The claimants
The relevant legislation allows for community as well as individual claimants, a community being described as a ‘group of persons whose rights in land are derived from shared rules determining access to land held in common by such a group’. However, if a claim is lodged on behalf of a community ‘the basis on which it is contended that the person submitting the form represents such community’ has to be declared in full, and backed up with supporting documentation. In terms of the definition examples of community removals carried out in terms of racist legislation could include ‘black spots’ (black or mission owned land in areas designated as part of apartheid’s ‘white’ South Africa), or the removal of ‘tribes’. The relocation to Ntambanana, in 1976, of thousands of residents of Reserve 6, to make way for the white suburbs of newly established Richards Bay, would constitute a tribal claim.

However, the large majority of rural removals in what is now kwaZulu-Natal were of individuals, not whole communities, especially those carried out in terms of legislation relating to labour tenants and their families enacted in the 1960s. According to research by the Surplus People’s Project, between 1960 and 1983 an estimated 300 000 persons were removed from farms, as opposed to a total of 105 000 from ‘black spots’ and 10 000 for general relocation purposes. While many of the communities (primarily those linked to the homeland consolidation policies) facing the threat of removal in the early 1980s were reprieved, the remorseless evictions from farms continued well beyond the advent of democracy in 1994. Presumably, a number of families who had been evicted from a particular farm could decide to claim as a community, subject to the requisite details being supplied when claiming.

The total numbers of community, as opposed to individual, claims lodged in KZN are not known (new claims are still being gazetted). However, it is obvious that a significant number of claims are being submitted as ‘community’ ones. Many are lodged by traditional leaders, despite there being, in many cases, no apparent basis whatsoever for their involvement in the claim. Many people owning land in designated ‘black spots’ held freehold title, so fell largely outside the ambit of chiefly controls (since the authority of these leaders is derived primarily from their having been vested, by the government, with the right to distribute communal land which they themselves do not own). It was individuals who lost rights in land on farms, not chiefs.

Consider the following examples in which claims in large tracts of land have been lodged (apparently successfully) by ‘communities’, despite there being no apparent basis for such claims:

Kranskop
In this area there are two large claims, with a third reportedly pending. One is a tribal claim, submitted by Inkosi Jabulani Dlomo for the amaKhabela tribal authority. The basis for the other is not evident from the gazetted notice, in which V E Mbatha is claiming on behalf of the Ntumjambili/Ngcolosi community. Each of these claims is for dozens of properties used for ranching, and for farming sugar and timber, totalling many thousands of hectares. Most of the farms claimed are owned by private farmers, or by forest products business Mondi Ltd, but others are owned by the South African government and the Ingonyama Trust. This Trust was established by legislation passed furtively by the Nationalist Party government in conjunction with the kwaZulu Bantustan leader Buthelezi on the eve of the April 1994 elections. It effectively privatized government land designated for black occupation in the hands of a sole trustee, Zulu King Zwelithini. This land is soon to revert to its rightful owners, the democratic South African government, with the enactment of the new provincial legislation relating to traditional leaders. In the Kranskop claims, one of the Ingonyama properties (Pambanisa) is being claimed by both ‘communities’.

These blanket claims do not appear to do justice to the complexity of the residence patterns in the area from the 19th century onwards. Tribal communities have themselves been artificial constructions since the advent of colonialism. The apartheid government continued, and refined, the colonial policy of vesting control over the construction and de-construction of tribes, and the appointment, suspension and dismissal of tribal leaders (chiefs) in the hands of the State President. While it is true that black people were settled along the Kranskop side of the uThukela River during the early years of the 20th century, there had been missionary activity in that area since the mid 19th century, when the Hermannsburg Lutheran mission was established. At least some of the title deeds of the farms claimed apparently go back to the latter nineteenth century. Recorded history thus suggests that if ‘communities’ (in terms of the definition in the legislation) were removed, they might have been Christian rather than ‘tribal. Land owning patterns in the area, including possible ownership of land by black converts to Christianity, would thus need to be thoroughly researched. Given the abolition of labour tenancy by the government in the 1960s, it seems virtually certain, however, that families, or groups of families of workers would have been removed from farms in the area, and would thus be entitled to lodge claims. An hypothetical community claim by a group of labour tenant families is quite different to a tribal claim, for the latter would include many people (including, probably, the traditional leader) who had never lived on the farms being claimed – and would probably exclude many labour tenants (or descendants) not living in that particular tribal area (in which high levels of violence have driven people away).

