SCA rules against fresh hearing in Ingonyama Trust lease dispute.

The Supreme Court of Appeal (SCA) has refused to grant the Ingonyama Trust leave to appeal in its bid to have the far-reaching ruling - that it cannot charge rent to those who live on trust land - reheard by other judges.

The high court ruling handed down in June 2021 by judges Isaac Madondo, Jerome Mnguni and Peter Olsen, that the trust’s policy of forcing people to sign leases was unlawful and unconstitutional, was hailed as a victory for more than five million people in KwaZulu-Natal living on trust land.

The court ruled that all the leases were invalid and ordered the trust to refund those who had paid, which was believed at the time to run into millions of rand.

The court further found that the minister of rural development and land reform had breached her duty to respect, protect and promote the constitutional right to property of trust land residents.

Until an alternative system of recording customary and informal rights was implemented, the minister was ordered to reinstate the system of “permission to occupy” and report back to the court every three months on progress.

The trust submitted an application to the SCA for leave to appeal the ruling instead of dealing with the merits of the dispute; it wanted the appeal court to rule that two of the three judges — Madondo and Mnguni (who has subsequently died) —  should have been disqualified from hearing the case.

This was because they either lived on trust land, had a “family home” on trust land and, in the case of Madondo, had “close ties” to the late Zulu King Goodwill Zwelithini.

The trust sought an order from the SCA that the judgment be declared a “nullity” and that the whole matter be heard afresh by other judges, possibly from outside KwaZulu-Natal.

In an order handed down this week, SCA judges Christiaan van der Merwe and Anna Kgoele dismissed the application with costs “on the grounds that there is no reasonable prospect of success in an appeal and there is no other compelling reason an appeal should be heard”.

The initial application was brought by the Council for the Advancement of the SA Constitution (Casac), the Rural Women’s Movement and several individuals — mothers, factory workers, pensioners, farmers and fathers — personally affected by the lease policy.

While judges Madondo and Olsen had granted the trust leave to appeal to the SCA, they had specifically disallowed a bid to introduce “new evidence” — the question of the recusal or automatic disqualification of Madondo and Mnguni, which had not been raised during the initial hearing.

Ingonyama board chairperson Jerome Ngwenya, however, persisted with this in the appeal application.

He said: “They should not have adjudicated in a dispute which had personal implications for their constitutional rights. The dispute involves determining whether the introduction of lease tenure amounts to a deprivation of the customary right of ownership under Zulu law.

“The answer to that question would have real legal impact on the judges and their families.”

Casac opposed the application. Executive director Lawson Naidoo said Ngwenya had not put up any facts to support his claims that the judges were biased.

He said judges often had to hear and decide cases in which they are “incidentally a member of a large class which is affected by the case” — such as challenges to tax, rates and service charges.

The trust can make an application for “reconsideration” of the ruling to SCA president Mandisa Maya or it may attempt to appeal further to the Constitutional Court.

The merits of the judgment -- and the legality of the leases or otherwise -- will still have to be argued by the parties before the SCA once all papers have been filed.