KZN land tenure is injury and insult

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WHEN King Goodwill Zwelithini announced recently that title deeds would be issued to households in rural KwaZulu-Natal, he omitted to say how this would fit in with the long-term lease agreements being issued by the Ingonyama Trust Board, of which he is the sole trustee.

The trust presents the long-term residential lease agreements as the best land-tenure system for rural citizens in the province.

However, the lease agreements, which are issued for a standard 40 years and subject to a 10% annual increase, essentially convert land ownership to tenancy. Over the full 40-year term, a residential lease costing an initial R3,000 a year would cost the tenant R1,466,758.73. This is for undeveloped land without even basic municipal services.

Not only are these lease agreements a systematic deprivation of land rights, they are an unnecessary insult hurled at people who mostly have little to no education, are unemployed and are poor.

To turn the insult into an injury, the lease agreement states that “in the event of the lessee failing to pay any rental payable in terms of this lease on due date without deduction or demand, and failing to remedy such default within seven days of the receipt of written demand made therefore by or on behalf of the lessor, then the lessor may, on 24 hours’ written notice to the lessee declare this lease to be cancelled and it may thereupon retake possession of the premises”.

This system reinforces and reproduces economic inequalities and social discontent among the most vulnerable. It makes land rights that were systematically undermined during apartheid less, rather than more, secure.

Asked how the proposed titlehold would affect the huge revenue received by the trust from residential leases, the trust’s chairman, Jerome Ngwenya, told the Daily News “the land where there are long-term leases … would remain untouched”.

In effect, the king and the trust envision a rural KwaZulu-Natal in which it is possible for two neighbours to live under two separate tenure systems. Both with historical ownership rights, but one a tenant and the other an owner.

The essence of the problem is that giving title deeds — or even lease agreements — only to small household plots, deprives them of their customary rights to far larger areas of land.

The precolonial notion of land tenure was structured around embedded, often overlapping, social relations characterised by various forms of household, community and kinship networks.

People’s land rights in this context were communal and inclusive, meaning that individual household rights intersected with communal grazing, hunting, fishing as well as mixed seasonal cropping rights.

Access to land was guaranteed through membership in a social unit, acquired either through birth, affiliation or allegiance.

Our current deeds system, however, is drawn from the colonial system whose rationale for appropriation was that customary land tenure systems were primitive and did not constitute secure property rights.

Both African land and people were thus “deserving” of the “civilising” colonial conceptions of law and social order. These assumptions resulted in a distorted codification of customary practices, administered through autocratic rule by chiefs.

In KwaZulu-Natal under Theophilus Shepstone, the first model of the bantustans — known as “reserves” — was created in the mid-1800s. The system either recognised and confirmed the authority of chiefs loyal to the colonial establishment, or appointed trusted African assistants to rule as chiefs over groups that were previously relatively independent and unaffiliated.

In this context, land ownership and governance systems emerged as the two main forms through which customary practices were distorted and replaced with western notions of feudal rule and common law property rights.

The distortion of governance systems was further entrenched under apartheid rule through the creation of tribal borders by the Bantu Authorities Act of 1951.

In terms of this act, many individuals and groups were forced to live within tribal boundaries, where they became structural minorities and subjects of traditional leaders who were imposed by colonial authorities.

In KwaZulu-Natal, many such groups have been at the forefront of post-apartheid land struggles to reclaim their independence from the paramount chieftancy of the Zulu kingship.

For them and many others, the post-apartheid government has not attended adequately to the historical legacy of dispossession. In 2012, the Ingonyama Trust brought a case against the amaHlubi, in which it argued that it should have the power to allocate and collect revenue for all land within its jurisdiction.

The court found that the trust did not have the power to allocate land where officially recognised tribal units existed, but it did have the power outside those Bantu Authority boundaries.

This undermines the claims of various groups who were not recognised during apartheid, or groups who argue that their history shows they had separate identities before, and separate from, the “Zulu nation”.

A critical question to be asked of both the lease and the titlehold system is how either would secure the land rights of families and individuals without, at the same time, depriving them of access to common property.

There are also significant concerns about the cost of surveying and registering land, which is likely to exceed the value of the land.

Without adequate resources, the indirect consequence may be that the project benefits only a few with political, economic, social or cultural power before the money runs out.

While it is tempting to accept the king’s announcement as a truly sincere gesture of royal leadership, the complexities of historical land deprivation and the practices of the trust compel deep public interrogation.

Patriotic citizenship requires us all to critically probe the pronouncements of our public leaders and work with them in imagining an SA free from colonial and apartheid legacies.

This article first appeared on Business Day – 24 June 2016 

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