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[2021] ZAKZPHC 42
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Council for the Advancement of the South African Constitution and Others v Ingonyama Trust and Others (12745/2018P) [2021] ZAKZPHC 42; 2021 (8) BCLR 866 (KZP); [2021] 3 All SA 437 (KZP); 2022 (1) SA 251 (KZP) (11 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:12745/2018P
In the matter
between:
COUNCIL FOR THE
ADVANCEMENT OF THE
SOUTH AFRICAN
CONSTITUTION
FIRST APPLICANT
RURAL WOMENâS
MOVEMENT
SECOND APPLICANT
HLETSHELWENI LINA
NKOSI
THIRD APPLICANT
BONGANI
ZIKHALI
FOURTH APPLICANT
ZAKHELE MALCOLM
NKWANKWA
FIFTH APPLICANT
HLUPHEKILE
BHETINA MABUYAKHULU
SIXTH APPLICANT
BONGI
GUMEDE
SEVENTH APPLICANT
KN
EIGHTH APPLICANT
SM
NINTH APPLICANT
and
THE INGONYAMA
TRUST
FIRST RESPONDENT
THE INGONYAMA
TRUST BOARD
SECOND RESPONDENT
THE MINISTER OF
RURAL DEVELOPMENT
AND LAND
REFORM
THIRD RESPONDENT
THE MEC FOR
CO-OPERATIVE GOVERNANCE
AND TRADITIONAL
AFFAIRS, KWAZULU-NATAL
FOURTH RESPONDENT
KWAZULU-NATAL
PROVINCIAL HOUSE OF
TRADITIONAL
LEADERSHIP
FIFTH RESPONDENT
ORDER
The
following order is granted:
1.
It is declared that the first respondent (âthe Trustâ) and the
second respondent
(âthe Boardâ) acted unlawfully and in violation
of the Constitution by â
1.1
concluding residential lease agreements with persons living on the
land held in trust by the Ingonyama
(âTrust-held landâ) who are
the true and beneficial owners of Trust-held land under Zulu
customary law, by virtue of being members
of the tribes and
communities referred to in section 2(2) of the Ingonyama Trust Act
3KZ of 1994 (âTrust Actâ), and
1.2
concluding residential lease agreements with persons who held or were
entitled to hold Permissions
to Occupy or other informal rights to
land protected under the Interim Protection of Land Rights Act 31 of
1996 (âIPILRAâ) in
the land subject to the leases, without
complying with the requirements of section 2 of IPILRA.
2.
All the residential lease agreements concluded by the Trust and the
Board, in respect
of residential land or arable land or commonage on
Trust-held land, with persons who â
2.1
are the true and beneficial owners under Zulu customary law of
Trust-held land, by virtue of being
members of the tribes and
communities referred to in section 2(2) of the Trust Act, or
2.2
held or were entitled to hold Permissions to Occupy or any other
informal rights to land protected
under IPILRA in the land subject to
the leases,
are declared to be unlawful and
invalid.
3.
It is declared that the Trust is obliged forthwith to refund any and
all money
paid to the Trust or the Board under the lease agreements
referred to in paragraph 2 to the persons who made such payments and
any
person who made payments under the lease agreement is entitled to
a refund by the Trust to the extent of such payments.
4.
It is declared that the third respondent (âthe Ministerâ) has
breached her
duty to respect, protect, promote and fulfil the
constitutional right to property of the holders of IPILRA rights
vested in respect
of the Trust-held Land, by â
4.1
failing to respect, protect, promote and fulfil the existing property
rights and security of tenure
of the residents of Trust-held land, as
required by sections 25(1) and 25(6) of the Constitution, read with
section 7(2) of the Constitution;
4.2
failing to exercise, alternatively failing to ensure the exercise by
her delegate, of the powers
conferred by chapter XI of the KwaZulu
Land Affairs Act 11 of 1992 and the KwaZulu Land Affairs (Permission
to Occupy) Regulations
to demarcate allotments, issue and register
Permissions to Occupy, survey such allotments, and obtain
certificates of registered
title in respect of such allotments in
Trust-held land.
5.
Until such time as the Minister may implement an alternative system
of recording
customary and other informal rights to land of persons
and communities residing in Trust-held land:
5.1
the Minister is directed to ensure that the administrative capacity
necessary to implement chapter
XI of the KwaZulu Land Affairs Act 11
of 1992 and the KwaZulu Land Affairs (Permission to Occupy)
Regulations is reinstated forthwith;
and
5.2
the Minister shall report to the court on the steps taken to comply
with paragraph 5.1 of this order,
within three months of the date of
this order and every three months thereafter until the parties agree
in writing that the steps
envisaged in paragraph 5.1 have been
implemented and that the reporting may be concluded, or the court, on
application by any party,
so orders.
6.
The Trust and the Board and the Minister opposing this application
are directed
to pay the costs of this application, the one paying the
other to be absolved, including the costs of the four counsel
employed (with
three counsel having been employed at any one time)
JUDGMENT
MADONDO
DJP (MNGUNI and OLSEN JJ concurring)
Introduction
[1]
In the main, the applicants seek a declaratory order declaring that
the first and second
respondents (the Ingonyama Trust â the
âTrustâ and the Ingonyama Trust Board â the âBoardâ) acted
unlawfully and
unconstitutionally in cancelling Permission to Occupy
(âPTOâ) rights and concluding residential lease agreements with
the holders
of PTO rights and/or informal land rights in respect of
residential land or arable land or commonage, which is owned and held
in
trust, for the beneficiaries and residents, by the Trust
(âTrust-held landâ), protected under the Interim Protection of
Informal
Land Rights Act (âIPILRAâ),
[1]
without the genuine and informed consent of such rights holders. In
the event of this order being granted, a range of ancillary orders
are sought to give effect thereto.
[2]
On the second point, the applicants seek various structural
interdicts against the Trust
and the Board in prayers 2 to 5, and
against the Board and the third respondent (the Minister of Rural
Development and Land Reform
â the âMinisterâ) in prayers 6 and
7 of the notice of motion. They seek orders directing the Trust and
the Board to publish
and distribute a lease cancellation notice, in
the specified manner and within certain time frames, and to report to
this court on
affidavit, on compliance with this publication order.
They also seek orders directing the Trust and the Board to cancel any
residential
leases on request; to restore the residentsâ statutory
and/or customary law land rights; to permit the issue and
registration of
PTO rights by the Minister and the fourth respondent
(the MEC for Co-operative Governance and Traditional Affairs,
KwaZulu-Natal
â the âMECâ), and to refund any moneys paid under
cancelled lease agreements.
[3]
The applicants seek an order directing the Minister and her
Department to oversee and
ensure compliance by the Trust and the
Board with the court orders, and for the Board and the Minister to
report to the court on
affidavit on their compliance with the order,
every three months from the date of the order until the order is
discharged.
[4]
The applicants contend that the orders sought in prayers 2 to 7 of
the notice of motion
are directed at remedying the harm that has
already been caused by the Trustâs and the Boardâs alleged
unlawful actions. They
contend that the structural interdicts, allied
to reporting requirements, are just and equitable given the alleged
scale and seriousness
of the prejudice caused by the PTO Conversion
Project, in the absence of any other effective means of remedying
that prejudice. The
structural interdicts are also submitted to be
appropriate, just and equitable given the alleged dereliction of duty
by the Minister
in failing to exercise proper oversight, and to
intervene to protect vulnerable residents and occupiers of Trust-held
land.
[5]
In prayer 8, the applicants seek an order interdicting the Trust and
Board from taking
any further steps and/or engaging in any conduct to
persuade or induce any person who held or holds a PTO right or an
IPILRA right
in Trust-held land to conclude a lease agreement with
the Trust, without furnishing such rights holders with complete and
accurate
information about their existing land rights and the nature
and effect of the lease agreements. They contend that this order is
necessary
and appropriate given the Boardâs refusal to discontinue
the PTO Conversion Project unless ordered to do so by a court order.
[6]
In prayer 9, the applicants seek an order declaring that:
â
The
Minister, the MEC acting as the Ministerâs delegate, the Trust and
the Board are obliged to exercise the powers conferred by
Chapter XI
of the Act and the Regulations to demarcate allotments, to issue and
register Permissions To Occupy (PTOs), to survey
such allotments, and
to obtain certificates of registered title in respect of such
allotments in Trust âheld land.â
[7]
The Minister and the MEC are assigned the function to exercise
the powers conferred
by Chapter XI of the KwaZulu Land Affairs Act
(âLand Affairs Actâ),
[2]
and the KwaZulu Land Affairs (Permission to Occupy) Regulations (âPTO
Regulationsâ).
[3]
The Minister is alleged to have either fundamentally
misunderstood or chosen to ignore her powers and duties under Chapter
XI of the Land Affairs Act, and persists in that position. It is
against this backdrop that the applicants approach this court for
the
grant of declaratory relief obliging the Minister and the MEC (the
MEC acting as the Ministerâs delegate) to exercise these
powers.
[8]
In prayers 10 to 14, the applicants seek declaratory and structural
relief for the alleged
breach of duties by the first four
respondents. In prayer 11, the applicants seek an order declaring
that the Minister:
â
has
breached her duty to respect, protect, promote and fulfil the
constitutional rights to property of the holders of PTO rights and
IPILRA rights vested in respect of the Trust â held land, by â
11.1
failing to exercise, alternatively failing to ensure the exercise by
her delegate, of the statutory powers
referred to in paragraph 9
above;
11.2
failing to exercise oversight of the conduct and affairs of the first
and second respondents; and
11.3
failing to respect and protect the existing property rights and
security of tenure of the residents of
Trust-held land, as required
by section 7(2), 25(1) and 25(2) of the Constitution.â
[9]
In prayer 12, the applicants seek a structural order directing the
first four respondents
to âdevelop and implement diligently and
without delay, the administrative capacityâ necessary to achieve
the objectives set
out in the prayer.
[10]
In prayer 13, the applicants ask this court to direct the Minister or
the MEC and the Board to report
to this court, on affidavit, on the
steps taken to comply with this order (what they term âthe
administrative measures orderâ),
within three months of the date of
the order and until the order is discharged. According to the
applicants, this declaratory and
structural relief is appropriate and
necessary in order to vindicate and remedy the violation of rights
arising particularly from
the Ministerâs sustained breach of duty.
The applicants further seek a right to reply to the administrative
measures report within
two weeks of receipt of the report.
[11]
In prayer 14, the applicants seek leave to re-enrol the matter on a
date to be determined by the registrar,
in consultation with the
presiding judge, for such further relief as may be appropriate in
respect of the implementation of this
order.
[12]
In prayer 15, the applicants ask for a costs order against the first,
second and third respondents jointly
and severally in the event of
the applicants being substantially successful in the matter. In
addition, the applicants ask for the
costs of three counsel given the
complexity, novelty and importance of the matter. However, the
applicants ask that in the event
of their application not succeeding,
they should not be ordered to pay costs, given that they have brought
this important constitutional
matter in the public interest.
[13]
However, after argument on 9 and 10 December 2020, the applicants
elected to reduce the number of prayers
sought in the notice of
motion, and to confine themselves to the relief sought in a draft
order, which was filed on Friday 11 December
2020. An account of the
original relief sought is given as it obviously informed the answers
made to the applicantsâ case.
[14]
In the draft order, the applicants seek an order in the following
terms:
â
1.
It is declared that the First Respondent (âthe Trustâ) and the
Second Respondent
(âthe Boardâ) acted unlawfully and in violation
of the Constitution by â
1.1.
Concluding
residential lease agreements with persons living on the land held in
trust by the Ingonyama (âTrust-held landâ) who
are the true and
beneficial owners of Trust âheld land under Zulu customary law, by
virtue of being members of the tribes and communities
referred to in
section 2(2) of the Ingonyama Trust Act No. 3KZ of 1994 (âTrust
Actâ), and
1.2.
Concluding
residential lease agreements with persons who held or were entitled
to hold Permissions to Occupy or other informal rights
to land
protected under the Interim Protection of Land Rights Act 31 of 1996
(âIPILRAâ) in the land subject to the leases, without
complying
with the requirements of section 2 of IPILRA.
2.
All the
residential lease agreements concluded by the Trust and the Board, in
respect of residential land or arable land or commonage
on Trust-held
land, with persons who â
2.1
are the true and beneficial owners under Zulu customary law of
Trust-held land, by virtue
of being members of the tribes and
communities referred to in section 2(2) of the Trust Act, or
2.2
held or were entitled to hold Permissions to Occupy or any other
informal rights to land protected
under IPILRA in the land subject to
the leases, are declared to be unlawful and invalid.
3.
It is declared
that the Trust is obliged forthwith to refund any and all money paid
to the Trust or the Board under the lease agreements
referred to in
paragraph 2, which refunds must be paid to the persons who made such
payments and any person who made payment under
the lease agreement is
entitled to a refund by the trust to the extent of such payment.
4.
It is declared
that the Third Respondent (âthe Ministerâ) has breached her duty
to respect, protect, promote and fulfil the constitutional
right to
property of the holders of IPILRA rights vested in respect of the
Trust-held land, by â
4.1
failing to respect, protect, promote and fulfil the existing property
rights and security
of tenure of the residents of Trust-held land, as
required by sections 25(1) and 25(6) of the Constitution, read with
section 7(2)
of the Constitution;
4.2
failing to exercise, alternatively failing to ensure the exercise by
her delegate, of the
powers conferred by Chapter XI of the KwaZulu
Land Affairs Act 11 of 1992 and the KwaZulu Land Affairs (Permission
to Occupy) Regulations
to demarcate allotments, issue and register
Permissions to Occupy, survey such allotments, and obtain
certificates of registered
title in respect of such allotments in
Trust-held land.
5.
Until such time as the Minister may implement an alternative system
of recording
customary and other informal rights to land of persons
and communities residing in Trust-held land:
5.1
the Minister is directed to ensure that the administrative capacity
necessary to implement
Chapter XI of the KwaZulu Land Affairs Act 11
of 1992 and the KwaZulu Land Affairs (Permission to Occupy)
Regulations is reinstated
forthwith; and
5.2
the Minister shall report to the Court on the steps taken to comply
with paragraph 5.1 of
this order, within three months of the date of
this order and every three months thereafter until the parties agree
in writing that
the steps envisaged in paragraph 5.1 have been
implemented and that the reporting may be concluded, or the court. On
application
by any party, so orders.
(As an alternative
to prayer 5:)
6.
It is declared that the Minister and/or her delegate is obliged to
implement Chapter
XI of the KwaZulu Land Affairs Act 11 of 1992 and
the KwaZulu Land Affairs (Permission to Occupy) Regulations by
ensuring that any
person living on Trust-held land and qualifies to
be issued with a Permission to Occupy is issued with one.
7.
The Trust and the Board and the Minister opposing this application
are directed
to pay the costs of this application, the one paying the
other to be absolved, including the costs of the four counsel
employed (with
three counsel having been employed at any one time).â
[15]
The applicants ground their application on the fact that the Trust
and the Board have over a period of
time been undermining the
security of tenure of the residents and occupiers of the Trust-held
land in KwaZulu-Natal, and extracting
money from them, by unlawfully
compelling and inducing them to conclude lease agreements, and to pay
rental to the Trust in order
to continue living on the land. They
contend that, in doing so, the Trust and the Board have violated the
customary law and statutory
PTO rights of the residents and occupiers
of the Trust-held land, protected by the Constitution, and Acts of
Parliament, namely IPILRA
and the KwaZulu-Natal Ingonyama Trust Act
(âTrust Actâ).
[4]
The applicants also aver that the Minister has failed in her
constitutional and statutory duty to oversee the administration of
the
Trust-held land. They contend that they have assumed and
exercised land administration powers which are vested in the Minister
and
the MEC.
[16]
Not so, argued the Trust and the Board. They aver that the Trust Act
permits them to let the property
in question. They contend that by
virtue of section 2(5) of the Trust Act, they have the statutory
power to enter into lease agreements
subject to obtaining the prior
written consent of the traditional authority or community authority
concerned and otherwise than in
accordance with the provisions of any
applicable law. The Trust and Board contend that until this provision
of the Trust Act is impugned
and struck out as inconsistent with the
Constitution, their conduct is lawful and constitutional.
Parties
[17]
The first applicant is the Council for the Advancement of the South
African Constitution (âCASACâ),
an initiative established in 2010
to advance the South African Constitution as a platform for
democratic politics and the transformation
of society. The sole
object of CASAC is to promote, develop, and affirm the rights and
principles set out in the Constitution in
order to facilitate and
advance progressive constitutionalism and deepening democracy in
South Africa. CASAC avers that it is deeply
concerned that the Trust
and the Board are unlawfully depriving the residents and occupiers of
Trustâheld land of their constitutionally
protected property
rights. It contends that the Trust and the Board have acted with
impunity as the Minister and the Portfolio Committee,
tasked with
overseeing the functions of the Trust and the Board have failed to
protect these rights, despite having knowledge of
the Trustâs âPTO
Conversion Projectâ. CASAC contends that it has brought this
application to affirm the constitutionally protected
property of
those living on the Trust-held land, and the foundational
constitutional principles of the supremacy of the Constitution,
the
rule of law and accountability.
[18]
The second applicant is the Rural Womenâs Movement (âRWMâ), a
non-profit grassroots organisation
founded in 1998 which works to
give a voice to rural women in KwaZulu-Natal, and to address the
social problems that rural women
face, including access to land and
land ownership.
[19]
The third to ninth applicants are residents and occupiers of
Trust-held land in KwaZulu-Natal. Their
contention is that they have
been compelled by the Trust and traditional council(s) to sign lease
agreements, in many cases which
they cannot afford, on the basis of
false or incomplete information.
[20]
The Trust is a corporate body established under s 2(1) of the Trust
Act. The sole trustee of the Trust
is Ingonyama yamaZulu, (the late
King Goodwill Zwelithini KaBhekuZulu at the time these proceedings
were commenced). The Trust is
the registered owner of some 2.8
million hectares of land (Trust-held land) in KwaZulu-Natal, which is
the land previously vesting
in the âhomelandâ Government of
KwaZulu. Under s 3(1) of the Trust Act, the Ingonyama holds such land
in trust âfor and on
behalf of the members of the tribes and
communities and the residentsâ of the Zulu nation.
[21]
The Board was established under s 2A of the Trust Act to administer
the affairs of the Trust, and the
Trust-held land. The establishment
of the Board was one of the products of the amendment of the Trust
Act by Act 9 of 1997.
[22]
The Minister has already been introduced in para 2 above. She is
cited in these proceedings in her capacity
as the member of the
executive responsible for administering the Trust Act pursuant to the
KwaZulu-Natal Ingonyama Trust Amendment
Act (âthe Amendment
Actâ),
[5]
and the
Rural Development and Land Reform General Amendment Act.
[6]
She is also the executive authority responsible for administering ss
24 to 26 of the Land Affairs Act, which governs the conferral
of PTO
rights with respect to Trust-held land.
[23]
Likewise, the MEC has also been introduced in para 2 above. She is
cited in these proceedings because
she is responsible to oversee the
administration and governance of traditional institutions and land
use management in the Province
of KwaZulu-Natal for the issuing and
registration of PTO rights in Trust-held land by virtue of statutory
and delegated powers and
functions.
