No Man’s Land: Informal Land Rights Holders and Traditional Authorities

Nomakhwezi Mthizana-Base
Nomakhwezi Mthizana-Base, flanked by Nobelungu Lumkwana and Lindiswa Mbiko, are three of seven women whose homes are under threat. Photo: LULAMILE FENI

In March 2018, Nomakhwezi Mthizana-Base was informed by the headwoman in her local area of Bhongweni, Phase 1, Mthatha that she must vacate the home she has been living in since 1992. She was told that the land she lives on belongs to the Chieftaincy and that it had been sold to a commercial developer to build flats for students of the Walter Sisulu University.

She was not alone.

For a number of years the headwoman and her council had been taking the plots of vulnerable residents, demolishing their homes, and selling the land to developers without any compensation to the residents.  

Ms Base’s home is located on Erf 912 which belongs to the King Sabata-Dalindyebo Local Municipality and comprises a large part of Mthatha. The land was never subdivided which means that residents have no title deeds, but have lived on the communal land since before 1994. To complicate matters further, Erf 912 is the subject of a competing land claim by both the Zimbane Community and the Kwalindile Community which has not been concluded more than twenty years after it was lodged.

In a desperate attempt to try and hold on to her property, Ms Base and other members of the community who were threatened with eviction by the headwoman contacted the Legal Resources Centre (LRC) in Makhanda.  The LRC assisted them by obtaining an urgent interdict against the headwoman and her council, preventing them from any further harassment or destruction of their property. By this time Ms Base and her tenants had been chased out of their properties and a brick fence had been erected around her site. They had also dug the foundations for the flats and Ms Base had been threatened and victimised by the council members.  The council, on the instruction of the headwoman, made it very clear that the land was hers to do with as she pleased. Even after the interdict was granted, the contractors kept building on the property and only ceased with their unlawful activities after contempt of court proceedings were launched.

There are a number of legislative instruments that are meant to protect people from unlawful deprivation of property, including the Prevention of Illegal Evictions Act and the Interim Protection of Informal Land Rights Act (IPILRA).  The Act is specifically aimed at protecting the informal rights of people living in the former homelands. These laws are however wholly inadequate to deal with the lived realities of indigent people who find themselves exploited by traditional leaders for financial gain. What is needed is the political will to protect informal land rights in communal areas and an appetite to address the abuses of traditional leaders. This seemed to be completely absent in this case.

Ms Base and the other residents engaged the King Sabata-Dalindyebo Local Municipality on numerous occasions seeking assistance to resist the actions of the headwoman and her council.   But they were repeatedly told by the officials that they could not interfere. The municipality failed to participate in the court proceedings, despite being the lawful owners of the land.  To date they have taken no steps to act against the headwoman or her council members. Ms Base opened two cases with the police against the headwoman, the council, and the contractor, but the police was only willing to confront the contractor, after a paralegal of the Legal Resources Centre went with her to the police station to complain about their inaction.

This case has to be situated within the larger debate around land reform and the amendment of section 25 of the Constitution which would make provision for expropriation without compensation. While the debate has been dominated by private and commercial land owners, the rights of vulnerable communities who are expropriated without compensation by traditional leaders have been ignored.  The High Level Panel Report on Land Reform (2017) identified the fact that the state has failed to take steps to secure tenure in communal areas, while the protection provided in IPILRA remains largely unimplemented and it is too limited in its scope to fully protect people from traditional leaders who treat the land as their own.

The state’s failure to clearly define and recognise the rights of people residing on communal land has resulted in the deprivation of property without compensation and without a clear legal avenue to resist the expropriation. Their only option is to approach a court to try and have the conduct of traditional leaders declared unlawful, but this is an option that is available to very few people and mostly in the peri-urban areas. It is imperative that any proposed changes to the Constitution or the legislation, makes proper provision for security of tenure on communal land and creates mechanisms to deal with the abuses of power by traditional authorities.

Sadly, this may be of little consolation to the residents of Bhongweni. The Commission on the Restitution of Land Rights is not even close to finalising the competing land claim over the area. Twenty years after it was lodged, they have not even managed to validate the claim and if the current rate at which claims are settled is any indicator, many years of uncertainty lie ahead. At ground level, the land claimants too are treating the land as their own, insisting on yearly payments of R6000 from residents to continue living on the land.  Until the land claim is finalised, the security of tenure of the thousands of residents of Bhongweni, Phase 1 remains uncertain and people like Ms Base remain vulnerable to the whims of traditional leaders and opportunistic claimants.

Guest Contributor:  Cecile van Schalkwyk

Cecile is an attorney in the Makhanda Office of the LRC and has worked for the LRC since 2016, specialising in education and land matters.