TERMS OF REFERECE FOR THE HIGH LEVEL PANEL ON THE ASSESSMENT OF KEY LEGISLATION AND THE ACCELLERATION OF FUNDAMENTAL CHANGE

The Speakers’ Forum, comprising the Speaker and Deputy Speaker of the National Assembly, the Chairperson and the Deputy Chairperson of the National Council of Provinces, and the Speakers and the Deputy Speakers of the nine provincial legislatures, created the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (HLP) to assess this legislative output. This follows from a determination made by the Fourth Democratic Parliament, in its Legacy Report, that the assessment of the impact of legislation is a key priority to be undertaken by the Fifth Democratic Parliament. After a process of multiparty consultation, both Houses of Parliament adopted the Strategic Plan for the Fifth Democratic Parliament (2014 –2019) in February 2015. This Strategic Plan identified a review of the impact of legislation as being of paramount importance to improve the governance practices of Parliament.

In December 2015, the Speakers’ Forum established the independent High Level Panel of eminent South Africans to assess the content and implementation of legislation passed since 1994 in relation to its effectiveness, and possible unintended consequences. The panel’s mandate is to review legislation, assess implementation, identify gaps and propose action steps with a view to identifying laws that require strengthening, amending or change. The Panel is chaired by Mr Kgalema Motlanthe, former President of the Republic of South Africa. The Panel’s work has been divided into three main thematic areas: (i) poverty, unemployment and the equitable distribution of wealth, (ii) land reform: restitution, redistribution and security of tenure and (iii) social cohesion and nation-building.

The mandate of the High Level Panel

• Assume overall responsibility for the assessment of key legislation and the
• acceleration of fundamental change.
• Assess the impact of existing legislation and identify legislative gaps.
• Assess the possible unintended consequences, gaps and unanticipated
• problems in post-apartheid legislation, as well as how effectively laws have been implemented.
• Propose appropriate remedial measures to Parliament, including amendment, repeal or additional legislation.
• Provide guidance on the selection of external experts/organisations to be commissioned.
• Conduct research and analysis together with commissioned research experts.
• Conduct public hearings and round tables.
• Produce final report on the findings together with the research experts.

The Panel organised its work into three working groups:
The triple challenge of poverty, unemployment and inequality. The creation and equitable distribution of wealth
This Working Group was tasked with producing a report on the following focus areas:

• Growth, poverty and inequality
  • Wage inequality
    
  • Wealth distribution & inequality
    
  • Labour regulatory environment
    
  • Unemployment
    
  • Poverty and access to basic services
• Unequal access to quality health care
  
• Quality education
  
• Spatial inequality
  
• Skills development

Land reform, restitution and security of tenure

This Working Group was tasked with producing a report on the following focus areas:
Land tenure reform: in communal areas, on privately owned farms (the Extension of Security of Tenure Act of 1997), in areas with a recent history of labour tenancy (the Land Reform [Labour Tenants] Act of 1996), in the former ‘coloured’ rural areas (the Transformation of Certain Rural Areas Act of 1998), and in urban and peri-urban areas (the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998, and other relevant legislation).

In relation to communal tenure, the review will include the Ingonyama Trust Act of 1994, the Interim Protection of Informal Land Rights Act of 1996, and the Communal Land Rights Act of 2004.

In relation to communal areas in particular, the review will include the links between tenure reform legislation and related legislation and policy such as the Traditional Leadership and Governance Framework Act of 2003 and its provincial equivalents, as well as mining law, and in particular the Mineral and Petroleum Resources Development Act of 2002, as amended.

Land restitution, including the Restitution of Land Rights Act of 1994, the Restitution of Land Rights Amendment Act of 2014, and the Communal Property Associations Act of 1996.

Land redistribution, including the Provision of Land and Assistance Act of 1993, as amended in 2008, the Subdivision of Agricultural Land Act of 1970, the Expropriation Bill of 2016 and proposed laws and policies regulating landownership and farm size, including the Preservation and Development of Agricultural Landholding Bill and Regulation of Land Holdings Policy Framework.

