
working well in Australia. Even respondents from the Reserve Bank, who
acknowledged that the Bank had initially opposed taking bank
supervision away from it, said that they believed that the model was
working well and said that they had close working relationships with
APRA.
APRA had, however, undergone a major challenge within two years of its
establishment with the case of the HIH insurance company. HIH was a
general insurance company which collapsed amidst indications of serious
fraud in connection with re-insurance deals. Several of its top
executives were later convicted of criminal offences. APRA informants
told us that the perception underlying the creation of APRA – that the
distinction between banks and insurance companies had become blurred –
had initially led APRA to under estimate the need for its staff members
to develop specialist focuses on particular institutions. We were told
that this had since been corrected and that staff members are now
focusing on a main sector, in addition to maintaining a broader watch
over others.
Respondents at ASIC were perhaps the strongest proponents of the “twin
peaks” model. They pointed, first, to the arguments put forward in the
Wallis Commission. It had argued that a single regulator model would
create an authority that would be too powerful and too unwieldy. The
Commission felt that it was too early to move in this direction and
therefore recommended trying the “twin peaks” system first. Another
point made by the Commission was that the “culture” of prudential and
market conduct/consumer protection regulation differed significantly.
The latter point was emphasized by a number of respondents in ASIC.
They argued that there was an inherent “clash of cultures” between the
two types of regulatory activity. In the Australian context, this came
to a head on the issue of disclosure. The fundamental philosophy of
ASIC was that consumer protection would be enhanced by maximum
disclosure. Review of the fairness or otherwise of contracts was not
the real focus of market conduct regulation by ASIC. Rather the
emphasis was on ensuring that clients received full information about
the contracts they were entering into and that markets were provided
with full information about any change in the circumstances of market
players.
The prudential regulator, APRA, on the other hand sometimes favoured
non-disclosure to the market in cases where it judged disclosure might
provoke a market reaction that would jeopardize systemic stability. Our
respondents argued that such tensions were inherent in any regulatory
system that embraced both functions. Respondents in ASIC tended to
argue that the twin peaks model with the Council of Financial
Regulators (CFR) operating as a clearing house for decisions in the
event of a conflict of views was preferable to the British FSA model
where the conflict would be sorted out “in house” in the agency. They
indicated that the principle established in the CFR was that where
there was a clear prudential regulatory imperative, this would trump
the market conduct regulator’s positions, but that information would be
made available to the market as soon as possible. However, there were
many decisions where a “trade off” was required and both ASIC and
Treasury respondents argued that one of the major advantages of the
“twin peaks” plus CFR model was that where such a trade off had to be
made it would be more transparent, the product of open dialogue and,
with Treasury representation on the CFR, be seen as a decision with the
political backing of government – which would be ultimately
responsible. APRA respondents were, however, somewhat less sanguine
arguing that taking “trade off” issues to the CFR sometimes meant
“messy” external fights that under the British FSA model would be
settled internally.
The New Zealand experience is relevant in that they are seeking to
change and strengthen their regulatory system. For more than 20 years,
the country has had what was repeatedly described to us as “light
regulation”. The system had relied on three pillars:
- Self-regulation by institutions;
- Market discipline; and
-
Regulatory discipline.
For most of the past two decades it was the first two that were most emphasized, with the third being “light handed”. For non-bank institutions all that was required was disclosure to clients. Insurance companies, for example, do not have to be licenced but have to either secure an agency rating or advise clients that they have opted not to seek such a rating. The definition of banks (subject to regulation by the Reserve Bank) is based only on the use of the term “bank” in the name of the institution not on the function performed. Any finance company can accept deposits and carry out functions normally associated with a bank as long as it does not call itself a bank. For banks supervised by the Reserve Bank, the system in place is based on meeting the Basel 1 requirements with the Bank moving towards implementing Basel 2. However, the Reserve Bank does not itself monitor compliance with capital adequacy requirements etc. This, rather, is monitored through outside auditors that reported to the Reserve Bank. The Reserve Bank can, however, give directions via the Minister of Finance to place defaulting banks in statutory management. These, in practice, are very few and far between. A Treasury official told us that the difference between APRA and the New Zealand Reserve Bank (NZRB) is that APRA issues directives, whereas the NZRB “has a chat” with any institution about which it is concerned.
We were told that there was a growing feeling in New Zealand that this system of “light handed” regulation was not adequate. Amongst other things, the country had seen the emergence of a number of unregulated finance companies that were both unsafe and were charging exorbitant interest. Although we were told that none of these posed any serious risk to the systemic stability of the New Zealand financial system, significant numbers of people were at risk of losing savings and deposits. There was thus a move afoot to reform the system and the Ministry of Economic Development was preparing a discussion document identifying options in this regard. We were also told that legislation on financial intermediaries was likely to be tabled shortly.
We did not receive any clear indications of what form a strengthened system of financial regulation in New Zealand would take. However, several principles and considerations were mentioned to us. First, we were told that decisions on institutional arrangements would be based on a clear identification of the outcomes that regulatory reform was expected to achieve. Second, there are the specific circumstances of New Zealand where most banks are Australian subsidiaries subject to APRA regulation and also to a rule which prioritises Australian over other clients in the event of liquidation. Third, there is a view in New Zealand that APRA is too “hands on” and that it may not make sense, in view of the smallness of the country, to try to replicate the two Australian institutions – suggesting perhaps a preference for the single regulatory model. Finally, there is no clear decision that bank supervision should be taken away from the Reserve Bank.
Conclusions and Recommendations
Decisions on reform and rationalization of the system of regulation of the financial sector in South Africa cannot involve simply looking at “models” as they operate in other jurisdictions and then having an abstract debate as to which is “the best”. Rather such decisions need to be based on an analysis of our own specific circumstances and the outcomes we need to achieve in South Africa from a process of reform. It is only in that context that consideration of “international experience” becomes relevant.
The circumstances in both Australia and New Zealand are very different from those in South Africa, and the challenges and priorities of regulation in these jurisdictions are thus different in important respects from those facing us in South Africa. Both Australia and New Zealand are higher income OECD countries. Neither is grappling as serious priorities with issues of transformation or of extending affordable financial services to large numbers of excluded people. The system of consumer protection in both Australia and New Zealand is based largely on disclosure – on the principle that consumers are rational market players who will take appropriate decisions if provided with full information. In our circumstances, the need also to defend vulnerable consumers against unfair provisions in contracts has been evident e.g. in a number of recent rulings of the Pension Funds Adjudicator. Finally, any decisions on reform/rationalization must be based on a careful identification of available human resources (as well as the human resource implications of any change) and not on the simplistic “importation” of models from elsewhere where such considerations may not apply in the same way. Having said that, the issue of a “clash of cultures” between prudential and market conduct/consumer protection regulation does seem to us to be important. Historically, in South Africa we have had fairly “sophisticated” long established prudential regulation but consumer protection and transformation/extension of financial services is more recent and yet to fully find its feet. Whatever regulatory reform model is eventually adopted must, therefore, in our view, provide for transparent, open and politically informed decision-making on any “trade offs” that may occur between the two forms of regulation. Above all it must not allow what are “new issues” in our context of consumer protection and transformation to be swamped by more established and possibly more traditional views on prudential regulation. Secondly, the decision to take bank supervision out of the Australian Reserve Bank into APRA was made viable by the ability to transfer most of the existing bank supervision staff to the new agency and to establish within a short space of time that APRA would provide the same or better levels of remuneration, prestige and job satisfaction than the Reserve Bank. Whether the same conditions apply in South Africa is something that would have to be carefully assessed in any consideration of establishing either a single regulator or a body like APRA.
The Committee wishes to express its profound thanks to all those in Australia and New Zealand who shared information with us and also to the New Zealand Parliament for providing us with a Committee room in which to conduct our meetings.
Appendix:
A. Delegation of the Portfolio Committee on Finance on study tour to Australia and New Zealand
African National Congress
- Dr R Davies, Leader of delegation
- Mr K A Moloto
- Mr M L Johnson
- Mr B A Mnguni
- Mr L Gabela
-
Ms B Hogan
Democratic Alliance
- Mr I Davidson
-
Dr S M van Dyk
United Democratic Party
-
Mr M Stephens
Inkatha Freedom Party
- Mr T E Vezi
- Mr A Hermans, Committee Secretary
B. List of Persons Consulted
- The Hon B Baird, Australian MP, Chairperson: Standing Committee on Economics, Finance and Public Administration
- The Hon C Bowen, Australian MP, Deputy Chairperson: Standing Committee on Economics, Finance and Public Administration
- The Hon L Tanner, Australian MP
- Dr J Laker, Chairperson: APRA
- Dr R Jones, Deputy Chairperson: APRA
- Mr C Gaskell, Head International Relations: APRA
- Mr S Somogyi, APRA
- Mr J Lucy, Chairperson: SIC
- Mr G Tanzer, Executive Director: Consumer Protection: ASIC
- Mr M Rodgers, Executive Director: Regulation: ASIC
- Ms S Chan, Lawyer, International Relations: ASIC
- Dr P Lowe, Assistant Governor: Reserve Bank of Australia
- Dr T Richards, Head: Economic Analysis: Reserve Bank of Australia
- Dr M Orsmond, Deputy Head: Economic Analysis: Reserve Bank of Australia
- Mr J Murphy, Executive Director: Markets Group, Australian Treasury Department
- Mr D Love, Manager of Investor Protection Unit: Australian Treasury Department
- Ms L Allan, Acting Manager pf Prudential Policy: Australian Treasury Department
- Prof M Sathye, Head of Accounting, Banking and Finance Discipline and Deputy Head: School Of Business and Government: University of Canberra
- H.E Mr A Mongalo, South African High Commission
- Mr L Mason, General Consul: Securities Commission, New Zealand
- Hon C Cosgrove, New Zealand, MP, Chairperson: Finance and Expenditure Committee
- Hon G Copeland, New Zealand, MP, Deputy Chairperson: Finance and Expenditure Committee
- Hon C Carter, MP, Minister of Ethnic Affairs, New Zealand
- Ms F Barker, Senior Analyst: Macro Policy, Australian Treasury Department
- Ms L Thomson, Manager: Legal Services: Ministry of Economic Development, New Zealand
- Mr B Layton, Director: New Zealand Institute of Economic Research and Development
- Mr B Scroope, Analyst, Ministry of Economic Development, New Zealand
- Ms H Lan Yap, Senior Analyst, Ministry of Economic Development, New Zealand
- Mr G Mortlock, Reserve Bank of New Zealand
-
Mr I Woolford, Reserve Bank of New Zealand
MONDAY, 31 OCTOBER 2005
ANNOUNCEMENTS
National Assembly and National Council of Provinces
The Speaker and the Chairperson
- Classification of Bills by Joint Tagging Mechanism (JTM)
(1) The JTM on 31 October 2005 in terms of Joint Rule 160(3),
classified the following Bill as a section 75 Bill:
(i) Diamonds Amendment Bill [B 27B – 2005 (Reintroduced)]
(National Assembly – sec 75)
TABLINGS
National Assembly and National Council of Provinces
- The Speaker and the Chairperson
(a) Report of the Auditor-General on the Submission of Financial
Statements by Municipalities for the financial year ended 30 June
2005 [RP 221-2005].
- The Minister of Finance
(a) National Treasury Consolidated Financial Information for the
year ended 31 March 2005, including:
1. Report of the Auditor-General on the Consolidated Financial
Information of National Departments, National Revenue Fund,
State Debt and Tax and Loan Accounts of the National Treasury
(“Department”) for the year ended 31 March 2005;
2. Report of the Auditor-General on the Consolidated Financial
Information of Constitutional Institutions, Schedule 2, 3A and
3B Public Entities and Trading Accounts (Entities”) for the
year ended 31 March 2005.
-
The Minister of Labour
a) Report and Financial Statements of the Unemployment Insurance Fund (UIF) for 2004-2005, including the Report of the Auditor-General on the Financial Statements for 2004-2005.
-
The Minister of Trade and Industry
a) Report and Financial Statements of the Micro Finance Regulatory Council (MFRC) for the year ended 31 December 2004.
National Assembly
-
The Speaker
a) Letter from the Minister for Justice and Constitutional Development dated 26 October 2005 to the Speaker of the National Assembly, in terms of section 65(2)(a) of the Public Finance Management Act, 1999 (Act No 1 of 1999), explaining the delay in the tabling of the Annual Report of the Legal Aid Board for 2004-2005:
LATE TABLING OF THE LEGAL AID BOARD ANNUAL REPORT FOR 2004-05
I write to furnish reasons in terms of Section 65(2) of the Public Finance Management Act (PFMA) for the delay in the tabling of the Legal Aid Board Annual Report to Parliament. In terms of Section 65(1) of the PFMA, all Executive Authorities are required to table their Annual Reports and those of the entities under their responsibility, financial statements and the Auditor-General’s report on the financial statements by the 30th September.
Although proofs of the Legal Aid Board Annual Report were submitted to my office at the beginning of September 2005, the deadline for submission could not be met as required due to delays encountered during the printing of copies for tabling in Parliament.
The Annual Report of the Board will be tabled on 28 October 2005.
I thank you in advance for your co-operation.
Kind regards,
B S Mabandla Minister for Justice and Constitutional Development
b) Letter from the Minister for Justice and Constitutional Development dated 26 October 2005 to the Speaker of the National Assembly, in terms of section 65(2)(a) of the Public Finance Management Act, 1999 (Act No 1 of 1999), explaining the delay in the tabling of the Annual Report of the South African Law Reform Commission for 2004- 2005:
LATE TABLING OF THE SOUTH AFRICAN LAW REFORM COMMISSION ANNUAL REPORT FOR 2004-05
I write to furnish reasons in terms of Section 65(2) of the Public Finance Management Act (PFMA) for the delay in the tabling of the South African Law Reform Commission Annual Report to Parliament. In terms of Section 65(1) of the PFMA, all Executive Authorities are required to table their Annual Reports and those of the entities under their responsibility, financial statements and the Auditor- General’s report on the financial statements by the 30th September.
The South African Law Reform Commission is one of the components of the Branch: Legislation and Constitutional Development in the Department. The Commission’s financial statements are part of the Departments’s annual report which was tabled on 30 September 2005. A report on the activities of the Commission was, however, not tabled as required. The Commission only met on 30 September 2005 to approve the report. The report has since gone for layout, design and printing and it is anticipated that it will be ready for tabling on 18 November 2005.
I thank you in advance for your co-operation.
Kind regards,
B S Mabandla Minister for Justice and Constitutional Development
c) Letter from the Minister for Agriculture and Land Affairs dated 27 October 2005 to the Speaker of the National Assembly, in terms of section 65(2)(a) of the Public Finance Management Act, 1999 (Act No 1 of 1999), explaining the delay in the tabling of the Annual Report of Inala Farms for 2004-2005:
INALA FARMS: TABLING OF ANNUAL REPORT AND FINANCIAL STATEMENTS IN PARLIAMENT
I acknowledge with thanks receipt of the letter dated 18 October 2005 from the Acting Speaker, Mr G Doidge.
Inala Farming (Pty) Ltd (Operations Company) is currently undergoing liquidation, and as such is involved in the court proceedings connected therewith. It Is for this reason that Inala Farms (Pty) Ltd (Property Company) has not tabled their Annual Report in Parliament.
It is not clear at this stage when the liquidation process will be finalised.
Kind regards
A T DIDIZA MINISTER
d) Letter from the Minister of Sport and Recreation dated 28 October 2005 to the Speaker of the National Assembly, in terms of section 65(2)(a) of the Public Finance Management Act, 1999 (Act No 1 of 1999), explaining the delay in the tabling of the Annual Report of Boxing South Africa for 2004-2005:
Tabling of Boxing South Africa’s Annual Report
According to section 55(1)(d) of the PFMA, the accounting authority of Boxing SA had to submit their Annual Report to the Executive authority by the end of August 2005, for tabling in the National Assembly by 30 September 2005.
Boxing South Africa did not comply with section 55(1)(d) of the PFMA and was asked to provide a written explanation in this regard.
The following reasons for the late submission of the Annual Report were provided by Boxing South Africa preventing the Executive Authority to comply with section 65(1)(a) of the PFMA:
1. The Auditor-General completed the annual audit of Boxing South Africa and advised BSA on 27 July 2005 that the Annual Financial Statement would be disclaimed due to inter alia, the lack of an audit trail in the finances concerning tournaments, unsatisfactory reconciliation of the licence fees and asset register. 2. The Board of Boxing SA resolved to withdraw the Financial Statements, rectify them and then resubmit to the Auditor General. The indulgence of the Minister was duly sought in terms of the Boxing Act. 3. The Board’s rationale was that the Financial Statements were disclaimed in the previous year and to accept a second disclaimer would send a signal that the finances of Boxing SA was in disarray, which is not the true situation.Kind regards
REV DR M A STOFILE MINISTER OF SPORT AND RECREATION
COMMITTEE REPORTS
National Assembly
-
Report of the Portfolio Committee on Minerals and Energy on the Diamonds Amendment Bill [B 27 – 2005 (Reintroduced)] (National Assembly – sec 75), dated 31 October 2005:
The Portfolio Committee on Minerals and Energy, having considered the subject of the Diamonds Amendment Bill [B 27 – 2005 (Reintroduced)] (National Assembly – sec 75), referred to it, and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 27A - 2005].
-
Report of the Portfolio Committee on Foreign Affairs, dated 12 September 2005:
The Portfolio Committee on Foreign Affairs having considered the Report of the South African Parliamentary Delegation on the 17th Plenary Assembly Session of the Southern African Development Community (SADC) Parliamentary Forum, held at Dar Es Salaam, Tanzania, 10 – 17 December 2004, referred to it, reports that it has concluded its deliberations thereon.
-
Report of the Portfolio Committee on Foreign Affairs on the Report of the South African Parliamentary Observer Mission on the 2005 Zimbabwe Parliamentary Elections – 31 March 2005, dated 19 October 2005:
The Portfolio Committee on Foreign Affairs having considered the Report of the South African Parliamentary Observer Mission on the 2005 Zimbabwe Parliamentary Elections – 31 March 2005, referred to it, reports that:
It has noted the report and agrees to it, but accepts different views from different parties;
The Committee recommends that the report be accepted and request a further debate in the House.
Report to be considered.
-
Report of the Portfolio Committee on Foreign Affairs on the Report of the Public Service Commission on the Investigation into the Appointment of Professional Cubans in the South African Public Service, dated 19 October 2005:
The Portfolio Committee on Foreign Affairs having considered the Report of the Public Service Commission on the Investigation into the Appointment of Professional Cubans in the South African Public Service, referred to it and reports that:
It has noted the report and agrees to it;
The Committee recommends that the report be accepted.
Report to be considered.
-
Correction of Report – PC on Home Affairs
The Report of the Portfolio Committee on Home Affairs on the National Conference Against Child Pornography (published in the Announcements, Tablings and Committee Reports of 7 September 2005 (p 1767), contained an error under the heading of Mr Patrick Chauke, Chairperson: Home Affairs Parliamentary Portfolio Committee, paragraph 3, in that it indicated R150. It should read “R1,50c”.
TUESDAY, 1 NOVEMBER 2005
ANNOUNCEMENTS
National Assembly and National Council of Provinces
The Speaker and the Chairperson
- Messages from National Assembly to National Council of Provinces in respect of Bills passed by Assembly and transmitted to Council
Bills passed by National Assembly on 1 November 2005 and transmitted
for concurrence:
i) Diamonds Amendment Bill [B 27B – 2005 (Reintroduced)] (National
Assembly – sec 75)
The Bill has been referred to the Select Committee on Economic
and Foreign Affairs.
ii) Precious Metals Bill [B 30B – 2005] (National Assembly – sec 75)
The Bill has been referred to the Select Committee on Economic
and Foreign Affairs.
