The judgment enforces the tenure rights of rural residents. It points out that traditional authorities cannot just decide to undermine the land access and use rights of the landholders in communal areas, writes University of Cape Town Centre for African Studies Research Associate, Dr Fani Ncapayi.
The judgment on 11 June 2021 by the Pietermaritzburg High Court on the leasing of land by the Ingonyama Trust and its Board is groundbreaking and has significance.
First, it contributes to the vexed debate about ownership and governance of land in communal areas. Second, concerns the role of the Department of Rural Development and Land Reform in the control and the usage of land in rural areas. More important is the judgment's significance in efforts to democratise governance in South Africa's rural areas.
The two high court judges were scathing to the Ingonyama Trust and its Board, as well as critical of the Department of Rural Development and Land Reform. They found the Ingonyama Trust and its Board to have acted unlawfully and in violation of the Constitution by leasing land to "true and beneficial owners of Trust-held land under Zulu customary law, by virtue of being members of the tribes and communities…". It also found the Trust and its Board to be wrong in "concluding lease agreements with persons who held or were entitled to hold PTOs". The court then concluded that all lease agreements the Trust and Board concluded with people on communal land are unlawful and invalid. The judges also decried the department's dereliction of its constitutional duty of protecting the tenure rights of rural citizens.
Converting land right into lease agreements
What are the issues involved in the case? As the judgment outlines, the Ingonyama Trust and Board took a unilateral decision in 2007 of converting land rights of rural residents into lease agreements that required annual payment of rent. This conversion of tenure rights re-defined the relations between traditional authorities and their subjects. Rural residents suddenly became the tenants of traditional authorities. In fact, the Ingonyama Trust and the Board argued that they had the authority to do so if there was "written consent of the traditional authority or community authority".
On the other hand, the minister for the Department of Rural Development and Land Reform, the department that owns the land, and the Parliamentary Portfolio Committee on Land Reform did nothing to intervene. As the judgment puts it, the minister "has breached her duty to respect, protect, promote and fulfill the constitutional right to property" by the landholders. The department and the Parliamentary Portfolio Committee failed to intervene even after being briefed by the Trust and the Board in 2018 about the changed tenure arrangements in communal areas of KwaZulu-Natal.
Importantly, the actions of King Zwelithini and traditional authorities, through the Ingonyama Trust and Board, of converting the land tenure rights of the landholders raised questions about the ownership of communal land. In converting the tenure arrangements, the Ingonyama Trust and Board reasoned that the existing Permits to Occupy and other informal tenure arrangements were weak in law. Consequently, the Trust and its Board allegedly saw the need to upgrade the tenure rights of rural citizens "to a system which supported the issues underpinning traditional practice, and that the closest … was the lease".
However, the actions reflect an entrenched belief among traditional authorities that they are owners of land in communal areas. For in response to the debate about land expropriation without compensation, King Zwelithini threatened in 2018 that his followers would boycott the elections if their land would be affected. He further threatened that KwaZulu-Natal was prepared to become its own state if the government ignored its concerns. The threats confirm this entrenched belief of traditional authorities that they own the land. Thus, the real reason the Ingonyama Trust wanted the land lease is to entrench its power and control over land in rural areas.
Rural residents negatively impacted
The mistaken belief that traditional authorities own the land impacts negatively on rural residents. As I show in a chapter entitled Traditional Leaders' Conceptions of Land Reform and Rural Citizens' Identities, in a recently published book by the Mapungubwe Institute (MISTRA) on Land in South Africa: Contested meanings and nation formation, giving land ownership and control to traditional authorities renders people in communal areas non-citizens, and this impacts on the dignity, identity and livelihoods of these rural residents.
Indeed, there is a lot of evidence concerning the challenges rural residents face as result of traditional authorities' governance of communal lands. The experience residents of Makhasaneni, in northern KwaZulu-Natal, where traditional authorities sought to displace rural residents for mining activities, is one of the examples. In her chapter entitled Traditional leadership, Violation of Land Rights and Resistance from Below in Makhasaneni village KwaZulu-Natal, in the same MISTRA-published book, Sthandiwe Yeni shows that the residents of Makhasaneni had to engage in a struggle to protect their land rights as the local chief takes unilateral decisions about it.
The experiences of rural residents of KwaZulu-Natal are reflective of challenges rural residents in areas under traditional authorities all over South Africa face. These include the struggles of rural residents in Xolobeni, in Mbizana, rural residents of Centane, and those of the residents under the Royal Bafokeng. All the struggles show the undemocratic manner traditional authorities govern rural land.
Unresolved land tenure issue
The rural struggles over land highlight that the tenure rights of people in rural areas continue to be ill-defined into South Africa's democracy. This unresolved land tenure issue leads to constant contestation between traditional authorities and the rural residents over the ownership and governance of land in rural areas. Politicians also contribute to this situation by giving unwarranted concessions to traditional authorities. For instance, in its 2014 Communal Land Policy Framework, the government makes a concession that the outer boundaries of communal land belong to traditional authorities. This is part of the problem. Thus, the judgment contributes towards the resolution of this vexed issues concerning the ownership and governance of land in communal areas. The judgment clarifies the issue by declaring that rural residents are the actual landowners.
Moreover, the judgment enforces the tenure rights of rural residents. It points out that traditional authorities cannot just decide to undermine the land access and use rights of the landholders in communal areas. Rural residents must give informed consent before traditional authorities take decisions about the residents' land. This judgment, in a way, demands accountability of traditional authorities to rural residents. It strengthens the demands and campaigns by rural movements, such as the Inyanda National Land Movement and the Alliance for Rural Democracy for the democratisation of governance in rural areas.
Failure of parliamentarians
A question the judgment does not address concerns the special treatment given to the Zulu monarchy. The parliamentarians have failed to develop land tenure legislation for communal areas nationally. Currently, all communal land belongs to the Department of Rural Development and Land Reform. Yet, communal land in KwaZulu-Natal has been allowed to be a private asset of the Zulu monarch. This is another case of a dereliction of duty by the minister for the Department of Rural Development and Land Reform. It is the failure of the minister to protect the communal land as a national asset.
Thus, while interventions by organisations, such as the Council for the Advancement of the South African Constitution, in challenging such failures through the courts must be applauded, there is still issues the organs of civil society and the citizenry must do to ensure the success of South Africa's unresolved democratisation project.
- Dr Fani Ncapayi is Senior Researcher for the Trust for Community Outreach and Education. He is also a Research Associate for the Centre for African Studies at the University of Cape Town. He wrote the article in his personal capacity.