Ingonyama Trust Board (ITB) chairperson Jerome Ngwenya has defied Land Reform Minister Thoko Didiza and gone ahead with an appeal against the high court ruling which declared its residential lease programme unlawful.
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Didiza, under whose mandate the ITB falls, had instructed Ngwenya to accept the ruling of the court, which came in response to a challenge by residents of ITB land backed up by nongovernmental organisations.
The ITB takes in about R90-million a year in lease fees, which it raises from businesses, mines and individuals occupying the land it controls in KwaZulu-Natal on behalf of the Zulu monarch.
In a dramatic turn of events, Ngwenya accused two of the judges who heard the case in the high court in Pietermaritzburg of conflict of interest because they have family homes on land that falls under ITB control.
In his notice of application for leave to appeal, Ngwenya asked that the court set aside the ruling, delivered on 11 June, which declared the residential lease programme unlawful and ordered the ITB to pay back the revenue it had collected from residents who had signed leases.
He also asked that the costs order against the ITB be set aside.
Ngwenya asked that should the court fail to overturn the judgment, he be granted leave to take the case to the supreme court of appeal in Bloemfontein.
Listing the grounds on which he could base the appeal, Ngwenya said the court had erred in finding that the ITB violated the constitution by issuing the leases and had also erred in distinguishing between residential and commercial leases.
It also erred in finding that the lease holders had been intimidated into signing leases and had done so without having informed consent, Ngwenya said.
In addition, the court had “erred in relying on unsubstantiated allegations of the applicants that they were intimidated in the absence of any evidence.This more so in that the intimidation alleged was not by and/or at the instance of” the ITB.
Ngwenya gave the court notice of “further following new grounds” for appeal and claimed Deputy Judge President Mjabuliseni Madondo and Judge Jerome Mnguni had failed to disclose that they were interested parties in the case.
“Two justices constituting the full court hearing this application did not disclose to the parties that there are facts and circumstances directly relevant to whether it was competent for them to be judges in a matter in which they have direct personal interest in the relief sought by the applications,” Ngwenya said.
“Deputy Judge President Madondo has a house at Msinga on Ingonyama Trust land under Inkosi Mabaso and accordingly has a direct interest in the relief sought in the application. Judge Mnguni grew up and has his parental home at Vuna in Nongoma on Ingonyama Trust land and therefore has a direct interest in the relief sought in this application.”
He said the properties and circumstances of the judges were such that they should not have adjudicated the dispute in which they or their direct families had a direct and substantial personal interest. The properties were held in terms of Zulu customary law, he added.
“They have no leases and have not been asked to and will not be asked to have leases against their wishes,” he said.
Sharita Samuel, of the Legal Resources Centre, which represented the applicants in the lease case said they would oppose the appeal and were consulting their clients. Didiza’s spokesperson, Reggie Ngcobo, said he was awaiting clarity from the minister regarding her course of action.
Ngwenya was not immediately reachable for comment.