[24]
The fifth respondent is the KwaZulu-Natal Provincial House of
Traditional Leadership (âthe Provincial
Houseâ), established
under section 32 of the KwaZulu-Natal Traditional Leadership and
Governance Act
[7]
and section
16(1)
(a)
of the Traditional Leadership and Governance Framework Act.
[8]
The Provincial House is cited herein as an interested party with no
relief claimed against it. The Provincial House is responsible
for
advising and making recommendations to the provincial government and
the MEC on matters affecting traditional leaders, traditional
councils or communities, and on matters pertaining to Zulu custom and
tradition. The Provincial House has taken no active part in
these
proceedings.
The Ingonyama
Trust and its board
[25]
Before getting into the factual background and the merits of this
matter, I deem it appropriate to address
disturbing aspects of the
affidavit of the Chairperson of the Board, Mr Sipho Jerome Ngwenya
(âMr Ngwenyaâ), delivered in support
of the Trustâs and the
Boardâs opposition to this application. It is unfortunate and
saddening to note that Mr Ngwenya regards
this application as an
âattack or affront to the institution of ubukhosi under the
democratic orderâ
[9]
rather
than as the exercise by the applicants of the right to seek
protection of constitutional rights and protecting their property
rights. Secondly, I would like to express our displeasure at Mr
Ngwenyaâs scathing attack launched on Mr Parmananda Lawson Naidooâs
(âMr Naidooâ) and Professor Thandabantu Nhlaphoâs integrity and
person.
[10]
Mr Naidoo is the
executive secretary of CASAC, and is the deponent to the applicantsâ
founding affidavit. Mr Ngwenya went on to
describe what Mr Naidoo has
asserted in his founding affidavit as â[Mr] Naidooâs racist
slant.â
[11]
Professor
Nhlapho is an expert of African Customary Law and African Customary
Law Systems of Governance. He deposed to an affidavit
in support of
the application. The attack is unwarranted, inappropriate and
unacceptable.
[26]
The rule of law is fundamental to our democracy. It serves as a
standard against which all acts and conduct
of individuals,
institutions and organs of state, are measured. In a democratic
constitutional state like ours, people have the right
to assert and
defend their rights. Courts are there to render justice to all people
alike, without fear, favour or prejudice. I do
not understand this
application to be directed at the King in his person, but, in my
view, it is brought against him in his capacity
as the trustee of the
Trust, in protection of the customary law rights and/or informal
rights of people living on Trust-held land.
Oddly enough, Mr Ngwenya
has not provided any evidence in support of his assertion that the
applicantsâ intention is âto strip
the Zulu Nation of its
identityâ. Contrary to his assertion, the papers reveal that the
applicants seek to protect rights and interests
in Trust-held land
through judicial redress, and to address conduct inconsistent with
the notions of fairness and justice which inform
public policy.
[27]
The applicantsâ case is not about the role and constitutional
status of the sole trustee of the Trust,
then King Zwelithini
kaBhekuzulu, and the constitutionality of the Trust Act, but concerns
the unlawful and systematic deprivation
of property rights and
security of tenure of the residents of land nominally owned by the
Trust, and the manner in which the Trust
and the Board exercise their
powers and execute their duties and functions under the Trust Act. As
a consequence, the applicants
seek an order declaring the conduct of
the Trust and the Board unlawful, unconstitutional and invalid.
Allied to that, the applicants
are raising the Ministerâs and MECâs
failure to properly execute their statutory and constitutional
duties. Importantly, it is
the administrative and executive conduct
which the applicants seek to declare unlawful, unconstitutional and
invalid.
[28]
The applicantsâ contention is that the Trust and the Boardâs
conclusion of leases with beneficiaries
and residents of Trust-held
land, who are the true and ultimate owners of such land, has the
effect of depriving the beneficiaries
and residents of their
customary law rights and/or informal rights and interests in the land
in question, and their conduct (the
Trustâs and the Boardâs) is
therefore unlawful and unconstitutional.
[29]
When South Africa attained democracy in April 1994, all homelands,
including that of KwaZulu, were abolished.
The homelands and
self-governing territories were incorporated into South Africa, and
all land owned by the governments of those
territories was to vest in
the new national government.
[12]
However, the land in KwaZulu was an exception in that just before the
interim Constitution came into force, the then Government of
KwaZulu,
under the leadership of the Inkatha Freedom Party (âthe IFPâ),
struck a deal with the then Government of the Republic
of South
Africa under the leadership of the Nationalist Party (âthe NPâ)
to establish the Trust and to transfer all the land
held by the then
Government of KwaZulu to the Trust.
[30]
The Trust Act was passed on 22 April 1994 by the Legislative Assembly
of the former territory of KwaZulu.
On 25 April 1994 the Trust Act
was approved by the then State President, Mr FW de Klerk, in terms of
s 31(2) of the Self-Governing
Territories Constitution Act.
[13]
The
Trust was to be the custodian of the Trust-held land that was
previously administered by the defunct Government of KwaZulu.
Trust-held
land vested in the Trust, with the Zulu King as the sole
trustee, on behalf of the communities resident on the Trust-held
land.
[31]
In terms of s 3(1)
(a)
of the Trust Act:
â
any
land or real right therein of which the ownership immediately prior
to the date of commencement of this Act vested in or had been
acquired by the Government of KwaZulu shall hereby vest in and be
transferred to and shall be held in trust by the Ingonyama as trustee
of the Ingonyama Trust referred to in section 2 (1) for
and on behalf of the members of the tribes and communities
and the
residents referred to in section 2 (2).â
The
title deed to the Trust-held land is endorsed as vesting in the
Ingonyama, as the trustee for the Trust, for and on behalf of
the
members of the tribes, communities and residents. The Trust Act
transferred approximately 2,8 million hectares of land, being
93% of
the total area of the then Government of KwaZulu and one third of the
total area of KwaZulu-Natal, to the control of the Ingonyama.
The
land transferred to the Trust was not only tribal land, but it also
included all the urban townships within the jurisdiction
of the
Government of KwaZulu at the time, with the exception of land which
were already privately owned. It is against that background
that the
Trust is presently the registered owner of approximately 30% of the
land in KwaZuluâNatal.
[32]
The Trust Act remained a provincial legislation, until 1997 when it
was amended by the National Parliament.
[14]
As a result of these amendments, the Trust Act acquired the status of
a national Act.
[33]
Section 2A of the Amendment Act created the Ingonyama Trust Board to
administer the affairs of the Trust
and the Trust-held land. In
practice, the Board provides strategic leadership in the management
of land, while the day to day administration
is done by the
traditional councils acting under the leadership of the amakhosi, who
are the actual leaders of the beneficiaries
of the Trust-held land.
Following the substitution of s 2(2) of the Trust Act by the
Amendment Act, s 2(2) of the Trust Act requires
the Trust to
administer the Trust-held land â. . . for the benefit, material
welfare and social well-being of the members of the
tribes and
communities as contemplated in the KwaZulu Amakhosi and
Iziphakanyiswa Act, 1990 . . . referred to in the second
column
of the Schedule. . .â.
[34]
Section 2(4) thereof enjoins the Ingonyama to deal with the
Trust-held land â. . . in
accordance with Zulu
indigenous law or any other applicable lawâ and not to
â. . . infringe upon any existing
rights or
interestsâ in the exercise of his or her functions. Section 2(5) of
the Trust Act provides that the Ingonyama âshall
not encumber,
pledge, lease, alienate or otherwise dispose of any of the said land
or any interest or real right in the land, unless
he has obtained the
prior written consent of the traditional authority or community
authority concerned. . .â. Importantly, section
2(8) provides that
â[i]n the execution of his or her functions in terms of this
section the Ingonyama shall not infringe upon any
existing rights or
interestsâ.
[35]
Section 3 of the Trust Act in its original form placed the
administration of the land which fell under
the former KwaZulu
Government firmly in the hands of the Trust. Section 3(1)
(b)
,
introduced by the Amendment Act, restored State control over
functions which had been performed by the KwaZulu Government in
respect
of land prior to the commencement of the Trust Act.
Statutory
protection of PTO Rights
[36]
The primary form of residential tenure for persons living in the
rural areas of the former homelands
or self-governing territories,
including the former KwaZulu homeland, remains a PTO right. However,
Parliament is now obliged to
transform the insecure forms of land
tenure into a legally protected tenure. Land tenure reform is a major
part of the governmentâs
land reform programme. The laws that
perpetuated restrictions on the acquisition and occupation of land,
based on a personâs racial
classification, needed to be repealed to
foster conditions which enable citizens to gain access to land on an
equitable basis.
[37]
The PTO right was a recognised statutory form of tenure on unsurveyed
land in the designated black rural
areas under the Black Areas Land
Regulations (âProclamation 188 of 1969â).
[15]
The regulations authorised the Black Affairs Commissioner to issue
written PTO allotments for residential or arable use. The PTO
was
recorded in an allotment register,
[16]
and afforded exclusive and perpetual occupancy and use rights to the
holders. Proclamation 188 of 1969 was repealed by the Land Affairs
Act. The Land Affairs Act, an enactment of the KwaZulu Legislative
Assembly, was assented to on 8 November 1993. Its objective was
to
provide for the disposal of government land; to provide for certain
rights of tenure to land and for the registration of certain
forms of
title in respect of land; to provide for the development, use and
subdivision of land; to provide for the removal of restrictive
conditions; and to provide for incidental matters. However, the Land
Affairs Act retained the institution of PTOs. Chapter XI of
the Land
Affairs Act (sections 24 to 26) continues to govern PTO rights over
the Trust-held land. Under s 24 the power to demarcate
allotments on
government land or land owned by the traditional authority, including
the Trust-held land, for the purposes of granting
PTOs, is vested in
the Minister of Land Affairs.
[38]
Section 25(1) provides that the Minister is responsible for the
granting and recording of PTOs in the
prescribed manner after
consultation with the tribal authority. In terms of s 25(2)
(a)
,
a permission granted confers the right to use and improve the
allotment for the purpose specified by the Minister. Section 25(2)
(b)
provides that subject to the provisions of sub-section 3, a PTO right
endures for the life of the person to whom such right was granted;
and in terms of section 25(2)
(c)
,
after the death of the rights holder, such rights as may be
prescribed are conferred on his widow. A PTO may only be withdrawn by
the Minister in the prescribed manner after consultation with the
tribal authority concerned.
[17]
Section 25(4) provides that PTO rights can be ceded or otherwise
disposed of to such extent and in circumstances as may be prescribed,
with the prior consent of the Minister, given after consultation with
the tribal authority concerned. Section 26 makes provision
for PTO
rights holders to strengthen and formalise their rights by having the
land surveyed and by acquiring deed of grant rights,
[18]
and a âcertificate of registered title contemplated in
section
43(1)
of the
Deeds Registries Act, 1937
, in respect of such
allotmentâ.
[19]
The administration of PTOs in Trust-held land is also governed by the
PTO Regulations.
[20]
[39]
It Is not necessary for the purposes of this judgment to deal in
detail with the PTO Regulations, save
to record that they define the
process of issuing and registration of PTOs and the roles of the
Minister and tribal authority, and
that they remain in force to date.
[40]
The administration of the Land Affairs Act was assigned to the
Province of KwaZulu-Natal under Proclamation
R63 of 1998.
[21]
However sections 24 to 26 (amongst others) were excluded from such
assignment. Consequently the Minister remained the authority
responsible
for implementing the provisions governing PTOs. On 19
September 1998, the then Minister for Land Affairs (Mr Derek Hanekom)
delegated
his powers under ss 24 to 26 of the Land Affairs Act and
PTO Regulations to the Provincial MEC for Traditional and
Environmental
Affairs. Thenceforth the MEC became responsible for the
issuing and registration of PTO rights on Trust-held land. The MEC is
therefore
responsible for the exercise of the Ministerâs powers to
demarcate allotments and to issue and register PTOs on Trust-held
land.
The protection of
PTO rights under the Constitution
[41]
Section 25 of the Constitution protects property rights. Section
25(1) provides that â[n]o one may
be deprived of property except in
terms of law of general application, and no law may permit arbitrary
deprivation of propertyâ.
In terms of section 25(6) of the
Constitution
â
[a]
person or community whose tenure of land is legally insecure as a
result of past racially discriminatory laws or practices is
entitled,
to the extent provided by an Act of Parliament, either to tenure
which is legally secure or to comparable redress.â
Section
25(9) of the Constitution enjoins Parliament to enact legislation
which provides legally secure land tenure or comparable
redress to a
person or a community whose tenure is legally insecure as a result of
past discriminatory laws or practices. The principal
statute through
which this has been done is IPILRA which Parliament promulgated in
1996 as an interim law of application to informal
rights to land, and
it binds the State (section 5). As stated, it is a temporary law,
which commenced on 26 June 1996 for 12 months
but its duration has
been extended since its enactment as provided for in section 5(2).
[42]
Section 2 of IPILRA provides over-arching protection against the
deprivation of existing informal rights
to land, including and
specifically PTOs. It requires that any deprivation of informal
rights to land must be with the rights holdersâ
consent; or, if the
land is held on a communal basis, in accordance with the communityâs
custom or usage, be subject to compensation,
and approved by the
majority of community members present at a specially convened meeting
where due process is followed.
[43]
IPILRA defines âinformal right to landâ to include â
â
(
a
)
the use of, occupation of, or access to land in terms ofâ
(i)
any tribal, customary or indigenous law or practice of a tribe;
(ii)
the custom, usage or administrative practice in a particular area or
community, where
the land in question at any time vested inâ
(
aa
)
. . .
(
bb
)
the government of any area for which a legislative assembly was
established in terms of the Self-Governing
Territories Constitution
Act, 1971 (Act No. 21 of 1971); or
(
cc
) . . .
(
b
)
the right or interest in land of a beneficiary under a trust
arrangement in terms of which
the trustee is a body or functionary
established or appointed by or under an Act of Parliament or the
holder of a public office;
(
c
)
beneficial occupation of land for a continuous period of not less
than five years prior
to 31 December 1997; or
(
d
)
. . .
but does not
includeâ
(
e
)
any right or interest of a tenant, labour tenant, sharecropper or
employee if such right
or interest is purely of a contractual nature;
and
(
f
)
any right or interest based purely on temporary permission granted by
the owner or lawful occupier
of the land in question, on the basis
that such permission may at any time be withdrawn by such owner or
lawful occupier.â
[22]
[44]
The definition in paragraph
(d)
must be read with Schedules 1 and 2 of the Upgrading of Land Tenure
Rights Act.
[23]
Land tenure rights in schedule 2 to the Upgrading of Land Tenure
Rights Act
[24]
include â[a]ny
permission to occupy any allotment within the meaning of the Black
Areas Land Regulations, (Proclamation No. R.188 of 1969)
â
,
and â[a]ny right to the occupation of tribal land granted under the
indigenous law or customs of the tribe in questionâ. The
preamble to the Upgrading of Land Tenure Rights Amendment Act states
that it is âthe governmentâs policy that the upgrading of
land
tenure rights should henceforth be demand driven and that security of
tenure should be protected under a variety of forms of
tenure.â
[25]
A land tenure right acquired under indigenous law or customs of the
tribe concerned, also enjoy protection under s 1 of the Upgrading
of
Land Tenure Rights Act.
Changes to the
PTO system by the Trust and the Board
[45]
In April 2007, the Board decided that PTOs should no longer be issued
and that the then existing PTO
rights in land should be converted to
lease agreements for both business and residential purposes.
Occupants would have to pay rental
to remain entitled to live on the
land. The Board designated this project âthe PTO Conversion
Projectâ. The Trust and the Board
communicated to the public,
through its official website,
[26]
that PTOs would be granted until April 2007, and would only be issued
in future in exceptional circumstances as they afford limited
security for funding and registrable interests.
[46]
On 13 November 2007, the Board presented its 2006/2007 Annual Report
to the National Assemblyâs Portfolio
Committee on Agriculture and
Land Affairs (âthe Portfolio Committeeâ). The Board advised the
Portfolio Committee of its decision
to terminate the issuing of PTOs
and to issue leases instead. The Board also reported to the Portfolio
Committee that:
â
In
anticipation of the coming into operation of the
Communal Land Rights
Act, 2004
it has been agreed that Permissions to Occupy will in
future only be issued in exceptional circumstances and that in all
other cases
the Board will issue a lease. This avoids creating more
old order rights.â
The
Communal Land Rights Act
[27
]
which has not yet been promulgated provides, insofar as individuals
are concerned, a regime for the conversion of âold order rightsâ
into ânew order rightsâ. The latter are ownership, or a
comparable right. Tenure under customary law or a PTO qualifies as an
old order right. Conversion to ownership would deprive the Trust of
its vested rights in the land concerned. But it is noteworthy
in the
light of the statement of the Board that excluded from the definition
of âold order rightsâ are:
â
(i)
any right or interest of a tenant . . . if such right or interest is
purely of a contractual
nature; and
(ii)
any right or interest based purely on temporary permission granted by
the owner . .
. on the basis that such permission may at any time be
withdrawn . . .â
[28]
[47]
The Board confirmed its decision to terminate the issuing of PTOs in
its 2008/2009 Annual Report presented
to the Portfolio Committee on
28 October 2009. The Board also revealed in its report that âPTOs
are not registrable and have not
been issued since 2007â.
[48]
In its Annual Report of 2011/2012, the Board stated that it was
abolishing PTOs because PTOs are âracially
based form of land
tenureâ that is âweak in lawâ. In order to curb the weakness in
the system of indigenous tenure allocations,
the Board concluded that
the system had to be upgraded to a system which supported the issues
underpinning traditional practice,
and that âthe closest it could
come to was the leaseâ. As from April 2007, the Trust insisted that
âall new tenure applications
should be leasesâ and that the PTOs
had to be upgraded to leases. The Board advanced three reasons for
this decision. The first
was that âa PTO remains the aberration
from the racially based land tenureâ. The second was that the PTO
was vulnerable. The
third was that PTOs are uneconomic and
unsustainable in that a PTO holder is only liable to pay R48 per
annum forever, irrespective
of the size and the use of the land.
[49]
In its Annual Report of 2013/14, the Board recorded that it was
continuously encouraging land occupants
through roadshows and
workshop campaigns âto convert these rights to a new order being
the leaseâ. The residents who applied
for PTOs were discouraged
from doing so, and told to enter into lease agreements instead. In
November 2017, the Board published notices
directed at persuading PTO
holders to convert to lease agreements, representing this conversion
as an upgrade. The Board gave a similar
explanation to the Portfolio
Committee in March 2018.
[50]
The applicants assert that under the regime introduced by the Board
the decision making power to conclude
leases is vested entirely in
the Trust and traditional councils. The process does not make
provision for the involvement of the family
and the local community.
In this way, the lease agreements also deprive families, neighbours
and communities of their customary law
entitlement to participate in
the decision making process in respect of the occupation and use of
tribal land.
[51]
On 20 November 2017 the Board published a series of media
advertisements relating to the continued implementation
of the PTO
Conversion Project in which it invited all people, companies and
other entities holding land rights on Trust-held land
in terms of
PTOs, to approach the Board with a view to upgrading the PTOs into
long term leases in line with the Ingonyama Trust
Board Tenure
Policy. The notices also required the applicants to produce evidence
that they have at all material times complied with
the conditions
attached to the PTOs, in particular the payment of levies. The
Portfolio Committee raised concerns about the Trustâs
advertisements for residential leases and asked the Trust for an
explanation about the PTO Conversion Project. The Portfolio Committee
also asked the Department of Rural Development and Land Reform
(DRDLR) whether the DRDLR had approved the conversion of PTOs to
leases
which was by then underway, and whether replacing PTOs with
leases was legal. It also asked as to what benefit would accrue to
people
who had previously been granted PTOs. The Board did not
furnish the Portfolio Committee with the requested information. The
only
justification which the Chairperson of the Board gave for such
conversion was to raise additional funds as the Board considered the
budget provided by the State to the Trust and Board insufficient.
