Nkandla Watch

Nkandla not Zuma’s property, should he pay?

Does it belong to Zuma?
Nkandla two.jpg

The Nkandla residence, where President Jacob Zuma and his family live, does not belong to them, does not render bond security to them and is rented on their behalf by the state.

This legal background raises a number of intriguing questions, which are neither easy nor simple to answer. They include:

  • Did the Zuma family really ultimately, financially speaking, benefit from the upgrades to the property, which turned it into the second most valuable residence in the country;
  • Why should the Zuma family, and the president specifically, be held liable for the repayment of the upgrades cost to a property on which they cannot even register a bond to finance said cost;
  • Why did Mr Zuma never offer the argument of non-ownership and -benefit (except maybe cheap rental for luxurious abodes) to meet the demands that he should shoulder responsibility for payment of the improvements; and
  • Why does the real owner of the property not register a bond on it to reimburse the taxpayer and then charge a reasonable rent on the upgraded property?

Murky cocktail 

When one starts pondering these questions and delve into the background, it soon becomes clear that the Nkandla situation is not a straightforward one, but represents a murky cocktail of historical, cultural and deeply emotional elements. It also speaks of wider challenges to the diverse post-apartheid society and its economy – one of which is the tenuous situation of between 17 and 20 million South Africans living on tribal land.

On the latter, Mr Zuma has to admit an element of mea culpa for his present situation. He was a member of government in 2003 when the Communal Land Rights Act (CLRA) was adopted, which transferred ownership of tribal land to traditional leaders and tribal councils.

It is under this dispensation that ownership of the Nkandla area, where the Zuma residence is situated, was transferred to the Ingonyama Trust, headed by King Goodwill Zwelithini. The Trust manages about 32% of all land in KwaZulu-Natal on behalf of the state for the benefit of its occupants.

The Ingonyama Trust itself came into being by an act of the KwaZulu-Natal Legislative Assembly in April 1994.

On an emotional level, however, Mr Zuma probably never had any doubt in his mind about the ownership of his family of their part of the Nkandla area. After all, they have occupied it since 1879 as a reward for collaboration with the British colonial forces to defeat the armies of Zulu king Cetshwayo.

Ironically, in March of this year Mr Zuma, when addressing a session of the National House of Traditional Leaders, in reference to colonial time, “pondered the question of whether the departure date as basis for the process of land restitution, reform and redistribution should not be moved back to some – unmentioned – date in the 19th century”.

To add insult to injury, in 2013 the Ingonyama Trust in the Constitutional Court, putting the case for not paying property tax to local authorities, argued that the trust “is the equivalent of the British King under colonial rule”.

Government failed people

In June 2014 Aninka Claassens of the Rural Women’s Action Research Programme at the Centre for Law and Society at the University of Cape Town (UCT) said the government has “given up” on the difficult task of trying to infuse South African property law with indigenous African values. 

“It has rejected the post-94 rights-based approach (of the Constitution) to land reform in favour of outsourcing power and control over 17 million South Africans to traditional leaders in a context where power relations are notoriously unequal and the content of customary law deeply disputed,” she said.

In February last year the UCT’s Centre for Law and Society in a research paper also said government thus far has “failed to comply with the Constitution’s instruction to enact the legislation required by section 25 (9) for the 17 million South Africans living in the former Bantustans”.

In another paper by the University of the Western Cape’s Institute for Poverty, Land and Agrarian Studies (PLAAS) warned that the Communal Land Tenure Policy (CLTR) “places rural communities in an impossible situation. Do they accept subjection or do they resist against class forces with far dominant resource capacities? Do they continue residing in rural areas and accept insecure land tenure or do they migrate to urban poverty traps?”

Zuma in poverty trap?

Judged by what members of the Zuma family have been saying lately, since it became clear that they will have to foot the bill for improvements on property that does not even belong to them, they are heading for a poverty trap of their own, if not already there.

And it would seem that the option of selling part of Nkandla to pay for some of the upgrade costs to their ancestral home, as one renowned economist suggested, is also not open to them. It is simply not theirs to sell because the Zuma government has failed to solve the problem of ownership on tribal land.

Hopefully that problem will be solved now on an urgent basis. It could also go a long way to getting some new energy and capital injected into the economy, together with all the other socio-economic positives that go with it.

by Piet Coetzer

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