The great trial dodge: Ingonyama Trust and the price of a date deferred

25 Nov 2019

With the rights of almost 10% of the SA population at stake and a landmass close to a third of the size of KwaZulu-Natal under review, the case that was meant to be heard in the Pietermaritzburg High Court on 22 November 2019 had the potential to light a national fuse.

For apparently inconsistent reasons, the case has now been postponed to late March 2020. This has consequences not just for the customary land rights holders, for whom Bantustan laws remain a lived reality, but for every South African in favour of breathable air, clean water and fertile soil.

One day in 2005, in the municipality of Ndwedwe in rural KwaZulu-Natal, a series of events were set in motion that seemed to typify South African injustice in almost every way. It started, predictably, with an apartheid-era document that was still in wide official use — a Permission to Occupy certificate, or PTO, that a man named Zakhele Nkwankwa needed so that he could prove his claim to the land. Nkwankwa went to fetch the document from the office of the Traditional Council, from where the white minority rulers had once held sway by proxy over the district.

Nkwankwa was well-acquainted with this history — which was why, in the new South Africa, he assumed he could trust the secretary of the Traditional Council. The secretary asked for his personal details, filled out a form for him and appended the council’s stamp. Then he was handed another form which, he was told, “had to be filled out by the municipality”. When he went to the municipal offices and the paperwork was complete, he was informed that “someone would come and inspect the land” to make sure his boundaries were correct and he was not blocking any roads.

At no point in the process, Nkwankwa would testify more than 12 years later, was there an opportunity to ask questions. The officials, he added, did not tell him what it meant to be signing a lease.

“The lease document [was] entirely in English,” Nkwankwa declared in his oath. “It was only after I went home and sat down to decipher what was written, with the little English I know how to read, that I saw the provisions saying that I would have to make the payment that was demanded of me every year and that it would increase by 10% every year. I had been under the impression that the payment I had made was once-off.”

If Nkwankwa's experience was unique, his story would almost certainly not have been told, let alone recorded in an affidavit. There was, however, every reason to believe that the alleged abuse of traditional power in the former homeland of KwaZulu had been visited upon thousands. Hletshwenli Lina Nkosi, for one, who testified to an identical experience of coercion and deceit, swore that she had heard “numerous accounts” from others in her community that confirmed the general pattern.

By the time Bongani Zikhali’s claim was processed in 2012, the organisation behind the conversion of PTOs into leases — the Ingonyama Trust, whose sole trustee was (and remains) King Goodwill Zwelithini — had apparently perfected the method of securing signatures en masse. Zikhali went with his ID book to a pre-arranged location, he testified, where he found that buses had been organised to transport about 50 people “like cattle to the slaughterhouse”.

Zikhali’s choice of metaphor was apt: the people had no idea where they were “being taken,” he explained, or why they were “going there”.

As it turned out, the destination was the local Thusong Centre, part of the nationwide programme that had been established “to bring government information and services closer to the people”. A potential motive for the secrecy, as Daily Maverick would later glean, was that while the KwaZulu-Natal Ingonyama Trust Act of 1994 had been accorded the status of a National Act in 2004, the representatives of the Trust were not officials of the government — they were, according to the Act itself, representatives of Zulu indigenous law, appointed to administer the 2.8 million hectares of Ingonyama land for the “benefit, material welfare and social well-being of the members of the tribes and communities”.

And yet on the day that Zikhali was shuttled to the Thusong Centre, the Ingonyama officials were waiting. They remained silent in the back, he testified, while the induna (the local headman) spoke.

“More people came in throughout the meeting,” continued Zikhali, suggesting it wasn’t just those 50 individuals who were coerced into signing on that day.

“We were given forms from two women who work at the Trust. We were told to pay money which was an initial joining fee. They took our IDs and started filling out our documents, but I do not remember them asking us questions or explaining anything about what they were filling out or what the forms said.”

