Bad governance at the heart of Ingonyama Trust issues

Traditional leadership and land expropriation are two very thorny issues in their own right but when the two became conflated it was bound to ruffle some feathers.

The issue came to the fore after the recent comments made by King Goodwill Zwelithini regarding the Ingonyama Trust. But are these issues really related?

Expropriation is when the state acquires private property for the public good. The owner does not have a choice in the matter but is usually compensated for the loss. Compensation is currently up for debate but the more important question to ask is whether the trust land can be expropriated in the first place? Is the Ingonyama land private property in the true sense of the term?

Trusts are often used to manage property when beneficiaries are unable to do it properly themselves. The classical example is when parents die and leave a house to their children but the children are too young to own and manage it. Instead, the house is placed in a trust and managed by a trustee until the children are old enough to manage it themselves.

The Ingonyama Trust is different because it is a trust in name only.

Before democracy, the former homeland areas were formally owned by the South African Development Trust (SADT), which was an apartheid-era state institution.

When the SADT Act was repealed in the early 1990s, most of the land was transferred into the name of the department of land affairs, with a special dispensation being created for KwaZulu-Natal through the Ingonyama Trust Act. This was done to “persuade” Zwelithini and Mangosuthu Buthelezi’s Inkatha to participate in the 1994 elections.

The trust is an institution created by a statute and performs a public function, so it is therefore most likely an organ of state falling under the Constitution. For the state to expropriate land from an organ of the state would be like moving change from its one pocket and into another — there would simply be no point to it.

The real issue is the way in which the land is governed by the Ingonyama Trust on behalf of the people who occupy it. Although the land is formally owned by an organ of state, it is managed in terms of customary law on behalf of the occupants, whose rights are also legally protected. Customary law, as is all law in South Africa, must be aligned to the Constitution and the fundamental rights contained therein, which includes the rights to legally secure tenure and to just administrative action.

The real issues at play, and the recommendations made by the high level panel chaired by Kgalema Motlanthe, have little to do with ownership and expropriation but everything to do with transparency and accountability in the governance of communal land, such as that owned by the Ingonyama Trust.

Theo Boshoff is the head of legal intelligence and research at the Agricultural Business Chamber

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Related stories

Does the Expropriation Bill muddy the land question even further?

Land ownership and its equitable distribution has floundered. Changes to a section of the constitution and the expropriation act are now before parliament, but do they offer any solution?

Finance probe into the Ingonyama Trust Board goes ahead

The threat of legal action from ITB chairperson Jerome Ngwenya fails to halt forensic audit ordered by the land reform minister

Ingonyama Trust hit with forensic audit

ITB chair says land reform minister has no authority over him and only his king can tell him what to do

Illegal land sales head to court

Two state departments have done nothing about the sale of people’s land in Umnini by an inkosi –and R2.5-million has still not been accounted for

Ingonyama Trust Board moves to retrench staff

More than 50 workers at the Ingonyama Trust Board have been issued section 189 notices

Reinstated Ingonyama Trust managers hit with retrenchment notices

The effect of Covid-19 and the land reform department’s freeze of R23-million because the ITB didn’t comply with budget submissions are cited as some of the reasons for the staff cuts

Subscribers only

The shame of 40 000 missing education certificates

Graduates are being left in the lurch by a higher education department that is simply unable to deliver the crucial certificates proving their qualifications - in some cases dating back to 1992

The living nightmare of environmental activists who protest mine expansion

Last week Fikile Ntshangase was gunned down as activists fight mining company Tendele’s expansions. Community members tell the M&G about the ‘kill lists’ and the dread they live with every day

More top stories

The high road is in harm reduction

While the restriction of movement curtailed the health services for people who use drugs in some parts of the world, it propelled other countries into finding innovative ways to continue services, a new report reveals

Khaya Sithole: Tsakani Maluleke’s example – and challenge

Shattering the glass ceiling is not enough, the new auditor general must make ‘live’ audits the norm here in SA

State’s wage freeze sparks apoplexy

Public sector unions have cried foul over the government’s plan to freeze wages for three years and have vowed to fight back.

‘Veteran’s stripes’ vs ‘kind and fair’

This weekend the Democratic Alliance will choose between two starkly different visions for its future

press releases

Loading latest Press Releases…

The best local and international journalism

handpicked and in your inbox every weekday