ATC200930: Report of The Select Committee on Petitions and Executive Undertakings on Abathembu Petition Hearings held in Mthatha, Eastern Cape Province, on 23 October 2019 and Parliament, 21 November 2019, as Adopted on 23 September 2020

NCOP Petitions and Executive Undertakings

REPORT OF THE SELECT COMMITTEE ON PETITIONS AND EXECUTIVE UNDERTAKINGS ON ABATHEMBU PETITION HEARINGS HELD IN MTHATHA, EASTERN CAPE PROVINCE, ON 23 OCTOBER 2019 AND PARLIAMENT, 21 NOVEMBER 2019, AS ADOPTED ON 23 SEPTEMBER 2020

 

 

1. BACKGROUND

The petition is dated 2 November 2018, and was referred to the Chairperson of the Select Committee on Petitions and Executive Undertakings (Committee) by the Chairperson of the National Council of Provinces (NCOP) for consideration and resolution, reports as follows:

 

The petitioner, Mr Votani Majola, filed a petition through Ms Thembi Tembe, a Chief Protocol Officer on behalf of the Thembuland Royal Empire. The petition urges the NCOP to intervene in respect of the alleged prejudice against the Thembuland Royal Empire.

 

The petition notes a number of concerns that centre on the treatment and prejudice suffered by the Thembuland Royal Empire. The petitioner alleges that based on the incidents, events, and activities that have occurred in the past few years, the Thembuland Royal Empire reasonably believes that the justice system in South Africa has been, and is still being manipulated and abused, in the same manner as it happened during apartheid era. This with the intention to destroy the Nation of AbaThembu.

 

The petitioner seeks the intervention of the Committee for the following:

• To ensure that the Rule of Law is enforced in certain cases where it is possible for Parliament to do so;
• On a long term basis for Parliament to investigate the extent, impact and the severity of prejudice that has been suffered by the AbaThembu people and possibly put in place corrective measures within the context of the justice system;
• In relation to the issue of land, the petitioner is of the view that a genuine debate on land should firstly start with the original landowners, that is the Thembuland Royal Empire.

The relief sought is that while the issue of land ownership is being debated, the Thembuland Royal Empire should be afforded some special dispensation, legislatively and/or otherwise to be able to access their old heritage sites of AbaThembu Nation. This would help the petitioners accelerate growth and economic development for the AbaThembu people.

 

 

2.         HEARING

 

On 23 October 2019, the Committee held a hearing on the Abathembu petition at Savoy Hotel, Mthatha in Eastern Cape, where the petitioner and relevant stakeholders were invited.  The purpose was to afford the petitioner and relevant stakeholders with an opportunity to make first-hand oral submissions in relation to the subject matter of the petition.

 

2.1 Committee Members and Officials

The following Committee Members were present during the hearing on the petition:

2.1.1     Hon Z V Ncitha, ANC, Eastern Cape;

2.1.2   Hon E M Mthethwa, ANC, Kwa-Zulu Natal;

2.1.3      Hon C Visser, DA, North-West;

2.1.4     Hon K Motsamai, EFF, Gauteng; and

2.1.5     Hon S E Mfayela, IFP, Kwa-Zulu Natal

 

The Committee Members present were supported by the following Committee officials:

2.1.6     Mr N Mkhize, Committee Secretary; and

1. Adv. T Sterris-Jaffer, Committee Researcher
2.  

 

1.  

 

1. 1.Stakeholders

 

The following stakeholders attended the hearing on the petition:

3.1.1     Mr V Majola, Petitioner ;( attendance list of individuals who were accompanying the petitioner, will be made available upon request)

3.1.2     Representatives from the Land Claims Commissioners; Mrs. Gabon (Chief Land Claims Commissioner); Mr T Ntombela (Legal Advisor); Mrs. N Matya (Regional Project Manager, Advisor), Mr L H (Legal Advisor), Ms I J Pillay (Acting Manager Real Estate); Mr ZM Nduma (Acting Divisional Head_ Real Estate); Ms N Ntswaki (Town Planner) and Mrs. B Motimone (Land Surveyor);

3.1.3 Representative from the O.R Tambo District Municipality, Ms N K Zibi (Senior Coordinator;

3.1.4   Representative from the O.R Tambo District Municipality-Legislative Services, Ms N P Mkontwana (Public Participation-Manager); Mrs. L Rolobile (Chairperson Public Participation and Petitions); Mr S Mxego (Sergeant at Arms); Mr M A Lutinto (Public Participation); Mrs. V V Mbiza (Public Participation Officer)

3.1.5   Representative from the AbaThembu Chief, Chief B Mtirara and Ms T Wana

     

      

1.  

