Anthea-lee September-Van Huffel

THE recent fallout between the Zulu king, Misuzulu, and his now late traditional prime minister, Mangosuthu Buthelezi, over the running of the Ingonyama Trust highlights a pervasive problem in South Africa: insecure land tenure in rural areas.

The Ingonyama Trust administers about a third of the land in KwaZulu-Natal province. Buthelezi insinuated that the king – or those around him – wanted to corruptly sell the land for profit. He also questioned the competence of the board chairperson appointed by the king. The king denied the charge, saying the board would “never allow the sale of the land”.

But the legally questionable practices of the Ingonyama Trust, such as charging people rent on land they own communally, and its unilateral decision-making about communally owned land, reflect the insecurity of land tenure for millions of rural South Africans.

Land disputes arise when the principles at the core of customary law are breached. The breach can be by the state or by the representatives appointed by the communities to manage or administer the land on their behalf and for their collective benefit.

Constitutional land reform measures are intended to provide security of land tenure to all land holders equally. All laws, including customary law, are subject to the constitution. Any law, rule or conduct found to be inconsistent with constitutional principles of human dignity, equality and freedom is invalid.

In areas run by traditional leaders, land is owned collectively, in line with customary law. South African law recognises the application of living customary law, in accordance with the constitution.

Customary communal land tenure comes with inherent rights for land holders. They include collective ownership rights, equal benefit from the land and natural resources, and decision-making authority.

My research areas include issues of rural land tenure, custodianship and property law.

In my view, the Ingonyama Trust has misconstrued customary communal land tenure. Its dual application of both trust law and traditional customary law causes confusion. It’s not clear what the property rights of communal land holders are. Applying both sets of laws also blurs the limitations on the powers of the trust and traditional representatives.

Such misconstructions of customary law are often intertwined with corrupt practices and power mongering. These misconstructions preserve certain individuals’ powers and interests at the expense of the greater community. This occurs when understandings of individual private property ownership are applied to customary communal land tenure in a way that diminishes the need for communal consent and consultation.

Living customary law – which is developed over time by the community, is specific to that community, and occurs through collective practice and decision-making in accordance with shared values and rules – is then supplanted by misapplications. These misconstructions can originate from various sources, such as statutory regulations, distorted common law beliefs, and patriarchal traditional leadership practices that masquerade as customary law.

The result is insecure tenure for rural land occupants. The Ingonyama Trust epitomises these problems.

How customary communal land tenure works

Customary communal land tenure is found in communities that have a genealogical or ancestral connection to that land. Some are beneficiaries of the government’s land restitution programme. They collectively hold all property rights to their land.

Living customary law gives them, collectively, the power to hold individual community members and leaders or representatives accountable for breaches of their fiduciary duties to the community.

Often a statutory entity is created, such as a trust or association, that regulates the way the land is managed. For example, some communities in the land restitution programme are members of an association in terms of the Communal Property Associations Act.

Such communities elect representatives who manage the administration of the association and have fiduciary responsibilities in terms of the act. Associations are governed by their constitution and the Communal Property Associations Act. Similarly, the Ingonyama Trust is governed by traditional customary law and the statutory trust framework.

Both forms of communal land holding are distinguishable from private property ownership, which confers registered ownership rights on individuals. Private ownership is primarily governed by the common law. It gives the land owner autonomous decision-making powers with few limitations. The owner has extensive unilateral decision-making authority in respect of their privately owned land. They can, for example, transfer ownership, dispose of, or encumber their property (without consultation).

The Ingonyama Trust and its tenure challenges

The Ingonyama Trust was established in 1994 by the then KwaZulu Government to administer all land it held. It is a corporate entity and administers 2.8 million hectares of the land in KwaZulu-Natal. The territory was once administered by the erstwhile KwaZulu homeland. This followed a deal hammered out earlier to entice Buthelezi and his Inkatha Freedom Party to take part in the elections that ended apartheid. The province is a stronghold of the party.

The Zulu monarch is the sole trustee, even though the land is owned by the Zulu people. The king represents the people and the land must be managed for their benefit and welfare.

The trust is plagued with disputes for not involving the community in its business transactions. There has been little evidence of collective benefit for the community.

The disputes expose unequal profit from trust assets, privileging a select few, instead of all the communal land holders equally. To sum up crisply: the trust has treated communal land like privately owned land.

In 2022, the Supreme Court of Appeal directed the Ingonyama Trust to cease letting trust land to the land beneficiaries to whom the land belonged. It was ordered to repay the rent.

In 2017, a panel appointed by parliament to review post-apartheid legislation recommended that the trust be amended or repealed.

However, such criticism is perceived by some as a slight against the king and is met with social and political resistance. The Congress of Traditional Leaders of South Africa contends that the Ingonyama Trust cannot be repealed, amended or dissolved without the king’s approval – in accordance with customary law.

Traditional rule versus democracy

The misapplication of tenure under the Ingonyama Trust exemplifies structural conflict between trust tenure and customary traditional rule.

The trust applies a form of traditional despotic rule that can be at odds with democratic principles enshrined in the constitution. Under traditional despotic rule or authoritarian rule, customary law is interpreted in a way that naturally limits the need for community consultation, consent and participation in all decision-making related to the land from the “subjects”.

September-Van Huffel is a Lecturer, University of the Free State.

The story was first published in The Conversation.