Ndlovu Petition

NCOP Petitions and Executive Undertakings

17 July 2019
Chairperson: Ms Z Ncitha (ANC; Eastern Cape)
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Meeting Summary

Mr Gordon Ndlovu presented a petition to the Select Committee on Petitions and Executive Undertakings in the National Council of Provinces (NCOP), calling on it to intervene in a matter relating to reparations and title deeds from the National Ideal Fulfilment Foundation. In it, he said that his deceased mother had leased a piece of land from the municipality, where she was supposed to build a supermarket on Erf 8017 Thokoza. Political violence in 1992 had resulted in them vacating the building and the building was subsequently vandalised. All efforts to engage the municipality to resolve this issue had failed, and even a petition in 2006 requesting reparations and title deeds had fallen on deaf ears, despite commitments made by the finance department that all claimants would be considered if they were approved as displaced persons. Besides this, the process of verification in this regard had never been implemented.

Members reminded the municipality that a public participation hearing had taken place and recommendations had been made in May 2016, one of which was that the Real Estate Department should conduct an audit of all affected areas in respect of the shops or businesses that had been affected by the violence and a report submitted. If that audit had been carried out, the Committee should be provided with that information. Others wanted to know why the Ndlovu’s name was not among the reparations list that comprised the persons identified as displaced, and who were returned to their houses and businesses.

Representatives of the Ekurhuleni municipality gave their version of the legalities surrounding the situation. The main issue in this matter was the lack of sub-division of the structures on that piece of land. The shop itself was within the Thokoza hostel, and because the land was not sub-divided, ownership of the shop could not be given to the petitioner and his family, and as it fell outside the remit of the Convention Act, their claim had been rejected. A Member asked whose responsibility it was to sub-divide the land, and why it was not done. What was so difficult about simply sub-dividing a piece of land?

The Chairperson said the Ndlovu’s should have been identified as people who were supposed to have been reflected in the list of people to be settled. What was left was for the Committee to finalise this matter at its convenience.

Meeting report

The Chairperson said this Committee of Parliament was very important because it dealt with issues that affected the people directly. It should always be conscious of the fact that before any matters could reach it, the petitioner must have exhausted all known avenues and all their hopes now lay with the National Council of Provinces (NCOP) to resolve their issues. The Committee also had to ensure through the advice of the NCOP legal services and secretary that it dealt only with matters that fell within its mandate, otherwise it would be a fruitless and wasteful exercise. For Members to get acquainted with the demands of the Committee, the Chairperson suggested a day to be set aside by the Committee secretary for this purpose. This had become necessary, because most of the Committee Members were new in Parliament.

Submission by the petitioner Mr Gordon Ndlovu

Mr Gordon Ndlovu, the petitioner, said heI would like to take the opportunity to thank the Chairperson and Members of the Select Committee for considering the petition. He believed that their intervention would produce a long-awaited solution to the problems that had been haunting the black business community in their region,and probably the whole of South Africa. However, it was important that they could first deal with one matter in order to understand in general how the black business community was also affected by the apartheid laws and political violence that engulfed their region during the political upheavals of the 90’s, and all the challenges that persisted thereafter.

During the apartheid era, the permit system of influx control, as well as common law pre-1984, prohibited black people from obtaining ownership rights of properties in black urban townships and elsewhere.

Various business entities would receive similar permits (1036 Regulations) and would then operate within one building on one piece of land. So it was in his case, which he wanted to relate, as it was a perfect example to use to enable everyone to understand

His mother, Maria Thenjisiwe Ndlovu, had also leased a piece of land from the municipality, where she was suppose to build a supermarket on Erf 8017 Thokoza. It was a tacit type of lease, in that clause (3) of this standard agreement in cases of hostel leases stated that:

The lessee is desirous to erect a shopping unit (herein referred to as ‘the building) on the site at her own cost and expense and the lessee undertakes to donate the building on completion thereof (the site and the building are hereinafter collectively referred to as ‘the property’).