TABLINGS:
NATIONAL ASSEMBLY
- Referrals to Committees of papers tabled
1. The following papers are referred to the Portfolio Committee on
Trade and Industry for consideration and report. The Reports of the
Auditor-General and the Independent Auditors on the Financial
Statements are referred to the Standing Committee on Public
Accounts for consideration:
(a) Report and Financial Statements of Vote 32 – Department of
Trade and Industry for 2004-2005, including the Report of the
Auditor-General on the Financial Statements of Vote 32 for
2004-2005.
b) Report and Financial Statements of Trade and Investment South
Africa for 2004-2005, including the Report of the Independent
Auditors on the Financial Statements for 2004-2005.
c) Report and Financial Statements of Support Program for
Industrial Innovation (SPII) for 2004-2005, including the
Report of the Independent Auditors on the Financial Statements
for 2004-2005.
d) Report and Financial Statements of the Technology and Human
Resources for Industry Programme (THRIP) for 2004-2005,
including the Report of the Auditor-General on the Financial
Statements for 2004-2005.
e) Report and Financial Statements of the Estate Agency Affairs
Board for 2004-2005, including the Report of the Independent
Auditors on the Financial Statements for 2004-2005.
f) Report of the National Industrial Participation Programme
2005.
2. The following paper is referred to the Portfolio Committee on
Trade and Industry and the Standing Committee on Public Accounts
for consideration:
a) Letter from the Minister of Trade and Industry dated 17
October 2005 to the Speaker of the National Assembly, in
terms of section 65(2)(a) of the Public Finance Management
Act, 1999 (Act No 1 of 1999), explaining the delay in the
tabling of the Annual Report of the Department of Trade and
Industry for 2004-2005.
3. The following papers are referred to the Portfolio Committee on
Trade and Industry for consideration and report:
a) Additional Protocol to the Trade, Development and Cooperation
Agreement (TDCA) between the Republic of South Africa and the
European Community (EC) and its member states, tabled in terms
of section 231(2) of the Constitution, 1996.
b) Explanatory Memorandum to the Additional Protocol to the
Trade, Development and Cooperation Agreement (TDCA) between
the Republic of South Africa and the European Community (EC)
and its member states.
4. The following papers are referred to the Portfolio Committee on
Trade and Industry:
a) Government Notice No R.431 published in Government Gazette No
27560 dated 13 May 2005: Standards Matters in terms of the
Standards Act, 1993 (Act No 29 of 1993).
b) Government Notice No R.518 published in Government Gazette No
27615 dated 3 June 2005: Import Control in terms of the
International Trade Administration Act, 2002 (Act No 71 of
2002).
c) Government Notice No R.567 published in Government Gazette No
27685 dated 24 June 2005: Proposed introduction of a
compulsory specification for replacement elastomeric cups and
seals for hydraulic brake actuating cylinders for use in motor
vehicles using non-petroleum base hydraulic brake fluid, in
terms of the Standards Act, 1993 (Act No 29 of 1993).
d) Government Notice No 641 published in Government Gazette No
27750 dated 1 July 2005: Strategic Industrial Project: Lafarge
Gypsum (Pty) Ltd, in terms of the Income Tax Act, 1962 (Act No
58 of 1962).
e) Government Notice No 642 published in Government Gazette No
27750 dated 1 July 2005: Strategic Industrial Project: Nampak
Metal Packaging Limited – Bevcan, in terms of the Income Tax
Act, 1962 (Act No 58 of 1962).
f) Government Notice No 643 published in Government Gazette No
27750 dated 1 July 2005: Strategic Industrial Project: Pulp
United (Pty) Ltd, in terms of the Income Tax Act, 1962 (Act No
58 of 1962).
g) Government Notice No 644 published in Government Gazette No
27750 dated 1 July 2005: Strategic Industrial Project: Nampak
Products Limited – Corrugated Flexographic Printing Project,
in terms of the Income Tax Act, 1962 (Act No 58 of 1962).
h) Government Notice No 645 published in Government Gazette No
27750 dated 1 July 2005: Strategic Industrial Project: Sud-
Chemie SA (Pty) Ltd, in terms of the Income Tax Act, 1962 (Act
No 58 of 1962).
i) Government Notice No 646 published in Government Gazette No
27750 dated 1 July 2005: Strategic Industrial Project: Trident
Steel (Pty) Ltd, in terms of the Income Tax Act, 1962 (Act No
58 of 1962).
j) Government Notice No 647 published in Government Gazette No
27750 dated 1 July 2005: Strategic Industrial Project: UCAR
South Africa (Pty) Ltd, in terms of the Income Tax Act, 1962
(Act No 58 of 1962).
k) Government Notice No 648 published in Government Gazette No
27750 dated 1 July 2005: Strategic Industrial Project: Duys
Engineering (Pty) Ltd, in terms of the Income Tax Act, 1962
(Act No 58 of 1962).
l) Government Notice No 649 published in Government Gazette No
27750 dated 1 July 2005: Strategic Industrial Project: Duys
Engineering (Pty) Ltd, in terms of the Income Tax Act, 1962
(Act No 58 of 1962).
m) Government Notice No 650 published in Government Gazette No
27750 dated 1 July 2005: Strategic Industrial Project: MOLT
Fruit Processing (Pty) Ltd, in terms of the Income Tax Act,
1962 (Act No 58 of 1962).
n) Government Notice No 651 published in Government Gazette No
27750 dated 1 July 2005: Strategic Industrial Project: Silicon
Technology (Pty) Ltd, in terms of the Income Tax Act, 1962
(Act No 58 of 1962).
o) Government Notice No 652 published in Government Gazette No
27750 dated 1 July 2005: Strategic Industrial Project: Pulp
United (Pty) Ltd, in terms of the Income Tax Act, 1962 (Act No
58 of 1962).
p) Government Notice No 602 published in Government Gazette No
27713 dated 1 July 2005: Companies and Intellectual Property
Registration Office – Amendment of Regulations, in terms of
the Designs Act, 1993 (Act No 195 of 1993).
q) Government Notice No 603 published in Government Gazette No
27713 dated 1 July 2005: Companies and Intellectual Property
Registration Office – Amendment of Regulations, in terms of
the Trade Marks Act, 1993 (Act No 194 of 1993).
r) Government Notice No 604 published in Government Gazette No
27713 dated 1 July 2005: Companies and Intellectual Property
Registration Office – Amendment of Regulations, in terms of
the Patents Act, 1978 (Act No 57 of 1978).
s) Government Notice No 605 published in Government Gazette No
27713 dated 1 July 2005: Companies and Intellectual Property
Registration Office – Amendment to Companies Administrative
Regulations, in terms of the Companies Act, 1973 (Act No 61 of
1973).
t) Government Notice No 606 published in Government Gazette No
27713 dated 1 July 2005: Companies and Intellectual Property
Registration Office – Amendment of Regulations, in terms of
the Registration of Copyright in Cinematograph Films Act, 1977
(Act No 62 of 1977).
u) Government Notice No 607 published in Government Gazette No
27713 dated 1 July 2005: Companies and Intellectual Property
Registration Office – Amendment to Close Corporations
Administrative Regulations - 1984, in terms of the Electronic
and Communications and Transactions Act, 2002 (Act No 25 of
2002).
v) Government Notice No 655 published in Government Gazette No
27735 dated 8 July 2005: Standards Matters in terms of the
Standards Act, 1993 (Act No 29 of 1993).
w) Government Notice No 1099 published in Government Gazette No
27735 dated 8 July 2005: Notices of initiation of
investigation into the alleged dumping of detonated fuses and
delay detonators (commonly known as shock tubes), originating
in or imported from the Peoples Republic of China, in terms of
the International Trade Administration Commission of South
Africa.
x) Government Notice No 1100 published in Government Gazette No
27735 dated 8 July 2005: Customs and Excise Tariff
applications: List 9/2005 in terms of the International Trade
Administration Commission of South Africa.
y) Government Notice No R.622 published in Government Gazette No
27762 dated 8 July 2005: Amended Safeguard Regulations in
terms of the International Trade Administration Act, 2002 (Act
No 71 of 2002).
z) Government Notice No 766 published in Government Gazette No
27846 dated 5 August 2005: Standards Matters in terms of the
Standards Act, 1993 (Act No 29 of 1993).
aa) Government Notice No R.779 published in Government Gazette No
27847 dated 5 August 2005: Amendment in terms of the
International Trade Administration Commission of South
Africa.
ab) Trade and Economic Agreement between the Republic of South
Africa and the Republic of Turkey, tabled in terms of section
231(3) of the Constitution, 1996.
ac) Explanatory Memorandum to the Trade and Economic Agreement
between the Republic of South Africa and the Republic of
Turkey.
5. The following paper is referred to the Portfolio Committee on
Home Affairs and the Standing Committee on Public Accounts for
consideration:
(a) Letter from the Minister of Home Affairs dated 4 October
2005 to the Speaker of the National Assembly, in terms of
section 65(2)(a) of the Public Finance Management Act, 1999
(Act No 1 of 1999), explaining the delay in the tabling of the
Annual Report of the Film and Publication Board for 2003-2004.
6. The following paper is referred to the Portfolio Committee on
Home Affairs for consideration and report. The Report of the
Auditor-General on the Financial Statements is referred to the
Standing Committee on Public Accounts for consideration:
a) Report and Financial Statements of the Film and Publication
Board for 2003-2004, including the Report of the Auditor-
General on the Financial Statements for 2003-2004 [RP 158-
2004].
7. The following paper is referred to the Portfolio Committee on
Defence, the Joint Standing Committee on Defence and the Standing
Committee on Public Accounts for consideration:
a) Letter from the Minister of Defence dated 20 October 2005 to
the Speaker of the National Assembly, in terms of section
65(2)(a) of the Public Finance Management Act, 1999 (Act No 1
of 1999), explaining the delay in the tabling of the Annual
Report of the Department of Defence 2004-2005.
8. The following paper is referred to the Portfolio Committee on
Justice and Constitutional Development and the Joint Monitoring
Committee on the Improvement of the Quality of Life and Status of
Women for consideration and report. The Report of the Auditor-
General on the Financial Statements is referred to the Standing
Committee on Public Accounts for consideration:
a) Report and Financial Statements of the Commission for Gender
Equality (CGE) for 2004-2005, including the Report of the
Auditor-General on the Financial Statements for 2004-2005 [RP
120-2005].
COMMITTEE REPORTS
National Assembly and National Council of Provinces
- Report of the Constitutional Review Committee, dated 28 October 2005:
In terms of section 45 of the Constitution Parliament has to establish
a joint committee to review the Constitution at least annually.
In giving effect to this provision the Constitutional Review Committee
placed advertisements in the media on 9 May 2005 inviting from the
public submissions regarding changes to the Constitution. The
submissions had to reach the Committee by 30 May 2005. In all, 17
submissions were received.
The Committee requested the Parliamentary Legal Services Office to
consider each of the submissions in the light of current jurisprudence.
Where necessary the Legal Services Office engaged the assistance of
legal specialists such as Professor Julian Hoffman from the University
of Cape Town as well as the Parliamentary Information Services Section.
Hereunder are brief summaries of the submissions of the public as well
as the Committee’s views and its recommendations.
1. Property: Section 25
It was submitted that section 25 of the Constitution should be amended
to allow for land redistribution to take place without subjecting the
process to rigid legislative requirements; to reform the tax system for
the introduction of a land tax system; to amend the circumstances for
determining the amount of compensation paid for the expropriation of
property; and to impose positive obligations on the legislature and
executive to implement the amendments.
The Committee noted that the redistribution of land is on-going and
that a positive right to property was not included in the Constitution
for the specific purpose of allowing redress of past injustices as well
as allowing for measures to ensure equitable access to property,
including land. The Committee is further of the view that the
regulation of a land tax is a matter to be dealt with in ordinary
legislation and not the Constitution.
Recommendation
The Committee accordingly does not support an amendment to section 25
of the Constitution.
2. Traditional Leaders: Sections 211 and 212
It was submitted that sections 211 and 212 of the Constitution should
be amended to make provision for the effective functioning of
institutions of traditional leadership and that traditional communities
must be specifically recognized in sections 211 and 212. Also, that
section 212 be amended to provide a role for traditional communities
and leaders in legislative and executive decision making; that the
section fails to recognise a role for traditional communities other
than at local government level and that the wording of section 212(2)
should be in the peremptory form.
The Committee is of the opinion that the recognition of specific
traditional communities in the Constitution would require a drastic
deviation from current policies and conflicts with democratic
principles.
Recommendation
The Committee is satisfied with the current construction of sections
211 and 212 and accordingly recommends that no amendment to these
sections is needed.
3. Equality Clause: Section 9
It was proposed that an element of “prejudice” should be incorporated
into the test for “discrimination” in section 9 of the Constitution.
It is submitted that the wording of section 8(4) of the interim
Constitution sets a better requirement for discrimination than the
wording in section 9(5) of the final Constitution.
The Committee is of the opinion that the Constitutional Court has
clearly pronounced itself on the “equality” clause and in this respect
the Committee does not support the submission.
Recommendation
The Committee recommends that no amendment to section 9 is warranted.
4. Interpretation Clause: Section 39
It was proposed that the Constitution should contain interpretation
guidelines additional to section 39 of the Constitution because without
such interpretation guidelines and methodologies “the understanding of
justice seems to be within the particular bosom of the judges.”
The Committee does not agree that the interpretation of the
Constitution should be subjected to rigid principles as proposed.
Recommendation
The Committee recommends that no amendment to the Constitution in this
regard is needed.
5. Limitation Clause: Section 36
It was submitted that because the rights in the Bill of Rights do not
enjoy the same status, the Constitution should make provision for a
hierarchy of rights.
The Committee notes that the Constitutional Court has in the case of S
v Makwanyane and Another [1995 (3) SA 391 (CC)] recognized that certain
rights do enjoy greater status than others. However, the Committee is
of the view that it is not necessary to amend the Constitution to give
effect to the proposal.
Recommendation
The Committee recommends that no amendment to the Constitution is
needed.
6. Marriage
Separate submissions were received for the inclusion of a definition of
“marriage” in the Constitution.
The Committee is of the opinion that a definition of “marriage” should
not be included in the Constitution.
Recommendation
The Committee does not recommend any amendment to the Constitution in
this regard.
7. Innocent until proven guilty
It was submitted that the slogan used by the Drive Alive Project, i.e.
”If you as a motorist hit, run over or injure a Pedestrian, you will be
guilty of an offence and pay the penalty” is contrary to the
Constitution because it reverses the presumption of “innocent until
proven guilty”.
The Committee is of the opinion that the presumption of innocence is a
pillar of our criminal justice system and that the submission was not
requesting a constitutional amendment.
Recommendation
The Committee recommends that no amendment to the Constitution in this
regard is needed.
8. Prisoners’ right to vote
It was submitted that prisoners should not be allowed to vote.
The Committee is not in favour of an amendment to the Bill of Rights
and does not agree that prisoners should be disenfranchised.
Recommendation
The Committee recommends that no amendment in this regard is needed.
9. Provision of Old Age Homes
A submission was received that motivates for Old Aged Homes to be
provided for aged people in order to protect such persons from abuse.
The Committee is of the view that the submission does not require a
constitutional amendment but that it is a proposal that should be
directed to the Department of Social Services.
Recommendation
The Committee recommends that no amendment is warranted.
10. Right to Life and the Death Penalty: Section 11
It was submitted that the death penalty should be re-instated as a
sentence for certain serious crimes, for example, murder and rape.
The Committee does not support the re-introduction of the death
penalty.
Recommendation
The Committee recommends that no amendment be considered in this
regard.
11. Health Care Services: Section 27
It was proposed that a woman’s right to reproductive health care
services should not be extended to abortions, except in cases of rape,
where the pregnancy poses a serious health risk or where the foetus is
extremely disfigured.
The Committee is of the view that the suggested amendment would impact
negatively on the fundamental rights of women.
Recommendation
The Committee does not support the submission and recommends that no
amendment to section 27 is needed.
12. Care of Children’s rights: Section 28
It was proposed that section 28 of the Constitution should be amended
as follows-
• section 28(1)(b) - to entrench a right for every child to
family care, parental care, or guardian care, or to
appropriate alternative care when removed from the family
environment;
• section 28(1)(f) – to include the following words after the
word “service”, namely, “or be subjected to any cultural,
ethnic, social or religious practices or acts”;
• section 28(1)(g) – to provide for the constant supervision
of a child who is detained by an appointed and qualified
person.
The Committee is of the view that section 28(2) of the Constitution
entrenches the right that a child’s best interest is of paramount
importance in every matter concerning the child. The Committee is
further of the view that the proposed amendments would not result in
additional protection for children.
Recommendation
The Committee recommends that the existing provisions are adequate and
that no amendment is needed.
13. The independence of the Judiciary - Section 165(2)
It was proposed that the independence of the judiciary should be
suspended so as to allow it to be monitored by a parliamentary organ.
Also, that monitoring should be in place until the entire justice
system is transformed and that “immoral court verdicts” should be
addressed. Further, that a mechanism should be introduced that holds
the judiciary accountable to the State and to the citizenry at large.
The Committee acknowledges that judicial independence is entrenched in
the Constitution and that the independence of the judiciary is
essential to the doctrine of separation of powers. However, the
Committee notes that a mechanism that provides for complaints against
judicial officers is currently being addressed in legislation.
Recommendation
The Committee recommends that no amendment in this regard is needed.
14. Section 184(2)(d)
A submission proposed that the South African Human Rights Commission
should be empowered and obliged to educate people on human rights from
primary school level and to every family in the country.
The Committee is aware that the functions of the Commission are
dependent on its resources and that the proposal does not require an
amendment to the Constitution.
Recommendation
The Committee recommends that no amendment in this regard is warranted.
15. Chapter 9 of the Constitution
It was submitted that section 192 of the Constitution should be amended
to make provision for the inclusion of telecommunications and that the
Broadcasting Authority should be included in section 181 of the
Constitution as an institution supporting constitutional democracy.
The Committee acknowledges that there is uncertainty between what is
understood to fall within the realms of broadcasting and
telecommunications. The Committee notes that the Portfolio Committee on
Communications is currently deliberating on the Convergence Bill that
covers the merging of broadcasting and telecommunications. The
Committee is of the view that the Department of Communications and the
Portfolio Committee on Communications should be called upon to make
further presentations on this topic to the Committee.
Recommendation
The Committee recommends that the matter should be more fully
considered.
16. Section 146(6)
It was submitted that section 146(6) of the Constitution should be
amended because it makes a distinction between national delegated
legislation made in terms of section 101 and provincial delegated
legislation made in terms of section 140. It was further submitted that
provincial delegated legislation may not be referred to the National
Council of Provinces (NCOP) in terms of section 146(6).
The Committee is of the view that section 146(6) does not prohibit
provincial delegated legislation from being referred to the NCOP.
Recommendation
The Committee recommends that no amendment in this regard is warranted.
17. Animal Rights and Section 24
It was proposed that the “protection” of animal rights should be
included in the Constitution because current animal rights legislation
is inadequate. Further, that provision should be made in the
Constitution for an obligation to be imposed on government to take
reasonable steps to ensure the protection of the environment and
animals.
The Committee acknowledges that the Bill of Rights only deals with
human rights and does not support the inclusion of positive rights for
animals. Also, because section 7(2) of the Constitution places a duty
on the State to amongst others, fulfil the rights in the Bill of
Rights, the Committee is of the opinion that section 24 does not have
to be amended to specifically place an obligation on the State to
protect animals and section 24(b) may be a conduit for the “protection”
of animals legislation.
Recommendation
The Committee recommends that no amendment is warranted in this regard
but that the submission be referred to the Portfolio and Select
Committees dealing with Environmental Affairs for comment as to whether
the existing animal protection legislation is adequate.
18. Religion: Section 15
It was submitted that section 15 of the Constitution should be amended
to specifically recognize the fundamental principles of the religion of
Islam.
The Committee holds the view that an amendment to section 15 that
recognizes a particular religion will be contrary to the principles of
the constitutional order, especially in respect of freedom of religion.
Recommendation
The Committee recommends that no amendment in this regard is warranted.
19. Labour Relations: Section 23
It was recommended that labour legislation should be reviewed to ensure
it is consistent with section 23 of the Constitution.
The Committee notes that the submission does not require an amendment
to the Constitution, but an enactment of ordinary legislation.
Recommendation
The Committee recommends that no amendment to section 23 is warranted.