In his opening remarks, Mr Majola who calls himself Emperor Thembu II of the AbaThembu Royal Empire, submitted that he represents AbaThembu from all nine provinces. The petitioner alleges that the AbaThembu were the first to arrive in South Africa more than 2,300 (two thousand three hundred) years ago. He further alleges that for this reason, and many other reasons “this land called South Africa belongs to AbaThembu Nation in its entirety”

According to the petitioner, all the nine South African Provinces belong to the Nation of AbaThembu. He submitted that this is informed by a variety of factors that include, but are not limited to historical factors, heritage factors, traditional factors, cultural factors and many more.

He then submitted that the current approach by the government on land restitution is not likely to yield to positive results to resolve the land question. That a genuine debate on land must start with the original land owners who are AbaThembu Nation.

  

He then touched on the housing petition, informing that, “housing forms the basis of prosperity in the country to such an extent that without effective housing in place it is hard to achieve economic prosperity”. The petitioner noted a number of means that could be employed to increase the speed of housing delivery.

• simplified policies and procedures for easy access to adequate housing delivery to the public;
• improving the law-making in the housing sector in order to design policies and procedures that would address directly the intended housing issues;
• raising finance for housing by government outside the normal fiscal allocation; developing the Small Medium Micro Enterprise (SMME) sector in the housing industry; and
• understanding the broad legal framework on housing.

The petitioner then suggested that the government should intervene in respect of alleged prejudice against a Thembuland Royal Empire on land restitution. He argues that the justice system is flawed and sabotages socio-economic development projects initiated by the Thembuland Royal Empire.

The petitioner submitted that the process of land claims prejudices his people. Indicating that they have given submissions to the Commission on how to fast-track the process of land claims. Further indicating that Thembuland Royal Empire rejects the proposition that land must be given to the State. Pointing out that the current debate on land that has been running since 2018, and with due respect he feels it unstructured and incomprehensible hence this process is not likely to yield to any positive results to address the land question.

He then alleged that Parliament was stalling the process with the Amendment Act. Pointing out to discrepancies in the legislative mandate averring that Parliament was meant to rectify the unconstitutional provisions contained in the Restitution of Land Rights Amendment Act (No. 15 of 2014) as decided in the Land Access Movement of South Africa and others v Chairperson of the National Council of Provinces and Others judgement.[1] The Amendment Act was meant to extend the period of time for the lodgment of land claims.

Submitting that the Act originally provided that claims for restitution of land had to be lodged by no later than 31 December 1998. However, by such date not all those who were entitled to lodge a claim had timeously done so. The petitioner contends that the failure by Parliament to timeously enact the amendment resulted in Parliament being in contempt of the court order. This has further prejudiced the process around land restitution.

 

1.      Submissions by the Land Claims Commissioner

The oral submissions on behalf of the Land Claims Commissioner (Commissioner) were led by the Mrs N Ntloko-Gobodo (Mrs Ntloko-Gobodo), Chief Land Claims Commissioner. She commenced her submission by outlining the Land Reform mandate as follows:

The 1996 Constitution sets out the following framework for land reform:

The state must take reasonable legislative and other measures, within its available resources,

• To foster conditions, which enable citizens to gain access to land on equitable basis (Section 25(5)).
• 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 (Section 25 (6)).
• A person or community dispossessed of property after June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress (Section 25 (7)).

 

Mrs Ntloko-Gobodo then informed that the Restitution of Land Rights Act, 22 of 1994 establishes the Commission on Restitution of Land Rights (CRLR). The functions of the Commission are to solicit, investigate, and to resolve through negotiations and mediation claims for restitution from persons and communities dispossessed of rights in land, after 19 June 1913, as a result of past racially discriminatory laws and practices. Where a claim cannot be resolved by negotiations or mediation it is referred to the Land Claims Court for adjudication.

