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[2012] ZAKZPHC 2
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Ingonyama Trust v Radebe and Others (9403/2009) [2012] ZAKZPHC 2; [2012] 2 All SA 212 (KZP) (25 January 2012)
21
KWAZULU
– NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
REPORTABLE
Case No: 9403/2009
In the matter between:
INGONYAMA TRUST
….................................................................................................
APPLICANT
and
INKOSI B. G RADEBE
…....................................................................................
FIRST
RESPONDENT
AMAHLUBI TRADITIONAL COUNCIL
….........................................................
SECOND
RESPONDENT
UBUHLEBOMZINYATHI COMMUNITY AUTHORITY
…......................................
THIRD RESPONDENT
THE MINISTER FOR RURAL DEVELOPMENT AND LAND
REFORM, REPUBLIC OF SOUTH AFRICA
…...................................................
FOURTH
RESPONDENT
THE MINISTER FOR CO-OPERATICE GOVERNANCE
TRADITIONAL AFFAIRS, REPUBLIC OF SOUTH AFRICA
…..................................
FIFTH
RESPONDENT
THE M E C RESPONSIBLE FOR LOCAL GOVERNMENT
AND TRADITIONAL AFFAIRS, PROVINCE OF
KWAZULU-NATAL
…........................................................................................
SIXTH
RESPONDENT
JUDGMENT
MADONDO J
Introduction
[1] The applicant in its capacity as the registered
holder of certain tracts of land for and on behalf of the members of
various
tribes and communities in the KwaZulu-Natal Province and the
registered owner of the properties: Portion 3 of the farm One Tree
and Madadeni farm seeks an order in the following terms:
“
An order declaring the
applicant the only recognised and legal entity, authorised and
entitled to grant rights and allocations or
permissions in respect of
the ownership or occupation and use of land presently registered in
its name throughout the Province
of KwaZulu-Natal (without in any way
derogating from any public law authority’s capacity to pass
public law measures in respect
of the occupation and use of the
land);
1.2 The first and second respondents be and they are
hereby interdicted and restrained from:
1.2.1 Claiming or holding themselves out to be legally
entitled to any land presently registered in the name of the
applicant and
more especially the following land:
1.2.1.1 Portion 3 of the farm One Tree No 8599,
Registration Division HT, province of KwaZulu-Natal, in extent 140,
3856 hectares,
held by Deed of Transfer no. T3286/1956; and
1.2.1.2 The farm Madadeni No. 15961, Registration
Division HT, Province of KwaZulu-Natal, in extent 2565,0022,
previously comprising
of certain portions of the farms Drycut, Duck
Ponds, Shuttleworth, Botha’s Dale and Mair’s Camp.
(hereinafter collectively referred to as “the
land”)
Interfering, directly or indirectly, in any way
whatsoever, with the lawful occupiers’ use and enjoyment of
part of
the land being allocated to them by the applicant;
1.2.3 Occupying or cause others to occupy any of the
land or portions thereof by purporting to give lawful consent to such
occupation;
1.2.4 Dealing with, allocating, granting and / or
extending any rights, including the right to graze or purporting to
do so in respect
of the land or any part thereof.
1.3 The first and second respondents are hereby ordered
to pay the costs of this application jointly and severally. The one
paying,
the other to be absolved;
2. The order in 1.2 above shall operate as interim
orders with immediate effect. “
Parties
[2] The applicant is the Ingonyama Trust, a corporate
statutory body created and established in terms of the provisions of
section
2(1) of the KwaZulu-Natal Ingonyama Trust Act, No. 3KZ of
1994 (the Act).
[3] The first respondent is Inkosi B. G Radebe, an adult
male Inkosi (traditional leader) of the Amahlubi Traditional Council.
[4] The second respondent is the Amahlubi Traditional
Council, a traditional council recognised and established in terms of
the
Traditional Leadership and Governance Framework Act 41 of 2003
and the KwaZulu-Natal Traditional Leadership and Governance Act 5 of
2005.
[5] The third to sixth respondents are Ubuhlebomzinyathi
Community Authority; Minister for Rural Development and Land Reform,
Republic
of South Africa, Minister responsible for Traditional
Affairs, Republic of South Africa and the member of the Executive
Council
responsible for Local Government and Traditional Affairs in
KwaZulu-Natal Province respectively, cited herein for purposes of
completeness
and any interest they may have in the subject of the
litigation and no relief is sought against them.
