24 August 2022 – Supreme Court of Appeal dismisses Ingonyama Trust Board application for leave to appeal

For Immediate Release

24 August 2022

Supreme Court of Appeal dismisses Ingonyama Trust Board application for leave to appeal

BLOEMFONTEIN — The Supreme Court of Appeal has dismissed the application for leave to appeal lodged by the Ingonyama Trust and the Ingonyama Trust Board on the grounds that there are no reasonable prospects of success.

The two applicants had approached the Supreme Court of Appeal following the landmark ruling by a full bench of the Pietermaritzburg High Court in June 2021. The ruling declared that the Ingonyama Trust acted unlawfully and in breach of the Constitution by initiating residential leases with people who were residing and had enjoyed permission to occupy and IPILRA rights on Zulu customary land for generations.

The High Court granted leave to appeal against the judgment in May this year but excluded the ‘recusal point’ as grounds for the appeal. The Ingonyama Trust and Ingonyama Trust Board had introduced an argument, in their application for leave to appeal, that Acting Judge President Madondo and the late Justice Mnguni ought to have been recused from adjudicating the matter as they had property on land held by the Ingonyama Trust, thus creating the potential for bias. Considering this perceived conflict, the ITB argued that the judgment be declared a nullity and set aside.

Despite the recusal point being dismissed, it was raised again as the grounds for the application made to the Supreme Court of Appeal. The applicants sought to appeal the decision of the High Court to dismiss the application that the judges ought to have been disqualified from hearing the matter and the proceedings declared a nullity. The ITB applied for the matter to be referred back to the court a quo to be heard by judges from outside the KwaZulu-Natal Provincial Division.

The Legal Resources Centre (LRC), on behalf of the Council for the Advancement of the South African Constitution (CASAC), argued that the allegations of bias do not satisfy the test for recusal, and nothing alleged by the applicants could constitute grounds for the automatic disqualification of the judges in question. On this basis, it was argued that the application lacked any prospects of success.

Last week on 17th August, Justices van der Merwe and Kgoele considered the arguments made by both sides and ordered that the application for leave to appeal be dismissed on the grounds that there is no reasonable prospect of success and that there is no other compelling reason why an appeal should be heard.

CASAC Executive Secretary, Lawson Naidoo said, “We hope that this is the end of the attempts by the Ingonyama Trust and its Board to frustrate the ruling of the high court, and that Minister Didiza can now implement the remedial action ordered by the court.”

The LRC welcomes this finding by the Supreme Court of Appeal, on behalf of its clients – the residents of the ITB land and CASAC.


Issued by the Legal Resources Centre

Enquiries: Sharita Samuel, attorney of record – sharita@lrc.org.za