20. Co-operative Government: Section 40 (1)
A submission was received that proposes that the reference to
“provincial” government in section 40(1) of the Constitution should be
removed and that provincial government should be merged with national
government because national government constantly intervenes in the
affairs of provinces.
The Committee notes that the provincial sphere of government forms an
integral sphere in respect of the constitutional order and therefore
its removal would require drastic amendments to the Constitution and
other legislation.
Recommendation
The Committee recommends that no amendment to section 40(1) is needed.
21. Parliament and Local Government
It was submitted that local government should not be represented in the
National Council of Provinces (NCOP) by organized local government. It
is argued that section 163 should be deleted and that local government
should be allowed to associate along the lines of labour legislation in
terms of section 23 of the Constitution.
The Committee is of the opinion that section 67 of the Constitution
adequately provides for local government to be represented in the NCOP.
Further, the representation of local government in the NCOP is not
dependant on an employment relationship and therefore section 23 cannot
apply.
Recommendation
The Committee does not support any amendment to the Constitution in
this regard.
Submissions were received from: |Number |Submission received from | No of | | | |submissions | |1 |Peter Meaken |1 | |2 |Royal Bafokeng Nation |2 | |3 |Marriage Alliance of South Africa |2 | |4 |Doctors for Life International |1 | |5 |Hazel Shelton |1 | |6 |Mr Nick McConnell |1 | |7 |Mr Mick McConnell |1 | |8 |Mrs G McConnell |1 | |9 |Learners of the Hendrik Verwoerd |1 | | |High School | | |10 |Ms NM Tshoma |1 | |11 |Mr A F Nkoana |1 | |12 |Ms Khahliso Mochaba and Ms Justine |1 | | |White | | |13 |Janis Jordan |1 | |14 |Rashid Patel and Company (Attorneys)|1 | |15 |Mr J M Nhlapo |1 |
Report to be considered.
National Assembly
-
Report of the Portfolio Committee on Agriculture and Land Affairs on Land and Agrarian Reform Summit, Gauteng, dated 25 October 2005:
The Portfolio Committee on Agriculture and Land Affairs, having been participated in the Land Summit held in Nasrec, Gauteng from 27 – 31 July 2005, reports as follows:
-
BACKGROUND TO THE LAND SUMMIT
- The Minister for Agriculture and Land Affairs, in the Budget vote speech to Parliament outlined the programme of action of the government for the coming financial year. Central to those activities was the question of access to and use of agricultural land as well as the issue of land reform in general, all of which culminated in the Summit on Land and Agrarian Reform.
-
The Summit was held to draw from international and local experiences on land reform policy and implementation. It also served as a platform to engaged in open, frank and honest dialogue on land and agrarian reform within South Africa.
-
DELEGATION
- Although the Committee submitted a recommendation to Parliament for a ten-member multi-party delegation to attend the Summit, such recommendation was not approved, and no reasons were provided.
-
Therefore, the following four members attended: Mr Z. Kotwal (ANC); Mr D.M Dlali (ANC); Mr B.A Radebe (ANC) and Mr A.H Nel (DA). Mr J. Boltina accompanied the committee for logistics and secretarial support.
-
THEME OF THE SUMMIT: “A partnership to fast-track land reform: A new trajectory, forward to 2014.”
- OBJECTIVES
-
- Inform the South African public about progress made in the land and agrarian reform process;
- Acknowledge challenges facing the process;
- To look at “blockages” in implementing land and agrarian reform;
- To affirm commitment to the process;
- To invite South Africans to actively participate in land and agrarian reform;
- To examine the country’s land market and how it functions; and
-
To examine how to make interventions on what is required to improve delivery mechanism.
-
IN BROAD TERMS THE SUMMIT WAS INTENDED TO:
-
Celebrate the 50th anniversary of the Freedom Charter;
-
To reverse the legacy of Natives Land Act of 1913 that was promulgated; and
-
Review access to agricultural land in the past decade while encouraging dialogue amongst key partners and stakeholders.
-
BUILD-UP TO THE SUMMIT: Provincial Departments of Agriculture and Land Affairs were encouraged to hold provincial summits as a build up to the National Summit.
-
KEY NOTE SPEECH BY MINISTER OF AGRICULTURE AND LAND AFFAIRS, HON. THOKO DIDIZA
In 1994, the democratic government inherited one of the worst racially skewed land distributions in the world; whites owning 87% and blacks 13% of agricultural land. Undoing this legacy of apartheid’s highly unequal redistribution is therefore a fundamental priority for the nation. It was because of this reality that even during the negotiations periods for a peaceful settlement one of the important principles that had to be addressed was the need to undertake land reform in South Africa.
Gathered here today, as stakeholders from Government, political parties, business, farmers, workers tenants, landless communities, civil society, faith –based organizations and traditional authorities – to honestly take stock of Constitutional obligation to carry out the just and fair land and agrarian reform over the last decade and also define real and concrete measures to accelerate land reform in South Africa.
This Summit takes place under the back-drop of the 50th Anniversary of the Freedom Charter whose vision for a future democratic dispensation in South Africa contained the following important land and agrarian issues:
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• “South Africa belongs to all who live in it, Black or White, • The people shall share in the country’s wealth, • The land shall be shared among those who work it.”
This vision of the Freedom Charter was a direct opposite of and an attack on the apartheid vision that had its roots in the Native Land Act of
- The immediate and devastating impact of the Native Land Act that is still evident in almost all aspects of lives today was graphically described in the following words by Sol Plaatjie, the first Secretary General of the African National Congress, in his book “Native Life in South Africa:” “Awaking of Friday morning, June 20, 1913, the South African native found himself, not actually a slave, but a pariah in the land of his birth.”
It is against this painful history of land dispossession, economic exploitation and social domination of particularly the African majority population, that the Constitution of the Republic of South Africa imposed the duty and an obligation on the State, as a matter of public interest, to take legislative and other measures to effect land reform in order to facilitate restorative land justice, increased access to land and improved security of tenured.
The principle that underpinned the Freedom Charter and that is today enshrined in the Constitution, firmly asserts that never again should an individual or a group of individuals and communities in the country suffer from unjust, inhuman and unfair dispossession of their land property and material possessions.
After ten years of courageous and concerted efforts to restore the dignity and the respect of the poor, the dispossessed and landless communities, the overall assessment of government performance and its social partners is that commendable progress has been made in the delivery of land and agrarian reform in South Africa.
This progress has been made in spite of the fact that the first years of democratic governance, a lot of focus was on reorganization of the State, the integration of various administrations, the drafting and promulgation of new legal statutes and setting up of institutions to support land and agrarian reform.
In examining progress, there is a need to acknowledge that there was no standard from which to measure, safe to say the targets as set in the Reconstruction and Development Programme. The matter is raised because any international comparison would indicate that each land reform program in a particular country would have its own peculiar circumstances into consideration.
Taking this reality into consideration how far has the government gone in the past ten years? Since 1994, over 1.2 million people have benefited from the entire land reform program of government. More than 3 million hectares of land have been delivered. Government housing program has also made a contribution towards land delivery.
Further, agricultural control boards were abolished to deregulate commodity and trade markets. Subsidies and tax concessions that favoured commercial farmers were withdrawn and support programmes for emerging farmers and land reform beneficiaries were established. And a minimum wage for farm workers was introduced. But progress that has been made is not enough. More, swift, resolute and resourceful efforts must still be made to transfer 30%of farm land and transform the agrarian economy and to contribute to higher growth, employment creation and greater social and economic equity.
In assessing the experience gained, the progress made gave confidence and have become more hopeful about the future. Furthermore, invaluable lessons learnt from experience stands in good stead with in the redesign and implementation of 2014 land and agrarian reform.
From experience, the following have been learnt that:
• Legal processes are inherently adversarial, slow and expensive in
comparison to agreements around a common vision and negotiated
processes that work better, faster and improved relations;
• Integrating government programmes must be integrated and collaboration
between departments at all levels encouraged;
• Markets by themselves do not redistribute land at the scale, quality,
location and price from rich to poor and from white to black
participants;
• The willing buyer – willing seller approach needs to be mediated by
the reality of a failure of land markets;
• Restriction on subdivision of land forces beneficiaries to form large
groups that are difficult to manage and sustain;
• The tension between the protection of property rights and obligation
on the state to undertake land reform is essential to maintain a
healthy balance between these growth factors;
• Current legislation regulates evictions rather than provide protection
to farm dwellers land rights;
• Strategic partnerships such as share equity schemes need to address
the question of unequal power relations (knowledge, wealth, networks
etc);
• The neglect of the rural areas and almost exclusive focus on urban
areas has further impoverished the rural and agrarian economy, while
increasing the pressure on urban and peri-urban land for sustainable
human settlement.
The following measures need to be done to ensure that land and agrarian reform moves to the new trajectory that will contribute to the higher path of growth, employment and equity by 2014:
• Re-affirm redistribution target of 30% agricultural land by 2014; • Establish government, business labour and civil society partnerships that are binding with clear role, responsibilities and accountability; • Introduce proactive acquisition of land by the land for targeted groups in the land market; • Establish a register of land needs for target groups, including (labour tenants, farm workers and landless); • Identify specific interventions for targeted groups, including proactive land acquisition by the state; • Introduce a comprehensive support package for the new owners (including agriculture, financing, infrastructure, marketing, training and education, technology transfer, extension and support for land reform projects such as water rights, housing, education, health etc); • Make land and agrarian reform a cluster priority; • Orderly management of evictions and illegal land occupations; • Introduce measures to enhance the security of tenure of farm dwellers and other vulnerable groups; • Complete restitution cases by 2008; • Implement Communal Land Rights Act fully; • Integrate land and agrarian reform into local economic development; • Link rural and urban areas through amongst others peri-urban small and medium holdings; • Acquire land for towns that need land for expansion; • Complete the repeal of the Sub-division Act and sub-divide farms where necessary; • Implement progressive land tax as means to promote more intensive use of land, reduce farm sizes and reduce speculative value of land; • Manage ownership of land by foreigners; • Strengthen cooperation between three spheres of government; • Formulate post Summit implementation strategy for the three years as per the President’s extension on the settlement of outstanding claims, especially rural claims.
8. STAKEHOLDER STATEMENTS ON LAND AND AGRARIAN REFORM (Political
parties in Parliament)
8.1 Mr Kgalema Motlanthe: African National Congress
The true meaning of the freedom charter was also spelt out by the late President of the ANC, Oliver Tambo in 8th January 1980 statement to mark the 25th anniversary of the charter when he said:
“The Freedom Charter contains the fundamental perspective of the vast majority of the people of South Africa of the kind of liberation that of us are fighting for. Hence, it is not merely the Freedom Charter of the African National Congress and its allies. Rather it is the charter of the people of South Africa for liberation … Because it came from the people, it remains still a people’s charter, the one basic political statement of our goals to which all genuinely democratic and patriotic forces of South Africa adhere.” To the extent that these words remain true today, the words of Oliver Tambo are a fundamental premise in understanding the Freedom Charter. This is so because the charter embodies a vision of an alternative society to society we inherited. It constitutes the programme of the people for creation of a truly democratic, non-racial, non-sexist, united and prosperous country. Therefore, we in the ANC our premise remains of debating land transformation, is the Freedom Charter and this remains unchanged.
This Summit on land and agrarian reform will need to practically advance the objective contained in the Freedom Charter that the land shall be shared among those who work in it.
Taking place in the year of the 50th anniversary of the Freedom Charter, the summit should also review progress made over the last decade in advancing land and agricultural reform, and importantly, look at what needs to be done to accelerate and deepen the process of transformation.
It has been 50 years since the Congress of the People, meeting in Kliptown on 26 June 1955, declared that “Restrictions of land ownership on a racial basis shall be ended, all the land re-divided amongst those who work it to banish famine and hunger.”
While legal restrictions on ownership have been abolished, the devastating legacy of the 1913 Land Act is still reflected in current land ownership patterns, in the structure and composition of the agriculture sector, and in the levels of rural poverty and underdevelopment.
While much progress has been made in the first 11years of democracy, it is clear that there is still a long way to go. It is also necessary to assess the rate of progress to date, the lessons that have been learnt and the factors that constrain the realization of the vision of the Freedom Charter. This National Land Summit also takes place at a time when we enter the second decade of freedom. Accordingly, it is necessary to look back and ask difficult questions. The Summit must answer amongst others the following questions:
• How far have we gone to transform land ownership that in terms of the
apartheid regime 13% of the population would own 87% of the land?
• What progress has been made in ensuring that by 2014, we would have
redistributed 30% of the white-owned agricultural land to blacks?
• To what extent is the principle of willing-buyer; willing seller
affecting the pace of land reform in South Africa? What can be done to
increase the pace of land redistribution?
• Have we answered the question of what should be done to address the
skewed land ownership patterns both domestic and foreign?
• Could we honestly suggest that all the stakeholders in the land and
agriculture sector have acted in a manner that advances vision 2014?
As part of building a partnership to fast track land reform, thus advancing the vision of the Freedom Charter, we must re-affirm the charter’s call “The Land Shall be Shared Amongst Those Who Work It.” Indeed, the summit must take decisions that will ensure that the land is shared among all who work it.
Land transformation is unfolding with a constitution exactly says. In this regard section 25 of the constitution provides for amongst that:
“The state must take reasonable legislative and other measures within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.” Accordingly, the constitution imposes an obligation on the state. Furthermore, section 25 states that “A person or community disposed of property after 19 June 1913 as a result of past discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or redress.” This is an obligation on the part of the state. The constitution further instructs the state that “no provision of section 25 may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the result of past racial discrimination.” Once more, this is an obligation that government must perform.
The point is that land transformation and agrarian reform is non- negotiable. It must happen because the constitution of the Republic provides both the legislative and policy framework for such an undertaking. Apartheid has caused poverty and hunger amongst the majority of people. Land and agrarian reform are therefore central in poverty eradication and economic growth. However, this can only be effective if people act collectively and in partnerships. Simply put, there is no case of us- and -them.
The first 10 years of democracy have seen important and impressive progress in land reform. The challenge facing the summit, and South Africa as a whole, is to build on these achievements to accelerate and deepen land agrarian reform.
The struggle to end injustices must succeed as the constitution of the Republic states that: “We the people of South Africa, recognize the injustices of our past. Honour those who suffered for injustice and freedom in our land. Respect those who worked to build and develop our country, and believe that South Africa belongs to all who live in it, united in our diversity.”
Many years to come the future generations will look back at this summit where hundreds of delegates from the length and breadth of the country gathered in NASREC to determine the way forward. The generations will judge the summit on the basis of the actions taken and commitments made to enhance democratic transformation.
8.2 Mr Molefe Pheto: Azanian People’s Organization
The current status: Ten years past the 1994 democratic elections, little has been gained by the landless regarding the return of historical lands. Landless are still hungry and some are actually employed on the same lands which formerly belonged to ancestors. The two government programmes to redress the hunger for land use: the land restitution and land redistribution. Both programmes are failing dismally. Land Restitution requires proof of dispossession after 1913. Land Redistribution is based on white farmers willingness to sell.
The latter is more of a problem because various factors such as, white farmers are not willing to sell to blacks; they know the value of empowerment through land ownership; and there are practical examples where, if they are willing to sell, they inflate the prices beyond the actual value.
Clearly then, blacks would remain in a no-win situation. There should be a mechanism to force white farmers to behave and sell properly or land should be appropriated. Statistics show that ten years after democracy, land ownership is roughly as follows: 55 000 white farmers own all farm land outside the “designated poor reserves”; black owned land by emerging farmers is still to be quantified. 83% is white owned, 17% is black owned or 87% is white owned farmland and 13% is black owned poor land.
The State and the Land: The state is supposed to own 7% of land-mass of the country. Most state owned land needs an urgent audit. There are examples of farmers using vacant land for themselves. Also, there are vast tracts of white owned land which is not used at all. The lands are so huge that they cannot manage to utilize all the lands own.
Social factors on the farms: farm workers family social conditions on the farms are appalling and unacceptable. Simple requirements such as toilets do not exist. There are no structures for entertainment; sports facilities; health facilities and worst of all is that workers suffer from hunger despite being involved in the food production which is even exported.
The way forward: Black empowerment programmes of activities should be quickened; there should be adequate government assistance to emerging black farmers; there be programmes in schools about farming; a massive farming programme for youths should be introduced and trained youth should then be employed to assist farming communities; there should be audit of land owned by government; and farmers who owned more than they need should be forced by legislation to sell at reasonable prices.
8.3 Mr Daryl Swanepoel: New National Party
The social challenge facing South Africa is to ensure that the new freedom also manifests itself in land ownership. If twenty years down the line, land ownership patterns have not change there will be socio- political problems, which are not in the interest of political and economic stability. It is therefore in everyone’s interest, including those required to dispose of their land, to ensure speedy and effective implementation of and conclusion to the land reform programme. On the basis of willing buyer – willing seller, but reviewed to ensure non- exploitation, and people’s rights and economic interests must also be factored in.
The Summit will have to focus on the issue of land restitution itself. Land reform is meant to redress the disposition of land and to address the land ownership patterns of the country. But there are no mechanisms to ensure that redistributed land remains in the hands of those that were previously disadvantaged, or for that matter that monetary compensation contributes to change in land ownership patterns.
And this is a difficult challenge, given people’s constitutional rights with regard to that which they own and their right to free economic activity. Nevertheless, it is a challenge that must be addressed: If twenty years down the line we have spent billions and have not yet achieve real ownership reform, then the question is: Has the country spent the money wisely?
There are many cases where restituted land is sold for its monetary value back into the community from which it was redistributed, in some cases to the very person from which it was expropriated in the first place. What contribution does that make to changing land ownership patterns? And if after having spent billions of rands, we still sit with socio-political problems due to a lack of land ownership, what has the country achieved?
Land transformation must go hand in hand with economic transformation. Economic transformation is a long-term activity and therefore, as difficult as it is, mechanisms must be sought and synchronized with land transformation programmes to bring about a correlation between ownership of the economy and ownership of the land.
In short, NNP suggests a speedy and effective land reform – effective land reform meaning that the intended change in the land ownership patterns is sustained. However, in this area some work still needs to be done to design the necessary control mechanisms for ensuring the retention of restituted land in the hands of the previously disadvantaged, until such that the envisaged economic and land transformation goals that Government has set.
The private sector and current landowners should engage in private initiatives as well. That will give effect to the envisaged changed ownership patterns. It need not be the stereotype “taking from whites, giving to blacks”. It can also be joint ventures, new partnerships and there are a number of good examples that can be pointed already.
There is another side to this as well. Land ownership in itself is not as important as land as a means to secure income. If land reform programmes succeed only in changing ownership patterns, but do not establish commercially viable operations, it will not contribute towards improving the national wealth.
NNP position therefore, is that new farmers must not only be provided with land, farmers must also receive training and assistance so as to develop viable farms. To this end, there is a need to look at programmes and determine whether there is sufficient inter-departmental co- ordination to comprehensively deal with the provision of land, access to capital, training and development and finding markets.
8.4 Dr A I van Niekerk: Democratic Alliance
The question of Land reform is not about the right or wrong thereof, but rather the direction, the method and pace.
With a relative high population density in South Africa and a relative low potential of the agricultural resources, land reform requires a well planned process, efficiently managed, timeously and adequately funded and implemented with the least possible disruption of food security.
The cost to implement land reform and restitution must be for the account of all the people in South Africa and should not be borne by the present land- owners or agriculture industry only.
Fair market value for land should be the base and willing buyer, willing seller principle adhered to as far as possible. Deviation from these principles could put the whole process in jeopardy and put South Africa on a road of land quotas and economic disaster as experienced in other countries.
A serious problem in this exercise of land reform is the inability of the State machinery to function efficiently. Too many delays and decision points seriously interfere with the successful completion of nearly all projects.
It is of essence that productivity of land is sustained. Recipients of land must not be abandoned by the State and be supported by strategic planning and experienced partners which have a proven track record.
A far greater emphasis should be placed on land reform in communal areas in the Eastern Cape and other Provinces where unutilized high potential land with a tremendous latent potential could alleviate the poverty problems of those areas. Many of the reform and restitution projects will become poverty traps if they not already are if government does not step in with a new approach.
