‘Test land ten­ure in court’

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the way for­ward and has pre­vi­ously called on res­i­dents of tribal land to con­trib­ute R5 each to a fund for le­gal fees for a court chal­lenge.

Mn­guni was in KwaZulu-Natal for pub­lic hear­ings in Ulundi and Port Shep­stone on the Resti­tu­tion of Land Rights Amend­ment Bill, a pri­vate mem­bers’ Bill that he brought be­fore Par­lia­ment. The Bill would re­open the land claims process, al­low for the cre­ation of a full-time Land Claims Court and make sub­mit­ting a fraud­u­lent land claim a crim­i­nal of­fence.

Mn­guni said the high-level panel’s rec­om­men­da­tions had been re­ferred to a se­ries of port­fo­lio com­mit­tees to con­sider, in­clud­ing so­cial de­vel­op­ment, land and ed­u­ca­tion.

Al­though the rec­om­men­da­tions “need not be the fi­nal po­si­tion”, they gave guid­ance and op­tions to Par­lia­ment about what needed to be done, he said. The com­mit­tees were in the process of con­sid­er­ing them.

Mn­guni said cer­tain as­pects of the ITB might prove in court to be in­con­sis­tent with the Con­sti­tu­tion or, be­cause of the pas­sage of time, might be “out­moded”.

“Peo­ple are want­ing to be emo­tional about it, but we need to say that it has to be con­sis­tent with all other statutes of fi­nance and ru­ral de­vel­op­ment. It needs to ad­just and adapt,” she said.

“I find noth­ing about tak­ing away the king’s cus­tom­ary and tra­di­tional lead­er­ship role [in the panel’s rec­om­men­da­tions], but in­so­far as the is­sues of land, ed­u­ca­tion and health [are con­cerned], that is the duty of a sec­u­lar state.’’

Mn­guni said that, al­though the com­mit­tee had ex­pected a hos­tile re­sponse given the ten­sions over the ITB, it was “ex­cited” about peo­ple’s pos­i­tive re­ac­tions to the re­open­ing of the land claims process.

“I am aware that, on the land ques­tion as a whole, the meet­ing was ad­dress­ing the spe­cific is­sue of resti­tu­tion. I am not so sure as to what the re­sponses will be as to the rest of the land re­dis­tri­bu­tion and gov­er­nance mat­ters,” she said.

Re­gard­ing land ten­ure for ten­ant farm­ers and peo­ple liv­ing on farms, pub­lic hear­ings had been held in the prov­ince as part of the process of pass­ing amend­ments to the Ex­ten­sion of Se­cu­rity of Ten­ure Act of 1998, which had “a lot of glar­ing weak­nesses and loop­holes”.

The Act had been passed in the Na­tional As­sem­bly and would be con­sid­ered by the Na­tional Coun­cil of Prov­inces this se­mes­ter, he said.

Ten­ure on com­mu­nal land, in­clud­ing land un­der the ITB, re­mained a “thorny is­sue” that “needs to be vis­ited”.

“The is­sue needs a high level of lead­er­ship and a high level of wis­dom. It can­not be that one kind of lead­er­ship should im­pose it­self on the other. There must be a rap­port be­tween the tra­di­tional lead­er­ship and the demo­cratic dis­pen­sa­tion so as to en­sure that the tra­di­tional lead­er­ship has the back­ing of com­mu­ni­ties in the de­ci­sions they take,” he said.

“This is not an is­sue of con­tention. Tem­pers need to quiet down. This is an is­sue for mu­tual co-op­er­a­tion and for col­lab­o­ra­tion,” Mn­guni said.

Par­lia­ment’s con­sti­tu­tional re­view com­mit­tee would also visit the prov­ince next month to take in the pub­lic’s views on the process of ex­pro­pri­at­ing land with­out com­pen­sa­tion.

He said the gov­ern­ing party largely be­lieved that this could be achieved with­out amend­ing the Con­sti­tu­tion but by cre­at­ing a law of gen­eral ap­pli­ca­tion to al­low for acts of ex­pro­pri­a­tion.

“We need to pass this and then ex­pro­pri­ate ac­cord­ing to this Act,’’ he said.

“We need to ex­pe­dite ac­cess to land but in a man­ner that does not com­pro­mise eco­nomic ac­tiv­ity and the gross do­mes­tic prod­uct of the coun­try. Ex­pro­pri­a­tion should be one of the tools be­ing con­sid­ered for un­der­tak­ing land dis­tri­bu­tion … to en­sure that peo­ple have ac­cess to land should con­tinue to un­fold.’’

Bat­tle ready: King Good­will Zwelithini has in­structed the In­gonyama Trust Board to put to­gether a team of lawyers to take the mat­ter of dis­solv­ing the trust to the Con­sti­tu­tional Court. Photo: Thuli Dlamini/Gallo

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