Also to be reviewed are relevant policies and programmes such as the State Land Lease and Disposal Policy of 2013, the Recapitalisation and Development Programme and their operations and beneficiary targeting. Post-settlement support and co-ordination among government departments (e.g. between the Department of Rural Development and Land Reform and the Department of Agriculture, Forestry and Fisheries) will also be considered.

Agrarian reform and rural development.Debates concerning land use and the failure of some farming activities on restitution and redistribution land have informed key changes in land policy. A review of the literature concerning factors that inhibit the success of agriculture in South Africa, and constraints and opportunities for new farmers, will be undertaken, with particular reference to their implications for land reform policy and practice. In the absence of specific legislation to guide rural development, the review will address the Comprehensive Rural Development Programme to assess its contributions towards enabling the achievement of the land reform and related legislation referred to above.

The social, economic and political significance of the land question. This work will provide a high-level overview of the wider significance of the unresolved land question in South African society, in historical perspective. It will assess the broader implications of slow progress in land reform due to constraining laws and policies, and include a key focus on land and citizenship, belonging, and meaning, but also material aspects such as employment and livelihoods.

The legacy of spatial inequality. Studies show that deep poverty remains
concentrated in the former homelands:

• Have law and policy entrenched the legacy of spatial inequality, and its ongoing impact on the lives of rural people? Laws to consider include the Traditional Leadership and Governance Framework Act of 2003, the Traditional Courts Bill and the Communal Land Rights Act of 2004 (subsequently struck down by the Constitutional Court in 2010).
• What has the impact of such laws been in relation to setting former homeland areas apart from the rest of South Africa in relation to segregated property regimes and legal systems?

What are the social, economic, political, and institutional effects of continued spatial segregation and inequality?
Social cohesion and nation-building

This Working Group will conduct its investigation to get answers to the following:

‘After 22 years of democracy, despite the creation of a conducive policy and legislative environment, South Africa continues to be confronted with the challenges of social cohesion and nation-building.’
The Working Group was tasked with producing a report on the following focus areas:
Previous surveys and studies related to the perceptions of South Africans regarding issues that promote or impede the fostering of social cohesion and nation-building.

Laws, policies and regulations that inhibit social cohesion and nation-building. The aim is to identify whether legislative tools are useful in promoting social cohesion and nation-building, or whether they have been rendered toothless. In particular, the (i) presence of legislative gaps and (ii) remedial actions emanating
from the legislative sector should be explored.

The main facets that need to be interrogated with regard to social cohesion and nation-building include:

• Human rights and equality
• Discrimination (racism, tribalism, xenophobia and sexism)
• Social and economic exclusion
• Redress and transformation
• Community co-operation or the lack thereof
• Crime, safety and security (the privatisation of security to benefit and protect those of higher income)
• Growing poverty, economic inequality and unemployment
• The resurgence of racism
• The impact of traditional leaders on social cohesion
• Perceptions of corruption, basic service delivery and poor leadership
• Levels of trust between citizens and institutions
• Social solidarity and inclusion or the lack thereof
• Active and participatory citizenship
• The impact of cultural or linguistic differences
• The politics of economic livelihoods and the competition for resources

The Panel decided to include a stand-alone chapter on spatial inequality, which has emerged as a cross-cutting theme across the three workstreams. In addition to what is listed above, in April 2017, the Speakers’ Forum requested that the Panel’s mandate be expanded to include a proposed implementation plan of its recommendations over the short, medium and long term, as well as to include a reflection of the impact of legislation from a gender perspective.

The Panel’s remit is quite wide, and the mandate is not to review all pieces of legislation passed since 1994. The Panel, taking guidance from its mandate by the Speakers’ Forum, and through deliberation and analysis, focused on the most important policies and laws.