A group of people from rural KwaZulu-Natal who were meant to be heading to court last week to get help in claiming their rights to land that falls under the control of the Ingonyama Trust have been blindsided by a last-minute postponement. 

Their lawyers, the Legal Resources Centre, were given no opportunity to make submissions about this bewildering postponement to 2020 of a matter that has been set down for months.

The trust, the trust board and the minister of rural development, land reform & agriculture were scheduled to appear before the Pietermaritzburg high court on November 22 to answer to charges that they have singularly failed to recognise and protect rural land rights, as required by the constitution and various laws. However the judge president postponed the matter so it can be heard by a full court. 

The case of the eight applicants highlights the struggle of millions of South Africans in similar circumstances. More than 60% of people in the country do not have formally registered rights to land, and without written records all they have to protect them is the Interim Protection of Informal Land Rights Act, which was introduced to uphold rights in sections 25(6) and (9) of the constitution.

For years the minister has failed to give effect to the obligation to protect rights held in terms of customary law, the Protection of Informal Land Rights Act or permission-to-occupy permits

Section 25(6) provides that people with insecure land rights thanks to racially discriminatory laws should have their rights recognised and protected. Section 25(9) requires the state to pass a law to give effect to this.

People living in the former bantustans, such as those on land administered by the Ingonyama Trust, hold rights to land that are extremely vulnerable. These rights derive from customary law as well as a system of permits that were issued only to black people by the apartheid government.

One of these, the “permission to occupy” permit, gives occupation rights in perpetuity. Occupation rights can be inherited; no rent is paid in respect of these rights; and in terms of the Upgrading of Land Tenure Rights Act, they can be upgraded to titled ownership. The constitution and Protection of Informal Land Rights Act recognise and protect customary ownership rights in the same way as registered title, and no rent is payable in respect of these rights.

But for years the minister has failed to give effect to the obligation to protect rights held in terms of customary law, the Protection of Informal Land Rights Act or permission-to-occupy permits. The Protection of Informal Land Rights Act, for example, requires that the consent of informal rights holders be obtained before they can be deprived of their rights. This requirement is routinely ignored by the department, the trust, traditional leaders and private institutions (such as mining companies) when they sign lucrative commercial agreements that deprive people of land rights.

The department and parliament have failed to draw up the permanent law they were required to adopt that would recognise and protect the land rights of people who live in the former bantustans. The most recent attempt was the Communal Land Rights Act, which was declared unconstitutional in 2010 because parliament had failed to comply with the constitutional obligation to facilitate meaningful public participation.

Legal framework

A permanent law would provide a comprehensive legal framework to regulate and protect rights. As the apartheid laws that provided a record of occupation rights have been taken off the statute books or fallen into disuse across most of the country, the rights they recorded have become precarious. Nothing is in place to replace the flawed institutions that provided these records, leaving some of our most vulnerable compatriots unable to assert their rights and thus vulnerable to dispossession or exploitation, and without legal recourse for protecting their land rights.

KwaZulu-Natal is unique in that the KwaZulu Land Affairs Act of 1992 and its permission-to-occupy regulations make provision for the minister — through the MEC for co-operative governance and traditional affairs — to continue to regulate and issue permission-to-occupy permits. The history of these permits and their roots in colonial and apartheid dispossession of rights cannot be denied. However, given the failure of the government to appropriately replace and improve on this apartheid-era system, it provides the only record of rights people have at their disposal, and the only legal basis they have for protecting their land rights.

Holders of customary rights also remain vulnerable. The absence of the required permanent law enables the continuation of colonial and apartheid legacies that for centuries have denied or undermined the validity of their rights. A vacuum has arisen as the minister and parliament have failed to make use of the powers available to secure people’s rights through the constitution, Protection of Informal Land Rights Act or provincial laws on permission to occupy. Their constitutional obligations did not disappear in KwaZulu-Natal when the land became vested in the trust.

In this vacuum it was easy for the trust to unilaterally exploit an opportunity to adopt and implement a policy to convert occupation rights and customary ownership rights to leases — with onerous terms and with the trust as the lessor. These terms include that lessees must pay rent increases every year; they cannot build or make any improvements on the land without the consent of the trust; and they cannot confer rights to anyone else without the consent of the trust.

These terms are at odds with the nature of rights people hold in terms of customary law or permissions to occupy. It is this that is at the centre of the court case launched against the trust and state.

The government must explain how such flagrant violations of the rights of SA’s most vulnerable were allowed to occur freely and openly, in plain sight of it and parliament.

• Booi is lead land researcher at the Land and Accountability Research Centre at the University of Cape Town.