Kgalema Motlanthe’s High Level Panel calls for repeal of Ingonyama Trust Act

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The Ingonyama Trust headed by Zulu King Goodwill Zwelithini kaBhekuzulu should be dissolved and the law that established it on the eve of South Africa’s liberation in 1994 should be repealed says an independent High Level Panel headed by former president Kgalema Motlanthe.

The report, commissioned by the Speakers of South Africa’s national and provincial legislatures, was released on 21 November. It is based on expert testimony at a series of focused roundtable discussions and the testimony of close to 10 000 people who attended public hearings across the country.

Drafted by Motlanthe and the 13 eminent South Africans on his panel, the report examines the content, implementation and transformative effect of more than 1000 laws adopted since 1994. In many respects, the Panel’s conclusions are damning.

(High Level Panel reports and resources are available here)

The Panel’s assessment of the Ingonyama Trust Act of 1994 is that it should be repealed or, at the very least, substantially amended. The Ingonyama Trust, which the Panel found to be abrogating the land rights of those it exists to protect, should be dissolved, it said.

(Read Ingonyama Factsheet here)

Extract on Ingonyama TrustITB advert:HLP on ITB

Just days after the report was released, the Ingonyama Trust ramped up its campaign to persuade rural citizens to surrender their informal land rights to the Trust and to accept 40-year leases that could be cancelled for non-payment or other violations of the contract.

In a series of newspaper advertisements, the Trust “invited” land occupiers to apply for leases at their own expense without explaining that they would surrender both their strong informal rights and the opportunity many might have to upgrade those rights of occupation into full ownership.

Witness advert:ITB advert

“In terms of this Act, the Ingonyama Trust was established to hold all the land that was owned by or belonged to the KwaZulu Government in the name of the Ingonyama (King) as sole Trustee for the benefit, material welfare and social well-being of the members of the tribes and communities living on the land,” the Panel notes.

“The Trust is meant to exist and function subject to existing land rights under customary law and not act in ways that undermine and abrogate such customary and other underlying land rights. However, the Trust in some instances, regards itself as the outright owner of land and therefore not subject to any duty to consult or to obtain community consent in dealing with the land.”

The Panel reports that the Trust has decided to do away with the Permission to Occupy (PTO) certificates that have long confirmed the land rights of rural citizens and is encouraging occupiers to surrender their PTO rights in return for leases. These leases handed the Trust a new income stream of over R96-million in 2015 and 2016.

“The standard ITB lease agreement provides for a 40-year term, and a 10% annual increase on rental. It compels the ‘lessee’ to fence the property within six months. The lessee must obtain written permission to build and record all improvements, and submit this to the ITB. The ITB is entitled 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.

“There is little evidence that the revenue generated by leases is used for the benefit of communities or their material well-being. The Trust has built up very substantial reserves,” the Panel reports.

The report urges the repeal of the Ingonyama Trust Act, but says that if this is not possible, the Act should be substantially amended.

“If the Act is either amended or repealed, the repealing or amending Act should state explicitly that the holders of rights to the land (users and occupiers of the land) are deemed to be the owners of the land for the purposes of any revenue from the land or any compensation for use of the land, which would otherwise flow to the registered owner.

“Any such revenue or compensation shall be paid to them and not to the Ingonyama, the Trust (if it continues to exist) or the state,” the Panel says.

“For example, where a mining company uses land in terms of a mining right granted in terms of the MPRDA, it is obliged to pay compensation for surface rights to the owner. Such compensation should be paid to the people who are deprived of the use of the land, and not to the state or the Ingonyama (the registered owner).”

The High Level Panel’s report has been referred to the Speakers Forum led by Baleka Mbete  and Thandi Modise.  It was also referred to chief whips and chairs of portfolio and select committees in Parliament.

It remains to be seen how Parliament will respond to the Panel’s recommendations.  An early test will be how it responds to the adverts issued by the Ingonyama Trust in respect of inviting people to convert their PTOs into lease agreements.

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