THENDO TSHIBUDI
1849591
POLS1008 CASE STUDY ASSIGNMENT: THE INGONYAMA TRUST
INTRODUCTION
This case study aims to develop what the role of the state is in relation to the disputes over land and how the state should intervene in that and provide solution. I will answer this question by using the case over the rights to land known as the Ingonyama Trust, currently taking place. From this case, the role of the state should be limited and focus on solving disputes that serve as a threat to the country’s development. Furthermore, the state does recognise the traditional leaders and their rights over land.
The INgonyama Trust is a result of a land deal that occurred between the National Party and the Inkata Freedom Party. It was established by the government of kwazulu in terms of the Kwazulu Ingonyama Trust Act of 1994, and then became effective on the 24th of April 1994. The Land deal happened towards the end of the apartheid system, before the shift in 1994. It occurred three days before the first democratic elections in South Africa. King Goodwill Zwelithini is the sole trustee of the land, simply put the king hold the land on behalf of the community which live, farm and work on that land. The Trust manages about 2.8 million hectares of land in the province of Kwazulu Natal as outlined in the article of Anderson (2018).
It was established to hold the land that was owned by the Kwazulu government under the name of the Ingonyama (king). Its mandate was to hold such land for “the benefit, material welfare and social well-being of the members of the tribes and communities” (Sithole ; Ngonyama, 2018,p.47) residing on that land. The mandate of the Trust descends from Section 25 and 26 of the Constitution. They aimed at being a little responsible for the betterment or advancement of the quality of life of the traditional community members of the community on the Ingonyama Trust land. They also aimed at uplifting the economy and empowering those community members.
This land deal was expected by the law to consider the land rights of the communities and also individuals falling under the trust as set outlined Section 2 (8) of the Constitution. When the new government came into power following the democratic elections, the original act was re-examined or introspected in an inclusive manner. The introspection led to the final product of a new Act known as the Amendment Act. The Ingonyama Amendment Act (IAT) had to meet the requirements of the Constitution.
The IAT then led to the creation of the Ingonyama Trust Board (ITB), Following, the amendment in the Act of 1997. The Board is under Jerome Ngwenya as the chairperson. The Board is a separate entity from the Trust with a function of administering all the land considered to be falling under the Trust’s jurisdiction. Therefore, the King was relieved when it comes to supervising the land. From 1994 to 2005, the Trust did no pay tax. The Supreme Court of Appeal then took on this position and made the occupant to pay tax from 2005 onwards.
The disagreements and debates over this Trust began when the ANC tasked the High Level Panel (HLP) under the former president Kgalema Motlanthe to look deeply and investigate the Trust, and then create a report based on their findings. This occurred in November 2017. The high Level Panel appointed by the parliament declared the Ingonyama trust Act of 1994 to be inconsistent with the Constitution further recommended that it either be dissolved or amended. The reason being its infringement on the rights and the development of the people expected to benefit from the trust.
This trust is said to be in favour of the ones in authority than the true owners of the land. So, the traditional Leaders benefit more than the people they are serving. Arguments similar to this one are said to have been brought up before. Apparently the King was accused to have neglected his people and manipulated them at the same time. Reports have also been made over the past years regarding the unfair location of land practised by Zwelithini. The High Level Panel has put forward about five reasons for what they recommended to the parliament about the Trust as argued by Sithole and Ngwenyama (2018).
Firstly, the trust must function and exist in terms of the land rights that exist under customary law. Furthermore, the ITA is not supposed to undermine customary law and other land rights. However, the Trust in other instances regards itself as an entity that is not subject to consulting and having the consent of the community members on issues dealing with and all because of their regard as being the rightful owners of the land. This was concluded from the submissions made by the members to the High Level Panel when they held public engagements.
Secondly, the converting of Permission to Occupy Certificates to lease agreements by the Ingonyama Trust Board, is established as the HLP as a threat to the tenure security and beneficiaries of the land. This led to them concluding that those lease agreements were to favour the Board instead of the lessee. Reason being that if the lessee needed to build, they firstly had to obtain a written permit, if there is any improvement the ITB must be notified. If the lessee failed to pay rent the ITB would cancel the agreement. If the lessee was to vacate their premises, everything left including the buildings and the land they were built on would then belong to the Ingonyama Trust.
The Trust collected a lot of money but yet there seems to be no evidence on whether the money was used for the benefit of the people under the jurisdiction of the Trust or for person needs on those in authority including King Zwelithini. In response to this the Inkata Freedom Party leader Prince Mangosutu Buthelezi said that there is absolutely nothing to benefit from, he said this during his interview with the SABC news in Ulundi, KZN.
Thirdly, the HLP advances that the Board ignored what that ITA of 1997 provide as it says that the ITA of 1994 should only apply to rural areas not townships, as the townships will be under control of relevant municipalities. From the beginning, the Trust have been applied to both the rural and townships. From the evidence that they collected the HLP found that the ITA has been collecting revenues from those townships, authorising it and exercising their power over its allocation.