However, one must look at the terms of the duration of the lease, as stated in the agreement:

The lease period shall be for a minimum of 10 (ten) years calculated from the date of signature of this agreement of lease where after this agreement shall continue for an indefinite period provided that it might be terminated by either party giving 3 (three) months’ written notice of such termination to the other party.

Based on this term of duration, it should therefore be understood as to why these leases were referred to as a “Deed of Lease,” because they were, or were equivalent to, a title deed -- except of course, that the leases were drafted under the influence of the apartheid laws.

Looking at the terms of rental, clause (4) b stated:

As rental for the property the lessee shall pay to the lessor for the period calculated from the first day of the month following either the month in which the building is completed or the month in which the lessee started to do business on the property, whichever event may first occur, the applicable rental, which rental shall consist of the following elements:

  1. The site rental in respect of the property, as promulgated by regulation from time to time, plus
  2. Such additional amount as determined by the lessor Director of Technical Services in terms of the following formula with reference to the maintenance fund, insurance and loss of rental, namely:
  1. Maintenance Fund: (which in Mr Ndlovu’s case was R86.46)
  2. Insurance: (R9.68)
  3. Reserve for loss of rental (R80).

Total monthly premium or rental R188.82c monthly.

Mr Ndlovu wanted to know what this R9.58 for insurance was paid for. Where was this money allocated, if not in the coffers of the municipality or the council?

In 1990 a survey was done by Mutual and Federal, and the buildings were valued at R800 000. Plant and machinery amounted to R 50 000, and stock was valued at R60 000, giving a total of R910 000.

It was important to note that this kind of lease applied exceptionally to the hostels, although the 1036 regularisation applied across all other various leases or shop rentals, including shops that were built by the municipality, which were let out by the council.

He said that in 1992 they were forced to vacate the premises as a result of political violence. The building was completely vandalised and they were displaced, At some point his mother tried to engage the municipality, but was sent from pillar to post until she succumbed to stress and depression, passing on in 2004 while they were displaced.

In 2006, they had petitioned the municipality requesting reparations and title deeds (see page 8 of 30 in the main petition), but neither the municipality nor the local petitions committee did anything to assist them, despite the commitments made by the Finance Department that all claimants would be considered if they were approved as having been displaced. The process of verification in this regard was never implemented at all.

The rest was history, because when the request was escalated to the provincial legislature, administrative processes, resolutions and policies were grossly compromised by these two spheres of government.

Whilst the petition’s processes unfolded, among the concerns raised were that some of the shops did not appear in the council’s finance department accounts database, including his --  “Thothos General Dealer”.

The findings of the Xayiya investigation Task Team report stated that it was on the basis of many facts that the task team found that the Alberton Town Council’s billing system, at least as far as it related to those displaced, to be ineffective and insufficient.

It also stated that the council did not have a special credit control policy for those displaced, and recommendations made by the Task Team in this regard were:

The council must work closely with the community of Thokoza and establish a transparent database of all people who were displaced, including hostel dwellers as a result of political violence. Such a database must accurately show the number of people who were displaced and whether they had returned or not.  This could be done, inter alia, by reconciling the statistics of the council with that of community structures.

To date, none of these resolutions had been implemented, which was why the task team strongly believed that the town council finance database was manipulated during the period of violence somewhere between 1992 and 1996.

Other task team findings were:

  • That even the lease registry of the leases of council owned shops was nowhere to be found, although it was law that it should be under the custody of the municipality;
  • That some of the shops were still illegally occupied;
  • That most of the shops were still operating under apartheid lease agreements in this day and age, thereby preventing owners from being the rightful owners;
  • That most shops that were vacated during the displacement were billed since, and now owed huge amounts and the municipality was inconsiderate of the ‘Mandela/De Klerk Agreement which resulted in the writing off municipal debts from 1984 to 31 January 1994
  • That the period of displacement was as a result of political violence, but instead the municipality was handing over such debts to the attorneys;
  • That some shops had already been sold by the municipality without proper procedure and/or the knowledge of the original lessees or first tenants;
  • -That the council had sought the blessing of the provincial government to retain some of the so-called council-owned shops for the city, and not for initial tenants or lessees.