8.5 Professor C T Msimang: Inkatha Freedom Party
The IFP moves from the premise that there are three types of property ownership, namely, private and communal. It is thus unfortunate that the government emphasizes the first two which were foisted upon South Africa by colonialism via the Roman-Dutch law. The IFP position is that communal landownership, in terms of indigenous customary law should take precedence over private and public land ownership.
The reason why the communal landownership is crucial is that traditional communal communities still constitute the majority of the South African population. It is therefore follows that these communities should be endowed with ownership rights to the land occupy. This is most probably the point of departure between the government and the IFP. Government holds the view that community ownership is broken into individual ownership, that is, ownership by individuals members whereas to the IFP it is clear that the community as a collective holds all the land for the benefit of all its members and those of the future generations in a mystical continuity with those of the previous ones.
IFP makes a clear distinction between ownership by traditional leaders and ownership by traditional communities. To the IFP traditional leaders do not own the land, they only hold it in trust for their subjects. This element alone shows that no basis exists for a comparison between traditional communities and the European feudal system. It will be recalled that in the latter, the land was owned not by people, but the landlord. Precisely because of this distinction the IFP has often pointed out that there is a need for a shift in emphasis from traditional leadership to traditional communities regarded as a specific model of societal organization.
The above distinction is essential since land issues are central to both traditional leadership (as trustees) and the traditional model of societal organizations (as owners). It is also central to the definition of the cultural and social equilibrium of the new South Africa. It is land that defines a community. The essential feature of traditional communities is the self –administration of land which is assigned to the community, via the action of traditional leadership, to each of its members to meet the needs.
It is regrettable that the cultural and social function of the institution of communal property has not yet been sufficiently explored by the official academia. Indeed the entire history of land settlement in South Africa has not been the object of complete academic research, and yet it underpins the core of historic background and the present day social tensions.
The failure to recognize communal property is the heaviest legacy of colonialism and racial oppression persisting to this day. The IFP as ruling party of the erstwhile KwaZulu government has been committed to counter this legacy and promote a process in which traditional leadership and communal property can receive joint, recognition and protection. IFP has committed to reverse colonial dynamics which to this day are at play in so far as, with the exception of KwaZulu-Natal, all the land of traditional communities belonging to the majority of the South African people is still classified as state property.
The country must realize that communal property supports a type of differentiation in economic models which at this juncture of national history is essential to maintain social stability. “Subsistence” agriculture and “subsistence” commercial activities may effectively enable large segments of population to conduct a free and independent existence without having to augment the urban proletariat, and agricultural activities should be upgraded to profit-making and profit- driven enterprises as soon as possible.
All these reasons lead the IFP to appeal that communal property ownership should gain recognition, not only in terms of indigenous and customary law, but also in terms of legislation ensuing from national government.
The IFP is also concerned about the decentralization of powers when it comes to land distribution and restitution. True to federalist philosophy, the view is held by the party is that land is a provincial and local rather than central competence. Every province in the country has its general as well as unique land needs. Therefore, leveling down of provincial frameworks to uniformity remains detrimental to reform and conflict resolution. It is according to the IFP plea that the Department of Land Affairs should make a preliminary policy decision to delegate to provinces as much as possible of its legislative and administrative competencies. The necessity of provincial and local government dimension to land affairs is underscored by the fact that this subject matter is extremely explosive, conflict ridden and capable of creating a long string of social racially charged conflict. Provincial and local government would be in a much better position of operating and developing policies with sensibilities to the on the ground potential for conflicts.
8.6 Mr L Greyling: Independent Democrats
The Independent Democrats mains that addressing the inherited land inequalities in South Africa is crucial towards creating a stable and prosperous nation. Unfortunately, all can agree that the pace of land reform has been too slow and there is a need to find ways of improving it to address the very real concerns held by people.
Firstly, there is a need to place land reform in the context of enormous changes that agricultural sector has undergone over the last ten years. South Africa has moved from highly protected and subsidized agricultural sector to of the least protected in the world, which in the face of huge agricultural subsidies in the North have made farming a very risky profession.
These changes have also led to agriculture shedding a number of jobs and exacerbating high unemployment rate. Some commentators believe that South Africa’s future does not lie in agriculture and that government should place its emphasis on simply creating and industrialized economy. It is pertinent to note that many of the so-called Asian tigers initially relied on agriculture as the basis for their economic take-off. In economies like China and Taiwan, it was also their extensive land reform programme that created an equitable basis for future economic growth.
ID believes that greater priority must be given to agriculture and land reform in South Africa and that more financial and technical resources should be directed towards it. Government support for agriculture has more than halved in the last decade. Having set the context one would like to consider the three major components of land reform namely, restitution, redistribution and tenure reform.
On the issue of restitution, it is encouraging to note that in this year’s budget far more money has been set aside to finalize restitution claims. This is welcomed to move forward on the issue. The slow pace of settling restitution claims is resulting in frustration on the part of both the claimants and those farmers whose land is currently under claim. While ID Government motives in setting a deadline for the registering of restitution claims, the Party belies that this approach has meant that many people and communities have been excluded from obtaining justice on past dispossession.
ID has been approached by a number of people who have valid claims of being dispossessed but were unaware of the cut-off date of 1998 for registering the claims. Many of such people live in deep rural areas and were not adequately informed of the cut-off deadline.
In terms of redistribution there are many constraints on the current approach adopted by the State which will make it difficult to reach 30% target by 2014. Initially, according to the Reconstruction and Development Programme the 30% target should have been reached in the first five years of democracy. The target has since shifted to 2014 and if one considers the slow pace of land reform it is clear that there will be immense difficulty in reaching the set date. Without a doubt more resources will need to be allocated to land redistribution.
In the area of tenure reform, ID is concerned that the budget allocated to implementation of the Communal Land Rights Act is only a paltry R 12 million for this year, which consequently will only allow it to be bed implement as a pilot project in KwaZulu-Natal. ID would strongly urge for more money to be set aside for its full implementation as there is currently uncertainty over landownership in many parts of the Eastern Cape. This is having an adverse effect on development as investors are unable to get clarity on the processes that need to be followed in obtaining leases for projects. This is a matter that has to be urgently addressed if were to encourage development in what is one of the poorest regions of the country.
The challenge for land reform is not only transfer land, but ensure that land generates wealth for beneficiaries and society as a whole. To do this the level of post settlement support needs to be drastically improved. The Freedom Charter sates that “the State shall help the peasants with implements, seeds, tractors and dams to save soil.” This is particularly the case for small-scale agriculture, which if nothing else could be a very effective poverty alleviation strategy and provide a sustainable livelihood for many rural people who are enduring grinding poverty.
- REGIONAL EXPERIENCE
9.1 Prof Sam Moyo: African Institute for Agrarian Studies
In most Southern Africa countries, the most salient land policy change has been the legal provisions introduced to enable customary land tenures, under which the majority of people live, to lease land to developers through long term lease-hold and natural resources concession arrangements. These policy developments largely emulate the Mozambique and Botswana customary tenure arrangements, and expand the land lease practices already found in state-held land and public natural resources regimes. These policy directions have received much international donor support. The SADC is currently in the process of adopting a Regional Land Reform Technical Facility, intended to mobilize aid and regional expertise to improve land policy formation processes.
Yet the crucial underlying issue is whether these reforms will address the increasingly growing land concentrations, mainly among white and black elites and foreign owners, including multi-national firms who use it for agriculture, tourism and urban real estate development. Land concentration among black elites, to exclusion of the poor and “remote” communities, generates further conflict. These processes of land concentration are part of official policies aimed at developing agrarian capitalism and tourism, both based on export-oriented land uses. Perhaps because land concentration in countries such as Zambia, Botswana and Malawi have been less dramatically executed than the Zimbabwe land transfer process. The concentration processes are largely uncommented upon in the regional and international discourses on the land question.
Some of those impacts result more from the attendant debilities that face a foreign currency in a starved and isolated economy rather than directly from land reform itself. They reflect the government’s poor international donor relations, given that, in the past, development assistance less proscribed by invreased concerns over governance and human rights issues might have been mobilized to ease the foreign exchange and import stress, rather than watch the continued economic collapse.
Nonetheless, humanitarian aid has been provided to about 45% of the Zimbabwean population. The net result of these poor relations between the government and international community, based on domestic governance contradictions and the problems of “rule of law” in Zimbabwe’s land reform approach to mass land expropriation, supported by land occupations, has been the entrenchment of the radicalization of the land reform policy process.
This has closed opportunities for economic recovery and poverty reduction through international assistance. This potentially defines the framework of future aid relations in the region in general.
Therefore, in summary, land reform policies in Southern Africa seem to be evolving through the interactive use of market and compulsory approaches to land acquisition for redistribution, restitution and tenure reform to both the landless and emerging black agrarian farmers. Official land reform policies were increasingly being forced to respond to growing popular demands for land. An important lesson to be learnt from the political independence settlements in the settler territories of the sub- region is that, by not sufficiently addressing the problem of inequitable land and natural resources ownership, the downstream entrenchment of unequal racial economic opportunities, ensuing from such control in economies facing slow employment growth, are likely to fuel agitation for radical land reform.
Thus, land redistribution, restitution and tenure reform in redressing historical grievances, social justice and poverty are crucial ingredients of reconciliation and development, and essential to the resolution of the national question and democratization processes.
9.2 Dr George Mburathi: Land Reform in Kenya
Consolidation of land: During the period from 1952 to 1961, massive movements of people took place in the Central Province of Kenya by relocating people into villages. This was organized by the colonial government. Few years before independence, land consolidation was carried out whereby families on small holdings were put together into respective parcels, followed by the issuing of title deeds. From the villages, families were moved onto their families respective parcels of land. All this was done forcibly and there was no freedom of choice or expression. At one time, the Kenyan model of individual titles was considered an example of how other countries should follow. However with time, certain elements have cropped up which make it difficult for the title system to reflect the social reality at the grassroots level. Co-existence of indigenous tenure systems still thrive.
Settlements: Soon after independence, massive settlements of people from native reserves to the former white highland were undertaken. The following process took place: Selection of people to settled; Selection of settlement areas; Adjudication of land for settlement; Infrastructure/health clinics, schools roads etc; Land buying companies and co-operatives; Preparation for new settlers in terms of training; Training of trainers; Farmers training centers; Co-operation of various departments; and Credit.
Current situation: Ever increasing demand for land has overshadowed the transparency and effectiveness of institutions at all levels to deal with public and customary land and in addition, to the delivery system of land- related services. The delivery of land related service is centralized.
The situation was reflected by the Njonjo Commission. This was a commission of enquiry into land law system of Kenya in 2002, which focused on the Principles of a National Land Policy Framework, the Constitutional Position of Land and the New Institutional Framework for Land Administration, amongst others. It was observed that the overall lack of policy, the destruction of the infrastructure, the interference in land matters by provincial administration and most of all the failure to heed the views and needs of local residents, has brought land administration into total disrepute in the eyes of Kenyans. The Land Reform policy–making process was initiated by the Minister of Land and Housing.
Therefore, in all cases, Land Reform and Administration should achieve the following:
• Gaurantee the security of all categories of tenure; • Keep all categories of land rights, whether individual, communal or public clear and unambiguous; • Provide a robust framework for the marketability, including transfers, of different species of land rights, in specific cultural and economic contexts; • Facilitate the sustainable regulation and management of all categories of land, public private and community; • Provide an accurate and transparent land information system; and • Avail socially acceptable mechanisms to sort out disputes.
9.3 Mr F K Tsheehama, Permanent Scretary: Namibia Ministry of Lands,
Resettlement and Rehabilitation
The challenge of land redistribution is equally a reality for Namibia and that the government of the Republic of Namibia has vowed to address this with vigour within the laws of the Republic.
The struggle for independence in Namibia was a war aimed at giving the Namibian people the right to self-determination and to take full control of their resources and means of production, among which land as means of production is key.
It is this need for and denial of access to land as a vehicle for development that necessitated the Namibian people and oppressed people, to take up arms in order to fight for their rights and to determine the destiny. The history of Namibia, like in South Africa, is testimony to the injustices that were committed by the colonial powers on people in effort to disown the people and take control of the land.
In 1904 the first major resistance to foreign occupation was marked by violent response when forefathers and mothers resisted having the land grabbed by the colonial settlers. This war left approximately 80 000 Namibian people exterminated by German colonial invaders. In 1905 the German government issued orders empowering the colonial regime to confiscate all land from the Herero and Nama people.
The colonial governments continued to push the majority of people to less productive land where population pressure on the land and other resources caused extreme poverty. This process of confiscation involved no compensation and in almost all cases it included confiscation of the livestock of the people.
In 1989 the Constituent Assembly adopted a constitution that guaranteed the right in land and provided for expropriation with just compensation. At independence in 1990, the government, realizing the importance that land will play in the development of the economy and the eradication of poverty amongst the majority of people, resolved that, in the interest of national reconciliation, a national consultation of the way forward was necessary.
On coming to power, the SWAPO-led government announced its intention to redress the imbalances in the ownership and possession of land through the transfer of land to the landless majority.
This resulted in the 1991 National Conference on Land Reform and the Land Question that charted the way forward and the manner in which the government would implement the reform in both communal and commercial agricultural areas.
- INTERNATIONAL EXPERIENCE (LATIN AMERICA): LAND REFORM IN MEXICO AND BRAZIL 10.1 Mr Eugenio Peixoto: Brazil Permanent Secretary for Agrarian Reform
Brazil’s land problem was characterized by high inequality; 33% of population is rural; but 60% of farm land under –used, while 4.5 million rural households with little or no land; history of sometimes violent land invasions and confrontation between land owners and landless people.
The rationale for land reform was based on social stability and equity; efficiency; macroeconomic conditions improving and during 1990s the supply of land was up; and the price was down; and land reform was an integral part of National Poverty Reduction Strategy. Political background: Cardoso government (center-left/right coalition) came power in 1995. Social movement of the landless people (MST and others) put pressures on government to deliver on land. Government put the land reform high on the agenda. Subsequently, created Ministry for Land and Agrarian Development. The Ministry obtained substantial increase in land reform budget. There was also improvement in legal and administrative framework for federal expropriation programme. World Bank supported negotiated land reform pilot project nationwide (to 14 states) under the name (Land-Based Poverty Alleviation Project).
There are two social movements, the MST and the CONTAG. These movements have quite distinct constituencies and were formally and informally associate themselves with the land reform and also have different views about the appropriate strategy to implement land reform.
MST favours invasions and expropriation as the appropriate land reform strategy while CONTAG supports invasions and expropriation, but also a less confrontational strategy of land reform, including negotiated land reform.
There were two land reforms programmes. Expropriation: was administered by Federal Land Reform and Colonization Institute (INCRA). Compensation method was through government bonds for compensation of land and cash for improvements. Social movements helped to identify farms and beneficiaries.
Land Credit programme was implemented with the states. Compensation method was through a voluntary agreement between owners and beneficiary associations. However, the price agreed is evaluated by government and civil society. The programme has a formal partnership with CONTAG to screen farms and beneficiaries.
Project cycle Federal Programme focused on identification of farms often by social movements; the eligibility for expropriation verified by INCRA and approved by INCRA at federal level; and once expropriation is approved, the owner former owner has to surrender the land, but can contest listing and valuation of farm in court.
Expropriation method: Farm size above maximum means that each district has a reference farm size calculated as “15 modules”, 1 module is defined as viable family farm; farms up to 15 modules cannot be expropriated, but can be bought by INCRA; for example, if 1 module is 50 hectares, then the reference farm size is 750 hectares; If a farm is above that reference farm size and declared “unproductive”, the government could expropriate it.
Project cycle Land Credit Program: is highly decentralized to states; associations first screened by District Screening committees, where labour unions and civil society are involved; then technical evaluation; the State committee for Sustainable Rural Development approves projects.
Land Credit Project cycle: the negotiations for land price involves communities with the help from the state officials and CONTAG unions; all money for land purchase and investments transferred to former owner and community accounts at the time of the land transfer; community owned funds then released in tranches upon receipt of expenditure reports; the resettlement and all investments such as housing, roads, irrigation managed by community, and often executed by them.
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ORGANIZED AGRICULTURE
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Mr J F van der Merwe: AgriSA
AgriSA has engaged with policy makers since 1992 to gain better understanding of the frustrations and aspirations of the landless and hoe it relates to the productive use of land, especially for food production in a competitive commercial environment. A number of guiding principles emerged that should be applied for land reform, namely:
• Land should be managed within a statutory framework that balances needs, rights and obligations in an equitable fashion – being fair and just to all concerned. Acceptance of the importance of “rule of law” is therefore paramount for transparency, fairness and an outcome that will be in the best long-term interest of the country. • Because State assisted land reform represents a major intervention in the ownership pattern of productive resources and therefore causes uncertainty, unfortunately with negative economic and labour market consequences, issues such as sharing of information, discipline around cut-off times for restitution, sound supportive administrative processes and adequate funding for land acquisition should be adhered to. • The question being debated is who should pay for land reform. There is broad agreement that land reform is in national interest and therefore the cost of land reform should be borne by all South Africans through Treasury and it should not be required from present landowners to contribute differently or more to this cost than other tax paying citizens. A skewed distribution of land reform cost can easily result in efficient farmers being bought out at a price that will not allow them to invest elsewhere in equal or similar economic opportunities. • This implies that it is reasonable for landowners to expect a market related price for land that they have to part with, which is best determined by means of the “willing buyer, willing seller” concept. • It is for government to decide on the target for land that needs to be transferred into the hands of black farmers and those who need land for housing. However, any commitment in this regard should be underpinned by adequate financial support from government to facilitate land transactions and should include resources for pre as well as post settlement support. • Government should also take cognizance of the effect of land reform policies and programmes on food security and jobs – issues of similar importance as land reform in the context of stability and economic opportunities, especially in rural areas. Targets for land reform are therefore not as issue to be decided on without considering other important national imperatives.
AgriSA and its affiliates have committed towards addressing the agricultural dimensions of land reform, and more especially supporting the development of successful Black farmers. AgriSA is in a process of seeking wider industry support and co-operation for an initiative that will support and promote black farmer development programmes, nationwide. Also wish to work closely with NAFU and government in this regard. Information on progress with land reform and farmer settlements as well as the application of “best practice” that will deliver positive results, mentorship facilitation, strategies to achieve broader community involvement, canvassing of financial resources for programmes and policy advocacy will be the core functions of this initiative.
The demand for land also needs to unpacked. There are physical and economic constraints that limit the opportunities to participate in commercial agriculture. The question has been raised whether we want to grow subsistence farming. This is a political decision about future options but need to guard against simplistic short-term solutions for complex challenges.
There seems to be a perception that commercial farmers have excessive resources at disposal. Although there are large-scale farmers the reality is that most farmers are small businesses with low profitability. According to the 2002 Agricultural Statistical Survey 51% of commercial farmer’s turnover was below the level that required farmers to register for VAT. If the norms of the National Small Business Act (Act 102 of 1996) were applied, also in terms of capital employed, the vast majority of farms would be classified as small businesses. These are facts that should be more commonly understood and acceptable. The ability of farmers to share resources and remain viable are therefore limited.
Globally, due to freer markets and competition, farm sizes are on the increase to achieve economies of scale in order to be competitive. The sustainability of small scale farming under these conditions is questionable from a pure economic perspective.
The local commercial sector, due to limited government support compared to international counterparts, faces an even heavier economic burden dictating a greater need to become bigger in order to reap the benefits of the so-called economies of scale. It is the government responsibility to promote the competitiveness of primary agriculture, for example by reducing the cost of administered prices. It includes reducing taxes and levies on a number of inputs. This imperative was recognized in the Strategic Plan for South African Agriculture. Imposing a land tax will be counterproductive, neutralizing the potential benefit of efforts by government to promote conditions for investment and growth.
The commercial land market in South Africa is active. About 4% of agricultural land is traded annually. Adequate land of good quality is available for redistribution. With the support of LRAD and the financial support from commercial banks, this land can be obtained for redistribution. The problem in most cases is that of insufficient equity. There are innovative models available to deal with this problem.