Mrs Ntloko-Gobodo further informed, that a claimant is only entitled to restitution “to the extent provided for by an Act of Parliament” i.e. the Restitution of Land Rights Act, 1994. Indicating that Restitution is defined as restoration of a right in land; or equitable redress.

Restoration is defined as the return of a right in land or a portion of land dispossessed after 19 June 1913 as a result of past racially discriminatory laws or practices.

Equitable redress is defined as any equitable redress, other than the restoration of land, including the granting of an appropriate right in alternative land, or the payment of financial compensation.

 

Mrs Ntloko-Gobodo submitted that the CRLR is prohibited from processing any claims lodged in terms of section 10 of the Restitution of Land Rights Act 22 of 1994 (Restitution Act) between 1 July 2014 and 28 July 2016 (Interdicted Act) until the earlier of the dates. When

it has settled or referred to the Land Claims Court all claims lodged on or before 31 December 1998 (Old claims) by way of a referral of the claim in terms of section 14.

The Land Claims Court, upon application by any interested party, grants permission to the Commission to begin processing interdicted claims, whether in respect of the whole or part of the Republic of South Africa and whether in respect of part or all of the process for administering an interdicted claim.

Informing that until the date referred to , no interdicted claim may be adjudicated upon or considered in any manner whatsoever by the Land Claims Court in any proceedings for the restitution of rights in land in respect of old claims, provided that interdicted claimants may be admitted as interested parties before the Land Claims Court solely to the extent that their participation may contribute to the establishment or rejection of the old claims or in respect of any other issue that the presiding judge may allow to be addressed in the interest of justice.

Citing that on 28 July 2016 the Constitutional Court ordered that the Restitution of Land Rights Act, 1994 must be read as though the Amendment Act was never enacted. 

Potential claimants who had not lodged claims by 27 July 2016 may no longer do so.

The Commission is interdicted “from processing in any manner whatsoever” already pending new order claims unless:

• Parliament enacts new legislation reopening the lodgement of claims; or

• The Commission finalises claims lodged by 31 December 1998 in the entire country to the point of referral to the Minister or the Land Claims Court.

Further submitting that the Restitution Amendment Act 15 of 2014 was declared invalid by the Constitutional Court in July 2016, stating that Parliament failed to consult adequately with affected parties. A new Restitution Amendment Bill was introduced through Parliament as a Private Member’s Bill.

Pointing out that Parliament’s Constitutional Review Committee undertook public hearings on the Bill throughout the nine provinces between 18 June until 03 July 2018, unfortunately Parliamentary processes could not be concluded for the passing of the Bill within the timeframe indicated by the Constitutional Court on the Lamosa 1 Judgement.

 

In conclusion, she informed that it the Ministers mandate to deal with transformation and land reform. The Commission can only operate within the parameters of the current legislation, ttherefore, the Commission can only wait for Parliament to either comply with the court order as introduced in the LAMOSA 1 and 2 judgement or for the process to be taken through the Cabinet process.

In concluding, Ms Ntloko-Gobodo, further informed that the first claim lodged by AbaThembu in 1998 had been dismissed as the dispossession happened in the 1800s and the land claim law caters only for those dispossessed after 1910. Another claim, filed by King Buyel'Ekhaya Dalindyebo in 2014, has not yet been looked at.

 

3.4   Supplementary Submissions

Chief Bhovulengwe Mtirara, briefly submitted on behalf AbaThembu Chiefs, he indicated that he distanced himself from the petition. Submitting that there is no way that one tribe can claim all of South Africa. He further submitted that this is not the first time this thing is happening, it has happened in 2006, even then he distanced himself from it.

He further informed that the acting AbaThembu king Azenathi Dalindyebo has no signature on that petition as the representative (leader of AbaThembu). Concluding that Mr Majola was not even a Chief of AbaThembu.

 

 

1. SECOND HEARING ON THE ABATHEMBU PETITION

 

The second hearing on the petition was held on 21 November 2019 at Parliament.

