Former president Kgalema Motlanthe’s High Level Panel report, which recommended to Parliament that the Ingonyama Trust Act be repealed or amended, has ignited a firestorm of threats and allegations.
Yet this recommendation is one of over 100 recommendations contained in the report.
All the recommendations are only that; recommendations. They are not final decisions. They must still be discussed and debated in Parliament.
Moreover, if Parliament does decide to amend or repeal the Ingonyama Trust Act, that legislative process would be subject to extensive public consultation.
From the King Goodwill Zwelithini kaBhekuzulu and the Trust’s recent media storm, it seems they are trying to pre-empt that public consultation, and meaningful debates in Parliament about how the Ingonyama Trust Board operates.
The High Level Panel’s report is based on public testimony about abuses on the ground and round-table discussions with experts and stakeholders who expressed serious misgivings about whether the Trust is upholding the land rights, including customary ownership of land, for people living on Ingonyama Trust land. The panel’s report criticised the Trust’s way of operating and proposed that the Ingonyama Trust Board should be disbanded.
“The panel motivates for the repeal of the Ingonyama Trust Act to bring KwaZulu-Natal in line with national land policy, and to secure land tenure for the communities and residents concerned. If repeal is not immediately possible, substantial amendments must be made. They must secure the land rights of the people affected, and ensure that the land vests in a person or body with proper democratic accountability”.
“There is also a pressing need to create mechanisms to investigate and resolve complaints by people whose rights have been infringed by the Trust, or whose rights may be infringed in the future.”
One of the main problems cited in the report is that the Ingonyama Trust collects rental for itself from land that is occupied and used by the beneficiaries of the Trust.
In terms of customary law these people, who may have inherited the land over generations, are the owners of the land.
The Trust Act binds the trustee (the King) to respect and protect pre-existing land rights and customary law specifically. Yet the Trust is systematically downgrading people with pre-existing customary land rights from owners into rent-paying tenants. This has substantially boosted its revenue base.
In November 2017, the Trust published advertisements in three KwaZulu-Natal newspapers plus Ukhozi FM, inviting people to trade their Permission-To-Occupy (PTO) certificates for rental agreements with the Ingonyama Trust.
“All people, companies and other entities holding land rights on Ingonyama Trust land in terms of the Permission To Occupy (PTO) are hereby invited to approach the Ingonyama Trust Board (ITB) with a view of upgrading these PTOs into long-term leases in line with Ingonyama Trust Board tenure policy,” the advertisements said.
There are many issues with the purpose and wording of the adverts. The first being the manner in which PTO holders are implicitly forced to forfeit ownership of their land. The advert tells residents that they need a lease agreement as proof of residence for purchasing cellphones, opening a bank account or even to vote.
It suggests that they have no alternative if they want to engage proactively as South African citizens.
The second issue is that ITB/IT is effectively taking customary ownership away from people and forcing them to pay for land that they already own.
This abrogates their property ownership rights and opens them up to potential dispossession if they fail to make lease payments. Residential lease agreements state that continued occupation depends on compliance with a number of conditions, including regular payment of rentals.
Though the leases are presented as an upgrade of existing rights, we know from its reports to Parliament that the ITB’s annual rental revenue rocketed from a few thousand rand before the residential leases were implemented to R96.1 million in the 2015/2016 financial year.
There is no evidence in the reports that any substantial share of this income has benefited ordinary residents. Historically, PTOs were an important form of tenure for people residing on SA Development Trust land. The Upgrading of Land Tenure Rights Act of 1991 provides that PTOs are upgradeable to ownership. Yet, the ITB lease agreements put PTO holders in vulnerable positions regarding rental and rental escalation.
The ITB lease agreements provide for a 40-year term and a 10% annual increase in rental. Land that costs R1000 a year to rent now will cost R2593 in 2028.
The leases also compel the lessee to fence the property at their own expense within six months, record all improvements and submit these to the ITB and obtain permission in writing to build. They allow the ITB to cancel the lease agreement for failure to pay rent. All buildings and structures that have been built on the land will belong to the Ingonyama Trust when the lessee vacates the premises.
Vulnerable residents in the remote hills of KwaZulu-Natal are consuming inaccurate information that is inciting violence and intimidation as though the High Level Panel recommendations are not based on grounded research.
This is not a fight to dispossess the Zulu people of their land, this is a way of re-framing how land administration in KZN should ensure accountability to customary land rights holders and transparency of administration when it comes to land.
* Sihlali is a researcher at the Land and Accountability Research Centre at the University of Cape Town.
** The views expressed here are not necessarily those of Independent Media.