The principle of land expropriation for purposes of land reform was also debated and proposed as a method to expedite the process and cut down cost. With no information available as to what is being considered it is AgriSA’s view that this will not necessarily achieve any of the two objectives. AgriSA continue to demand fundamental sound administrative processes if the State is to acquire land for land reform and for fair compensation. Even an amended Expropriation Act cannot move away from applying the “willing seller-willing buyer” concept. A common understanding on the meaning of this concept and the application thereof should be sought. There is a need therefore rather debate more practical solutions for specific problems that a market assisted approach towards land reform presents.
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Mr M Matlala: NAFU
Gathered here deliberate on effective ways to accelerate land reform in South Africa and find equitable ways of sharing the available land in socially acceptable ways.
In South Africa, black farmers who were not even in a position to participate in the rush for agricultural profits for many decades are now left with such backlog of enablement, than even the countries like Brazil, Japan or wherever, requires far more complex modeling than is currently being applied.
NAFU members have very little land and face almost insurmountable obstacles in acquiring land, and when they do acquire, they find themselves so far outside the agricultural value chain that competitive production seems impossible. In addition to this, the survival of a small farmer whether is Black or White, has become so irrelevant to the accountants who drive for corporate profit growth, that ultimately farming feels more like a punishment than a reward.
NAFU does not belief that there is too little land in South Africa to promote a healthy and stable agricultural sector based on socially equitable principles. It is however known that access to, and utilization of land is complicated by a number of factors. People argue that land is expensive and this is a major cause for problems facing the country. Expensive land is a normal dynamic and the cost of acquiring expensive land can be mitigated through diligent and focused production.
NAFU contend that land is overpriced. This is not a normal dynamic and the best production techniques will not allow a farmer to farm in a manner that would allow them to repay the cost of overpriced acquisition. Overpriced land has many causes but the two most pertinent reasons are as follows:
In the first instance sellers inflate the actual value of agricultural properties by incorporating the perceived value of improvements on the property that do not enhance production capacity and hence ability to repay acquisition loans. It should also be noted the majority of these non-productive improvements were made possible by unrealistic profits realized in a subsidized production environment, extremely low repayment interest rates and with the utilization of a labour force that had no minimum conditions of service protection. Buyers on the other hand, are faced with prospect of competing with a global food market that no production subsidies, and have to borrow money at competitive commercial rates from financial institutions that all of this while paying minimum wages, maintaining respectable work conditions and providing socially responsible developments assistance to their work force. It is this definition of willing seller-willing buyer then clearly it will not work, because while it may all sound like a leveling playing field, clearly this field has been built on two terrains with the one half much higher than the other.
In the second instance, overpriced land results from the wealth being generated in western economies that can afford to buy land in South Africa and let it lie fallow until a handsome profit can be made when the exchange rate is favourable. Would it benefit the western maize industry if a sizable chunk of South African maize producing lands were turned into game reserves with the aid of profits made from subsidized maize? The answer will not be known if South Africa does not begin to maintain accurate information regarding foreign land ownership, the origin of the funding as well as the purpose for which the land in South Africa is being utilized for.
It remains one of the biggest concerns that the relative lack of accurate and reliable information about black farmers, successes and contribution they make in feeding the nation, continues to allow those who resist government’s efforts to reform the industry, to shout untruths about black farmers and hide the fact that their real contribution into destabilize an environment that is politically precarious poised. It is also known what happens when the fundamental need of people to work land is ignored. In Zimbabwe the frustration felt by people in this regard was not adequately addressed and South Africa has seen what the destructive impact on the economy can be when agricultural foundation of the country is destabilized to the point where normal dynamics and relationships cease to exist. The government in Zimbabwe could not manage the situation without the collaboration of the private sector. South Africa must take heed of what happened and ensure that the private sector and civil society be activated to play a significant role on the road ahead.
With regards to land restitution, it is the very same dynamic which impacts on the willing seller-willing buyer concept that continues to frustrate the process of land restitution. The delays, more often than not relate to the vastly different perceptions of value that people attaché to agricultural land.
NAFU contend that the subsidies utilized by the previous government to build a strong agricultural infrastructure were aimed at preserving a national resource to the benefit of a select few.
In this NAFU calls for a review of all legislative mechanisms governing land and agrarian reform in South Africa. The reality facing agriculture is that while land indeed plays a critical role, there is no balanced agriculture as have not had for some time (the high subsidy levels utilized for decades by the previous government is testimony to that).
11.3 Transvaal Agricultural Union (TAU)
Of the 84 900 000 hectares of land approximately 25 000 000 hectares of arable land will be redistributed through land restitution. AgriBEE will take another 26 405 000 hectares. This leaves us with 32 395 000 hectares arable land. This excludes the communal land that is already in the possession of the State, previously part of the National States and still the basis of subsistence farming. This is the land that has to deliver food security to South Africa and Southern African region.
The process of land restitution is based on land claims. In spite of the procedures laid down by the law, land claim is a major issue for land owners because the right to private property is at stake. The landowner is excluded from the process of the land claim until it is published in the Government Gazette. The marginalisation of the farmer as proprietor until the last moment is a distortion of the right to private property.
The process of land reform also jeopardize the civil rights of the farmer if the implementation of the Act is forced onto the farming as a political process without supporting the economic viability of the agrarian communities. Land claims and the constant threat of AgriBEE impacts on the psychological and social structures of the rural communities and creates a society in imbalance.
More agricultural land is available on the free market and approximately 2003 farms have already been offered to the Department of Land Affairs for possession. In the mean time more claims are published on the agricultural land. It is unlikely that the commercial productive farms will continue its production after the claimants have possessed the farm. The question arises if the claimants are farmers, potential farmers or only subsistence farmers. Will the new farmers sustain the optimal ecologically balanced production potential of the land? According to the recent examples it is unlikely that commercial agriculture will benefit from this process.
The process of Land Reform should enhance the commercial production of food provide the structures and environment for black emerging farmers without discriminating white commercial farmers.
On commercial agriculture and food security, TAU emphasizes that the future of South Africa’s commercial agriculture and sustainable food production in globalised economies, will be determined by international economic and financial standards and regulations, and not by South African standards and a Land Reform Programme. TAU maintains the point that free economic and market forces must determine the development of Economic Empowerment in the agricultural sector.
The test for successful agriculture is when food is produced in quantity and quality on a commercial basis to impact on the basic existence of every person by delivering sustenance to combat under-nourishment, malnutrition and famine and secure health on a sustainable competitive and commercial basis in globalised economies.
With the collapse of the economies of the neighbouring states and the regression of social services, the South African economy will have to grow with 6% to 7%. This is unlikely if the loss in human capital through an aggressive transformation process and policy continues and the burden on services in rural areas escalates. The influx of illegal foreigners and the unprotected borders will eventually restrict the growth and put more stress on commercial agricultural land.
Therefore, the position of TAU on land reform and cannot change from the stance that land reform and the AgriBEE framework for Agriculture will jeopardize the property rights, production and competitiveness of commercial agriculture in a sensitive and high risk industry to the detriment of food production and food security.
- ACADEMIC PRESENTATIONS
12.1 Prof Ruth Hall: University of the Western Cape
Critical policy questions
On Small scale farming: Do we believe in this as an option for the poor? What must be done to enable success? Land acquisition: should the state remain reticent, or proactively intervene in markets? Farm workers: Is their future as rural proletariat only, or as producers in the their own right? Land rights and tenure: how should land be held and administered? AgriBEE: What commitments from landowners?
The negotiated transition to democracy, and the Constitution, involved fundamental compromises:
• Existing property rights would be respected, no matter how such property has been obtained historically; • But this respect would be set against a strong mandate on the state to effect land reform and bring about a more equitable system of land rights
Section 25 of the Constitution is an agenda for transformation because it:
• Obliges government to implement land reform “in the nation’s interest,” • Empowers government to intervene in and override markets, including through expropriation; • 1 Clause gives qualified protection to property rights; • 8 of 9 clauses are about transforming property rights
As in other democracies, property rights are not absolute, but exist within a matrix of counter-balancing rights and obligations. However, up to now the state has not intervened decisively in the property or agricultural economy. Such a laissez-faire approach is unprecedented in world –historical terms, and international evidence suggests that it is not capable of bringing about substantial transformation in the property rights.
There is substantial unused scope for more proactive and interventionist strategies to drive change. Few would consider the status quo in the rural areas to be sustainable, other than at an extremely high cost. It is difficult to imagine how these challenges may be resolved other than through far-reaching land and agrarian reform.
Four key Challenges
• To develop a strategic vision for transformation (and to delop the
institutions and provide the resources necessary for a fundamental
agrarian reform);
• To engage systematically with property owners in order to secure
sufficient land for redistribution (supply side reforms, directly
through negotiation or compulsory purchase, or indirectly through a
land tax);
• To engage systematically with landless (in order to define the
quantity and quality of land demand and to mobilize popular support
for land reform); and
• To provide a supportive environment for a new class of small farmers
(to produce for market and non-market purposes, in terms of access to
input and output markets, revamped state support services and
affordable credit).
Therefore, as a way-forward the Summit represents a historic opportunity to reflect on and learn from experiences over the past decade, and to chart a new course. High-level policy debate is now needed on the future direction of the programme as a whole, and the roles of the state and other progressive social partners. The Summit also provides opportunity to make commitments about specific interventions that are needed in the short-term. An appropriate post-Summit process may be required to further explore options for the future and top respond to positions presented.
12.2 Prof G M Nkondo: University of Venda
The presentation focuses on the complex of political and economic factors that seem to drive land occupation as well as the government’s land reform implementation strategy. A review of the debates in government, the private sector and civil society since 1994 points to the absolute importance of deepening and broadening understanding of the interplay of political and economic forces informing government strategy and the various forms of resistance and response. And given the fact that most people involved in land occupations – the landless and homeless – are poor and illiterate, it is then more urgent to develop a comprehensive and integrated public education strategy. For a number of complex reasons, the government land reform information and communication strategy has gone deep and far enough.
One wonders whether the landless peoples movement, including its affiliates is on the same page with government regarding the political and economic considerations, mid to long term, that drives the implementation strategy. A number of empirical studies refer to the widening gap in understanding between government and the Landless Peoples Movement on both policy and implementation strategy.
The following observations require close study:
• The richly nuanced historical and ideological contexts of the Freedom
Charter, the Reconstruction and Development Programme, the
Co0nstitution and the Growth, Economic and Reconstruction Programme,
are not adequately understood, let alone appreciated by those directly
affected by land reforms;
• The ideological and strategic reasons for the apparent shift from the
Freedom Charter through the RDP and GEAR to the White Paper on Land
Development, Public Land Management, and Land Administration, still
have to be articulated in the language of the tribe;
• How to mange the apparent let down from the euphoria of freedom in our
lifetime in 1994, to a clear –eyed admission that land reform in South
Africa is subject to various constraints including; macro-economic and
fiscal constraints, organizational constraints, capacity constraints,
physical resources, governance and institutional constraints;
The apparent tension between manifest, policy, legislation and implementation has to be managed as cautiously as possible. Central to this is the need for a comprehensive and implementable information and communication strategy.
The land use is an extremely delicate and potentially explosive matter and must be handled with the utmost care. And all of things necessary, deepening and broadening public understanding, especially within the LPM, cannot be over-emphasised. • There is also the question of the states constitutional duty “to take reasonable steps to enable citizens to gain access to land, promote security of tenure, and to provide redress to those who were dispossessed of property after 19 June 1912 as a restitution of past discriminatory laws or practices. In a country if sharp social and economic disparities, consensus on “reasonable steps” may prove hard to achieve. Not without such consensus, there will be no end to conflict, and no end to land occupation. • Further, there is a need to educate the public, especially the key actors, that the partnership between government, the private sector and civil society, fraught with ideological struggles in a globalizing economy, cannot be sustained without compromise. Understanding of the ideological and strategic comprise is required.
12.3 Prof Sipho Buthelezi: University of Fort Hare
In poor agrarian economies, the pattern of landholding is a major correlate of political power structure, social hierarchy and economic relations. Possession of land confers on the possessors the mutually reinforcing attributes of the political privilege and social prestige. The aggregate pattern of land ownership, determines the manner in which land and labour are combined for production purposes, with consequences for the quantum distribution of the product. These in term, have implications for the relative and absolute material well being of the population, particularly as food is the major product of land.
Small farmers, tenants, sharecroppers and landless workers are among the social groups vulnerable to hunger and poverty, and they usually have inadequate access to land and other productive resources. An International Labour Organization (ILO) study, suggests that agricultural wage workers, for example, are the poorest sections of the rural population, and in many countries their real wages have fallen despite rising agricultural productivity and trade. At the same time, much of the cultivated, fertile land is held by a small number of powerful landowners. Thus the social impetus for land and agrarian reform is the possibility of improved social justice and equity.
The varieties of land and agrarian reform have been informed by varied and historically determined agendas, mediated by clearly articulated social and class exigencies.
- SOCIAL MOVEMENTS
13.1 Border Rural Committee
Civil society has devised and implemented an advocacy strategy aimed at ensuring that victims of dispossession in the Eastern Cape are not denied the constitutional right to restitution. The strategy has taken form of the “Vulamasango Singene” campaign (open the door so that we can come in). The campaign has three thrusts: community mobilization, building a critical mass of organizational support, and negotiating with government.
The Eastern Cape is the poorest province in the country and the homeland are the poorest parts of the province. Over 70% of people in these areas are poor. Unfortunately, the trend of worsening poverty has not been arrested since 1994 – and as a matter of fact has been deteriorating. The efforts that government has made to address the problem have been inadequate. Supplementary programmes and strategies are urgently required.
Progress to date
Community mobilization: The key to winning the campaign is the extent to which affected communities are mobilized. There are approximately 1 250 communities in the former Ciskei and Transkei which were dispossessed through betterment. To date, approximately 200 of these communities have been organized, and collectively constitute the foundation of the campaign.
Building a critical mass of organizational support in the Eastern Cape: It is necessary to achieve united support for the campaign amongst all important organizations in the Province. At this stage, the campaign is drive by collective leadership provided by the African National Congress (Eastern Cape), the Border Rural Committee, the Congress of South African Trade Union (Eastern Cape), the Eastern Cape NGO Coalition, the Eastern Cape Council of Churches and the South African Communist Party (Eastern Cape).
Negotiations with government: campaigners have been negotiating with government for two years. Based on a joint commitment to resolve what is mutually acknowledged to be a substantive problem, government committed itself to find an appropriate solution was clearly demonstrated by Minister’s signing of an official memorandum on the lodgment of betterment claims in the Eastern Cape.
13.2 Regional Emergent Farmers Forum: Eastern Cape
Challenges / problems
• Access to productive land with water, proper fencing and affordable prices; • A land ceiling should be instituted and one farm should be allowed per farmer; • Government should force farmers with more than one farm to sell land to emerging farmers; • Government must review land policies and all stakeholders to participate. • Game farms and foreign land ownership lead to job losses. • Problems with municipalities regarding lack of support to maintain commonage land; and • There is no representation on municipal local economic development structures.
13.3 National House of Traditional Leaders
The traditional communities are underdeveloped and most live without access to services such as electricity, clean water, sewerage and houses. The setting is strictly rural and operate on not on a basis of cash or monetary economy, but through agricultural activities.
The issue of land, ownership and occupation has been critical for a long time. Beneath that are the glaring issues of housing, unemployment and infrastructure. For a long time, land has been the cornerstone of African life.
Land ownership: in South Africa over 80% of the best grazing and agricultural land is in the hands of white people. The critical issue is the fact that according to statistics about two-thirds of African people live in the rural areas. The Constitution guarantees the ownership of the individual fixed property. Government can only buy land from descendents of white colonizers on willing seller, willing buyer policy.
Government, since independence in 1994 introduced land reform programme that sought to redistribute 30% of land, initially scheduled for completion before 2006. However, the land reform is marked by some disappointments and frustrations. Land redistribution deadline is set for completion by year 2014. According to Department of Land Affairs only 3.2% of this target has been delivered. Through the willing buyer, willing seller policy this has cost more than R1 billion in restitution while more than R300 million was spent in redistribution and tenure. Currently, 82 million hectares of arable land is owned by a minority.
Therefore, the debate around land occupations is tangled with racial politics and in turn perceptions have largely been negative. Land occupation in general is associated with disorder, political strife, economic crisis and administrative failure on the part of blacks. In Zimbabwe, for example, the recent land occupations have been synonymous with economic crisis and political failure.
13.4 Landless People’s Movement (LPM)
The LPM has demanded the land summit since 2001. Various meeting were held with the Department. The LPM believed that if the following demands are implemented, land crisis that has engulfed the nation and people, can begin to be resolved:
• Government must ensure immediate moratorium on all rural and urban
forced removals and evictions, whether from farms or other rural land; • End market led land reform and the willing buyer, willing seller policy; • Government must ensure to stop land sales to foreigners;
• A mass-based land audit to identify all forms of unused or
unproductive land, as well as land of abusive farmers and absentee
owners can be made available for land reform;
• Government should provide post-settlement support in terms of markets,
finance, training and inputs and use the land reform money to support
the landless;
• Government must scrap the ESTA and LTA and replace these with a law
that must protect and give land to farm dwellers. 13.5 South African Communist Party (SACP)
The SACP hopes that the summit will reach some agreement and take forward the following issues:
• The Summit needs to commit to a process to discuss the development of
a comprehensive state-led and people-centred and agrarian strategy.
Key elements of the strategy must be an effective linkage between land
reform and agricultural development, to development, land for human
settlement, and building of a progressive agricultural co-operative
movement.
• In order to achieve such as comprehensive, inclusive strategy, it is
important to push government beyond just two pillars of land reform –
security of land tenure and land restitution – to proactive
acquisition of new land, including using expropriation and effectively
regulate prices paid for land.
• All other demands which include access to land, decent working and
living conditions for farm workers, effective post-settlement support
must all be subjected to, and can only be realized under an
overarching state-led industrial policy on land and agrarian
transformation.
• Review the willing seller, willing buyer policy and lay a basis for an
alternative strategy and programme. Such strategy and programme must
include expropriation and all other instruments contained in the
Constitution and other legislation.
• Central in land and agrarian transformation is access to affordable
and appropriate credit and the importance of linking the discussion to
the struggles and processes for the transformation of the financial
sector; and
• Review all local government Integrated Development Programmes in order
to ensure to include land and agrarian transformation measures.
13.6 Alliance of Land and Agrarian Reform Movements (ALARM)
ALARM presented a memorandum which was a collective contribution from landless communities, rural dwellers, national and provincial NGOs, landless people’s organizations, small farmers and producer groups, the environmental sector as well as the South African Communist Party with the following demands:
• Government must scrap market-based reform; • Make another countryside possible: the state must drive land and agrarian reform; • The state must actively and aggressively use expropriation for land redistribution; • Re-open the date for land restitution claims; • End farm dweller evictions; • Review Communal Land Rights Act; • Promote and develop sustainable livelihoods; and • A consultative, representative and democratic post-summit process.
13.7 Southern Cape and Karoo
Given the failure of the current land reform programme to address skewed patterns of land ownership and lack of meaningful change in people’s lives within the democratic dispensation civil society has been calling for land summit for the past three years. The call is for a summit seeking alternatives to the current market based land reform programme and its inability to redistribute land for livelihoods. It is with this understanding that the landless people, emerging farmers and rural communities of the Southern Cape and Karoo districts decided to participate in the summit to contribute towards shifting market based land reform and land use. Issues to be addressed by the summit must include:
• The imperative to facilitate access to land and control over natural resources; • Post settlement support for sustainable livelihoods; • Decentralization and the effect on land reform; • Privatization of state assets and the effect on land reform and rural development; • Farm dwellers and the inability of the current policies to address tenure and livelihood for farm dwellers; and • Integrated Sustainable rural Development and Spatial Planning and the effects on sustainable rural development.
13.8 Trust for Community Outreach & Education (TCOE)
Firstly, there are white farmers who have large pieces of land and also many farms, while on the other hand there are people without land even to put up an informal structure. The farmers in turn employ the landless, where farm dwellers are exploited.
