AN OVERVIEW OF THE REGULATIONS FOR THE IMPLEMENTATION OF THE CLaRA COMMUNAL LAND RIGHTS ACT CLaRA CO

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AN OVERVIEW OF THE REGULATIONS FOR THE
IMPLEMENTATION OF THE CLaRACOMMUNAL LAND RIGHTS
ACT (CLaRA) CONSULTATION WORKSHOP , ELANGENI
HOTEL, DURBAN7th and 8th April 2008Dr Sipho M.
D. Sibanda
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I. INTRODUCTION

• This presentation is divided into five parts.
• Part I gives a general introduction on the
  Communal Land Rights Act, 2004 (Act No. 11 of
  2004) (CLaRA).
• Part II also gives a general introduction on the
  Regulations for the implementation of the CLaRA.
• Part III provides for certain definitions.
• Part IV gives an overview of the view of the
  Regulations emanating from the CLaRA
  specifically.
• Part V gives an overview of the Regulations
  emanating from the Deeds Registries Act.

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I. INTRODUCTION continued

• The Communal Land Rights Act, 2004 (Act No. 11 of
  2004) (CLaRA) was promulgated into law in July
  2004. What does it seek to achieve?
• The CLaRA seeks to
• provide for legal security of tenure by
  transferring communal land, including the
  KwaZulu-Natal Ingonyama Trust land, to
  communities, or by awarding comparable redress

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I. INTRODUCTION continued

• provide for the conduct of a land rights enquiry
  to determine the transition from old order rights
  to new order rights
• provide for the democratic administration of
  communal land by communities
• provide for the Land Rights Boards
• provide for the co-operative performance of
  municipal functions on communal land
• amend or repeal certain laws and
• provide for matters incidental thereto.

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I. INTRODUCTION continued

• Where does the CLaRA apply? The CLaRA applies to
• (a) State land which is beneficially occupied
  and State land which-
• (i) at any time vested in a government
  contemplated in the Self-governing Territories
  Constitution Act, 1971 (Act No. 21 of 1971),
  before its repeal or of the former Republics of
  Transkei, Bophuthatswana, Venda or Ciskei or

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I. INTRODUCTION continued

• or in the South African Development Trust
  established by section 4 of the Development Trust
  and Land Act, 1936 (Act No. 18 of 1936), but not
  land which vested in the former South African
  Development Trust and which has been disposed of
  in terms of the State Land Disposal Act, 1961
  (Act No. 48 of 1961)

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I. INTRODUCTION continued

• (ii) was listed in the schedule to the Black Land
  Act, 1913 (Act No. 27 of 1913), before its repeal
  or the schedule of released areas in terms of
  the Development Trust and land Act, 1936 (Act No.
  18 of 1936), before its repeal
• (b) land to which th KwaZulu Ingonyama Trust
  Act, 1994 (Act No. 3 KZ of 1994), applies, to
  the extent provided for in Chapter 9 of the
  CLaRA

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I. INTRODUCTION continued

• (c) land acquired by or for a community whether
  registered in its name or not and
• (d) any other land, including land which provides
  equitable access to land to a community as
  contemplated in section 25(5) of the
  Constitution.
• Furthermore, the Minister may, by proclamation
  in the Gazette, determine land contemplated in
  (d) above and may also in such noticee specify
  which provisions of the CLaRA apply to such land.

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I. INTRODUCTION continued

• The CLaRA has not been brought into operation as
  yet. There are two major reasons for this.
• The current organizational and human capital
  structure of the Department of Land Affairs does
  not lend itself to an efficient and effective
  implementation of the CLaRA. However, in the past
  two years, the Department has been involved in
  the reengineering processes to come up with an
  appropriate organizational structure with the
  requisite human capital to efficiently and
  effectively implement land reform and CLaRA in
  particular.

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I. INTRODUCTION continued

• The design of this new organizational structure
  for the Department meets the requirements for
  efficiently and effectively implementing land
  reform and the CLaRA. A new organizational
  structure with the requisite human capital has
  been approved by both the Minister for
  Agriculture and Land Affairs and the Department
  of Public Service and Administration.

