Justice delayed for residents on trust land

The Ingonyama Trust Board is facing hard questions about the way it is managing the rights of the people who live on the 2.8-million hectares of land it administers in KwaZulu-Natal.

In March last year, Parliament’s portfolio committee on agriculture, land reform and rural development instructed the board to observe a moratorium on issuing new leases for the land, leases which occupants believe are effectively removing their rights. But this has been ignored.

Questioned by Economic Freedom Fighters MP Mothusi Montwedi during a recent portfolio committee meeting, the board’s chairperson, Jerome Ngwenya, was unable to explain why leases continue to be issued, even though the board has not yet developed a comprehensive policy to allow for the conversion of occupation permits to leases.

The policy should have been developed in conjunction with the department of agriculture, land reform and rural development and would require public participation before finalisation and implementation.

The issuing of leases is a relatively new controversy in the history of the trust, which was established in 1994 to hold the land that that fell within the former homeland of KwaZulu. The Ingonyama Trust Act made provision for the establishment of the trust as well as a board that could serve as the corporate body to administer and manage the land on behalf of the trust. The Act specifies that this is for “the benefit, material welfare and social well-being of the members of the tribes and communities” living on the land.

The trust has argued that leases are a more secure form of land rights than the permission to occupy certificates that were issued under apartheid law. But citizens say that the leases introduce new terms of occupation, including payments they cannot afford, and make them vulnerable to losing their land should they default on these. Rentals range from R500 to about R5 000.

Leases increase annually at 10%, a rate that many cannot afford. Occupants say that when they complain they are advised to reduce the extent of the land they use to reduce their annual costs.

Most citizens are subsistence farmers using large parcels of land where their livestock and crops provide livelihoods. If they are forced to use the income obtained from selling their produce for paying rent instead of sending their children to school, how will they ever escape the deepest form of cyclical poverty?

Rural KwaZulu-Natal is deeply poor. Some areas have seen some progress, including the provision of basic infrastructure. But unemployment continues to exacerbate poverty, as it does in all former homelands.

The parliamentary committee is taking forward the work of the previous committee, which provided a legacy report that details the terms of the moratorium on Ingonyama Trust land leases and records that, despite this, land rights continue to be weakened through leases. Rental income from them is recorded in the board’s annual report.

As much as the committee’s focus is welcome, the reality is that the pace of Parliament’s efforts to address the issue has been unacceptably slow.

Six people living on Ingonyama Trust land — Hletshelweni Nkosi, Bongani Zikhali, Zakhele Nkwankwa, Hluphekile Mabuyakhulu, Bongi Gumedi and one other —alongside the Council for the Advancement of the South African Constitution and the Rural Women’s Movement, have taken on the matter.They are suing the trust and the minister of agriculture, land reform and rural development for not upholding and protecting their constitutional right to security of tenure.

The trust reports to both Parliament and the minister. Despite annual reports describing the revenue generated from leasing people their own land, previous ministers have not intervened to uphold the land rights of people living on land under the custodianship of the Ingonyama Trust. The past and current ministers have filed court papers that are in broad agreement with the defence put up by the Ingonyama Trust.

The long-awaited case should have been heard on November 22 in the high court in Pietermaritzburg, but at the last minute it was postponed to March next year. This disappointing turn of events means the citizens involved — who are seeking legal recourse because government and parliament have failed them — will have to wait a while longer to hear whether their quest for justice will be successful.

This case is not an attack on King Goodwill Zwelithini. In the simplest way possible, it is arguing that citizens who have undergone the process of ukubekwa (land allocation) and have paid the once-off khonza (homage) fee to the king should not be required to pay an ever-increasing rental, when they already have rights tothe land.

Nokwanda Sihlali is a researcher at the University of Cape Town’s Land andAccountability Research Centre