 

1. Committee Members and Officials

 

The following Committee Members attended the second hearing on the petition:

 

       4. 1.1 Hon E M Mthethwa, ANC, KwaZulu-Natal (Acting Chairperson of the Committee);

 4. 1.2 Hon A B Gxoyiya, ANC, Northern Cape;

 4.1.3 Hon M P Mmola, ANC, Mpumalanga;

 4.1.4 Hon S Zandamela, EFF, Mpumalanga,

 

The Committee Members present at the hearing on the petition were supported by the following Committee officials:

 

4.1.5 Mr N Mkhize, the Committee Secretary;

4.1.6 Adv. T Sterris, -Jaffer, the Committee Researcher;

4.1.7 Mr J Russouw, Committee Assistance;

4.1.8 Mrs N Fakier, Executive Secretary;

4.1.9 Mr M Nkwali, Researcher, Office of the NCOP Chairperson; and

4.10 Ms F L Lombard, Parliamentary Communications Officer.

           

4.2  Stakeholders

                                                       

The following  stakeholders attended the hearing on the petition:

4.2.1     Mr V Majola, Petitioner; (attendance list of individuals who were accompanying the petitioner will be made available upon request)

4.2.2     Mr A M Sithole, Secretary to the National House of Traditional Leaders;

 

5.     Submissions by the Petitioner

 

Mr V Majola, Petitioner (the petitioner), reiterated most of the oral submissions he made before the Committee on 28 October 2019 and expanded on some of them. In his submissions to the Committee, the petitioner maintained that they have submitted the following four petitions:

1. Housing Petition;
2. Land Restitution Petition;
3. Social Economic Development Petition; and
4. Justice System Petition.

The petitioner, then went on to clarify what is AbaThembu Royal Empire. He informed that it is a tribe of AbaThembu, that was revived in 2005, which is based on the following pillars:

• Reviving the Kingdom of AbaThembu Nation, by having Kingdoms in each of the nine provinces, correcting the damage that was done by colonialism and the apartheid era.
•  In terms of land restitution, the petitioner wants their land back as it forms part of their heritage;
• Social Economic Development, their people must be economical developed;
• Thembuland Royal Empire to revive it norms, customs and traditions.

 

In his submissions, the petitioner also addressed the issue of locus standi regarding the four submitted petitions, indicating that Chiefs who were present at both hearings have signed a resolution that they want these issues to move forward. And ordinary members of AbaThembu Nation in all the nine provinces have also signed individual resolutions supporting the revival of AbaThembu Nation. He then based the locus standi that it is in line with Section 38 of the Bills of Right.

 

The petitioner, then briefly went through all the petitions that he submitted and reported as follows:

 

5.1 Land Restitution:

 

The Committee was informed that this is not a traditional petition, it was more than placing issues on record, that as AbaThembu Nation, all the nine provinces belong to them (Eastern Cape, Western Cape, Northern Cape, KwaZulu-Natal, Gauteng, Limpopo, Mpumalanga, Free State and North –West Provinces).

He further informed that it is common knowledge and it undisputed fact that among the Nations (tribes) that reside in the Republic of South Africa today, the AbaThembu Nation were the first to arrive in this territory. That was more than 2,300 (two thousand three hundred) years ago. For this and for many other reasons this territory that is called the Republic of South Africa today belongs to AbaThembu Nation.

 

The petitioner submitted that the current debate on land that has been running since 2018, it unstructured and incomprehensible hence this process is not likely to yield any positive results to address. And the AbaThembu Royal Empire rejects the proposition that land must be given to the State.

Indicating that the relief sought from Parliament is that a genuine and legitimate debate on ‘the land question’ should firstly start with the original land owners, the Thembuland Royal Empire (AbaThembu Nation). And the debate shall be properly structured.

 

5.2 Housing Petition:

 

The petitioner then touched on the housing petition, by informing that, “housing forms the basis of prosperity in the country to such an extent that without effective housing in place it is hard to achieve economic prosperity”. The petitioner noted a number of means that could be employed to increase the speed of housing delivery.

• simplified policies and procedures for easy access to adequate housing delivery to the public;
• improving the law-making in the housing sector in order to design policies and procedures that would address directly the intended housing issues;
• raising finance for housing by government outside the normal fiscal allocation; developing the Small Medium Micro Enterprise (SMME) sector in the housing industry; and
• understanding the broad legal framework on housing.

      

The relief sought from Parliament is that Parliament should interrogate this petition thoroughly and eventually develop a mechanism either in a form of a Special Task Force or other that would oversee the implementation of these strategies and tactics.