Ultimately the Portfolio Committee instructed the Trust and the
Board
to stop issuing leases until the legality of the process was cleared
up with the DRDLR. The Board did not take heed of this
instruction.
[52]
The decision to cease issuing PTOs negatively affected employees of
the State, resulting in the Office
of the Premier of KwaZulu-Natal
addressing a letter to the Board raising the concern that the
Government was no longer able to process
housing allowance
applications for its employees as the Board had ceased to issue PTOs.
The Premierâs intervention came to nought.
[53]
On 11 December 2017, the applicantsâ attorneys addressed a letter
to the Minister, the DirectorâGeneral,
the Deputy DirectorâGeneral
and the Trust, seeking a written undertaking from the Trust that it
would withdraw the public notices
it had issued on 20 November 2017,
which called upon all PTO holders to conclude lease agreements by 15
January 2018.
[54]
On 18 April 2018 the Board reported to the Portfolio Committee that
it has met with the DRDLR but that
no agreement was reached on the
implementation of the PTO Conversion Project. At a subsequent meeting
with the Board on 23 May 2018,
the Chairperson of the Portfolio
Committee complained that the Boardâs website continued to carry
the advertisement that people
should convert their PTOs to leases.
[55]
It is against this background that the applicants have launched this
application, contending that the
actions of the Trust and the Board,
in requiring or inducing the residents of Trust-held land to conclude
lease agreements, and to
âconvertâ PTOs to leases, are unlawful
and constitutionally invalid on the following grounds:
(a)
They have deprived the holders of PTOs and other informal land rights
in Trust-held land of
their security of tenure and property rights
under the Constitution, statutory law and customary law. This
violates the rights-holdersâ
right to property and to security of
tenure under section 25 of the Constitution, and their right under
IPILRA not to be deprived
of existing informal land rights without
consent. In so acting, the Trust and the Board have thereby breached
their duty under section
7(2) of the Constitution to respect,
protect, promote and fulfil the section 25 rights of the residents.
(b)
The Trust and Board have no authority under the Land Affairs Act and
the PTO regulations to
withdraw or dispose of the rights vested in
PTO-holders.
(c)
The Trust and the Board have acted in contravention of their duties
under section 2 of the
Trust Act to respect the existing land rights
of the residents of Trust-held land.
(d)
The Trust and the Board have breached the rights of residents and
occupiers to procedural
fairness by inducing or requiring them to
conclude lease agreements without giving them full and proper notice
of the nature of the
agreement and its effect on their existing
rights and interests.
(e)
The Trust and the Board have acted unlawfully in that their actions
were materially influenced
by an error of law, and have been taken
for reasons not authorised by the Trust Act or the Land Affairs Act;
for an ulterior purpose
or motive; and because irrelevant
considerations were taken into account and relevant considerations
not considered.
[56]
In May 2018, in response to a parliamentary question from the
Economic Freedom Fighters, the Minister
furnished details of the
extent of land leased out by the Trust for private use, the value of
the leases, the location and size of
the leased land. The Minister
disclosed that the Trust leased out a total of 61 671 hectares of
land. The Trustâs lessee financial
report confirmed that
residential leases and leases for community schools, churches or
crèches are widespread across the Trust-held
land. The Trust also
leases out land for agriculture, mining, telecommunications,
infrastructure and commercial purposes.
[57]
As to the Minister, the applicants contend that the Minister failed,
and persists in such failure, to
ensure that the PTO regulations, or
another system which provides at least an equivalent security of
tenure, are implemented. It
is further contended that the Minister is
in breach of her statutory obligation, and or her section 7(2)
constitutional obligation
to respect, protect, promote and fulfil the
section 25 rights of residents. The applicants contend further that
the Minister and
the MEC failed in their statutory duty to prevent
the Trust and the Board from converting PTOs into leases, and to
protect the customary
law, statutory and constitutional rights of the
beneficiaries and residents of the Trust-held land, to their
detriment. As a result
of such failure on the part of the Minister
and the MEC, the beneficiaries and residents of the Trust-held land
have suffered enormous
damages.
[58]
In her answering affidavit, the Minister concedes that she and the
DRDLR were aware of the Trustâs
and the Boardâs PTO Conversion
Project. Mr Sello Ramasala, the head of the DRDLR Unit, explained the
DRDLRâs oversight role in
relation to the Trust. Mr Ramasala stated
that there is no DRDLR policy authorizing the conversion of PTOs to
leases. According to
Mr Ramasala, the current DRDLR policy is that
PTOs must be upgraded to full ownership. He unequivocally states that
the conversion
of a PTO to ownership requires the approval of the
Minister.
[59]
The applicantsâ contention is that the conduct of the Trust and the
Board in converting PTOs to leases,
as well as the conclusion of
leases with the beneficiaries and residents of Trust-held land, has
the effect of violating the beneficiariesâ
and the residentsâ
customary law rights to land and/or informal rights, and the
constitutional right to property. The effect of
such infringement has
also impinged negatively on State employees who sought proof of land
ownership.
[60]
The Trust, the Board and the Minister are opposing the application.
In their answering affidavits, the
Trust and the Board raised five
points
in limine
,
namely that the applicants were required to join the MEC for
Agriculture, the Traditional Councils and the various amakhosi, the
local houses of traditional leaders and the Premier; the failure of
the third to ninth applicants to exhaust internal remedies; failure
to refer the dispute to arbitration; the applicantsâ failure to
meet the requirements for certification of a class action, and
the
absence of both a factual and legal basis for the relief sought.
[61]
On the merits of the application, the Trust and the Board contend
that leases are sanctioned by the Trust
Act as amended. It therefore
cannot be argued that the conclusion of leases is unconstitutional
without impugning the relevant parts
of the Trust Act. The effect of
the Trustâs and Boardâs contentions is that when they concluded
leases with the beneficiaries
and residents of the Trust-held land,
they were acting within the dictates of the Trust Act, and with the
informed consent of the
lessees. They denied that any form of duress,
coercion or undue influence is exercised by them.
Points in limine
Non-joinder
[62]
As stated, the Trust and the Board contend that the MEC for
Agriculture, the traditional councils, the
various amakhosi who have
jurisdiction over the Trust-held land, the local houses of
traditional leaders and the Premier of the province
ought to have
been joined as interested parties in the application.
[63]
In
Amalgamated
Engineering Union v Minister of Labour
,
[29]
the Appellate Division held that the question of joinder should not
depend on the nature of the subject-matter but on the manner
and
extent to which the courtâs order may affect the interests of a
third party. In
Gordon
v Department of Health, KwaZulu-Natal
,
[30]
the Supreme Court of Appeal held:
ââ¦
The
test is whether a party that is alleged to be a necessary party, has
a legal interest in the subject-matter, which may be affected
prejudicially by the judgment of the court in the proceedings
concerned.â (Footnote omitted)
[64]
The situation must be that the order or judgment:
ââ¦
cannot
be sustained and carried into execution without necessarily
prejudicing the interests of parties who have not had an opportunity
of protecting their interest by reason of their not having been made
parties to the cause.â
[31]
In
such an instance, such parties have a legal interest in the matter
and must be joined.
[65]
In support of their contention that the MEC for Agriculture should
have been joined, the Trust and the
Board assert that in terms of the
amendment to the PTO Regulations,
[32]
the responsible Minister for the purpose of the PTO Regulations is
the MEC for Agriculture. The amendment notice amended the PTO
Regulations to substitute in regulation 3 the words âMinister for
Agricultureâ with âMember of the Executive Council responsible
for Agricultureâ, and also substituted the definition of âMinisterâ
in regulation 1 of the PTO Regulations with the âMinster
of Land
Affairsâ. The effect of these amendments is that the Minister of
Land Affairs is the Minister responsible for the PTO Regulations.
The
Trust and the Board have not set out any factual basis for their
objection to the non-joinder of the traditional councils and
the
amakhosi. They merely allege that each inkosi has a personal interest
in the matter by virtue of being a head of the
political/administrative
structure of the traditional authority, ie
the traditional council or local house of traditional leaders, but do
not identify what
that personal interest is, and how it will be
affected by the relief which the applicants seek. In any event, no
relief is sought
against the 252 traditional councils, and/or the 300
amakhosi. As to the Premier, Proclamation R63 of 1998 makes it clear
that only
certain provisions of the Land Affairs Act were assigned to
the Premier of the Province. In terms of item
(a)
(i)
of the Proclamation, the assignment excluded ss 24 to 26 of the Land
Affairs Act, which are the provisions governing PTOs. The
Minister
thus remains the responsible authority for the PTOs under the Land
Affairs Act, and the Minister has delegated to the MEC
for
Co-Operative Governance and Traditional Affairs who has been joined
as the fourth respondent in these proceedings.
[66]
The court has to ascertain the real or true nature of the dispute
between the parties. The characterisation
of a dispute by a party is
not necessarily conclusive. Ascertaining the true nature of the
dispute would assist to establish whether
third parties would be
affected by the judgment.
[33]
There is nothing to show that the traditional councils or the local
houses or the amakhosi or the Premier, would be affected by the
relief which the applicants seek. I find that the traditional
councils, the local houses, amakhosi and the Premier have no direct
and substantial interest herein. In the circumstances, the contention
that these parties ought to have been joined in the proceedings
is
without any merit.
Internal
Remedy
[67]
The Trust and the Board contend that the third to ninth applicants
ought to have exhausted the internal
remedy provided by s 49 of the
KwaZulu-Natal Traditional Leadership and Governance Act
(âKZNTLGAâ)
[34]
and s 21 of the Traditional Leadership and Governance Framework Act
(âTLGFAâ).
[35]
This contention was understandably not persisted in during oral
argument because the true nature of the dispute in these proceedings
does not concern customary law or customs arising within a
traditional community or between two traditional communities or
traditional
institutions as contemplated in sections 49 and 21. The
application concerns the lawfulness of the actions of the Trust and
the Board
as well as the Minister.
Failure to
Refer the Dispute to Arbitration
[68]
The Trust and the Board contend that the applicants are, in terms of
reg 25 of the KwaZulu-Natal Ingonyama
Trust Administrative
Regulations, 1998,
[36]
obliged to refer the dispute to arbitration in terms of the
Arbitration Act,
[37]
in the event of the dispute not being resolved either through
negotiation or mediation.
[69]
It is not in dispute that the applicants have not made any attempt to
have the dispute resolved either
through negotiation or mediation.
The matter pertains to the alleged unlawful and unconstitutional
activities of the Trust and Board,
as well as those of the Minister.
The arbitrator has no power in law to declare the conduct or
executive action unconstitutional
and invalid. In terms of section
172(1)
(a)
of the Constitution, the power to declare law or conduct inconsistent
with the Constitution and invalid is vested in the courts.
In the
circumstance, reg 25 does not apply to the conduct alleged by the
applicants in this action because the conduct allegedly
infringes or
threatens a right in the Bill of Rights. Arbitration cannot therefore
be competent as a substitute for judicial review
and as a mechanism
for the determination of the lawfulness of executive actions and a
dispute concerning constitutional rights.
[38]
Class action
[70]
The Trust and the Board contend that the application is a class
action, and that the applicants have
failed to meet the requirements
for the certification of a class action and representative standing.
Consequently, so the contention
goes, the interests of justice do not
favour permitting the application to proceed. The applicants have
lodged this application under
s 38
(a)
to
(d)
of
the Constitution to enforce and protect their constitutional rights
to property against the Trust, the Board and the Minister.
Section 38
of the Constitution provides that â[a]nyone listed in this section
has the right to approach a competent court, alleging
that a right in
the Bill of Rights has been infringed or threatened, and the court
may grant appropriate relief, including a declaration
of rights. .
.â. The applicants have launched this application, acting both in
their own interest and in the interest of other
beneficiaries and
residents of Trust-held land falling under the Trust and the Board,
for declaratory relief, interdictory relief
and structural orders,
relying on the standing provision in s 38 of the Constitution to do
so.
[71]
In my view the applicants are correct in arguing that the judgment in
Mukaddam v Pioneer Foods (Pty) Limited and Others
2013 (5) SA
89
(CC) provides a complete answer to the contention that the present
proceedings are a class action in the first place. In the main
the
majority of Jafta J dealt with the issue of the correct approach to
the certification of class actions, properly so-called. Paragraph
40
of the judgment reads as follows.
â
What
is said in this judgment about certification that must be obtained
before instituting a class action must not be construed to
apply to
class actions in which the enforcement of rights entrenched in the
Bill of Rights is sought against the State. Proceedings
against
the State assume a public character which necessarily widens the
reach of orders issued to cover persons who were not privy
to a
particular litigation. Class actions in those circumstances are
regulated by s 38 which confers, as of right, the authority
to
institute a class action on certain persons, defined in the section.
Moreover, claims for enforcing rights in the Bills
of Rights may even
be brought in the wider public interest without certification.â
In
the circumstances, I am satisfied that the case before us, to the
extent that it may be called a âclass actionâ, is one of
those
which are regulated by s 38 of the Constitution.
No Legal and
Factual Basis for Relief Sought
[72]
The respondents contend that in the absence of an allegation that the
third to eighth applicants were
holders of PTO rights, which the
Trust or the Board cancelled, there is no legal basis for the relief
sought by the applicants. They
contend that in order for the
applicants to succeed, they have to set out the facts that the Trust
and the Board had first of all
cancelled their PTO rights, and
secondly that the Trust and the Board then concluded the lease
agreements with the holders of such
rights without their genuine and
informed consent. The Trust and the Board therefore argue that the
applicants have not satisfied
the jurisdictional requirements of s 21
of the Superior Courts Act.
[39]
[73]
The question which arises is whether the Trust and the Board or the
Minister have raised a genuine dispute
in respect of the allegations
by the applicants relating to the cancellation of PTO rights and the
conclusion of lease agreements.
The Trust and the Board conceded that
they had ceased issuing PTOs and encouraged PTO rights holders to
conclude leases, in order
to improve their land tenure. The Trust and
the Board state that in law they do not have the right to issue and
withdraw PTO rights,
but contend that they do have the legal
authority to conclude leases. They contend that at the time they
concluded such leases with
the beneficiaries and residents, they were
exercising their powers in terms of the Trust Act. It is not in
dispute that the Minister
has oversight over the Trust and the
Boardâs execution of their functions and exercise of their powers
under the Trust Act. As
a consequence, the only legal issues left for
determination are, namely (a) whether the Trust and Board had the
right to interfere
with PTO rights, (b) whether the Trust and the
Board, when concluding the leases, were acting within the boundaries
of the Trust
Act, and (c) whether the Minister exercised the required
oversight over the activities of the Trust and the Board. The
Minister admits
that she was aware of the PTO Conversion Project
undertaken by the Trust and the Board. Neither the Trust nor the
Board nor the Minister
has raised any genuine dispute of fact in this
matter. They have pleaded only bald denials, which do not suffice to
raise a genuine
dispute of fact.
[74]
Given its publicity campaigns proclaiming the policy of substituting
leases for PTO rights, the Trust
and the Board only have themselves
to blame for the contention by the applicants that the Trust and the
Board are about the business
of âcancellingâ PTO rights. The
policy of no longer sanctioning PTO rights had to bring about that
consultation by the Minister
âwith the tribal authority concernedâ
(as required by s 25 of the Land Affairs Act in the case of an
application for PTO rights)
would be fruitless. It is
undeniable that the aim of the Trust and the Board was the
termination of PTO rights.
Issues for
determination
[75]
The primary issue to be addressed in this matter is whether the
conduct of the Trust and the Board with
regard to PTO rights, and in
concluding residential lease agreements with persons living on
Trust-held land who were PTO rights holders,
or who were entitled to
hold PTO rights or any other informal rights to land protected under
IPILRA, was lawful and constitutional.
[76]
If the conduct of the Trust and the Board is found to be unlawful and
unconstitutional, the following
secondary issues arise for
determination:
(a)
Whether the Minister, as the functionary responsible for the
administration of both the Land
Affairs Act and the Trust Act, failed
to exercise effective oversight of the Trust and the Board to ensure
that they act within their
powers and to respect and protect the
property rights and security of tenure of the residents of Trust-held
land, and whether she
has thereby violated her statutory and
constitutional duty in this regard; and
(b)
Whether the Minister and the MEC are under a duty to exercise the
powers conferred by Chapter
XI of the Land Affairs Act and PTO
Regulations â viz, to demarcate allotments, issue and register
PTOs, to survey such allotments,
and to obtain certificates of
registered title in respect of the allotments on Trust-held land.
The Right to
Lease
[77]
Simply put, the case of the Trust and the Board concerning the
challenge to the
validity of the
leases in question in this matter is that in terms of the Trust Act
they have the power to conclude leases, and that
the exercise of that
power must accordingly be regarded as unassailable. Sections 2(5) and
2A(2) of the Trust Act are identified
as the source of the power. I
have already recorded the provisions of section 2(5) in para 34
above. Section 2A(2) of the Trust Act
reads as follows.
â
The
Board shall administer the affairs of the Trust and the Trust land
and without detracting from the generality of the aforegoing
the
Board may decide on and implement any encumbrance, pledge, lease,
alienation or other disposal of any Trust land, or of any interest
or
real right in such land.â
These
sections must be read with s 2(1) of the Trust Act which establishes
the Trust as a âcorporate bodyâ, a concept quite inconsistent
with our law of trusts. Be that as it may, that corporate body is
established âsubject to the provisions of this Act, to do all
such
acts and things as bodies corporate may lawfully do.â
[78]
No authority is at this time required for the proposition that a
purely literal interpretation of these
provisions cannot prevail
without more. On the contrary, they must be read and understood in
context. The interpretative process
is an objective exercise:
â
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production.
â
[40]
In
particular, words should not lightly be interpreted in a fashion
which undermines the apparent purpose of the legislation.
[79]
In the case of the Trust Act one has to be careful not to be
overwhelmed by knowledge or beliefs concerning
the origins of the
enactment. It is common knowledge that the Trust Act was
conceived on the eve of the creation of the new
democratic South
Africa. It was the product of the exercise of legislative and
executive power by two pre-democratic structures,
namely the KwaZulu
Legislative Assembly and the then National Government of South
Africa. Their motives for acting as they did need
not concern us and
should not disturb the interpretative process. Whether the outcome is
constitutional or democratic are not issues
before us.
[80]
Putting aside these matters which are perhaps best described as
âpoliticalâ, an important element
of the context of the
legislation is the fact that the overwhelmingly major part of the
land in question was being administered and
occupied, as it had since
time immemorial and prior to 1994 been administered and occupied, in
accordance with the tenets of customary
or indigenous law. Some of
the land was not allocated to individuals. (Some of such land would
be grazing land which would be regarded
as a communal allocation.)
Land used for residential purposes and for the purpose of tillage was
land allocated to an individual.
(I use the word âindividualâ
loosely merely to distinguish such tenure from that which obtained in
the case of communal or other
land.)