Factual Background
[6] Prior to constitutional dispensation South Africa
was divided and segregated along ethnic and racial lines. Under the
Black
Land Act No. 27 of 1913 and Development Trust and Land Act No.
18 of 1936, certain land was reserved for Blacks. (See also Lekoma
v
Dikgole 1947 (2) PHM 45(GW)). The Crown or State owned land was
inalienable to persons other than black South Africans, save
as was
provided for in section 1(2) of the Black Land Act 27 of 1913 and
section 18 of the Development Trust and Land Act 18 of
1936. Amongst
the areas reserved for black citizens was the homeland of KwaZulu,
for the Zulu Nation (the Nation).
[7] The Nation was composed of various tribes under
immediate traditional leadership of the Chiefs (Amakhosi) and their
headmen
(izinduna). At the head of the nation was Ingonyama / Isilo
(the King) who was during the colonial era referred to as the
Paramount
Chief. At the head of each respective tribe was the Chief
(Inkosi), under him or her were his or her izinduna, councillors and
tribal constables. Below them were the family heads, the kraal heads
in colonial parlance. However, Amakhosi and their respective
tribes,
in turn, owed allegiance to the King.
[8] Though the tribes owed allegiance to the King, they
remained autonomous entities with indigenous governance structures
known
as tribal authorities (now traditional councils). Each tribal
authority had a defined area of jurisdiction in respect of the piece
of land a particular tribe or community occupied.
[9[ The KwaZulu Homeland had also townships and towns
falling under its jurisdiction which did not form part of the tribal
arrangement.
The apartheid regime from time to time released land in
order to expand and consolidate KwaZulu Homeland (Proclamation R232
of
1986, Government Gazette 20. 10560 and Proclamation R26 of
Government Gazette 18906). On 24 December 1986 by Proclamation R232
of the Government Gazette no. 10560 the then National Government
transferred ownership of vast pieces of land to the Government
of
KwaZulu. Such land included the farms Duck Ponds and Shuttleworth,
referred to in the order sought herein. On 31 March 1992
the National
Government also transferred the State land in excess of 30 000
hectares to KwaZulu Government by section 1(d) of Proclamation
R28 of
Government Gazette 13906.
[10] However, prior to the first democratic elections,
on 24 April 1994, in order to ensure certainty and effective control
over
all the land in KwaZulu Homeland not privately owned or falling
under the township or owned by the State the KwaZulu-Natal Ingonyama
Trust Act was promulgated.
[11] In terms of section 3 of the Act any land (or real
right therein) in which ownership immediately prior to 24 April 1994
vested
in or had been acquired by KwaZulu Government, with effect
from the 24
th
of April 1994, became invested in the
applicant and it was then transferred to and held in trust by the
applicant. The King was
appointed the sole trustee of the trust.
[12] However, in order to alleviate administrative
burden on the King, the Act was amended by the
KwaZulu-Natal
Ingonyama Trust Amendment Act no. 9 of 1997
. Though in the Amendment
Act the King remained the sole trustee, a board known as Ingonyama
Trust Board (the board) was established
to administer the Trust land
and the affairs of the Trust. The board comprises the King as the
Chairperson and a number of board
members appointed by the Minister
after consultation with relevant sole players.
[13] All land which constituted townships and utilised
by the State for domestic purposes was excised from the control of
the trust
and transferred to relevant local municipalities and State
departments respectively.
[14] The effect of the amendment was that the land which
remained vested in and owned by the applicant fell into one of the
two
categories: The land which applicant owned and held in trust on
behalf of the beneficiaries listed in the schedule to the Amendment
Act, represented by various traditional authorities or leaders. The
respective land or areas of jurisdiction of the beneficiaries
were
identified. The remainder of the land whether urban or rural, not
connected to any tribe or traditional authority fell under
the sole
and exclusive control and authority of the applicant.
[15] Owing to the shortage of land some of the tribes
were and still are landless. In an effort to address the question of
landless
tribes or communities, certain traditional authorities or
community authorities were created. These were essentially an
amalgamation
of a number of clans or tribes into one legal entity
which would then control and administer the pieces of land released
to such
authorities. However, such arrangement was not adequate and
created resentment amongst the tribes or clans since each tribe or
clan wanted to retain its own identity and autonomy and to have an
exclusive use of the land.
