Ingonyama Trust Board on land conversion to leases

Meeting report

The Chairperson stated that the Department of Rural Development and Land Reform (DRDLR) and the Ingonyama Trust Board (ITB) were invited to brief the Committee on media advertisements to convert the Permission to Occupy (PTO), on Ingonyama Trust Land, to long term leases, clarify the notices and state its impact on the community. The Committee also requested a briefing on the status of PTOs in relation to leases and impact on the community.

Minister’s Comments

Minister of Rural Development and Land Reform, Ms Maite Nkoana-Mashabane, stated that South Africa was about the only country where majority of its citizens owned only about 4% of the land. She indicated that the mandate of her administration included ensuring that the black citizen majority enjoyed the benefits of its land. Her administration was tasked to ensure that the black citizen majority, which had earlier been dispossessed of the land, regained the land.

Ingonyama Trust Board (ITB)

Judge Jerome Ngwenya, ITB Chairperson, indicated that the ITB was not aware that the Committee had invited it to respond to complaints. He however proceeded with the briefing which included a background on the ITB, the Permission to Occupy (PTO) conversion project. The ITB had received a threatening letter from the Legal Resources Centre in Durban to withdraw the invitation to covert PTOs to leases. The deadline imposed was January 2018 but the ITB did not respond to this threat. The ITB received an invitation from the KZN Christian Council to a workshop in January 2018, but again the ITB did not feel the need to participate.

Judge Ngwenya explained the context of PTOs as a document issued to black people only during Apartheid. Members were informed of the central tenets of the PTOs. PTOs did not provide for ownership or rights. The Abolition of Racially Based Land Measures Act (1991) did away with PTOs however PTOs have not been abolished and some communities still have them. The ITB then took a resolution. The law that establishes the ITB, namely section 2, outlines that the ITB may not infringe on rights.  

On the issue of the advert, the KZN province lost the case regarding the granting of housing allowances to government employees in rural areas. Both the provincial government, as the employer, and the trade union movement, on behalf of the workers, complied with the order that there must be a legally recognised PTO and that only the ITB could issue a PTO. Delays were caused by the ITB putting documents in place to ensure all civil servants in KZN on Ingonyama Trust land, accessed their allowance backdated to 2015. The conversion of the PTO recognised the rights and displayed compliance with the judgement that one could not be discriminated against on any grounds, let alone that of race. The Centre for Land Accountability interpreted the Ingonyama Trust Act differently but this could be dealt with at the appropriate forum. Many people had very superficial information on what a PTO is – PTOs are not legally recognisably instruments under the present constitutional regime. Financial institutions do not accept PTOs as collateral but they do accept long-term leases. Many parts of the country are under long term leases and there is good reason why the ITB holds on to long term leases.

The Committee should note that the ITB’s budget is currently in excess of R50 million but it only receives R19 million from the state – this amount only allows the ITB to pay staff to sit in the office and do nothing. If the ITB has to conduct surveys it needs funds for equipment and cars. Long term leases recognise rights of beneficiaries. There has yet to be a case of people evicted on Ingonyama Trust land or that the Trust had infringed upon rights. The ITB did not think it was out of line to provide long term leases at this stage as it was a legally recognised instrument throughout the world. The ITB had not resisted applying any land reform programme.

The Chairperson asked that the ITB refrain from mentioning meetings it had with other people/organisations because the Committee was not privy to these meetings.  

Judge Ngwenya indicated he did not dealt with the HLP issues because the invitation read out by the Chairperson had not covered those issues.

The Chairperson asked the ITB to focus its responses to question on the PTOs and leases as Dr Aninka Claassens had not been invited to address such issues. She informed the ITB that Dr Claassens was invited to clarify the High Level Panel’s (HLP) recommendations on land reform and rural development.

