The Ingonyama judgment: Why the state must heed court orders to halt dispossession and deliver land rights

Dr Aninka Claassens is a chief researcher at the Land and Accountability Research Centre in the Law Faculty at the University of Cape Town.

The scale and seriousness of the violence and looting in South Africa in July has refocused attention on South Africa’s staggeringly high levels of structural inequality and exclusion. New interventions are being sought to address a ticking time bomb of despair and hopelessness. The government is promising to throw money at the problem. Think tanks are grappling with scenario options.  

But not much is being said about the immediate and obvious benefits that would accrue if the government would simply desist from practices that dispossess vulnerable South Africans of their property and citizenship rights. 

First, do no harm.

The past 10 years have seen a gargantuan battle between the courts and government over land reform and the property rights of the 18 million South Africans living in former homeland areas.  Time and again the courts have ruled in favour of land reform and the property rights of rural people. The government has continually ignored these judgments or intervened on the side of traditional leaders and other elites. 

In June, rural people won yet another massive court victory, this time in KwaZulu-Natal against the Ingonyama Trust and the minister of land reform. The Pietermaritzburg High Court ruled that the trust had acted unlawfully in extorting rents from people whose customary ownership rights remain unrecorded and therefore structurally vulnerable. 

The facts of this case illustrate how the government connives in patterns of elite enrichment that prey directly on the residual property rights of the poor and vulnerable.   

Government intransigence

This is the fourth high-profile judgment that orders the land reform ministry to honour constitutionally enshrined land rights that it has breached and to regularly report back on its progress towards obeying the court order. Courts do not easily grant structural interdicts such as this, in which they retain jurisdiction over a case and require the government to report back to them. They do so when the facts before them show the presence of government intransigence in the face of systematic breaches of basic rights. 

Two of the previous such orders were handed down by unanimous decisions of the Constitutional Court, in 2018 and 2019. The first ordered government to expedite restitution claims that had been lodged before 1998.  The second ordered the government to process the land claims of labour tenants that had been ignored for 25 years. Many claimants have died in despair during this time. (The third order related to long process delays and state failure to comply with a court order in the District Six restitution claim in Cape Town).

The ground-breaking Ingonyama judgment cancels all the residential leases that the Ingonyama Trust Board (ITB) forced residents to sign on threat of expulsion from their land and communities. It orders the ITB to refund all the rent money collected since it initiated the “conversion to leases” programme in 2007. It orders the land reform minister to issue residents with written proof of their underlying land rights. Ironically there is no option but for this proof to take the form of the old “Permission to Occupy” certificates that were issued during apartheid. This is because of Parliament’s long delay in enacting a law to secure vulnerable tenure rights as required by section 25(9) of the Constitution.

Will the judgment make a difference?

The legal victories have been celebrated, but will these far-reaching court orders make a difference to the lives of rural people?  

On the positive side, the Ingonyama judgment orders the trust board and the minister to report on progress in the matter every three months. But repaying rental income that has already been spent will not be easily achieved, and the capacity and commitment of officials to issue written records of individual rights does not inspire confidence — these are the same officials who previously “lost” thousands of labour-tenant and restitution claims.  

The daunting capacity issue is a symptom of a far more intractable problem — that of a failure of political will in the face of deeply entrenched elite alliances within the ruling party. Land, and the budget for land reform, have become resources for distribution within networks of patronage politics. 

The problem goes beyond the hijacking of processes for proactive land reform. Vulnerable rural people are being systematically dispossessed of the precariously held property rights they managed to retain in the face of the ravages of apartheid and forced removals. The Ingonyama judgment describes the mechanics of this process of dispossession in detail and records what had happened under the watch of the minister and Parliament, who received annual reports of the “progress” being made by the Ingonyama Trust. 

No appeal

The minister chose to support the claims of the Ingonyama Trust in the litigation rather than those of rural residents. (To her credit, minister Thoko Didiza has instructed that there should be no appeal against the judgment. It remains to be seen whether the Ingonyama Trust will comply with this instruction. The minister appoints the members of the board.)

The rent-seeking practices of the Ingonyama Trust in KwaZulu-Natal are a local variation of a wider theme of government empowering traditional leaders to treat “communal land” in former homelands as their personal property, without regard to the rights of the people who have lived on and inherited this land over generations. The judgment is a thundering rebuke to that approach.  

A woman protests in Cape Town in 2020 against the government's land reform strategy. (Photo: EPA-EFE / Nic Bothma)