Judges’ view: Neither the Permission to Occupy certificates nor the new leases safeguard people’s land rights. Photo: Delwyn Verasamy/M&G
The R90-million a year residential lease programme introduced by the Ingonyama Trust Board (ITB) is “fundamentally at odds” with the customary rights of people living on land it controls on behalf of King Goodwill Zwelithini kaBhekuzulu, according to a new legal challenge.
The programme has reduced the “true and ultimate owners” of the land to mere tenants, who face eviction should they default on the rent they now have to pay for the land that has been occupied by their families for decades.
The legality of the leases, introduced in 2015, was challenged this week in the high court by a group of residents, backed by the Rural Women’s Movement and the Council for the Advancement of the South African Constitution.
The residents want the 40-year leases, which escalate by 10% annually, declared unlawful and for Land Reform Minister Thoko Didiza to intervene and either revert to the Permission to Occupy (PTO) certificates they had been issued with before 2015 or introduce a new system that gives them security of tenure and respects their customary rights to ownership of the land.
The ITB administers nearly three million hectares of land in KwaZulu-Natal in terms of an agreement secured on the eve of the 1994 elections to ensure the participation of the king and the Inkatha Freedom Party, then known as Inkatha.
Tembeka Ngcukaitobi SC, on behalf of the applicants, told Deputy Judge President Mjabuliseni Madondo, sitting with judges Peter Olsen and Jerome Mnguni, that the nature of the lease system was unlawful and should be scrapped.
Residents had been reduced to lessees, with the ITB turning itself into a “lessor.” Ngcukaitobi said this landlord status put the ITB at odds with customary law because people’s customary rights had been downgraded. Residents were being dispossessed because they could not afford to pay rent to the ITB.
Ngcukaitobi also questioned the role of Didiza, who holds oversight over the ITB, for allowing the leases to be introduced.
Didiza should have acted to protect the rights of people affected by the leases, he said. She “knew about the problems but did nothing about it”, which was “negligent” on her part.
Ngcukaitobi said Didiza should set up a mechanism to reintroduce PTO certificates. Should she choose a different route, she still had an obligation to ensure that people’s customary rights were respected.
He also asked the court to impose a costs order against ITB chairperson Jerome Ngwenya for his “baseless and quite frankly intimidating” allegations in his founding affidavits against the chair of the Council for the Advancement of the South African Constitution chairperson Lawson Naidoo and the individual applicants.
Ngwenya is being investigated in a forensic audit instituted by Didiza for allegedly using the ITB to enrich himself. The board’s term has ended and an interim board appointed by Didiza. She has to appoint a new board early next year.
Counsel for the ITB, Spiko Dickson SC, denied that residents had been duped into signing leases and that women had been coerced to convert their PTO certificates into leases.
The leases, he said, held greater levels of protection for residents than the PTO certificates and gave the holders “stronger rights”.
Counsel for Didiza, Ishmael Semenya SC, said the minister did not have the powers to intervene and stop the ITB from issuing the leases.
Madondo asked: “The minister … became aware of what the ITB was doing. Was she not reasonably expected to take steps in stopping the trust in what it was doing?”
Mnguni asked what actual benefits the leases provided for residents. “The trust is set up to benefit the people. How do they benefit if they have to pay rental?”
Olsen said that if the leases were set aside, Didiza would have to put in place a new system to ensure the security of tenure on ITB land because the PTO system would not be a sufficient guarantee of their rights.
Olsen also dismissed the ITB argument that leases could be used as security to go to the bank for a bond. “What happens if a person defaults on the mortgage? The lease rights will be foreclosed and sold in execution. There seems to be no justification made for the leases beyond their commercial value.”
Madondo also questioned the rights of the ITB to convert PTOs into leases. Judgment was reserved.