ITB withdraws appeal in residential leases case

The Ingonyama Trust Board (ITB) is in the process of withdrawing the appeal to the supreme court of appeal by its former chairperson, Jerome Ngwenya, against the high court ruling setting aside its lease programme.

The appeal had been set down for argument at the court in Bloemfontein from 15 November but will now be withdrawn on the instruction of the new board appointed by Agriculture, Land Reform and Rural Development Minister Thoko Didiza earlier this year.

The board recently met and resolved to instruct its lawyers to withdraw the appeal by Ngwenya, who was fired by King MisuZulu kaZwelithini earlier this year over a dubious R41 million investment exposed by the Mail & Guardian.

Ngwenya was replaced by inkosi Tnanduyise Mzimela, a close confidant of the monarch.

The decision paves the way for the evental refund of millions of rand to people living on land which falls under the Ingonyama Trust, of which the Zulu king is the sole trustee — and a process of improving their security of land tenure laid out in the original judgment.

The ITB runs the day-to-day affairs of the trust, which controls nearly 3 million hectares of land under traditional leaders on behalf of the king and had introduced the residential lease programme around 2012.

A source close to the process, who asked not to be named as they do not have permission to speak to the media, said this week that the appeal would not continue.

“The board resolved to instruct the attorneys to withdraw the appeal,” the source said. “The withdrawal process is now on.”

The challenge to the ruling in favour of residents by the Pietermaritzburg high court in June 2021 was brought by Ngwenya, who went ahead with the appeal, despite being instructed by Didiza to abide by the court ruling.

The new board appointed by Didiza after his dismissal is understood to have begun discussions around ending the appeal at its first meeting and had taken the final decision at a recent meeting held in Pietermaritzburg.

The Legal Resources Centre — which represents Linah Nkosi and other residents who challenged the legality of the leases with the assistance of the Rural Women’s Movement and the Council for the Advancement of the South African Constitution — said on Monday that they were ready to travel to Bloemfontein to argue the case.

Nkosi, Bongani Zikhali and other residents of ITB land had gone to court in 2018 to challenge the validity of the residential lease system, which forced them to pay rent to the board for land occupied by their families, often for several generations.

They argued that the programme deprived them of the right of tenure they had previously held via permission to occupy certificates, issued by the ITB, and that the conversion to leases had been done unlawfully and through coercion.

The Pietermaritzburg high court ruled in favour of the residents, ordering the ITB to refund revenue it had collected in the residential leases, which generated an estimated R90 million a year.

The court ordered Didiza, under whose ministry the ITB falls, to provide quarterly reports on implementation of the order and of further steps to ensure the right of tenure of people living on ITB land.

Didiza agreed to abide by the order, but implementation was stalled by the appeal, brought by Ngwenya and the then board.

Ngwenya also attempted to have the judgment set aside on the grounds that two of the judges who had heard the original case, the late Jerome Mnguni and KwaZulu-Natal deputy judge president Mjabuliseni Madondo, and their families, lived on ITB land and were biased against the entity.

This leg of Ngwenya’s appeal failed and was dismissed with costs but the appeal against the ruling by the Pietermaritzburg court had been set down to be argued at the supreme court of appeal.
ITB spokesperson Simphiwe Mxakaza undertook to provide M&G with a comment on the appeal hearing but had not done so at the time of writing.

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