 

5.3 Social Economic Development

 

The petitioner reported that they are being sabotaged by members of government, effectively denying them an opportunity to exercise free political will.

Further reporting that most of the Chiefs had approached the Premier of the Eastern Cape to process the appointment and issuing of pending certificates in recognition of rightful Chiefs. Indicating that in terms of the Framework Act, they should now have been given a budget so they can pursue their royal development.  

Submitting, that the Premier of the Eastern Cape has not yet processed the applications which has now been a year and half. His concern is that most people in the rural areas will be flocking to urban areas affecting and collapsing the economics of the country due to failure of some government officials’ failure to execute its mandate.

 

He then requested that relief sought, to order the Premier to do his job (e.g. Parliament to set up a certain structure).

Further submitting that they are representing thousands of Land Claimants who are severely prejudiced by the slow movement of settlement of the land claims in South Africa. In this regard they have taken it upon themselves to put forward suggestions aimed at improving these processes.

Propose that land claimants who have the ability to do their own research, at their cost, or otherwise must be allowed to do so. However, the report that they present should be subject to authentication and validation by the Commission. This means that the Commission will merely validate reports that already exist. There are several institutions that would be willing to do this task for the poor communities who cannot afford to appoint expensive consultants.

Believe, that this task must be left with the Commission to minimize fraud and corruption. This seeks to resolve disputes between the interested parties. That in their experience more than 90% of the disputes are caused due to the lack of required information about the legal processes, rights and duties that the relevant parties have, or think that they have. Once one sits down with these parties and highlight the legal issues, most people withdraw their participation in the ‘dispute'. The point is simply that if proper legal education is given to the land claimants most disputes would be prevented, instead of attempting to resolve them. 

He proposes that this legal education aimed at minimizing disputes could be carried out by the senior law students at different universities. Most universities do have a Street Law Project whereby senior students go out to teach communities about various legal issues.  This program counts for the students’ marks in some institutions, as such students take it seriously. If this were to be done, the Commission would spend very little money on this aspect. A broader National Campaign could be undertaken targeting all land claimants in all nine provinces as these universities are also found scattered in all nine provinces anyway.

 

The petitioner then indicated that some matters that would ordinarily be referred to the Land Claims Court would be reduced substantially if preventative measures as set out.

This involves acquisition of land, and / or payment of financial settlement. He assumes, without being judgmental that this is probably where the major backlog occurs, mainly since there could be several payments that must be done but with less cash at the hands of the government to pay out. Put differently and clearly, government must make payment of 5 billion rand in 2016, but there was only about 1 billion rand at hand in 2016. The question is how does one manage this situation. Proposed that there are several options that can be implemented and suggested the following option:

 Instead of giving cash to the hands of claimants, claimants should be assisted in starting up a profit making company in their respective areas where they reside. Some cash can be used to finance the start-up capital for this company. All the claimants are made shareholders, and/ or this company issue bonds in favour of these claimants. In this manner these claimants have a lifelong benefit that will also benefit their children. The danger in giving cash to the claimants is that X gets paid the cash. Within 5 months X has abused that cash, and X is back to where X was, extremely poor as if X had not just been paid a huge sum of money. This payment process does not help to alleviate poverty among our people at all.

 

The petitioner pointed out his concern, that if Parliament takes too long to enact a new Act, any interested party has an option to approach the Constitutional Court to apply for a variation order, or in terms of LAMOSA 2, approach the Land Claims Court for a special permission to have certain claims processed. However, if there is still a deadlock with regard to the old claims of 1998, it may not be easy for the court to allow the special permission to process these interdicted claims hence it is necessary that a new system that really drives the land claims settlement process has to be designed as a matter of urgency. People on the ground are getting very impatient of waiting endlessly to get their ancestral land back.

As the Nation of Thembu they have thousands of these claims. Once the new system is designed and implemented this will open up smooth processing of these new claims too.

Indicating that there are several claims that they have under the umbrella that were duly lodged in 1998 but they do not get cooperation from the Commission when they ask for progress report.

They would be grateful if they could get commitments with regard to these issues raised. They believe that an open and frank dialogue is the way to go as the issue of land that affects all of us as citizens. The Commission is duly empowered by legislation to spearhead this dialogue. 

