COHRE Letter to S’bu Ndebele on eMacambini

16 January 2009

Mr Sibusiso Ndebele
KwaZulu-Natal Premier
Premier’s Office
Provincial Government of KwaZulu-Natal
PO Box 412
Pietermaritzburg 3200

Re: Forced eviction of 10 000 families from eMacambini for AmaZulu World

Dear Premier Ndebele,

The Centre on Housing Rights and Evictions (COHRE) is an international human rights non-governmental organisation based in Geneva, Switzerland, with offices throughout the world. COHRE has consultative status with the United Nations and Observer Status with the African Commission on Human and Peoples’ Rights. COHRE works to promote and protect the right to adequate housing for everyone, everywhere, including preventing or remedying forced evictions.

COHRE is deeply concerned about the threatened forced eviction of up to 10 000 families of the Macambini community from their communal land in rural KwaZulu-Natal, to make way for AmaZulu World, a multi-billion Rand project proposed by Dubai-based property development group Ruwaad Holdings. The Provincial Government of KwaZulu-Natal and King Goodwill Zwelithini (trustee of the Ingonyama Trust Board that administers the Macambini communal land) have endorsed this project. In May 2008, the KwaZulu-Natal Premier signed a memorandum of understanding with Ruwaad Holdings, and in October 2008, attended the Dubai Cityscape 2008 real estate exhibition together with King Goodwill Zwelithini for the official unveiling of the project.

COHRE has learned that the proposed AmaZulu World entertainment and mixed-use development will include an internationally branded theme park, hotels, shopping malls, residential complexes, golf courses and a giant statue of King Shaka, and is boasted as being the largest construction project ever to be undertaken in Africa. While plans to expropriate 16 500 hectares of land from the Macambini community appear to be underway, the Province has taken insufficient steps to engage in meaningful consultation with the affected community and obtain their written consent as required by law.

On 26 November 2008, over 5 000 members of the community marched in protest against the project, requesting in their memorandum that the Premier immediately withdraw from the project and respond to their grievances by 3 December. When the Premier failed to respond and acknowledge their grievances, members of the community set up road blockades along the N2 freeway on 4 December, in an attempt to draw attention to their imminent eviction. COHRE is deeply disturbed to hear that members of the South African Police Service (SAPS) responded with systemic violence against what was meant to be peaceful and nonviolent action, designed only to draw attention to the community’s plight. Approximately 30 people, mostly women, were shot with rubber bullets during and after the blockade. One woman remains in critical condition in hospital after being shot in the face at close range by an SAPS officer. Furthermore police officers reportedly went on a rampage attacking even those who were not involved in the road blockade and were in fact inside their homes along the N2 freeway. COHRE is also aware that ten people, including two school-age children, were arrested for ‘public violence’ and allegedly beaten systematically by police while being transported to holding cells. The violent repression by SAPS officers of legitimate protest and the violent attack on community members not involved in the protest are unjustifiable.

According to the eMacambini Anti-Removal Committee, formed in response to the threatened removal, the massive AmaZulu World project will entail the forced relocation of approximately 50 000 people from over 16 500 hectares of their communal land, with those who qualify for housing subsidies receiving government houses in a 500 hectare township near Mandeni. Those who do not qualify will presumably be rendered homeless. More than 300 churches as well as 29 schools and three clinics will also be demolished to make way for the theme park and other ‘attractions’. A large percentage of the Macambini community earn their living from the land or the ocean – growing sugar cane, vegetables and fruit; raising livestock; and fishing. Those residents who work at schools, clinics and at various other community facilities will also lose their jobs and their livelihoods. Reportedly, no plans have been made to economically rehabilitate those affected by the loss of their sources of livelihood. Many within the community have ancestors buried on the land. Demolishing and relocating an entire established community, as planned, would be economically, socially and culturally disastrous for its residents.

The eMacambini communal land is held in trust by the Ingonyama Trust Board, which is a land rights board as outlined in the Communal Land Rights Act No. 11 of 2004 and the KwaZulu-Natal Ingonyama Trust Act No. 3 of 1994. Section 2(b)(2) of the latter amended Act states that “the Trust shall, in a manner not inconsistent with the provisions of this Act, be administered for the benefit, material welfare and social well-being of the members of the tribes and communities…” Furthermore, section 2(e)(5) states that “the Ingonyama shall, as trustee, not encumber, pledge, lease, alienate or otherwise dispose of any of the said land or any interest or real right in the land, unless he has obtained the prior written consent of the traditional authority of the tribe or community authority concerned…” Thus, the communal land on which the Macambini community live and work, held in trust by the Ingonyama Trust Board (with King Goodwill Zwelithini as ‘Ingonyama’ or sole trustee), should be administered for the benefit, material welfare and social well-being of the community, and any decision to dispose of the land requires the written consent of the community authority concerned. These legislative imperatives have not been complied with in regard to the official endorsement of the AmaZulu World project by King Goodwill Zwelithini – an endorsement that has been given without the consent of the community living on the land who now face an uncertain and precarious future if the project goes ahead.