 

Department of Rural Development and Land Reform (DRDLR)/ Ingonyama Trust Board

Adv Sello Ramasala, DRDLR Head Legal Unit, indicated that the Committee sought clarity on the legislative mandate of the ITB, role of the DRDLR in support of the ITB, DRDLR policy on conversions to leases by the ITB and implications of conversion in relation to the Upgrading of Land Tenure Rights Act (ULTRA). The ITB was a statutory, corporate body and also a juristic person. It is an organ of state and a public trust.  The roles of the DRDLR in support of the ITB include appointment of eight members by the Minister, bearing of its administrative costs, as indicted by Judge Ngwenya, establishment of a board in consultation with the Director-General of the DRDLR and recommendation of promulgations by the board for the Minister’s attention. The regulations include procedures for land allocations, rents levies and other charges for the right to use land and distribution of income received by the Board. Other roles include inspection of the Board accounts and submission of Annual Reports on Trust activities to the Minister.

Presently, the DRDLR does not have written policies on conversions - the Communal Land Rights Act (CLARA), 2004, provides for conversion of PTOs to ownership while the Communal Land Tenure Bill also proposes conversions from PTOs to ownership. The position of DRDLR is to upgrade PTOs to ownership – this is provided for in the ULTRA. The conditions for conversions from PTOs to ownership is that the Minister and community must first approve the conversion.  

Discussion

The Chairperson asked the DRDLR and ITB to explain to communities living in the village the difference between the PTO and long-term leases and also how the leases will benefit these communities. She also asked DRDLR to clarify what the implications of being bound by ULTRA were when the ITB was the approving authority through a lease.

Adv Ramasala said the matter could be viewed in two ways - the landlord would say the lease was better option while the tenant would disagree. The PTO considers the existing rights of the land owners because the people had lived on the land before the apartheid government came in.  If a party has to convert a PTO to a lease then it would be charged rent by the leaser and negotiate other conditions – this suggest the PTO is stronger, in terms of rights, than a lease agreement. It would be a violation of existing rights for people to forgo existing rights and opt for a new arrangement through a lease – the ITB may view this differently. There was also the matter of compensation for the loss of formal rights.

The Chairperson clarified the issue of the invitation by stating that the Committee invited the Minister, Deputy Minister, ITB and senior officials of the DRDLR to come to a briefing on the recommendation of the HLP by Dr Aninka Claassens. The ITB and Department were requested to prepare a report and make presentations on the conversion of PTOs to lease holds on Ingonyama Trust land. The presentation should cover, but not be limited to, legislative mandate of the ITB, role of the DRDLR in supporting the ITB, background to the conversion of PTOs to lease hold rights, policy position of the Department in relation to the conversion, implications of the policy position on conversion, in terms of ULTRA, status report on the number of both residential and business PTOs converted to leases today, new residential and business leases issued and a financial report. The Committee had not received the status report on the number of both residential and business PTOs converted to long term leases to date, new residential and business leases issued and the financial report on fees collected by the ITB.

Mr M Filtane (UDM) was of the opinion that the Committee should first hear the briefing of Dr Claassens on the PTOs and leases. If his proposal was not accepted, he wanted clarity on some items.

The Chairperson explained Dr Claassens was not invited to brief the Committee on PTOs and leases. She had only been invited to brief the Committee on the HLP recommendations.

Mr Filtane asked Adv Ramasala to confirm if the DRDLR had presented the regulations recommended by the ITB to the Minister. The fact that the DRDLR confirmed it did not have written policy on the conversions, put the entire process on the back foot. This would mean the Committee would be unable to efficiently deliberate on the matter. Definition and identification of the ‘community’ involved in the conversion was required.

Adv Ramasala explained the approval of the Minister, in terms of ULTRA, provides that the Minister be satisfied on the basis of a report that the rights or interests of holders are protected. “Community” is defined by the list of communities as contained in the schedule of the Ingonyama Trust Act.

Mr A Madella (ANC) observed there was a policy gap converting PTOs to leaseholds. He asked why the DRDLR had not looked at a way of converting old apartheid laws in a manner that would assist those who had lived on the land for generations to acquire permanency and access to resources such as housing allowances. He expressed concern with these people having to pay rent in the event of converting PTOs to leaseholds – this would lead to hardship and poverty. The Department must come to the fore, provide the necessary regulations and ensure the process did not impoverish the people. 

Judge Ngwenya could not answer as to the gaps in legislation because the ITB did not make legislation, it administered it.