[16] The first respondent’s predecessor in title
was subjected to such an arrangement and his clan or tribe was
amalgamated
with others for the purpose of land use. The second
respondent as one of the landless traditional authorities was
amalgamated with
Ingwe, Khathide and Emalangeni clans, and the third
respondent was established.
[17] The third respondent, Ubuhlebomzinyathi Community
Authority, was established on 19 October 1970 by Proclamation 1946,
Government
Gazette no. 4052, for the district of Newcastle and was
allocated a specific area of jurisdiction (See also section 5(4) of
the
repealed KwaZulu Amakhosi and Iziphakanyiswa Act, 9 of 1990).
[18] The third respondent has a very small piece of land
over which it exercises jurisdiction. The said piece of land is held
by
the applicant in trust for the third respondent. The second
respondent and other three landless traditional authorities exercise
joint jurisdiction over that small piece of land.
[19] The applicant in the exercise of its powers and in
the performance of its duties in terms of the Act acquired two pieces
of
land, namely; portion 3 of the farm One Tree no 8599 in extent of
140,3856 held by the Deed of Transfer no. T3286/1956 and the farm
Madadeni no. 15961 in extent of 2565, 0022, held under the
Certificate of Consolidate Title no. T41735/2000. The said properties
are not being held by the applicant in trust for any recognised
traditional authority. In which event in terms of section 3 of
the
Act the applicant claims the sole and exclusive right to deal with
the land in question. The applicant also avers that it has
the sole
jurisdiction to give rights to the land in question to individuals or
groups.
[20] The third respondent’s land is surrounded by
the said properties, over which the applicant enjoys the unfettered
authority.
The applicant has allocated portions of the said
properties to certain individuals for their exclusive use, and in
return for such
use and enjoyment the said individuals pay an
undisclosed amount of money to the applicant.
[21] The applicant has discovered that the first and
second respondents have usurped jurisdiction over the properties in
question
and given permission to certain individuals or groups of
people to occupy the properties in question, and caused certain
people
to enter upon the applicant’s land.
[22] On enquiring the applicant has been informed that
all the people who occupy the property without its permission have
been authorised
by the Induna of the first respondent with the
blessing or approval of the first respondent. The first respondent
has also allowed
his people to graze their livestock on the land in
question. Moreover, the first respondent holds himself out to be in
charge and
control of the properties in question.
[23] According to the applicant the actions and the
behaviour of the first and second respondents have resulted in the
members of
the second respondent intimidating the lawful occupiers of
the properties in question.
[24] The first and second respondents have allowed their
members to graze their livestock on the property lawfully occupied by
one
Mr Kubheka and this has resulted in legal proceedings being
instituted in the Amahlubi Traditional Court, which does not have
jurisdiction
in the matter.
[25] A certain Mr Patel has also been authorised by the
applicant to occupy a portion of the farm Madadeni as a cattle
farmer. However,
the first and second respondents have allocated a
portion of that farm to one Mr Ndaba. This, has not only interfered
with Patel’s
use and enjoyment of the portion of the farm, but
it has also led to him being evicted from the said portion by the
Induna of Amahlubi
tribe. According to the applicant this has also
made it impossible for the applicant to pay rates and taxes in
respect of the land
in question. The applicant has limited financial
resources and in consequence thereof, it derives its income from the
rental payable
by the people it has granted permission to occupy
certain portions of its land. The alleged illegal occupation of the
land in question
according to the applicant also hampers the water
project in the area since its illegal occupants refuse to allow the
construction
to commence its work on the land they occupy.
[26] The applicant avers that the first and second
respondents by their unlawful conduct interfere with its rights in
and to land
over which it enjoys exclusive authority.
[27] The first and second respondents do not dispute
that they allotted land to some people and that they have caused some
people
to enter upon the properties in question. The respondents
purportedly claim ownership of the land in question on the basis,
firstly,
that the grave of the first respondent’s grandfather
is located in the disputed area and, secondly, that following such
claim
the respondents have allegedly lodged an application for the
restitution of the land in question with the Land Claims
Commissioner.