These three testimonies, which were buttressed by the sworn statements of another four applicants, two of whom declined to provide their full names for fear of violent reprisal, would eventually be appended to the founding affidavit of Lawson Naidoo, executive secretary of the Council for the Advancement of the South African Constitution (CASAC). On behalf of CASAC, the Rural Women’s Movement and the seven informal land rights holders, the matter would be filed in the Pietermaritzburg High Court by the Legal Resources Centre (LRC) in November 2018.

At stake, aside from the collection of hundreds of millions in allegedly unlawful rent, was the apparent breach of section 25(6) of the Constitution, which had been written to protect “people or communities” whose land tenure had become “legally insecure” as a result of “past racially discriminatory laws or practices”.

The respondents — including the Minister of Rural Development and Land Reform, the Ingonyama Trust Board and the KZN Provincial House of Traditional Leaders — were meant to answer the application by the end of January 2019, but had requested more time from the judge. By 22 November 2019, when the matter was set down for trial, the window for deferments was supposed to be closed.

II.

On the afternoon of 19 November 2019, as Daily Maverick was preparing the material for a background feature to be published on the eve of the trial, we received a call from a source. The trial had been postponed, the source said, without prior consultation or notice.

Daily Maverick promptly contacted Thabiso Mbhense of the LRC, attorney for the applicants.

“It was not us that requested the postponement,” said Mbhense, adding that he wasn’t sure if it was the other side. “We’re still trying to find out what happened.”

He wasn’t happy about this surprise turn, Mbhense said, mainly because the LRC had already booked flights and accommodation for counsel, incurring unnecessary costs. Two hours later, the attorney for the state, Sipho Mathebula, would also reply to our questions, denying that it was Minister Thoko Didiza who had lobbied for the deferral.

“Did you ask the applicants’ attorneys?” Mathebula texted. “It might be them.”

When we replied that we had, Mathebula suggested there may have been an alternative explanation. The Judge President of KwaZulu-Natal may have been swayed by the “interest” the trial had attracted over the previous weekend, he wrote, which in turn may have convinced him of “the seriousness [of] the outcome” for both parties.

Indeed, in the letter forwarded to attorneys and counsel by Justice Peter Olsen on 19 November, it was stated — “given the issues” — that Judge President Achmat Jappie had decided to upgrade the trial to a full bench over two days.

The letter further stated that the “request for television coverage” would have to be “considered by the Full Court in due course.”

While this did not necessarily mean that the state had the inside track, it did beg a fundamental question: why had Jappie not been wise to the obvious national interest back when the trial date had been set? After all, a simple news search for “Ingonyama Trust” would have yielded more than 2,000 results, with articles on the land rights issue appearing already in January 2018.

“We’re as much in the dark as you are,” said Lawson Naidoo of CASAC, when Daily Maverick contacted him the next day. “If there was a decision that it would need to be a full bench over two days, that’s a decision that could have been taken a long time ago.”

And so, barring any real answer to the question, all Daily Maverick was left with were the merits of the case. At its core, to the applicants, it boiled down to this: paying for the right to reside on the land had always been a foreign concept in Zulu customary law.

The applicants’ authority on the matter was none other than Professor Thandabantu Nhlapo, the first chairperson of the Commission on Traditional Leadership Disputes and Claims, which had been set up by President Thabo Mbeki in 2004 to cleanse all customary institutions in South Africa of their colonial and apartheid-era stains. Of no small significance to the case, a retrospective in The Politics of Custom, an authoritative collection of essays published by Wits Press in 2018, had arrived at two overarching conclusions about what had since become known as the “Nhlapo Commission”.

First, noted the chapter’s authors Dineo Skosana and Mbongiseni Buthelezi, every South African government, including the post-apartheid dispensation, had attempted in one way or another to bring traditional authorities under the control of the state — “indeed,” the authors stressed, “to make them ‘the state’ at the local level.”

