Ingonyama Trust case postponed at the last minute

A politically charged court case involving millions of rand in rent paid to a trust which Zulu King Goodwill Zwelithini heads will now be heard by a full Bench of the KwaZulu-Natal High Court in Pietermaritzburg.

The Ingonyama Trust is accused of “extorting” rent from rural communities in KwaZulu-Natal, without their informed and genuine consent.

The case was supposed to be argued in the High Court on Friday, when lawyers representing the residents hoped to raise questions about how the Ingonyama Trust Board spent millions in rent collections. Zwelithini is the sole trustee of the Ingonyama Trust.

But on Tuesday, Judge Peter Olsen told the parties that KZN Judge President Achmat Jappie had decided that the matter should be heard by a full Bench because of the serious issues that have to be decided.

The matter would have to be set down for two days.

Since the risk of it becoming part-heard by a full Bench would become difficult to manage because more than one judge’s schedule would be involved, the case could not be heard on Friday.

It can also not be heard during the current court session, which ends next month, and there was a suggestion that it should be heard next year.

Olsen indicated that a request for televised coverage of the case would also have to be considered by the full Bench.

Lawson Naidoo, executive secretary of the Council for the Advancement of the South African Constitution (Casac), which is one of the main parties in the case, said on Tuesday night that he was shocked to hear about the delay.

“Why wait for the eleventh hour to announce this when this case was set down for hearing months and months ago? We don’t understand that and at the very least, we would have expected to have been given an opportunity to make representations before the decision [to postpone] was made,” Naidoo said.

According to court papers, the Ingonyama Trust received more than R106m from residential and commercial leases in 2017 alone on rural land controlled by the trust.

The trust was set up in 1994, shortly before the country’s first democratic elections, vesting custodianship of almost one third of the land in KwaZulu-Natal under Zwelithini.

The chairperson of the Ingonyama Trust Board, Jerome Ngwenya, has characterised the court case as a “direct attack against His Majesty, Amakhosi and the Zulu nation”.

“We run the risk of stripping the Zulu nation (of) the last cloth to wear,” Ngwenya charged in a responding affidavit, adding that the court case was “disrespectful and provocative”.

But the applicants – Casac, the Rural Women’s Movement and seven rural residents of KZN – claim that: “Since 2007, and possibly earlier, the Ingonyama Trust and the Ingonyama Trust Board have been undermining the security of tenure of residents and occupiers of trust-held land in KwaZulu-Natal, and extorting money from them, by unlawfully compelling them to conclude lease agreements and pay rental to the trust to continue living on the land.”

One of the applicants, 73-year-old Hluphekile Mabuyakhulu, from the Jozini district, said in an affidavit that an announcement was made in 2011 that local residents had to attend a community meeting at the offices of the Traditional Council.

“They told us that if we did not conclude leases then we would not be recognised by the king as being part of the community. They told us that our land would be taken away and we would be left on the streets to fend for ourselves,” Mabuyakhulu said.

She said the terms of the new lease agreements were not explained, all documents were printed in English, and only when she received a final copy of the lease in 2012 did she realise that she would henceforth pay R1,500 annually (escalating at 10% per year) for her 0.24 hectare plot, and that “everything on it could be taken away” if she did not pay this rent.

Mabuyakhulu stated that as a pensioner, she received a grant of about R1,300 per month and she had to borrow money to survive.

“At first it looks like the money (rental) is not too much, but it increases every year. I feel like I was duped by the people who told me that I needed to get the lease. I feel like I was scammed by the trust. I don’t know where the money is going,” she said.

Another Jozini resident, 51-year-old Mabongi Gumede, said she was struggling to support her three daughters and their children and now had to pay R2,900 a year to the Ingonyama Trust.

She claimed she was also told that people living under chiefs had to sign leases “to be in line with what is now required by the law and for the king to know who you are, and to be recognised as a member of the community”.

After the 2011 community meeting, she said, “the induna’s ‘police’ went around saying that everyone must have a lease, or else there would be trouble and we would be thrown off the land”.

Naidoo stated in his affidavit that by compelling and inducing residents to sign lease agreements, the trust and the board were violating customary law and assumed land administration powers they did not have.

He argued that inducements to residents to sign lease agreements on the basis of false and incomplete information were “serious, widespread and systematic” and that many impoverished people could not afford the new royal rentals.

He also suggested that neither the executive nor the legislature had taken effective steps to stop the “unlawful” conduct or to protect the rights of the residents and occupiers of the trust-held land.

As a result, the applicants would ask the High Court to declare this conduct unlawful and unconstitutional and to initiate a new process for residents to cancel their leases and recover any money paid to the trust.

Naidoo also cited concerns raised by the high-level panel, chaired by former president Kgalema Motlanthe in 2017, stating that:

“Significant income is generated for the Ingonyama Trust by such lease agreements. In the 2015/2016 period, rental income was R96 130 563. There is little evidence that the revenue generated by leases is used for the benefit of communities or their material well-being.”

Naidoo also submitted that the board recently reported that 95.85% of its budget had been spent on “administration”, with only a small fraction going to rural development.

Apart from the Ingonyama Trust and the board, the applicants have also cited the Minister of Rural Development and Land Reform, the KZN MEC for Co-operative Governance and Traditional Affairs, and the KZN House of Traditional Leaders as respondents.

In his responding affidavit, Ingonyama Trust Board chief executive Bonginkosi Mkwanazi said the applicants had failed to produce cogent evidence that they were coerced into signing leases, or that the trust itself placed them under duress or undue influence.

If there had indeed been any coercion of residents, then the applicants should identify these parties and take legal action against them.

Mkwanazi also argued that the new lease arrangements were designed to “uplift and empower people” by doing away with apartheid-era “permission to occupy” permits, and enabling people to prove land tenure for the purpose of accessing cellphones, bank accounts, voter registration or liquor licences.

He disputed that the trust of the board were undermining rural land tenure or “extorting” money.

He suggested that the income from residential leases was “negligible” compared to commercial leases and that claims that residents were not benefiting from trust income were “speculative and ill-founded”.

“The trusts’ annual reports to the minister and to Parliament demonstrate how the revenue has been and is being appropriated,” he said.

Rendaki Sadiki, director general of the Department of Rural Development and Land Reform, suggested that the court order the applicants sought would impose considerable new financial and administrative burdens on the state to survey large areas of rural land.

Responding on behalf of the Minister for Rural Development and Land Reform, the director general suggested that the concerns raised by the Motlanthe high-level panel about the substantial revenues raised for the Ingonyama Trust through residential leases were not a “definite finding of fact” and were merely “inputs into policy development that are yet to be considered by government”.

However, the minister would abide by the court’s decision to refund any lease rentals in cases where it could be proved that they were concluded without the informed and genuine consent of residents.

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