[28] The dispute between the parties and the alleged
respondents` interference with the applicant’s sole and
exclusive right
to the deal with the pieces of land in question have
resulted in the order being granted by consent on 9 December 2009 in
the following
terms:
“
1. The orders in paragraph
1.2 of the notice of motion shall operate as interim orders with
immediate effect with orders in paragraph
1.2.3 (save for the last 2
words) and paragraph 1.24 also mutatis mutandisi applying to the
Applicant as represented by Mr Ngwenya
or any other representative of
the trust.
Costs are reserved.
… “
Powers and Functions of Ingonyama Trust vis-a-vis
the Recognised Tribe or Traditional Authority
[29] Section 2(2) of the Act provides that the trust
shall administer the trust land for the benefit, material welfare and
social
well-being of the members of the tribes and communities as
contemplated in the repealed KwaZulu Amakhosi and Iziphakanyiswa Act
9 of 1990, referred to in the second column of the Schedule,
established in the districts referred to in the column of the
Schedule
and the residents of such districts.
[30] However, section 2(5) of the Act provides:
“
The Ingonyama shall 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 and
otherwise than in accordance with
the provisions of any applicable law.”
Under section 2(8) in the execution of its functions in
terms of this section the Trust must not infringe upon any existing
rights
or interest.
[31] The powers exercised and the functions performed by
the Ingonyama Trust in the KwaZulu-Natal tribes and communities date
back
to the pre-colonial era where the Ingonyama (King) of the Zulus
was sovereign over all tribes falling under the Zulu kingdom. Under
Zulu Traditional Law and Customs the land occupied by the tribes was
theoretically regarded the property of the King; in relation
to the
tribes he was a trustee holding it for the people, who occupied and
used it in subordination to him on communistic principles.
However,
the land falling under the jurisdiction of a particular tribe was and
is administered by the chief (Inkosi) and his izinduna
and
councillors for the people. An individual must live where he is
placed by the Inkosi or his own Induna. See also Report and
Proceedings of the Government Commission on Native Law and Customs
1883 (Cape) (G4 of 1883), section 108 p40; (1903) Commission
,
section 143 p 26 ; AJ Kerr: The Customary Law of Immovable Property
and of Succession; Schapera , Land Tenure 114 .
[32] However, during the colonial era the Governor,
Governor-General and later the President of the Republic of South
Africa respectively
substituted the King as the Supreme Chief of all
the tribes in Natal and Zululand. See
section 7 of Native Law 44
of 1871; Native Law 19 of 1891, Natal code of Native Law 1932 and
Proclamation No. R195, 1967 (Natal
Code of Bantu Law).
[33] The Governor of the Colony of Natal as Supreme
Chief assumed the role, exercised the powers and performed the
functions of
the King over the tribes in the colony. Section 2 of the
Natal Code of Native Law 1932 granted the Governor – General as
Supreme Chief in respect of the Natives in the Province of Natal
authority to exercise and enjoy all powers, authorities, functions,
immunities and privileges which according to the laws, customs and
usages of natives were exercised and enjoyed by any Supreme
Chief or
Paramount Native Chief.
[34] The powers, authorities, duties, rights and
privileges of the chiefs (amakhosi) and headmen (izinduna) were then
prescribed
in the Act. In fact they were curtailed and most matters
fell under the exclusive jurisdiction of the Commissioner’s
Court.
Amakhosi were subjected to and made answerable to the Native
Commissioner for all their actions. They had to perform certain acts
only with the approval of the Native Commissioner.
See Black
Administration Act 38 of 1927; Proclamation R168 of 193.and KwaZulu
Chiefs` and Headmen’s Act 8 of 1974.
[35] In Proclamation No. R195 of 1967 (Natal Code of
Bantu Law) the State President substituted the Governor-General as
the Supreme
Chief and was granted authority in respect of the Bantu
in the Province of Natal to exercise and enjoy all powers,
authorities,
functions, rights, immunities and privileges which
according to the laws, customs and usages of Bantu are exercised and
enjoyed
by any Paramount Chief.
[36] Although the State had taken the place of the King,
this did not make it either the owner of the land in customary law or
a
trustee in the law of property, or an owner in South African Law.
See also Report of the South African Native Affairs Commission
1903-1905 (Commission) section 81 p 14.