Secondly, how land is sold – the willing buyer, willing seller. The principle is problematic because redistribution of private land can only happen when there is a white farmer willing to sell. The principle also gives powers to white farmers to sell land at prices that are exorbitant.
Thirdly, with regard to 30% land, government promises to redistribute by
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The question is what is the difference between 30% and the 13% that was given. The effect of the decision is that black people will be left with 43% land whilst white people will remain with 57%. There is no difference because people who will benefit from the redistributed land are more, because of population growth, compared to the people that were allocated the 13% of land in 1913. Land was dispossessed because of capitalist motives.
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REPORTS OF COMMISSIONS
14.1 COMMISSION ONE
THEME 1: Land Redistribution: Urban & Rural Development
STRATEGIC DIRECTION
Proactive role of the State
• Consensus on rejection of willing buyer, willing seller (except AgriSA) • State must be the driving force behind land redistribution, rather than the present minimalist role. Specifically, more staff, more resources should be allocated for the programme, active negotiation with landowners and expropriation where needed. • State must have right of first refusal on all land sales
Who should benefit
• Primarily the previously disadvantaged people should benefit, but
specific measures should be taken to target: the poor, women, farm
workers and the youth.
Land redistribution to promote urban & rural development
• Land redistribution must provide land for production and settlement,
in both rural and urban areas. • Land redistribution needs to be integrated with infrastructure development.
Role of the State
• Right of first refusal, with a reasonable timeframe • Land tax: supported by all parties except AgriSA • Budget: substantial increases in budgets, more staff • Actively promote subdivision to provide for smallholders • Reverse the growing concentration of landholding but disagreement from AgriSA on how for example, land ceilings or one-family one farm • Conduct a land audit on public and private land (including municipal land) and make this information publicly available at local level • Moratorium on sale of state land – except for land reform purposes • There must be speedy and just administrative action in land redistribution (cut the red tape, more capacity)
Land Acquisition
• Proactive acquisition by the state in response to identified needs,
through negotiated purchase and where necessary expropriation. This is
the alternative to WBWS that must be scrapped. • Disagreement on the expropriation aspect from AgriSA. • There was rejection of paying market prices. Two views emerged:
Use Constitutional criteria to pay below –market “just and
equitable” compensation
Do not pay any compensation that is, confiscate). This would
require Constitutional amendment.
• Strong support for moratorium on foreign ownership (but leasehold is an option) and address redistribution of land already owned by foreigners and reparations. • Target unused and underutilized land, and land of abusive farmers. • Insert a “social obligations clause” in the Constitution to protect those who occupy the above categories of land.
Local Government
Proactive role and responsibility for municipalities
• Local government must play an active role in land and agrarian reform
– identify local needs, release municipal land and assist to identify
land to meet the needs of people, and provide services and support to
beneficiaries.
• Ensure land reform in included in every IDP and define it as LED, that
is part of the mandate of local government.
Municipal commonage policy
• Stop allowing commercial farmers to use commonage. • Promote access to municipal commonage for poor people and emerging farmers. • Local land forums to identify land needs and include landless, municipalities, Department of Land Affairs, Agriculture and landowners.
Land Use & Development
• Revisit the dominant models of land use and agriculture. • Support the option of small-scale agriculture • People in informal settlements must be prioritized for access to land and housing on nearby unused land. • Moratorium on new golf courses and new game farms and other elitist developments, and privatization of state forest land. • Invest in coordinated and better – resourced post-transfer support, including training, extension, access to markets and finance. • Urgent intervention to address problems in existing projects. • Disagreement about strategic partnerships: perpetuating inequality? Better safeguards & state facilitation must be put in place in strategic partnerships.
14.2 COMMISSION TWO
THEME 2: Land Restitution: Balancing rights of dispossessed and economic development
Prices, affordability and quickening the pace
• Expropriation: should be applied as an additional instrument for
restitution purposes to speed up the process and set affordable and
fair compensation. • Review of the willing seller/ willing buyer principle.
Sustainable Developmental imperative
• Post-settlement support (must have a business plan for each community
should include pre and post transfer measures:
- provision of training, mentorship (including capacity building)
- development of SMMEs
- development of bulk infrastructure in which community is involved
- income from land has to be used for development of community
• Nature conservation: communities must have ownership of this land,
must be in partnership with conservation projects and must share in
benefits from the projects.
• Urbanization: Restitution in urban areas has to be integrated with
IDPs and provincial development programmes.
• Obstacles in urban development of properties involved in restitution
have to be addressed by relaxing by-laws, as a well as other forms of
support.
Compensation
• More options than the dominant cash model are necessary, for example,
land and housing in rural areas are still preferred to financial
compensation. • Urban areas have unique situation and compensation sometimes more appropriate.
Improved communication and consultation
• Communication and reporting strategies to communities on outstanding claims:
- Require regular communication with communities regarding outstanding
claims already gazetted;
- Concerns about failure to communicate the restitution process and
requirements, and therefore missed opportunities to lodge claims (this
is used as one justification to extend the restitution process).
Comprehensive rights to beneficiaries
• Complementary rights (mineral, forestry and water rights) should be
investigated: restitution should be extended to more than surface land-
use rights. • There is need to involve relevant government Departments, communities and beneficiaries.
Review of cut-off dates
• Re-opening of restitution application process (extension of 1998):
- Relatively low number of applications compared to number of
forced removals, especially in urban areas;
- Communities were unable to apply on time because of various
factors, such as communication problems, the complexity of the
process, the legality of it etc;
- Extension backwards prior to 1913 considered but no consensus
(raises possibility of conflicting inter-ethnic claims);
- Re-opening should not compromise existing settled claims.
Partnerships
• Restitution cannot make a difference without partnerships. Both
community and partners must benefit from the partnership;
• Partnership development is a process, and initial unequal relationship
must be addressed by ongoing empowerment;
• Capacity building, financial resources, evaluation and monitoring all
require strategic partnerships.
Kind of partnerships:
• NGOs • Private sector: business and financial institutions • Inter-departmental partnerships in government • Former land owners
Restitution Truth and Reconciliation Commission
• Land is an economic asset, an emotional identity and dignity resource,
a social insurance asset and more
• Emotional and social trauma and polarization caused by dispossession
have to be addressed by Commission similar to TRC to promote
reconciliation and mutual understanding within South African society; • Healing and bringing closure.
14.3 COMMISSION THREE
THEME 3: Creation of a thriving economy in rural areas in the context of Land & Agrarian Reform
Human and Institutional capacity to support land based agriculture activity
• Establish agriculture training institutions (academies) in all
municipalities. These are to be used to train the youth, women and the
farmers in general. • Entrench Agriculture as part of the curriculum in schools. • Retool and re-skill the current extension service work force.
• Promote mentoring arrangements but ensure that these have clear
service level agreements that are regular monitored. • Encourage joint ventures that are characterized by meaningful business skills transfer.
• Provide intensive training for beneficiaries of land reform. It should
be noted that the current crop of successful commercial farmers draw
their success from generations (four or more) of knowledge accumulated
by their farming families.
• Government to review redeployment of public service staff that support
agriculture. Redeployment often has a negative impact on community
that would have been served by that individual. • PAETA to prioritize land reform beneficiaries for learnership to build skills.
Provision of well-researched information on production
• Comprehensive audit of land potential and viable agriculture activities on such land. • Government to provide information on other economic activities that agriculture can link to. • Enhance quality of transfer of agriculture information to the beneficiaries of the land reform. • Government to fund development of new technologies that are appropriate for small scale farming. • Information to be provided to the beneficiaries in user friendly language. • Government to provide funding for research into indigenous technology.
Develop appropriate market systems and support systems focus on RSA, SADC & AFRICA
• Market responses needs to begin to delink from dictates of countries
of the North and focus of RSA needs, and then the needs of other
countries on the continent. • Enhance the quality of provision of information about markets.
• Government to ensure that policy is responding to markets that are
sustainable in the medium to long term. • Promote the Proudly South African culture for locally produced agriculture products.
• All spheres of government to facilitate establishment of local and
district level markets as well as mobile market systems for handling
of small volume produce.
• All spheres of government to investigate the establishment of a mobile
abattoir system for chickens and small livestock.
Broaden establishment of cooperatives and enable sustainable support to them
• Sustainable government support to cooperatives is desirable to enable
these not only to succeed but to also remain democratic. Government
withdrawal has in some cases precipitated a situation where these
entities are subsequently run undemocratically. • Enable integration of different types of cooperatives (finance, producer, marketing). • Government to consider applying a percentage of AgriBEE allocation to cooperatives.
Transform the development financing systems (Land Bank and other banks)
• Land Summit to resolve to constitute a session at which development
financing institutions will be required to deal with the issue of
instruments required to not only access land but also to unlock
profitable agribusinesses in rural areas.
• Such Summit to include Land Bank, Commercial Banks, Treasury, IDC, and
institutions falling under the Department of Trade and Industry (DTI).
• Government and financial institutions to come up with suitable options
other than Credit worthiness when dealing with poor farmers.
• Government to introduce policy that encourage financing institution to
include provision of financial management training and continuing
support and mentoring for beneficiaries of their financial
instruments. • Repossessed or liquidated land to be made available to current farm occupiers.
• Land Bank to immediately review the performance of all previously land
bank funded projects and facilitate assistance where required.
• MALA to transform the Land Bank Boards to be inclusive of local
leadership elected through public nomination
Effect fundamental changes to patterns of land ownership
• Government to remove the property clause. • South Africa to introduce user rights and move away from the title deeds system in the rural areas. • Government to effect an end to evictions – much land lies idle and current evictions cannot therefore be considered to be need based. • Idle land owned by state, churches and private land owners to be immediately made available. • Government to effect fundamental change in South Africa’s agriculture economy. Do not keep the old structure of agriculture in place and just populate it with black faces. • Government to affirm the concept of one farmer one farm. But effect a change in the current farm size culture. Draw lessons from South African experience before the colonial era and from experience in the rest of the Africa and in Western Europe. • Promote subdivision of agriculture land and ensure its agriculture use is sustained.
Foreign Ownership of Land and business in South Africa
• Government needs to immediately stop sale of land to foreigners. • This is to be followed by introduction of new laws and policies regulating access of foreigners to land ownership in South Africa. • South Africa to effect law and policies that allow foreign investment only if it contributes significantly to creation of sustainable jobs.
Role of Government – National Sphere
• Government to consider establishing of a Ministry of Rural Development
which will house all elements needed to unlock economically viable
activities in rural areas.
• Ministry of Agriculture and Land Affairs to urgently embark on a
Comprehensive Legislation and Policy review on the various land reform
and agrarian reform addressed herein. • Ministry of Agriculture and Land Affairs to conduct land audit.
• Ministry of Agriculture and Land Affairs to facilitate creation of one
stop service centers for land and agrarian reform services. • Ministry of Agriculture and Land Affairs to minimize beaurocratic processes.
• Ministry of Agriculture and Land Affairs to immediately remove the
willing buyer, willing seller principle.
• Ministry of Agriculture and Land Affairs to investigate provision of
agriculture subsidies for emerging farmers as an instrument that is
addition to the grants.
• Ministry of Agriculture and Land Affairs to facilitate establishment
of Land Reform Forums with key stakeholders in each municipal area.
• Ministry of Agriculture and Land Affairs to ensure that they have
requisite staff capacity and resources to deal with land issues.
• Ministry of Agriculture and Land Affairs to investigate reduction in
registration and transfer costs.
• Department of Water Affairs and Forestry to participate in the land
reform process through instituting appropriate access to water rights
for irrigation schemes.
• Department of Water Affairs and Forestry to expand building of dams
and sustainable maintenance thereof. • DWAF to enable general access to water by rural communities. • Government to investigate the establishment of Agrivillages.
• Department of Land Affairs to implement a policy retaining a portion
of the payment to the seller until it can confirm that all assets are
in intact at the time of occupation by the new owner.
• Department of Trade and Industry to be part of the land reform effort
in terms of providing support to beneficiaries with regard to
agriculture enterprises and markets. • Department of Social Welfare instruments to become part of Land Reform delivery.
• Department of Environmental Affairs to be involved in the land reform
process to enable better planning with regard to interface between
livestock and game. • National government to investigate impact of tourism industry on agrarian reform. • Tourism industry needs to be transformed to ensure inclusion of land reform beneficiaries.
• Department of Agriculture to restructure the budget investment
patterns. Reverse the current allocation ration between current and
capital expenditure. • Treasury to substantially increase allocation to Agriculture and Land.
Role of Government – Provincial Sphere
• Review the work ethic of the extension workers, and must be visible. • Review the framework for engagement of extension officers. • Extension officers should either be transferred /seconded to municipalities or should work as enterpreuneurs through an agency agreement. • Procurement arrangements to provide opportunities to emerging farmers.
Role of Government – Local Sphere
• National sphere of government to provide guidance and adequate funds
to municipalities in terms of handling land related matters.
• Enable collective participation of AmaKhosi, municipal structures and
farming communities in fast-tracking Integrated Development Plans
(IDP) • Local government to establish land and agrarian reform units at municipality level.
Role of Transport Sector
• Review various transport related costs to minimize cost impact to emerging farmers. • Fast-track road infrastructure development to improve access to input suppliers and to markets of agriculture products.
14.4 COMMISSION FOUR
THEME 4: Security of Tenure on commercial farms and in communal areas
Terminology
• The Commission was not happy with the terms “farm dwellers” and “farm occupiers”. • An alternative term was not finalized, although one suggestion was something along the lines of “indigenous people” or “Abantu benolabuko.” However, in the report have continued to use the term “farm dwellers”.
Urgent Actions
• A moratorium on all evictions until new legislation and programmes are
in place to properly defend farm dwellers. (Not supported by AgriSA:
legal evictions should still be possible, and municipalities should
have programmes to accommodate those affected)
• A Presidential Commission of Enquiry into the situation of farm
dwellers, including review of previous evictions and other violations
of people rights on farms. • Government must in partnership with civil society, develop a coherent
and proactive strategy to secure farm dweller’s rights, with a large
and dedicated budget, and dramatically increase its capacity to both
protect rights and secure independent land for farm dwellers.
Enforcing the laws
• Department of Land Affairs, Department of Labour and Home Affairs (due
to the abuse of illegal immigrants on farms), police, prosecutors,
courts and the Legal Aid Board must commit themselves to enforcing
people’s rights (land rights, protection of livestock, access to
graves, visitors rights, freedom of movement) and providing free legal
services to farm dwellers, with immediate effect.
• Farm dwellers must be allowed to participate in Community Policing
Forums on equal terms with farmers and other stakeholders, and get
time off work to do so.
• The abuse of the Trespass Act to evict farm dwellers must end, as it
no longer applies to farm dwellers – it has been amended by ESTA.
• Department of Land Affairs needs new powers for enforcement of tenure
laws and the human resources to use these powers, as do other
departments such Department of Labour.
• Farm dwellers should not be forced to pay rent for living on and /or
using the land for livestock and other purposes.
• Transformation and monitoring of the police is urgently needed, to
overcome their bias against farm dwellers and ensure immediate action
against farmers that violate the law (and in particular tenure laws). • Department of Land Affairs and the criminal justice system must ensure
prosecution and suitable sentences for violators of tenure rights.
Amending the laws
• Government must amend and amalgamate Extension of Security Tenure Act
and Labour Tenants Act by the end of this financial year, with the
full involvement of all stakeholders. (AfriSA supports review of ESTA
and LTA provided that an inclusive consultative process is followed).
• Amendments to LTA and ESTA should strengthen the rights of farm
dwellers, including the following:
_ the current definition and rights of long term occupiers under ESTA is not good enough, therefore create a class of long term non-evictable occupiers with a revised definition (that is such people cannot be evicted regardless of crimes or violation of agreements) - separate tenure rights from labour arrangements- dismissal should not lead to a person losing their home. - Create a direct legal route for farm dwellers to have their tenure security (and other rights such as the right to visitors) confirmed. - End the discrimination against women that positions them as minors whose land rights are dependent on a male household head. - Create enforceable rights to service provision. - Ensure protection of farm dweller’s livestock and proper valuation and compensation for these. - Ensure strong burial rights and access to graves in accordance with people’s culture. (AgriSA cannot support the proposed amendments without careful consideration; it could never agree to the seperation of tenure rights from labour arrangements. It will make inputs on an Amendment Bill)
Land
• Government must proactively acquire land, using expropriation where
necessary, for the creation of sustainable settlements for farm
dwellers and to give long-term recognition of their rights within
commercial farming areas. (AgriSA in favour of off-farm rather than on-
farm solutions and expropriations should be a measure of last resort). • To enable access to land of their own for farm dwellers the following are recommended:
Review the property clause;
- One person one farm rule;
- Limitations of farm size;
- The subdivision of large farms;
- The end of willing buyer/willing seller approach. (Agri SA’s
view is that the property clause is a critically important part
of the democratic compromise and should not be tampered with). Development
• Land that farm schools are on needs to be expropriated in order to
secure their future, and the state must provide adequate resources and
support to ensure that children on farms receive a high quality
education.
• Include farm dwellers settlements are part of Integrated Development
Plans and ensure service provision as part of municipalities
responsibility for the defence of farm dwellers rights and support for
the development of long term solutions.
• All development projects, particularly those requiring approvals from
departments of Environment and Tourism, must not be allowed to proceed
without first securing the rights and getting the agreement of any
farm dwellers on affected land. (AgriSA felt that farm dwellers should
be consulted only if their rights are directly affected by the
proposed development).
Empowerment
• Government and civil society must implement well-resourced programmes to build farm dweller organization and capacity, including education to defend their rights and engage effectively in development planning and in driving their own development. • Farm dwellers must have complete freedom of association to join unions and other organizations that can inform their of their rights and help defend those rights. • Specific programmes are needed to empower women on farms and support them in asserting their rights.
Accountability
• A statutory structure must be created at the local level in order to
monitor and enforce the implementation of the law; this should include
all law enforcement agencies and farmers, who must play a more active
role in finding solutions and ensuring respect for people’s rights.
• Stakeholders, government and farmers must subscribe to a code of
conduct and be held accountable.
• Farmers who abuse workers and illegally evict farm dwellers must be
expropriated. (Agri-SA did not agree to expropriation as a penalty).
Communal land
• Insufficient time to discuss communal land (former Bantustants, for
coloured reserves) or urban land tenure (informal settlements etc).
• Strong feeling that Department of Land Affairs must further consult
with the affected communities.
• One recommendation was that these consultations take place within the
Communication Strategy planned by the Department. • But some felt strongly that this will not constitute adequate consultation.
Communal land – problems
• Currently there is a lack of clarity on who owns “communal land”. • As a result people are experiencing problems with municipalities, who see it as state land. • Major problems in areas where land was transferred to “tribes” by the former Lobowa government, and tribes are under traditional leaders who were former homeland government Cabinet Ministers. • Some communities have requested Legal Resources Centre to challenge the CLARA in the Constitutional Court. On the grounds that it undermines rather than secure their rights.
14.5 COMMISSION FIVE
THEME 5: Land Use Management and Spatial Planning
Preamble
The success of any land agrarian programme is, in a very direct manner, dependent on the effectiveness of the Land Use and Spatial Planning system within which it is implemented. As a country pauses to reflect on the successes and challenges of the last ten years and chart the way forward in land restitution and redistribution effort, it is of the paramount importance that we reflect on this important aspect.
In doing the above, we should seek to enhance Land Use and Spatial Planning to ensure greater understanding of the most effective land identification and acquisition models, the rural / urban development continuum, the role and impact of change –of – land use patterns, need for sustainable farm settlements, minimizing land invasions, rationalizing relevant legislation, creating institutional capacity and sound resource mobilization and management.