Second, there were the “contradictions inherent in the efforts of the [current] government, through the Nhlapo Commission, to reverse engineer chieftaincy,” a strategy that had “yielded competing claims, infighting and much litigation.”

This was profoundly ironic, not just because the matter of CASAC & Others v The Ingonyama Trust & Others would arguably become the most far-reaching litigation in the category to ever appear before a South African court — it would affect, in the end, the rights of 5.2 million citizens living on Trust land — but because no one had seriously challenged King Goodwill Zwelithini’s claim to the Zulu throne.

Also, while the king had threatened “civil war” after former president Kgalema Motlanthe’s High-Level Panel had argued for the disbandment of the Ingonyama Trust in 2018, citing the fact that its rental income was more than R96-million for the 2015/16 financial year alone, he would still secure the backing of the state in the Pietermaritzburg High Court case.

“There is no factual basis laid in the papers to support the specific relief sought,” testified acting director-general of the Department of Rural Development and Land Reform, Rendani Sadiki, in the answering affidavit deposed on behalf of Minister Didiza. Likewise, the papers claimed, there was no factual basis for the court to grant an order declaring that the Ingonyama Trust had “acted unlawfully and in violation of the Constitution” by cancelling PTO rights and replacing them with lease agreements.

Respectfully, Nhlapo disagreed. In his supplementary affidavit to CASAC’s founding papers, the former deputy vice-chancellor of the University of Cape Town — the man who had built his entire reputation and career on his knowledge of African customary law — laid out why indigenous land rights did not equate with concepts of ownership in the Roman-Dutch system.

Where common-law land rights were “exclusive,” Nhlapo testified, “based on the premise of a specific legal person owning or leasing a defined area of land,” customary law ownership was “inherently inclusionary,” based on “a system of complementary interests held simultaneously.”

In this context, he added, the Ingonyama lease agreements did not “encapsulate and protect the layered and nested rights of the beneficial occupiers of the Trust-held land,” and in fact downgraded the lessee’s customary ownership “to that of a tenant” whose continued occupation was conditional on the payment of rent.

As for the Constitution, Nhlapo was unequivocal. Since security of tenure had always been linked in indigenous law to collective decisions about the best use of the land and its resources, and since the Ingonyama lease agreements ignored the “co-existing customary rights” of all family members other than the lessee, they undermined the security of tenure of families and the wider community.

But it wasn’t just section 25(6) of the Constitution that the Ingonyama Trust and Minister Didiza were up against. Aside from section 8 of the Trust’s own founding Act, which had been included to safeguard the communities’ pre-existing rights, the respondents appeared to be in breach of the Interim Protection of Informal Land Rights Act (IPILRA), which had been passed in 1996 to safeguard the security of tenure of the residents of the former Bantustans.

In late 2018, IPILRA had been ratified by the courts in two precedent-setting cases involving the AmaMPondo of Xolobeni in the former Bantustan of Transkei and the Bakgatla Ba Kgafela of the Pilanesberg in the former Bantustan of Bophuthatswana.

Here, for the occupants of the former Bantustan of KwaZulu, the consequences of the postponement of their own day in court were likely to be a whole lot worse than another year’s instalments of unlawful rent.

III.

“Investment deals are concluded by the traditional leader without consulting with, or even informing, the community, who simply see bulldozers and trucks on the job. Dynamiting operations crack the walls of houses; coal dust covers roofs so that it becomes impossible to harvest rainwater; the same soot covers grass and renders it unfit for grazing. The traditional leader does not want to account, refuses to attend meetings.”

If these were the words of an urban environmentalist, they would hardly have packed a punch. But they were the words of a resident of rural KwaZulu-Natal, spoken at the public hearings of the Motlanthe High-Level Panel, and they echoed the sentiments of traditional community members across the length and breadth of the country.

The common thread, the High-Level Panel found, was that tenure insecurity on communal lands was attributed by disenfranchised locals to “collusion by government officials” — these officials, according to the people on the ground, were ignoring all legal checks and balances “so that elites [were] enabled to profit from land and mining deals.”