The Gingindlovu/Eshowe corridor
There are a number of fertile farms in this area which were expropriated from white farmers during the apartheid era. Placed in the South African Development Trust (land held by the white government for transfer to the Bantustans if and when the white government so decided) they were presumably destined for incorporation into the kwaZulu Bantustan, but they were being rented to white farmers in the 1980s. These farms were subject to claims by two nearby tribal communities, i.e. those under Chief Nzuza (near Gingindlovu) and Chief Mpungose (near Eshowe). Again, there appears to be no historical basis for these claims, since the ‘reserves’ headed by these two amakhosi (chiefs), like others in Zululand (i.e. north of the Tugela river) were demarcated in 1909, so white farmers could not have purchased land in these reserve areas after that time. Thus criteria for claims only being lodged for removals post 1913 could not have been met.

Nonoti
There are at least three community claims – two of which have been settled - in this area, about three quarters of an hour’s drive north of Durban, despite an apparent lack of any evidence of communities (as opposed to individuals) having been displaced. An early 20th century map of African occupied areas shows that there was only one sizeable community (the Groutville Christian mission area) in the coastal strip between the Mvoti and uThukula rivers into which Nonoti falls. By this time the area was largely under sugar cane, and other farming operations (including by Indian and black farmers), so it seems unlikely that any sizeable black communities established themselves in the area after that date for, it must be remembered, demarcated ‘Reserves’ which constituted the residential bases for all black people had been established from the latter nineteenth century in the Natal colony (south of the uThukela river) and controls over the movements of black people, including those seeking work, had been instituted since the early days of colonialism. Again, there were no doubt families living on farms who might well qualify for restitution.

Despite an apparent lack of historical evidence of any sizeable black communities (as opposed to individual farmers or labour tenants) at Nonoti from 1913 onwards, at least two such claims have been declared valid. One, at Nonoti River mouth, was settled in the 1990s under the auspices of a Trust. Another claim, for 464ha of land at Prince’s Grant, which has been declared valid by the Commission, has reportedly been made by the self-same ‘community’ (Nonoti River Mouth community). Prince’s Grant itself is an up-market golf estate, which was originally part of a farm (Hyde Park) acquired by settler George Prince in the 1850s. Farms adjacent to the golf estate had also been farm land, owned by white and Indian farmers, since the 19th century. According to the Commission, the ‘community’ was removed from the area to which ‘about 1000’ people are now laying claim in 1945.

Further inland, towards Darnall, the very same grouping - Nonoti Mouth Community Committee represented by M N Mbokazi - is also claiming ‘Portion 16 of Chantilly No 1804 and 33 other properties’
Given long established farming operations in the area when did the removal of community or communities take place, and under what circumstances?
If a number of people were removed ‘under or for the purpose of furthering the objects of any racially based discriminatory law’, what exactly is the relationship between them and present claimants?
What, specifically, are Mr Mbokazi’s links with the areas being claimed, and on what basis does he represent the claimant community or communities?

Mangete
The best known example of an invalid tribal claim is that lodged for land owned by descendants of 19th century British settler John Dunn and his numerous Zulu wives, classified under apartheid by the odious term ‘coloured’ (which, properly, applies to all humans). The claim was submitted by Chief Mathaba on behalf of members of the Macambini (also spelt Mocambini) tribe who, it was alleged, had been removed from Mangete farms in 1976. In the course of drawn out proceedings in preparation for a hearing by the Land Claims Court various lists of those allegedly displaced were produced. It is important to note that Mathaba himself was not a claimant, and had never lived on Mangete land. Historical records show that there was no basis whatsoever for a community claim. Mangete had been proclaimed a Reserve (7a) for ‘Coloured’ people in 1909. It is not disputed that some dozens of black persons living on the privately owned farms had been removed in 1976; however, they had been moved to nearby land in an area named Wangu because the Macambini chief at the time had denied that they were members of his tribe. Wangu was not then a part of Macambini, but was subsequently incorporated into that tribal area. It is possible that individuals might have been able to show a valid claim, had the Land Claims Court (a)heard the case and (b)accepted that the claim could be changed from a tribal to an individual one.

