Illegal land sales head to court

Five years after an investigation found that a chief in KwaZulu-Natal illegally sold people’s land to outsiders to build holiday homes, no action has been taken against him or his subordinates.

Inkosi Phathisizwe Luthuli — from the coastal are of Umnini, near Umgababa and Amanzimtoti — and his izinduna were instructed to stop selling land in 2013 by the provincial cooperative governance and traditional affairs department (Cogta), but have continued to do so.

Nothing has changed here. They are still selling off the land and robbing people of their plots. Just now there has been another plot sold. The person who lives there is scared to come forward and speak

Now residents represented by the Legal Resources Centre are going to court as a last resort after begging the provincial and national government for years to stop the sale of plots allocated to local families.

In 2014, after a number of complaints by the land owners, Nomusa Dube-Ncube, then the MEC for cooperative governance, appointed Ingqwele Conflict Resolution and Capacity Building Services to investigate the claims of corruption and illegal land sales against Luthuli.

Ingqwele compiled a report that recommends a forensic probe into the activities of Luthuli and his council, along with disciplinary action against him.

The confidential report, dated May  20 2015, which the Mail & Guardian has seen, found that there was a prima facie case of mismanagement of funds collected for land between April 2013 and February 2015 for about 600 new plots which were “issued” by the inkosi.

The report also found that:

• Outsiders were paying R9 000 a plot, with local residents being charged R850 and that an amount of about R2.5-million should be the subject of a forensic audit.

• Residents were being unlawfully dispossessed of their land. “The allocation of land is done without following the guidelines as set by Ingonyama Trust Board (ITB) and without consultation with the right holder. It has to be noted that a moratorium was placed by the MEC for Cogta in December 2013, instructing inkosi and izinduna to stop land allocation. This was disregarded.”

• The sale of land was increasing tensions in Umnini, which had a history of violence, and had the potential to spark a major outbreak of violence. “Whilst the community feel that they should not take the law into their own hands, their expectation is that the MEC’s intervention will provide some redress that will prevent the violence.”

• Women who headed households were being the worst hit by the land dispossession.

But there has been no redress. 

After the report was submitted to Dube-Ncube, she appointed Mkhulusi Attorneys to conduct an inquiry into Luthuli’s conduct and complete the forensic audit. At this point, the ITB appears to have intervened on Luthuli’s behalf and challenged the decision by Dube-Ncube to hold an inquiry.

In a letter in response to ITB chairperson Jerome Ngwenya, Dube-Ncube said she had appointed a second inquiry into the Mathuli Traditional Authority after a detailed investigation found prima facie evidence of misconduct on Luthuli’s part. “These proceedings against Inkosi Luthuli are of no concern to the Ingonyama Trust Board, as the Ingonyama Trust Act, 1994 (Act No 3 of 1994) does not grant the Trust any mandate whatsoever to intervene in misconduct proceedings against amakhosi,” she said.

The second investigation and forensic audit into the illegal land sales, commissioned by the province in 2017, had also been gathering dust because of fears violence and an apparent lack of political will by the provincial and national government to intervene. Vusi Mkhulusi, the attorney who ran the 2017 investigation for the cooperative governance department, was murdered in an apparent armed robbery by three gunmen in the centre of Pietermaritzburg in March this year. 

Despite the findings of both inquiries, which have never been made public or explained to the Umnini residents, no action has yet been taken against Luthuli.

A former induna, Lefani Luthuli, who is among the residents opposing the land sales, and had been unlawfully removed from office by the inkosi in 2010, said they have reached the stage where their only option is to go to court.

“Nothing has changed here. They are still selling off the land and robbing people of their plots. Just now there has been another plot sold. The person who lives there is scared to come forward and speak,” he said.

Lefani Luthuli said that despite promises of intervention by the departments of land reform and of cooperative governance, nothing appeared to have been done.

Zenande Booi, a researcher for the Land and Accountability Research Centre (LARC) based in the University of Cape Town’s law faculty, said they were assisting the residents to approach the high court for an interdict to stop the sale of land.

The research centre had helped the residents in earlier attempts to challenge the transfer of the land at Umnini to the ITB, which took place in 1994, but it was unsuccessful because LARC could not show legal standing in the matter.

“We are approaching the courts to interdict the inkosi from selling any more of the land. We are still at the early stage of the matter,” Booi said.

“The community has exhausted all the processes of trying to engage with the state. At this point they see litigation as the only real way forward as none of the reports or mediation processes they have engaged in have come up with any results.” 

Senzo Mzila, the spokesperson for cooperative governance MEC Sipho Hlomuka, said the department had appointed an interdepartmental task team to deal with the matter.

He said the department had not acted immediately on the recommendations in the 2015 report because of concerns about violence in the area if it had done so and the complexity of the land issue there.

“Currently, an intergovernmental task team is seized with all aspects of the matter. Due process needs to be followed before any actions can be taken. This will be informed by the findings of the intergovernmental task team,” Mzila said.

Asked why the department had not acted on its own report for five years, Mzila said: “Some of the progress has been hampered by the lockdown, but the team is working on this matter.”

Reggie Ngcobo, the spokesperson for Land Reform Minister Thoko Didiza, referred the matter to Hlomuka. “The minister intervened when some members of the Luthluli royal family brought the matter of legitimacy of the inkosi and allegations of illegal selling of the land by the inkosi. The minister met MEC Hlomuka and the complainants. In that meeting, it was agreed that MEC Hlomuka would intervene by getting the matter of legitimacy investigated.” 

Phathisizwe Luthuli questioned the source of the allegations against him. He would only discuss the report if its authors were present. “Bring them here and then we can talk.”