Double dispossession for rural poor

2014-11-17 06:00

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The Ingonyama Trust is taking over KwaZulu-Natal, one hectare at a time

Dispossession is again sweeping KwaZulu-Natal. The dispossessor this time is not a colonial or apartheid government; it is the Ingonyama Trust board, acting in the name of King Goodwill Zwelithini.

Trust chairperson Jerome Ngwenya boasted to MPs at a recent portfolio committee meeting about the trust’s progress in converting indigenous land rights into leasehold.

He said 1?140 had been converted in a year and the trust had increased the amount it charged people to live on land they actually owned tenfold to R1?000 a year.

Trusteeship of almost all the land in the former KwaZulu Bantustan was transferred to the Ingonyama Trust in the dying days of apartheid.

Downgrading indigenous ownership to leasehold abrogates the land rights guaranteed by the Constitution, which says people whose land tenure is insecure because of past racial discrimination are entitled to legally secure tenure, or to redress.

The “indigenous rights” and permission to occupy certificates that the trust targets for downgrading belong to the very families who bore the brunt of the Land Act of 1913.

They can prove the racial discrimination that systematically undermined their formal rights to land they inherited over generations and continue to occupy. At least two laws explicitly protect such “informal rights”.

In addition, the Ingonyama Trust Act itself forbids the trust from infringing on existing rights and interests.

But chiefs are cancelling inherited land rights with apparent impunity. A woman from Ezibovini told a community workshop: “Recently, three people were forced [by a chief] to demolish their homes and leave.”

The dismantling of indigenous rights in favour of leasehold is just one aspect of the dispossession.

Ngwenya has said that only traditional leaders or councils have the legal right to be consulted about these deals. The majority, who stand to lose their houses, fields and graves, don’t get a look in.

A similar pattern of dispossession is under way in other provinces too. Kgosi Nyalala Pilane of the platinum-rich Bakgatla ba Kgafela community in North West has won a string of interdicts preventing community meetings to call him to account.

The Constitutional Court expressed concern about the pattern of traditional councils interdicting community members in the Pilane v Pilane case of 2013.

It struck down all the interdicts because they undermined freedom of expression, assembly and association, and the constitutional principle of accountability.

This precedent indicates that the Ingonyama Trust’s interpretation that it is accountable only to traditional leaders is likely to fail in the Constitutional Court.

It also explains why the Congress of Traditional Leaders of SA is lobbying government to entrench the powers of traditional leaders.

The Communal Land Tenure Policy unveiled in September proposes legislation that would transfer title to most communal land to traditional councils headed by chiefs.

The families who actually own most of this land would get “institutional use rights”, such as the leases being dished out by the Ingonyama Trust, but title to the fields, grazing land and forests would be transferred to traditional councils.

This plan to evade the duty to consult and obtain consent violates the Interim Protection of Informal Rights Act of 1996, which protects occupation and use rights as well as access to common property.

None of this makes sense unless seen in the broader context of the minerals that have been discovered in the former Bantustans. The poorest South Africans live on some of the richest land.

The primary beneficiaries of the current mining rush are the mining companies and their politically connected partners.

Negotiating mining deals directly with chiefs is easier than having to take account of the rights of the people who actually own the land being mined.

Thus the Communal Tenure Policy includes “investment partners” alongside traditional councils at the same time as it dispossesses ordinary people.

Many of the challenges show that the land at issue actually belongs to black descendants of groups who bought it before the 1913 Land Act.

They challenge the version of autocratic chiefly power created under apartheid, and now increasingly relied upon by traditional leaders and government.

A recent example of this popular pushback was the defeat of the Traditional Courts Bill, which would have given traditional leaders far-reaching punitive powers, including the ability to strip people of customary entitlements such as land rights.

Perhaps it was to placate disappointed traditional leaders that President Jacob Zuma encouraged them to take advantage of the 2014 Restitution of Land Rights Amendment Act.

A flurry of announcements followed, including one by Zwelithini that the Ingonyama Trust would claim vast swathes of land on behalf of the “Zulu nation”.

Claassens is director and chief researcher of the Rural Women’s Action Research Programme at UCT

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