11 June 2021
LRC and CASAC welcome landmark ruling declaring Ingonyama Trust’s actions unlawful and in violation of the Constitution
Pietermaritzburg — The Legal Resources Centre welcomes this morning’s ruling by the Pietermaritzburg High Court declaring the actions of the Ingonyama Trust unlawful and in violation of the Constitution in initiating leases with people already residing on Zulu customary land.
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. In a unanimous judgment handed down on 11 June 2021, the court made the following order:
- 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.
- 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.
- 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.
- 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).
- 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.
- 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 Ingonyama Trust was established in 1994 by the erstwhile KwaZulu Government in terms of the KwaZulu Ingonyama Trust Act, (Act No 3 KZ of 1994) to hold all the land that was owned or belonged to the KwaZulu Government. The mandate of the Trust is to hold all this land for the “benefit, material welfare and social well-being of the members of the tribes and communities” living on the land. Presently, 2,8 million hectares of land in KwaZulu-Natal is under the administration of the Ingonyama Trust, whose sole trustee is the Zulu regent (previously King Goodwill Zwelithini). However, in November 2017, the Ingonyama Trust published advertisements in various KZN newspapers “inviting” holders of PTOs to approach the Ingonyama Trust Board “with a view to upgrading these PTOs into long term leases in line with the Ingonyama Trust tenure policy”. CASAC and RWM acted in the public interest, whilst the seven informal land rights holders are 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. The applicants represent these 5.2 million South Africans and the threat that this matter poses to their security of tenure on this land.
Residents received no information about the consequences of signing these leases; they were not informed that they were in effect watering down their existing land rights or that it was possible to upgrade their PTOs to title deeds in terms of the Upgrading of Land Tenure Rights Act (ULTRA). Instead, the Ingonyama Trust Board persists that the leases provide stronger sets of rights and that a lease will assist with the securing of finance from banks and enable them to set up businesses, when in fact converting existing land rights into leases completely undermines their security of tenure. Furthermore, when rolling out the signing of these leases, the Ingonyama Trust deprived many women of their land ownership. Ms Lina Nkosi, for example, was informed by officials of the Trust that her PTOs were no longer valid and community members were required to enter into lease agreements to regularise their occupation on Trust-held land. Ms Nkosi believed she had no choice but to sign a lease, however when she attempted to do so, she was told single women were not allowed to conclude lease agreements and she had to bring a male relative or partner to sign on her behalf. Her explanations that she was the owner of the land and that her family had expended much money to build their home was not accepted. Ms Nkosi, fearing eviction felt she had no choice but to co-sign the Ingonyama lease with her partner.
“We are pleased with the relief granted to the LRC’s clients in protecting their constitutional and property rights to land they have occupied for generations. As well recognising the duty of the Minister to oversee the administration of the land held by the Trust. This case challenged the unlawful and systematic deprivation of vulnerable groups’ property rights by the Trust and its Board in the arbitrary exercise of its powers – particularly women living under traditional leadership systems,” said the LRC’s Sharita Samuel. “The replacement of PTOs with residential leases together with the minister’s dereliction of her duties – seriously prejudiced the applicant’s existing customary law and informal rights to and interest in Trust-held land. It was a necessary court intervention, and the evidence established the unconstitutional and unlawful conduct by the Trust,” she added.
CASAC’s Lawson Naidoo said, “This ground-breaking judgment vindicates the rights of residents on land held in trust by the Ingonyama Trust; it confirms that the residents are the true and beneficial owners of the land, and that the State must now take active measures to secure these rights and through it, the dignity of 5.2m people.”
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 LRC and CASAC welcome this judgment as a means to restore our clients’ informal land rights or PTO rights to their land and will ensure the security of tenure for people living on Ingonyama Trust land.