By Thabiso Mbhense
The communities are occupying and using land in communal areas in terms of a coherent system of indigenous law. They have their own lifestyle. They are being led by traditional leaders. They have their own custom. They are still practicing their own indigenous leadership system, through the process of culture.
In their areas, shared rules determine access to the land which is held in common. They have their own system of land allocation, use and occupation. Chiefs, headmen, headwomen and traditional councils have a role in land allocation to members of the communities. The decisions about the distribution of residential sites and arable and grazing land are taken by the members of the communities, chiefs, headmen, head women and traditional councils. The allocation of residential sites has to be witnessed by the community members. Disputes are dealt with by the chiefs, headmen, head women and traditional councils. When outsiders want to use land for particular purposes, for example for business, they need to approach the community members, chiefs, headmen, head women and traditional councils for permission.
Some traditional leaders are corrupt and violate human rights of the members of their communities. They sell communal land to businessmen and businesswomen without consulting the communities. They are demanding residents to pay excessive tribal levies and other different kinds of taxes.
Customary law is recognised by section 211(3) of the Constitution. Furthermore, the Interim Protection of Informal Land Rights Act No. 31 of 1996 (“IPILRA”) was promulgated in terms of section 25 (6) and (9) of the Constitution “To provide for the temporary protection of certain rights to and interests in land which are not otherwise adequately protected by law; and to provide for matters connected therewith.” IPILRA protects arbitrary deprivation of informal land rights of the communities or members of the communities. The rules of governance of the communities explicitly recognise the customary law and require that decisions be taken in terms of the applicable customary law of the communities. This is applicable when it comes to disposal of a right in land. The only way that a binding community resolution can be taken for the purposes of IPILRA would be at a community meeting convened in terms of the usage and custom of the community.
Section 2(4) of IPILRA states: “For the purposes of this section the custom and usage of a community shall be deemed to include the principle that a decision to dispose of any such right may only be taken by a majority of the holders of such rights present or represented at a meeting convened for the purpose of considering such disposal and of which they have been given sufficient notice, and in which they have had a reasonable opportunity to participate.”
This raises three aspects that require attention: (a) the decision must be taken by a majority of land rights holders; (b) there must be sufficient notice; and (c) there must be a reasonable opportunity to participate. IPILRA requires that the disposal of land authorised by the land rights resolution must be done in accordance with the customs and usage of the community.
Communal land is held by the state in trust for communities. It is registered in the name of the Department of Rural Development and Land Reform.
The communal land in Kwa-Zulu Natal is slightly different. When South Africa attained democracy in April 1994, all homelands, including that of Kwa-Zulu, were abolished. The homeland and self-governing areas were reincorporated into South Africa, and all land owned by the governments of those territories was to be vested in the new national government.
The land in the Kwa-Zulu “homeland” was an exception however. During the dying days of apartheid, just before the interim Constitution came into force, the National Party and the Inkatha Freedom Party struck a deal to establish the Ingonyama Trust and to transfer all the land then held by the Kwa-Zulu government to the Ingonyama Trust. This deal was effected through the KwaZulu Ingonyama Trust Act 3 of 1994 (enacted by the Kwa-Zulu legislature, (“the Trust Act”), which came into force on 24 April 1994.
The power of the Ingonyama Trust and the sole trustee, the Ingonyama, to manage the Ingonyama Trust-held land is subject to important constraints under the Trust Act. This includes the duty to act for the benefit of the members of the Zulu tribes and communities living on the land; the duty to respect Zulu customary law; and the duty not to infringe upon any existing land rights. In addition, the Ingonyama Trust cannot lease, alienate or otherwise dispose of any of the land or any interest or real rights in the land, unless it has obtained the prior written consent of the relevant traditional or community authority. These constraints are set out in section 2 of the Trust Act. However, the Trust is bound by the provisions of IPILRA which requires that the disposal of land must be authorised by the land rights resolution done in accordance with the customs and usage of the community.
The land that is registered in the name of the Ingonyama Trust is a state land, held by an organ of state for the benefit of residents.
The answer is straightforward. The land in South Africa’s communal areas is owned by the state on behalf of communities.
Thabiso Mbhense is an Attorney currently employed by Legal Resources Centre. He holds Baccalaureus Iuris (B Iuris) Degree and Bachelor of Laws (LLB) from University of KwaZulu Natal. He was employed as a candidate attorney by University of Kwa-Zulu Natal Law Clinic in 2003. When he was employed as a candidate attorney he was specialising in cases involving land reform, eviction in rural areas, domestic violence, child maintenance, divorce, labour, family matters, curator bonis and curator ad litem applications.
He was admitted as an attorney in 2005. He is currently specialising in cases involving rural and urban evictions, land reform, housing, provision of basic services, upgrading of informal settlements, acquisition of land and land claims.
He has appeared in the Magistrates’ Court, High Court, Land Claims Court, CCMA and Supreme Court of Appeal.