The land is theirs

October 1st, 2021

Council for the Advancement of the South African Constitution and Others v Ingonyama Trust and Others 2021 (8) BCLR 866 (KZP)

It is often said that the South African Constitution is the best in the world. However, this would mean nothing if the rights enshrined in the Constitution were not applied in a manner which improves the lives of ordinary South Africans. The Ingonyama case is proof that South African courts remain loyal to affirming the supremacy of our Constitution.

The applicants brought a case against the Trust averring that they were hoodwinked into concluding lease agreements with the Trust in respect of land on which they were living based on permissions to occupy and/or informal land rights, which had been passed down pursuant to Zulu Customary law and protected under the Interim Protection of Informal Land Rights Act 31 of 1996. They averred that over the years, the Trust had been undermining the residents’ security of tenure by inducing them to enter into leases, which many of them could not afford. The applicants sought an order declaring that these lease agreements were unconstitutional and, therefore, invalid.

The Trust refuted these averments, asserting that s 2(5) of the KwaZulu-Natal Ingonyama Trust Act 3KZ of 1994 (the Act) permitted the Trust to enter into lease agreements with residents of Trust held land subject to obtaining the prior written consent of the traditional authority or community authority concerned. The Trust was of the view that the permissions to occupy were a remnant of the old order, a racially discriminatory way of providing land tenure to black people, and that leases were a more secure instrument as they could be used to secure financing from financial institutions for residential and commercial purposes. In 2007, the Trust launched its ‘Permissions to Occupy Conversion Project’ through which it ceased issuing permissions to occupy in respect of Trust held land and encouraged all permissions to occupy holders to ‘upgrade’ their permissions to occupy to 40-year leases. Any new applications for permissions to occupy would be processed as leases.

Brief background on the Trust

The Trust is a corporate body established under s 2(1) of the Act. The sole trustee of the Trust is the King of the amaZulu (the King). The affairs of the Trust are administered by the Trust Board (the Board). The Trust holds 2,8 million hectares of land in KwaZulu-Natal, which, in terms of s 3(1)(a) of the Act, is held in trust ‘for and on behalf of the members of the tribes and communities and the residents’ of the Zulu nation.

The court’s findings

The court reiterated that permissions to occupy and/or informal land rights are protected under s 25 of the Constitution. As the custodian of the land, the King does not have absolute power to deal with the land. The King’s power is limited by and subject to the Act, customary law, legislation, and the Constitution.

Because tenure of residential land under Zulu customary law is perpetual, transferable, and inherited, the actions of the Trust and its Board had the effect of depriving the residents of their customary, statutory and Constitutional rights to property and security of tenure. The conclusion of lease agreements and termination of permissions to occupy terminated the residents’ rights of ownership arising from customary law and had the effect of placing such ownership in the hands of the Trust. The permissions to occupy, unlike the leases, were not subject to the payment of rental and could be transferred in certain circumstances and bequeathed down the family line. The leases, on the other hand, stipulate a rental amount that must be paid annually. Failure to pay the stipulated rental constitutes a material breach, which constitutes grounds for termination. The court found that the payment of rental to traditional authorities for tribal land is a practice, which is foreign to Zulu customary law and one which is a violation of this law.

The leases are only for a 40-year term and require that an application for extension be submitted at the end of the term for consideration by the relevant traditional council. Permissions to occupy, on the other hand, continue in perpetuity unless cancelled by the Minister of Rural Development and Land Reform after consultation with the relevant traditional authority. Property held under a permission to occupy may, in terms of the Land Affairs Act 101 of 1987, be converted to property held under a deed of title. The buildings erected on the land also belong to the holder of the permission to occupy, which is not the case for buildings on leased land which belong to the landlord.

In addition to the disadvantages attached to the leases as set out above, the Trust presented no evidence to prove that the leases would endow the lessees with the commercial benefits which they alleged the leases would.

The court declared that the Trust had breached the Act by failing to administer the land for the ‘benefit, material welfare and social well-being of the beneficiaries and residents’ of the Trust held land, and ‘in accordance with Zulu indigenous law or any other applicable law’ (ss 2(2) and 2(4) of the Act).

The Trust was also in violation of the residents’ rights under the Interim Protection of Informal Land Rights Act 31 of 1996, which informal land rights cannot be deprived without the informed consent of the holders.

The Permissions to Occupy Conversion Project was found to be unconstitutional to the extent that it violated the residents’ rights to property as enshrined in s 25 of the Constitution. The lease agreements concluded pursuant to the Project were declared unlawful and invalid, and the Trust was ordered not only to bear the costs of the applicants’ counsel, but to reimburse all rentals received by it from the residents pursuant to the leases.

Zoleka Ntshingila LLB (Wits) (cum laude) is a legal counsel in the Absa Commercial Property Finance team and writes in her personal capacity.

This article was first published in De Rebus in 2021 (Oct) DR 31.

De Rebus