[81]
The crucial point about an allocation of residential and arable land,
from the perspective of the present
enquiry, is that in terms of
indigenous law no rental was paid for the right of occupation; that
is to say, no rental was payable
by the beneficiary of the allocation
(a) prior to the advent of the Trust Act, to the KwaZulu Government
or its predecessors in title;
and (b) after the advent of the Trust
Act, to the Ingonyama, the Trust or the Board. In that context the
concept of a lease or lease-hold
was unknown to Zulu customary law.
The distinction between customary or indigenous title to land, and
leasehold rights, was not in
dispute between the parties in the
present matter. Nor, as I understand the position, could it have
been.
[82]
Bearing that background in mind, one must examine the Trust Act in
order to discern its purpose. One
should perhaps start with the
proposition that it was not the purpose of the establishment of the
Trust to generate an income for
the Trust (or the Ingonyama) from the
letting of the property, or otherwise. In terms of s 3(1)
(a)
of the Trust Act the land was transferred to the Ingonyama as Trustee
of the Trust âfor and on behalf of the members of the tribes
and
communities and the residents referred to in s 2(2) of the Actâ.
Section 2(2) of the Act is the principal statement of the
duties of
the Trust, and accordingly of the purpose of its establishment.
â
The
Trust shall, in a manner not inconsistent with the provisions of this
Act, be administered for the benefit, material welfare and
social
well-being of the members of the tribes and communities as
contemplated in â¦â
In
terms of s 4 the costs of the administration of the Board (and
according the Trust, as far as can be discerned from the legislation)
are to be borne by the Department of Land Affairs. Using the land to
generate income to finance the principal object of the Trust,
namely
the administration of the land, is not contemplated by the Trust Act.
[83]
Subsection 3(3) of the Trust Act repeats the identification of the
beneficiaries of the land.
â
All
land and real rights referred to in subsection (1) shall be
transferred to the Ingonyama as Trustee of the Ingonyama Trust
referred
to in s 2(1) for and on behalf of the members of the said
tribes and communities and the said residents, â¦, but subject to
any
existing right or obligation on or over such land and subject
also to the provisions of this Act.â
[84]
Finally, and most importantly, s 2(4) of the Trust Act reads as
follows.
â
The
Ingonyama may, subject to the provisions of this Act and any other
law, deal with the land referred to in s 3(1) in accordance
with Zulu
indigenous law or any other applicable law.â
Insofar
as the leasing activities of the Board and the Trust with respect to
residential and arable land are concerned, there is no
claim that
they are acting in accordance with the provisions of any other law,
let alone one which in the present context may be
taken to be in
accordance with Zulu indigenous law.
[85]
There is much to be said for the proposition that the Ingonyama, the
Trust and the Board have no power
to let land or the buildings
thereon for residential purposes, or for tillage; and probably also
for the purposes of the exercise
of communal grazing rights. To do so
is not in accordance with Zulu Indigenous Law. It is more than
arguable that, in context, the
right to let land which is implicit in
sections 2(5) and 2A(2) of the Trust Act must be read as being
confined to circumstances where
the right of occupation and use of
land is not ordinarily governed by Zulu Indigenous Law or any other
applicable law. It is the
applicantsâ contention that the Land
Affairs Act, and in particular the provisions relating to the grant
of PTO rights, is such
an other applicable law, but that is a subject
to be dealt with hereunder.
PTO Conversion
Project
[86]
It is common cause that the Trust and the Board have no authority to
issue and withdraw or dispose of
the rights vested in PTO holders. In
terms of the Land Affairs Act and PTO Regulations, this power is
vested in the Minister or the
MEC.
[41]
A PTO is a registrable and transferable real right. The Land Affairs
Act provides for land allotted for a PTO to be surveyed and
for a
certificate of registered title thereafter to be obtained in respect
of such allotment.
[42]
Full common-law ownership is thereby achieved.
[87]
As already stated, on its own frolic, the Board decided in April 2007
that the issuing of PTOs should
cease, and that the then existing PTO
rights should be converted to lease agreements on the pretext that
PTOs afforded limited security
for funding and that they are not
registrable interests. In the place of PTOs, the Board recommended
leases as its own âpreferred
tenure rightâ in the place of the
PTOs. In the same year in November, the Board informed the Portfolio
Committee of its decision
to abolish the issue of PTOs and replace
them with leases. The Trust and the Board then proceeded to establish
new administrative
processes for persons applying for tenure rights
on Trust-held land through leasehold, and they called the process the
âPTO Conversion
Projectâ.
[88]
The Trust and the Board continued to implement the PTO Conversion
Project by escalating its implementation
through the publication of
public notices, calling on residents to upgrade their PTOs into long
term leases. In 2017 the Board published
a series of media
advertisements relating to the continued implementation of the PTO
Conversion Project. The Trust insisted that
all new applications for
PTOs should cease. The Board referred to the leasehold as its
âpreferred tenure optionâ. The third applicant
testified on the
measures that the Trust took to cancel the existing PTO rights and to
prevent the issue and certification of any
new PTO rights. This finds
support in the Trustâs and the Boardâs own statements and reports
on their PTO Conversion Project
and their public advertisements and
notices, calling on PTO rights holders to upgrade their rights by
concluding leases agreements
with the Trust. According to the fifth
applicant, when residents, including himself, applied for the issue
of a new PTO or a certificate
of an existing PTO right, they were
urged and persuaded to enter into a lease agreement instead.
[89]
As a result of the decision that PTOs would no longer be issued on
Trust-held land, the employees in
the rural areas who were members of
the Public Service Coordinating Bargaining Council (âPSCBCâ) with
valid PTOs, and who would
in terms of such PTOs be deemed homeowners
for the purposes of accessing a housing allowance, were denied access
to such housing
allowance. In the absence of an alternative to prove
tenure over their homes for the purposes of accessing housing
allowances, the
government employees had no choice but to conclude
lease agreements with the Trust. The Trust contends that PTOs are
racially discriminating
instruments, and that their âreintroduction
will offend the Constitution and the Abolition of Racially Based Land
Measures Act
108 of 1991.â The condition for conversion from PTOs
to ownership is that the Minister and the community must first
approve the
intended conversion. There is nothing to show that such
permission had been obtained when the Trust and the Board implemented
their
purported PTO Conversion Project.
Leases
[90]
Under common law, a contract of lease is entered into by two parties,
who with âthe requisite intention
agree that the one party, called
the lessor, shall give the temporary use and enjoyment of property to
the other, called the lessee,
in return for the payment of
rentâ.
[43]
There are two essentials of a lease, namely the use and enjoyment of
the property, and the rental to be paid in return for
it. The lessee
does not have any right beyond the use and enjoyment of the property
in question.
[91]
The Trust claims that when it introduced leases instead of PTOs, it
was exercising its statutory powers,
âreinforcingâ customary
rights by giving residents security in the form of leasehold rights.
As a consequence, the Trust and
the Board discouraged all residents
who were and have been applying for PTOs, and told them to enter into
lease agreements. The Board
encouraged the occupants of Trust-held
land through roadshows and workshops campaigns to âconvert PTO
rightsâ to âa new order
rightâ, being the lease holding. As
stated earlier, the Trust holds land in trust for the specified
beneficiaries, who are the
true ultimate owners of it, in accordance
with customary law. Ownership consists primarily of the relationship
between a legal subject
and a thing or legal object. This
relationship comprises complete and absolute control over the thing â
the sum total of all possible
rights and capacities over the thing.
The content of ownership is summarized as the capacity to possess,
use, enjoy, alienate and
destroy the thing.
[44]
[92]
Ownership of land includes, firstly, the right to possess the land.
Possession consists of physical control
of a thing, coupled with the
intention to hold and control the thing for oneâs own benefit.
[45]
Secondly, it includes the right to use and to enjoy the thing,
confers on the land owner the capacity to use the land for any
ordinary
and natural purpose, and entitles the owner to the enjoyment
of the property and its fruits. Ordinary and natural use of land
includes
planting and sowing on the land, building on the land, and
using and enjoying water on and beneath the surface of the land.
[93]
The third incident of ownership of land is the right to alienate the
property. By alienation it is meant
the transfer of complete
ownership to another, but also includes the right to dispose of the
property in other ways.
[46]
The Chairperson of the Board in its 2016/17 Annual Report, referring
to the beneficiaries of Trust-held land, stated that they âare
entitled to all the benefits which the land owner as understood under
the Roman Dutch Law enjoysâ. As the trustee, the Trust has
a
fiduciary duty to hold and use the land for the benefit of the
beneficiaries of the Trust, ie for the members of Zulu communities
and residents living on Trust-held land. It follows that the Trust
does not hold the land in its personal interest or for its personal
benefit.
[94]
Innes CJ in
Robinson
v Randfontein Estates Gold Mining Co Ltd
,
[47]
stated the following about fiduciary relationships between the
trustee and beneficiaries of a trust:
â
Where
one man stands to another in a position of confidence involving a
duty to protect the interests of that other, he is not allowed
to
make a secret profit at the other's expense or place himself in a
position - where his interests conflict with his duty . . .
There is
only one way by which such transactions can be validated, and that is
by the free consent of the principal following upon
a full disclosure
by the agent.â
Section
2(2) of the Trust Act can be said to be the statutory entrenchment of
this fiduciary duty.
Customary law
rights
[95]
As the nominal owner of Trust-held land, the Ingonyama does not have
exclusive rights to own, control
and regulate Trust-held land, nor
does it have an unfettered right to deal with such land. It is common
cause that the Trust and
the Board in the execution of their
functions and exercise of their powers in terms of the Trust Act,
must act within the parameters
of such Act, indigenous law, any other
applicable law and the Constitution. The Trust and the Board may
therefore exercise no power
and perform no function beyond that
conferred upon them by law.
[96]
In terms of s 2(4) of the Trust Act, the Trust must deal with the
land referred to in s 3(1), in accordance
with Zulu indigenous law or
any applicable law.
[48]
Under customary law, each family head has the right to be allotted a
family home site, arable land and a right to graze his livestock
on
pasture lands. The land is allotted to an individual without
requiring anything in return in the nature of a purchase price or
rental. The individualâs holding of a portion of the land allotted
to him or her is sacrosanct in that it is inviolable and passes
from
generation to generation (inheritable). It becomes the property of
the individualâs family.
[49]
Nothing can be done with it without the involvement and consent of
such individual or his or her family members. The owner of
residential
or arable land acquires an exclusive right to its use.
[97]
It has been argued on behalf of the Trust and the Board that
according to Zulu customary law land is
âindivisibleâ and
âinalienableâ. Consequently, so the contention goes, the effect
of this is that no individual Zulu under
the tribal system can claim
individual ownership from any tribal communal land. The Trust and the
Board contend further that âallotment
to an individual family is
exclusive to that family with all the safeguards but does [not] lead
to land being alienatedâ.
[98]
The concept that land under Zulu customary law is âindivisible and
inalienableâ means that an owner
of a particular portion of land
cannot take his or her portion and secede from the rest of that
particular tribe or community of
which he or she is a member, and
that the land cannot become a subject of a private sale, as with
freehold. It does not follow that
an owner or allottee cannot
exercise the incidents of ownership in respect of the allotted
portion of land to the exclusion of all
other members of the
community, save the members of his or her family. He or she can
transfer land to any other person who is willing
and prepared to
reside in, become party of the community in which the land is
situated, and to owe allegiance to the inkosi of that
area concerned.
A person who takes occupation of a built up plot or allotment
reimburses the owner for the buildings erected thereon.
[99]
I agree with Professor Nhlapoâs statement that payment of regular
rental for land to traditional authorities
is an unknown phenomenon
under Zulu customary law. I also agree with his further statement
that in modern times rental is sometimes
paid to individuals or
families who rent land to tenants and that this is a bilateral
arrangement between individuals rather than
a feature of customary
law. Such private rental arrangements between individuals are not
regulated by traditional authority structures.
Conversion of
indigenous ownership of homesteads and fields into common law leases
is completely unknown under an indigenous system,
and it seriously
violates the system.
[100]
In terms of s 2(2) of the Trust Act, the Trust must be administered
and managed in a manner that is not inconsistent
with the provisions
of the Trust Act, and must be managed for the interests, benefit,
material welfare and social-wellbeing of the
members of the tribes
and communities, which are beneficiaries and residents of the
Trust-held land. The United Nations Declaration
on the Rights of
Indigenous Peoples (âUNDRIPâ)
[50]
provides as follows:
â
1.
Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or otherwise
used or acquired. â
This
Declaration supports the statement that indigenous people derive
their rights of occupation from historical rights of various
clans
(tribes), some predating the colonial era. Membership flows from
birth, but outsiders who apply for land can be accepted into
the
community through defined procedures.
[101]
The rights of persons to occupy or use Trust-held land are acquired
through Zulu customary law, customs and usages,
and such rights
entitle the owner to occupy and use the land, to dispose of such land
to another person, to erect a building or let
it, and transfer it to
another person, including bequeathing it to his or her children. In
addition to the customary law of right
to land, the third to the
eighth applicants and other beneficiaries and residents of the
Trust-held land have informal rights and
interests which are inherent
in the land on which they live. The actions of the Trust and the
Board have the effect of depriving
the holders of PTO rights,
customary law rights to land and/or other informal land rights or
interests in the Trust-held land, of
their security of tenure and of
infringing on property rights vested in them under statutory or
customary law, and IPILRA.
[102]
The indigenous legal system, statutory law and the Constitution
protect the beneficiaries' rights to the land in
question. IPILRA
protects an individualâs or communityâs rights to secure the
tenure of those living on communal land, and to
prevent the State and
private parties from undermining those rights. Land rights are
closely tied to social and cultural relationships,
and tenure
security is derived in large part from locally-legitimate
landholding. Tenure of residential land is perpetual, transferable
and inherited.
[103]
The evidence establishes that in refusing to issue or register PTOs
or to furnish rights holders with PTOs certificates,
and in requiring
PTO rights holders to conclude lease agreements in order to obtain
formal proof of their tenure on Trust-held land,
the Trust and the
Board have unilaterally assumed the powers which the Minister has
delegated under sections 24 to 26 of the Land
Affairs Act to the MEC
with effect from 19 September 1998. The actions of the Trust and the
Board have the effect of depriving holders
of PTOs and would-be PTO
rights holders of their security of tenure and property rights,
vested under the Constitution, statutory
law and customary law.
[104]
The Trust and the Board have acted in contravention of the provisions
of ss 2(2) and 2(4) of the Trust Act, in terms
of which they are
required to administer the Trust for the benefit, material welfare
and social well-being of the beneficiaries and
residents of the
Trust-held land, and requires the Ingonyama to deal with the land,
under its jurisdiction, 'in accordance with Zulu
indigenous law or
any other applicable law'. The conduct of both the Trust and the
Board also constitutes a violation of the beneficiariesâ
and
residents' rights under IPILRA, which should not be taken away
without the informed consent of the holders, and the rights holders'
rights to property under s 25 of the Constitution.
[105]
Finally, the conduct of the Trust and the Board in persuading and
inducing or requiring the residents and occupiers
to conclude lease
agreements without giving them full and proper notice of the nature
of the agreements, and their effect on the
existing rights and
interests, has violated the rights of the residents and occupiers to
procedural fairness. All of these will become
more evident and
apparent below.
Leases versus
PTOs
[106]
By concluding lease agreements with the beneficiaries and occupiers
of Trust-held land instead of PTOs, the Trust
and the Board claimed
to improve the security of tenure of the residents. However, instead,
the effect of the conversion of PTOs
into lease holding is averse to
the purported objective of the Trust and the Board, in that it
deprives the beneficiaries and residents
of their customary or
informal rights of ownership in Trust-held land, and places it fully
in the hands of the Trust, to the exclusion
of the beneficiaries and
residents, being the true and ultimate owners of the Trust-held land.
The Trust then becomes a lessor, and
the beneficiaries and residents
are reduced to mere tenants, having no rights beyond that of
permissive occupation and use.
[107]
Under lease agreements, the lessees' rights to the land in question
are not perpetually inherited and transferable.
Instead, the lessees'
continued occupation of the land is conditional upon payment of rent,
and the failure to pay rental can result
in them being ejected from
the Trust-held land in terms of their respective lease agreements. On
the contrary, PTOs grant exclusive
occupancy and use rights that are
transferable subject to administrative conditions. In terms of reg
11(2) of the PTO Regulations,
a PTO for residential purposes is not
subject to any rental. The Trustâs standard long-term residential
lease stipulates a rental
amount which must be paid annually, in
advance, and is subject to a 10% annual escalation. Failure to pay
the stipulated rental constitutes
a material breach of the lease
agreement, and constitutes grounds for the termination of the lease
agreement, and ultimate dispossession
of the property.
[108]
The long term-residential lease concluded by the Trust expires after
40 years. On the expiration of the 40-year
period, an application
must be made for the extension of the lease. The traditional council
must consent to the contemplated extension
of the lease. However, the
Trust may refuse to extend the lease, or may vary the terms and
conditions of the lease in granting the
lease.
[51]
Whereas a PTO may only be cancelled by the Minister or his delegate,
after consultation with the tribal (traditional) authority concerned.
This is in contrast to the lease agreement which provides for the
termination of the lease agreement by the Trust on expiry thereof,
or
at any time for material breach, or if the traditional council
withdraws its consent to the lease. The traditional council is
also
empowered under the lease agreement to âwithdraw its consent to the
lease of the premises prior to the termination of this
lease. . .
for good, reasonable and objectively determined causeâ.
[109]
Section 26 of the Land Affairs Act provides for land allotted for a
PTO to be surveyed and for a certificate of
registered title
thereafter to be obtained in respect of such allotment. Upon the land
being surveyed, the PTO can be secured through
the granting of deed
of grant rights by the owner, and by registration of title in the
Deeds Registry, whereas a lease agreement
does not contain such
provision. The Upgrading of Land Tenure Rights Act also provides for
the upgrading of PTOs to registered titles,
at the expense of the
State. Under the lease agreement, the lessee is burdened with a host
of obligations and restrictions. Upon
termination of the lease for
whatever reason, all buildings and other permanent structures on the
premises remain the property of
the lessor, without compensation of
any sort payable to the lessee. To say that the conclusion of a
residential lease agreement is
an âupgradeâ from a PTO, and that
it affords more secure tenure to occupiers, as the Board alleges, is
palpably false.
[110]
The long-term residential lease agreements are also not consistent
with the customary rights to land. The lessees
are subject to
dispossession by the Trust of the land on which they live for
non-payment of rental, without consideration of their
vested
customary law interests and entitlements in the land in question, and
without any involvement of the community or traditional
authority.
The beneficial and use rights are no longer vested perpetually,
transferable and inherited, but are terminated after 40
years or
earlier at the instance of the Trust for material breach of the lease
agreement or by the traditional council concerned.
The lease
agreements ignore, and thereby trump, the co-existing customary
rights of all family members other than the lessees. The
power to
control land rights is vested entirely in the Trust and amakhosi (the
senior traditional leaders). The lease agreements
deprive families,
neighbours and communities of their customary law entitlement to
participate in decision making in respect of the
matters relating to
occupation and use of tribal land. The allotted land does not fall
under the ownership of the traditional authority,
but falls under the
jurisdiction of an inkosi and induna only for administrative
purposes.
