R39m to effect Ingonyama ruling
A new directorate is needed to reverse leases and issue permission to occupy certificates to residents
Land Reform Minister Thoko Didiza will create a new directorate responsible for converting residential leases issued by the Ingonyama Trust Board (ITB) to people living on its land to permission to occupy (PTO) certificates.
The directorate — which is being set up in terms of an order issued by the Pietermaritzburg high court in June — is set to cost the taxpayer just under R40-million a year in order for the staff required to carry out the conversions.
Didiza, the Ingonyama Trust Board and the Kwazulu-natal department of cooperative governance and traditional affairs were given three months to come up with a plan to reverse the ITB’S lease programme and to refund residents who had been paying residential lease fees to it.
The court did so after Linah Zikhali and other residents of ITB land, backed by the Council for the Advancement of the South African Constitution and the Rural Women’s Movement, went to court to successfully challenge the legality of the lease programme, which was introduced in around 2007.
The lease programme was declared unlawful by the court, which found that Didiza had failed in her duty to safeguard the rights of tenure of the estimated 11-million people living on the estimated three-million hectares of land falling under ITB control.
Didiza was ordered to present the court with her implementation plan for reversing the lease programme within three months — with monthly updates on progress thereafter — while the ITB was ordered to refund residents the lease fees it had collected.
The order will remain in place until the applicants are satisfied that Didiza has created the administrative framework to reverse the leases and issue PTO certificates to the residents and provide the court with a written confirmation of this.
At this stage it is not clear exactly how much revenue the ITB raised from leases — which generated about R90-million in 2018.
The ITB, which is funded by the land reform department, was set up to administer tribally controlled land in Kwazulu-natal on behalf of the Zulu monarch ahead of the 1994 elections.
Its chairperson, Jerome Ngwenya, has been at loggerheads with parliament and the auditor general, both of which have taken the body to task for poor financial management and a failure to deliver benefits to people living on Itb-administered land.
The plan submitted to the court by Didiza, which the Mail & Guardian has seen, is aimed at creating a framework for converting existing residential leases into PTO certificates and formalising their future issue in the 303 traditional councils in the province.
The staffing for implementing the plan will cost the government R39-million in the current financial year, with a 1.5% increment set for each of the next two years.
It would consist of an eight-person directorate, headed by a chief director, which would work with a team of 77 field workers falling under a district manager appointed to head up operations in each of the province’s 11 districts.
The province’s cooperative governance and traditional affairs department lacked the capacity to run the process of converting leases to PTOS and issuing new ones going forward, necessitating the creation of a directorate that would do so.
“It must also be noted that the provincial department of cooperative governance and traditional affairs has confirmed that there is no capacity anymore, since 2007, available to perform this function, hence the human resources requirements reflected above constitute a fully fleshed unit which will also be responsible for the implementation of the new system and the new communal land tenure laws being developed by the department across the country,”’ the plan states.
The plan also outlines a manual application system for the issuing of PTOS along with the traditional authorities, who would also have to be trained in the new system, as part of the process to “transform the insecure forms of land tenure into a legally protected tenure”.
Didiza’s spokesperson Reggie Ngcobo confirmed this week that the land reform minister had submitted the implementation plan to meet the terms of the court order earlier this month.
She would be providing further updates every three months, an additional requirement of the order, Ngcobo said.
The provincial department will abide by Didiza’s plan and will not be submitting its own independent implementation plan to the court.
The ITB has, however, not started refunding residents the money they have paid it over the years, as ordered by the court.
Instead, chairperson Ngwenya has approached the court for leave to appeal the judgment, claiming conflict of interest on the part of two of the three judges who delivered the ruling.
Ngwenya did so despite being told by Didiza that he should not appeal the judgment.
In his notice of application for leave to appeal, Ngwenya said because Kwazulu-natal Deputy Judge President Mjabuliseni Madondo and the late judge Jerome Mnguni’s family homes were on Itb-administered land, both had a “direct interest” in the relief sought in the lease case.
The Legal Resources Centre is understood to be preparing to approach the court to challenge the legal authority of the ITB chairperson to bring the application for leave to appeal within the next few days.