ANDILE NTINGI: After 22 years, state still has not upgraded land rights in former homelands

For several decades rural communities in the former homelands have lived under a lingering threat of losing their homesteads because they do not have title deeds proving they own the land they live on.

This threat became reality in 2018 for a group of Eastern Cape families sharing a commonage in my hometown of Butterworth, who found a portion of their land occupied illegally by a group from the nearby Mchubakazi township.

The invasion not only brought into sharp focus the challenge of unsecured land tenure rights in former homelands, but also highlighted the fear that confronts many parents in these areas that they may not be able to pass on inherited land to their children because of a lack of title deeds tying them to their land.

In September 2018 I was in Butterworth for a short visit when I witnessed the invasion mentioned above. The incident made me realise how easily people can lose their land if ownership is unsecured and unprotected. In the case of the Butterworth families, they responded to the invasion by calling the police to evict the illegal occupiers from their land, which is situated along the N2 highway in Transkei.

A month later the mob returned and partitioned a section of the commonage again. This time the families filed for an urgent court interdict to block the invaders from usurping their land. They also approached the high court in Mthatha to have the interdict made permanent.

The land was targeted by prospective homeowners because it is strategically located along the best road in the former Transkei and is close to the town’s central business district, where shopping and government services can be easily accessed. But some of these homeowners are not prepared to buy or lease the land from owners. They resort to illegal occupations.

Mthatha high court judge Mbulelo Jolwana was appointed to adjudicate the land dispute, which deserved nationwide media attention, but never got it. The families went after five masterminds of the invasion, who were listed as respondents in the founding affidavits. In their responding affidavits the five men challenged the families to provide title deeds showing that they were the rightful owners of the commonage.

The crux of their argument was that many of the families had produced permissions to occupy (PTOs) granted to their ancestors more than 100 years ago in terms of section 11 of proclamation 227 of 1898, a colonial-era law. They argued that the families, descendants of original PTO holders, had no legal standing because the PTOs were “not automatically transferable” to the descendants of the original holders. Therefore, the land in question should have vested to the state.

However, other families produced title deeds, proving that the ownership of land was transferred to their forefathers by King Edward VII, who reigned in the UK from 1901 to 1910. After hearing both sides on September 5 2019, Jolwana ruled on October 15 in favour of the families, saying they had furnished “indisputable evidence” tying them to the land.

“What is also clear is that all the applicants have rights, titles and interests to the various pieces of land directly or through their forefathers, from whom they derive such rights and interests. The basis on which the respondents claim that the applicants lack locus standi is devoid of merit and must therefore be rejected,” he ruled.

The judgment also appeared to be imploring the SA government to rectify its failure to amend the constitution to protect or upgrade the land tenure rights of communities in the former homelands of Transkei, Bophuthatswana, Venda and Ciskei, as directed by the Constitutional Court in August 2019. That ruling upheld an earlier judgment by the high court in Grahamstown that PTOs must be upgraded or converted into title deeds.

The landmark judgment pertained to a 10-year dispute between Teba Property Trust and Senqu Municipality over transfer to the trust of a piece of land in the former Transkei town of Sterkspruit. The municipality had refused to transfer the land, prompting the trust to approach the court to compel it to do so.

The disputed land was granted to the trust by a tribal chief in September 1949 through a PTO. In 2009 the trust wanted the PTO to be converted into a title deed by the municipality, in line with the Upgrading of Land Tenure Rights Act passed in 1991 by parliament during the transition period from apartheid to democracy. The law in effect converted deeds of grant provided by the apartheid government to black township dwellers into title deeds, giving them full ownership of their homes.

When the upgrading act was passed in 1991 it only covered the old SA and not homelands, which at the time had not been reintegrated into SA. In September 1998, after their reintegration, the Land Affairs General Amendment Act was enacted by the democratic government to extend the upgrading act to former homelands, where millions of people still held unsecured PTOs.

The continued failure to convert PTOs into title deeds 22 years after the extension of the upgrading act to former homelands is economically penalising rural communities. For instance, many villagers cannot borrow from commercial banks against their homesteads because the banks do not regard PTOs as safe collateral.

As a result, loan applications from cash-strapped rural borrowers are rejected, starving them of investment capital to develop their land into revenue-generating farms, residential homes, hotels, or mines. This economic injustice must be rectified as a matter of urgency, as it contributes to the underdevelopment of rural communities.

• Ntingi is founder of GetBiz.