A day before the much anticipated report of former President Kgalema Motlanthe’s High Level Panel recommended to Parliament that it should be disbanded, the Zulu King’s Ingonyama Trust Board urged KwaZulu-Natal residents to swop their land rights for leases.
In reassessing the laws that affect rural citizens, especially those residing in KwaZulu-Natal, where 2.8 million hectares of land are vested in the Ingonyama Trust, with the king as the trustee and the Ingonyama Trust Board being the administer of the land affairs, the panel criticized the ITB’s record and proposed that it should be disbanded.
“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.
“There is also a pressing need to create mechanisms to investigate and resolve complaints by people whose rights have been infringed by the Trust, or whose rights may be infringed in the future,” The Panel said in the report handed to the speakers of South Africa’s national and provincial parliaments on 21 November, 2017.
The report was in contrast to twin advertisements in The Witness and other newspapers on 20 November 2017 suggesting that the Permission-To-Occupy (PTO) certificates that rural residents have used to confirm their land rights would no longer be enough.
“All people, companies and other entities holding land rights on Ingonyama Trust land in terms of the Permission To Occupy (PTO) are hereby invited to approach the Ingonyama Trust Board (ITB) with a view of upgrading these PTOs into long-term leases in line with Ingonyama Trust Board tenure policy,” the first advert said.
It went on to remind residents that PTOs required historic compliance with conditions including levies payable to the ITB and warned: “If they have not complied, they must ensure that they so comply simultaneously with the upgrade application.”
The second advertisement urged residents living on land that the ITB claims to check the status of their PTO and other documents and warned that updating their documentation would carry “incidental costs” related to the survey of the land.
The ITB cited unspecified legal challenges as the reason for its call to residents to check their ownership status. “This process has been prompted by various legal developments as we(ll) as various disputes among the residents relating to land ownership and boundaries.”
There are many issues with the purpose and wording of the adverts. The first being the manner in which PTO holders are implicitly forced to forfeit ownership of their land. The advert tells residents that people need a lease agreement as proof of residence for purchasing cellphones, opening a bank account or even to vote. It suggests that they have no alternative if they want to engage proactively as South African citizens.
The second issue is that ITB/IT is effectively taking ownership away from people and forcing them to pay for land that they already own. This completely abrogates their property ownership rights and opens them up to potential dispossession if they fail to make lease payments.
Residential lease agreements show that continued tenure depends on compliance with a number of conditions, including regular payment of rentals.
This is the most fundamental way in which the Ingonyama Trust is threatening the tenure rights of people occupying or using Ingonyama Trust land: People living on or utilising Ingonyama Trust land have been granted leases that overtake and appear to invalidate their informal or customary rights to the land. This is problematic as the rights obtained through a lease agreement are generally weaker than the informal or customary land rights held by people.
Though the leases are presented as an upgrade of existing rights, we know from its reports to Parliament that the ITB’s rental revenue rocketed from a few thousand rand before the residential leases were implemented to R96.1 million in the 2015/2016 financial year. There is no evidence in the reports that any substantial share of this income has benefited ordinary residents.
Historically, PTOs were an important form of tenure for people residing on SA Development Trust land. The conversion of PTOs into leases is generally a weaker type of right because residents will be paying rental on land that they effectively own.
Lease agreements put PTO holders in vulnerable positions regarding rental and rental escalation. The ITB lease agreements provide for a 40-year term and a 10% annual increase in rental. Land that costs R1000 a year to rent now will cost R2593 in 2028.
The leases also compel the lessee to fence the property at their own expense within six months, record all improvements and submit these to the ITB and obtain permission in writing to build. They allow the ITB to cancel the lease agreement for failure to pay rent. All buildings and structures that have been built on the land will belong to the Ingonyama Trust when the lessee vacates the premises.
Vulnerable residents in the remote hills of KwaZulu-Natal need urgent assistance to understand and, if they so choose, to challenge the ITB’s campaign to turn their land rights into a paid-for privilege they will enjoy only at the pleasure of the Ingonyama Trust.