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I. INTRODUCTION continued

• To implement the CLaRA requires the development
  of the national implementation Framework and the
  provincially specific Implementation Strategies
  and the Regulations under the CLaRA and Deeds
  Registries Regulations.

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I. INTRODUCTION continued

• The National Implementation Framework is in place
  and what is outstanding is the development of the
  provincially specific implementation strategies
  on the basis of the national implementation
  framework. Since the draft Regulations under the
  CLaRA and the Deeds Registries Regulations are
  now in place, this development will facilitate
  the development and finalization of the
  provincially specific implementation strategies
  for the implementation of CLaRA.

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I. INTRODUCTION continued

• The draft Regulations under the CLaRA and the
  Deeds Registries Regulations are in place
  although in the draft form. These Regulations
  were gazetted for public comments on the 8th
  February 2008.

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I. INTRODUCTION continued

• This means that the said Regulations are in the
  public domain for you to comment on. The
  consultation programme is targeted at traditional
  leaders, organs of civil society and other
  institutions, the ANC Study Group, the Portfolio
  Committee on Agriculture and Land Affairs, the
  communities in the provinces affected by the
  implementation of the CLaRA, the municipalities,
  provincial and national government departments.

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I. INTRODUCTION continued

• Following receipt of the comments of all
  stakeholders consulted, the Department of Land
  Affairs will interrogate and evaluate all the
  comments with the intention of improving the
  quality of the current draft Regulations under
  the CLaRA and Deeds Registries Regulations.

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I. INTRODUCTION continued

• We expect to have the Regulations under the CLaRA
  and Deeds Registries Regulations tabled in
  Cabinet and Parliament in July 2008. At that
  point, we will be ready to implement the CLaRA.
  Simultaneously with the tabling of the
  Regulations under the CLaRA and Deeds Registries
  Regulations, we will request the President of the
  Republic of South Africa in terms of section 47
  of the CLaRA to bring the CLaRA into operation by
  proclamation in the Gazette.

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I. INTRODUCTION continued

• You may be aware that Government is faced with a
  legal challenge by the Legal Resources Centre and
  four communities. The CLaRA is being challenged
  on grounds of unconstitutionality. The Applicants
  have filed their answering affidavits in response
  to our opposing affidavit. The trial date is now
  set for the week of the 13th October 2008. The
  matter will be set down for four days.

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I. INTRODUCTION continued

• Despite this Court challenge, the development of
  the implementation systems and procedures is
  underway and it is expected that the roll out of
  the CLaRA in terms of its implementation will
  take place some time this year.

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II. INTRODUCTION ON REGULATIONS

• The Minister in terms of section 44(1) of the
  CLaRA is empowered to make regulations in the
  Schedule and to publish such Regulations for
  public comment prior to making and then tabling
  them in Parliament in terms of section 44(2) of
  the CLaRA.

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II. INTRODUCTION ON REGULATIONS continued.

• The purpose of coming up with such Regulations is
  to facilitate the implementation of the CLaRA.
• I am going provide you with an overview of the
  Regulations in question.
• In your Commissions, you are expected to go
  through the Regulations in detail Chapter by
  Chapter and section by section.

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III. INTRODUCTION ON REGULATIONS continued.

• As you go through the Regulations, Chapter by
  Chapter and section by section, make comments and
  recommendations that will enable us to improve
  the quality of the Regulations in question.

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INTRODUCTION ON REGULATIONS DEFINITIONS

• committee means a land administration committee
  as defined in section 1 of the Act and, for the
  purposes of the exercise of the powers and the
  performance of the duties of a land
  administration committee in terms of section
  21(2) of the CLaRA, this includes a recognized
  traditional council of a community if the
  community decides by means of an informed and
  democratic decision that those powers and duties
  are to be exercised by that council.

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III. INTRODUCTION ON REGULATIONS
DEFINITIONS

• designated officer means an officer in the
  Department designated by the Minister in terms of
  regulation 21(2) to assist a community, and
  excludes such an officer designated as a land
  rights enquirer in terms of regulation 14(1)(a).