[37] Instead, the South African Development Trust,
described as “a corporate body” in section 4(1) of the
Development
Trust and Land Act No. 18 of 1936, and in respect of
which the State President delegated his powers and functions to the
Minister
was a trustee. The land vested in the Trust was held for the
exclusive use and benefit of natives. The Governor –General or
the State President had power to make regulations providing for the
allocation of land held by the Trust for the purposes of residence,
cultivation, pasturage and commonage.
[38] However, when KwaZulu Homeland became a self
governing state all the tribes fell under the jurisdiction and
control of KwaZulu
Government. Section 3(1) (a) (b) of the Act
provides:
“
(1) notwithstanding the
provisions of section 2 of the KwaZulu Land Affairs Act, 1992 (Act 11
of 1992), or any other law-
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
residents referred to in section 2(2).
Any functions which, in respect of land or any real
right therein, were performed by a department of the Government of
KwaZulu
in terms of law immediately before the date of commencement
of this Act shall be performed by the national or provincial
government
department succeeding such KwaZulu department in terms of
the constitution.”
[39] In terms of section 3(2) (a) (b) the land
contemplated in sub section (1) is the land which fell under the area
of jurisdiction
of the Legislative Assembly of KwaZulu as
contemplated in the Self-Governing Territories Constitution Act, 1971
(Act 21 of 1971),
and the land acquired under Proclamation R232 of
1986 and Proclamation R28 of 1992 or any other law.
[40] In terms of section 2(4) the Trust must deal with
the land referred to in section 3(1) in accordance with Zulu
indigenous law
or any applicable law. Under Traditional Law and
Customs the land occupied by a particular tribe is administered and
held in trust
by the Inkosi and his or her izinduna for the benefit
of the members of the tribe or community concerned. Each family head
has
the right to be allotted a family home site, arable land and the
right to graze his livestock on the pasture-lands. The land is
allotted to an individual without requiring any return in the nature
of a purchase price. Individuals’ holding of a portion
of the
land, is inviolable and inheritable. See also Macleans’
Compendium of Kafir Laws and Customs (106) p.152; Krige 176
and
Bekker; Seymour’s Customary Law in Southern Africa 5
th
Ed p 50. See 1883 Commission 2076 p 122 , AJ Kerr The Customary Law
of immovable Property and of Succession , 3
rd
edition p
29; Schapera, Handbook, 196-7.
[41] An individual coming into another tribe, obtains
permission to settle from the head of the homestead in which he
settles. The
head of the homestead in turn obtains the permission
from the Induna of the ward. See also Macleans 123.
[42] When a man enters into marriage in a tribal land
and requires land he usually chooses a suitable unoccupied portion
and asks
his prospective neighbours or the Induna of the area if he
may take it. Alternatively, he may approach the Inkosi who would then
consult the Induna of the area concerned. See also 1883 Commission
7100/1395. The Inkosi`s right is a power to allot unallotted
land and
not a right to enjoy the use of allotted land or to take the fruits
thereof. Similarly, the Induna has administrative
duties in regard to
land, not rights of ownership in land allotted to others .However, he
has individual’s rights in the
portion allotted to himself on
the same basis as everyone else.
[43] In respect of the trust land connected to a
particular tribe or traditional authority the Act enjoins the Trust
to exercise
any of the incidents of ownership in respect of such land
with the concurrence of the traditional authority concerned.
Likewise,
the traditional authority concerned is not entitled to
alienate the trust land without the permission of the Trust. If the
land
has been alienated by the traditional authority concerned, for
such an act to become complete legal, the Trust must have been given
permission. This shows that neither the Trust nor the traditional
authority concerned has an exclusive right and control of the
land
connected to a particular recognised traditional authority.
[44] Though the powers to exercise the incidents of
ownership in respect of the trust land theoretically resides with the
Trust,
under customary law and practice the Inkosi of the tribe
concerned and Induna (being in charge of an administrative unit (the
ward)
still retains the powers to administer the land, control its
use and to allot portions to members of his tribe and of the ward
respectively as residential, arable and grazing land. Thus
individuals wanting land on which to build a house, church, store or
school or on which to grow crops may have to approach the Induna of
the ward or Inkosi of the tribe to which they are attached.
In a
settled area the head of the family or homestead obtains permission
from the Induna to occupy the site he chooses. See also
Schapera:
Handbook P197-8 and Reader Zulu Tribe in Transition 65; Ker at p 45;
Schapera Land Tenure p 28.