Most of these ‘community’ claims, despite seemingly lacking in substance, have been settled. How is that possible?

The nub of the problem : Verification procedures
The Commission is tasked with investigating whether or not claims are valid and, if there is a dispute, it may be referred for mediation, or to the land claims court. In the Mangete case voluminous official records were prepared for the scheduled court proceedings, which never took place because of the interventions of the Land Claims Commissioner who had, in 2000/2001, replaced the original incumbent. Since that time a heavy emphasis has been placed on by-passing these procedures – especially the court - and reaching a settlement between the parties in terms of the Section 42D amendment to the original Act. This amendment allows the Minister to settle a claim after consultation with the Commission. While the right to approach the land claims court remains, most land owners are hesitant to use this option because of the legal expenses they incur (although landowners can easily run up hundreds of thousands of rand in legal costs if their lawyers attend the meetings which characterise the present modus operandi of the Commission.

The Section 42D route is highly problematic, since the transparency surrounding court procedures is conspicuous in its absence. The onus is on the Land Claims Commission to validate the claim, so it is presumed that it will follow correct procedures, integral to which is research on the records relating to the claim. There is a great deal of documentation of removals, especially from the 1970s onwards, much of it gathered by researchers, including those engaged with the Surplus People’s Project, those working for NGOs such as the Association for Rural Advancement (AFRA), and church organisations. Some forced removals also received a fair amount of press coverage. Of great importance are property records at the Deeds office, and various other official and archival materials. Cruel and inhuman as the forced relocations were the apartheid system was obsessively orderly. There are, e.g. meticulous records of each family removed from Mangete to Wangu in 1976, and the amount of compensation each was paid.

A further presumption is that Commission staff will be appointed only on the basis of possessing adequate skills, and that such staff will be provided with further training. Only in certain situations might it thus be necessary to call on the services of an expert in a particular field. Although such procedures were the norm during the first few years of land verification, the position appears to have changed since the appointment of the present Land Claims Commissioner. Increasing use has reportedly been made of ‘consultants’ for validation purposes, at huge cost to taxpayers. It has been impossible to obtain information about the basis on which they have been selected and the skills they posses.

For example, it is alleged that a great deal of validation work in this province is being done by an organisation called Phililsisizwe – which gives rise to the following questions :

• Is this the same organization as Philisisizwe-Phedisasechaba Association for Development (PAD) of which the Regional Land Claims Commissioner, Ms Thabi Shange, is or was the Executive Director. According to various web sites, PAD is involved in ‘development’ activities with poor people, for whom it facilitates loans; it has acquired a farm ‘about an hour’s drive from Durban’. Are any other employees of the Commission involved in PAD? PAD is affiliated to a national organisation called Thembani International Guarantee Fund (TIGF) of which Ms Shange is the Board Chairperson (which, in turn has partnership links with an American organisation called Shared Interest)
• is it true, as is alleged, that PAD is associated with Fezekisa Consortium which is apparently also awarded land validation work in KZN?
• If PAD is the same organisation as that which does validation, and which in turn is associated with Fezekisa, does the Land Claims Commissioner not experience a conflict of interest?
• Who is responsible for awarding tenders for the validation work to Philisisizwe and Fezekisa?

What specific expertise do these consultants possess to carry out validation work? Are they even doing proper, independent verification of claims? In the absence of information to the contrary (because of the failure of the Commission to supply it) one must take seriously allegations that thorough verification procedures are not being followed. Much of the time of staff and consultants alike appears to be taken up by travelling around and meeting with claimants and landowners, rather than sifting through relevant records as one would expect. From various, independent, sources come allegations that when these meetings do take place (some are arranged and then cancelled) those whose land is being claimed are not supplied with the details they request, proper records are not kept, and verbal agreements reached may be reneged on. Veiled threats of ‘expropriation’ are also alleged. Land owners may then be labelled ‘obstructionist’ because they insist on receiving information to which they are entitled in law, and expecting to be treated in a courteous and professional manner. For example, elderly farmer Mr S was allegedly described by a Commission official as ‘full of s..t’ for challenging the validity of a claim which appears lacking in historical basis – and about which the Commission refuses to provide the requisite detail.