[111]
According to the seventh applicant, Ms Bongi Gumede, in terms of the
lease agreement, all other persons who customarily
have the right to
reside or to remain on the plot or allotment, for instance the other
members of the extended family and their children
(siblings and their
children), are excluded.
[112]
Leasehold as a form of land tenure in respect of Trust-held land was
first introduced by an amendment of the regulations
framed under
Proclamation R293 of 1962
[52]
by Proclamation R153 of 1983
[53]
which added a new Chapter 2A to the regulations. Regulation 1(1)
(a)
of Chapter 2A provided that the Director-General of Co-Operation and
Development could, in respect of the land of which the SA Development
Trust was the registered owner or which land vested in it, âgrant
to a competent person in respect of any leasehold site situated
on
such land, a right of leasehold for a period of 99 years.. .â.
A leasehold site was defined to mean âan ownership unit
. . . in
the township indicated on a diagram or general plan of a township. .
.â. Incidentally, Proclamation R153 of 1983 substituted
a new
definition for âownership unitâ defining it as any âsite in a
township the ownership of which is with a Black person
or which is
held by virtue of a deed of grant or under a right of leasehold, and
includes and building upon such site.â
[113]
A right of leasehold was â. . . granted against payment to the
Trust of an amount in respect of such right and
any improvements on
the leasehold site in questionâ.
[54]
The grant of a right of leasehold was subject to registration in the
deeds registry in the office of the Chief Commissioner. A certificate
of right of leasehold was issued to the holder on registration.
[114]
Registration of the right of leasehold vested in the holder thereof,
and gave the holder the right to:
[55]
(a)
erect any building or make improvements on the leasehold site, and to
alter or demolish such
building or improvements;
(b)
occupy any building on the site, subject to the regulations and any
conditions imposed by
the Minister;
(c)
encumber the right by means of a mortgage;
(d)
dispose of such right of leasehold to any other competent person,
which included the right
to let or bequeath the right of leasehold;
and
(e)
the right of leasehold could be alienated and transferred to another
competent person provided
there was no charge, fee or other amount
due owing in respect of the site by the holder of the right to the
Trust.
[56]
[115]
The lease agreements before this court have a different hue
altogether. A 99 year lease approximates ownership.
A 40-year
lease, even one on less onerous terms on the tenant than the one
employed by the Trust and the Board, may qualify for registration
as
a long lease, but in no way approximates ownership. As far as
registration is concerned, the production of the diagram suitable
for
registration purposes (contemplated by clause 19.1.1 of the leases
employed by the Trust) presumably requires the same accuracy
of
survey as would the production of the diagram necessary to convert a
PTO right into a registered deed of grant and certificate
of
registered title as contemplated by s 26 of the Land Affairs Act. It
is legitimate to ask why a duty informed potential PTO right
holder
or lessee, intent on securing registration of rights in land, would
ever choose the leasehold rights offered by the Trust
in preference
to a PTO granted under the Land Affairs Act.
[116]
A leasehold tenure can approximate a form of ownership if a statutory
provision is made for its conversion to freehold
tenure or ownership.
A notable example is the Townships Amendment Act (Transvaal),
[57]
which created the opportunity for leaseholders of lots situated in
certain townships in the Transvaal to obtain freehold of those
lots.
In terms of this Act, leaseholders of lots situated on State land had
the right to claim transfer to themselves of ownership
in the lots on
payment of a fixed sum determined by the Act. The leaseholders of
lots situated on private land could acquire ownership
in the lots by
agreement with the owner of the land, and upon payment of a price
agreed between the parties. In the present case,
no such statutory
provision is made through which the holders of leasehold rights may
achieve ownership of the land they lease. The
creation of an Erf
capable of separate registration independently of a greater piece of
land of which it originally formed a part
involves the subdivision of
land. It appears from clause 6.8.4 of the form of lease imposed
by the Trust and the Board on lessees
that the Trust took the view
(ignoring Chapter XI of the Land Affairs Act) that the introduction
of the KwaZulu-Natal Planning and
Development Act
[58]
posed a risk as it put the subdivision of land in the hands of
municipalities. The clause is somewhat remarkable not because of any
legal sense which it makes or does not make, but because it
illustrates that if the Trust and the Board had it in mind to render
all occupational rights of its land in the form of leasehold, the
leases were designed to ensure that their provisions obstructed
subdivision and therefore obstructed the transfer of ownership of
allotted portions of land from the Trust to an allottee. The clause
reads as follows.
â
Notwithstanding
anything to the contrary in this lease contained, no provision of
this lease shall be interpreted as constituting
the consent of the
Lessor to the subdivision [or] consolidation of the land hereby
leased as described in section 21(1) of the KwaZulu-Natal
Planning
and Development Act No. 6 of 2008 and any application by any person
or municipality, including the lessee, for the approval
of any such
subdivision or consolidation under section 26(3) of that Act is
specifically prohibited.â
[117]
According to the Board, the leases, among other things, provide the
following benefits to the occupiers of Trust-held
land: more security
of land tenure; the ability to apply for finance using a lease as
security; re-enforcement of the beneficiariesâ
customary rights;
facilitation of proof of tenure in applications for liquor licences
in terms of the
KwaZulu-Natal
Liquor Licensing Act
;
[59]
may be used as proof of residence for purposes of complying with the
Regulation
of Interception of Communications and Provision of
Communication-related Information Act
(â
RICAâ)
[60]
and the
Financial
Intelligence Centre Act
(â
FICA);
[61]
the facilitation of access to cell phones, bank accounts and loans
from institutions such as Ithala Development Finance Corporation
(Ithala Bank), and the facilitation of voter registration.
[118]
That the lease can serve as security for loans is not borne out by
any evidence and the applicantsâ experiences.
The fifth applicant
was unable to obtain a loan from Ithala Bank on the strength of his
lease. The third applicant went through a
similar experience. It is
common knowledge that the certified PTOs have been accepted by some
banks including Ithala Bank as security
for loans. For the purposes
of RICA and FICA, leases serve as proof of residential address and
nothing more. A PTO certificate will
serve the same purpose. Also, a
letter issued and stamped by the relevant municipal office can also
serve such purpose. For voter
registration purposes, a PTO
certificate can serve to prove the voterâs residential address in
the same way a lease and a letter
issued by the municipal officer
does. Lease registration is onerous and costly. In addition, the
registration of a lease requires
attestation by a notary under
s
77(1)
of the
Deeds Registries Act.
[62
]
[119]
Leases concluded by the Trust with beneficiaries and residents are
not compatible with the customary law rights
of residents living on
Trust-held land. A comparison between the rights and obligations the
residents have under customary law, on
the one hand, and as lessees,
on the other hand, reveals that the leases undermine rather than
reinforce customary law rights and
security of tenure, as the Trust
and the Board allege.
[120]
It is not true that only leases are registrable against title deeds.
Arrangements are made that PTO rights holders
eventually achieve full
ownership of the property they occupy. There are no notarial
agreements or bonds, which could afford such
security, in the present
case. By saying that only lease agreements are registrable against
title deeds, the Trust and the Board
give the beneficiaries and
occupiers of Trust-held land a false sense of security under the
lease holding scheme. It is not stated
how the leases enable the
beneficiaries and occupiers to achieve all of what is set out above,
nor is there anything to suggest that
PTOs cannot achieve these
objectives, as outlined above. The evidence tendered before this
court is that PTOs are better able to
achieve these objectives.
Leases are allegedly designed to uplift and empower the residents of
Trust-held land rather than depriving
them of their land. However,
the Trust and the Board have not explained how leases uplift and
empower the people concerned. The same
can also be said about the
statement by the Trust and the Board that the lease agreements have
commercial value and afford lessees
stronger rights than holders of
PTO rights, which is not borne out by any evidence, or a
consideration of the rights and obligations
under each regime.
[121]
Further, the validity of the lease agreements under common law is
subject to doubt. Where the lessee already has
the right of use and
the enjoyment of the property to which the lease refers, there is no
contract.
[63]
This raises a question whether the lease agreements purported to have
been entered into between the Trust and beneficiaries and residents
of Trust-held land could produce any lawful and valid leases. The
general principle is that no one may lease property in which one
has
full ownership right.
[64]
In terms of PTOs, customary law rights and IPILRA, the beneficiaries
and residents of Trust-held land already have occupation, use
and
enjoyment of the land which is the subject of the lease agreements.
As a consequence, the purported leases could not transfer
any such
rights to the beneficiaries and residents on Trust-held land.
Following the rule that a lease of oneâs own thing is a
nullity,
the leases entered into between the Trust and the beneficiaries and
residents of Trust-held land could not be said to be
valid as they
are contrary to the rule
rei
suae conductio nulla est
.
The lessorâs obligation is to make available the use and the
enjoyment of the property which is not the case in the present
matter.
Leases versus
customary law rights
[122]
The Trust and the Board are adamant that they have statutory powers
to conclude lease agreements. However it seems
to me that the Zulu
customary law right to land, as compared to leases, provides strong
and secure rights to residential, arable
land and commonage (grazing
land and woodlands) to families and to individuals within the family,
which are inherited from generation
to generation.
[123]
The third to ninth applicants and other residents of Trust-held land
have customary law rights and informal rights
in respect of the land
in question, which have in effect been extinguished by the conclusion
of the leases in respect of the land
the applicants and other
residents informally own and live on. It cannot be disputed that the
conclusion of leases has divested the
beneficiaries and the residents
of their customary law rights and/or informal rights, which provide a
stronger security of tenure.
[124]
The Portfolio Committee tried in vain to put an end to the conversion
of PTOs to leases and the Boardâs campaign
to urge and persuade the
beneficiaries and the residents of Trust-held land to conclude leases
instead of applying for the grant
and issue of PTOs. The Portfolio
Committee would like to see the conversion of informal ownership to
title deeds. This, in my view,
would give the beneficiaries and
residents the dignity of owning the land on which they reside rather
than being tenants. The Trust
and the Board should have striven to
have the informal ownership upgraded to title deeds or deeds of grant
which would give the beneficiaries
and residents of Trust-held land
the dignity of owning the land on which they are living, as opposed
to entering into leases.
[125]
The Trust and the Board have argued that the third to ninth
applicants are not holders of PTO rights or holders
of valid PTOs
that were cancelled. Further, the Trust and the Board have contended
that absent an allegation that the third to ninth
applicants were
holders of PTO rights, and which rights the Trust and the Board have
cancelled, there is no legal basis for the relief
sought by the
applicants. Nor have the applicants set out any facts in support of
their allegation that the Trust and the Board concluded
lease
agreements with anyone who was the holder of PTO rights. Further, the
applicants have also allegedly failed to identify the
land in respect
of which lease agreements have been entered into, as being land which
is either subject to PTO rights or IPILRA rights.
[126]
Most of the properties which the third to ninth applicants own have
descended from their parents upon them, and
the applicants are
entitled to be issued with or hold PTO rights in respect of such
properties. However, the Trust and the Board
urged and told them not
to apply for the issue of PTOs but to enter into lease agreements
with the Trust and the Board in respect
of such properties instead,
to their detriment. The Trust and the Board have thereby denied the
applicants and other residents of
Trust-held land an opportunity to
apply for and to have PTOs issued to them. In my view, in order for
the applicants and other residents
of the Trust-held land to have
been prejudiced as a result of the conduct of the Trust and the
Board, they need not show that they
were actually in possession of
PTOs and that such PTOs were physically or actually cancelled by the
Trust and the Board. It suffices
for them to show that they were and
are entitled to hold PTO rights (in other words, they were would-be
PTO rights holders). While
it is true that the evidence does not
establish that any PTO was ever actually cancelled by the Trust and
the Board, it is undeniable
that the Trust and the Board discouraged
residents of Trust-held land from applying for the issue of PTOs and
urged them to enter
into lease agreements with the Trust. By so
doing, the Trust and the Board have effectively terminated
applications for and the issuing
of PTOs in respect of Trust-held
land. As a result, the Trust and the Board have thereby finally
extinguished PTO rights in favour
of leases. The beneficiaries and
residents of Trust-held land were not given any alternative but to
enter into lease agreements with
the Trust.
[127]
The traditional councils, their employees and izinduna acting as the
agents of the Trust and the Board, spread the
word to beneficiaries
and residents of Trust-held land that PTOs were no longer required
and valid. In ensuring that no PTOs were
issued, even upon request,
meetings were held by various traditional councils and residents at
which izinduna in the presence of
the officials of the Board told the
residents that those who did not want to enter into lease agreements
would have their land taken
away from them. The officials of the
Trust and the Board did not intervene and stop the said izinduna from
intimidating the community.
[128]
This also finds support in the statements of the Chairperson of the
Board that the beneficiariesâ association
with the land in question
is permanent and perpetual, and that the Ingonyama Trust Board is not
a landlord,
[65]
and that they derive their rights of occupation from historical
rights of various clan tribes.
[66]
[129]
It thereby confirmed that the communities and residents living on
Trust-held land are the true and ultimate owners
of such land. It
therefore follows that in divesting community members and residents
of security of tenure, the Trust and the Board,
could not be acting
in the interests of and for the benefit, material welfare and social
well-being of the communities and residents
concerned, as s 2(2) of
the Trust Act directs, and therefore not acting lawfully. Similarly,
no countervailing evidence was provided
by the Trust and the Board to
demonstrate that the revenue generated by the leases is used for the
benefit of the communities concerned
or their material well-being.
[130]
Conversion of trusteeship into lease holding with the resultant loss
of the beneficiariesâ and residentsâ PTO
rights, customary law
ownership rights to land and/or informal rights or interests in the
land on which they live, also constitutes
a violation of the
provisions of IPILRA, as well as the infringement of the right to
property, protected under ss 25(1), (2) and
(6) of the Constitution.
Informal
rights to land (in terms of IPILRA)
[131]
In terms of IPILRA, any deprivation of informal rights to land must
be with the rights holderâs consent, or if
the land is held on a
communal basis, it must be in accordance with the communityâs
custom or usage, subject to the payment of
compensation as approved
by the majority of community members present at a specially convened
meeting where due process is followed.
[67]
[132]
Mr Dickson SC
,
for the Trust and the Board, has argued that IPILRA does not apply to
Trust-held land in that the Minister has no role to play in
Trust-held land but that only the Board has the sole power to
administer and manage such land. The content of the rights in IPILRA
do not apply to the regime of the Trust Act.
[133]
The âinformal right to landâ includes:
â
.
. . the use of, occupation of, or access to land in terms of â
(i)
any tribal, customary or indigenous law of a tribe . . .â
[68]
In
the present case, the beneficiaries of Trust-held land have customary
law rights to Trust-held land, on which they live, acquired
from time
immemorial. They also have the rights and interests in the land in
terms of the Trust Act and they, therefore, fall squarely
within the
ambit of the protection provided for by IPILRA. (It appears that
paragraphs
(a)
(ii)
(bb)
and
(b)
of the definition of âinformal right to landâ also apply.)
[134]
Under the Upgrading of Land Tenure Rights Act, âtribal landâ also
means land âwhich is held in trust on behalf
of a tribeâ. The
land in question is held by the Trust on behalf of the beneficiaries
and residents living on that land. On that
basis, IPIRLA also applies
in respect of the Trust-held land in the present matter. The IPILRA
protects informal or unregistered
rights in land against deprivation
without:
(a)
the individual rights holderâs consent; and
(b)
appropriate compensation and the support of the majority of the
communal land rights holders.
[69]
[135]
Section 2(5) of the Trust Act requires prior written consent of the
traditional authority or community authority
concerned for any lease
or alienation of land by the Trust as trustee. The Trust there acts
for and on behalf of the members of the
tribes, communities and
residents. However, the lease referred to in s 2(5) should not be
construed as referring to allocated or
allotted residential and
arable land, since that will fly directly in the face of customary
law, as dealing with such land requires
the consent or approval of
the allottee, as its owner. This is a right which may be defended
against the whole world.
[136]
Under customary law, each member of each class or community is
entitled to an allotment through procedures under
customary law. Once
a portion of land has been allocated to a particular individual as
residential or arable land, it is automatically
taken out of the
realm of communal ownership. It is demarcated and has fixed
boundaries. The ownership thereof descends from generation
to
generation of such particular individual owner or family. However,
unallotted and common land is communally owned by all members
of a
particular community, under the administration of an induna and
inkosi (headmen and senior traditional leader). However, both
communal and individually owned land is defended by all members of
the community concerned against attack or interference by outsiders.
It is only unallocated land which requires prior written consent of a
traditional or community authority for it to be encumbered,
pledged,
leased or alienated by the trustee. The consent or approval and
involvement of its allottee is required before anything
can be done
to allotted land. Mr
Dickson
for the Trust and the Board has argued that the Trust Act does not
make any distinction between unallotted and allotted land with
regard
to the Trust and the Board leasing out Trust-held land. In my view,
there must be a limitation, as what Mr
Dickson
proposes will violate the fundamental tenets of customary law,
governing allotted and unallotted land, for allotted land under
customary
law cannot be interfered with without the consent of its
owner. The distinction that exists in indigenous land ownership
systems
should be observed, lest the residentsâ ownership of
residential and arable sites will be diminished.
[70]
[137]
The Trust and the Board deny that they concluded leases with
residents of Trust-held land without their genuine
and informed
consent. According to the Trust and the Board, lease agreements were
and are concluded on a voluntary basis with residents
of Trust-held
land. The Trust and the Board claim to have received the required
consent. However, it is not clear from the evidence
of the Trust and
the Board whether the individuals they allege have consented to the
conclusion of the lease agreements were properly
informed of the
effect of their entering into and signing of such lease agreements.
The minds of the contracting parties should meet
(ad idem) which
means that there must be a common understanding between the parties.
[138]
The consent required for the deprivation of a right is a genuine and
informed consent. The consent is informed if
it is based on
substantial knowledge concerning the nature and effect of the
transaction consented to. Consent must be given freely,
without
duress or deception, and with sufficient legal competence to give it.
This court must through an analysis of the evidence
tendered before
it, determine whether the consent which the Trust and the Board
allegedly obtained from the residents for the conclusion
of the lease
agreements, met the required standard.
[139]
Consent must have been properly sought and freely given, and the
person whose consent is required must have full
and reliable
information relating to the scope and impact of the subject matter,
and must have the choice to give or withhold his
or her consent.
[140]
The court in
Christian
Lawyersâ Association v Minister of Health and others
,
[71]
held that it is now settled law that âthe informed consent
requirement rests on three independent legs of knowledge,
appreciation
and consentâ. A valid consent must be given by a
person with intellectual and emotional capacity for the required
knowledge, appreciation
and consent. As consent is a manifestation of
will, âcapacity to consent depends on the ability to form an
intelligent will on
the basis of appreciation of the nature and
consequences of the act consented toâ.
[72]
[141]
The requirement of knowledge in the present case means that a
beneficiary and resident consenting to a lease agreement
must have
full knowledge of the nature, extent and effect of the lease on his
or her existing customary law rights to land and/or
informal rights
to and interests in the Trust-held land.
[142]
The requirement of consent means that the consent given to the lease,
âmust be comprehensive, that is extend to
the entire transaction,
inclusive of its consequences.â
[73]
It must be shown that the effect and consequences of the lease
agreement on the existing customary law rights to land and /or
informal
rights to and interests in the land in question, must have
been realised and voluntarily consented to.
