The Restitution of Land Rights Amendment Act has lapsed in Parliament – what this means for Makhasaneni and other communities

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Late last year the Ingonyama Trust intervened in a land restitution claim in Melmoth KwaZulu-Natal.  It argued that the land about to be restored to various community groups who had waited over 20 years, should not belong to them.  It should instead be transferred to the Ingonyama Trust, because the communities are subjects of King Goodwill Zwelithini who is the sole Trustee of the Ingonyama Trust.

The long delayed restitution claims submitted by the Makhasaneni and neighbouring communities of Entembeni and Mthonjaneni were finally approaching settlement. They involve 11,000 hectares of valuable land in Melmoth.  The current white owners of the land and government had finally agreed on the purchase price of the land, and it was about to be transferred to trusts established by the three claimant communities when the Ingonyama Trust intervened.  It sought an order in the Land Claims Court that the land must not be transferred to the claimant communities, but rather to the Ingonyama Trust.  The Ingonyama Trust said that it would cause ‘conflict, chaos and blood-letting’ if the Court allowed the communities to own the land outright.

In its court papers the Ingonyama Trust said that the land should not be given to the claimant communities because they are ‘subjects of the King’.  It argued that the land belonged to the King ‘on behalf of the Zulu nation’.

The Land Claims Court rejected the arguments of the Ingonyama Trust in late December 2018 and went so far as to impose a costs order on the Ingonyama Trust.  It rejected the Trust’s argument that the claimants were in favour of the Ingonyama Trust holding the land.  Not only did they oppose the Trust’s application in court. They had already established their own legal entities to hold the land and elected their own trustees.

Furthermore the Ingonyama Trust had never lodged a claim to the land, nor could it have qualified to do so as it was never dispossessed of the land in question.  The people who were dispossessed were the labour tenants who lived and worked on the claimed land, but were forcibly removed to Makhasaneni and surrounding areas when the South African Native Trust (SANT) bought the land from white farmers after 1936. The SANT played a key role in the establishment of Bantu Authorities and homeland consolidation during apartheid.

The Ingonyama Trust came into being during the dying days of apartheid in 1994.  A deal between the Inkatha Freedom Party and the National Party saw all the land in the former KwaZulu transferred to a Trust headed by King Goodwill Zwelithini. Yet the land in the other former homelands was vested in the national Minister of Land Affairs as trustee.  The Trust, in claiming the Melmoth land was seeking to expand its boundaries beyond land that was part of KwaZulu.

This is consistent with statements made by former President Jacob Zuma at the annual openings of the National House of Traditional Leaders in 2014, 2015 and 2016.  He encouraged traditional leaders to put in claims to vast swathes of restitution land.  He also encouraged such claims to be centralised to the Ingonyama in the case of KwaZulu-Natal lest different traditional leaders submit conflicting claims.

This encouragement could well be what emboldened the Ingonyama Trust to try to stop the land transfers to the Makhasaneni and neighbouring claimant communities. Unsurprisingly the Trust got short shrift from the Land Claims Court:  It had not claimed the land itself and it does not qualify in terms of the central provision of the Restitution Act – that only those dispossessed of land rights after 1913 on racial grounds qualify for restitution.

It is because the Trust’s claims could never have succeeded in terms of both the Constitutional provision governing restitution (section 25(7) of the Constitution) and the Restitution Act of 1994 that the state attempted to amend the Restitution Act in 2014.  It sought to re-open the period for lodging restitution claims that had ended in 1998.  This would have allowed traditional leaders and institutions like the Ingonyama Trust to lodge land claims.  Those opposing the Amendment Act argued that the settlement of thousands of valid land claims by communities had been purposively held back in order to enable traditional leaders to put in counter claims after the process was to be re-opening by the 2014 Amendment Act. In 2016 the Constitutional Court found the Amendment Act to be invalid on procedural grounds and referred it back to Parliament.  One of the issues Parliament was ordered to deal with was how long-delayed original claims would be protected from new claims.

Parliament missed the return-date set by the Constitutional Court for a new amendment act.  In November 2018 Parliament asked the Constitutional Court for an extension to enable it to pass the 2017 replacement Amendment Bill. That bill has, however, lapsed in the meantime.

This is not going to please the Ingonyama Trust or those like Bayede journalist and royal family member Mandla Zulu, who have said they intend to appeal the December Land Claims Court ruling to the Constitutional Court.  Inkosi Sipho Mpungose said in response to the Land Claims Court ruling that he wants the land to be returned to those whom it was taken from – the Amakhosi.  In effect what he is seeking is to use restitution to expand the boundaries and powers of traditional leaders appointed during the homeland era. This is the opposite of the original intention of restitution, which was to restore the land rights of those forcibly removed and dumped in the homelands, and so restore people to equal citizenship and land rights in a common South Africa.

The struggles of the Makhasaneni community over the last 20 years and their fierce rebuttal of the Ingonyama’s claim to their restitution land and this legal victory are surely contributing factors to the demise of the Restitution Amendment bill.  Hopefully this will end the practice of holding back valid community claims to enable chiefs to make counter claims. We need to watch this space closely.  The quiet death of the Amendment bill may yet be cause for major celebration.  Former President Zuma’s advice to traditional leaders to put in land claims was always at odds with section 25(7) of the Constitution and the provisions of the Restitution Act. But law meant little during the era of state capture.  Perhaps now there is hope that the Restitution Act and the Constitution will be upheld, with the Makhasaneni court judgment leading the way.

opinion-grey Dr Aninka Claassens is the director of the Land and Accountability Research Centre (LARC) in the Department of Public Law at UCT
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