The government has controversially exempted a third of KwaZulu-Natal’s land area from a draft tenure security law, in an apparent move to placate traditional leaders in the province.
It emerged this week that land falling under the Ingonyama Trust has been exempted from the latest — and activists fear final — draft of the Communal Land Rights Bill.
Chaired by an appointee of King Goodwill Zwelithini, the trust owns three million hectares scattered across KwaZulu-Natal, most of it under the authority of chiefs.
Reacting to the move by the Department of Agriculture and Land Affairs, national land committee head Zakes Hlatshwayo disclosed that the committee had briefed lawyers to prepare a constitutional challenge.
Ben Cousins, director of the University of the Western Cape’s Programme for Land and Agrarian Studies, warned that the excision of trust land from the law could create a situation where tenure rights in some parts of KwaZulu-Natal were stronger than in others.
”This is discriminatory and could be unconstitutional,” Cousins said.
A Democratic Alliance member of Parliament’s agriculture committee, Graham McIntosh, said the DA would oppose moves to make Ingonyama Trust land ”a special case”.
Criticism has also come from within the African National Congress. Said party MP Derek Hanekom, also a member of the parliamentary committee: ”Nearly half our population lives on communal land. The law has to apply to everyone in those areas.”
It is rumoured that the exemption was inserted in the Bill after Minister of Agriculture and Land Affairs Thoko Didiza received a personal representation from the Ingonyama trustees.
The Bill, a centrepiece of land reform that has been five years in the making, is designed to provide secure tenure for all South Africans, as required by the Constitution.
The government has sought to walk a tightrope between its constitutional obligations and the chiefs, many of whom believe communal land belongs to them and are resisting moves to trim their powers.
It is also under pressure from rural constituents and land activists, who are pressing for stronger land rights.
The legislation is a potential flashpoint in already strained relations between the ANC and the Inkatha Freedom Party, which speaks for most of Kwazulu-Natal’s traditional leaders.
The Ingonyama Trust, which involves King Goodwill’s appointees and representatives of government, was established as part of the horse-trading between the ANC and the IFP after the 1994 election.
It institutionalised a controversial and secretive transfer of state land to the king in the dying days of FW de Klerk’s National Party government.
Attempts to solicit comment from the Director General of Land Affairs, Gilingwe Mayende, failed this week. Written questions by the Mail & Guardian, submitted on Monday, had not been answered at the time of going to press.
Gilingwe was also asked about the timetable for the Bill, which was first drafted under former minister Hanekom, shelved and radically redrafted under Didiza after the 1999 election and debated at a major ”stakeholder” conference in Durban nine months ago.
NGOs voiced fears that, under pressure to deliver, Didiza was planning to publish the Bill this month and rush it through Parliament before year-end — despite its provisions on the Ngonyama Trust and other flaws.
Spokesperson for the Pietermaritzburg-based Association for Rural Advancement, Lisa Del Grande, said the legislation seemed less an attempt to create an inclusive, coherent system of land administration than a move by the government to divest itself of state land and responsibility for those living on it.
It is understood that the latest draft does not explicitly provide for the transfer of state land to ”traditional African communities”. Activists rejected this clause in Didiza’s first draft as giving excessive power over the ownership and administration of land to the chiefs.
However, they said there was still scope for traditional leaders and authorities to grab land on behalf of their subjects, in the name of ”custom”.