Owners made tenants by the Ingonyama Trust

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King Goodwill Zwelithini’s Ingonyama Trust returns just 11 to 16 cents of every R100 it collects in rentals to his luckless tenants for the development and administration of the land they once called their own. He keeps the rest for himself.

This week, the Council for the Advancement of the South African Constitution, on behalf of rural women and men tired of paying for what they already own, asked the Pietermaritzburg High Court to restore their rights to the land they have held for generations and to return the rentals he has unlawfully collected over the past 10 years.

The case is in response to unlawful conduct by the Ingonyama Trust dating back at least to April 2007 of inducing people living on land that it administers to conclude leases with it. These leases give extraordinary powers to the Trust and Traditional Councils over the existence, content and nature of rights people are able to hold over their own ancestral land.

People living on land administered by the Trust typically hold rights to their land in two ways: either through Permission to Occupy certificates (PTOs) or in terms of customary and other group tenure systems. PTOs were issued by the apartheid government to record the permission given to Black people living on unsurveyed rural land to occupy the land exclusively and in perpetuity, and imposed no obligation to pay rent.

In terms of the Upgrading of Land Tenure Rights Act (ULTRA), these PTOs can be upgraded into title deeds. Rights to land in terms of customary tenure systems are recognised and protected in terms of the Constitution and the Interim Protection of Informal Land Rights Act (IPILRA). The Constitutional Court has already ruled that rights held in terms of customary law are the equivalent of common law rights to ownership.

Section 25(6) of the Constitution promises people whose occupation of land is legally insecure because of past racial discrimination tenure that is legally secure or comparable redress.  People living on Ingonyama Trust land fall into this category. They own their land in practice, but often do not have the documents to prove it.

Instead of recognising and strengthening the rights of vulnerable people over their land as required by section 25(6) these leases downgrade ownership rights to those of a tenant and make them subject to the Trust as landlord. The tenant is subject to onerous obligations and restrictions on the use of their land. A person is only able to sign a 40-year lease over their land; they need the consent of both the Trust and Traditional Council; and they are required to pay rent that escalates at 10% a year. The tenant must ask permission from the Trust before building on or upgrading the land in any way. Should they default on the rent then the land as well as any upgrades and buildings built over past generations may be taken by the Trust with no payment of compensation.

People who were de facto owners of land in terms of statute or customary law are made tenants at the mercy of the Ingonyama Trust. The Trust justifies its conduct by saying that it is filling a gap in the law by providing people with a record of the rights they hold to land.

 

This unlawful and unconstitutional conduct on the part of the Trust has not been happening under the radar. It has been happening in full view of both the Parliamentary Portfolio Committee of Rural Development and Land Reform and the Department. In annual reports as far back as 2006/07 and in presentations to the Portfolio Committee, the Trust details its unilateral decision to stop issuing PTOs and roll-out a “PTO conversion project”. The legal basis for this is unclear, since in terms of applicable laws the Minister of Rural Development is the one empowered to regulate, issue, and cancel PTOs – this power was delegated to the provincial MEC for Traditional Affairs and not to the Trust.

The actual motive for the conversion of PTO and customary rights to leases is the collection of revenue for the Trust. The Trust’s chairperson has long bemoaned the budget given to it by the Department as inadequate to enable it to carry out its functions. He has also decried the income the Trust receives from PTOs as being nominal at best. He has boasted in annual reports that the roll out of the leases has increased the Trust’s revenue tenfold.

In its 2018 financial report to the Portfolio Committee, the Trust reported that 95.85% of this revenue is used for “administration”. That is R95.85 of every R100. Only 0.16% and 0.11% went to rural development and land management respectively. It is not using the rental money to improve the lives of the poor, but rather to expand itself.

The report of the High Level Panel headed by former President Kgalema Motlanthe highlighted the Trust’s violation of its obligations in terms of laws including the Constitution, the Ingonyama Trust Act and IPILRA. It made it clear that converting PTO and customary rights to leases is unlawful, amounts to dispossession and is unconstitutional. The report also spoke with concern about the fact that this money was seemingly not being used for the benefit of communities and rights holders.

Instead of thoroughly investigating the damning finding made by the HLP, Parliament has largely ignored the report and its recommendations. It continues its decades long practice of not actually holding the Trust to account when it is clearly violating the rights of the people whose rights, well-being and welfare it is meant to protect. All it does is to admonish the Trust to do better next year.

President Cyril Ramaphosa has gone the same way. Instead of taking the Panel’s findings seriously and drumming up political support for appropriate steps to remedy the systemic violation of rights, he chose to appease the King, who had made numerous veiled threats of secession and violence in response to the HLP findings. He assured him that the government had no intention of taking the land of the Ingonyama Trust – no mention was made of the King taking the land of his ‘subjects’

The current litigation is necessary only because neither Parliament nor the Presidency have the political will to protect and vindicate the rights of poor and vulnerable black South Africans living on land administered by the Ingonyama Trust.

This article first appeared in The Witness on 13 November 2018.

opinion-grey Zenande Booi is a researcher with the Land and Accountability Research Centre in the Department of Public Law at UCT
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