[45] The members of the tribe or ward possess the right
to use and occupy trust land in accordance with the traditional law
and
customs. The same pattern of powers and rights is replicated in
the context of the word, “family “; all land is
controlled
by the head of the unit, who may only allot it to
individual applicants with the sanction of the members of the family
concerned.
See Lekoma case, supra.
[46] Every member of a ward has access to its common
resources, in particular to pasture, but also to wood (for building
and fuel)
grass and reeds (for thatching and weaving) clay (for
pottery) and edible fruits and plants. Similarly, natural sources of
water
are available to all members of the unit. See Schapera Handbook
p211-13.
[47] The trust is obliged to exercise any of the
incidents of ownership in respect of the trust land connected to a
particular recognised
tribe or traditional authority with the
concurrence of the tribe or traditional authority concerned. Such
connection must in terms
of section 3(4) of the Act be endorsed in
the title deed of the trust land in question. The Registrar must
endorse the title deed
concerned to the effect that the land in
question vests in the Trust for and on behalf of the members of the
said tribe, the community
or residents and the Registrar must also in
terms of the
Deeds Registries Act, 47 of 1937
make the necessary
entries in his or her register in that regard. Thereupon, the title
deed shall serve as proof that the land
is held in trust for the said
tribe, community or residents.
[48] In the present case the perusal of the title deeds,
annexure “SN1- SN4” in respect of the disputed properties
does
not show any endorsement envisaged in section 3(4) of the Act.
This provides sufficient proof that the land in question is not held
in trust for the benefit of any tribe, community or residents. The
land should therefore not be dealt with under customary law
and
traditions. See also
Dodo v Sabasaba 1945 NAC (C&O) 62 at 63;
Umvovo v Umvovo 1952 NAC 80 (5) at 83.
[49] Where the land is registered in the name of the
Trust in the Deeds Office and not connected to any tribe or
traditional authority
the Trust is entitled to deal with it under the
common law and it has the sole and exclusive right to deal with such
land.
[50] Section 6(7) of KwaZulu- Natal Traditional
Leadership and Governance Act 5 of 2005 provides that if the Premier
is satisfied
that the provisions relating to the formation of the
Traditional Council have been fulfilled, must by notice in the
Gazette recognise
the traditional council concerned and determine its
area of jurisdiction. The recognition certificate thereof is also
issued.
[51] No evidence has been tendered by the respondents
that the second respondent has been so recognised and allocated any
specific
piece of land, and that the certificate has been issued
thereof. However, it is not in dispute that only the third respondent
has
been recognised and registered as such and allocated a piece of
land, whose land is not in dispute.
[52] Since the applicant is not holding the land in
question on behalf of any tribe or community or residents, it does
not need
a prior written approval of any traditional authority or
community authority to deal with the land in question. It, therefore,
follows that the Trust only enjoys the sole and exclusive right to
deal with the land registered in its name and not apportioned
to any
particular tribe or community.
[53] As shown above, the Trust does not enjoy sole and
exclusive control and authority over the land connected to a
particular traditional
authority or community or residents and as a
consequence, it cannot be said to be the only recognised and legal
entity authorised
and entitled to grant rights and allocations or
permissions in respect of the ownership or occupation and use of land
registered
in its name throughout the Province of KwaZulu-Natal. In
the case of the trust land held for the benefit of a particular tribe
or community, the Trust’s rights are fettered by the
requirement that before exercising any of the incidents of ownership
in respect of the said land it must first obtain a prior written
consent of the tribe or traditional authority or community authority
concerned. In addition, under customary law and traditions the Inkosi
of the tribe and Induna of the ward respectively (being in
charge of
the administration of the tribe and the ward) still retain powers to
allot family sites, arable land and the right to
graze livestock on
the pasture lands to members of the tribe or ward concerned. I,
accordingly, come to the inevitable conclusion
that the applicant has
failed to show on the balance of probabilities that it is entitled to
a declarator it seeks under prayer
1.1 of the Notice of Motion, in
such broad terms.
[54] In the premises, I agree with Mr Choudree for the
respondents that the granting of the declarator sought by the
applicant in
such broad terms will not only relate to the trust land
registered in its name and not held for the benefit of a particular
recognised
tribe or traditional authority, but it will also affect
the trust land connected to recognised tribes and traditional
authorities.
