Ingonyama Trust: empower the people, not the chiefs

By Tembeka Ngcukaitobi

There is a forgotten story behind the Ingonyama Trust’s establishment. A few days before the first democratic elections in April 1994, the last apartheid president, FW de Klerk, signed his final piece of legislation, setting it up. This was no footnote in history, but a seminal political moment, signalling the return of the IFP to the national elections it had abandoned a few months earlier.

Recently, the trust has been described as a “land bribe” to buy the IFP’s commitment, in a fraught and dangerous political climate, to participate in those elections. Otherwise there would be no electoral legitimacy. For his side, Mangosuthu Buthelezi, then leader of the party, has denied such claims, pointing out that the draft law to set up the trust was given to ANC leaders who showed little interest in its contents. Thus, from Buthelezi’s perspective, the trust was no “secret deal” with De Klerk – the ANC was kept in the loop and effectively endorsed its creation.

Much of what transpired behind the scenes during that period, marking the transition  from apartheid to democracy, remains shrouded in mystery, though recent books have begun to shed light on the subject. Ben Temkin’s Buthelezi biography has shown the centrality of the trust’s establishment to the IFP’s return to the 1994 elections.

Politics aside, recent criticism of the trust has focused less on its legitimacy per se and more on its mode of operation: the power it entrusts in traditional authorities and how the deployment of that power affects people living on the land. It is vast, some 30%, or 2,8-million hectares, of KwaZulu-Natal. It is also lucrative, with mining, shopping malls and commercial agriculture taking place on a large scale, enabling the trust’s administrators to collect rentals of R100m in good years.

Recent policy proposals to abolish it have been threatened with resistance in a menacing, provincial tone.

Understanding the trust requires an unpacking of its modus operandi, inscribed in the law which created it. The land is vested in King Misuzulu ka Zwelithini as the trustee on behalf of community members. The trust’s powers are vast. It administers the land for the benefit, material welfare and social wellbeing of the tribe and community members as set out in the KwaZulu Amakhosi and Iziphakanyiswa Act, and may deal with the land in accordance with Zulu indigenous law.

The king may not encumber, pledge, lease, alienate or otherwise dispose of any of it or any interest or real right to the land unless he has the written consent of the traditional or community authority concerned. There is no requirement for individuals affected by these decisions to consent or be consulted. Even the government’s land reform programmes are subject to consultation with the Ingonyama Trust if they impact on it.

In a structure such as this, with so much commercial benefit, cultural identity and social significance, conflict is understandable, though not inevitable. The first point of conflict concerns the powers of the chiefs over the land. Some traditional leaders have argued for an unrestrained dominium, invoking “customary law”.

In effect, however, what they are advocating for is a colonial form of “trusteeship”: chiefly authority imposed from above, with its key tenets being reflective of what Theophilus Shepstone had in mind in the late 19th century: the stripping of land rights from individuals and families, the concentration of power in chiefs and the dilution of customary norms, replacing them with the western concept of what a “native” should or should not do, all founded on indirect government rule.

What the proponents of this return of unbridled chiefly rule forget is that by the 1980s the colonial bonds of distorted “Zulu customary law” were loosening, driven by economic and social forces which irrevocably changed people’s cultural norms. The law changed to accommodate the forward movement of local communities. For instance, it is no longer possible in KwaZulu-Natal, without a retrograde cultural movement, to claim women have no rights to the land.

It has been these clashes between chiefs and communities that have defined much of the contestation relating to the land. Who owns it? Can local chiefs let outsiders in without consultation and consent? Can the trust force members of the community to fork out rentals at the pain of ejection? Can the trust collect rentals from mining houses and shopping mall operators without full transparency into the flow of the funds? Until recently, and as it was in 1994 when the trust law was adopted, the ANC has been missing in action, incapable of expressly articulating a vision to support the people over the chiefs. When the community brought a case before the courts, the government sided with the chiefs, though it refused to join the trust’s appeal.

The conflict over the land was not unpredictable. Nor was it inevitable. Land reform in general has been disastrous under the ANC. Reforms aimed at communal and trust land have stalled since 2010, when the first attempt ended in a court defeat for the government because of lack of consultation.

It is not difficult to find the answer to the seemingly intractable problem of communal land. The Freedom Charter’s declaration that it belongs to those who work it has been translated to tangible legal obligations by the constitution. Section 25 thereof is the legal mandate to recast land relations between the chiefs and the people. There is a clear constitutional bias in favour of the latter. Section 25(6) is a guarantee of security of tenure over the land, including communal land. Unlike the land relations created under colonialism, which reflected the desires of the ruling elite, future land relations should be decided by the people. That means setting up customary law structures which privilege people’s rights over land, rather than chiefly power.

• Ngcukaitobi is a lawyer and author of ‘Land Matters: South Africa’s Failed Land Reforms and the Road Ahead’

This article first appeared on Times Live on 4 September 2022.

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