Ekuthuleni: When property rights break down - Politicsweb

Jul 25, 2018
25 July 2018 - The vulnerability of our citizens is exacerbated by politicians and pundits who encourage land invasions by omission and commission and a national assembly that vows to deprive property arbitrarily.

Gabriel Crouse 

In the first part of my review of Untitled, I was forced to draw the conclusion that even if the book’s authors do not think of themselves as race nationalists, that is how they work. This conclusion is forced by their straw-manning Hernando de Soto, overlooking the better part of history, their incredible views of trade and finance, and the two most outlandish views in that book – first, that the law is not a social construct and, second, that South African law is “foreign” to South African citizens.

Even so, I’d perused the text thoroughly and still found myself in doubt. So many big words, after all, can make anyone a little confused. Perhaps they accidentally put their feet in their mouths to muffle the untitled debate by inadvertence? With this question in mind, I followed up on Untitled’s foremost case study, by Dr Donna Hornby, in rural KZN.

Ekuthuleni is a 1,100 hectare farm situated between Melmoth and Eshowe and inhabited by about 400 people, most descendants of early converts to the Lutheran church or their relatives. Once a mission station, the land was bought in 1971 by the apartheid state, which attempted to place it under the administration of the kwaZulu Bantustan. This attempt failed for unclear reasons, but it’s worth noting the possibility that the Ekuthuleni community did not want to become subjects of the Zulu king. After the revolution, the community’s induna, William Mnyandu, tried to get legal title for himself and the people he led.

To be clear, the same state that bought the land in 1971 owned it in 1998 when William filed his application. A second point worth clarifying; as William’s brother Walter Mnyandu put it, William was indeed induna as his father had been before him. But this did not make William subject to the Zulu hierarchy – he and his father were indunas “for the church”.

Around the time William filed for legal recognition of tenure, an unnamed government official approached an NGO called AFRA (Association for Rural Advancement), requesting that it assess “the tenure needs of the Ekuthuleni community”, advise the state as to how it should respond to Mnyandu’s application for formal property recognition, and see if broader lessons could be learned.

AFRA turned to Dr Hornby, who at the time had just completed her master’s at the University of Natal, now UKZN. I haven’t been able to access that thesis, but citations elsewhere suggest it dealt with two problems associated with informal and communal real estate; first, the problem of people wanting to be able to sell their land but not being able to do so because of more powerful neighbours, and, second, the problem of free-riding in communal arrangements particularly with regards to paying up for shared firebreaks. These were sensible concerns of a sort that Hornby would outgrow once she entered the land indaba’s big leagues.

On her first visit to Ekuthuleni, Hornby would have encountered a rural community abundant in potential, but scant in direct opportunity – few employed; entrepreneurs without collateral; a tuckshop run by Mr. Dlamini, a man with political and business ambitions, and a 20 ha blue gum plantation planted by Walter, a second plantation created by his brother William, and cattle grazing the fields. She also would have seen a Lutheran church and not too far off an erudite theologian educated in Massachusetts, Charles Nxumalo. She would have noticed contrasts in lifestyle; Nxumalo’s house, for example, a stately five-bedroom affair crisply finished with a proud awning, as well as the Mnyandus’, a cut above some of the wattle-and-daub rondavels. Hornby described this with a hint of low expectations as “a good place to survive”.

She might have described the leadership she encountered as Lenin would, by the term kulaks, people eager to progress through the peasant economy into bourgeois life, a life of increased comfort and risk. These were the elite of the old mission community.

Hornby would have heard their concerns. Between 1971 and 1998 they had been stranded off the grid of formalized RSA and vulnerable to their neighbors in the Zulu kingdom. They paid rates to a state official until the late 1980s, but then officials stopped showing up to collect. Hornby claims, without a source I could follow up on, that the community then started paying tribute to the chief.

Walter denies this adamantly. If anything, the shoe was on the other foot. Walter had already worked as a pharmaceutical salesman in Durban as a young man. Then, since 1972, the old inkosi had been paying him to be the Ntembeni Tribal Authority’s secretary treasurer because Walter knew how to do the books. Walter also developed a chicken business on the inkosi’s land and to some extent mentored his still innocent son.

As such, they were safe and in good standing with the neighbours they never paid, but their safety might not last and so they wanted legal recognition of their ownership of Ekuthuleni farm.

William had other ideas, too. Each household was due a R15,000 grant to build their own RDP house. Or they could pool the money and develop their fragile agribusinesses, and William liked the idea of getting a fishing rod more than getting one fish. If need be the community would use part of the pooled grant to buy the Ekuthuleni farm. With title, they would feel secure in investing more in the property, otherwise not. The grant and title are intertwined, but Hornby would fail to report the fact in her thirty-page chapter. To date, the grant has still not been released.

