Senate receives document questioning King’s land rights
MBABANE – Senate is worried about a sensitive document that was given to it by farm dwellers, as it questions His Majesty’s land rights. Senators are reportedly sceptical about incorporating some of the sensitive submissions made by the Centre for Socio-Economic Rights and Development (CSERD) into the Farm Dwellers (Amendment) Bill No.19 of 2019.
The Bill is in and out of Parliament. However, the House of Assembly passed it. CSERD is the main stakeholder in the amendment of the Bill as it represents the interests of the farm dwellers. Its membership is dominated by the farm dwellers and those who were evicted from farms.
It was established following an upsurge in land rights violations, especially as it relates to families residing in the individual tenure farms with or without farm dwellers agreement.
In its submissions to Senate, the farm dwellers said the British Colonial Administration and a few in the opposition political party benches, at the pre-independence conference, were suspicious of a wholesome vesting of land rights in the monarchy, rather than a democratically elected government.
The organisation stated that whilst they acknowledged the political astuteness and dexterity of King Sobhuza II and his ability to reclaim land for the benefit of emaSwati, they knew this was not going to be the case with future Kings, regents and their heirs.
The association told Senate that it would seem these concerns were prophetic, as every other litigation today or land rights violations had the monarchy at the centre. They listed the litigations as follows –
1. Nokwane;
2. Zikhotheni;
3. Ntondozi;
4. Gege;
5. Velezizweni;
6. Madonsa;
7. Mafucula;
8. Vuvulane;
9. Sitsatsaweni;
10. Sigombeni;
SILULU ROYAL HOLDINGS
The farm dwellers questioned Silulu Royal Holdings (SRH), which they described as the opaque entity under which tracts of land holdings under Ingwenyama in trust for emaSwati had been allocated. They said SRH was responsible for managing royal farms in the land, and the entity was also responsible for negotiating with royalty and determining the different land uses in the farms. They said Silulu was basically a reincarnation of the Lifa Fund, which resulted in the establishment of Tibiyo Taka Ngwane, a national investment company.
They said Queen Regent Gwamile established the Lifa Fund in 1907, whereby all able-bodied emaSwati working within and outside the country, contributed a portion of their wages to be used for purchasing back land expropriated through concession grants in 1880s. Other families donated cattle to help buy back the land from the white colonial settlers.
TIBIYO IN SPOTLIGHT
After independence, they said, it was legitimised by Royal Charter under the hand of King Sobhuza II and renamed Tibiyo Taka Ngwane and put under the Monarch’s direct control. “To date, it is not clear what the legal persona of this corporate person known as Tibiyo Taka Ngwane is or where the power to bring into being such a malleable corporate person derives,” the farm dwellers stated.
Their submissions are contained in a report. They pointed out that claimants, in most instances, were descendants of historic lawful occupiers and settlers who followed the customary rights of kukhonta (acquiring land in accordance with Eswatini law and custom), under respective chiefs.
They said the foundation of the Eswatini land tenure system was a relationship founded on trust between the King and the people. Senate was told that the institution of the King/monarchy, was to hold land in trust for the people of Eswatini, and issues of land would continue to be dispensed in terms of the culture of emaSwati – a central feature of which is the rule by the King in Council.
The farm dwellers submitted that the Constitution of the Kingdom of
Eswatini recognised the land as the common heritage for all emaSwati.
They quoted Section 19, which reads: “A person shall not be compulsorily deprived of property or any interest in or right over property of any description, except where the following conditions are satisfied – the compulsory taking of possession or acquisition of the property is made under law which makes provision for – prompt payment of fair and adequate compensation.”
They said the Bill in its current form failed to meet this threshold, but sought to shift the burden for fair and adequate compensation to the State. That is not only imprudent, but it will be accompanied when passed into law by an unprecedented wave of rights violations and evictions of farm dwellers, they opined. They further said it was important to place the responsibility to compensate the farm dwellers firmly in the hands of the developer or land owner. This would prevent overzealous landowners or developers to violate the law with impunity.
Concerned farm dwellers are of the view that the Farm Dwellers Bill No.9 of 2019 should seek to legislate the practical implementation of Section 19 (2) and Section 211 (3) of the Constitution.
The mass evictions of farm dwellers should be prevented by complying with Section 19 (1) of the Constitution of the Kingdom of Eswatini as read with Section 211 (3).
Section 19 (1) reads: “A person has a right to own property either alone or in association with others.”
Subsection 2 reads: “A person shall not be compulsorily deprived of property or any interest in or right over property of any description, except where the following conditions are satisfied (a) the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health;
(b) the compulsory taking of possession or acquisition of the property is made under a law which makes provision for
(i) prompt payment of fair and adequate
compensation; and
(ii) a right of access to a court of law by any person who has an interest in or right over the property;
(c) the taking of possession or the acquisition is made under a court order.” Section 211 (3) states that from the date of commencement of this Constitution, all land (including any existing concessions) in Swaziland (Eswatini), save privately held title-deed land, shall continue to vest in Ingwenyama in trust for the Swazi Nation as it vested on April, 12, 1973. Section 211 (2) states that save as may be required by the exigencies of any particular situation, a citizen of Eswatini, without regard to gender, shall have equal access to land for normal domestic purposes.
The farm dwellers referred to Section 211 (3) which reads: “A person shall not be deprived of land without due process of law and where a person is deprived, that person shall be entitled to prompt and adequate compensation for any improvement on that land or loss consequent upon that deprivation unless otherwise provided by law.”
It is mentioned in subsection 4 that; “all agreements, the effect of which is to vest ownership in land in Eswatini in a non-citizen or a company the majority of whose share-holders are not citizens, shall be of no force and effect unless that agreement was made prior to the commencement of this Constitution. It is spelt out in the supreme law that a provision of this chapter may not be used to undermine or frustrate an existing or new legitimate business undertaking of which land is a significant factor or base.”
Benedict Xaba, the Clerk to Parliament, referred this publication to Mpendulo Ngcamphalala on whether Senate received the document from the farm dwellers. Ngcamphalala explained that they received the document and had incorporated some of their submissions to the Bill. He did not dwell much on the sensitive part of the document.
Sources within Senate said they did not want authorities of the country to even know that they were in possession of such a document.
Senate is expected to preserve the monarchy as it is dominated by legislators who are traditionalists. The King appoints 20 of the 30 senators. Farm evictions are common in the country. Recently, farm dwellers in the Shiselweni region torched a TLB that was driven to a farm at Mooihoek to demolish homes. Last year, a farm owner was subjected to mob justice together with his servants. His car was burnt.
Gavin Khumalo, the National Coordinator of the Centre for Social Economic Rights and Development, said it was their hope that Parliament would pass a fair law. He urged them to start with the Land Bill. Khumalo said land was very important as God had to create it before He made a man in His own image to occupy, control and manage it.
Khumalo said he was a victim of eviction, as his home was demolished in Malkerns in 2018. He said he was homeless, and considered himself as a stateless person. He said the tombs of their forefathers were still on the farm in Malkerns. He mentioned that his family had lived in the place for about 100 years, including the time when the place was occupied by their fathers.
Khumalo moved to a rental apartment, and has been living there since his eviction in 2018. As the issue is before Senate, the Times SUNDAY avoided interviews and questions that could influence the debate of the Bill, as Parliament made it clear that people were free to approach it for input.
‘‘Farm dwellers questioned Silulu Royal Holdings, which they described as the opaque entity under which tracts of land holdings under Ingwenyama in trust for emaSwati had been allocated.”