Court ruling a victory for tenants who were threatened with banishment or accused of turning against Zulu monarch
They were threatened with “banishment” and told they were “turning against the king”.
This was the evidence of how some people living on land belonging to the Ingonyama Trust were forced into signing lease agreements which were never properly explained to them.
For decades they had been living on the land in terms of the trust’s permission to occupy policy (PTO) until the trust, about 10 years ago, decided to replace it with residential leases.
It meant that they lost their customary rights to the land owned by their forefathers and non-payment could lead to eviction.
Now in a massive victory for rural South Africans the Pietermaritzburg high court ruled on Friday that this was unlawful and unconstitutional.
The court has directed that all money paid be reimbursed.
For the 2016/2017 year alone, that was R107m and, according to expert reports before the court, there was very little evidence that this money was being used to better the lives of about five million people who live on trust land.
The court has ruled that all leases are now invalid and that the minister of rural development and land reform, Thoko Didiza, who “breached her duties”, reinstate the PTO policy and report back to the court every three months on progress.
Chair of the Ingonyama Trust, former judge Jerome Ngwenya, also came under scrutiny for his role in the lease programme.
The matter, which was argued before judges Isaac Madondo, James Mnguni and Peter Olsen, was brought by the Council for the Advancement of the SA Constitution (Casac), the Rural Women’s Movement and several individuals personally affected by the lease policy.
One, Hluphekile Mabuyakhulu, said she and others were called to a community meeting and told that if they did not sign the leases, they would not be recognised by the king as part of his subjects or community, that their land would be taken away from them, and they would be left on the street to fend for themselves.
Another, Bongani Zikhali, said he only became aware of the fact that he had to pay rent after he signed the lease agreement. He said he went to the trust’s offices in Ulundi for an explanation.
He said had he and others known of the implications, they would not have signed because they were poor and relied on social grants.
Ingonyama Trust doesn't only make make tenants in their own land, it further perpetuate Patriarchal idiosyncrasies that women particularly "single mothers" unable to acquire land ownership. We applaud the High Court ruling, High Level Report by Montlante highlighted these things— Nkanyiso Ngqulunga (@Nkanyiso_ngqulu) June 11, 2021
In his ruling, Judge Madondo said he would have expected the trust to meaningfully engage with residents.
But beyond that, he said, the trust had no authority to dispose of the rights vested in PTO holders.
That power was vested in the minister of rural development and land reform, who had “breached her duty” to oversee the trust and failed to protect the vulnerable trust-land occupiers, allowing the board to go on a frolic of its own, reducing them to mere tenants who could be kicked off their ancestral land.
Judge Madondo ruled that all the leases are invalid.
He also issued a structural interdict against the minister compelling her to reinstate the PTO system and report back to the court on progress every three months.
The Legal Resources Centre, which acted for the applicants, said it was “pleased” with the judgment.
Attorney Sharita Samuel said the relief granted would protect their clients' constitutional and property rights.
“This case challenged the unlawful and systematic deprivation of vulnerable groups' property rights by the trust and its board in the arbitrary exercise of its powers — particularly women living under traditional leadership systems.
“The replacement of PTOs with residential leases — together with the minister's dereliction of her duties — seriously prejudiced the applicant's existing customary law and informal rights to and interest in trust-held land. It was a necessary court intervention, and the evidence established the unconstitutional and unlawful conduct by the trust.”
Furthermore, when rolling out the signing of these leases, the Ingonyama Trust deprived many women of their land ownership.
Lina Nkosi, for example, was informed by officials of the trust that her PTOs were no longer valid and community members were required to enter into lease agreements to regularise their occupation on trust-held land.
Nkosi believed she had no choice but to sign a lease, however when she attempted to do so, she was told single women were not allowed to conclude lease agreements and she had to bring a male relative or partner to sign on her behalf.
Her explanation that she was the owner of the land and that her family had expended much money to build their home was not accepted. Nkosi, fearing eviction felt she had no choice but to co-sign the Ingonyama lease with her partner.
Casac's Lawson Naidoo said: “This ground-breaking judgment vindicates the rights of residents on land held in trust by the Ingonyama Trust; it confirms that the residents are the true and beneficial owners of the land, and that the state must now take active measures to secure these rights and through it, the dignity of 5.2 million people.”
Residents received no information about the consequences of signing these leases; they were not informed that they were in effect watering down their existing land rights or that it was possible to upgrade their PTOs to title deeds in terms of the Upgrading of Land Tenure Rights Act (Ultra).
Judge Madondo said Ngwenya had an “unfortunate and saddening” response to the court application.
“He regards it as an affront to the institution of the ubukhosi rather than as the exercise by the applicants of the right to seek protection of constitutional rights and protecting their property rights.”
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