The amakhosi of KwaZulu-Natal gathered this week to mobilise amabutho against former President Kgalema Mothlanthe’s recommendations in a High Level Panel Report that looks at the positive or negative impact of laws passed since 1994.
At stake is the Panel’s stinging criticism of the Ingonyama Trust’s management of communal land and the revenue that flows from its use, and the Panel’s recommendation based on this history:
“The Panel motivates for the repeal of the Ingonyama Trust Act to bring KwaZulu-Natal in line with national land policy, and to secure land tenure for the communities and residents concerned. If repeal is not immediately possible, substantial amendments must be made. They must secure the land rights of the people affected, and ensure that the land vests in a person or body with proper democratic accountability,” the Panel said.
Week after week Bayede newspaper runs full-page stories with photographs of Motlanthe. It portrays the Panel’s recommendation as an attempt to steal the land belonging to the Zulu nation and incites the Zulu people and House of Traditional Leaders to take up arms to defend what is theirs.
In Parliament, Inkatha leader Mangosuthu Buthelezi warned President Cyril Ramaphosa that he would be “playing with fire” if he sought to interfere with the Ingonyama Trust’s powers or status.
The belligerent tone of this escalating row diverts attention from the serious problems people are experiencing under the Ingonyama Trust.
Far from protecting the land of the Zulu nation, the Trust is turning it into private property and leasing it to the highest bidder. It is turning landowners into tenants, whose continued occupation of the land depends on them paying rent that goes up by 10% a year. If the rent is not paid, the land and all the buildings and improvements on it become the property of the Trust.
The Trust does not explain that many people with customary land rights also have Permission to Occupy certificates (PTOs) that are upgradeable to ownership.
In its 2015 annual report the Trust said that its income from PTOs had been below R10,000 in total, whereas its revenue from leases was now over R70 million.
The HLP report describes how land is leased to third parties, such as shopping malls and mining companies, without consulting or compensating the people whose customary land rights and livelihoods are destroyed in the process.
It recommends that revenue and compensation for loss of land must go to the people who lose their rights to occupy and use the land. At present, the Trust deposits all revenue it obtains from leases into the Ingonyama Trust Account, failing to plough it back into the rural areas from which it is generated.
Parliament has long asked how a Trust meant to benefit the Zulu nation can fail to distribute the revenue it raises. In other parts of South Africa, revenue from servitudes and leases on communal land goes directly to traditional councils.
The nub of the issue is: “Who owns the land?” The families who have occupied and inherited it over generations, traditional leaders, or the king? Customary systems are not based on the Western model of exclusive ownership. They allow for overlapping and relative rights with very strong rights vesting at family level. What the ITB has done is to assert that the King owns the land exclusively, and can rent it out for his own account.
The way in which the Ingonyama Trust Board (ITB) interprets its mandate has far reaching implications for traditional leaders as well as ordinary people. The 1994 Ingonyama Trust Act was intended to be an interim holding measure until the land could be transferred to the tribal authorities that made up KwaZulu. Twenty four years later the land remains vested in isilo, with most confusing this with the king owning the land outright.
When both Parliament and the High Level Panel asked about the practice of downgrading ownership to leasehold, former Judge Jerome Ngwenya, the Trust’s chairperson, denied that residential leases were issued to existing occupants of land. ‘No-one in their right mind would prefer a lease to ownership’, he said.
Yet in late November 2017, the Trust called in a series of advertisements for people to “upgrade” their PTO certificates into long-term lease agreements, saying: “(leases) are ordinarily required when one registers to vote, opens a bank account, buying a cell phone, or as proof to the employer that one does indeed reside in a rural area (for those who qualify for rural allowances)”.
In its attacks on Motlanthe and the Panel, the Trust has failed to engage with any of these serious problems. Instead its response is to call on amabutho to protect the land belonging to the Zulu nation. This is very similar to the way in which Inkatha used to threaten of violence during the late 1980s and early 1990s. Then as now, the real threat is not to people like Motlanthe, but that violence will be unleashed on the people who have dared to speak out in defense of their land rights.
The High Level Panel report is now before Parliament, but instead of allowing that process to unfold over time the Ingonyama Trust is trying to create a political crisis and so pre-empt a full and measured discussion of whether the Ingonyama Trust Act has, in practice, contributed to tenure security or undermined the basic rights of the poorest and most vulnerable South Africans.
It remains to be seen whether politicians who profess concern about poverty and inequality will listen to what rural citizens are saying. It is not white property rights that are in jeopardy in South Africa. It is the property rights of the rural poor that are routinely abrogated.
This article first appeared in the Natal Witness on 21 February 2018.