As for 1134 and 1184 Palmridge, Mr Ndlovu said he would like to put the record straight for the Committee, saying that the municipality had indicated that the hostel would be refurbished and be converted to family units, and that in their Integrated Development Plan (IDP) they would not cater for independent shops.

He was already residing in Palmridge in 2013 when he was served with an eviction notice. He responded not only to the municipality, but also got the provincial government to intervene. He also wrote a letter to the Presidency and the Premier’s office, which he had provided to the Select Committee administrator. In that letter, he had revoked a monetary claim of R1.2 billion and requested a land swap based on his vested rights in Erf 8017 Khumalo Street, or that he be given the first option to purchase the property. He had gone further and proposed that in case the money he had claimed would be paid to him, the price of erven 1134 and 1184 could be deducted so that he could be paid the difference. He was certain that this letter was circulated to the provincial finance department, as well as in the local government finance department, as monthly statements were then issued by the municipality.

Mr Ndlovu said he was requesting the Committee to appoint a task team that would be assigned to work with the foundation to address these challenges once and for all so that a lasting solution to the strife faced by the business community in his region was attained. He asked that the proposed task team must develop a clear communication strategy with the foundation, so it covered all the aspects of the challenges he had put before the Committee. If it was needed, to produce better results, the foundation could appoint a business community liaison officer who would liaise with the task team so that the appointment of consultants could be avoided, as they always worked in isolation without involving the affected community which they sought to assist.

Submission by Mr Moeketsi Motsapi, City of Ekurhuleni

Mr Moeketsi Motsapi, Head of Department (HOD): Corporate Legal Services, City of Ekurhuleni Metropolitan Municipality, stated in his submission that his intention was to get into the legal intricacies, but also to assist the petitioner where possible.

The municipality was not denying the business relationship with the petitioner and his family with regard to the shop at Thokoza hostel. With reference to the legislative regime operable at the time, the municipality’s view with regard to reparations was that checking with the insurance division, the archiving and records management was a big challenge, although no excuse was intended. The insurance seemed to be related to land, because the shop/structure was not necessarily that of the municipality. The ownership thereof should have devolved through the municipality only upon termination of the agreement or conclusion of the lease. Regarding the issue of shop ownership, it was a known fact that because of the Convention Act, the authority to deal with a lease holder rested with the province. A process had been undertaken by the department to advertise widely so that families that used to occupy council-owned shops could be facilitated in terms of ownership.  The main issue in this matter was the lack of sub-division of the structures on that piece of land. The shop itself was within the Thokoza hostel, and because the land was not sub-divided, ownership of the shop could not be given to the petitioner and his family, and as it fell outside the remit of the Convention Act, their claim had been rejected.

Submission by Mr Molwedi Mokoena, City of Ekurhuleni

Mr Mowedi Mokoena, Manager: Strategic Advancement and Stakeholder Management, City of Ekurhuleni, said that on the issue of reparation, the city was governed by the Municipal Finance Management Act (MFMA) of 2000, and it did not provide for reparation. It had to emphasised that due processes were explored to compensate for the damages and losses incurred by petitioners during the unrest of the 1990s. One of such processes had been Mr Eric Xayiya’s report that had dealt with the displaced who had left their homes because of the violence, and then had people illegally occupying their properties. Over 714 people had been identified as displaced, and their homes were in total disrepair. About 618 had been returned to their homes after they had been repaired and restored to a habitable condition as a consequence of that report. The city was unaware of whether the Ndlovu family took part in that process, and the result thereof. The municipalities were not empowered to deal with issues of reparations. The city’s position was that the Ndlovu claim fell outside its jurisdiction, and it would assist the family to escalate the matter to the relevant authority, which was the Gauteng Provincial Government.

