Issued by: Ministry of Land Affairs
FIRST REPORT OF THE COMMISSION OF INQUIRY INTO ALLEGED IRREGULARITIES OF MALPRACTICES REGARDING THE ALLOCATION, LEASING, ALIENATION AND TRANSFER OF CERTAIN STATE LAND
The Commission of Inquiry into alleged irregularities or malpractices regarding the allocation, leasing alienation and transfer of certain state land was appointed under Presidential Act No 276 of 28 June 1995. Mr GM Budlender, the National Director of the Legal Resources Centre, was appointed as the Chairperson and the only member of this Commission, which has the following terms of reference:
"to investigate alleged irregularities or malpractices regarding the allocation, leasing, alienation and transfer of certain state land during the period 1 January 1992 to 1 January 1995, and the extent to which these actions complied with applicable prescribed rules, regulations and instructions".
In 1986 the State acquired certain farms in the districts of Harrismith and Bethlehem in order to incorporate the land concerned into the former Self-governing Territory of QwaQwa. Not all of this land was used for this purpose, and in 1993 steps were taken to sell the land which had not been incorporated.
The purpose of this first report was to establish whether there were any irregularities in these processes of sale (or offers to sell), and in particular whether relevant regulations, prescribed rules and instructions were complied with.
The Commission held two days of public hearings in Harrismith on these matters, and also received evidence from officials of the Departments of Public Works and Land Affairs. Various files of these departments were also examined.
The Commission concludes that during late 1993 and in 1994 there was a consistent pattern of irregularities in the Harrismith and Bethlehem districts regarding the proposed disposal of state land to the former owners of that land.
In this period, officials of the Department of Public Works initiated or proceeded with transactions which were contrary to, inter alia:
(i) recommendations made by the former Commission on Land Allocation; (ii) decisions made by Ministers of State as to how the land should be disposed of; (iii) the standing procedures of the Department of Public Works; and (iv) which were contrary to the moratorium on the alienation of State land imposed by Minister J Radebe on 1 July 1994.
The Commission further finds that the change of government in April 1994 played a significant role in the process of alienation of this State land. There is direct evidence that valuations were undertaken as a matter of urgency in December 1993 and January 1994, primarily because of an anticipated change of government.
It was not possible for the Commission to make any finding as to who in the Department of Public Works was responsible for the irregularities. However, it stated that all the officials concerned were aware of the relevant instructions, and all must bear some part of the responsibility.
Furthermore, the Commission found that the disposal of the land in question is a matter for a policy decision based on the policies of the present government. Previous owners to the land do not have any preferential claim, as they were fully and fairly compensated in 1986. Any undertaking which may have been given at that time was of a very loose and informal nature, had no apparent legal basis and does not legally or morally bind the democratic government.
ubject to what is said below, the Commission recommends that the State should not proceed out of hand with the sale of this land to the previous owners. It recommends that if any of the prospective buyers contend that they have a binding contract of sale, all papers relevant to those matters should be referred to the State Attorney for advice.
The attention of the State Attorney should be drawn to the fact that while the officials concerned appear to have had authority to enter into these contracts, their actions in all these particular cases were contrary to express instructions which had been given. If the State Attorney however advises that binding contracts have been entered into, the State should give effect to those contracts.
If the absence of a binding contract, the Commission recommends that each case should be looked at on its merits and dealt with in the following manner:
(a) If it is decided that the land should be sold to commercial farmers, it should be sold on the open market, which should also pre-empt any disputes regarding the true market value of the land. (b) If it is decided that the land should be made available to communities needing land or to beginner farmers, different considerations may apply which require a decision on the manner in which the state should assist such persons.
This report was submitted to the President for his consideration, and will now be tabled in Parliament. Copies of the report may be obtained from the Government Printer in Cape Town. Further information is available from Mr Fred Keyser at the Commission at (012) 328-6065 or (012) 312-8911.
ISSUED BY THE MINISTRY OF LAND AFFAIRS, 27 MARCH 1996