‘Test land tenure in court’

King Goodwill Zwelithini has instructed the Ingonyama Trust Board to put together a team of lawyers to take the matter of dissolving the trust to the Constitutional Court. (Thuli Dlamini/Gallo)

King Goodwill Zwelithini has instructed the Ingonyama Trust Board to put together a team of lawyers to take the matter of dissolving the trust to the Constitutional Court. (Thuli Dlamini/Gallo)

If the Ingonyama Trust Board were to mount a court challenge to Parliament’s attempts to reform tenure rights on land the trust controls in KwaZulu-Natal, it might be a “blessing in disguise”, as it would put the matter before the Constitutional Court for a definitive ruling.

This is according to ANC MP Pumzile Mnguni, the deputy chair of Parliament’s land reform portfolio committee, who told the Mail & Guardian this week that a court-ordered solution might be “all the better”.

“If there were to be an unfortunate situation where any of the key parties — the department [of land reform and rural development], the presidency, the ITB [Ingonyama Trust Board] — were to take the other to court, it could be a blessing in disguise,” Mnguni said.

“The Constitutional Court would be much more objective than any of the parties concerned and it would make a landmark ruling now as to what are the rights of people, in particular in terms of the Bill of Rights,’’ Mnguni said.

“The court would be the final arbiter … it is a very mindful custodian of the Constitution in terms of people’s rights in our secular state.’’

The ITB and King Goodwill Zwelithini have threatened to go to court to stop the recommendations of Parliament’s high-level panel from being implemented. The panel, in a bid to remove legislative obstacles to improving people’s quality of life, said that the ITB should be phased out to give security of land tenure to rural dwellers. Parliament is now acting on the recommendations of the panel, chaired by former president Kgalema Motlanthe, which has sparked a fierce backlash from the ITB, the king and the province’s traditional leaders. The monarch has called an imbizo for July 4 to discuss the way forward and has previously called on residents of tribal land to contribute R5 each to a fund for legal fees for a court challenge.

Mnguni was in KwaZulu-Natal for public hearings in Ulundi and Port Shepstone on the Restitution of Land Rights Amendment Bill, a private members’ Bill that he brought before Parliament. The Bill would reopen the land claims process, allow for the creation of a full-time Land Claims Court and make submitting a fraudulent land claim a criminal offence.

Mnguni said the high-level panel’s recommendations had been referred to a series of portfolio committees to consider, including social development, land and education.

Although the recommendations “need not be the final position”, they gave guidance and options to Parliament about what needed to be done, he said. The committees were in the process of considering them.

Mnguni said certain aspects of the ITB might prove in court to be inconsistent with the Constitution or, because of the passage of time, might be “outmoded”.

“People are wanting to be emotional about it, but we need to say that it has to be consistent with all other statutes of finance and rural development. It needs to adjust and adapt,” she said.

READ MORE: Ingonyama Trust debate rages: ‘The land needs to go back to the people’

“I find nothing about taking away the king’s customary and traditional leadership role [in the panel’s recommendations], but insofar as the issues of land, education and health [are concerned], that is the duty of a secular state.’’

Mnguni said that, although the committee had expected a hostile response given the tensions over the ITB, it was “excited” about people’s positive reactions to the reopening of the land claims process.

“I am aware that, on the land question as a whole, the meeting was addressing the specific issue of restitution. I am not so sure as to what the responses will be as to the rest of the land redistribution and governance matters,” she said.

Regarding land tenure for tenant farmers and people living on farms, public hearings had been held in the province as part of the process of passing amendments to the Extension of Security of Tenure Act of 1998, which had “a lot of glaring weaknesses and loopholes”.

The Act had been passed in the National Assembly and would be considered by the National Council of Provinces this semester, he said.

Tenure on communal land, including land under the ITB, remained a “thorny issue” that “needs to be visited”.

“The issue needs a high level of leadership and a high level of wisdom. It cannot be that one kind of leadership should impose itself on the other. There must be a rapport between the traditional leadership and the democratic dispensation so as to ensure that the traditional leadership has the backing of communities in the decisions they take,” he said.

“This is not an issue of contention. Tempers need to quiet down. This is an issue for mutual co-operation and for collaboration,” Mnguni said.

Parliament’s constitutional review committee would also visit the province next month to take in the public’s views on the process of expropriating land without compensation.

He said the governing party largely believed that this could be achieved without amending the Constitution but by creating a law of general application to allow for acts of expropriation.

“We need to pass this and then expropriate according to this Act,’’ he said.

“We need to expedite access to land but in a manner that does not compromise economic activity and the gross domestic product of the country. Expropriation should be one of the tools being considered for undertaking land distribution … to ensure that people have access to land should continue to unfold.’’

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