If that was intended, all the traditional authorities
whose land is held in trust for their benefit by the applicant ought
to have
been joined in the proceedings.
[55] The granting of the order which tends to extend the
applicant’s exclusive right , control and jurisdiction in the
trust
land to trust land connected to recognised tribes will, in my
view, impact negatively on the rights and powers of the traditional
authorities or community authorities under the provisions of the Act.
Further, it will detract from the powers and functions of
Amakhosi
and Izinduna under customary law and traditions to allot residential,
arable and grazing land to members of their tribes
and wards
respectively. It therefore follows that the granting of the order
sought in prayer 1.1 of the Notice of Motion in the
proposed form
will only serve to frustrate the administration, control and use of
the trust land connected to recognised traditional
authorities or
community authorities under customary law and practice by such
authorities to their prejudice. Though the applicant
has not made a
case for the declarator sought, I am not inclined to award the
respondents costs on the ground that they have through
their actions
and conduct forced the applicant to lodge this application for all
the reliefs sought in the Notice of Motion.
[56] The first and second respondents do not deny that
they have purported to exercise some rights of ownership in respect
of the
properties over which the applicant enjoys exclusive right,
control and jurisdiction.
[57] Notwithstanding all this, the first and second
respondents have not shown that any legislation or proclamation or
any other
law grants them the authority to deal with the land in
question. However, Mr Choudree for the respondents has strenuously
argued
that the presence of the graves of the forefathers of the
first respondent on the disputed land strongly suggests that the
respondents
have some historical connection to the land in question.
However, no such allegation is made in the respondents’ papers.
[58] The respondents have glibly stated in their papers
that the grave of the first respondent’s grandfather lies on
one of
the pieces of land in question without providing any concrete
proof thereof. Accordingly, the respondents have not sufficiently
established that the land in question represents the link between the
past, the present and the future of their tribe in that the
ancestors
of the members of the tribe including of the first respondent lie
buried there and that the children of the members of
the tribe and of
the first respondent are and will be born on the land in question.
[59] Nor has any evidence been tendered to prove that
the tribe had at any stage after the 19
th
of June 1913
been dispossessed of the land in question on racial grounds, and that
the said land had been resituated to the second
respondent in terms
of the
Restitution of Land Rights Act, 22 of 1994
. This could have
entitled the first and second respondents to exercise incidents of
ownership in respect of the land in question.
[60] In the circumstances, the respondents have failed
to establish any legal right which grants them authority to control
and allot
the land in question. It has been argued on behalf of the
respondents that since the land in question belongs to the King they
have acted under delegated authority to control and allot it. This
submission creates a false impression that every traditional
authority or community authority whose land adjoins the trust land is
entitled to control and allot the trust land to individuals
and to
allow people to enter thereupon simply because it belongs to the
King. The respondents have not proved the alleged delegated
authority. Under traditional law and customs for the respondents to
administer and control the land in question, they must prove
that it
belongs or has lawfully been allocated to the second respondent or to
the first respondent’s predecessors in title.
[61] In the premises, I am satisfied that the applicant
has succeeded to prove that it has an exclusive right to exercise the
incidents
of ownership in respect of the trust land in question. It
has also proved that the respondents` continued unlawful control and
use of the land in question causes it irreparable harm and that it
has no other remedy but to approach this Court for a relief.
[62]
Order
The declaratory order sought in prayer 1.1 of the
Notice of Motion is dismissed;
The rule nisi granted by this Court in terms of the
prayers 1.2, 1.2.3 and 1.2.4 on December 2009 against the first and
second
respondents is confirmed;
The rule nisi granted by this Court against the
applicant on 9 December 2009 in terms of prayer 1.2.4 is discharged
The first and second respondents are ordered to pay
the costs of this application jointly and severally, the one paying
the
other will be absolved. Such costs to include any reserved
costs.
Date Judgment reserved on: 5 December 2011
Date Judgment delivered on: 25 January 2012
Counsel for Applicant: Adv Kemp SC / Crots
Instructed by: NGWENYA & ZWABE INC
C/O Yashica Chetty Attorneys
REF: Mr Zwane
Counsel for Respondent: Choudree SC
Instructed by: STATE ATTORNEY
C/O Cajee Setsubi Chetty Inc.
REF: A Essa / ND