Fourthly, Rural Development and Land Reform levelled critiques about the IT not being transparent and failing to use the revenues to benefit the people who are actually supposed to benefit. This criticism then prompted the HLP. In addition to that the IT is said to be under the power of section 217 of the Constitution as it requires it to be transparent.
Lastly, the members of the public made numerous reports about the Trust not consulting them when making decisions or when they initiate development programmes in those areas. Like involving such parties such as mining, agricultural parties and shopping malls. Yet the benefits received from those projects are taken or go to the Trust not the rightful owners of the land that projects are being initiated on.
Because of this five reasons the High Level Panel then recommended foe the Trust to be amended or repealed as it is unconstitutional. They further recommended that the land in KZN should be under the ownership of the state or any other body responsible for such as the government will issue title deeds to those residents. South Africa is currently experiencing the issues of expropriation of land without compensation, with this issue occurring the Zulu nation and their King fear for their land on whether it might be taken by the state or not. King goodwill Zwelithini believes the Ingonyama Trust is at a threatening position. The king is more than prepared to fight for what belongs to him and his people. On the 27th of February during the opening of the KZN provincial legislature, the king called on the people of the Zulu nation to at least contribute R5 or more to the funds that will be used for defence.
As reported by the SABC News (2018), King Zwelithini called for a land Imbizo in Ulundi in July to address this issue. In that gathering he made more threats including threatening to leave the country. He further threatened to take the HLP to court on this matter. The Amakhosi of KZN, together with the king said that if the state wants to take their land, violations will erupt in defence of the trust’s land. The chairperson of the Izinduna Simpiwe Mhlongo said that the plan to dissolve the trust is regarded as an insult to the entire Zulu nation.
During the Imbizo, the IFP leader Mangosuthu Buthelezi said he doesn’t see the need for the state to take away this land under the leadership of traditional leaders because the Constitution of South Africa fully recognises their existence. He further argued that he doesn’t trust the state with handling this process as they also don’t trust them. Buthelezi doesn’t comprehend the issues raised by the Panel as the trust have been operating for 25 years but nothing has been raised since then.
If the allegations against the trust are true, the role of the state on such disputes should be to apply the law in a rightful manner looking particularly at this use of the Ingonyama Trust. The government have a role of ensuring that no person can own land unfairly, and they must take legislative manners to prevent that as highlighted in Section 25 (5) of the Constitution. All political parties including ANC, DA and EFF as yet don’t support the dissolving of the trust as they recognises traditional leaders as significant people. Fikile Mbalula said that the ANC hasn’t yet concluded as to whether it is with or against the recommendation of the High Level Panel. The president of this country also assured the king that the government have no intentions of taking the trust’s land And that this issue of land expropriation will not in any way affect the trust as expropriation will only be on privately owned land and commercial land.
The government should focus on contributing to the growth of the economy of the country and give more into the institutions in place for such growth. Anything that is against the nation, should therefore be disregarded and declared as against the Constitution. In favour of the trust most political parties seem to conclude that the government shouldn’t intervene in the trust’s issues but rather focus on taking back the land for the development of the whole country. Apart from, the recommendation by the HLP, the state should deeply investigate the matter and if there are any leakage they should consider changing the content of the trust so that it can benefit everyone involved.
CONCLUSION
This case study showed the ongoing conflicts or disagreements over the rights to land, particularly focused on the Ingonyama Trust with an aim of developing what the role of the state is in such disputes. Therefore, concluding that the role of the state should be favour its subjects by apply the rightful sections of the law and focus on initiating programmes that will contribute towards the development of the country both economically and socially.
THE REFERENCING LIST
SITHOLE, J & NGONYAMA, P, (2018) the ingonyama trust controversy (5). P. 46-68.
Centre for law and society, law rights under ingonyama trust. (Online).available from: https://www.cls.uct.ac.za/usr/irg/downloads/factsheetingonyama.(accesesed:22 august 2015).
The South African News (2018) about the ingonyama trust: holding the land for the benefit of the people. (online) Available from: https:// ingonyamatrust.org.za/ingonyama-trust-holding-land-for-the-benefit-of-the-people.
CLAASEENS, A. (2018) the ingonyama trust: land and power in the former homelands. (Online). Available from http://www.customcontested.co.za/the-ingonyama-trust-land-and-power-in-the-former-homelands.
Section 2 (8) of the Constitution of the Republic of South Africa, 1996.
Section 217 of the Constitution of the Republic of South Africa, 1996.
Section 25 (5) of the Constitution of the Republic of South Africa, 1996.
SABC NEWS. (2018) Mangosuthu Buthelezi on the Ingonyama Trust Imbizo.
SABC NEWS. (2018) ANC reacts to king Zwelithini’s Imbizo.