[74]
The evidence tendered by the third to eighth applicants establishes
that the Trust and the Board, being represented by the traditional
councils and local indunas (izinduna) attached to and serving under
various councils on Trust-held land, concluded residential lease
agreements without their genuine and informed consent. All these
applicants state that before entering into such lease agreements,
neither the Trust nor the Board informed them what the lease
agreements entailed and the benefits thereof, as opposed to PTOs.
[143]
The third to eighth applicants explain how the residents (including
themselves) were instructed by izinduna to attend
meetings, and to
bring their identity documents with them, and how they were
eventually caused to enter into lease agreements. Prior
to these
meetings, neither the Trust, nor the Board nor the traditional
councils and izinduna had explained to them the material
difference
between PTO rights and the leases, and the impact lease holding would
have on their existing customary law rights to the
land they occupy.
Instead, they were told that the leasehold rights were and are an
upgrade of PTO rights, and that this would enable
them to secure
financial loans from financial institutions, without an explanation
as to how all this would be achieved. Ms Hletshelweni
Lina Nkosi, the
third applicant, states that when entering into the lease agreement,
nothing was said to her about the payment of
monthly rent and the 10%
annual increase, and that if she would fail to pay the rental, she
might lose her land. She was told that
she would be able to secure a
financial loan through a lease and be able to show proof of ownership
of her house. The PTO would no
longer be accepted. The Trust and
Board officials insisted that everybody had to enter into a lease in
order to be able to show proof
of ownership of their houses. The
residents were told by the Trust and the Board through izinduna that
it was then a requirement
to conclude a lease as PTOs were no longer
valid.
[144]
Mr Zakhele Malcolm Nkwankwa, the fifth applicant, states that when he
signed his lease he did not know what it was.
When he approached
Ithala Bank for a loan to start a business on his premises, he was
turned down, despite producing his lease. The
evidence that the
residents were not told that rental would be payable for the
allotment, and about the 10% annual rental increase,
finds support in
the evidence of Mr Bongani Zikhali, the fourth applicant. He only
became aware of all this after the conclusion
of the lease agreement.
Realising that he had to pay a monthly rental for the allotment, he
approached the local traditional authority
for clarity. He ended up
at the Boardâs office in Ulundi, where he was assisted by the
manager and two Board employees. The fourth
applicant then told the
officials that had the Board and his induna informed the people in
his area of the implication of the leases,
they would not have
entered into them. The people in his area are poor and their only
source of income is a government grant or old
age pension grants.
[145]
Most of the applicants have had the land devolved upon them from
their parents. When they applied for the issue
of a PTO or PTO
certificate, the contracts of lease were concluded for them instead.
They were simply asked to give their identity
documents to the
secretaries of the traditional councils or to the officials of the
Trust and the Board, without them having been
afforded an explanation
as to the purpose and the nature of the agreement they were entering
into. They were then asked to sign the
documents after they had been
completed by such secretaries or officials on their behalf.
[146]
Ms Hluphekile Bhetina Mabuyakhulu, the sixth applicant, states that
she was allotted land, and that at some stage
she and other residents
were called to a community meeting, and told that if they failed to
conclude lease agreements, they would
not be recognised by the King
as part of his subjects or community. Their land would be taken away
from them, and they would then
be left on the street to fend for
themselves. Nothing was said to her about the effect the intended
lease agreements would have on
their existing customary law land
rights. The fifth, sixth and seventh applicants entered into the
lease agreements.
[147]
With regard to the seventh applicant, the plot had been allotted to
her mother by an induna, and she wanted to have
it transferred to her
name. The official of the Board, Mr Russell Mkhwanazi, completed a
lease form for the seventh applicant. Mr
Mkhawanzi only asked her for
an identity document and told her to sign the completed document. The
contents of the lease agreement
were not explained to her, nor were
any terms or conditions of the lease agreement read out, let alone
explained, to her.
[148]
The eighth applicant states that at a meeting which was also attended
by the officials of the Board, an induna told
all the residents that
were present that in order for their homes to be recognised, they had
to conclude lease agreements. Those
who had vast tracts of land, were
told to reduce them. The forms were completed by the clerks on behalf
of the residents, and the
residents were only asked to give the
clerks their identity documents and to sign the completed documents.
The induna went on to
say that should a resident not sign a lease
agreement, he or she would not be recognised as a resident and that
he or she would be
banished from the area. The eighth applicant also
had to reduce the size of his land in order to afford the rental, as
the size of
the land concerned determined the amount of rental
payable for it.
[149]
The parties to the contract of lease must intend to contract and
perform a true lease. The lessees, when they purportedly
entered into
lease agreements, did not know what such agreements entailed, let
alone what their terms and conditions were, except
they were informed
that the conclusion of such agreements would enable them to secure
financial loans. They were however not told
how such objectives would
be achieved. The nature and import of the documents were not
explained to them, nor were the community
members advised of the
material terms of the lease, including the rental amount. The Trust
and the Board persuaded the residents
to conclude leases under the
pretext that the leases have more advantages compared to PTOs, which
alleged advantages were not explained
to the beneficiaries and
residents. The residents also did not know what the differences
between PTOs and leases were. It is not
in dispute that the
conclusion of lease agreements between the Trust and residents of
Trust-held resulted in the loss of the customary
law rights and/or
informal rights of the residents to the land in question. Under the
circumstances, it cannot be said that such
residents could give a
genuine and informed consent to the taking away of their land
rights.
[150]
The Trust and the Board have contended that the category which the
applicants represent, includes residents and
occupants who held no
PTO rights on the land but concluded lease agreements out of their
own volition with the Trust. However, the
Trust and the Board have
not tendered any such evidence in support of their contention. On the
contrary, on the evidence of the third
to eighth applicants, members
of the community were threatened by their traditional councils and
izinduna, the agents of the Trust
and the Board on the ground, that
if they were not to enter into lease agreements, they would lose
their land, and that their refusal
to enter into such lease
agreements would amount to turning against his Majesty, the King of
the Zulus. As a consequence, they would
be excluded from their
relevant communities.
[151]
It has been argued on behalf of the Trust and the Board that as this
is a factual dispute, it should be decided
in favour of the Trust and
the Board. The proper approach, where a real dispute of fact is
alleged, is to take the facts as set out
by the applicant, together
with any facts set out by the respondent which the applicant cannot
dispute, and to consider whether,
having regard to the inherent
probabilities, the applicant could on those facts succeed.
[75]
The first and second respondents have not set out any facts at all
with regard to the disputed facts. On this basis, it is
not
possible, using the test referred to above, to determine that the
alleged dispute of fact is real, genuine and bona fide
.
[152]
With regard to what would constitute a bona fide dispute of fact, the
Supreme Court of Appeal in
Wightman
t/a JW Construction v Headfour (Pty) Ltd and another
said:
[76]
â
A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the
dispute
has in his affidavit seriously and unambiguously addressed the
fact said to be disputed. There will of course be instances
where a
bare denial meets the requirement because there is no other way open
to the disputing party and nothing more can therefore
be expected of
him. But even that may not be sufficient if the fact averred lies
purely within the knowledge of the averring party
and no basis is
laid for disputing the veracity or accuracy of the averment.
When the facts averred are such that the disputing
party must
necessarily possess knowledge of them and be able to provide an
answer (or countervailing evidence) if they be not true
or accurate
but, instead of doing so, rests his case on a bare or ambiguous
denial the court will generally have difficulty in finding
that the
test is satisfied
.â
[153]
The Trust and the Board have failed on all fronts to meet the
requirements set out in
Wightman t/a JW
Construction
. In their answering
affidavit, they have not seriously and unambiguously addressed the
disputed facts. Nor have they stated the basis
on which they dispute
the facts averred by the applicants relating to the threats,
intimidation and coercion. The first and second
respondents might not
have knowledge of the particular leases in question, but the
leasehold scheme is different as this is their
initiative. They must
have known what was going on when the time came to implement their
leasing scheme.
[154]
It was reasonably expected of the Trust and the Board to meaningfully
engage the residents in the Trust-held land
before proceeding with
the implementation of the PTO Conversion Project and the conclusion
of the lease agreements. They should also
have stated what steps they
took prior to the implementation of the PTO Conversion Project, to
ascertain and understand its impact
on the residentsâ existing
customary law rights to land, and what process they followed in doing
all this. That would assist to
demonstrate, on their version, whether
the lease holding scheme was appropriately and adequately explained
to the beneficiaries and
residents and the effect the lease holding
scheme would have on their then existing customary law rights and
informal rights to the
land in question. However, considering the
lease agreements before this court, I fear that it would require the
very best efforts
of a trained lawyer, well versed in all of
commercial, customary and land law, and with a developed ability to
render complex legal
speak accessible to lay clients, in order
properly to impart a full and proper understanding of the lease to
community members. Neither
the lease nor its legal context are
simple.
[155]
The Trust and the Board have failed to tender any evidence to the
effect that their envisaged land tenure improvement
plan (the PTO
Conversion Project) had at any stage been unpacked to the
beneficiaries and residents of Trust-held land for them to
know and
understand what such plan entailed, and to assess for themselves
whether or not the project would impact negatively on their
existing
customary law rights to the land in question. Instead, the Trust and
the Board have raised a bare denial in respect thereof,
as indicated
above.
[156]
In the circumstances, it would not be just and fair to exclude the
evidence of the third to eighth applicants relating
to how they came
to enter into the purported lease agreements at the instance of the
Trust and the Board, merely on the basis of
a bare denial and the
mere allegation that there is a dispute of fact. The Trust and the
Board have not tendered any evidence in
this regard, notwithstanding
that they have been able to do so. In the circumstances, it cannot be
said that the residents freely
and voluntarily participated in the
conclusion of lease agreements with the Trust, with the appropriate
and required understanding.
The sixth, seventh and eighth applicants
state that they were threatened with the taking away of their land if
they did not sign
the lease agreements. They were also threatened
with banishment from their respective areas, and that they would thus
be cut off
from the Zulu nation. In the absence of any evidence
gainsaying all this, the evidence by these applicants that the
conclusion of
the lease agreements, on their part, was coerced and
induced by threats, misrepresentation and undue influence, must be
accepted.
[157]
In the circumstances, I am satisfied that the conclusion of the lease
agreements has severely and adversely affected
PTO rights, and the
customary law rights to land, as well as the informal rights to and
interests of the residents in Trust-held
land on which they live. The
contingency of the residents being ejected from the land upon their
failure to pay rental, perpetually
ruins their rights to the land in
question.
Constitutional
Protection
[158]
As stated in para 41 above PTO rights, customary law rights to land,
and informal rights to, and interests in land
are also
constitutionally protected. As a result of discriminatory laws, PTOs
are not fully legally secure and laws governing PTO
rights only apply
to black persons. PTO rights therefore fall squarely within the
protection provided for by s 25(6) of the Constitution,
read with s 2
of IPILRA. Sections 25(1) and (2) of the Constitution protect
existing property rights and prohibit arbitrary deprivation
of
property and unlawful expropriation. In
Mkontwana
v Nelson Mandela Metropolitan Municipality
,
[77]
it was held that:
ââ¦
[w]hether
there has been a deprivation depends on the extent of the
interference with or limitation of use, enjoyment or exploitation
. .
. No more need be said than that at the very least, substantial
interference or limitation that goes beyond the normal restrictions
on property use or enjoyment found in an open and democratic society
would amount to deprivationâ.
[159]
The conduct of the Trust and the Board has been subversive of the
objects of the Trust Act, in that the residents
of Trust-held land
have been reduced to mere tenants, having no rights beyond that of
permissive occupation and use, and the Trust
has effectively become a
landlord rather than a trustee. This situation has resulted in the
loss of the residentsâ PTO rights and
customary law rights to land,
including their informal rights to and interests in the land in
question.
[160]
As I see it, the conduct of the Trust and the Board in this matter
does not show that they intended to address the
injustices of the
shameful past, as they profess to have been, which was characterised
â. . . by oppression, deprivation of a significant
segment of our
society and deep-rooted inequalities. . .â.
[78]
It seems to me, on the evidence before me, that the Trust and the
Board are dedicated to upholding and pursuing the system
devised through the decades which, according to Kunju AJ in
Dlakavu
v Irfani Traders CC
,
[79]
ensured:
â
.
. . that the degree of tenure security that black people were
entitled to was more precarious than the tenure security to which
white people were entitled. At its core, the approach to black people
was that they would be perpetual tenants on their own land
they
occupied and used.â
[161]
Jafta J, writing a minority judgment, in
Daniels
v Scribante and another (
Trust
for Community Outreach and Education as amicus curiae)
,
[80]
stated that:
ââ¦
[t]he
purpose of entrenching the rights of access to land and secure tenure
was to ensure that the State, through reasonable measures
within its
budget, progressively makes the realisation of those rights
achievable to the millions who did not enjoy themâ.
The
objective of the democratic government is that the residents who have
insecure tenure of land achieve full ownership of such land.
It is
apparent from the papers that the Trust and the Board have also fully
been aware of this government purpose.
[162]
However, the conduct of the Trust and the Board does not accord with
the purpose to improve the land so that the
owners of Trust-held land
ultimately receive full ownership of the land. The conduct of the
Trust and the Board, as outlined above,
amounts to an arbitrary
deprivation of the beneficiariesâ and residentsâ PTO rights,
customary law rights, and informal rights
to or interests in
Trust-held land. Such deprivation is not only in violation of the
provisions of the Trust Act, but also of IPILRA
and the Constitution.
The Trust and the Board may under s 2(5) of the Trust Act be entitled
to let a portion of the Trust-held land,
but there is no law which
permits them to convert the whole scheme of trusteeship to a lease
holding scheme. They are required to
make decisions by applying known
and general principles of law.
[81]
There must be lawful authorisation for the exercise of public power.
Exercise of public power is required to comply with the Constitution
and therefore with the doctrine of legality.
[82]
[163]
The conduct of the Trust and the Board in replacing PTOs with
residential leases, and in persuading or inducing,
coercing and
compelling beneficiaries and residents of Trustâheld land, who held
and were entitled to hold PTO rights and customary
law or IPILRA
rights in Trust-held land, to conclude lease agreements with the
Trust, without furnishing such rights holders with
complete and
accurate information on the nature and effect of the lease agreements
on their existing land rights, is unlawful and
unconstitutional.
[164]
There is no rational relation between the lease holding scheme, which
the Trust and the Board has adopted, and the
achievement of a
legitimate governmental purpose under the IPILRA and the
Constitution.
[83]
The absence of a rational relation between the lease holding scheme
and the achievement of a legitimate governmental purpose, justifies
the conclusion that the implementation of the lease holding scheme is
arbitrary, and accordingly inconsistent with the rule of law
and the
Constitution. The Trust and the Board have not demonstrated any
lawful and constitutional basis for replacing PTO rights
with
residential leases, and for demanding the payment of rental by the
beneficiaries and residents of Trust-held land, for the land
on which
they live, being the true and ultimate owners of the land in
question.
[84]
The deprivation of the residentsâ property rights is also arbitrary
within the meaning of s 25 of the Constitution, as the Trust
and the
Board have failed to provide sufficient reason for such deprivation.
The evidence does not establish that the Trust and the
Board aimed to
strengthen insecure rights. The evidence, and an overall view of the
scheme as a whole, suggests the aim of generating
revenue for the
Trust. And clause 6.8.4 of the leases before us suggests (and I
put it no higher than that for present purposes)
that the aim was to
maintain such a revenue stream more or less in perpetuity.
[165]
Furthermore, if the Trust and the Board genuinely aimed to strengthen
insecure land rights, one would have expected
them to have regard to
the provisions of the Upgrading of Land Tenure Rights Act. Section 3
of that Act makes provision for a relatively
easy route to conversion
of customary ownership to registered title in respect of land
mentioned in Schedule 2 to the Act, which
includes âa
ny
right to the occupation of tribal land granted under the indigenous
law or customs of the tribe in questionâ
.
If the Trust and the Board were in any doubt as whether that Act
applied to KwaZulu when it was enacted, they could have approached
the government to take steps to render it applicable. And if
they were of the view that the Act did not apply to KwaZulu when
it
was enacted, and that the exclusion of rights under s 3 of the Act
from the ambit of s 25A of the Act prevented the enjoyment
of rights
in terms of s 3 with regard to the land to which the government of
KwaZulu formerly had title, they could likewise have
asked the
government to rectify that situation; and if that failed, could have
pursued the relief ultimately granted by the Constitutional
Court in
Herbert
N.O.
and Others v Senqu Municipality and Others,
[85]
which had the effect of extending the rights under s 3 to the whole
of South Africa. None of that was done.
Breach of
statutory and constitutional duty
[166]
The applicants aver that the Minister as well as the MEC, being the
functionaries responsible for the administration
of both the Land
Affairs Act and the Trust Act, have failed to exercise effective
oversight of the Trust and the Board to ensure
that they act within
their powers, and to protect the property rights and security of
tenure of beneficiaries and residents of Trust-held
land.
[167]
The applicantsâ contention is that being fully aware of the Trust
and the Boardâs conversion of PTOs to leaseholds,
and the effect
thereof, the Minister or the MEC took no steps to intervene or to
stop the Trust and the Board from doing so. Instead,
the Minister and
MEC, in derelict of their statutory and constitutional duties to PTO
rights holders and beneficiaries or residents
of Trust-held land,
turned a blind eye to the unlawful activities of the Trust and the
Board to the detriment of the applicants and
all other beneficiaries
and residents of Trust-held land.
[168]
For the Minister to be said to have an obligation to intervene or to
stop the Trust and the Board at the time when
they converted the
trusteeship to lease holding, an Act of Parliament or the
Constitution must require or authorise her to fulfil
a particular
duty or to perform a certain function. For the legality of the
executive action is measured against the Bill of Rights,
other
provisions of the Constitution and an Act of Parliament. Mr
Semenya
SC
for the Minister and the MEC has
argued that the Minister lacked competency to intervene or to stop
the Trust and the Board from
replacing PTOs with leases. He based his
argument on the fact that the Trust-held land vests in the Trust, and
it is not government
land in terms of the Land Affairs Act. The
Minister therefore has no legal authority to grant PTOs on land which
is not owned by
the State.
[169]
Such argument does not hold water, since s 1 of the Land Affairs Act,
as amended, defines âGovernment landâ
as,
â
t
he
land which was transferred to the Government of the former
self-governing territory of KwaZulu in terms of Proclamation No. R.
232 of 1986 and includes any land acquired by the said Government
thereafter and, subject to the provisions of the KwaZulu Ingonyama
Trust Act, 1994 (Act No. 3 of 1994), land transferred to and held in
trust by the Ingonyama as trustee of the Ingonyama Trust in
terms of
the said Act
.â
[86]
[170]
A similar definition is contained in Proclamation R63 of 1998, which
amended the Land Affairs Act to include the
land held by the Trust.
Both the Supreme Court of Appeal
[87]
and the Constitutional Court
[88]
have held that the Trust is an organ of state as defined in s 239 of
the Constitution. The Minister thus has the authority to demarcate
allotments and grant PTO rights on Trust-held land under the Land
Affairs Act.
[171]
In the main, the objectives of the Land Affairs Act are to make
provision for tenure and the registration of certain
forms of title
in respect of land. Sections 24 to 26 of the Land Affairs Act and PTO
Regulations vest certain powers in the Minister,
to perform certain
functions on Government land or land owned by a tribal authority,
with regard to the granting of PTOs.
