King Goodwill Zwelithini recently surrounded himself with amabutho and intimated that violence or secession would follow unless threats to ‘the land of the Zulu nation’ were withdrawn. The President hurriedly assured him that his land was safe.

It is important to separate the theatre from the substance.

There is no threat. There is only one recommendation, among roughly a hundred other recommendations of the Motlanthe High-Level Panel report about a wide variety of laws. The mandate of the Motlanthe High-Level Panel was to investigate the impact of post-1994 laws and to recommend amendments, repeals or new law where it found problems or gaps. Parliament is still processing the recommendations of the panel. It has neither adopted nor rejected them. Neither has the ruling party or government.

The issue that sparked the bluster is simply that the panel dared to criticise the way in which the Ingonyama Trust administers the land under its jurisdiction.

The Trust is inviting people to bring in their Permission to Occupy certificates and other documentary proof of land rights, to convert these into lease agreements. A PTO certificate is an apartheid-era land right that is upgradeable to ownership in term of the Upgrading of Land Tenure Rights Act of 1991. Not everyone has PTO certificates, but anyone who has established long-term occupation of land is likely to have customary ownership, especially in instances where the land has been inherited over generations. The Trust’s standard lease agreement turns these people from owners into tenants of the Trust, binding them to pay rent that escalates at 10% a year. If you default on the rent you stand to lose the land, and any buildings and improvements you, or your family, made on the land.

Then there is the issue of third-party leases. The Trust enters into leases with third parties such as mining and agricultural companies and shopping malls without consulting or obtaining the consent of the people whose land rights are subsumed within the leased land. The trust claims that all it needs is the written permission of the traditional council to alienate land in this way. All rentals accrue to the trust and not to the people whose land rights are confiscated in the process.

The modus operandi of the Trust systematically undermines basic constitutional rights, including the right to tenure security enshrined in section 25(6) of the Constitution. It also undermines section 8 of its own statute, the Ingonyama Trust Act of 1994 which provides:

In the execution of his or her functions in terms of this section, the Ingonyama shall not infringe upon any existing rights or interests.

The Trust is bound to report to the Minister of Rural Development and Land Reform, and to Parliament. The Rural Development portfolio committee has long struggled to get straight answers from the Trust about how all the money collected through rentals is spent. So has the Auditor-General, who routinely returns qualified audits. In March this year, the Chair of the Portfolio Committee ordered the trust to stop issuing rental agreements to people who already own their land. And a senior official of the Department advised that the Trust’s rental scheme was not authorised by the Department, and contravenes both constitutional rights and the provisions of the Public Finance Management Act. Yet the adverts encouraging people to convert their PTOs to rental agreements remain on the Trust’s Facebook and Twitter accounts.

The Trust’s wrath is not restricted to former President Motlanthe and his panel. The parliamentary committee was also berated for being rude and disrespectful to the board’s representatives in Cape Town. The message is loud and clear – “hands off” to anyone who assumes they have a mandate to investigate what is happening to people’s land rights, or how the Trust spends its money.

To spice things up further the debate about expropriation without compensation has been artificially conflated with the recommendations of the Motlanthe Panel. Amending or repealing the Ingonyama Trust Act has nothing to do with amending the Constitution. These are two separate issues and processes. 

The Trust appears to be of the view that once the President has bent the knee everyone else will fall into line and back off any attempt at financial, legal or administrative oversight at the national level. It’s an approach that has certainly worked for them in KwaZulu-Natal. Complaints by individuals and groups about serious abrogations of their land rights to provincial government offices get no response. Former President Motlanthe wrote letters to officials about specific problems raised during the Panel’s public hearing in KZN, and also received no response. The leasing out of the valuable coastal land of the Umnini Trust near Umgababa is a case in point. The Umnini people own this land in terms of a deed of grant going back to 1858, but this has provided no protection against the Trust leasing out their land to third parties for its own account. Their repeated requests for government intervention to uphold their land rights have fallen on deaf ears.

The Motlanthe Panel highlighted the interface between political will and legislative enforcement. It found that problems often do not lie with the wording of particular laws, but with how laws are (or are not) enforced.

