Ingonyama Trust Board (ITB) chairperson Jerome Ngwenya. (Photo by David Harrison/M&G)
The application by the Ingonyama Trust Board (ITB) for leave to appeal against the high court ruling setting aside its residential lease programme and forcing it to pay back millions of rands to residents on land under its control will be heard this week.
Oral argument in the application for leave to appeal — which has delayed the implementation of the court order granted in June 2021 and the refund of payments made by residents of the tribal land controlled by the ITB — will be heard in the Pietermaritzburg high court this Thursday.
The application was brought by the board’s chairperson, Jerome Ngwenya, last year, after the Rural Women’s Movement, the Council for the Advancement of the South African Constitution (Casac) and several residents of ITB land won their battle to have the residential lease programme declared unlawful.
This was after Land Reform Minister Thoko Didiza and the KwaZulu-Natal head of cooperative governance, Sipho Hlomuka, agreed to abide by the court ruling, which also instructed the government to provide a three-monthly update on progress in refunding the money.
During 2018-19, the ITB’s lease programme took in about R90-million.
Didiza, under whose ministry the ITB falls, is also understood to have instructed Ngwenya not to appeal the court ruling.
In his heads of argument and affidavit before court, Ngwenya claimed that two of the judges involved in hearing the case — the late Judge Jerome Mnguni and KwaZulu-Natal deputy judge president Mjabuliseni Madondo — were biased because they and their families lived on land under ITB control.
Ngwenya also attacked the findings of the court on the grounds that it had erred in ruling that Zulu customary law did not allow for residents of land controlled by traditional authorities to pay rent to sign leases.
The ITB was “empowered and permitted” to introduce the residential lease programme by the Ingonyama Trust Act and had “acted lawfully and within the Constitution” in introducing the residential leases.
In their papers, lawyers for Casac said the grounds on which Ngwenya had based his application were “uniformly without merit” and that “an appeal on these grounds would have no reasonable prospects of success”.
An applicant for leave to appeal must convince the court that there was a “realistic chance of success on appeal”, they said.
“The mere possibility of success, that an appellant has an arguable case or a case that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal.”
Casac’s counsel argued that because the matter was of public importance, this did not give any party the automatic right to appeal.
“The merits of the proposed appeal remain vitally important and will often be decisive,” they said.
Turning to the issue of the allegations of bias against the two judges, they said the application for leave to appeal by Ngwenya stated that “neither Madondo DJP nor
Mnguni J have leases and have not been asked to and will not be asked to have
leases against their wishes”.
Ngwenya had, they said, deposed a further affidavit in support for his application for leave to appeal in January in which he “saw fit to alleged that Madondo DJP had a close relationship with the late His Majesty King Zwelithini, including having allegedly officiated at the late King’s wedding”.
Casac said it was not in the interests of justice for Ngwenya to be allowed to raise the complaint of judicial bias and conflict of interest at such a late stage.
Ngwenya had failed to raise the alleged conflict of interest ahead of the trial on a number of occasions after the judges who would sit on the bench had been named, during the trial or after it.
Casac said the grounds on which Ngwenya has claimed judicial bias were “contrived and without merit” and that there had been “no explanation, let alone a reasonable explanation, for the trust and the board not having raised a complaint on this basis earlier or having brought a recusal application at the hearing on the basis of these alleged facts”.
“The only reasonable conclusion which can therefore be drawn is that the trust and the board waited until judgment was handed down before belatedly raising complaints of alleged bias and conflict of interest, when the facts on which these complaints are based were known to Ngwenya well before the matter was heard.”
Further, neither judge had been asked to sign a lease by the ITB, and Casac had not brought its application on the behalf of either of them.
Casac said the evidential and factual findings of the court were not being challenged in the appeal, which was based on “extensively rehashed legal, not factually based argument” that had been dealt with by the trial court.
In response to the argument by Ngwenya that the court had erred in finding that taking leases and paying rental for traditional land were not compatible with Zulu customary law, Casac said the court had based its decision on “expert undisputed evidence” presented at court.
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