There are also suspicions that claims submitted after the December 1998 cut off date have been accepted (one Cato Manor claimant alleges he has proof to this effect). Suspicions are fuelled by the fact that claims seemingly lacking in any substance continue to be gazetted, the failure of the Land Claims Commission to provide basic details about such claims, and the conduct of Commission staff members themselves. The form which must be completed by complaints requires specific information – e.g. ‘If it is rural land, the portion(s), name(s) and number(s) of the farm and district in which it is situated.

Why then are people whose claim for twenty farms on the south bank of the Nonoti river (Ntwashini), whose claim has recently been gazetted, only now being brought to the area by the Commission staff to identify the farms they are claiming?

Furthermore, Commission staff are alleged to have cited aerial photographs from the 1930s which showed the existence of huts on the farms as proof of validity of claims. It should be self evident that far more detail is needed about (a) whether persons living in such huts would have been entitled to claim in terms of having been moved in terms of racist legislation and, if a basis for a claim was verified (b)whether there is a demonstrated relationship between claimants and persons who were removed from the farms and (c)what the basis for a community claim would be.

Given such allegations, and the failure to provide information about who is doing the verification, and the procedures being used, how can the general public have confidence that land claims which have been settled have been properly validated? The impression is that no proper validation is necessarily taking place; indeed, farmers attending a meeting about the Kranskop land claims were reportedly informed that, according to the LCC, it was not necessary to validate claims since the principle of ‘willing seller, willing buyer’ obtained – which poses the obvious question : If claims are not being validated, who decides who receives the land purchased from a willing seller?

Who benefits?

Kranskop
Despite the reported non validation of apparently invalid claims lodged by the Makhabela tribe and the Ngcolosi community in Kranskop at least one of them (Makhabela) has apparently been settled. Once again it seems that the settlement has been vested in Trusts controlled by one or more members of the claimant groups. A black empowerment company, Crystal Holdings, was – according to a letter sent to farmers by a Greytown attorney - appointed by the Land Claims Commissioner ‘to carry out an audit to determine what farming practices have been carried out since the properties were valued’. Respondents were requested to complete a detailed questionnaire in this regard, and warned that ‘the Government will withhold payment of the balance of the purchase price until the audit have been completed satisfactorily’. The audit form itself refers to the ‘payment of the first 50% of the purchase price as per sale agreement’ on the property of the respondent having been paid.

It was established that this black empowerment company is not linked to a company of the same name which had been listed on the Stock Exchange in the 1990s, but one which had been established relatively recently. There appears to have been an arrangement whereby the company would conduct the audit and then assist the successful claimant community with the management of the farming operations. However, rumours are now (late August) flying about that the Land Claims Commissioner intends introducing some other type of organisational structure in the area, the identity or identities of which, at this stage, is/are far from clear (rumours, however, abound). In the mean time, there is a pressing need for fertiliser and other treatment of the sugar cane crops now that the first spring rains have fallen, which involve considerable expenditure. It is not clear who – if anyone – will ensure that these important procedures are followed.

What exactly is happening with regard to the Kranskop land claims? If one or both have been settled have proper validation procedures been followed and, if not, why not?
Why should a local chief and unspecified others benefit if persons dispossessed of land in the area were individuals, which is the most probable basis for a claim?
If it transpires that individuals – farmers or labour tenants - were dispossessed how are they going to benefit from this settlement?

Nonoti
As indicated, one claim involving the Nonoti River Mouth community was settled in the 1990s. It is alleged that members of the claimant community are now paying rent to the person who controls their Trust. The claim for what is described as Prince’s Grant land (near the golf estate of the same name) has also been declared valid by the Commission, which announced that it had set aside R104 million rand to settle the claim. According to the Commission, the value of the land claimed was
R1 million per hectare but, according to various reports, an amount of R100 000 per hectare has been paid for the 464 hectare of land, comprising nineteen of the twenty farms originally claimed. This claim appears to have been settled in favour of M Mbokazi of the Nonoti River Mouth community – i.e. the selfsame body which is accused of charging rent to claimants for staying on the land. It is alleged that some of the people who are paying rent to stay in areas awarded by the Commission are not from the area, and may not even be South Africans.