Response by Ms Zanele Dhludhla, Gauteng Department of Human Settlements

Ms Zanele Dhludhla, Chief Director: Gauteng Department of Human Settlements, said a petition by Mr Ndlovu had been received previously from the Gauteng petitions committee, and the Department had responded by indicating that it was guided by the Convention Act to facilitate transfers of business sites and places of worship with people who had lease agreements with the Department by 1998. The Act did not permit financial compensation, but rather addressed issues relating to the transfer of ownership. In following this process, the Department liaises with the municipalities and demands a list of sites to transfer to individual beneficiaries. The Act also requires the Department to advertise such properties widely. The Department had a list of about 300 from the municipality which also included residential properties, and business and church sites. The last advert was placed in 2018, but the property that was listed by Mr Ndlovu was not in the advert. The property leased to Mr Ndlovu’s may not have been listed because it was not sub-divided, so it could not be transferred to him. The province relied on the list provided to it by the municipalities, and the files included therein. Challenges were sometimes encountered when the files were very old, but even then, the city would commission a company to do physical verification of tenants occupying the shops.

Discussion

Mr G Michalakis (DA, Free State) said he was sorry to hear of the passing of Mr Ndlovu’s mother, as she would have been proud to see him taking this case up to Parliament. In the documents that had been provided to Members, there had been a public participation hearing that took place, and some recommendations had been made on 6 May 2016. In one of them, the Real Estate Department was directed to conduct an audit in other affected areas in respect of the shops or businesses that were affected by the violence, and to submit a report. Had that audit been done and could the Committee be provided with that information? The Eric Xayiya report had also recommended that damages be investigated and amends made. Had that investigation team been assembled? Was there any report from them and if there was, could the Committee be provided with it? If these two documents did not exist, the Committee wanted to know why not, and if they existed, they should be provided to this Committee.

The Ekurhuleni documents state that the claims were evaluated and found to be in order, except that the property was located on the same erf as the hostel. The municipality was therefore acknowledging that the petitioner had a claim. It was annoying when a large company or government department bullied individuals merely because it had more power and authority. What the municipality seemed to be saying was that the petitioner had a claim, but they were not in a position to financially compensate him. There was absolutely no excuse for dealing with Mr Ndlovu in this way.

When the Committee visited the municipality last year, it saw the perilous financial situation it faced, but the mere fact that it was bankrupt did not mean that its creditors did not exist. If the petitioner had a claim, it did not hold water for the municipality to merely say it was not in a financial position to compensate him. It was pushing the narrative that the petitioner’s claim fell outside its jurisdiction. If this property was not in the list because a sub-division had not been done, why had it not been done? The feeling the Committee was getting was that it was a property the municipality was willing to transfer, but not willing to pay for the sub-division.

The municipality had indicated that there was a Truth and Reconciliation Committee (TRC) Reparation Act. Did this mean that those who had missed the opportunity to present their case there were no more entitled to have any claims? If they were not entitled to any claims, why did the municipality then acknowledge that indeed the petitioner had a claim?

Ms M Mmola (ANC, Mpumalanga) said her questions would be centred on reparations, where it had been stated that 714 people had been identified as displaced and returned to their houses. Why was the petitioner not one of those identified as displaced? The Department of Human Settlements had stated that in 2018 the properties advertised had excluded the petitioner’s property -- why was it not there? The city had said the petitioner had a claim but was not compensated -- why was he not compensated?

Mr T Dodovu (ANC, North West) said this property had been reflected as part of a hostel. Was it a shop inside the hostel building, or a stand-alone property?

Ms S Shaikh (ANC, Limpopo) said this matter was confusing, because the understanding was that it had been dealt with by the Gauteng provincial legislature. What had their recommendations been? Why had they not been implemented? The documents presented by the petitioner stated that recommendations had been made that were not implemented. Let the municipality clarify this matter.

Mr E Mthethwa (ANC, KZN) said the visual image he saw was a picture of the President in Thokoza hostel, together with the late Joe Slovo. That was one of the painful episodes in SA’s history. What about the displaced families and businesses, including Mr Ndlovu? It had been a painful experience because the petitioner had followed exhaustive processes to enforce his rights.  How many more had surrendered, who had no more fight left in them, because their government could not in their human spirit assist them? The municipality had admitted that he had a claim yet could not help him. The legal advisor had admitted that he had two legal pathways -- through the Convention Act and the TRC. However, they were all aware that the TRC Reparations Act covered only those who had gone there to present their cases. Why were they talking about the TRC when they knew that the petitioner had not gone there? Why would the municipality, for the sake of human spirit, amend their laws to accommodate Mr Ndlovu?