 

 

 5.4     Justice System Petitions

 

Lastly, the petitioner highlighted that the justice system in South Africa is manipulated with the sole purpose to destroy the Nation of AbaThembu. The petitioner noted a number of instances in which he felt that the justice system had failed the AbaThembu nation. These relate specifically to the manner in which people of AbaThembu decent were treated by the justice system.

According to the petitioner, the attack on the AbaThembu was done through the implementation of the Xhosa Nostra Project or the Xhosa Domination debate. According to this debate, which has apparently spanned since the 1990’s, it aimed at eradicating Xhosa leadership in top government positions. The petitioner mentions that this project as the source underpinning the disjuncture between the progress of the AbaThembu.

Outlining the following specific examples of specific matters to substantiate these submissions. Mentioning that the list is not exhaustive of issues that constantly attack the Nation of Thembu in South Africa:  

The late Mrs Winnie Madikizela-Mandela, found herself in the middle of various schemes, scams, criminal cases, controversies, plots and the like that had been hatched by the members of the ANC at large. Her mining company Chuma Holdings Ltd that she formed in 2002 appears to have been sabotaged from within government circles.

 

The former King Buyelekhaya Dalindyebo of AbaThembu Nation faced political persecution that was disguised as a criminal case was revived after almost 11 (eleven) years. As a result, that Dalindyebo was eventually sentenced to 15 (fifteen) years in imprisonment in 2009.

 

The dismissal of the former State President Mbeki from the cabinet in September 2008 was based on the comments that were made by a former judge Nicholson in a case involving Mr Jacob Zuma. Such comments were patently unlawful, irregular and invalid hence the dismissal was likewise unlawful. In January 2009 the Supreme Court of Appeal confirmed that the comments that were made by the then judge Nicholson were unlawful.

The dismissal of General Bantu Holomisa from the ANC and government in 1996 was unlawful, irregular and invalid at law.

 

6.       Submissions by the National House of Traditional   Leaders

 

Submissions on behalf of the National House of Traditional Leaders (NHTL) were led by MrA M Sithole, Secretary to the NHTL (Mr Sithole).In his opening remarks, he indicated that he won’t deal into the merit of the petition, since they don’t have  access to all the documents that the petitioner made mentioned off.

However, he did acknowledge Abathembu as an old community. Pointing out that there are critical things to consider once there is a community established. Submitting that the  Traditional Leadership and Governance Framework Act, 2003 (Act No 43 of 2003) (the Act) provides for the process of recognition of traditional leaders and traditional communities.

Pointing out that the Act guides the process to be followed in the recognition process of both the communities and leadership. And the Act provides for the functions of traditional councils, kings council, principal councils and traditional council. It further provides the roles of traditional leadership in different competencies.

That you will need to have structure that will manage that community. He then made the following examples of such structures:

• In the case of Kingship, it called the Kingship Council;
• In the case of Principal Traditional Leader, it called Principal Traditional Council; and
• In a case of a Senior Council, it called a Senior Traditional Leader Council.

 

Informing that these are the government structures of a Traditional Leadership. Further informing that in terms of the Framework Act, 2003 (Act No 43 of 2003) (the Act), that the terminology that was used by the petitioner, such as Chiefdom is not mentioned in the Act. Therefore, will not refer them as such.

The position of Traditional Leaders in SA is informed by the Act that provides for the recognition of the following positions of traditional leadership in the Republic of South Africa

• King or Queen
• Principal Traditional Leader
• Senior Traditional Leader; and
• Headmen/headwomen

 

Further informing that the above are the only positions of traditional leadership in the country. Any position not mentioned is not part of those that government recognize.

Mr Sithole then addressed the position of Traditional Leaders on land matter. Submitting that the

Traditional Leaders met on a number of occasions on the matter of land.

The first critical meeting that was held at an Indaba of 2017.During the Indaba, one of the critical resolution taken was that Government must transfer the current land that is occupied by traditional communities to traditional leadership structure which is the Traditional councils as indicated previously.

The Indaba agreed that government should transfer land within six months or twenty-four months if there is no tool (legislation) to do that. The twenty-four months was for government to pilot a law through Parliament for the creation of a tool to transfer.

Further, the indaba resolved that there must be a land summit to handle the issues of communal land.