Mangete
This case shows, beyond reasonable doubt, that the person who has benefited from the allocation of fourteen million rand of taxpayers’ money, is not a legitimate claimant. Inkosi Mathaba had never lived in Mangete, and his name was not on any of the list of supposed claimants supplied during the pre-trial court proceedings. It was individual families who were removed to Wangu, an area which was subsequently incorporated into Macambini. Mathaba’s territory had thus already been increased in this way, and it was further increased when four pieces of land (small farms) were given to him by the provincial Roads Department to accommodate people displaced when the new N2 highway was built. Three of these farms were purchased from the Macambini tribal authority as part of the Mangete settlement. In other words, public money was used to purchase tribal land which is government land. This land now forms part of a private trust controlled by Chief Mathaba. Also forming part of this private trust are farms purchased from willing sellers in Mangete, plus a large commercial farm purchased by the Commission, on which human settlement is, in terms of the sale agreement, specifically precluded. According to the Commission the claim was not settled as a tribal one. The Commission provided a list of successful claimants, to which the name of Mathaba and a number of other new names which have never appeared on any claimant list have been added, which appears illegal. Since he alone controls the Trust in which the settlement is vested the only real beneficiary is thus the chief, and anyone else to whom he may wish to dispense patronage. Eighty eight of the claimant families remain, illegally, on the privately owned farm land from which, in terms of a Court interdict, they may be evicted at any time.

Who owns and controls the land?
The Mangete case highlights the problems of vesting land intended for communal ownership and usage in trusts, which appears the favoured means of settling ‘community’ (including tribal) claims. The legal minds in government do not appear to have applied themselves sufficiently to the fundamental question of whether such trusts promote or impede Constitutionally-enshrined principles of democracy.

There is reason to believe that the Land Claims Commission does not necessarily act in community interests in setting up trusts. In March 2004 a trust formed by the Land Claims Commission, linked to the proposed transfer of land to the ‘Gongola community’ was set aside by the Land Claims Court, following argument by members of the claimant community that agreements reached in negotiations had been ignored. With the exception of Chief Mathaba, it is obvious that the Bhekamafa Trust does not operate in the interests of persons listed as claimant families, including the 88 families facing eviction from Mangete farm land, who should long have been relocated to the land so generously given to Mathaba.
Why, when fourteen million rand has been allocated, have all the families listed by the Commission as successful claimants not been provided with land and accommodation in the Macambini tribal area?

It is not clear how the creation of community trusts to hold land can promote democratic control over such a valuable resource. Under usual circumstances trusts are constituted to vest control over property in certain hands, so are thus antithetical to fundamental tenets of democracy, i.e. that the identities of those occupying positions of leadership change in accordance with fluctuating public support, and events in the wider society. The processes by which these ‘community trusts’ are constituted are far from clear, and it is alleged that trust documents are drawn up by the Commission without sufficient community consultation. Nor does consulting with communities necessarily follow democratic principles, especially when tensions and conflict are present.
In which ways do ‘community trusts’ differ from normal trusts? What are the norms governing the establishment of community trusts, and who decides how they will be constituted?
Many trusts are held by tribal chiefs; since colonialism and apartheid replaced grassroots accountability of traditional leaders with top-down, bureaucratic control, what procedures are stipulated in legally binding trust documents to ensure full democratic representation, including of women?
Are provisions for changing trustees an integral part of the legal documents?

Bearing in mind that the vast majority of persons dispossessed of land would probably not have had any strong affiliation to tribes headed by chiefs (but have since under gone a process of ‘re-tribalisation’) the transfer of land to trusts headed by these functionaries gives cause for great concern. Amakhosi hold land on behalf of their constituencies by virtue of their mandate from the government of the country, which is the owner of the tribal land. However, it now seems that State land is being incorporated into private trusts. For example, the claim made by the Makhabela tribe of Kranskop includes large tracts of State land.
Will this land, like the farm land purchased, be transferred to a private trust in the same way as State (Ingonyama) land purchased from the Macambini tribal authority was vested in the Bhekamafa Trust?
Why is land given to chiefs to hold on behalf of ‘communities’ not being retained by the government? Why is it being placed in private trusts? Will land held in private trusts fall outside of the government’s land reform policy?