Mr M Nchabeleng (ANC) was disappointed with the ITB presentation which implied a lease was the highest form of land ownership which in fact made tenants of those who had a right to occupy and use the land. Tenants would now have to pay rent on the land – he doubted if the ITB had the interest of the people at heart. He expressed concerns that the ITB was dispossessing people of their lands. What is going to happen if those people could not pay?

Judge Ngwenya said that he was not trying to convince the Committee on what was right and wrong – the ITB implemented where the Committee instructed. Challenges would however be pointed out. Breach clauses were present in the PTO.

Ms T Mbabama (DA) asked Judge Ngwenya to state what had changed between June 2016 and now concerning the long term title deeds.

Judge Ngwenya said nothing had changed since the King’s announcement in 2016 – the King asked for a sustained process of consultation. Consultation began with traditional leaders in July 2016 and from this there were a number of views the ITB was analysing. The Board would then move to communities.

Mr K Robertson (DA) noted that the ITB had still not conducted a land audit – this meant there was no planning for spatial development, which sectors would be used for agriculture, mining etc. Was it not time that the ITB started incorporating businesses and industry on the Ingonyama Trust, once a land audit was conducted? He agreed that people could not own their land or have their own title deeds on the Ingonyama Trust – what was going to be done about this?

Judge Ngwenya said the land audit was being undertaken although it was not completed – the process required internal personal capacity and financial capacity. The organogram, for more people were employed by the ITB, was completed and was now being costed.

Mr S Matiase (EFF) noted the powers of the ITB should be exercised to advance public good and public interest, as an organ of state. The ITB should not be viewed as a private organ or entity. He hoped this was an understanding the Trust also shared. With the enactment of the 1994 KZN Trust Act, there were unintended consequences which now, in hindsight, have to be addressed which the Act has created. This included the perpetuation of forms of land ownership, notably, private ownership, colonial patterns of ownership and feudal forms of land tenure.  This is seen in the Act referring to the Trust as a body corporate with perpetual succession – this resulted in modern forms of feudal land tenure such as Permission to Occupy. Government should abolish such patterns of land ownership in the interests of SA. This would safeguard the role and position of the state over land ownership/custodianship and protect the birthright to land of the people of SA. He emphasised that measures proposed in the Bill were interim or transitional while there was consultation before the final stage of the most advanced, progressive and radical form of land ownership.

Judge Ngwenya said ULTRA was not only limited to PTOs – leases could also be converted to full ownership rights under ULTRA. Title deeds must be addressed with sufficient caution. Currently in SA there were various types of title deeds and they should all be taken into consideration.

Mr P Mnguni (ANC) appreciated the discussion especially that of the evolution of society. He remarked that in a capitalist state, there would be elements of the old system i.e. primitive, colonial values. He made it clear that Parliament should note its appreciation of the Amakhosi in the present society. Turning to the ITB budget, the Member knew the Trust has other sources of income on top of the R19 million referred to. It could be worrying then for the ITB to say that it is underfunded. The Department made it clear the Ingonyama Trust was a public one so the Trust ought to be accountable publically. While the ITB land came from the KZN government, it remained South African land. The Committee was not aware of the case involving the public servants – it was not known whether this case mandates the ITB conversion of PTOs. Would the inhabitants of the ITB land in KZN know that they would have to pay rent within seven days failing which they may be evicted within 24 to 48 hours? This was unpalatable, condemnable and unacceptable.  From PTOs, it was be best to advance to ownership. He asked Judge Ngwenya to clarify if the ITB had conducted public hearings in all the districts of KZN regarding the proposal to convert PTOs to leases as a solution. Without consultation, the proposed solution would be illegitimate.

Adv Ramasala indicated that the DRDLR presentation specified there was no policy on leases – the Communal Land Tenure policy dealt with conversions and existing rights. The ULTRA provides for conversion from PTO to ownership while the CLAR Act stated that there must be compensation if a right was taken away.

Mr Mnguni said the conversion of informal or inferior rights is provided for in the White Paper on South African Land Policy of 1997.

The Chairperson stressed that it is important for the ITB to communicate its intention and consultant to get all views. While Judge Ngwenya was talking about the budget, it seemed as if the conversion to leases was supposed to raise money for the ITB since it said its budget is insufficient.

