Churches join legal fight over Ingonyama leases
KwaZulu-Natal church leaders have joined a high court challenge by individuals and civil society groups to force the Ingonyama Trust board to abandon its controversial programme of converting permission to occupy (PTO) certificates into residential leases.
The KwaZulu-Natal Council of Churches, the Catholic Church and the Lutheran Church have backed the application, which will be brought by the Legal Resources Centre in the high court in Pietermaritzburg this month.
Critics of the leases say they undermine right of tenure rather than reinforce it, and place rural people who have lived on the tribally controlled land for free for years in a position where they have to pay annually — or face eviction.
Thabiso Mbhense, the lawyer for the applicants, said the application by residents of Jozini and uMnini, both of which fall under the Ingonyama Trust, which controls about three million hectares of rural KwaZulu-Natal on behalf of King Goodwill Zwelithini, would be brought in the next few weeks.
“The final affidavits are drafted and we are finalising court papers and preparing to lodge the application,’’ Mbhense said.
The applicants want the court to rule the practice of converting PTO certificates to leases, which the board began last year, as illegal, on the grounds that it undermines and weakens the right of tenure of rural people living on trust land.
They will argue that the conversion to leases, which come with default clauses, places residents in a precarious position, because the board could repossess their properties if they fail to pay the annual lease fee.
The board, chaired by former judge Jerome Ngwenya, started the conversions in 2016, arguing that it was doing so to allow government employees living on tribal land to qualify for housing subsidies.
It has since been instructed to stop doing so by Parliament’s land reform portfolio committee, which holds oversight on the board.
But, according to sources on the board, it has continued to issue the leases.
The board collects about R90-million a year in leases, many of them commercial, and has now shifted its focus to residential properties. It is also encouraging nonprofit bodies such as churches to convert their PTOs to leases.
Residents pay a nominal fee of R500 or more for land to the traditional authority. If they convert to leases, it will cost about R100 or more a year.
The board leases also state that any developments made by the occupants are forfeited to the trust should they leave or default.
The board was recently at the centre of a political storm about the land reform process, with ANC president Cyril Ramaphosa going to great lengths to reassure the king that Trust land would not be targeted by the policy of expropriation without compensation.
Parliament’s high level panel, whose report is currently before the land reform portfolio committee, had recommended that the board be repealed and security of tenure introduced for residents living on trust land.
A second application against the trust is also being brought by residents of uMnini, on the KwaZulu-Natal South Coast, to prevent it and the local inkosi, Phatisizwe Luthuli, from selling off land belonging to the residents.
People had settled on the land in the 19th century after they were removed from Durban’s Bluff to make way for a whaling station.
Mbhense, who also represents the uMnini people, said they had unsuccessfully approached the board, the department of co-operative governance and traditional affairs and the department of land reform to stop Luthuli from selling plots to outsiders wanting to build holiday homes in the area.
The co-operative governance department has failed to act on its own internal investigation, as well as a forensic audit it had commissioned, both of which found against Luthuli, who is also at the centre of a chieftaincy dispute.
Mbhense said the second application would be lodged in the high court in Pietermaritzburg next month.
The board faces other legal challenges. Edward Mpeko, owner of the Umnini Holiday Resort, is suing the board for R6.5-million in damages caused by the loss of the facility, which he ran for 13 years, after it was invaded and looted during a dispute between Mpeko and Luthuli.
The board revoked Mpeko’s lease and evicted him. Mpeko then went to the high court to challenge his eviction and won, but was left destitute by the loss of his resort,which was completely destroyed.
Mpeko served notice of his intention to sue the board in April. His lawyers are still waiting for a court date.
A second uMnini businessman, Ron Wilson, whose bass fishing venue at Umnini Dam was invaded by a tenant who ran a bar on the premises, is suing the board for R1.5-million. The board paid him R18000 in September last year but Wilson wants further payment from it for violating the lease.
Ngwenya had not responded to calls and emails from the Mail & Guardian at the time of writing.