Rural / urban immigration
• Disjointed rural/urban planning • Resource allocation currently biased towards urban areas. • Land identification and acquisition
Recommendations
• Need for a National Settlement Strategy (Presidency). • Encourage rural –urban planning continuum • Reverse colonial/apartheid planning
Change of Land Use
• Too many laws and institutions (DFA, NEMA etc) • Game parks and golf estates spring up everywhere. • Excessive ownership of land leading to under utilization. • Low income settlements do not receive required prioritization compared, for example to environmental habitat. • Plans are prepared with limited regard to actual land. • Applications for change of land use take too long. • Community Property Associations (CPA) not sufficiently equipped to deal with land use and planning issues. • Subdivision requirements are outdated, expensive and tedious. • The role of traditional institutions in land use management not always clear and /or of assistance especially in regard to female –led issues. • Willing buyer willing seller cannot address the historical land problems sufficiently.
Recommendations
• Rationalize relevant laws and enhance institutional coordination (National Government) • Moratorium on foreign land ownership (Department of Land Affairs) • Moratorium on change of land use to game parks and golf estates (Department of Agriculture and Land Affairs). • Introduce incremental land tax systems (Treasury and Department of Provincial & Local Government) • Set land ownership ceiling (Agriculture and Land Affairs) • Greater prioritization of these settlement informed, first and foremost, by current national /political imperatives. • Every IDP to integrate strategically located vacant land. • Remove administrative / beaurocratic bottle- necks (Provincial Governments and municipalities). • Enhance capacity building (Agriculture and Land Affairs). • Review requirements to provide for, for example, smaller farming enterprises and diversified farming practices (Agriculture and Land Affairs). • Review and clarify role of traditional institutions (Land Affairs and DPLG). • Urgent need to review willing buyer – willing seller approach (Department of Land Affairs).
Farm settlement
• Disjointed planning, service delivery and support systems. • Limited agriculture and management skills within recipient communities. • Lengthy land delivery systems • Hardships experienced for example evictions, refusal of access to roads and through fare services
Recommendations
• Enforcement of Integrated Development Planning to ensure land delivery
and support for small scale emerging farmers (All spheres of
Government).
• IDPs and PGDS (Provincial Growth and Development Strategies) to
incorporate land reform sector plans (dplg).
• Conduct needs analysis and design and implement targeted training and
mentorship programmes for new emerging farmers. (National and
provincial Agriculture & Land Affairs). • Project cycle to shortened (Department of Land Affairs). • Place moratorium on evictions. • Review ESTA urgently (Department of Land Affairs).
Institutional arrangements
• There is a gap between plans and community understanding of and participation in such plans. • Weak farmer unions/ formation within emerging communities. • Financial institutions not taking responsibility for the quality of their products and required back up system. • Land Bank is quick to repossess land from beneficiaries.
Recommendations
• Community participation requirements must be complied with in line
with country’s constitutional and democratic principles (dplg).
• Capacity and resources should be made available to enhance
organizational strength (Agriculture and land Affairs). • Package better quality products. • Play active role in capacity building among beneficiaries. • Assume greater social responsibility (Financial institutions).
Land invasions
• Commercial farmers encroaching on land of beneficiaries (land grab). • Landless people illegally occupying the land of beneficiaries. • Land owners are practicing “shack farming” for their monetary benefit
Recommendations
• Land boundaries must be clearly indicated by beacons. • Accelerate land reform. • Government to investigate the causes and forms of land invasions address these. • Government must ban “shack farming”. (Department of Land Affairs).
Legislation
• Multiplicity of laws and related institutions which do not always aid
/ assist effective land delivery and development (DFA, NEMA, ESTA,
CLARA etc). • Water rights have not been sufficiently aligned with the land delivery programmes. • Limited awareness of the provisions of legislation in some communities.
Recommendations
• Review and rationalize such legislation (all spheres of government). • Government to urgently address water and land issues simultaneously to ensure a full agrarian reform (Departments: Water & Forestry and Agriculture and Land Affairs). • Implement awareness programmes among communities and interest groups (all spheres of government).
Resource management
• State land is owned and managed in different pockets. • State land is not being disposed at sufficient pace. • There is uncertainty on extent, location and current utilization of state land. • Water needs not sufficiently dealt with in the land delivery process. • Women, youth and people with disabilities are left out the resource allocation and management. • Privatization of natural resources creates hardships for worker communities.
Recommendations
• All state land should fall under a single national government department. • State land must be prioritized for both redistribution and settlement purposes. • A full audit of state land required urgently (Land Affairs). • Government urgently address water and land issues to ensure a full agrarian reform (Departments: Water, Agriculture and Land Affairs). • Target the disadvantaged groups for effective resource allocation and management programmes (Departments: Water Affairs, Labour, DEAT and Agriculture).
RECOMMENDATION ON THE PRINCIPLE OF “WILLING SELLER – WILLING BUYER” AND GOVERNMENT’S APPROACH TO LAND REFORM
NOTING THAT:
1. There is currently no Constitutional requirement that restricts our
approach to land reform based solely on the principle of “willing
seller- willing buyer.”
2. Nevertheless, the White Paper on South African Land Policy of 1997
mandates an approach based largely on this principle and,
therefore, much of government approach to land acquisition has in
practice been based on acquisition at market prices from willing
sellers.
3. Market-based land acquisitions entail reliance on the existing land
market system which is characterized by a number of distortions and
imperfections, such as restrictions on land subdivisions, the
absence of an effective land tax, unequal access to capital markets
and information, contradictory requirements in respect of municipal
zoning regulations. 4. The Constitution provides for the expropriation of land with just and
equitable compensation. In addition, the current legal framework
allows government to expropriate land in terms of the
Constitutional parameters. 5. Nevertheless, in practice government has only used expropriation in a
very limited number of cases. AND FURTHER NOTING THAT:
- South Africans have committed themselves to a target of redistributing 30% of the land by the year 2014.
- International experience of the land reform programmes demonstrates that the market on its own is unable to effectively alter the pattern on ownership in favour of equity for the targeted beneficiaries of land reform as well as in favour of broader goals of job creation and poverty reduction.
- South Africa’s own experience over the last eleven years confirms this international experience in that the pace of redistribution to the targeted groups has not been sufficient to realize our 2014 objective.
THE LAND SUMMIT THEREFORE RECOMMENDS:
- To reject the principle of “willing buyer-willing seller.”
- The instrument of expropriation should be used actively and selectively in terms of the Constitutional principles which provide for expropriation in terms of a law of general application and subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided by or approved by a court.
- That, furthermore, amount of compensation should have regard to the following Constitutional principles:
• The current use of the property • The history of the acquisition and use of the property; • The market value of the property; • The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; • The purpose of expropriation
- That the state should actively intervene in the land market including through:
• The use of expropriations; • Scrapping of restrictions on subdivision of land; • Extensive support for small –scale agriculture; • Reversing the growing concentration of land holdings; • Promoting the principle of “one farmer one farm.” • Changing the current large-farm size culture; • Regulating foreign ownership; • Imposing a land tax; • Regulating land use to optimize social benefit.
- The principle underlying our approach should include the decentralization of the land reform process, through participatory and people-centred methods which are area-based, planned and which integrate land and agrarian transformation into wider development priorities, particularly through the Integrated Development Plans (IDPs).
- South Africa’s land policy should consist of:
a) Programmes of state actions and land market interventions; b) A proactive and state led approach characterized by well planned and holistic but just and equitable methods; A programme to attain the objective of a better life for all by a people’s contract to create work and to fight poverty through urban and rural development.
- RECOMMENDATIONS
Having considered the Land Summit, the committee noted:
a) The significant policy and implementation recommendations were made
by the participants on how to fasten the pace of delivery and
improve current delivery methods.
b) Some of the recommendations relate to Policy, for example:
- Review the Willing Buyer, Willing Seller Approach;
- Institution of the Right of First Refusal;
- Imposition of a progressive Land Tax and other incentives for Land
Release;
- Promotion of Subdivision of Agricultural Land;
- Review of Restitution Cut-off dates.
c) Implementation issues relate to:
_ Integrated Development Planning; _ Enhanced State Capacity; _ Communication and consultation strategies; _ New land acquisition methods; _ Resettlement models; _ Targeting of beneficiaries
THEREFORE, THE COMMITTEE RECOMMENDS THAT:
a) The House note the Summit report; and also b) The House note the Department of Land Affairs is currently developing a plan to implement the recommendations of the summit.
- Report of the Portfolio Committee on Agriculture and Land Affairs on Provincial Oversight Visit to Northern Cape, Free State and Eastern Cape, dated 25 October 2005:
The Portfolio Committee on Agriculture and Land Affairs, having undertaken the provincial oversight visits to Northern Cape, Free State and Eastern Cape from 09 – 19 August 2005, reports as follows:
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INTRODUCTION
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The Portfolio Committee on Agriculture and Land Affairs undertook provincial oversight visits to KwaZulu-Natal, Mpumalanga and Limpopo from 1 – 13 August 2004. Subsequently to that visit the committee took a decision that the second phase of oversight work would be early in 2005. This would be to the Northern Cape, Free State and Eastern Cape.
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However, the parliamentary programme in the first and second terms did not permit or have any space for such visits up to the end of July
- On the 14th June, the Committee took a decision that the dates should be adjusted to 09 – 19 August 2005, which was also time set aside for oversight work according to the Parliamentary programme.
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OBJECTIVES
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The purpose of the visit was two-fold. It was to oversee projects funded by the Department of Agriculture and Land Affairs, particularly on Landcare and restitution programmes;
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Firstly, Land Care is one of the key rural development programmes of the Department since 1998. It is a programme that is informed by the Integrated Sustainable Rural Development Strategy of the government. Its objective is to foster community involvement in the management of the Environment and Natural Resources, while improving the quality of community life; and
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Secondly, the purpose was to focus on land restitution projects that have been transferred by the Land Claims Commission. The committee focused on restitution to evaluate the Economic Impact of the Restored Land to Beneficiaries.
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DELEGATION
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The multi-party delegation led by the Acting-Chairperson, Ms E. Ngaleka (ANC), included Ms B.M Ntuli (ANC); Ms H.M Blose (ANC); Mr D.M Dlali (ANC); Mr S. Abram (ANC); Adv S.P Holomisa (ANC); Mr T.D.H Ramphele (ANC); Mr M.V Ngema (IFP); Mr J. Bici (UDM); Mr P.H.K Ditshetelo (UCDP). The Democratic Alliance apologized for being unable to attend due to prior commitments.
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In Northern Cape, at Goodhouse, the MEC together with Senior Management of the provincial department welcomed the committee and in Kuruman, Member of Provincial Legislature from Independent Democrats joined the committee.
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In Free State province, Provincial Chairperson, Mr H. Nketu (ANC) and Mr A.J Botha (DA) from Free State Provincial Legislature joined the committee. On site visits the committee was accompanied by provincial Chief Director, regional managers and extension officers; and
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In Eastern Cape, Aliwal North the Provincial Chairperson Mr Nkayi (ANC) and Ms Buka (ANC) from the Legislature joined the committee also accompanied the provincial Head of Department, Adv Nyondo and Regional Managers.
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The following staff members accompanied the committee: the Committee Secretary, Mr J. Boltina; the Committee Assistant, Ms Z. Jara; and Mr A. Mthombeni, Parliamentary Officer represented the Ministry.
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APPROACH OF VISIT
In evaluating projects performance in all provinces visited, the committee was accompanied by the Provincial Standing Committee on Agriculture and Land.
The following approach was followed in order to understand the situation on the ground:
- On-site briefings by the managers of the Project Committee, inputs from the relevant provincial departments and in some instances municipality through Local Councillors. The briefings were focused on the following areas:
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• Project history (year, size of land, number of beneficiaries, legal entity etc); • Extent of support by the department and other stakeholders (financial and technical); • Achievements, problems and challenges experienced by beneficiaries.
- Questions and comments emanating from presentations; and
- A request for a detailed report of the project to be submitted to the Portfolio Committee within 14 days of such visit.
NORTHERN CAPE (09 – 12 AUGUST 2005)
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PAPRIKA PROJECT – GOODHOUSE
This project is located on a Transformation of Certain Rural Areas Act (TRANCRAA) land and comprise of 12 farmers involved in growing paprika. It started in 1995 with a government grant of R90 million. Farmers were allocated 10 hectares each. The money allocated was for water infrastructure and the Land Bank also came on board to assist farmers with a production loan of R57 million.
Gili Company was appointed by the Provincial Government of Northern Cape to manage the project. Problems started to develop between the company and the farmers. The company is now liquidated and the MEC indicated that there will be forensic investigations to be undertaken and a new company will be formed. This is as a result of the alleged financial irregularities.
A Paprika plant for processing and packaging paprika was established in Springbok but has ceased operations. The plant closed down and the beneficiaries stopped producing. The land is currently idle with no production at all. In intervening, the Provincial government of Northern Cape has undertaken to restart the project. The MEC also mentioned that the new company would be allocated R5 million to sort out the irrigation scheme. The new project shall focus on Lucerne and cotton. The first production of Lucerne should have been made in April 2005 and Cotton in October 2005. As a result of certain issues there are delays in starting the project and a need arose to re-schedule implementation timelines. The company will have a Trust comprised of 55 owners and the Industrial Development Corporation (IDC) will be on board. The shareholders will receive dividends and workers paid salaries. The Department of Agriculture will manage the project in the interim with Agri-academy providing training.
The Project leadership stated that farmers were not sufficiently consulted during the start of the project. Land Bank loan and Land Redistribution for Agricultural Development (LRAD) Grants were deposited to Gili’s company. R5 million was used to buy 10 tractors. No financial reports were supplied to beneficiaries. People were promised R500 salaries and another R500 for groceries but the company reneged on its promises.
5.1 Observations / Findings
• The Project had collapsed completely. • The establishment of this project lacked intended beneficiaries participation and empowerment and therefore project ownership. • There is a challenge on institutional arrangements (that is Legal Entity and dispute resolution mechanism) in the project and this affects sustainability of production. • The project lacked proper security and maintenance of infrastructure and equipment resulting in abuse, neglect and wreckage. • Group conflict and infighting divided farmers into groups of “new” and “old” farmers; • The forensic investigation proposed by the MEC received support from the Committee.
5.2 Recommendations
• Portfolio Committee is to follow up with the MEC and request
updates on progress in the project and monitor that departments
assist the communities involved. • Report back to the Portfolio Committee on progress achieved.
• The Department must take an effort to establish a legal entity that
would entail all steps necessary to deal with institutional
problems that may arise, including exit strategy for individuals in
case of impasse or where individuals walk away from the project or
roles and responsibilities of members as well as decision-making
processes. • There is a need to address training, market and market access, and finance administration.
• The project beneficiaries seem to struggle before the project can
produce returns and there is tendency for the project to suffer
with individuals taking from the project for food security. It is
therefore recommended food security issues be addressed.
• The Portfolio Committee supports the forensic investigation into
this project and shall keep observation of progress in this regard.
• Maintenance and security of infrastructure and equipment must be
budgeted for because the risk of loss and wreck usually negatively
impact on projects.
- RITCHERSVELD LAND RESTITUTION PROJECT
The Mayor, Mr Dan Singh indicated that the municipality fully supports the claim though the State and Alexkor are defending the claim due to mineral rights. There are four councilors who are beneficiaries of the claim.
The CPA Chairperson indicated that there are 269 beneficiaries of the claim of about 85 000 hectares which went to the Constitutional Court as they lodged the claim post deadline. The court has ruled in favour of beneficiaries. The pillars of the claim involve land ownership, mineral rights and a percentage compensation of what is taken out of the land (R1.5 billion), environmental damage (R1 billion) and labour hardship (R10 million).
The Beneficiaries future plans involve agricultural projects, small-scale farming and cattle farming. Beneficiaries receive benefits from their Park in which their Trust has approximately R100 million unused money. REQUESTED the Portfolio Committee to follow up the matter on their behalf with the Minister and the Department of Land Affairs. The outstanding matters being on the Act 9 Land and target time by which time the claim would be completed.
6.1 Observations / Findings
• The involvement of the Municipal Council and the Mayor augurs well
for local economic development and the Portfolio Committee noted
with appreciation the good relationship that existed amongst the
parties.
• It was clear that development of the communities was part of
Council agenda and this bode well for locals in the IDP; and • The committee was concerned about the R100 million lying idle in the Trust Fund.
6.2 Recommendations
• The community indicated that the monies that were received from
diamond mining was deposited in a Trust Fund and remained in
accessible.
• The Committee raised its concern and indicated that the community
would be better served by these monies actually being accessed and
be used in development.
6.3 Action
• The Committee is to follow up this by requesting some background
and details from the Department of Land Affairs on this project.
- EILAND PROJECT – UPINGTON
This project involves two female farmers who came second on the female farmer competition and were allocated portions of the Research Station’s land to do farming with an option to buy. The two are involved in cotton and Lucerne production on 17 hectares of land through the assistance by the Department of Agriculture. They have produced 70 tonnes of Lucerne at R700 a ton during the last season and also get R6 000 per hectare for cotton per annum. The cost of inputs and for hiring seasonal workers was R42 000.
Land Bank lent them a production loan of R50 000 (R25 000 each) at a prime rate of 17%. The challenge experienced is the short repayment period of the loan (that is seasonal repayment). They have applied for CASP money for mechanization. They pay approximately R3 000 to private people to till the land.
The first and second years have been profitable for their business and were challenged by Lucerne prices on the third year. The other constraint is a drainage system, which is blocked in the field, thereby affecting proper irrigation. The other part of the farm needs fencing so that cash crops can be cultivated.
7.1 Observations / findings
• The project is run with necessary extension support from the Research Station. • Farmers are in production of Lucerne and cotton. • It is difficult to assess sustainability because of this strong and continuous support. • There are no indicators that the project can survive in the market.
7.2 Recommendations
• There is need to expand the project as the project appears to be
too small to be run commercially. • The size makes it prone to very adverse impact by
• This project illustrates the extent to which Department of
Agriculture need to give support to small emerging farmers but
balancing that with assessment of long-term sustainability
7.3 Action
• The Portfolio Committee shall liaise with MEC and the Station to
get up-dates on the project.
- TUMELO TRUST PROJECT
This is a youth project that was initiated by the National Youth Commission with 6 beneficiaries. Only 2 male youths still remain in the project. One female beneficiary has since joined the police force, while the other indicated that she was no longer interested in agriculture and left. There was another one who came during harvesting demanding share though did not work.
The project is involved in grapes and Lucerne production on 176 hectares of land divided into two portions and 38 hectares of land has been leased to a certain farmer with R2 000 monthly rental. The youths have received start up money of about R80 000 from the Land Bank for training and have a mentor farmer from nearby who claims R9 000 per month for such service.
The Department of Agriculture was not involved during the start of the project and it is now on board providing extension services and also allocated R80 000 for implements. There will be CASP funds to support the project.
8.1 Observations / Findings
• Due to conflicts the project is not in full operation but it has potential; • The Committee is of the view that the youths that remain need full support, motivation and guidance in order to take the project further.
8.2 Recommendations
• The project has to be given full support. • Training specific to vineyards, marketing, finance management is necessary. • Vineyard development is a highly skilled industry and so should training match this need. • There is a need to clarify the position of those who abandoned the project because there might be contractual issues that need to be sorted out to remove them formally from the project or tighten their relationship with the project.
8.3 Action
• A letter should be directed to MEC and Provincial Department of
Agriculture to establish a plan being developed to support the
project.
• Emphasis should be put on the need to develop skills in vineyard
establishment and maintenance, marketing, farm management,
financial administration. Training should match the high skill
requirements of the grape / wine industry.
• The Province should give report to the Portfolio Committee on the
developments achieved and challenges for continuous support. • Network with other farmers should be encouraged but be monitored.
• The “alleged” contract of R9 000 per month with the “mentor” be
reviewed and possibly cancelled.
-
LOHATLA RESTITUTION CLAIM – KURUMAN
The Portfolio Committee was welcomed by the Mayor of the area and he gave a broad overview of the restitution cases in the municipality and planning processes thereof. Delegation raised questions of clarity ranging from relationships between the municipality and other spheres of government, planning on commonages, councilors who are the members of CPA, the extent of budgetary constraints and post settlement support to beneficiaries.