As with the titanium in the red dunes of Xolobeni and the platinum in the hills of the Pilanesberg, government honchos and their private-sector mining partners had been going after the riches by exploiting customary law and paying off chiefs. But again, these examples were the exception — because less than a year after the release of Motlanthe’s report, the North Gauteng High Court and the Constitutional Court would lean on IPILRA to recognise the rights of the communities of Xolobeni and the Pilanesberg to “free, prior and informed consent”.

For the Xolobeni anti-mining activists, barring the outcome of a mooted appeal by mineral resources and energy minister Gwede Mantashe, the protection came just in time. Unfortunately for the Bakgatla Ba Kgafela, as Daily Maverick had reported in the final article of a multi-part series, the decision came after the mining companies and their chief had robbed them of an estimated R25-billion, denuding their water sources and desiccating their soil.

Still, relative to the Ingonyama matter, the Xolobeni and Bakgatla cases were small. With the rights of almost 10% of the South African population at stake, the hearing set down for the Pietermaritzburg High Court on 22 November had the potential to reverberate across the judiciary for years. By all accounts, if things went the applicants’ way, the decision would alter the tenor of cases that had yet to be filed or were currently on appeal.

“There’s a lot of coal in KZN,” Aninka Claassens of the Land and Accountability Research Centre reminded Daily Maverick. “There’s a terrible anthracite plant called Zululand Anthracite Colliery.”

Without much trouble, Daily Maverick was able to confirm that this controversial mine, which had been developed by BHP Billiton on the border of the Hluhluwe-IMfolozi Game Reserve, had been paying rent to the Ingonyama Trust for more than a decade. It was a matter of public record that the chairperson of the Ingonyama Trust Board, former judge Jerome Ngwenya — who in 2018 had been accused of flouting his own leaseholder rules — held shares and a directorship in the colliery’s parent company.

“Then there’s Tendele,” said Claassens, referring to the company that owned the Somkhele Mine near the iMfolozi River, supplier of half of South Africa’s anthracite coal. In August 2018, 4,000 residents of the district had applied to the Pietermaritzburg High Court for an interdict, arguing that the company was violating their “environmental, land and traditional rights” and desecrating their graves. The application, in which the Ingonyama Trust and Minister Mantashe were named as respondents, had been inexplicably dismissed with costs — the Supreme Court of Appeal, according to the activists, was due to review the judgment “before February 2020”.

But on 22 November 2019, instead of presiding over the trial, the same Pietermaritzburg High Court would postpone CASAC & Others v The Ingonyama Trust & Others to 25 March 2020. The Somkhele appeal, in other words, would now be unaffected by the CASAC case, which would arguably benefit no-one so much as the coal mining bosses and the beneficiaries of the Trust.

Also, given that in October 2019 an appeal had been lodged by 18 activist groups against the licence granted to Sasol and ENI to drill for natural gas off the KZN coast, all of a sudden the CASAC matter would be irrelevant here too.

By Daily Maverick’s reckoning, this was the ultimate impact of the postponement: the fossil fuel executives and their “traditional authority” vassals, who were mimicking apartheid-era governance structures with the support of the post-apartheid state, could continue to act with impunity. To paraphrase Professor Nhlapo, the customary land rights of the affected communities, where “inclusionary” consent was the in-built mechanism to protect the water and soil, could continue to be ignored.

Or, to put it even more bluntly, the upside of extracting and burning the carbon for a handful of individuals could continue to outweigh the benefits, for millions of South Africans, of leaving it in the ground.

If there was any consolation for the rightful custodians of Ingonyama Trust land, it was that when their case eventually got heard — be it on 25 March 2020 or at some later date — they were unlikely to lose.

“I agree with you,” said Naidoo, when Daily Maverick put it to him that the papers didn’t favour the respondents. “I think it’s quite a straightforward case.” DM

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