Further submitting that such has not happened, instead government established an Advisory Panel on Land and Agriculture. The panel has almost completed its work, though it is finalizing the consultation now, but the first report which indicates its direction was released.

Government further established the Inter-Ministerial Committee headed by the Deputy President that is looking at the land issue.

The land summit has not been held and it is proposed that it will be held in December 2019.

The NHTL further held the Lekgotla in 2018 and Tshivhidzo in 2019 to monitor progress on the 2017 Indaba resolutions. During the Tshivhidzo, traditional leaders acknowledge the report of the Panel but requested Government to speed up the land summit so as to finalize the issue of land.

 

In conclusion, Mr Sithole indicated that the NHTL only recognise the King of AbaThembu, Acting King Azenathi Dalindyebo. It further recognises that AbaThembu have two major communities which are, AbaThembu of Rhode under Matanzima and AbaThembu of Dalindyebo under Acting King Azenathi. According to the decision of the Commission on Traditional Leadership Disputes and Claims all AbaThembu in the Republic of South Africa are under Acting King Azenathi and nobody else. Any position that a person calls him/herself with which is not as per the provisions of the law cannot be entertained by the NHTL.

 

7.         OBSERVATIONS AND KEY FINDINGS

 

The Committee made the following observations and key findings in relation to the various submissions made in relation to the subject matter of the petition:

 

7.1       The Committee noted that in all the four petitions submitted, the petitioner seeks the intervention of the Committee to ensure that the Rule of Law is enforced in certain case where it is possible for Parliament to do so.

 

7.2       The petitioner further seeks the intervention, on a long term basis for Parliament to investigate the extent, impact and the severity of prejudice that has been suffered by the AbaThembu people and possibly put in place corrective measures within the context of the justice system.

 

7.3      In its submissions, the Lands Claims Commissioner indicated that it can only operate within the parameters of the current legislation. Therefore, they can only wait for Parliament to either comply with the court order as introduced in the LAMOSA 1 and 2 judgement or for the process to be taken through the Cabinet process.

 

7.4       The Land Claims Commissioner further informed that the first claim lodged by AbaThembu in 1998 had been dismissed as the dispossession happened in the 1800s and the land claim caters only for those disposed after 1910.Another claim, filed by King Buyel’Ekhaya Dalindyebo in 2014, has not yet been looked at.

 

7.5   Chief Bhovulengwe Mtirara informed that the acting AbaThembu king Azenathi Dalindyebo has no signature on that petition as the representative (leader of AbaThembu). Indicating that Mr Majola was not even recognised as a chief of AbaThembu.

 

7.6    The NHTL, informed that government has established the Inter-Ministerial Committee headed by the Deputy President that is looking at the land issue.

 

7.7       The NHTL only recognise the King of AbaThembu now Acting King Azenathi Dalindyebo. It further recognises that AbaThembu have two major communities which are AbaThembu of Rhode under Matanzima and AbaThembu of Dalindyebo under Acting King Azenathi.

 

7.8     According to the decision of the Commission on Traditional Leadership Disputes and Claims all AbaThembu in the Republic of South Africa are under Acting King Azenathi and nobody else. Any position that a person calls him/herself with which is not as per the provision of the law cannot be entertained by the NHTL.

 

 

1. RECOMMENDATIONS
   1. The National House of Traditional Leaders (NHTL) only recognises Acting King Azenathi as leader of the AbaThembu and therefore the NHTL cannot entertain the request of the petitioner. The Committee as advised, is of the view that the petitioner lacks the necessary locus standi to act on behalf of the AbaThembu nation.

 

1. That the Land Claims Commissioner has to await the outcome of the Parliamentary process as introduced in the LAMOSA 1 and 2 judgment. This has to be taken through Cabinet processes. Once calls for public submissions emanate from the amendment of the Restitution of Land Rights Amendment Act the petitioner is advised to use this avenue to claim the relief he seeks.

 

1. The Committee is not best placed to deal with the issue of land since there is a concurrent Parliamentary process underway that deals with the issue. It is therefore recommended that the petitioner await the outcome of the concurrent Parliamentary process on the issue of land claims, more specifically the amendment of Section 25 of the Constitution.

 

Report to be considered.

 

 

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[1] 2016 (10) BCLR 1277 (CC)