The Land Claim Committee members were concerned that the Portfolio Committee was visiting them for the third time and they had received no feedback on issues raised on two previous occasions (that was 1996 and 1999 visits). Beneficiaries indicated that their claim of 62 000 hectares of land had dragged on for 14 years due to it having been occupied by the army. Claimants have agreed to alternative land but nothing has been transferred. Claimants have heard that 5 farms have been identified by the Department of Land Affairs, people have built squatter houses at the entry of the army base to register their plight.
The Regional Land Claims Commission reported that the Minister has signed the transfer of alternative land in July 2005. The Land Claim Committee recommended to the Portfolio Committee that the Department should consider recommendations made during the presidency of former President Mandela regarding the claim. Claimants were concerned about game farming taking place on the military land, the need for permission to visit ancestral land. They required mineral and water rights, and title deeds to the land.
9.1 Observations / Findings
• The Committee felt that this matter should be discussed with the Portfolio Committee on Defence at parliamentary level. • The role of the DLA and the Commission has been appreciated in dealing with the matter. The delays seem to be coming from the Land Claimants Committee itself.
9.2 Recommendations
• The Portfolio Committee shall engage the Portfolio Committee on Defence about this claim. • The Northern Cape Regional Land Claims Commission must provide the committee with sufficient written information on this claim.
-
KONO PROJECT
The total size of the land is 10 785 hectares and was handed over to 450 families in December 1999. Beneficiaries are involved in livestock farming (sheep and goats), vegetables and broilers. The CPA has been formed and a land care fund has been allocated for infrastructure development such as for fencing, the upgrading of the fountain canal and for the construction of new camps. Two dams have been built with land care money.
The broiler enterprise has stopped due to poor management. The women group involved in the project and CPA has taken over and will be operational from 20th August 2005.However, the livestock and vegetable enterprises are up and running. There is a mentor farmer involved and the Department of Agriculture provides all the required support for the project. The project received awards for the land care competition.
10.1 Observations / Findings
• The Committee was delighted with the project and recommended that
the broiler building be expanded.
10.2 Recommendations
• The broiler building should be expanded. • The Department of Agriculture through marketing entity supported by the state should help with market access. • Agronomist should be involved to assist project with cost control (operational cost). • If possible the project should be assisted with Branding (Brand development in markets is critical and therefore the Agricultural Research Council (ARC) and National Agricultural Marketing Council (NAMC) could assist).
- HYDROPONICS YOUTH PROJECT – KIMBERLY
The Committee was briefly taken to the youth project initiated by the National Youth Commission. The Project is on commonage land behind the fresh produce market and is involved in the production of vegetables such as tomatoes.
11.1 Observations / Findings
• Due to time constraints there could be no effective analysis of the project. • The Committee found that the Department of Agriculture has taken over the project.
11.2 Recommendations
• The Portfolio Committee must be provided with a full report on the project.
FREE STATE PROVINCE (15 – 17 AUGUST 2005)
- TIMO AGRI PARYS
A Hydroponics vegetables (tomatoes) project is run by 10 youth (5 women and 5 men). The beneficiaries were selected at local level by means as stipulated criteria involving matric, knowledge or interest in agriculture etc. This is a CASP funded project together with Masikhule Project in Sasolburg to the tune of R2.5 million initiated by the former MEC for Agriculture. It is on commonage land which is leased for 10 years with an option of a further 5 years extension. There is no lease payment for the first year.
Twelve tunnels erected by Kweneng Company of Mr Thabang. Two boreholes are used for irrigation. The Provincial Department of Agriculture provides support through the Extension Officer. Beneficiaries were trained on basic management skills except marketing skills.
12.1 Observations / Findings
• The project is on its first production; • The fact that the lease contract was not in place when the project started and still today there is no written lease contract between the beneficiaries and the municipality; • There is no specification for the project or written document as an agreement between the Department and the contractor that will indicate project implementation phases; • Project makes it difficult for the Extension Officer to monitor and evaluate the implementation as there is nothing to refer to; • The challenge of marketing the produce was raised by the beneficiaries; • The beneficiaries also highlighted the transport as a problem to and from the township.
12.2 Recommendations
• The Committee requested the extension officer to submit a detailed
report on the project within 48 hours.
- MASIKHULE PROJECT – SASOLBURG The hydroponics vegetable (tomatoes and lettuce) project is also on the Anelia Commonage land and is funded by Comprehensive Agricultural Support Programme (CASP) money together with Timo Agri Parys. According to the business plan, the hydroponics tunnels were constructed by Kweneng Company owned by Mr Thabang. Six youth are involved (4 men and 2 women). One beneficiary has since left to look for temporary work.
The beneficiaries will sign the lease agreement with the municipality within 7 days. The youth come from various townships and need to have R14 .00 transport fee to come to the project. Initially, they were promised a monthly allowance of R1000 each for a period of 6 months but it was not allocated.
Some are not participating in the construction work of the tunnels because they reject the R35 daily rates from the constructor while they demand R50. They are involved in erecting of a fence funded by Land Care money from which they will be compensated.
Beneficiaries have no legal entity (CPA or Trust) and still have to get a name for the project for registration purposes with the Department of Trade and Industry (DTI). Extension service is provided by the provincial Department of Agriculture.
13.1 Observations / Findings
• Beneficiaries are not fully participating in the daily running of
the project, for example, in financial transactions and decision-
making; • 4 tunnels have been constructed though damaged by cattle due to non- fencing;
• Production has not started because municipality disapproved the
original land and subsequently identified an alternative land; • There was no separate CASP funding from Timo Agri Parys and Masikhule project; • There is no account opened for the project; • The project seems to be imposed on beneficiaries; and • There is no written agreement between beneficiaries and the strategic partner.
13.2 Recommendations
• There is a need for the provincial Department of Agriculture to
consider issues relating to training needs of beneficiaries, the
ownership and marketing.
13.3 Action
• A detailed report has been requested from the Extension Officer.
- COMMUNITY PROPERTY TRUST – ORANJEVILLE
The project has 52 beneficiaries on 346 hectares cultivating the land for maize and sunflower. There are 6 permanent workers and most are looking for temporary work in town. Approximately 48 hectares were cultivated last season and produce 1 tonne sunflower and 5 tonnes of maize. This is a Settlement Land Acquisition Grant (SLAG) project started in 1997. Currently, the project is characterized by problems related to group dynamics.
Loan amounts of R145 000 for a tractor from Land Bank and R 61 000 from Vrystaat Ko-operasie BPK (VKB) were received. Repayments of the loans are problematic due to droughts during two successive seasons.
The tractor, implements and a bakkie were repossessed in February 2003 by the VKB co-op to recover the money and R36 000 is still outstanding. Beneficiaries also generate money by letting stands to holidaymakers and also charge a daily fee for fishing as the farm fronts on to Vaal dam. Beneficiaries envisage introducing livestock farming for the trust even though individual members have livestock. Vaal Collery Mine has donated R100 000 for implements this season.
14.1 Observations / Findings
• Committee identified a management problem and lack of proper
training for the beneficiaries; • The action of the VKB co-op to attach assets seem questionable;
• Previous records regarding financial situation/loans were not
handed over to the new Extension Officer.
14.2 Recommendations
• A detailed report has been requested from the Extension Officer.
- DIKGOMO PROJECT – WESSELSBRON
The Dikgomo is Land Redistribution for Agricultural Development (LRAD) project started in 2002 following the combined effort of 5 families who were involved in the buying and selling of livestock in the township. There are 15 beneficiaries involved in livestock and maize production on 482 hectares. The land was purchased at a cost of R300 000. An amount of R160 000 has been borrowed from Land Bank to assist the beneficiaries in production.
The LRAD grant was used to buy two tractors and implements. The Department has currently committed R625 000 from Comprehensive Agricultural Support Programme (CASP) fund for infrastructure and mechanization (boreholes, fencing, harvester, compressor, pipes and repair of dam). In the current season, beneficiaries cultivated 60 hectares of grain and harvested 80 tonnes which is now stored at SENWES. The input cost for production was R26 000.
Individual beneficiaries own 24 cattle and the Department donated 10 heifers through CPF funds. Ms Puleng is the Extension Officer responsible for the project with Mr Rampulu as the Project Manager. The beneficiaries have unused money in the bank.
15.1 Observations / Findings
• The committee found that the project is successful and it has a potential to do even better; • Government support is evident through grants, extension services and training; • Red-tape during the procurement process through the department has a negative impact on the ground. • Beneficiaries need assistance in terms of grain and livestock; and • The implements such as tractors, trucks etc are still in good condition.
15.2 Recommendations
• The provincial Department of Agriculture should monitor this project consistently.
- KUTLWANONG FARM TRUST
The project is a Settlement Land Acquisition Grant (SLAG) project where 200 beneficiaries were settled on 4 000 hectares of land in 1996. People borrowed about R1.3 million from Land Bank for production but it has been paid up at the moment.
Two Executive Committees of the CPA were formed and disbanded as a result of group conflicts and a new one has been elected. The source of the problem relates to non-reporting on the financial situation of the project to fellow beneficiaries and mismanagement of funds. In the process of conflict, the title deed of the project was lost. The beneficiaries had to pay R1 500 to obtain a new one and another R1 500 is owed.
The project was characterized by five enterprises, namely dairy cattle, bakery, cash crops, broilers and maize. Only maize and bakery got off the ground. There was a season where beneficiaries harvested 16 tonnes of maize and pumpkins, which were sold locally.
There are “allegations” that the previous Chairperson of the Executive committee had taken R30 000 to start his own business. A rebate of R213 000 was received from the South African Revenue Services (SARS) which was used to buy tractors. There are also proposals that the department consider subdivision to ease group conflicts.
16.1 Observations / Findings
• The project is in a deteriorating state due to group conflicts. • The division among the beneficiaries is the obvious when engaging with them. • The implements bought are not taken care of; and only • The 28 beneficiaries appear to be eager to proceed with production if subdivision becomes a reality.
16.2 Recommendations
• There is a need to strengthen institutional arrangements. • The Provincial Government must ensure there is continuous support and clear definition of roles and responsibilities of the membership.
- MPHATLALATSANE LAYERS PROJECT – HENNENMAN
The project started in 1997 following the initiative by 15 beneficiaries to contribute R100 to start a poultry (chicken layers) project. Beneficiaries use commonage land leased for 10 years period where CPF funding was used to construct 2 layer houses and 2000 layers. The total grant was R550 000 which left a R9 000 balance, which is committed for feeds and signage.
The beneficiaries receive monthly salaries of R350 and there is a balance of R14 000 in the bank account. They spend almost R24 000 to buy feeds monthly at no discount.
Beneficiaries received extensive training to assist them to run the enterprise. The products are sold locally at pension points and there is a high demand for it. They experienced a problem for a stable market for the products and they do not have proper grading systems and this affects profit margins.
It was also reported that there is a study which is being conducted at the departmental level to find ways of making the project sustainable by introducing other agricultural enterprises for beneficiaries.
17.1 Observations / Findings
• The Committee found that the project has a potential to grow if it
can be fully monitored by the Department.
17.2 Recommendations
• There is a need for the beneficiaries to have an egg grader to speed up the work; • The Beneficiaries should be assisted to find a stable market for eggs and to have a grading machine.
- MODIMO – LERATO PROJECT - BLOEMFONTEIN
This is a SLAG project started in 1998 where beneficiaries were settled on 935 hectares of land. However, there are few active members that remained in the project, as a result, most of them are seeking temporary jobs in town. There is a portion of land let for R3 000 a month of which the money is used for the payment of electricity.
The project comprises livestock farming, cash crops and from poultry enterprises. Money generated from poultry enterprise was used to buy a bakkie to transport beneficiaries to work and also to sell chickens in the township. The vehicle has now broken down as it was frequently used for private purposes and is parked at the township.
The department of Agriculture has allocated an amount of R350 000 to purchase livestock and poultry. The Poultry unit was funded by the CPF. The project has 66 cattle including individual stock and it has a carrying capacity of 100livestock unit. There is assistance from the Land care programme for infrastructure such as fencing of camps, repair of windmills and for water reticulation.
The beneficiaries participate in donga rehabilitation and fencing as part of Extended Public Works programme and receive a daily compensation of R45. Beneficiaries received training on livestock farming and bookkeeping. They do not have a tractor to till the land, especially on the cash crop enterprises and were promised a tractor by the MEC.
18.1 Observations / Findings
• The Committee found that the project is not successful and is in
deteriorating state and requires close monitoring due to group
conflicts. For example, the poultry project is not operating; • Land Care money has brought life to the project; • There are clear signs of mismanagement of funds as stated by the Extension Officer; and • The non-active beneficiaries fuel conflict within the group.
18.2 Recommendations
• The Department should monitor the management of assets and funding injected in projects.
- ITUMELENG PROJECT - BOTSHABELO
This is a SLAG project started in 1998 with 16 beneficiaries (7 women and 9 men) settled on 639 hectares of land. The farm was purchased for the amount of R235 000. The project involved livestock farming and cash crops; and have a tenant leasing grazing land for 60 livestock at a rate of R25 per livestock unit.
The project carrying capacity is 90 livestock units and they have 14 cattle for the project bought through Land bank loan and 16 for individual members. The loan balance is R 28 000 with 12% interest.
The Department has injected R365 000 CASP money in the project for fencing, 2 windmills and reservoir. Beneficiaries have been trained on cattle husbandry, bookkeeping, conflict resolution and animal reproduction. There are problems of access to road, crossing bridge, farmhouses and the transport of beneficiaries as they stay in the township.
19.1 Observations / Findings
• The Committee found that this is a successful project with high potential; • The Beneficiaries have prior knowledge of farming; • Onions are cultivated; and • The support from the department is evident.
- TUSANO WOOL ASSOCIATION – THABA NCHU
This is communal project started in 2003 through collaboration between Department of Agriculture and the National Wool Growers Association. There are 28 beneficiaries involved in selling of wool in Port Elizabeth market having about 450 sheep. On average, beneficiaries get R40 p/kg. In the first year they used BKB Company to market their products and CMW Company in the second year. Beneficiaries had a good working relationship with the former. They contribute money to buy vaccines for livestock.
The Department contributed CASP money to the tune of R2 million to build shearing shed, fencing and reticulation of water in camps. The money will reach out for 218 direct beneficiaries, total of 5 shearing sheds in 12 communities.
Due to high unemployment rate in the area, the Department and the Agricultural Research Council (ARC) introduced egg layers in the community for food security purposes. There is an existing committee for the project but do not have an account for the project.
20.1 Observations / Findings
• The committee found that the project is characterized by group
conflicts emanating from dispatching of funds after sale of
products; • The assistance by the department needs to be intensified;
• Layers program has caused household to look for markets outside the
community to sell surplus eggs;
• The information on the financial aspects of the projects is not
well disseminated to beneficiaries.
20.2 Recommendations
• There is a need to develop the scale of farming as it is clear that
the size of the project constrains growth and potentially result in
fights for little returns.
• There is need to strengthen legal entity and decision–making
processes, transparency in management etc.
• Good results of the Food Security project gives opportunity to
establish “Rural Market Infrastructure” of the ARC and NAMC.
20.3 Action
• The Portfolio Committee is to engage the ARC and NAMC to be
involved in this project and make follow up.
• Committee has heard that both institutions wish to develop rural
markets – they should give the committee plans and update on this
project. EASTERN CAPE (18 – 19 AUGUST 2005)
- STERKSPRUIT LAND CARE PROJECT - BILIKANA
The land retrogression and soil erosion in the area dates back to 1923. The project was launched on the 26th October 2004 with the formation of Land Care Committee and benefited about 196 people through the Extended Public- Works on R45 per day rate for fencing and donga control work. The Department is focusing on controlling water run-off, fencing, livestock farming and small irrigation through a partnership with the local community and municipality.
In 2004/5 financial year the Department allocated R1 million to kick- start the project and currently allocated R6.5 million of which R3 million is for Blikana, R3 million to reimburse the volunteers for land care and R500 000 for social mobilization.
The Land care committee stated that they have problems related to contours in the fields, tractors, although Municipality has 13 broken tractors, for municipality, sales pens, dipping tanks, improvement of shearing shed, dams for livestock, school vegetable garden, plantation of forestry on mountains. They have one spinach garden and others are underway.
The municipality has endorsed the project on its IDP and budgeted R2.5 million though it is not readily available.
21.1 Observations / Findings
• The Committee found that the project is progressing well though
workers were not paid wages since May 2005;
• The HOD assured the Committee that the problem would be solved by
25 August, when people will be paid their money including the past
months (June, July & August);
• The project has received R7.5 million and there are questions of
financial management and this needs attention.
• There are negative actions by the youth who demanded the expulsion
of old beneficiaries in the project;
• Land Care committee appeared to be lacking financial management
related to the project; and • The beneficiaries started with training to be able to manage the project.
• Sustainability is necessary and efforts should be made to ensure
that the R2.5 million budgeted for from IDP (Municipality must
create sustainability and good finance management in the project).
21.2 Recommendations
• There is a need to address the probable bad perceptions coming from
the Youth. Either there is need to have youth involved or
initiation of youth projects through UMSOBOMVU.
• Issues of agriculture equipment and infrastructure through CASP and
other programmes need to be addressed.
• There is a need to create strong project with probable returns in
order to create sustainability of the project.
- ALLEN WATER LAND CARE PROJECT
The project consists of 59 beneficiaries involved in livestock production (cattle and sheep), vegetables, maize, pumpkins beans and peas. The then Ciskei government started the project in 1983 on 1 900 hectares of land and the current government supported it since 1998 through partnership between Department of Agriculture, National Wool Growers Association and the Agricultural Research Council (ARC).
The beneficiaries started the project through their own contribution of R500 each. The allocated funds at district level is R300 000 for Land Care programme, R160 000 for fence erection from provincial department of Agriculture; and R50 000 from Presidential project fund for irrigation purposes.
The Land Care project started in 2000. The Land care money was used to repair a shearing shed, construct a dipping tank and 9 km fencing. There are 18 camps, only 6 camps with water reticulation and 7 windmills out of which 3 were repaired.
On livestock production, beneficiaries produced 28 wool bales in 1998, 55 bales in the following year and currently produced 75 bales for BKB in Port Elizabeth market. For the last produce they received R153 000 which will be shared by the beneficiaries.
Beneficiaries have constraints of water in some camps and also for household purposes. The project has 300 sheep donated by Dohne Institute of ARC and individual members have their own stock. They have also received a top award for land care amounting to R10 000.
22.1 Observations / Findings
• The project is viable and well managed. This is shown by the fact
that the community has saved R100 000 in their account for future
development;
• The Department of Water Affairs and Forestry and the Municipality
should come on board to address the drinking water problem in the
community.
• The Department of Agriculture could learn from the project how
community projects could be strengthened (that is the apparent good
relations and management of the project).
• Support of projects by government is necessary to achieve success
(for example, first the project was initiated by homeland
government and then new government built on the good of this). • Continuity with change is virtuous.
22.2 Recommendations
• There is need to ensure growth of the project. • Train the members as trainers to give mentorship as it appears there is good experience. • Need to strengthen institutional arrangements.
22.3 Action
• The Department of Water Affairs and Forestry (DWAF) must be
contacted to respond to the needs of the project.
- CONCLUSION The projects visited were chosen from different districts in the provinces and due to time constraints and vastness of provinces, the committee was not able to visit as many as possible. The selected projects included both those that were relatively successful and those that were struggling.
The visit by the committee has highlighted some of the shortcomings experienced by provincial departments. One of the fundamental challenges is the communication gap that exists between the provincial departments and beneficiaries. Again, there is no clear exit strategy to ensure that when government withdraws, the projects will not falter. The collapse of the projects would undermine the government programme of meeting the 30% target to transfer land to black people.
The visit also indicated the lack of coordination and integrated approach by departmental units in dealing with projects and related policy issues. The committee does acknowledge that some projects can experience some measure of success if they can be provided with sufficient support.
Therefore, in the opinion of the committee, what is required for sustained success of the projects, the provincial Departments must establish strong mechanisms for monitoring, evaluation and regular interaction with beneficiaries and other stakeholders should be prioritized.
The Committee is satisfied that it has achieved with limitations the objectives set out for the oversight visits. The assistance rendered by provincial departments, Legislatures and other stakeholders who assisted and participated in the programme is sincerely appreciated.