Pietermaritzburg- Friday 11 June 2021.
The Ingonyama Trust was established in 1994 by the then KwaZulu Government in terms of the KwaZulu Ingonyama Trust Act, (Act No 3 KZ of 1994) to hold all the land that was owned or belonged to the KwaZulu Government. According to many rural land rights expects likee Nomboniso Gasa, associate professor at the university of Cape Town, the trust was result of a hastily negotiations to ensure cooperation of the Zulu monarch in post apartheid South Africa
The application, brought by the Legal Resources Centre on behalf of community residents subject to the Ingonyama Trust, claimed in its court submissions that the lease programme was unlawful as it violated the constitution of the Republic.
The Legal Resources Centre submissions alleged that the lease programme had concluded lease agreements with community members who where, under Zulu customary laws, lawful owners of the land they occupied. Or members who enjoyed informal land rights in terms legislation.
These were individuals who had legal certainty in terms of Permission To Occupy rights. Under these so called PTOs a resident is given legal permission to occupy land. A holder of such a PTO does necessarily become owner but does for all intensive purposes enjoy rights equal to that of an owner.
In the Case of Maduna vs Daniel and others (2001) JOL 9186 (TK) the courts accepted and confirmed the view that the personal rights enjoy under PTOs where akin to real property rights. Consequently, section 25 of the constitution becames all the more relevant as it invalidates conduct that amount to arbitrary deprecation of property.
Led by adv. Thembeka Kgcukayithobi the LRC argued such agreements with PTO holders resulted in unlawful deprivation of people's land rights and thus consequently violated land rights protected by section 25(1) of the constitution.
The same was true of instances where individuals had land tenure rights stemming from the Interim Protection of Informal land Act 31 of 1996. In this regard ngcukaithobi alleged that conversion of land rights to lease agreements with individuals protected by IPILRA without first acquiring prior consent was an unlawful infringement.
In their arguments the LRC pointed out that by concluding lease agreements with holders of PTO rights the lease programme unlawfully diluted people's rights and undermined both Customary and Constitutional law of the Republic.
Consequently, the LRC Legal team had in its papers argued that the lease revenue collected from landowners was also unlawful and as such petition the court to declare it as such. They sought leave of court to determine a timetable for the ratification of the unlawful conduct including reimbursement of all monies collected under the scheme.
In today's judgement the PMB High court ruled that the conduct of the Ingonyama Trust was unlawful in so far as it relates to lease agreements concluded with PTO right holders and in respect of such agreements with land occupants protected by the Interim Protection of Informal Land Act 31 of 1996.
Furthermore,The Court declared all leases over residential & agricultural land with the lawful & beneficial owners under zulu customary law or held in terms of IPILRA or with PTOs unlawful and invalid. It also provisioned for the reimbursement of money paid under the terms of these leases.
Lastly, the Minister of Rural development and Land Reform was found to have failed in its constitutional obligations to protect,promote and respect rural land rights and reform. As such Minister Thoko Didiza is given period of 3 months, from execution of judgement, to report back to the court about developments relating to the protection of informalt land rights and issuing of PTOs.
After the handing down of judgement the Legal Resource center released statement welcoming the judgement and outlining it's casse and subsequent judgement.
In the response sharita Samuel exclaimed that "We are pleased with the relief granted to the LRC’s clients in protecting their constitutional and property rights to land they have occupied for generations."
Speaking on behalf of CASAC Lawson Naidoo said that “This ground-breaking judgment vindicates the rights of residents on land held in trust by the Ingonyama Trust; it confirms that the residents are the true and beneficial owners of the land
It's is not clear at this stage if the Ingonyama Trust Board will appeal the judgement. The only indication they have given is that the board's legal team was studying the judgement.
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