A legal battle for the site of the Nelspruit 2010 World Cup stadium will
unfold in the Land Claims Court after a family lodged an application saying
the land is rightfully theirs.
The Nkosi family will ask the court to review a 2003 decision by then
minister of agriculture and land affairs Thoko Didiza to award 6 000ha
of land, which includes the site of the Mbombela Stadium, to the Mdluli
clan.
"We strongly believe that our client has a strong claim," said
Bulelwa Khemese, of Werksmans Attorneys, representing the Nkosi family.
The Mail & Guardian reported on February 22 that finances, tenders
and contracts relating to the construction of the stadium have been the
subject of an investigation by attorneys Nkosi Ngobe because of alleged
irregularities.
The 2010 stadium is being built on land previously owned by the Mdluli
clan. Like all Mdluli land, its ownership was overseen by a body known
as the Matsafeni Trust. The site made headlines after it emerged that
Terry Mdluli, a Matsafeni trustee, had donated the land to the Mbombela
municipality for a mere R1 in return for jobs for the beneficiaries of
the trust.
Terry Mdluli has since fallen out with the trust's beneficiaries over
his management. A group of 750 beneficiaries is bringing a second round
of legal action to have him and the other trustees dismissed after a High
Court judge threw out an earlier application on procedural grounds. The
Matsafeni Trust is sitting on R26-million, according to lawyer Richard
Spoor, who is representing the beneficiaries.
A local newspaper has also revealed that Terry Mdluli owns a company with
two Mbombela municipality officials who were responsible for securing
the site of the stadium -- 2010 coordinator Differ Mogale and mayor Justice
Nsibande. The municipality is now under administration by the Mpumalanga
provincial government.
In 2003, Didiza awarded the land to Phineas Mdluli, a family patriarch
and chief of the Mdlulis, and the rest of his clan members.
In the settlement, hailed at the time as a shining example of the land
redistribution programme, the government paid R63-million to HL Hall and
Sons under the Land Restitution Act. The Act requires, however, that land
claims were lodged by December 31 1998.
The Nkosis trace their ownership to two descendants of the 19th-century
Swazi King Sobhuza, Princes Ncabeni and Somcuba. They argue that Somcuba's
descendant and their "forefather", Phillip Sphezi Nkosi, later
settled on the land, which, they say, had no other inhabitants at the
time. It was then known as Tomango.
The family gave a piece of land to one Hugh Lanion Hall, who went on to
form the company HL Hall and Sons and assumed ownership of the land at
the advent of apartheid, the Nkosis claim.
The Nkosis allege in their affidavit that the Mdlulis occupied the land
only later as "farmworkers". The Nkosis were stripped of their
property rights after a feud in the Hall family led to them being thrown
off the land, while the Mdlulis stayed.
Attempts by the M&G to get comment from Phineas Mdluli failed. Documentation
supporting the application by the Nkosis shows that Rose Ntongolozane
Khoza (nee Nkosi) had launched an application on behalf of the Nkosi family
on December 31 1998. The Nkosis also allege that they have not been able
to trace the land-claim form submitted by the Mdlulis.
Attempts to use the Access to Information Act to obtain the Mdluli claim
has thus far proven unsuccessful, says the Nkosi affidavit.
"It later transpired that notice of this claim [the Mdluli claim]
was published in the Government Gazette of 23 March 2002 under notice
717 of 2001," says the affidavit.
The Gazette notice mentions that the land was originally known as "Tomango
farm". The Nkosis' legal counsel adds that this "should have
alerted" land commission officials that a similar claim to the one
made by the Mdlulis had already been launched.
The commission is legally required to hear all competing claims before
a land award can be made.
The Nkosis will ask the court to set aside the agreement reached between
the minister and the Matsafeni Trust. They will also ask that the disputed
land and all benefits accrued from it so far be held in trust until the
claims have been resolved.
A department of agriculture spokesperson, Godfrey Mdluli, said he was
not aware of the legal action and referred all queries to the regional
land claims commissioner, Peter Mahangwani.
Mahangwani states that he is aware of the competing claims but says that
the Mdluli clan has declined roundtable mediation on the issue.
The cast
• The Matsafeni Trust was formed in 2003 as a vehicle for the
ownership of the land under dispute. The Mdlulis are the trustees, with
Terry Mdluli serving as chairperson and the majority of the land occupiers
as beneficiaries.
• Terry Mdluli is accused of mismanaging the trust.
• The trust is said to have earned about R26-million from a
lease agreement with HL Hall and Sons.
• The beneficiaries say they have not received a cent from the
trust and the trustees have not convened a general meeting as required
by the deed.
• The beneficiaries, represented by Richard Spoor, have brought
a court action in the Pretoria High Court to have the trustees dismissed.
• The Nkosis laid a prior claim to the land under dispute in
1998.
• Minister of agriculture Thoko Didiza awarded the land to the
Mdlulis.
The timeline
• December 31 1998: Rose Ntongolozane Khoza launches a claim
on behalf of the Nkosi family.
• March 23 2002: The Mdlulis lodge a claim for the land.
• 2003: Then minister of agriculture and land affairs Thoko
Didiza pays R63-million to HL Hall and Sons and places the land in trust
for the Mdluli clan and other occupiers of the land. The Matsafeni Trust
is formed.
• May 2003: The Mdlulis are awarded the land.
• September 25 2003: The Nkosis write a letter to the regional
land claims commission stating their concern about the award to the Mdlulis.
They get no response.
• August 16 2006: Nkosi attorneys lodge an application to obtain
the original claim form of the Mdluli clan. The land claims office does
not respond.
• 2007: The Nkosis discover that the Matsafeni Trust is transferring
land to the municipality for the construction of the Mbombela Stadium.
• April 2 2007: The Nkosis visit the land commission office
in search of their claim.
• May 28 2007: Werksmans Attorneys, new lawyers for the Nkosi
family, take up the case on behalf of the Nkosis.
The facts
In the article titled "Another 2010 strike", the Mail &
Guardian stated that Herman van Staden Land Surveyors had not been paid
for work it did on the Mbombela Stadium. This is incorrect as the company
has been paid in full.
,
10 March 2008
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