[172]
In terms of s 24, the Minister demarcates allotments of Government
land or land owned by a tribal authority, for
the purpose of granting
PTOs. Section 25 grants the Minister the power to issue, grant,
record, and withdraw or otherwise dispose
of a PTO. Section 26
defines the manner in which a PTO right holder may strengthen and
formalise the right, by having the land concerned
surveyed and
acquiring a deed of grant rights and a certificate of registered
title.
[173]
With regard to Trust-held land, the administration of PTOs is
governed by the PTO Regulations. Such regulations
define the process
of issuing and registering PTOs, and the respective roles of the
tribal authority and the Minister. The Minister
has an oversight over
the Trust and Boardâs execution of their functions and exercise of
their powers under the Trust Act, which
must be read with s 7(2) of
the Constitution. The section provides that âthe state must
respect, protect, promote and fulfil the
rights in the Bill of
Rightsâ. Upon proper construction of the section, the Minister, as
the relevant representative of the executive,
is enjoined to respect
and protect the existing property rights and security of tenure of
the residents and occupiers of Trust-held
land. Section 2 of the
Constitution makes it mandatory to fulfil the obligations imposed by
the Constitution.
[174]
It is evident from the above that the Minister is assigned the
function to exercise the powers granted by Chapter
XI of the Land
Affairs Act and the PTO Regulations. In terms of these, the Minister
is empowered to issue, grant and withdraw or
otherwise dispose of a
PTO right, as indicated above. Conversion of a PTO to ownership
requires the approval of the Minister in terms
of s 26(1).
[175]
At all times material hereto, the Minister has admittedly been fully
aware of the fact that the Trust and the Board
are engaged in the PTO
Conversion Project and that as a replacement thereof, the Trust and
the Board are concluding lease agreements
with the beneficiaries and
residents of Trust-held land. This is also confirmed by the fact that
the Minister has over the years
been furnished with reports by the
Trust and the Board, detailing the implementation of the PTO
Conversion Project and the rationale
behind it.
[176]
The Minister, as the authority responsible for administering the
grant and issue of PTOs under the Land Affairs
Act and PTO
Regulations, is duty bound to prevent interference with the exercise
of such powers and performance of the duties under
the Act and
Regulations.
[177]
The evidence establishes that the Minister has failed to perform the
required functions and to ensure that the residents
and the occupiers
of Trust-held land, who require PTOs, are able to obtain them, and
that all the granted PTOs are registered and
protected. Her
dereliction of duty is also evident from her failure to respond to
the correspondence from the Legal Resources Centre
in this regard.
[178]
Summarised, the Minister has, firstly, failed to exercise oversight
over the conduct of the affairs of the Trust
and the Board, the
exercise of their powers and the execution of their duties under the
Trust Act. Secondly, the Minister has failed
to respect and protect
the existing property rights and security of tenure of the residents
of Trust-held land, as required by s
7(2) read with s 25(1) of the
Constitution which provides that:
â
No
one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of
property.â
[179]
In the absence of any law authorising the Trust and the Board to
replace PTOs with leases, the Minister was then
conscious of the
arbitrariness and unlawfulness of their conduct. The Minister, having
been properly apprised of the precarious situation
created by the
Trust and the Board, knowing and understanding its implications and
the effect thereof, did not take any steps to
intervene and restrain
the Trust and the Board from carrying out their unlawful activities.
Instead, she allowed them to assume the
power and to use it
untrammelled, to the detriment of the property rights of the
beneficiaries and residents of Trust-held land,
and she thereby
ultimately identified herself with their activities.
Powers
conferred by Chapter XI of the Land Affairs Act and PTO Regulations
[180]
The applicants aver that save for transferring full ownership rights,
PTOs and PTO Regulations remain the only statutory
mechanism
available to secure and formalise land rights on unsurveyed land.
Chapter XI of the Land Affairs Act (ss 24 to 26) together
with its
regulations thus continues to give PTO rights over Trustâheld land.
In total disregard of the existing statutory framework,
the Board
decided that PTOs should no longer be issued, and that the residents
of Trust-held land must conclude long-term lease agreements
with the
Trust instead. The PTO Conversion Project has fundamentally
undermined the security of tenure of the residents of the Trust-held
land.
[181]
In their submission the applicants are adamant that the Land Affairs
Act and the PTO Regulations are still the only
existing statutory
mechanism through which transfer of land ownership in the rural areas
falling under the Trust can be achieved.
They have not been declared
unconstitutional and invalid. The applicants, therefore, in the event
of the absence of a readily available
means of securing and
formalising land tenure for the residents of Trust-held land, seek
the implementation of the PTO allocation
and registration scheme
under the Land Affairs Act and PTO Regulations.
[182]
The Trust and the Board object to this on two grounds. Firstly, on
the fact that PTOs are racially discriminatory
in that their
reintroduction will offend against the Constitution and the
provisions of the Abolition of Racially Based Land Measures
Act.
[89]
Secondly, ss 24 to 26 of the Land Affairs Act, governing the PTOs,
were repealed by Proclamation R63 of 1998, which was issued in
terms
of item 14 of schedule 6 to and s 99 of the Constitution.
[183]
The Trust and the Board contended that in the process of the
conciliation of all provincial and self-governing homelands
law, the
Land Affairs Act was taken over by national government through
Proclamation R63 of 1998. In so doing, Chapter XI thereof
(which
included ss 24 to 26) was effectively repealed. In the Trust and the
Boardâs submission, the PTOs, as an instrument of land
rights,
ceased to exist in 1998. They argue that PTOs could therefore not be
used under the Land Affairs Act and there is no provision
in the
Trust Act for PTOs to be issued. Accordingly, the Trust has no power
to issue PTOs under the Trust Act, nor does the Minister
have the
power to issue PTOs under the Land Affairs Act or the Trust Act. The
Trust and the Board also base their contention on the
fact that the
assignment of the Land Affairs Act to the Premier of KwaZulu-Natal
excluded the provisions relating to PTOs in the
Land Affairs Act.
Furthermore, it was argued that the PTO Regulations were not
assigned, nor could they be assigned since their statutory
origin had
disappeared.
[184]
Under item 2(1) of schedule 6 of the Constitution â[a]ll law that
was in force when the new Constitution took
effect, continues in
forceâ until amended, repealed and is found to be inconsistent with
the Constitution.
[185]
Item 14 of schedule 6 provides:
â
Assignment
of legislation to provinces
â
14. (1)
Legislation
with regard to a matter within a functional area listed in
Schedule
4
or
5
to
the new Constitution and which, when the new Constitution took
effect, was administered by an authority within the national
executive, may be assigned by the President, by proclamation, to an
authority within a provincial executive designated by the Executive
Council of the province
.
(2)
To
the extent that it is necessary for an assignment of legislation
under subitem (1) to be effectively carried out, the President,
by
proclamation, may
â
(
a
)
amend
or adapt the legislation to regulate its interpretation or
application
;
(
b
)
where
the assignment does not apply to the whole of any piece of
legislation, repeal and re-enact, with or without any amendments
or
adaptations referred to in paragraph (
a
),
those provisions to which the assignment applies or to the extent
that the assignment applies to them; or
.
. .â
[186]
Item 14 of schedule 6 of the Constitution makes provision for
the assignment of old order legislation, by proclamation
to the
provinces, by the President of the Republic of South Africa. That was
how Proclamation R63 of 1998 came into existence. In
terms of item
14(2)
(b),
where only part of a statute is assigned to the province, only those
parts of the statute that are assigned must be repealed or
re-enacted.
That must only be for those provisions to which the
assignment applies or to the extent that the assignment applies to
them.
[187]
When the Land Affairs Act was assigned to KwaZulu-Natal in terms of
Proclamation R63 of 1998, ss 11, 24, 25, 26,
29, 30 and 36 were
excluded. Sections 24 to 26 are the provisions governing PTOs. The
KwaZulu Land Affairs Amendment Act,
[90]
which came into operation on 11 September 1998, amended the Land
Affairs Act so as to validate certain acts purporting to have been
performed in terms of the Act. Proclamation R9 of 1997
[91]
amended the Land Affairs Act by substituting and deleting certain
definitions, amending s 9 and references; amending ss 11, 19, 30,
36,
37, and 39; repealing s 35, and inserting Schedule II. Once again,
the PTO provisions were not affected. However, the Minister
delegated
powers under ss 24 to 26 of the Land Affairs Act and the PTO
Regulations to the MEC on 19 September 1998. Henceforth, the
MEC
became responsible for the issuing and registration of PTO rights on
Trust-held land.
[188]
The general rule is that:
[92]
ââ¦
an
earlier enactment is to be regarded as impliedly repealed by a later
one if there is an irreconcilable conflict between the provisions
of
the two enactments . . . the exception applies when the earlier
enactment is a special one, because it should not be presumed
that
the Legislature intended to repeal the special enactment if it did
not make it clear that such was indeed its intention.â
[189]
In
re
Smithâs Estate
,
[93]
it was said that:
â
.
. . where there is an Act of Parliament which deals in a special way
with a particular subject-matter, and that is followed by a
general
Act of Parliament which deals in a general way with the
subject-matter of the previous legislation, the Court ought not to
hold that general words in such a general Act of Parliament effect a
repeal of the prior and special legislation unless it can find
some
reference in the general Act to the prior and special legislation, or
unless effect cannot be given to the provisions of the
general Act
without holding that there was such a repeal.â
[190]
In the absence of an express repeal, there is a presumption that a
later general enactment was not intended to effect
a repeal of a
conflicting earlier and special enactment. The presumption falls
away, however, if there are clear indications that
the Legislature
nonetheless intended to repeal the earlier enactment.
[191]
Section 12(2)
(c)
of the Interpretation Act,
[94]
provides that when a law is repealed, any right, privilege,
obligation or liability acquired, accrued or incurred under the law
is
not affected unless the contrary intention appears.
[95]
[192]
When only part of the Land Affairs Act was assigned to KwaZulu-Natal
under Proclamation R63 of 1998, the effect
thereof was that the
unassigned portions of the Act continued to be in force under the
administration of national government. This
is evident from the fact
that the unassigned portions, together with the PTO Regulations, were
later delegated to the MEC by the
Minister on 19 September 1998. The
assignment excluded ss 24 to 26 and no reference has been made to
them in the legislation, which
could justify the presumption that
they were repealed. When the Land Affairs Amendment Act amended the
Land Affairs Act through Proclamation
R9 of 1997, none of the PTO
provisions were repealed. As a consequence, there is no conflict, let
alone an irreconcilable one, between
the provisions of ss 24 to 26
and the assigned portions of the Land Affairs Act which could justify
the conclusion that the PTO provisions
were repealed. Further, in
terms of the Land Affairs Act, the Minister has an obligation to
dispose of Government land to the residents
of Trust-held land, who
are entitled to secure security of tenure over the land on which they
live. In terms of s 12(2)
(c)
of the Interpretation Act, such an obligation of the Minister, and
the right or privilege of the residents of Trust-held land, ie
to
acquire security of tenure, would remain intact even if the
provisions in question were to be repealed.
[193]
The contention by the Trust and the Board that the PTO provisions and
regulations, as the statutory mechanism through
which ownership of
land can be transferred on unsurveyed land, were repealed or ceased
to exist in 1998, is not borne by any evidence
or recordings.
Accordingly, I do not find any merit in such contention. If the PTO
provisions were indeed repealed in 1998, as the
Trust and the Board
allege, there would be no need for the Board in 2007, at a meeting of
the Portfolio Committee, to declare that
it had terminated PTOs and
to state the reason for so doing. What is noticeable is that the
reasons the Board gave in its Annual
Reports for the termination of
PTOs are quite different from that which is contended now. At no
stage had the Trust and the Board
made any mention of the repeal or
the ceasing to exist of the PTO provisions and the regulations in
1998 as the reason for their
intended termination of PTOs. To the
contrary, the evidence clearly establishes that PTOs and the
regulations still remain the only
statutory mechanisms for securing
and formalising land tenure on unsurveyed land in the rural areas,
including Trust-held land.
Courtâs
Protection
[194]
This court has a duty to protect PTO rights, customary law rights and
informal rights or interests (collectively
referred to as âproperty
rightsâ) of the true and ultimate owners of Trust-held land against
the conduct of the Trust and the
Board, which purports, in excess of
their powers and authority, to deprive the beneficiaries and
residents of the land in question
of such rights.
[96]
Further, this court has a duty to redress the resultant infringement
and deprivation of the beneficiariesâ and residentsâ property
rights from the unlawful conduct of the Trust and the Board and
inaction of the Minister.
[195]
For deprivation to take place, there must be a legally protectable
interest or an entitlement removed, and the impact
of interference
must be of sufficient magnitude to warrant constitutional engagement.
In the present case, the property rights referred
to above, are
worthy of protection and are sufficiently substantial that their
removal constitutes deprivation.
[97]
[196]
The land that is vested in the Trust is held on behalf of and for the
exclusive use and benefit of its residents.
The Trustâs conduct
constitutes a substantial interference with and limitation of
customary and PTO land rights, that goes beyond
any normal
restriction on the occupation, use and enjoyment of land found in an
open and democratic society, which amounts to deprivation.
[197]
Rendering the occupation of the home tenuous dislocates the way of
life of an occupier. In
Daniels
v Scribante
,
[98]
Madlanga J, quoting from Rolsman,
[99]
said:
â
Security
of tenure is fundamentally important because it is the basis upon
which residents build their lives. It enables people to
make
financial, psychological, and emotional investments in their homes
and neighbourhoods. It provides depth and continuity for
childrenâs
school attendance and for the religious, social, and employment
experiences of children and adults. Security of tenure
enables
tenants âto fully participate in social and political lifeâ.â
In
fact, security of tenure forms a link between the occupierâs past,
present and future.
[198]
It is open for this court to order the Minister to devise a programme
or scheme, including taking reasonable measures
to provide relief to
the beneficiaries and residents who have been subjected to an
unlawful lease holding scheme, and to assist the
beneficiaries and
residents of Trust-held land to achieve full ownership of the land
allotted to them as individuals where the law
gives such members of
the community the right to pursue that course.
[199]
As indicated above, the applicants amended the prayers they sought in
the notice of motion and replaced the notice
of motion with a draft
order. In this regard, in
President
of the Republic of South Africa and another v Modderklip Boerdery
(Agri
SA and others, amici curiae)
,
[100]
the Constitutional Court, endorsing the decision of the Supreme Court
of Appeal,
[101]
agreed
with the observation of the SCA that:
â
If
a constitutional breach is established, this Court is . . . mandated
to grant appropriate relief. A claimant in such circumstances
should
not necessarily be bound to the formulation of the relief originally
sought or the manner in which it was presented or argued.'
As the evidence in
this case has established the unlawfulness and unconstitutionality of
the conduct of the Trust and the Board, as
well as that of the
Minister, the applicants are entitled to appropriate relief. Section
172(1) of the Constitution provides that:
â
When
deciding a constitutional matter within its power, a court â
(a)
must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency, and
(b)
may make any order that is just and equitable. .
.â
The
conduct of the Trust and the Board as well as that of the Minister is
held to be unconstitutional to the extent that it violates
the right
to property, as enshrined in s 25 of the Constitution, of the
residents of Trust-held land.
[200]
The evidence establishes that the unlawful activities of the
Trust and the Board when replacing PTOs with residential
leases,
together with the dereliction of statutory and constitutional duties
by the Minister or her delegate, the MEC, have seriously
prejudiced
the third to ninth applicants in terms of their existing customary
law rights and/or informal rights to and interests
in the Trustâheld
land. In order to redress the situation, and to protect the
beneficiaries and the residents from further harm,
I agree with the
applicants that the structural and interdictory relief sought in the
draft order is an essential, necessary and
appropriate remedy in the
circumstances.
[201]
Supervisory structural interdicts serve to â. . . ensure that
courts play an active monitoring role in the enforcement
of
ordersâ.
[102]
The requirement that the respondents should report to court, on
affidavit on the steps taken, ensures that the administrative
measures
ordered are complied with within a specific time period.
Furthermore, â. . . the courtâs role continues until the remedy
it has
ordered in a matter has been fulfilledâ.
[103]
By granting the structural interdict, a court receives â. . . a
response in the form of reports and thereby prevents a failure
to
comply with the positive obligations imposed by its orderâ.
[104]
The enrolment of the matter before this court is essential for the
court to determine the progress made in the implementation of
the
orders sought, which â. . . guarantees commitment to the
constitutional values of accountability, responsiveness and openness
by all concerned, in a system of democratic governanceâ.
[105]
Costs
[202]
The complexity, novelty and importance of this matter, more
particularly to the parties, is not in dispute. The
applicants have
been compelled by the unlawful activities of the Trust and the Board,
together with the Ministerâs dereliction
of duty, to approach this
court for relief. Because of the nature and the circumstances of this
case, the applicants have hired the
services of four counsel. In my
view, the services of such counsel has been essential and necessary.
It is therefore appropriate
and just to award applicants costs of
this application.
Order
[203] In
the result, I grant the following order:
1.
It is declared that the first respondent (âthe Trustâ) and the
second respondent
(âthe Boardâ) acted unlawfully and in violation
of the Constitution by â
1.1
concluding residential lease agreements with persons living on the
land held in trust by the Ingonyama
(âTrust-held landâ) who are
the true and beneficial owners of Trust-held land under Zulu
customary law, by virtue of being members
of the tribes and
communities referred to in section 2(2) of the Ingonyama Trust Act
3KZ of 1994 (âTrust Actâ), and
1.2
concluding residential lease agreements with persons who held or were
entitled to hold Permissions
to Occupy or other informal rights to
land protected under the Interim Protection of Land Rights Act 31 of
1996 (âIPILRAâ) in
the land subject to the leases, without
complying with the requirements of section 2 of IPILRA.
2.
All the residential lease agreements concluded by the Trust and the
Board, in respect
of residential land or arable land or commonage on
Trust-held land, with persons who â
2.1
are the true and beneficial owners under Zulu customary law of
Trust-held land, by virtue of being
members of the tribes and
communities referred to in section 2(2) of the Trust Act, or
2.2
held or were entitled to hold Permissions to Occupy or any other
informal rights to land protected
under IPILRA in the land subject to
the leases,
are declared to be unlawful and
invalid.
3.
It is declared that the Trust is obliged forthwith to refund any and
all money
paid to the Trust or the Board under the lease agreements
referred to in paragraph 2 to the persons who made such payments and
any
person who made payments under the lease agreement is entitled to
a refund by the Trust to the extent of such payments.
4.
It is declared that the third respondent (âthe Ministerâ) has
breached her
duty to respect, protect, promote and fulfil the
constitutional right to property of the holders of IPILRA rights
vested in respect
of the Trust-held Land, by â
4.1
failing to respect, protect, promote and fulfil the existing property
rights and security of tenure
of the residents of Trust-held land, as
required by sections 25(1) and 25(6) of the Constitution, read with
section 7(2) of the Constitution;
4.2
failing to exercise, alternatively failing to ensure the exercise by
her delegate, of the powers
conferred by chapter XI of the KwaZulu
Land Affairs Act 11 of 1992 and the KwaZulu Land Affairs (Permission
to Occupy) Regulations
to demarcate allotments, issue and register
Permissions to Occupy, survey such allotments, and obtain
certificates of registered
title in respect of such allotments in
Trust-held land.
