Battle over 2010 stadium land

A legal battle for the site of the Nelspruit 2010 World Cup stadium will unfold in the Land Claims Court after a family lodged an application saying the land is rightfully theirs.

The Nkosi family will ask the court to review a 2003 decision by then minister of agriculture and land affairs Thoko Didiza to award 6 000ha of land, which includes the site of the Mbombela Stadium, to the Mdluli clan.

”We strongly believe that our client has a strong claim,” said Bulelwa Khemese, of Werksmans Attorneys, representing the Nkosi family.

The Mail & Guardian reported on February 22 that finances, tenders and contracts relating to the construction of the stadium have been the subject of an investigation by attorneys Nkosi Ngobe because of alleged irregularities.

The 2010 stadium is being built on land previously owned by the Mdluli clan. Like all Mdluli land, its ownership was overseen by a body known as the Matsafeni Trust. The site made headlines after it emerged that Terry Mdluli, a Matsafeni trustee, had donated the land to the Mbombela municipality for a mere R1 in return for jobs for the beneficiaries of the trust.

Terry Mdluli has since fallen out with the trust’s beneficiaries over his management. A group of 750 beneficiaries is bringing a second round of legal action to have him and the other trustees dismissed after a High Court judge threw out an earlier application on procedural grounds. The Matsafeni Trust is sitting on R26-million, according to lawyer Richard Spoor, who is representing the beneficiaries.

A local newspaper has also revealed that Terry Mdluli owns a company with two Mbombela municipality officials who were responsible for securing the site of the stadium — 2010 coordinator Differ Mogale and mayor Justice Nsibande. The municipality is now under administration by the Mpumalanga provincial government.

In 2003, Didiza awarded the land to Phineas Mdluli, a family patriarch and chief of the Mdlulis, and the rest of his clan members.

In the settlement, hailed at the time as a shining example of the land redistribution programme, the government paid R63-million to HL Hall and Sons under the Land Restitution Act. The Act requires, however, that land claims were lodged by December 31 1998.

The Nkosis trace their ownership to two descendants of the 19th-century Swazi King Sobhuza, Princes Ncabeni and Somcuba. They argue that Somcuba’s descendant and their ”forefather”, Phillip Sphezi Nkosi, later settled on the land, which, they say, had no other inhabitants at the time. It was then known as Tomango.

The family gave a piece of land to one Hugh Lanion Hall, who went on to form the company HL Hall and Sons and assumed ownership of the land at the advent of apartheid, the Nkosis claim.

The Nkosis allege in their affidavit that the Mdlulis occupied the land only later as ”farmworkers”. The Nkosis were stripped of their property rights after a feud in the Hall family led to them being thrown off the land, while the Mdlulis stayed.

Attempts by the M&G to get comment from Phineas Mdluli failed. Documentation supporting the application by the Nkosis shows that Rose Ntongolozane Khoza (née Nkosi) had launched an application on behalf of the Nkosi family on December 31 1998. The Nkosis also allege that they have not been able to trace the land-claim form submitted by the Mdlulis.

Attempts to use the Access to Information Act to obtain the Mdluli claim has thus far proven unsuccessful, says the Nkosi affidavit.

”It later transpired that notice of this claim [the Mdluli claim] was published in the Government Gazette of 23 March 2002 under notice 717 of 2001,” says the affidavit.

The Gazette notice mentions that the land was originally known as ”Tomango farm”. The Nkosis’ legal counsel adds that this ”should have alerted” land commission officials that a similar claim to the one made by the Mdlulis had already been launched.

The commission is legally required to hear all competing claims before a land award can be made.

The Nkosis will ask the court to set aside the agreement reached between the minister and the Matsafeni Trust. They will also ask that the disputed land and all benefits accrued from it so far be held in trust until the claims have been resolved.

A department of agriculture spokesperson, Godfrey Mdluli, said he was not aware of the legal action and referred all queries to the regional land claims commissioner, Peter Mahangwani.

Mahangwani states that he is aware of the competing claims but says that the Mdluli clan has declined roundtable mediation on the issue.

The cast

  • The Matsafeni Trust was formed in 2003 as a vehicle for the ownership of the land under dispute. The Mdlulis are the trustees, with Terry Mdluli serving as chairperson and the majority of the land occupiers as beneficiaries.

  • Terry Mdluli is accused of mismanaging the trust.

  • The trust is said to have earned about R26-million from a lease agreement with HL Hall and Sons.

  • The beneficiaries say they have not received a cent from the trust and the trustees have not convened a general meeting as required by the deed.

  • The beneficiaries, represented by Richard Spoor, have brought a court action in the Pretoria High Court to have the trustees dismissed.

  • The Nkosis laid a prior claim to the land under dispute in 1998.

  • Minister of agriculture Thoko Didiza awarded the land to the Mdlulis.
  • The timeline

  • December 31 1998: Rose Ntongolozane Khoza launches a claim on behalf of the Nkosi family.

  • March 23 2002: The Mdlulis lodge a claim for the land.

  • 2003: Then minister of agriculture and land affairs Thoko Didiza pays R63-million to HL Hall and Sons and places the land in trust for the Mdluli clan and other occupiers of the land. The Matsafeni Trust is formed.

  • May 2003: The Mdlulis are awarded the land.

  • September 25 2003: The Nkosis write a letter to the regional land claims commission stating their concern about the award to the Mdlulis. They get no response.

  • August 16 2006: Nkosi attorneys lodge an application to obtain the original claim form of the Mdluli clan. The land claims office does not respond.

  • 2007: The Nkosis discover that the Matsafeni Trust is transferring land to the municipality for the construction of the Mbombela Stadium.

  • April 2 2007: The Nkosis visit the land commission office in search of their claim.

  • May 28 2007: Werksmans Attorneys, new lawyers for the Nkosi family, take up the case on behalf of the Nkosis.

    The facts

    In the article titled ”Another 2010 strike”, the Mail & Guardian stated that Herman van Staden Land Surveyors had not been paid for work it did on the Mbombela Stadium. This is incorrect as the company has been paid in full.

    Additional reporting by Lucky Sindane

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