Dispossession is once again sweeping KwaZulu-Natal. As always in South Africa, it is the poorest of the poor who bear the brunt. As always they are black and mainly rural. The dispossessor this time is not the colonial or apartheid government. It is the Ingonyama Trust Board, acting in the name of King Goodwill Zwelithini.
The chairman of the trust, former judge Jerome Ngwenya, boasted to MPs at a recent portfolio committee meeting of the trust’s progress in converting indigenous land rights into leasehold. He said 1140 had been converted in a year. In the same breath, he said that the trust has increased the amount it charges ordinary people to live on land they actually own ten-fold from R100 per year to R1000 a year.
Trusteeship of almost all the land in the former KwaZulu Bantustan was transferred to the Ingonyama Trust in the dying days of apartheid. Downgrading indigenous ownership to leasehold abrogates the land rights guaranteed by the Constitution. Section 25(6) provides that people whose land tenure is insecure because of past racial discrimination are entitled to legally secure tenure, or to comparable redress.
The ‘indigenous rights’ and Permission to Occupy Certificates (PTOs) that the trust targets for downgrading belong to the very families who bore the brunt of the Land Act of 1913 and the forced removals that followed. They, more than most, can prove the racial discrimination that systematically undermined the formal rights to land that their families nevertheless inherited over generations and continue to occupy. At least two laws explicitly protect such ‘informal rights’. In addition, the Ingonyama Act itself forbids the trust from infringing on existing rights and interests. By its recent actions the trust has laid itself wide open to legal challenge.
But chiefs are cancelling inherited land rights with apparently impunity.
“People are being abused in my area,” a woman from Ezibovini told a recent community workshop. “Recently three people were forced (by a chief) to demolish their homes and leave.”
The systematic dismantling of indigenous rights in favour of leasehold is just one aspect of the dispossession underway. Another is the bulldozing of ancestral graves and the threat of homes being destroyed by mining activities on Ingonyama land.
A woman from Mtutuba (whose name is being withheld to protect her) told the same workshop: “A mine has been allowed to be set up in an area where our fields used to be, where our graves used to be – 11 of them.
“The mine moved the graves to a different location. When we complained, they directed us to the chief. When we approached him, he said the land was his, not ours, and we had no right to dispute the mine’s actions,” she said.
Ngwenya has said that only traditional leaders or councils have the legal right to be informed or consulted about such deals. The majority, who stand to lose their houses, fields and graves through mining deals that the trust is negotiating behind their backs, don’t get a look in.
A similar pattern of marginalization and dispossession is underway in other provinces too. Kgosi Nyalala Pilane of the platinum-rich Bakgatla ba Kgafela community in North West has won a string of interdicts preventing community meetings planned to call him to account.
When community activists apply to court to demand an audit of their mining revenue and ‘tribal funds’, they are routinely told they don’t have the legal standing to do so. The community activists who bring such cases are hit with crippling orders to pay the legal fees of those they seek to challenge.
In the Bakgatla case an internal audit report showed that the traditional council used community funds to pay R49 million to a single attorney over a three-year period to help them dodge community attempts to hold them accountable. In the process David Pheto, an activist lawyer in the community, has lost his legal practice, his car and his family business because of cost orders against him.
The Constitutional Court expressed concern about the pattern of traditional councils interdicting community members in the Pilane vs Pilane case of 2013 – and struck down all the interdicts on the basis that they undermined freedom of expression, assembly and association, as well as the constitutional principle of accountability.
This precedent indicates that the Ingonyama Trust’s interpretation that it is accountable only to traditional leaders is likely to fail in the Constitutional Court.
It also explains why the Congress of Traditional Leaders of South Africa, with Kgosi Pilane as its deputy chair, is lobbying government to put the powers of traditional leaders beyond scrutiny. The Communal Land Tenure Policy unveiled in September proposes new legislation that would transfer title to most communal land to traditional councils headed by chiefs. The families who actually own most of this land would get ‘institutional use rights’, such as the leases being dished out by the Ingonyama Trust, but title to the fields, grazing land and forests would be transferred to traditional councils, who will have the sole power to enter into tourism and mining ventures ‘on behalf of the community’.
This plan to evade the duty to consult and obtain consent, falls foul of the Interim Protection of Informal Rights Act of 1996, which expressly protects not only occupation and use rights, but also ‘access rights’ to common property areas.
None of this makes sense unless seen in the broader context of the minerals that have been discovered in the former Bantustans – platinum in North West and Limpopo, coal in Mpumalanga and KwaZulu-Natal and titanium along the Wild Coast. The poorest South Africans live on some of the richest land, but for many this has proved to be a curse, rather than an opportunity.
The primary beneficiaries of South Africa’s current mining rush are the mining companies and their politically-connected ‘black economic empowerment partners’. The scale and spread of mining investments by senior politicians and their close associates is no secret. Negotiating mining deals directly with chiefs is simpler and cheaper than having to take account of the rights of the rural people who actually own the land being mined. Thus the Communal Tenure Policy includes ‘investment partners’ alongside traditional councils as decision makers in relation to communal land, at the same time as it dispossesses ordinary people.
The people, however, are having none of it.
Many people in Limpopo, Mpumalanga, North West and the Wild Coast have challenged unilateral and opaque mining deals between traditional leaders and mining companies. A few weeks ago the house of a traditional leader was burnt down in Limpopo after she authorized mining without consultation.
Many of the challenges show that the land at issue is not ‘tribal land’ but actually belongs to black descendants of groups who bought it before the 1913 Land Act. People also argue that customary law is inherently participatory. They challenge the version of autocratic chiefly power created under apartheid and now increasingly relied upon by both traditional leaders and government.
A recent example of this popular pushback was the defeat of the Traditional Courts Bill, which would have given traditional leaders far-reaching punitive powers including the ability to strip people of customary entitlements such as land rights. The Bill failed in the NCOP when the government could not muster the support of five provinces.
Perhaps it was to placate disappointed traditional leaders that President Jacob Zuma encouraged traditional leaders to take advantage of the 2014 Restitution of Land Rights Amendment Act. A flurry of announcements followed, including one by King Goodwill Zwelithini that the Ingonyama Trust would claim vast swathes of land on behalf of the ‘Zulu nation’. The announcement generated much alarm in KwaZulu-Natal and has focused renewed attention on the activities of the Ingonyama Trust.
The trajectory currently unfolding is a familiar one. A privileged elite is using its monopoly in parliament to enact laws that put its own mining interests ahead of the property rights of the poorest South Africans – this time under the mantel of ‘custom’ rather than race.
Greed, in the context of the minerals rush, seems to have blinded our political leaders to the legal and political obstacles that stand in the way of this double dispossession. These laws and policies will not pass constitutional muster. The defeat of the TCB demonstrates, too, that elected representatives may balk at enacting laws that undermine the basic citizenship and land rights of the poorest and most vulnerable South Africans, even in the face of party censure.
The dispossessors cannot get away with it this time around because we now have a constitution. Moreover the abuses of the Bantustan-era are within living memory, and rural people understand full well what they are up against and how to mobilise against it, as they did successfully only 25 years ago.
An edited version of this article first appeared in City Press on Sunday, 17 November.