Section 28(1) of the Communal Land Rights Act states that a land rights board “must, in the prescribed manner and in respect of any matter contemplated by or incidental to this Act – (a) advise the Minister and advise and assist a community generally and in particular with regard to matters concerning sustainable land ownership and use, the development of land and the provision of access to land on an equitable basis; (b) liaise with all spheres of government, civil institutions and other institutions; and (c) monitor compliance with the Constitution and this Act” [emphasis added]. Section 25(5) of the Bill of Rights in the Constitution of South Africa requires that “The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.” Furthermore, section 26 of the Bill of Rights states that “(1) everyone has the right to have access to adequate housing; (2) the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right; and (3) no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”

COHRE is deeply concerned that if the AmaZulu World project were to proceed, and 10 000 families forcibly removed from their land, the above constitutional imperatives would be violated.

COHRE would like to point out that the eMacambini Anti-Removal Committee has repeatedly asserted that it is not anti-development, but is opposed to projects that will lead to a violation of their basic human rights. In fact, the Macambini community, through their traditional leader Inkosi Khayelihle Mathaba, had advocated for an alternative development project, which envisages a ‘sports city’ being developed on 500 hectares of the communal land, and would not result in any eviction or relocation. COHRE is disturbed to hear that the KwaZulu-Natal Premier is currently suing Mathaba for defamation over statements he allegedly made during a meeting where the project was discussed. Based on reports by members of the Macambini community, COHRE understands that the action against Mathaba is another attempt by the state to silence dissent.

COHRE respectfully reminds the Government of South Africa that according to Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), as it is interpreted in General Comment No 7 of 1997, for forced evictions or relocations to be considered as lawful, they may only occur in very exceptional circumstances and all feasible alternatives must be explored. If and only if such exceptional circumstances exist and there are no feasible alternatives, can evictions be deemed justified. Regardless of whether the evictions are justified, affected persons must have access to appropriate procedural protection and due process must follow. Although the Government of South Africa is not a party to the ICESCR, they have signed the Covenant and are bound in terms of the Vienna Convention on the Law of Treaties not to act contrary to its object and purpose.

Further, the UN Basic Principles and Guidelines on Development-Based Evictions and Displacement, which address human rights implications of development-linked evictions and related displacement in urban and rural areas, require that States must ensure that evictions only occur in exceptional circumstances, and must give priority to exploring strategies that minimise displacement. Section 32 states that “comprehensive and holistic impact assessments should be carried out prior to the initiation of any project that could result in development-based eviction and displacement, with a view to securing fully the human rights of all potentially affected persons, groups and communities, including their protection against forced evictions. ‘Eviction-impact’ assessment should also include exploration of alternatives and strategies for minimizing harm.” Moreover, section 37 states that urban or rural planning and development processes should involve all those likely to be affected, with section 38 requiring that “all potentially affected groups and persons, including women, indigenous peoples and persons with disabilities, as well as others working on behalf of the affected, have the right to relevant information, full consultation and participation throughout the entire process, and to propose alternatives that authorities should duly consider.”

It is clear that many of the above provisions have not been met, and the fact that the KwaZulu-Natal Premier and Director-General, as well as King Goodwill Zwelithini, have openly endorsed the AmaZulu World project without the community’s support and participation is deeply disturbing. Thus, COHRE urges the Premier to immediately:

* issue a statement announcing the withdrawal of his endorsement of Ruwaad Holdings’ AmaZulu World project and halt all plans to expropriate land held by the Macambini community;
* begin a new process of engagement and meaningful consultation with the Macambini community and all relevant stakeholders around a mutually beneficial development project for the eMacambini area that is compliant with domestic and international human rights law;
* initiate an inquiry into the violence unleashed by members of the SAPS against peaceful protestors on 4 December 2008;
* provide immediate medical relief and compensation for injuries and damage to property caused by members of the SAPS;
* withdraw the defamation lawsuit against Inkosi Khayelihle Mathaba.

We look forward to your response and to an ongoing dialogue with the KwaZulu-Natal Province on the rights of its people to be consulted on issues around the development of their land, and on the myriad problems associated with mass forced relocations. Thank you for your time and consideration.

Sincerely,

Salih Booker
Executive Director

cc.

Dr Kwazi Mbanjwa
KwaZulu-Natal Provincial Director-General

His Majesty Goodwill Zwelithini kaBhekizulu

The Honourable Lindiwe Sisulu
Minster of Housing

The Honourable Lulama Xingwana
Minister of Agriculture and Land Affairs

Raquel Rolnik
UN Special Rapporteur on Adequate Housing