A law that is particularly important for people living in former homeland areas is the Interim Protection of Informal Land Rights Act of 1996. This law provides that no one can be deprived of an informal right to land without their consent, except by expropriation. Most people in the former homelands qualify as the holders of informal land rights, though some also have formal rights. If IPILRA had been properly enforced in KwaZulu-Natal the people directly affected would have had to agree before their land could be included within third-party leases issued to shopping malls. If they had refused, their rights would have had to be expropriated, requiring compensation. As it stands their land rights are simply confiscated – no expropriation, no compensation required.

It is not only in KwaZulu-Natal that government has failed to enforce IPILRA. IPILRA could have been a key protection for rural people when the epicentre of the mining boom shifted from the depleted gold reserves of the Witwatersrand to platinum-rich areas in the former homelands of Bophuthatswana and Lebowa. IPILRA binds the Minister of Rural Development and Land Reform, as the nominal owner of most communal land, to obtain the consent of those directly affected before signing surface leases with mining companies. The Minister has abrogated this responsibility, and the Department of Mineral Resources has encouraged mining companies to enter into mining deals directly with traditional leaders.

This has contributed to an interpretation of the Mineral and Petroleum Resources Development Act of 2002 that justifies the confiscation of black surface rights to land on the issue of a mining right, as was recently argued in the Constitutional Court by Advocate Gerrit Grobler SC. The case at issue involves the eviction of black land buyers who have farmed the land in question for over a century.

“Expropriation without compensation” is not an abstract possibility for poor black people living in mineral-rich areas. It is a daily reality. And it is happening at scale as research reports, litigation and increasingly violent protests across the platinum belt attest.

Remember we are not talking about mineral rights here. We are talking about people’s rights to the surface of the land on which their homes are built, where their ancestors are buried, where their cattle graze and where they fetch grass, wood and water. The MPRDA is routinely interpreted to mean that these surface rights need not be expropriated before mining starts, nor need compensation be agreed upfront. Expropriation is better than confiscation because at least it recognises that people have rights and that due process of law is required before they can be deprived of these rights.

Who stands to benefit from this abrogation of black peoples’ land rights? The answer is mining magnates, and some, but not all, traditional leaders, plus politically connected BEE shareholders. How has it come about? It was brought into being by the interaction of two more or less simultaneous laws, the MPRDA passed in 2002, and the Traditional Leadership and Governance Framework Act of 2003 (TLGFA).

At face value, the MPRDA attempts to break the stranglehold of white capitalists in the mining sector, by requiring that black capitalists be cut into the sector. But in combination with the TLGFA, it goes much further than that. It reinstates the very mechanisms that were used to exclude and subjugate the black majority during colonialism and apartheid and to reserve key assets to a small elite. These mechanisms were, and are, justified on the basis that customary land rights do not qualify as property rights and that rural black people do not have independent decision-making power in respect of their land. They are primarily tribal subjects, bound by decisions taken by traditional leaders. Their consent is not required. Their rights are not even worthy of expropriation according to this logic.

Many of the deals signed between mining houses and traditional leaders are legally precarious. IPILRA was abrogated, many traditional councils have failed to include women and elected members as required by the TLGFA, and most importantly, traditional leaders simply don’t have the legal authority to sign such deals. There is currently a phalanx of bills before Parliament that attempt to provide a veneer of legality to these legally precarious mining deals. The most revealing is the Traditional and Khoi-San LeadershipBill. Clause 24 seeks to explicitly empower traditional councils to sign deals with third parties that bind ‘communal land’ without obtaining the consent of the people whose land rights are directly affected.

The most urgent recommendation of the Motlanthe Panel was that Parliament stop and review these bills. They entrench structural inequality, divide rather than unite South Africans and dispossess the poorest South Africans of their residual land rights, limited as these are.

The response has been for the bills to be expedited through the National Council of Provinces, and for the panel’s report to be put on a back burner.

What is happening in KZN is rent-seeking at its most basic level. The Trust is commodifying land that has belonged to families for generations and extracting rent from it. What is happening in the platinum-rich northern provinces is slightly more sophisticated rent-seeking. The similarity is that both are premised on the denial of the property and citizenship rights of the black majority, who could otherwise use these rights to demand accountability from mining houses, traditional leaders and the state. Key leaders of the ruling party are too invested in mining deals in the northern provinces to have withstood pressure from KwaZulu-Natal to leave them alone to get on with it.