I visited a farm near Winterton where this kind of grant had been released and a community of previous labour tenants (in collaboration with a commercial farmer named Peter Stockil) had developed a self-sustained business whose books I looked at. Each household was being paid a dividend of R1000 per month and had been for years. As return on investment, this is impressive and plans were being made to expand the business.

No such luck for the residents of Ekuthuleni. I ask Walter why the grant has not come through, and he shakes his head: “I don’t know”. Separately, I ask Charles why the grant has not come through, and he shakes his head, too: “I don’t know”. Walter’s son, Mzwandile, tells me that when a plan to use the grant for recapitalization was put forward the land department official replied: “That proposal won’t help you”. So they tried another one, and another. Eventually they asked which proposal would help and got no reply.

Again, Dr Hornby does not mention this failed recapitalization grant, but, in the introduction to Untitled, the authors give a vaguely exculpatory gesture towards the state’s (lack of) response. “Officials, overwhelmed by the constant demands of what they perceived to be a difficult community, had stopped answering their phones and were ignoring letters from community leaders urging intervention.”

Running interference on behalf of the powerful against Ekuthuleni leaders is a trick Dr Hornby takes much further. William formed a communal property association under the CPA Act in the hopes of securing tenure and formalizing title. This required a great deal of paperwork, but William was not afraid of that. It also required the drafting of a constitution and the democratic election of the committee’s leadership by Ekuthuleni’s residents. William was not afraid of that either; democracy struck him as humane.

Not so for Dr Hornby. Her list of complaints against what she considers “foreign” to rural KZN includes democracy. Dr Hornby criticizes the CPA Act for enforcing “voting systems and quorums” which she considers contrary to the proper social norms.

More precisely she says the system of democratic representation and hereditary hierarchies of power need “reconciling”. This could mean many things but here is an indication of what Dr Hornby had in mind.

She states that “while many people at Ekuthuleni wanted the tribal authority to continue with its role in local land administration, the Act required this to be carried out by an elected committee”. Elsewhere she drops the word “many” and simply says “the people of Ekuthuleni” in toto “wanted to continue to hlonipha inkosi (respect the chief)”.

The fact is that a legal majority voted for William Mnyandu as a leader who denied that the chief had any jurisdiction over Ekuthuleni as it had been a mission station since time immemorial. Dr Hornby makes no attempt to reconcile that fact with her claims about the will of the people. So I am left to assume that, to her, “reconciling” democracy and “the existing local system” means ignoring anyone whose claim or thought is effected by the historical intervention of a Lutheran church. Lutheran equals just another “foreign” alien invasion against which Dr Hornby surely wants to guard the culturally pure Zulu.

Of course, the majority of people can be wrong at times. Was their claim to independence from the chief legitimate? References made by Ekuthuleni leaders and by Hornby herself to the land register in Pietermaritzburg and the farm’s failure to incorporate into kwaZulu confirm that the chief’s claim was dubious. So too does the fact that Walter showed me the eventual issuance of a title deed for the farm to the CPA and not the chief (or Ingonyama Trust) in 2016. This also goes unmentioned.

Mzwandile told me that there were a few people who supported the chief’s claim, but that these were people the chief had specifically parachuted onto the farm to “mix the minds of the people”. Did it work? No, I’m told, not even close. “You can use your reasonable man’s test” and see what would it would take. Why, asked Mzwandile, would anyone in the community want to hand over title to land they’d been on for generations just at the moment when full security of title was on offer?

As far as the residents that I spoke to were concerned, “respecting the chief” meant respectfully keeping him at bay after the point that the old chief died and his son, Thandazani Zulu, came to power.

Hornby never mentions the name of the young chief either. Just one of those things she didn’t have space for. Or maybe she omitted the name because amaBhungane investigations have cast Thandazani Zulu in a notorious light. He has been employed by Jindal Mining and his acolytes have reportedly intimidated locals who worry about mining practices. An aggressive, memorable line was “mining is going ahead or blood will be shed”.

Anti-mining activist Mbhekiseni Mavuso reports being followed around by hitmen and slurred as “a sellout who worked with white farmers” by inkosi Zulu’s faction. He went into hiding as a result.

But chief Thandazani Zulu would be extremely happy to hear that Hornby affirms his claim to Ekuthuleni. There might be minerals under the land. There are certainly cell-phone towers that provide a small rent to the Ekuthuleni’s common bank account. There are 1,100 ha, room for cattle, and many households from which to extract tribute. The chief would like this to be his own and I wonder if he called Hornby to say thanks for her kind words.

According to the Mnyandus and Charles Nxumalo, in the early 2000s, before AFRA left, the chief began to move in on this farm, and hard. He parachuted in a new induna on the pretext that William no longer called himself “induna” but rather “chairman”. William proudly but perhaps naively wielded his democratic mandate. The chief tried to ban Ekuthuleni members from meeting one another and refused to attend to their complaints. In the winter of 2014, the Ekuthuleni leaders were set to meet the chief but were anonymously tipped off that they would be assassinated. So they reconvened the meeting a few days later under police supervision. There, they were allegedly told that if they did not succumb to inkosi Zulu’s will or flee they would be burned in their homes. They did not believe it until it happened.

