The limits of the power of traditional leaders to allocate land

In these judgments, the courts were clear that traditional leaders do not have the authority to allocate or develop land that is owned by a municipality without the express approval of the municipality. In keeping with the phrase "fear of missing out", a traditional leader in Mpumalanga decided to take the baton and continue with the unlawful practice of allocating municipal land without the consent or permission of the municipality. This article analyses the implications of a recent judgment of the Mpumalanga High Court which dealt with this issue. The article argues that, as with any power in a constitutional democracy, there are limits to the power to allocate land by traditional leaders in democratic South Africa. The article advises rural communities to heed the call of the courts and be on the lookout for land allocation made by unscrupulous traditional leaders. It is in the interests of members of the community to assess whether the land they have been allocated by a traditional leader is not owned by the municipality before purchasing it. Otherwise, they may fall prey to this widespread and unlawful practice.

Background

In this case, the Thembisile Hani Municipality approached the court seeking an order evicting the respondents (traditional leader and others) from occupying various portions of farms it owned. The Municipality had as far as 2014, earmarked the land for housing development and the municipal council had already entered into agreements with several property developers. According to the municipality, the development of these properties was aimed at providing much-needed human settlements for the local communities. In a surprising move, the traditional leader, Mr Dambuza Juda Mahlangu quietly and without notice moved into the area and then started demarcating and allocating stands to (unsuspecting) people to erect residential dwellings.  Mr Mahlangu declared that he had the right to allocate the residence stands since he was the recognised traditional leader of the area.

Arguments

While this matter was brought as an eviction application, the crux of the dispute related to the occupation by the traditional leader and the people he allocated land that was identified for housing development by the Municipality. In his defence, the respondent asserted that he occupied the land after it became clear to him that the area they initially lived in, had become insufficient for the residents. The traditional leader further stated that as leaders, he and Mr Joyina Johannes Jiyane (the second respondent) approached the Municipality with a request for additional land for residential purposes, which the Municipality undertook to consider. The traditional leader further stated that after not hearing from the Municipality, they decided to occupy the land and demarcate it for residential use. Subsequently, the traditional leader and other occupiers were requested by the Municipality to stop the occupation. However, they continued to occupy the land, arguing that the Municipality did not consider their request for additional land favourably. In response, the Municipality issued several written notices, namely on 24 June 2019, 24 November 2021, 29 December 2021 and 21 June 2022, informing the respondents that they were occupying the land unlawfully. More importantly, the said notices also directed them to vacate the land within 24 hours. With these notices being ignored, the Municipality eventually obtained an order on 8 February 2022 interdicting the traditional leader and second respondent from unlawfully demarcating and allocating stands or erecting structures on municipal land. The papers submitted to the court by the Municipality showed that it persisted with the court application from the time the land was occupied up to date. The respondents, on the other hand, admittedly continued to occupy and demarcate the land despite the court order and notices referred to above. The main issue which the court had to determine was whether the traditional leader had the power to demarcate and allocate stands on municipal land. The court found that the land belonged to the Municipality. The court made this finding on the basis that the traditional leader confirmed that when he and others realised that they needed more land, they approached the Municipality with a request for more land. If, so the court reasoned, they indeed owned the land as contended, it would not have been necessary for them to make such a request for the same land from the Municipality.

Court’s decision

Based on the traditional leader’s submissions, the Court found that the Municipality’s ownership of the land cannot be disputed. Accordingly, the Court held that the traditional leader’s claim of ownership of the land should be dismissed. In demonstrating its displeasure with the conduct of the traditional leader and his subjects who resisted the eviction application of the Municipality, the Court imposed a costs order on them.

Commentary

The illegal allocation of municipal land by unscrupulous traditional leaders is a pervasive practice in many rural areas. It is a practice which not only frustrates the implementation of the service delivery plans of the municipalities but also delays the provision of much-needed human settlements, as discussed elsewhere in this Issue. The courts have been alerted to this unlawful practice and have shown the appetite to stop this practice by among other ways imposing cost orders. The imposition of personal costs orders however appears to not have deterred unscrupulous traditional leaders from mobilising communities to purchase stands under the pretext that they own the land. This judgment suggests that the courts are now moving towards roping in community members or the so-called "subjects" of the traditional leader, who take up occupation of municipal land on the persuasive instruction of a traditional leader, to also bear the costs of the litigation. This is an undesirable consequence which ought to be avoided at all costs.

Rural residents and prospective rural residents can do two things to avoid this. First, they need to determine the ownership of the land before purchasing it. Second, they need to ensure that the land where they seek to erect residential dwellings is zoned or designated for that particular purpose in the land use scheme of the municipality, as stated above. To determine if this is the case would require a visit to the offices of the municipality. Embarking on this trip could be the difference between having your residential dwelling demolished, rendered homeless and/or having to contribute towards litigation costs. The authority to manage land use in rural areas under the jurisdiction of traditional leaders is shared between municipalities and traditional leaders. This means that a municipality and a traditional authority can make land use decisions but the exercise of that authority must be to achieve orderly and responsible developments guided by the integrated development plan and land use scheme of the municipality.

 By Xavia Poswa