Ms Leona Archary, Acting DRDLR DG, said the Department made about R19 million available to assist the Board in carrying out its administrative responsibilities as per the Act. The Minister oversees the Trust and the Board. The funds allocated to the ITB are audited and accounted for in terms of financial regulations. Annually, the ITB also reports to various structures including the House of Traditional Leaders, the Premier and the Minister. The Annual Report would contain information on the funds the ITB receives.

Judge Ngwenya indicated that there were adverts for leases and adverts for parties who did not have documents.  The advert did not say if the party did not have a document, it would have to convert to a lease. The advert came before the award so it was not responding to a judgement – the court case occurred in the process of the advert. As a public trust, the ITB was subject to regulations however the relevant provisions of the Trust outlined it as a corporate body and may do all things lawfully as body corporates do. The Trust is administered for the benefit and material and social welfare of the members of the Trust. On the issue of budget then, the generation of revenue is to protect the interests of the beneficiaries and meet statutory obligations. He agreed on the importance of consultation however it had not been wide enough. The distinction however was that the conversion of PTOs had been happening since the Board came into existence. Traditional councils had not yet been consulted in detail. The breach clause is available to various instruments but up until today nobody has been prejudiced by the clause and this showed the attitude of the ITB.

Mr Filtane suggested that the Committee postpone the briefing it was supposed to have received from Dr Claassens due to other parliamentary business which was due to resume shortly.

Mr Robertson agreed with Mr Filtane’s suggestion.

The Chairperson asked if Members had other questions for the ITB/DRDLR.

Mr Mnguni asked for an update on the process.

Judge Ngwenya explained there were a number of processes in place. Regarding the office of the Premier, this process was at the stage of quantifying the number of applicants – this was people looking for replacements of PTO documents. Due to urgency, it was hoped that by June 2018, the ITB had dealt with a number of applicants and issued documents. The invitation by the Committee, as read by the Chairperson, to the Department, was not the same invitation as was given to the ITB. The ITB then did not have some of the required information with it - a full response could be provided in writing on the amount collected in rental. The ITB received rental each month so the Committee must be clear on what exact information it required with regard to rental amounts. If the question was related to rental collected as a result of the advert, the answer was currently zero.

Mr Filtane asked the DRDLR to clarify what was contained in the White Paper on conversions. Members required a full understanding of the legislative and policy framework for informed discussion.

Judge Ngwenya replied that the schedule of communities could be provided to the Member.

Adv Vela Mngwengwe, DRDLR Chief Director Property Management/Advisory Services, said the section of the White Paper referring to tenure reform, provided for a move away from permits to protected rights including ownership.

Mr Robertson asked for timeframes for completion of the land audit and when the Committee would have the report on the land audit.

Judge Ngwenya replied that it would be completed at the end of the next financial year.

The Chairperson remarked that Members would not be part of Parliament then.

Mr Robertson said that whether Members were available in the next financial year or not, it is pertinent for the Committee to receive the final report on the land audit specifically for the people residing on Ingonyama Trust land and for the creation of an income. This final date needed review.

The Chairperson addressed the Deputy Minister and asked the DRDLR to put its house in order because the Committee did not send two separate invitations – it was for the Department to communicate with the ITB. It would be a problem if everyone was not on the same page. The Committee was not pleased with the process – ITB and the Department needed to go back and look at the matter. If necessary, the process should be put on hold so that the comments of Members were looked at and how the conversion would affect communities. Thorough consultation was required. Before implementation was carried out, the Committee should be briefed again. The DRDLR and ITB must respect the Committee and not take it for granted by responding to questions in any fashion. The Committee would like to see conversion of informal ownership to title deeds – this would give people the dignity of owning land on which they are residing instead of being tenants.  She apologised to Dr Claassens for not being able to receive her briefing on the recommendations and findings of the High Level Panel due to lack of time.

Adoption of Committee Minutes Dated 28 February 2018

The Committee considered and adopted its minutes dated 28 February 2018. Ms N Magadla (ANC) moved for adoption and the motion was seconded by Ms Mbabama.

Committee minutes dated 28 February 2018 were adopted without amendments. 

The meeting was adjourned.