Lucky for them, a police escort arrived in vans and nyala’s along with the heavily armed impi. But the police were there to escort the Ekuthuleni leaders out, not to protect them in their own homes. So they were taken away, their goods were looted, their cars and homes burned down. William died in hiding.

This, too, goes unmentioned in Hornby’s 2017 chapter on Ekuthuleni in Untitled. To be fair, she does say that when AFRA left things in 2005 they were no good.

“In this time, a restitution claim by a neighboring induna [chief?] had been made and found invalid; land invasions had taken place; and tensions in the committee had escalated into threats of violence. The friction was the result of a leadership division between traditionalists who supported the chieftaincy and modernists wanting independence.”

Why mention threats of violence but not the violence itself? Well, putting it Dr Hornby’s way leaves the reader to think that the threats went both ways, which the violence certainly did not. It ties in with her other trick, confusingly asserting that the chief did in fact own the land and that “the people” liked it that way. This makes it seem as if the “modernists” were insurrectionists rather than citizens asserting their rights not to be swallowed up by a chief and, beyond him, a king who was not their own.

The modernist vs. traditionalist line Hornby tugs is even more deeply misleading. The ranking “traditionalist”, Mr. Zulu, is paid by the state and by a multinational mining company. His lawyers speak on his behalf. He is backed by a corporate entity, the Ingonyama Trust, with its own website, annual audits and financial reports, media briefings, boards, delegates and a current asset valuation north of R600 million. This is not “modernism” against “traditionalism”. This is David against Goliath.

The other problem with Hornby’s way of framing the problem is that it creates an impression of inevitable clash. You’re either for chieftaincy in principle or kulaks. But surely most Zulu chiefs are benign authoritarians with no intention of burning their way into expanded domains. The Mnyandus certainly think so. That is why, too afraid to go back to their burned husks, they bought a plot of land in another chief’s domain.

I was told Department of Cooperative Governance and Traditional Affairs (Cogta) KZN MEC Nomusa Dube-Ncube promised to pay for the construction of new houses for those burnt down on behalf of the chief. So the Mnyandus paid for a plot for those houses. Cogta has gone quiet though, no money has come through, possibly for political reasons. The Mnyandus worry that since the lease purchase was informal, their land might be resold to someone else if they do not build on it soon. This is a worry but not a forgone conclusion. Surely many chiefs are as good as their word.

Thandazani Zulu appears to be a rogue element that Hornby covers for with omissions, false claims and false equivalencies. The Mnyandus do not see themselves challenging “traditionalism” – they are proudly traditional themselves – but rather as facing a behemoth with friends in high places including government and the police. Walter has opened five cases in this regard, including the theft of his timber, none of which have been followed through. Hornby’s clearest reason to consider this as a clash between traditionalists and modernists is that this is the only way to pretend that Chief Thandazani Zulu is anything more than a robber baron.

Under the present government, 18 million rural citizens live without proper title in former bantustans as well as on half-cocked land reform projects under apartheid and the present government.

Title deeds are social contracts of ownership undersigned by the state. But in themselves they are nothing but parchment barriers that couldn’t hold back a spear let alone an AK-47. What makes a title deed truly significant is the state’s capacity to enforce the contract, keep its promise to defend the owner through the courts and the state’s monopoly on legitimate violence. This is what has not happened in Ekuthuleni. Even when title came, the police did not.

For a state unwilling to defend its citizens violated by unjustified dispute, the best defence is ignorance. As long as title has not been issued, the state is geared up to say: I do not know whose claim is right and whose is wrong so leave me out of it. This, Hornby’s argument implies, is how things should remain, with the kulaks too vulnerable to accumulate anything worth envying. She says before William got clever about filing applications, “Ekuthuleni had a land system that worked most of the time for most people”. Just not anyone interested in accumulating wealth. In the introduction, the authors describe the chief’s alleged violent threats and by implication the violence that followed as a “cost” of requesting documentation.

South African citizens and residents are extremely vulnerable, property rights are poorly defended and zonda, hatred, jealousy and animosity dominate. The vulnerability of our citizens is exacerbated by politicians and pundits who encourage land invasions by omission and commission and a national assembly that vows to deprive property arbitrarily. A title deed is a duty of care, a promise by the state. Rather than keep its promises and build on that trust, race nationalists aim to withhold the state’s promise from one half of the country and break it in the other.

Gabriel Crouse is a writer commissioned by the Institute of Race Relations (IRR), a think tank that promotes political and economic freedom. If you agree with what you have just read then click here or SMS your name to 32823.   



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