ITB chairperson Jerome Ngwenya. (David Harrison/M&G)
The supreme court of appeal (SCA) has dismissed with costs an application by the Ingonyama Trust Board (ITB) for leave to appeal the Pietermaritzburg high court ruling that declared its controversial residential lease programme unlawful.
The SCA handed down the order in the application, brought last year by ITB board chairperson Jerome Ngwenya on behalf of the board and the Ingonyama Trust, last week.
Ngwenya had brought the application in response to the high court ruling in the leases case, in which residents of ITB land backed by the Rural Women’s Movement and the Council for the Advancement of the SA Constitution had challenged the validity of the residential lease programme.
The court had ordered the ITB to refund all the revenue it had collected from residents whose permission to occupy (PTO) certificates had been converted to residential leases, which were introduced in 2012.
The ITB took in around R90-million a year in lease revenue up until last year, when the court ruled in favour of the residents and NGOs.
The trial court had also ordered Land Reform Minister Thoko Didiza to re-establish the administrative capacity in her department to implement the KwaZulu-Natal Land Affairs Act and to reinstate the PTO certificates.
The SCA had granted the ITB condonation to hear the matter despite the late filing of its application, but dismissed the application for leave to appeal with costs on the grounds that “there is no reasonable prospect of success in the appeal and there is no other compelling reason why an appeal should be heard”.
In his papers before the SCA, Ngwenya had claimed that two of the judges in the original case — KwaZulu-Natal deputy judge president Mjabuliseni Madondo and the late judge Jerome Mnguni — should have recused themselves from the matter as their families lived on ITB land and claimed bias on their part.
It is not clear at this stage whether Ngwenya will accept the ruling, or whether he will take the matter to the constitutional court, which he had earlier threatened to do.
Didiza has set aside a budget of R100-million to implement the judgment over a three-year period, and has submitted an initial three-monthly plan to the court and the other parties in line with the order.
However, she has been unable to implement any further action because of the SCA matter, in which she had submitted a notice of her intention to abide by the court ruling.
Didiza’s spokesperson, Reggie Ngcobo, declined to comment, referring the Mail & Guardian to Ngwenya. Attempts to secure Ngwenya’s comment had not been successful at the time of writing.
The ITB is currently being run by an interim board and the process of appointing a permanent one has been delayed by the succession battle within the Zulu royal house.
The Zulu monarch is the sole trustee of the Ingonyama Trust, with the ITB administering the nearly three-million hectares of KwaZulu-Natal that falls under traditional authorities on his behalf.
While Didiza has the powers to appoint board members in conjunction with the KwaZulu-Natal premier, the provincial house of traditional leaders and the cooperative governance and traditional affairs ministry, the chairperson is nominated by the king.
Last month the ANC’s integrity commission issued a report recommending that the high level panel report suggesting that the Trust and Board be reformed or repealed be implemented.
The report has sparked a backlash from the ANC KwaZulu-Natal leadership, which has challenged the integrity body’s authority to make the recommendations and has vowed to “defend” the ITB.
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