Potential consequences of unlawful settlement of claims
Reports on recent land summits reinforce simplistic perceptions of armies of poor people dispossessed by iniquitous apartheid legislation being denied justice because of obstructionism on the part of land owners. The reality, however, is far more complex. It is highly probable that some land owners are making handsome profits from restitution, and investigation is called for. However, others are losers, especially those small scale farmers of colour in areas such as Nonoti and Mangete, where farms have been overrun by illegal invaders posing as claimants, some of whom engage in all manner of intimidatory tactics, including setting fire to land they wish to take over. It is also clear that allegations of obstructionism are not unconnected with the grossly unprofessional and totally unacceptable manner in which land claims in KZN are being dealt with. If it transpires that claims are not being properly validated, and that deserving individual claimants are losing out to ‘community’ entrepreneurs who have pushed themselves to the front of the claimant queue, the consequences for provincial stability are potentially very serious.

If the land is being awarded to, and controlled by, the wrong people, a large number of people by-passed by the restitution process will have a legitimate grievance against the government. Some may well resort to illegal activities such as land invasions (to which the SAPS in the province are failing to respond as per instructions from their Head Office). With the availability of land for redistribution at a premium, it may well be that valuable State land resources, which could be set aside for legitimate claimants, are being squandered by being awarded for apparently spurious claims made by tribal chiefs - such as the Ingonyama Trust land in Kranskop, or the farms near Eshowe.(The known problems of lack of adequate support services for persons acquiring valuable land, and the ecological implications of poor land management, are beyond the scope of this report).

A trend towards the privatisation of land in the kwaZulu Bantustan, which culminated in the Ingonyama Trust legislation of 1994, had been apparent from the late 1980s, during which period the apartheid government had also been working to transfer large areas of land to the erstwhile Bantustan - even while negotiating with the liberation movements in the early 1990s. It is truly ironic that just as the democratic government of the country is finally to regain its rightful control of Ingonyama Trust land, large portions of it are being re-privatised, into trusts which appear to empower select individuals at the expense of the broader communities.
Does a long-standing privatisation agenda aimed at keeping land out of the hands of the legitimate government still exist?

Why the government is allowing this situation to continue is unclear, since it is not in its interests to do so – particularly given the excuse that unjust land restitution provides for protest action. While it might be argued that dispensing land willy-nilly is a means of buying political support, it seems unlikely since many of the beneficiaries of the apparently irregular allocation of land are known to be implacable opponents of the present government.

The only conclusion which can be drawn is that any effective controls over the functioning of the regional office of the Land Claims Commission are lacking on the part of the central government – a state of affairs for which the Chief Land Claims Commissioner, the Director-General and, ultimately, the Minister, should surely be held accountable.
Why, for the past four years, have important questions asked by the KZN Monitor about the functioning of the office of the Regional Land Claims Commissioner been met with a deafening silence?

The present situation must not be allowed to continue. Urgent attention should be given to whether community trusts are being used to empower communities or whether they are simply tools to ensure that power remains in the hands of a select few. KwaZulu-Natal Monitor also calls for a moratorium on any further transfers of land in this province until such time as a completely independent body has investigated the myriad of complaints from claimants and land owners alike, and has performed an audit of all settled land claims in the province. If the laws applying to land restitution have been breached, and any fraudulent settlement is found to have occurred, immediate prosecution must follow.

Some key references

• Association for Rural Advancement (AFRA) Reports and Factsheets (various) 1980s
• Platzky L and C Walker for the Surplus People Project 1985 The Surplus People Johannesburg
• Ravan Press
• http://www.sharedinterest.org/htm/tigf.htm
• http://www.sharedinterest.org/htm/rural/htm
• http://www.lawlibrary.co.za/notice/wordsanddeeds/2005/2005_02_02_ruralperdistrict
• http://www.internationalpropertysolutions.com/Articles/RichardsBayClaim.asp