5.
Until such time as the Minister may implement an alternative system
of recording
customary and other informal rights to land of persons
and communities residing in Trust-held land:
5.1
the Minister is directed to ensure that the administrative capacity
necessary to implement chapter
XI of the KwaZulu Land Affairs Act 11
of 1992 and the KwaZulu Land Affairs (Permission to Occupy)
Regulations is reinstated forthwith;
and
5.2
the Minister shall report to the court on the steps taken to comply
with paragraph 5.1 of this order,
within three months of the date of
this order and every three months thereafter until the parties agree
in writing that the steps
envisaged in paragraph 5.1 have been
implemented and that the reporting may be concluded, or the court, on
application by any party,
so orders.
6.
The Trust and the Board and the Minister opposing this application
are directed
to pay the costs of this application, the one paying the
other to be absolved, including the costs of the four counsel
employed (with
three counsel having been employed at any one time)
MADONDO
DJP
MNGUNI
J
OLSEN J
Judgement
reserved:
9 December 2020
Judgment
delivered:
11 June 2021
For the
Applicants:
Adv T Ngcukaitobi SC
Adv
J Bleazard
Adv
S Magardie
Instructed
by:
Legal Resources Centre
Sharita
Samuel
Ref:
T Mbhense
For
1
st
and 2
nd
Respondents:
Adv Dickson SC
Adv
Schaup
Instructed
by:
Mason Incorporated
Ref:
Pk Coetzee/Nb/15/l001/058
For
3
rd
Respondent:
Adv J Semenya SC
Adv
S I Ogunronbi
Instructed by:
State Attorney
Ref:
Mrs Moodley 494/000355/18/C/P5
[1]
Interim
Protection of Informal Land Rights Act 31 of 1996
.
[2]
KwaZulu
Land Affairs Act 11 of 1992.
[3]
KwaZulu
Land Affairs (Permission to Occupy) Regulations, GN 32 of 1994.
[4]
KwaZulu-Natal
Ingonyama
Trust Act 3KZ of 1994.
[5]
KwaZulu-Natal
Ingonyama Trust Amendment Act 9 of 1997
.
[6]
Rural
Development and Land Reform General Amendment Act 4 of 2011.
[7]
KwaZulu-Natal
Traditional Leadership and Governance Act 5 of 2005.
[8]
Traditional
Leadership and Governance Framework Act 41 of 2003
.
[9]
Mr
Ngwenya states as follow in paras 4.1 and 4.2 of his affidavit (page
584 of the indexed papers):
â
4.
I depose to this affidavit â
4.1
As Chairman of the second respondent and the Royal nominee of the
King;
4.2
In order to contribute to the response in opposition to this
application which is a direct
attack against His Majesty, the King
of the Zulu nation and others. . .â
[10]
Mr
Ngwenya states as follow in para 37 of his affidavit (page 600 of
the indexed papers):
â
37.3
Had Naidoo known anything about Zulu law, he would have been
familiar with at least the following:
37.3.1
Customary law is not universal throughout South Africa because of
different Nations and clans in each province.
37.3.2 Zulu
Customary Law while it applies among the Zulus
inter se
regardless of their location is part of South African common law.
Therefore it needs no expert opinion to be proven as if it was
a
foreign legal system, the very thought of relying on so-called
expert evidence when coming to matters pertaining to Zulu law
underscores Naidooâs patent ignorance and questions his own motive
in bringing this application;
37.3.3.
People who hold rights under Zulu Customary law do not necessarily
have these documented but these are well known
by the political
authority which has allocated them. IPILRA is not a positive right.
Like estoppel it is a shield. Zulu Customary
Law rights holders to
land do not require IPILRA to be protected. These rights have
existed for centuries without IPILRA.
37.3.4 By viewing
Zulu Customary Law land rights through the prism of IPILRA, Naidoo
exposes his prejudices to the very Constitution
he purports to
protect. This is so because IPILRA is there to protect the so called
illegal squatters. So, in Naidooâs mind so
it will appear the
millions of Zulus who occupy land in terms of Customary Law are
squatters.
37.3.5
That he, Naidoo has no authority to represent the Zulu Nation, as he
purports to do from the relief he seeks,
without its consent.
37.3.6
He would have known that as a prerequisite whether one wanted a
Permission to Occupy (PTO) or a lease or any
form of land tenure the
starting point is to follow Customary Law and procedures must first
be observed. That being so even a dispute
on tenure would have to be
first referred to the relevant Traditional Council.â
[11]
Mr
Ngwenya states as follow in para 40 of his affidavit (page 603 of
the indexed papers):
â
40.
On a proper reading of this application Naidooâs racist slant,
attitude and prejudice are evident. These are my reasons for
this
conclusion:
40.1
The other applicants in this matter are not English speaking and
reside more than one thousand
five hundred kilometres from where
Naidoo is based. Apparently their schooling did not go beyond a
primary education. On probability
they could not have known about
his organisation.
40.2
Evidently Naidoo is working with the organisations which spend their
resources wishing to see
the end of Ingonyama Trust/Board. These
include the Legal Resources Centre and the Centre for Land
Accountability Research among
others.
40.3
It should be obvious from some of the attachments to his application
that the Legal Resources
Centre has been threatening Ingonyama Trust
with a court action for some time when it had no client to represent
except itself.
To this day the people it claimed were its clients
are as yet to give it instruction, more than one year since its
letter of demand
to the first and second respondents.
40.4
Mr Sithembiso Gumbi whose affidavit is referred to in this matter,
but not attached has been
actively canvassing for clients in the
Province of KwaZulu-Natal for some time. His is a former employee of
the third respondent.
He is now an employee of the Centre for Land
Accountability Research which, like Naidoo is based in Cape Town.
40.5
I have in my possession a text message dated 14 April 2017 by Mr
Sithembiso Gumbi to one Ron
Wilson a former lessee of the first
respondent. In this text message Gumbi says to Wilson, among others
âI would like to see
you in connection with the lease agreement
which you entered with the Ingonyama Trust as weâre preparing to
challenge the legality
of this in the Concourt and wish to see all
the affected people on a date to be confirmed, Iâm working from a
Durban office temporarily.â
40.6 In my
respectful view, just like Gumbi and his employer, Naidoo exploits
the poor, ignorant and vulnerable by claiming that
he is acting in
their best interest for free. In truth he creates false disputes to
justify his organisationâs existence to the
donors. The people he
purports to act for are no better off.
40.7
In this case Naidoo has sensationalized the matter through the media
and national television.
Naidoo from his utterances and his
assertions in his affidavit clearly expose his agenda. It is not
about the Constitution. It
is all about remaining employed and other
hidden agendas.
40.8
It is not unusual for people like Naidoo, to profess to be looking
after the interest of poor
Blacks while in truth they are advancing
their own agenda.â
[12]
Section
239 of the interim Constitution.
[13]
Self-Governing
Territories Constitution Act 21 of 1971.
[14]
In
terms of the
KwaZulu-Natal Ingonyama Trust Amendment Act 9 of 1997
which came into operation on 2 October 1998 and the Rural
Development and Land Reform General Amendment Act 4 of 2011 which
came
into operation on 16 May 2011.
[15]
Black
Areas Land Regulations, Proclamation R188,
GG
2486, 11 July 1969.
[16]
An
allotment in terms of section 1 of the Land Affairs Act â
means
a portion of Government land demarcated as contemplated in section
24â
.
[17]
See
s 25(3).
[18]
Section
26(1).
[19]
Section
26(2)
(b)
.
[20]
KwaZulu
Land Affairs (Permission to Occupy) Regulations, GN 32 of 1994.
[21]
Proclamation
R63 of 1998,
GG
18978, 19 June 1998.
[22]
Section
1.
[23]
Upgrading
of Land Tenure Rights Act 112 of 1991, assented to on 27 June 1991.
[24]
Paragraph
2 of Schedule 2 of the Upgrading of Land Tenure Rights Act.
[25]
Upgrading
of Land Tenure Rights Amendment Act 34 of 1996
, assented to on 27
June 1996.
[26]
www.ingonyamatrust.org.za
.
[27]
Communal
Land Rights Act 11 of 2004
.
[28]
Section
1
of the
Communal Land Rights Act.
[29
]
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at 657.
[30]
Gordon
v Department of Health, KwaZulu-Natal
[2008] ZASCA 99
;
2008 (6) SA 522
(SCA) para 9.
[31]
Bekker
v Meyring, Bekkerâs Executor
(1828 â
1849) 2 Menz 436
at 442.
[32]
Amendment
of the KwaZulu Land Affairs (Permission to Occupy) Regulations,
1994, GN R1238,
GG
19300,
2 October 1998.
[33]
See
also
Tshivhulana
Royal Family v Netshivhulana
2017 (6) BCLR 800
(CC) para 39.
[34]
KwaZulu-Natal
Traditional Leadership and Governance Act 5 of 2005. Section 49
provides as follows:
â
49.
Dispute resolution.
(1) Whenever a
dispute concerning customary law or customs arises within a
traditional
community or between traditional communities or other traditional
institutions on a matter arising from the implementation
of this Act
or otherwise, members of such a community or institution and
traditional leaders within the traditional community or
traditional
institution concerned must seek to resolve the dispute internally
and in accordance with customary law and customs.
(2) Any dispute
contemplated in subsection (1) that cannot be resolved must be
referred to
(
a
) the
Provincial House of Traditional Leaders, which must seek to resolve
the dispute in accordance with its rules and procedures
within 30
days;
(
b
) the
responsible Member of the Executive Council, in the event that the
Provincial House of Traditional Leaders is unable to or
has failed
to resolve the dispute, who may, subject to the provisions of21 (1)
(
b
) and 25 of the
Traditional Leadership and Governance
Framework Act, 2003
, refer the matter to the Commission for its
recommendation within 30 days; and
(
c
) the
Premier, in the event that the responsible Member of the Executive
Council is unable to or has failed to resolve the dispute,
who must
resolve the dispute within 30 days after consultation with
(i) the responsible
Member of the Executive Council;
(ii) the parties to
the dispute; and
(iii) the
Provincial House of Traditional Leaders.â
[35]
Traditional
Leadership and Governance Framework Act 41 of 2003
.
Section 21
provides as follows:
â
21.
Dispute and claim resolution.
â
(1)
(
a
)
Whenever a dispute or claim concerning customary law or customs
arises between or within traditional communities or other customary
institutions on a matter arising from the implementation of this
Act, members of such a community and traditional leaders within
the
traditional community or customary institution concerned must seek
to resolve the dispute or claim internally and in accordance
with
customs before such dispute or claim may be referred to the
Commission.
(
b
) If a
dispute or claim cannot be resolved in terms of paragraph (a),
subsection (2) applies.
(2) (
a
) A
dispute or claim referred to in subsection (1) that cannot be
resolved as provided for in that subsection must be referred to
the
relevant provincial house of traditional leaders, which house must
seek to resolve the dispute or claim in accordance with
its internal
rules and procedures.
(
b
) If a
provincial house of traditional leaders is unable to resolve a
dispute or claim as provided for in paragraph (a), the dispute
or
claim must be referred to the Premier of the province concerned, who
must resolve the dispute or claim after having consultedâ
(i) the parties to
the dispute or claim; and
(ii) the provincial
house of traditional leaders concerned.
(
c
) A
dispute or claim that cannot be resolved as provided for in
paragraphs (a) and (b) must be referred to the Commission.
(3) Where a dispute
or claim contemplated in subsection (1) has not been resolved as
provided for in this section, the dispute or
claim must be referred
to the Commission.â
The TLGFA has in
the meantime been repealed by the
Traditional and Khoi-San
Leadership Act 3 of 2019
, which Act came into effect on 1 April
2021.
[36]
KwaZulu-Natal
Ingonyama Trust Administrative Regulations, 1998, GN R1237,
GG
19300,
2 October 1998.
[37]
Arbitration
Act 42 of 1965
.
[38]
See
also
Airports
Company South Africa Ltd v ISO Leisure OR Tambo (Pty) Ltd and
another
2011 (4) SA 642
(GSJ) para 68.
[39]
Superior
Courts Act 10 of 2013
.
[40]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
para 18.
[41]
See
ss 25(1), (3) and (4) of the Land Affairs Act; and the PTO
Regulations.
[42]
See
s 26.
[43]
G
Glover
Kerrâs
Law of Sale and Lease
4 ed (2014) at 329; 14(2)
Lawsa
2 ed para 1.
[44]
Johannesburg
Municipal Council v Rand Townships Registrar and others
1910 TPD 1314
;
Dadoo
Ltd and others v Krugersdorp Municipal Council
1920 AD 530
at 537;
Visser,
NO v Die Sekretaris van Binnelandse Inkomste
1968 (2) SA 78
(O) at 83C.
[45]
Groenewald
v Van der Merwe
1917 AD 233
;
Rubin
v Botha
1911 AD 568
;
Zandberg
v Van Zyl
1910 AD 302.
[46]
Van
der Linden
Koopmans
Handbook
1 7 2;
Grotius
2 10-1.
[47]
Robinson
v Randfontein Estates Gold Mining Co Ltd
1921 AD 168
at 177-178.
[48]
The
Board has a similar obligation under s 2A(2) of the Trust Act.
[49]
Ingonyama
Trust v Radebe and others
[2012] 2 All SA 212
(KZP) para 40;
Kweneng
Land Board v Matlho and another
[1992] BLR 292
(CA).
[50]
Article
26(1). See also
Gongqose
and others v Minister of Agriculture, Forestry and Fisheries and
others; Gongqose and others v State and others
[2018] 3 All SA 307
(SCA) paras 57 -58; Article 14.1 of the
Indigenous and Tribal Peoples Convention, 1989 (No. 169), adopted by
the International
Labour Organisation at its 76
th
session
on
27 June 1989
,
which has not yet been ratified by South Africa.
[51]
See
clauses 3.3, 3.4 to 3.7 of the lease agreement.
[52]
Proclamation
R293 of 1962,
GG
373,
16 November 1962, published under the Black Administration Act 38 of
1927.
[53]
Proclamation
R153 of 1983,
GG
8933,
14 October 1983.
[54]
Regulation
1(3), Chapter 2A.
[55]
Regulation
3(1), Chapter 2A.
[56]
Regulation
4, Chapter 2A.
[57]
Townships
Amendment Act 34 of 1908 (Transvaal).
[58]
KwaZulu-Natal
Planning and Development Act 6 of 2008.
[59]
KwaZulu-Natal
Liquor Licensing Act 6 of 2010.
[60]
Regulation
of Interception of Communications and Provision of
Communication-related Information Act 70 of 2002.
[61]
Financial
Intelligence Centre Act 38 of 2001
.
[62]
Deeds
Registries Act 47 of 1937
.
[63]
Whittaker
v Dabee
(1908) 29 NLR 682.
[64]
W
E Cooper
Landlord
and Tenant
2ed (1994) at 30-32;
Grootchwaing
Salt Works Ltd v Van Tonder
1920
AD 492
at 498;
Whittaker
above
at 685.
[65]
See
2012/13 Annual Report of the Board.
[66]
See
2011/12 Annual Report of the Board.
[67]
See
s 2(2)
and (3) of the IPILRA.
[68]
See
s 1(1)
of the IPILRA;
Dlakavu
v Irfani Traders CC
2018 JDR 1424 (ECM).
[69]
Sections
2(2)
and (3).
[70]
Tongoane
and others v Minister for Agriculture and Land Affairs and others
2010 (8) BCLR 741 (CC).
[71]
Christian
Lawyersâ Association v National Minister of Health and others
[2004]
4 All SA 31
(T) at 36i
.
[72]
Van
Heerden et al
Bobergâs
Law of Persons and the Family
2ed
(1999) at 849.
[73]
Castell
v De Greef
1994
(4) SA 408
(C) at 425I.
[74]
See
Waring
and Gillow Ltd v Sherborne
1904
TS 340
at 344.
[75]
See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-I
;
Pheko and others v Ekurhuleni Metropolitan Municipality and others
(Socio-Economic Rights Institute of South Africa as amicus
curiae)
2016
(10) BCLR 1308 (CC).
[76]
Wightman
t/a JW Construction v Headfour (Pty) Ltd and another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 13.
[77]
Mkontwana
v Nelson Mandela Metropolitan Municipality
above
para 32.
[78]
Maledu
v Itereleng
above
para 95.
[79]
Dlakavu
v Irfani Traders CC
2018 JDR 1424 (ECM) para 9.
[80]
Daniels
v Scribante and another (Trust for Community Outreach and Education
as amicus curiae)
2017
(8) BCLR 949
(CC) para 169.
[81]
B
Beinart âThe Rule of Lawâ (1962)
Acta
Juridica
99 at 102.
[82]
See
Pharmaceutical
Manufacturers Association of SA and another: In re Ex parte
President of the Republic of South Africa and others
2000 (2) SA 674 (CC).
[83]
New
National Party of South Africa v Government of the Republic of South
Africa and others
[1999] ZACC 5
;
1999 (3) SA 191
(CC) para 24.
[84]
Pharmaceutical
Manufacturers Association
above.
[85]
Herbert
NO
and others v Senqu Municipality and others
2019 (6) SA 231 (CC).
[86]
The
definitions of âGovernmentâ and âGovernment landâ were
substituted by Proclamation 63 of 1998.
[87]
Ingonyama
Trust v eThekwini Municipality
2013
(1) SA 564 (SCA).
[88]
eThekwini
Municipality v Ingonyama Trust
2014
(3) SA 240 (CC).
[89]
Abolition
of Racially Based Land Measures Act 108 of 1991.
[90]
KwaZulu
Land Affairs Amendment Act 48 of 1998.
[91]
Proclamation
R9 of 1997,
GG
17753, 31 January 1997.
[92]
Khumalo
v Director-General of Co-Operation and Development and others
[1991] 1 All SA 297
(A) at 301.
[93]
In
re
Smithâs Estate, Clements v Ward
(1887) 35 ChD 589
at 595.
[94]
Interpretation
Act 33 of 1957.
[95]
See
also
Msunduzi
Municipality v MEC of KwaZulu-Natal Province for Housing and another
[2004] 2 All SA 11
(SCA).
[96]
See
also
Minister
of the Interior and another v Harris and others
1952 (4) SA 769
(A) at 794A.
[97]
See
South
African Diamond Producers Organisation v Minister of Minerals and
Energy and others
2017 (6) SA 331 (CC).
[98]
Daniels
v Scribante
2017
(8) BCLR 949
(CC) para 33.
[99]
Rolsman
âThe Right to Remain: Common Law Protections for Security of
Tenureâ
(2008) 86
North
Carolina Law Review
817
at 820.
[100]
President
of the Republic of South Africa and another v Modderklip Boerdery
(Pty) Ltd (Agri SA and others, amici curiae)
2005 (5) SA 3
(CC) para 53.
[101]
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre, amici
curiae);
President
of the Republic of South Africa and others v Modderklip Boerdery
(Pty) Ltd (Agri SA and Legal Resources Centre, amici
curiae)
2004 (6) SA 40
(SCA) para 18.
[102]
Pheko
and others v Ekurhuleni Metropolitan Municipality and others
(Socio-Economic Rights Institute of South Africa as amicus
curiae)
2016
(10) BCLR 1308
(CC) para 1.
[103]
Ibid.
[104]
Ibid.
[105]
Ibid.