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Zulu King Misuzulu Sinqobile kaZwelithini invited amakhosi to an imbizo last month to discuss “the serious threats of survival of the Ingonyama Trust amid continued efforts to take away land under control of amakhosi, who hold this land in trust on behalf of the Zulu people”.
The imbizo was held in Ulundi on May 23 where the King shared his grievances about being sidelined by the Ingonyama Trust board since he assumed the role of chairperson after releasing Inkosi Thanduyise Mzimela from this position, which had previously been occupied by Jerome Ngwenya.
He further said that he would take the government to the International Court of Justice (ICJ), a statement that was later clarified by AmaZulu prime minister Thulasizwe Buthelezi who explained that the King stated his intentions to go to the ICJ would be a last resort should the government not hear his pleas.
Then minister of the Department of Agriculture, Land Reform and Rural Development, Thoko Didiza was surprised in a Newzroom interview that she was not extended an invitation to the imbizo as the subject matter related to issues her department had been working on.
Particularly around the idea that government was intending to strip amakhosi of their powers to sign Permission To Occupy (PTO) certificates.
The PTO right was an officially recognised record of a statutory form of tenure on unsurveyed property under the Black Areas Land Regulations (Proclamation 188 of 1969).
Because it was a system established by the colonial administration to codify customary practice, a PTO has legal significance.
Customary practices should not be equated with PTOs. Customary practices are upheld by the Constitution and exist regardless of PTOs.
It is ironic that the decision to strip amakhosi of their ability to sign PTOs is placed on the department when in April 2007, the board had decided that PTOs should no longer be issued and that existing PTOs on Trust land should be converted to lease agreements for both business and residential purposes.
In addition, the Council for the Advancement of the South African Constitution (Casac) and Others vs Ingonyama Trust and Others judgment refers to the board’s 2011/2012 annual report in which they stated that they were eradicating PTOs because “PTOs are a ‘racially based form of land tenure’ that is weak in law.
“In order to curb the weakness in the system of indigenous tenure allocations, the board concluded that the system had to be upgraded to a system which supported the issues underpinning traditional practice, and that ‘the closest it could come to was the lease’.”
The board published notices on various platforms and hosted roadshows and workshop campaigns, where they encouraged rural citizens to convert their customary land right or PTO to a lease.
The consequence of this decision was that rural citizens would have to pay rental to remain entitled to live on their land.
The legal challenge to these leases that resulted in the Casac judgment came about because rural citizens based in parts of KwaZulu-Natal did not understand the requirement to convert their PTOs and customary land rights into lease agreements — an act that essentially weakened their existing rights.
Two institutional applicants, including the Rural Women’s Movement and several individual applicants, took their case to the Pietermaritzburg High Court and won by illustrating that these leases violated their Constitutional rights.
The court agreed with them and found that the lease conversion policy of the Ingonyama Trust was unlawful.
Most importantly, the judgment held several institutions accountable for failing to protect citizens living on Trust land.
The minister in particular was taken to task for breaching “her duty to respect, protect, promote and fulfil the constitutional right to property of the holders of Interim Protection of Informal Land Rights rights vested in respect of the Trust-held land”.
Judgment in the matter was handed down in June 2021 by the Pietermaritzburg High Court and upheld at the Supreme Court of Appeal in 2023. As part of the court’s order the minister is now obligated to report to the court on their plans to “implement an alternative system of recording customary and other informal rights to land of persons and communities residing in Trust-held land”.
Thus far the minister has submitted an implementation plan which is a long-term strategy for upgrading or converting PTO rights to a registrable record. The immediate goal of the implementation plan is to evaluate the PTO system in order to provide guidance for standardising procedures and preparing for conversion upon the completion of the new legal framework.
The plan was put on hold until the appeals against the judgment had been heard and finalised.
The implementation plan is an important step in addressing the issues around rural land administration and where authority and decision-making power should lie, as all of these impact the current state of customary and PTO land rights. The King’s concerns around PTO powers are addressed by the plan which should abide by the concrete steps provided in the CASAC judgment.
It is imperative that the land rights of rural citizens are protected by both customary and statutory law. Regardless of whether the power and authority to do that lies with the government or traditional structures, the rights of rural citizens residing on Trust administered land still need to be respected.
• Nokwanda Sihlali is a researcher at the Land and Accountability Research Centre at the University of Cape Town.
