The Ingonyama Trust case and EWC

Graham McIntosh says citizens have right to safe and secure occupation, usage and ownership of land

In Pietermaritzburg on Friday the 11 June 2021 Justices Isaac Madondo, Jerome Mnguni and Peter Olsen (MMO) delivered a Judgement with much wider implications than only the administration of KZN’s Ingonyama Trust. They also had harsh words for Land Reform Minister Thoko Didiza, whose department deals with the Trust. 

It is not without practical symbolism that the Pietermaritzburg High Court building where Justices MMO delivered their judgement, is adjacent to the 180-year-old Pietermaritzburg Deeds Office. Identifying, describing and recording rights in land has been the statutory administrative duty of our South African Deeds Offices for over 200 years. 

Here are three key extracts from the MMO Judgment as reported by City Press.

- The Minister “failed in her constitutional obligation to respect, protect and promote the land rights of rural people living on land administered by the trust”.

- The Trust’s lease programme was in violation of the constitutional rights of residents, most of whom were the “true and rightful beneficial owners” under Zulu customary law.

- Didiza was ordered to adopt “appropriate mechanisms of protecting customary” land holders and for “proper processes” to be followed to reinstate and “allow for the granting of permission to occupy rights in terms of applicable KwaZulu-Natal legislation”.

The Judges crisply affirmed the constitutional right of every individual citizen, not only in KZN, to enjoy secure land tenure and the State’s responsibility to “respect, protect and promote land rights”. They did much more than simply strike down, as illegal, the leases being imposed by the Ingonyama Trust.

The Court has effectively binned and pre-empted any legal basis for Expropriation without Compensation (EWC). They unequivocally re-confirmed the right, as a constitutional right, of South African citizens to safe and secure occupation, usage and ownership of land.

The transparent and accessible Deeds Office is the appropriate and competent tool to give effect to the MMO Judgment. There is nothing political in the Deeds Offices. Each and every square metre of South Africa has been surveyed and depicted in accurate and comprehensive Topographical Survey maps.

All land in the Republic of South Africa is registered, described, and recorded and with a diagram, in our Deeds Offices. Unallocated State Land (UASL) which is in the custodianship and administered by traditional leaders; farms; suburban property; sectional title properties; mining land; State land such as our National Highways, National Parks, is all accurately recorded in the Deeds Office.

Experienced, well qualified competent technical civil servants have a positive and constructive symbiosis with a highly professional private sector in the form of skilled land surveyors and experienced conveyancing attorneys. The Deeds Offices are truly a national asset and rightly admired internationally.

The efficient system of land administration in the Deeds Offices, makes it possible easily to give effect to the MMO judgment, but also to extend secure property rights all over South Africa. With new technology, satellite mapping and the use of drones for surveying and identifying land, the process is faster, easier, more accurate and less costly. Every RDP home, informal housing site and rural properties, can be identified and any PTO rights can be turned into ownership with a legal title deed.

ANC Chairman, Gwede Mantashe has expressed strong and legitimate concerns around the urgent need for individuals owning houses and residing in UASL areas to be given formal ownership through issuing title deeds.

Deputy President, David Mabuza MP, correctly reminded Parliament that UASL is strictly and only, in the custodianship of traditional leaders and they do not own it and “should stop exploiting customary rights for unscrupulous ends”. (City Press 29 May 2019). The State is the legal owner. The Pietermaritzburg Judgement on the 11 June reaffirmed that the Ingonyama Trust was effectively “exploiting customary rights for unscrupulous ends”. 

The ANC’s December 2017 Policy Conference, passed the very significant, indeed radically reformist, resolution which stated that occupiers of land in the UASL areas should have secure tenure. 

It is thus not surprising that ANC Minister Thoko Didiza wasted no time in expressing her acceptance of the judgement, even though she and the ANC may not yet have grasped the full implications. 

No longer can President Ramaphosa and the ANC sit on the fence on EWC. The MMO Judgement has firmly pushed them off the fence.

Graham McIntosh (77) is a former MP, a graduate of the Universities of Cape Town and Cambridge.