Mr S Zandamela (EFF, Mpumalanga) wanted to know if the hostel still existed. The municipality must clarify why it did not do the sub-division of the property, and as well as the issue of insurance.

The Chairperson, referring to the insurance issue, said Mr Ndlovu had indicated that they had been paying for insurance, but the municipality had said that the insurance was for the land, not the property. Was it his responsibility to pay insurance for the land when he had only signed a lease for the property? 

Responses

Mr Motsapi responded to the assertion that the claim had been evaluated and found to be in order, and said their understanding was that in terms of all that was needed to be submitted, the claim was found to be in order in relation to council-owned shops, and the only hindrance that had worked against the Ndlovu family was the sub-division of land. There was a complexity created in that the issue was based on how a piece of land could be wholly transferred to an individual when it was occupied by different individuals.  There a sectional title ownership concept, which was a process that could be looked at, but at present the decision of the province and municipality was that for any property situated on that land to be transferred, it had to be sub-divided indicating the extent of each erf. The criticism of the Committee was noted, in that the municipality should have gone the extra mile for the sake of humanity to assist Mr Ndlovu’s family to do the sub-division. 

On the financial situation of the municipality, that question could not be responded to because it was beyond their competency. On the area of jurisdiction, indeed the municipality had a part to play in identifying council-owned shops, and the list submitted to the province would be sent to the Committee later. On insurance, the information provided by the insurance department was that their understanding of the kind of relationship they had with the previous municipality was that there was no property. Rather, it was the lessee who was going to construct whatever business that would exist; so it would not have made sense to charge insurance for a building not constructed by the municipality. A written response could be provided why it had been so at that time.

Mr Mokoena said the city had conducted an audit of the shops that were damaged and illegally occupied, and had been able to invite the original occupants and the numbers had been reconciled. Only those who came forward and took part in the exercise, however, had been accounted for. The city had also taken guidance from the TRC Act to deal with matters relating to the unrest, although there were other commissions that had dealt with it too. The municipality had taken the Act as the legal focal point of reference, even though other commissions had been established to deal with the same matter.

On why the Ndlovu’s were not among the 714 identified people displaced the municipality, after an extensive search of all the processes that had been acted upon to deal with this issue, they could not find them as having participated. The shop was inside the hostel, and the hostel itself, was still intact and people were still living there now.

The Chairperson said all questions asked must be responded to, but for those that could not be answered now; a written response had to be sent to the Committee later. This Committee must get to the bottom of this matter and lay it to rest once and for all. The municipality should do a follow up because if the hostel was still intact, then the Ndlovu shop should still be in existence.

Mr Mokoena said if his memory served him right, the Ndlovu shop was damaged during the 1990s violence, but he could not recall if it had been repaired or restored.

Ms Mmola said she was confused. If the hostel was still there, why then was the shop no more?

Ms C Visser (DA, North West) asked why the shop was not rebuilt if he had paid insurance premiums at the time.

Mr M Mmoiemang (ANC, Northern Cape) said it could not be said that the shop was in the hostel, because if it had been demolished, so should the hostel. Was the shop in the yard of the hostel or inside the hostel? That was very confusing to the Members. Whose responsibility was it to sub-divide the land, and why was it not done? This was a municipality that seemed to love to subject people to traumatic experiences. What was so difficult in simply sub-dividing a piece of land? If one official of that municipality had shown an interest, that land would have been sub-divided without much effort.

The Chairperson said the Ndlovu case should be considered by the municipality to be a part of the list to be provided to the province. The Ndlovu’s should be identified as people who were supposed to have been reflected in that list of people to be settled. The questions not answered should be noted and clarity provided. What was left was for the Committee to finalise this matter at its convenience.

He thanked Mr Ndlovu was thanked for coming this far to seek justice, and the Committee was sorry that he had been subjected to this trauma. What had been presented to the Committee would be dealt with, and a response provided to him. Though he could give no time frame, Mr Ndlovu would receive a written response from the Committee detailing what it intended to do, going forward.

The meeting was adjourned.

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