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III. INTRODUCTION ON REGULATIONS
DEFINITIONS

• informed and democratic decision, in relation
  to a community, means an informed and democratic
  decision of the majority of the members of the
  community who are 18 years of age or older and
  are present or represented by a proxy at a
  community meeting of which adequate notice of not
  less than 21 days was given.

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III. INTRODUCTION ON REGULATIONS
DEFINITIONS

• land rights enquiry means a land rights enquiry
  instituted by the Minister in terms of section
  14(1) of the Act, and enquiry has a
  corresponding meaning

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III. INTRODUCTION ON REGULATIONS
DEFINITIONS

• Minister means the Minister responsible for
  Land Affairs, but in relation to a power or duty
  exercised or performed by the Ingonyama Land
  Rights Board for KwaZulu-Natal in terms of
  section 34 of the Act, means the latter Board.

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III. INTRODUCTION ON REGULATIONS
DEFINITIONS

• putative right means an unlawful land tenure
  right believed by the holder thereof, in good
  faith, to be lawfully held by a community or
  person
• A Permission to Occupy (PTO) is one example of
  such a putative right.

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II. INTRODUCTION ON REGULATIONS DEFINITIONS

• Registration Officer means an officer of the
  Department designated by the Director-General as
  a Registration Officer in terms of section
  19(4)(c) of the Act

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS

• The Chapters of the CLaRA Regulations reflect the
  sequence in which the CLaRA should have been
  structured.
• CHAPTER 1 provides for the establishment of the
  Land Rights Boards. This is the first issue in
  the implementation of the CLaRA that needs to be
  dealt with before anything else.
• Why is this so?

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• This is so because of the functions the Land
  Rights Boards perform in the scheme of things.
  The functions to be performed by the Land Rights
  Boards are as follows amongst other things
• The Land Rights Boards must
• advise the Minister and advise and assist a
  community generally and in particular with regard
  to matters concerning sustainable land ownership
  and use, the development of land and the
  provision of access to land on an equitable basis

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• liaise with all spheres of government, civil
  organisations and other institutions
• monitor compliance with the Constitution and
• exercise any other power and perform any other
  duty in terms of the CLaRA or assigned to such
  Board by the Minister.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• It follows therefore that the Land Rights Boards
  must be in place before anything else.
• In this regard, regulation 2 stipulates the
  criteria which the Minister must consider in
  establishing a Land Rights Board.
• In terms of regulation 3, the Minister must
  determine the organs of state to represented on
  the Board and give notice of the establishment of
  the Board.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• The Director-General is tasked by regulation 4 to
  provide the Board with a secretariat and to make
  arrangements for the resources which will be
  required by the Board.
• Regulation 5 prescribes the manner in which a
  member of the Board will be appointed and the
  determination of the terms and conditions of such
  a member.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• Regulation 6 provides for a code of conduct for
  the members of the Land Rights Board.
• A member of the Board must perform her or his
  duties which are of public interest in accordance
  with the CLaRA, these regulations including the
  code of conduct in Annexure B, as contemplated by
  section 28(1)(d) of the CLaRA,

