That is the unequivocal direction by three judges to the Ingonyama Trust in South Africa’s KwaZulu-Natal province after they ruled that forcing some five million trust-land residents to sign leases and pay rentals to live on their ancestral land was unlawful and unconstitutional. Tania Broughton reports.
The trust has been in existence since the eve of democracy in South Africa when the Zulu King was “gifted” large tracts of land in KwaZulu-Natal which would be run by traditional leadership structures.
The trust does not own the land. It merely administers it on behalf of the people.
National government is supposed to play an oversight role.
About a decade ago, the trust resolved to do away with the existing “Permission To Occupy (PTO) system”, and replace it with leases.
Residents described how they were bullied into signing away their rights, they were threatened with banishment and told how they were “turning against the King”.
Women in particular were mistreated with traditional leaders refusing to allow them to sign the leases, insisting that could only be done by men.
The Council for the Advancement of the South African Constitution (Casac), the Rural Women’s Movement and several individuals personally affected by the lease policy, with the aid of the Legal Resources Centre, turned to the courts, arguing that trust-land residents had been forced to sign away their customary rights.
The trust had acted unlawfully, it was argued, and residents could be thrown off their land if they did not pay.
In a unanimous ruling, Deputy Judge President Isaac Madondo, Judge Peter Olsen and Judge James Mnguni have now declared all leases to be unlawful, that the trust must pay back the money and directed Thoko Didiza Minister of Rural Development and Land Reform to reinstate the PTO system and report back to the court on progress every three months.
The judges found that Didiza had breached her duty to protect the interests of the residents, by failing to oversee the trust and allowing the trust’s board to “go on a frolic of its own, reducing them to mere tenants”.
It was criticism that Didiza took to heart. In a radio interview, she said she “should have done more”.
And, while the trust’s attorney has said he has instructions to appeal the judgment, the minister was this week pressing ahead in compliance.
She said she had already contacted the relevant provincial minister to discuss how to strengthen capacity to begin the monumental task of restoring the PTOs.
She said she had contacted the trust’s board, and directed that it comply.
And she had “made overtures” to meet the new King MisuZulu KaZwelithini.
It remains to be seen how the new King will approach the issue and if he will adopt the “hardline” stance of his father King Goodwill Zwelethini when it came to the affairs of the trust.
There will most certainly be no softening from the chairman of the trust, Jerome Ngwenya, who, the judges said, had adopted an “unfortunate and saddening” response to the court application, insinuating that it was grounded in racism and an affront to the institution of the ubukhosi.
Concerns have also been expressed about transparency going forward, with the trust traditionally keeping its books close to its chest.
LRC attorney Sharita Samuel said, “It is not possible for us to quantify the sum. It would require the trust and the board to make its records available so that the minister can interrogate and confirm the amount of rentals unlawfully collected. It falls on the minister to ensure transparency.”
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