Customary landowners dispute Ingonyama Trust leases

After being told he owed thousands of rands in rent to King Goodwill Zwelithini’s trust, Zakhele Nkwankwa has joined hundreds of residents taking the trust to court to challenge its stranglehold.

Zakhele Nkwankwa always dreamed of building his wife, Dudu, a decent home on land administered by the Ingonyama Trust. Now he is heading to court.

On 22 November, Nkwankwa, along with the Rural Women’s Network, the Council for the Advancement of the South African Constitution and others, will challenge leases imposed by the trust in the high court in Pietermaritzburg. According to court papers, the complainants want the leases to be cancelled.

The trust has been criticised publicly for converting permission to occupy (PTO) rights into lease agreements. The move has been seen as a way of dispossessing people by making it impossible for them to benefit from the land in the iLembe District of KwaZulu-Natal, which falls under the Maphumulo Local Municipality.

A declaration of war

King Goodwill Zwelithini is the sole trustee of the Ingonyama Trust land, which spans about three million hectares and was established in terms of the Ingonyama Trust Act. Former Inkatha Freedom Party leader Mangosuthu Buthelezi formulated the act, which former president FW de Klerk passed just hours before the 1994 national elections.

A high-level panel, led by former president Kgalema Motlanthe and established in January 2016 to assess the effect of several laws on the country’s democracy, found that the act should be repealed or amended because it does not work in the interests of the people living on the land. There has also been pushback by some traditional leaders who do not want Zwelithini to be the sole trustee.

Earlier this year, President Cyril Ramaphosa assured Zwelithini that the ANC would not touch land administered by the trust, after the king reportedly claimed that any attempts to alter the Ingonyama Trust arrangement was an intolerable provocation to “the Zulu nation” and “a declaration of war”.

During the commemoration of Umkhosi weLembe (formerly King Shaka’s Day) in September, Zwelithini reportedly again asked for Ramaphosa’s assurance that the Ingonyama Trust land would not be touched. He was quoted as saying that he wanted Ramaphosa to travel to KwaZulu-Natal with something in writing to confirm this.

2 October 2019: Zakhele Nkwankwa outside the house he built on land for which he had permission to occupy rights, that the Ingonyama Trust then leased to him.
02 October 2019: Zakhele Nkwankwa (53) standing outside his house at Ozwathini in Bhamshela , 90 kilometres away from Durban.

Landowners become lessees

Nkwankwa, a 53-year-old father of two, said that after marrying he was forced to get some sort of proof that they were residents of the upper Tongaat community. He approached the local induna for a letter. He then went to Ithala Bank to apply for a loan to build a house, but was told he needed PTO rights to prove that he was a member of the community.

“I went back to the chief and asked him for a PTO, and he said I would get it from an office in Pietermaritzburg. I submitted the confirmation letter from the chief to the Ndwedwe Municipality, so they could take it to Pietermaritzburg.”

A year later, Nkwankwa received a surprise visit from a municipal official to inspect the PTO land. Another year went by without the document being issued.

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“Officials wearing game ranger uniforms from the Hluhluwe Game Reserve visited me the following year. They told me they checked all land administered by the Ingonyama Trust. They surveyed the land and then left.” Nkwankwa said he was too afraid to ask the men their connection to the matter.

The next year, he received a letter informing him to approach the Ingonyama Trust for the document. He and his wife went to Pietermaritzburg to fetch the paperwork. But an official gave Nkwankwa a lease agreement instead and told him that because he owned a sizeable plot of land, he would be required to pay R3 500 a year, an amount that would increase by 10% every year.

“I was disappointed. I went outside to tell my wife, and we paid the money. We did not read the document. It was thick and written in English, so we don’t even know what we were agreeing to. There wasn’t even time to read the document. We were told to just sign.”

When he could not secure a loan to build the house, Nkwankwa realised he had been duped.

“I eventually built my house without getting the loan from the bank. The Ingonyama Trust kept sending me letters [that said] I owed them money for the lease agreement I signed. They demanded I pay R20 000 in arrears. I refused.”

The legal route 

Then the Legal Resources Centre, a public interest law firm, intervened. “They stopped sending me letters. People in rural areas know that the Ingonyama Trust is doing something wrong. They are collecting money from poor people in rural areas. They are doing as they please, and it should be shut down by the government.” 

Nkwankwa is convinced the Ingonyama Trust targets poor people because they do not have access to good lawyers. 

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Legal Resources Centre attorney Thabiso Mbhense confirmed that he would be representing Nkwankwa and others in the matter. “Essentially, we are challenging the conversion of the permission to occupy into lease agreements because we feel they infringe on the customary rights of landowners in rural areas.

“We also want the Ingonyama Trust to refund everyone, because some of them have been paying or some made payments in the past. This is an illegal method of making [occupants] pay for owning land in rural areas.” 

Customary land rights

Newly appointed University of Cape Town land and accountability research director Nolundi Luwaya agrees with Mbhense. There is no doubt Nkwankwa’s customary land rights are being undermined.

By signing leases, said Luwaya, people who are equivalent to owners are being turned into lessees. “How is this not undermining people’s rights? We believe what the trust is doing is a form of deprivation without consent. 

“In an ideal system, ubab’Nkwankwa should be able to get a loan with the backing of his customary land rights. It’s just that currently, the law has no mechanism to make it possible for the bank to know how to engage with customary land rights.”

3 October 2019: Bonisile Mthembu (left), Victoria Mthembu and Phindeni Sikobi (right) after a community meeting in Hlomendlini at which matters relating to the Ingonyama Trust were discussed.
3 October 2019: Bonisile Mthembu (left), Victoria Mthembu and Phindeni Sikobi (right) after a community meeting in Hlomendlini at which matters relating to the Ingonyama Trust were discussed.

Luwaya added that cases of people living in rural areas signing leases for land they have lived on for generations are only found in KwaZulu-Natal, because the land is governed by the Ingonyama Trust. But dispossession of land happens all over the country in different ways. 

“In areas where there is mining, like North West and Limpopo, people are told in the form of threats that if they do not allow mining to take place, they will lose their land or will not get service delivery.

“Ultimately, what anchors all of this is that there is no respect and recognition for customary land rights.”

The chairperson of the Ingonyama Trust, Jerome Ngwenya, did not respond to queries.

Amendment, 11 September 2020: Jerome Ngwenya’s title has been updated in line with Chief Justice Mogoeng Mogoeng’s request in September 2020 that he no longer use the title as Ngwenya resigned from the position.

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