A victory for private property rights in customary law – Zakhele Mthembu

25 October 2021

The Ingonyama Trust has been in the news for quite a while. Depending on where you sit on the proverbial political compass, left of right, the issue ought to be of interest to you. The question of whether it is possible, using the paradigm of the indigenous customs of abaNtu, to institute a private property title regime, has been a central one. According to KwaZulu-Natal High Court case of Council for the Advancement of the South African Constitution v Ingonyama Trust (11 June 2021), the answer is yes.

This case was brought by residents of the Ingonyama Trust, with judgment handed down in June. The main point of contention was whether the Trust, governed by the Ingonyama Trust Act of 1994 (Trust Act), had the power to convert Permission to Occupy (PTO) certificates, which it had granted to residents in the former Zululand bantustan (presently the land governed by the Ingonyama Trust), into leases. Beyond the legalese of these facts, the central issue was to whom does the land belong, the people or the Zulu King? The family or the state?

The court ruled that the leases, which were introduced by the Trust in the mid to late 2000s, were unconstitutional, had no basis in the legislation which the Trust Act claims to be governed by, and most importantly, could not be supported by the prescripts and normative paradigm of indigenous Zulu law.

The order also stated that the leases were illegal and that the Trust, with the monarch as its sole trustee, was liable to pay back the money that had been paid to it as rental fees which were introduced when the PTO certificates were converted to leases. Most importantly, the court spent a considerable amount of time interrogating Zulu culture and by extension Zulu law and, as such, contributed greatly towards the development of customary law as it is currently known, and African common law as it should be known in the future.

The King and the Trust claimed that individual and exclusive ownership was impossible under Zulu culture and law, making the leases the closest instance in the modern legal environment that could approximate the title regime that would be prevalent if the monarch was sovereign as was the case prior to colonisation.

This contention is however not supported by historical fact, as the court highlighted in its judgment. The court’s impeccable reasoning, using the language of the Trust Act, found that the land, as per Zulu culture, belongs to none other than the people themselves, with the King being an administrator, not the owner of said land.

The court mentioned how the idea of paying rent to the King for land was unheard of in Zulu law, making the leases a perversion thereof. Most importantly, it referred to how even according to Zulu law, full ownership over property like land vested in the families that occupied it themselves instead of in the King.

As the saying goes in multiple branches of the African cultural tree, ‘A king is made by his people’. Therefore, the idea that a representative of the people, their agent, would enjoy more rights (ownership) whilst the source of their authority, the people themselves, enjoy lesser rights, is absurd. The relationship of a lessee and lessor introduced by the lease system is not recognized in Zulu law and the court rightfully held it to be so.

The Trust was ordered to reinstitute the PTO certificate system which had been discontinued. These certificates have their genesis tied to land that had not been subject to surveying. They were issued, and their holder, once their area had been surveyed, could convert this Permission to Occupy into  full ownership title.

Therefore, the PTO certificates which the court said must be issued, were a placeholder in earnest, and the focus of the Trust should be to convert these certificates into full title. This should be done to represent the true ownership of the land administered by the Trust, vesting in no one else but the people themselves.

The case represents a fundamental development in customary law in South Africa. Most pronounced, it highlights how private property is not divorced from the prescripts of African culture and law. The ill-considered ‘solution’ to the history of property dispossession in this part of the world is usually presented as the state becoming the custodian of the land and everyone else being a tenant for all intents and purposes.

One wonders how the property owners who are to be created by the PTO system being reinstituted would feel about the prospect of the state having the power to take their property and not pay them any compensation at all, as proposed by the Constitution Eighteenth Amendment Bill currently being considered by Parliament. We can only wonder.

Until then, the property rights as well as the liberty of indigenous peoples remains an imperative. The principles of private property are not opposed to indigenous culture. So those opposed to private property will have to find a better reason for their rejection of it beyond the ridiculous notion that it is an extension of colonialism and thus somehow can be consciously undermined.

Zakhele Mthembu is law student at the University of the Witwatersrand. The views expressed in this article are the author’s and not necessarily shared by the members of the Free Market Foundation.