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Land Claims Court rules against the king

3 Dec 2018

The Witness


Land Claims Court rules against the king

ZULU ­King­ Goodwill ­Zwelithini ­has failed­ to­ convince­ the­ Land­ Claims Court ­to ­order ­his ­subjects to ­share with­ his­ trust­ land­ the­ community had­ won ­in ­a ­successful­ land­ claim.

In ­a­ judgment ­handed ­down ­by­ the court ­last­ week,­ it ­also ­made ­a ­cost order against ­the Ingonyama ­Trust—­ an­ unusual­ occurrence­ in­ this court.

Witness sister ­publication ­Rapport has ­previously­ reported­ that­ the ­Ingonyama Trust­ had ­intervened ­in ­the land­ claim ­in­ order­ to­ have ­the ­land that­ was ­the subject­ of­ the­ claim and­ which­ borders­ Ingonyama ­Trustland­ ­awarded­ to ­the ­trust.

This­ claim ­was ­based­ on ­the ­fact that­ the­ successful­ claimants­ were Zwelithini’s “subjects”.

The­ Entembeni, ­Makhasaneni­ and Mthonjaneni­ communities­ had claimed­11­000 hectares­ of­ land, ­located­ in­ the ­Melmoth ­district,­ about 90­km­ west­ of­ Richards­ Bay­ and 50­km ­east­ of­ Nkandla.

The­ claim­ includes­ prime­ agricultural­ land­ for­ sugar­cane,­ avocados, lumber ­and cattle­ farming.

The­ current ­owners ­and ­the­ government ­had, ­in­ principle,­ agreed­ to sell­ the­ land­ for­ R760­million,­ but Zwelithini­ intervened­ before­ the claim­ was ­finalised.

The ­successful ­claimants­ are ­currently ­living­ on ­trust ­land,­ after­ being forcefully removed­ from ­the ­land ­that is­ the ­subject ­of ­the ­claim.

In­ court­ papers,­ the­ Ingonyama Trust­ went­ as­ far­ as­ saying­ there would ­be­ “conflict,­ chaos­ and­ bloodletting” ­if­ the­ court ­allowed­ the­ community to­ own­ the­ newly­ acquired land.

According­ to­ the ­trust, ­it ­did­ not want­ to ­grab­ land ­or­ claim­ ownership,­ but­ believed ­that ­the ­most­ suitable ­option­ was­ for ­it ­to­ hold­ the ­land on ­behalf ­of­ the­ community.

As ­an­ alternative,­ the­ trust­ wanted government ­to ­own ­the land, ­rather than­ the community.

Last­ week,­ the ­Land ­Claims ­Court decided­ that ­the ­claimants ­may ­well be­ Zwelithini’s­ subjects,­ acknowledge ­the ­authority ­of­ the ­king ­and currently­ reside­ on his ­land, ­but­ they still­ have ­the­ right ­to ­acquire ­land­ in their­ own ­name.

The­ court,­ assisted­ by ­an ­assessor who­ specialises­ in­ customary­ law, found­ that­ the­ Ingonyama­ Trust could­ not­ prove ­that ­the­ majority ­of the­ claimants­ wanted­ the­ trust­ to own ­the ­land­ in ­their ­name.

This­ was ­especially ­clear ­because the­ claimants ­had­ already­ set­ up­ their own­ communal­ property­ associations ­to ­own ­the ­land ­on ­behalf­ of the ­community, ­and had­ also ­elected trustees.

According­ to­ the­ judgment,­ it would ­be ­unfair ­to­ give ­the ­valuable land ­to ­the­ trust under ­circumstances where­ it ­was­ not­ the ­trust ­that­ had a­ valid­ claim­ over­ the­ land.

“I ­can­ see­ no­ reason ­why ­the­ court should­ lend­ more­ weight ­to­ the ­wishes­ of­ the Ingonyama­ Trust­ over­ the wishes­ of­ the­ claimant­ communities,”­said­ acting ­Judge MP­ Canca.

The ­land ­claimants­ argued ­that ­the Ingonyama­ Trust­ was­ just ­being­ opportunistic­ in ­its ­bid­ to­ try ­to ­acquire the ­land.

Khumbulani­ Myeni,­ legal­ representative­ of ­the ­Mthonjaneni­ community,­ said­ his clients ­were­ ecstatic about ­the ­judgment.

“They­ have ­been­ trying­ to ­get ­their land­ back ­for­ more ­than­ 20­years.

“The­ judgment ­now ­makes ­it­ possible­ for ­the ­state ­to ­buy­ the ­land­ from the­ present­ landowners­ and­ to ­transfer ­it ­to ­the­ community.”

In­ his­ judgment,­ Canca­ said­ the Land ­Claims ­Court ­only ­makes ­a­ cost order ­in exceptional­ cases.

The­ court­ held­ that­ the­ trust’s­ conduct in­ this­ matter­ did­ constitute such ­an exceptional ­case­ because ­it “very ­clearly ­had­ no ­interest ­to ­protect­ in ­the­ court case”.

The­ court­ will­ next ­determine ­the remainder ­of ­the ­claim.­