The Ingonyama Trust Board (ITB) may be forced to pay back millions of rands it has unlawfully collected in rent for nearly a decade from people living on land it controls on behalf of King Goodwill Zwelithini.
Last year the board took in about R107-million from commercial and residential leases it issued, but how much of this is from residents whose permission to occupy (PTO) certificates were converted into leases is not clear.
In terms of the leases, which carry a 10% annual escalation, residents who previously paid only a once-off levy to the traditional authority under which they fall now have to pay an annual rental to the board.
The board administers about three million hectares of land in KwaZulu-Natal on behalf of Zwelithini, the sole trustee of the Ingonyama Trust. The trust was set up on the eve of the 1994 elections to give the monarch control of the land that made up the KwaZulu Bantustan.
This week a challenge to the board’s lease programme has been lodged in the high court, asking that it be declared unlawful and that the PTO certificates and customary rights held by residents be reinstated.
The challenge has been brought by the Legal Resources Centre on behalf of the Council for the Advancement of the South African Constitution (Casac) and the Rural Women’s Movement. Seven residents on trust land — Hletshelweni Nkosi, Bongani Zikhali, Zakhele Nkwakwa, Hluphekile Mabuyakhulu, Mabongi Gumede and two men who had asked to remain anonymous out of fear of losing their land — are also part of the application.
According to the notice of motion, the board unlawfully violated the Constitution by cancelling PTO certificates, which gave residents security of tenure, and replacing them that leases which reduced the residents to the status of tenants.
In addition to returning to the PTO permit system, the applicants also want the court to instruct the board to pay back all rental received from residents whose permits had been converted to leases.
In his affidavit, Lawson Naidoo, secretary of Casac, said the board had violated customary law and the statutory PTO rights of residents living on trust-held land.
The board, Naidoo said, had assumed and exercised land administration powers “they do not have” and which were vested in the minister of rural development and land affairs and the KwaZulu-Natal co-operative governance and traditional affairs MEC.
The board had also “induced and required” residents to sign lease agreements on the basis of false and incomplete information and without giving them material detail about the terms of the lease, including the rental.
Naidoo said the affidavits of residents involved in the case and the board’s own records showed that the violations were “serious, widespread and systematic”.
“Residents of trust-held land are being threatened by letters of demand for rental unlawfully claimed by the trust and the board and are vulnerable to eviction,” Naidoo said.
Residents were expected to pay between R1 500 and R7 000 rental annually, were forced to fence the land they occupied within six months of signing the lease and could be evicted if they did not make payments. Leaseholders were not allowed to build on their properties without the board’s permission, while any buildings they did erect belonged to the board at the end of the 40-year lease.
Naidoo said the executive and Parliament were aware of the abuses carried out by the board “year after year”, and Parliament’s high-level panel had also recommended intervention to improve the security of tenure of people living on trust land.
Neither had acted, and this “dereliction of duty” forcing the applicants to approach the court for intervention.
Naidoo said an ITB response to a question in Parliament showed that it had leased out 16 671 hectares of land, and revenue had increased annually to almost R107-million last year.
There was “little evidence” that the “substantial” income the board had generated over the past 10 years was benefiting residents, as was required by law, he said.