Landmark court judgment in South Africa protects land rights | Land Portal
Author(s): 
Rick de Satge
Language of the news reported: 
English
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On the 11th June the Pietermaritzburg High Court ruled that the Ingonyama Trust (created as the last legislative act of the outgoing apartheid government in 1994)  had adopted an illegal policy of forcing people living on land that had occupied for generations to sign leases and pay rent to the Trust. The court ordered the Trust to pay pay back the money which it had illegally levied from people living on some 2.8 million ha of land in KwaZulu-Natal province.

The Ingonyama Trust was established through a deal between the National Party and the Inkatha Freedom Party just before the democratic transition in 1994. The Trust was established to manage 2.8 million ha of land owned by the former homeland government of KwaZulu. The Act was amended in 1997 to create the KwaZulu-Natal Ingonyama Trust Board to administer the land in accordance with the Act. The creation and operations of the Trust have been long been under fire:  

the Trust has been subject to a great deal of controversy for failing to protect the land rights of people living on the land it administers. The Trust has come under fire for its ongoing conclusion of long term surface lease agreements with mining companies, in terms of which it signs lease agreements with mining companies to enable mining activities on land which is often occupied and used by local communities. These agreements are sometimes concluded without proper community consultation and lead to the deprivation of use rights and access to land.  (Clark, M and Luwaya, N. 2017).

A High Level Panel  established by the South African Parliament noted that the Parliamentary Portfolio Committee on Rural Development and Land Reform “have raised serious concerns about the revenue received by the Trust and the apparent failure on the part of the Trust to reroute its revenue back to the beneficiaries of the Trust” (HLP. 2017. p. 203).

The report of the High Level Panel noted that:

At the hearings people complained that they are currently more vulnerable to dispossession than they were before 1994. The problem is especially acute in areas where mining is taking place in former homeland areas, and in areas administered by the Ingonyama Trust in KwaZulu-Natal. People complain that traditional leaders and officials deny their land rights (including long-standing customary rights) and assert that traditional leaders have the sole authority to sign agreements with investors in respect of communal land.

The HLP report confirmed that the ITB has been converting the original Permissions to Occupy (PTOs) into lease agreements with a 40 year term. It highlighted a number of onerous conditions in the lease agreements:

  • lessees have to pay site rentals to the ITB with rents escalating by 10% per annum;
  • lessees are required to fence their property within six months and to obtain written permission to build or make improvements;
  • failure to pay the rent may trigger cancellation of the lease and enable the ITB to take over any building or structures on the land when the site is vacated.

The HLP noted that in the 2015/16 financial year the ITB received rental income of more than 96 million rand. The HLP report records that “there is little evidence” that this revenue “is used for the benefit of communities or their material well-being”.

The Rural Women's Movement with the support of the Legal Resources Centre (LRC) and the Council for the Advancement of the South African Constitution (CASAC) released the following statement following the judgment.

The LRC instituted an application in the Pietermaritzburg High Court in 2018 on behalf of the Council for the Advancement of the South African Constitution (CASAC), the Rural Women’s Movement (RWM) and seven individual holders of informal land rights against the Ingonyama Trust, Ingonyama Trust Board and the Minister of Rural Development and Land Reform, which was heard before a full bench on 9 and 10 December 2020.

The LRC argued on behalf of its clients that the conduct of the Ingonyama Trust in inducing rights-holders to enter such leases is unlawful.  While CASAC and RWM acted in the public interest,  the seven informal land rights holders represented a class of all people who have already been instructed to convert their Permission to Occupy (PTOs) or informal land rights to long-term lease agreements by the Ingonyama Trust. For these seven individuals, this fight is personal. The group comprises of single mothers, factory workers, pensioners, farmers and fathers trying to provide for their families. For many, their ascendents worked the land on which they are now being forced to pay rent. They have – along with the other 5.2 million residents of the Ingonyama Trust land – built their homes and their lives on this land.Those affected by the Ingonyama Trust’s decision to cancel PTOs and to conclude lease agreements are part of some of the poorest communities in South Africa. The Ingonyama Trust’s lease agreements require them to pay rent for land which their families have occupied for generations. The applicants represent these 5.2 million South Africans and the threat that this matter poses to their security of tenure on this land.

In a unanimous judgment handed down on 11 June 2021, the court made the following order:

  1. Both the Ingonyama Trust and the Ingonyama Trust Board acted unlawfully and in violation of the Constitution by concluding residential lease agreements with persons living on the land held in trust by the Ingonyama and concluding residential lease agreements with persons who held or were entitled to hold Permissions to Occupy or other informal rights to land protected under the Interim Protection of Land Rights Act 31 of 1996.
  2. All the residential lease agreements concluded by the Trust and the Board, in respect of residential land or arable land or commonage on Trust-held land, are declared to be unlawful and invalid.
  3. The Trust must refund all monies paid to the Trust or the Board under the lease agreements to the persons who made such payments and any person who made payments under the lease agreement is entitled to a refund by the Trust to the extent of such payments.
  4. The Minister has breached her duty to respect, protect, promote and fulfil the constitutional right to property of the holders of IPILRA rights vested in respect of the Trust-held Land, by failing to respect, protect, promote and fulfil the existing property rights and security of tenure of the residents of Trust-held land, as required by sections 25(1) and 25(6) of the Constitution, read with section 7(2) of the Constitution and failing to exercise, or failing to ensure the exercise by her delegate, of the powers conferred by chapter XI of the KwaZulu Land Affairs Act 11 of 1992 and the KwaZulu Land Affairs (Permission to Occupy).
  5. Until such time as the Minister may implement an alternative system of recording customary and other informal rights to land of persons and communities residing in Trust-held land:
    5.1 the Minister is directed to ensure that the administrative capacity necessary to implement chapter XI of the KwaZulu Land Affairs Act 11 of 1992 and the KwaZulu Land Affairs (Permission to Occupy) Regulations is reinstated forthwith; and
    5.2 the Minister shall report to the Court on the steps taken to comply with paragraph 5.1 of this order, within three months of the date of this order and every three months thereafter until the parties agree in writing that the steps envisaged in paragraph 5.1 have been implemented and that the reporting may be concluded, or the court, on application by any party, so orders.
  6. The Trust, the Board and the Minister opposing this application are directed to pay the costs of this application, the one paying the other to be absolved, including the costs of the four counsel employed (with three counsel having been employed at any one time).

The LRC, CASAC  and many civil society organisations have welcomed this judgment as a means to restore informal land rights or PTO rights to  land which will ensure the security of tenure for people living on Ingonyama Trust land. The judgement also has major implications for formulation of the Communal Land Tenure Bill which is expected to be presented to Parliament in the coming months.

For more information on this story visit knowledgebase.land where we collate land related news for South Africa and the Southern African region. One of the main support organisations in this matter the Land and Acountability Research Centre at the University of Cape Town has also issued a press statement which provides further background and a link to the court judgment itself. The full judgement is attached.

 

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