PUTTING THE INGONYAMA TRUST ACT IN PERSPECTIVE

‘The relocation and redistribution of land process took a staggering blow with the unexpected and secretive passing of the KwaZulu INgonyama Trust Act which was passed by the KwaZulu Legislative Assembly and assented to by President de Klerk on 25 April 1994……….’
Cohen, T in Human Rights Yearbook 1995 (1996:144)

Amidst threats of violence, a political storm is brewing following an announcement by the central government of its intention to amend or do away with the Ingonyama Trust Act. Denials by the F W de Klerk Foundation and former IFP leader Prince Buthelezi that the legislation was passed secretly are disingenuous. The matter had not been canvassed with the Nationalist Party’s main CODESA negotiator, the ANC. The context was one in which the IFP, in partnership with ultra conservative groupings, was making unrealistic demands about devolution of powers to regions, and, with unprecedented levels of violence, and the party refusing to participate in the elections of 27 April until the eleventh hour, there were fears of an intensified civil war in the region. Furthermore, since 1992 there had been reports that the then government was secretly planning to transfer large areas of land to homeland governments, despite agreements reached at CODESA, and legislation passed in 1993 had given President de Klerk what lawyers had described as ‘extraordinary powers’ to bypass parliament in matters pertaining to the self-governing homelands.

The recent proposals are made in the interests of promoting the land rights of rural residents, so it is not clear why they should be pose a threat, save to Board members and staff benefitting financially from the income of the Trust. The great respect and prestige enjoyed by King Zwelithini has nothing to do with the existence of the Trust (which is widely resented by his subjects). The Act itself appears clearly unconstitutional since it discriminates against black people living in KZN as opposed to those living in other provinces where such Trusts do not exist. Nor is there any good reason why only one of the various kings in South Africa should be the sole trustee of a Land Trust. Historically, this land was not ‘owned’ in the modern commercial sense by traditional leaders or kings, for relationships to land were of a different order in the pre-colonial era. The Trust’s claim to nominal ownership of the land through Zulu customary law is seriously flawed.

The Trust has, with impunity, breached the provisions of its governing Act, which stipulates that it must be administered for the benefit, material welfare and well being of the areas it controls. In 1991 rural residents in the far north of the province near Mbazwane discovered that, unbeknown to them, the Trust had granted a lease to a local traditional leader to operate a private game reserve in partnership with outside business interests. To that end, he fenced the area off and evicted residents from their ancestral homes – and arranged for local police to arrest them if they returned to engage in their subsistence activities. All appeals to the Trust failed and it was only through concerted opposition by the community, and various court actions – including an interdict against the chief – that residents eventually won the right to remain in their homes. The area, like some of the others falling under the Trust, had never been part of the historic Zulu kingdom.

In 2008 the KZN government and a traditional leader reportedly entered into a Memorandum of Understanding with a Dubai-based investor for a massive tourism development in the eMacambini area near Mandeni. The deal fell through, so no lease was issued by the Trust, but it did lease the land to Hulett Tongaat, without consulting with affected community members, including those who had been given the land when they were removed from Mangete in the 1970s. As usual, the consultation had been with the local traditional leader who controlled the community trust set up. This same leader, notorious for terrorising his own subjects and driving them off their land, while orchestrating illegal land invasions and general mayhem in nearby Mangete, was subsequently appointed to the Board of the Trust.

Commonage land, especially in peri-urban Trust areas, is being allocated to outsiders for building purposes, decreasing the land available to long established residents. The rights of these residents are protected in law by the Interim Protection of Informal Land Rights Act (IPILRA). Now the Trust is trying to persuade residents on traditional land to sign leases (allegedly written in English), which would involve paying annual rent for land they already have rights to. If they default on rent they could be evicted.

The Trust has also claimed mining royalties as revenue, compounding problems experienced by communities opposing mining because of the social and environmental damage it does (However, the Trust’s allocation of mining royalties was one of the reasons its most recent audit was a qualified one). In the 2016/2017 period the Trust Board signed a long term lease deal with RBM Richards Bay Minerals) to mine 10 000 hectares in the Mthunzini area, boasting about it empowering communities. Community members feel otherwise : They complain of polluted water, cracked houses, and health problems.

Despite the excessive cost to taxpayers of rural government, with its top down provincial, municipal and traditional structures, there is little in the way of true development, because consultation and input from residents is generally lacking. The Trust is part of this broader problem, and its existence serves no purpose whatsoever in alleviating the plight of the poorest of the poor.
Hopefully sanity will prevail and the Trust will enter into discussions with the government about the way forward. Any talk of war, regardless of where it emanates from, is to be condemned. Public marching with traditional weapons is illegal, and if defenders of the Trust take to the streets armed SAPS management and politicians will be held to account if the law does not take its course.