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• A member of the Board must take implement the
  instructions of the Minister from time to time,
  failing which she or he may be removed from
  office in terms of section 27(2)(c) of the CLaRA
  after a fair administrative process has been
  followed.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• Regulations 7 and 8 deal respectively with the
  disclosure by members of interests which they may
  have in any matter before the Board and with the
  meetings of the Board.
• Regulation 9 unpacks the procedures for holding
  meetings, the quorum for meetings and voting.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• Regulation 10(2) unpacks the duties to be
  performed by the Board.
• Regular reports on the activities of a Board must
  be submitted to the Minister in terms of
  regulation 11.
• Regulation 12 sets out the powers of the Boards
  entry on communal land, inspection of communal
  land and convening meetings.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• CHAPTER 2 provides for the conduct of the land
  rights enquiry as mandated by Chapter 5 of the
  CLaRA.
• In our definition section of this presentation,
  we noted that a land rights enquiry means a
  land rights enquiry instituted by the Minister in
  terms of section 14(1) of the Act, and enquiry
  has a corresponding meaning.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• In terms of the long title to the CLaRA, a land
  rights enquiry serves to determine the
  transition from old order rights to new order
  rights. It provides for a situational anaysis of
  the environment within which the CLaRA is to be
  implemented. On the basis of this, the Minister
  will make determinations contemplated in the
  CLaRA.
• In a nutshell, Chapter 2 of the Regulations
  provides for how the land rights enquiry is going
  to happen and the procedures or steps to be
  followed.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• To this end, Regulation 13 provides that a land
  rights enquiry must be preceded by an application
  substantially in the form of Form 3 in Annexure A
  to the Regulations.
• The process for appointing a land rights enquirer
  and the qualities, skills and knowledge required
  from a land rights enquirer is set out in
  regulation 14.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• The form of the notice of a land rights enquiry,
  the manner in which it must be published and the
  contents thereof is prescribed by regulation 16.
• Regulations 17 and 18 deal with the powers and
  duties of a land rights enquirer.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• Regulation 19 provides that notice substantially
  in the form of Form 7 in the Annexure to the
  Regulations, must be given that a land rights
  enquiry report will be available for inspection
  prior to the submission of the report to the
  Director-General and the Minister.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• The form of the land rights determination is
  prescribed by regulation 20.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• CHAPTER 3 provides for the content, making and
  registration of community rules in accordance
  with the relevant provisions of the CLaRA.
• The making of community rules will flow from the
  land rights enquiry process.
• This is why the said CHAPTER comes after CHAPTER
  2.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• Regulation 21 entitles a community to apply to
  the Minister for assistance in drafting its
  community rules and getting such rules adopted
  and registered.
• Regulation 22 outlines the procedures for making
  and adoption of community rules.
• The registration and content of community rules
  are respectively dealt with in regulations 23 and
  24.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• If a community fails to make, adopt and have
  registered its community rules within a
  reasonable time, the Minister may, in accordance
  with regulation 25, declare the standard rules in
  Annexure E to the Regulations to be the rules of
  the community.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• CHAPTER 4 deals with the issue of land
  administration committees that will manage and
  administer communal land on behalf of the
  community as the owner of the said land.
• The establishment of land administration
  committees is an output of the land rights
  enquiry process in CHAPTER 2 as well as an output
  of CHAPTER 3 dealing with the content, making
  and registration of community rules.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• The community rules will provide the framework
  for the land administration committees or the
  traditional councils acting as land
  administration committees including the election
  of members amongst other things.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• This is the reason why this chapter comes after
  CHAPTER 3.
• To this end, Regulation 26 stipulates the
  circumstances under which a recognized
  traditional council will be entitled to perform
  the functions of a land administration committee.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• The composition of a land administration
  committee and disqualification from committee
  membership are respectively provided for in
  regulations 27 and 28.
• Regulations 29, 30 and 31 regulate the elections
  of the members of a land administration
  committee..

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• A committee is elected for the term of office
  prescribed by the applicable community rules, but
  for no longer than a period of 5 years.
• Regulation 33 deals with the powers and duties of
  a land administration committee.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• Land administration committee meetings and the
  accounting and related records of a land
  administration committee are respectively
  regulated by regulations 34 and 35

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• CHAPTER 5 contains the general provisions.
• In terms of Chapter 5, these regulations are
  called the Communal Land Rights Regulations.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• Various forms necessary for the implementation of
  the CLaRA have been prescribed in Annexure A.
• The Codes of Conduct for members of a Land Rights
  Board (regulation 6) and for land rights
  enquirers (regulation 15) appear respectively in
  Annexures B and C.

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IV. AN OVERVIEW OF THE CLaRA REGULATIONS conti..

• Matters which must be addressed in community
  rules for the purpose of assisting a community
  are set out in Annexure D (see also regulation
  24(1)(c)).
• The standard community rules applicable in the
  event where a community fails to make, adopt and
  have its community rules registered are contained
  in Annexure E.