What’s yours is mine – How the Ingonyama Trust failed to take customary property rights seriously
1 September 2021
INTRODUCTION
The Ingonyama Trust Board is under new leadership following a far-reaching judgment that was handed down against them and the Minister of Rural Development and Land Reform (the “Minister”) by the Pietermaritzburg High Court. The judgment declared unlawful the Trust and Board’s efforts to transform existing forms of land-holding on Trust-held land into residential leases and extract rent from people living on Trust-held land. The Board’s previous chief executive, Jerome Ngwenya, went against the Minister’s advice and initiated an appeal of the High Court’s judgment. With its new chief executive, Advocate Vela Mngwengwe, at the helm one can only hope that the appeal is abandoned and the Trust and its Board – indeed government in general – follow the sound guidance laid out in the judgment.
THE TRUST AND ITS BOARD BREACHED THEIR CONSTITUTIONAL DUTIES
In 2007, the Ingonyama Trust and its Board decided that so-called ‘Permissions to Occupy’ (“PTOs”) should no longer be issued on Trust-held land and embarked upon a program of converting existing PTOs into residential leases (the “PTO Conversion Program”). A PTO is a form of statutory recognition of land tenure left over from apartheid and regrettably remains the only way to formalize tenure on unsurveyed rural land.[1] In effect, therefore, the PTO Conversion Program left holders of customary property rights or pre-existing PTOs with residential lease agreements as the only available formal recognition of their rights to Trust-held land.
Switching to a lease, however, significantly diminished the tenure security that would have emanated from a PTO or a pre-existing customary property right.[2] Naturally, a lease elevates the Trust to a lessor and reduces the pre-existing right holder to a tenant, whose continued residence on the relevant land is then subject to the payment of rent. In addition to this being a form of landholding foreign to Zulu customary law,[3] the High Court found that the Trust and its Board had strongarmed and manipulated holders of pre-existing rights to downgrade to a lease, without their genuine and informed consent.[4]
The High Court accordingly found that the PTO Conversion Program caused the Trust and its Board to violate the Constitution by failing to respect the property rights of those living on Trust-held land. As a result, all residential leases were declared unlawful and the money paid over to the Trust as ‘rental’ is now due to be returned.[5]
CHALLENGING PARADIGMS OF CUSTOMARY LAW OWNERSHIP
Apart from its bold order, the High Court broke new ground by posing a long-awaited judicial challenge to the idea that customary law countenances primarily notions of ‘communal’ land ownership, having little or no room for notions of property ownership by families or even individuals.[6] Viewing customary land ownership as inherently communal naturally empowers traditional leadership structures to make decisions about land held in terms of customary law, rather than the individuals or families that occupy it. In pre-democratic South Africa, this model of traditional governance gave rise to unholy alliances between traditional leaders and apartheid government officials. In democratic South Africa, it has given rise to self-interested relationships between traditional leaders, government officials and private parties looking to further commercial interests.
The High Court’s judgment makes pursuing this model of land governance more difficult, because it unequivocally gives expression to customary law ownership by families and individuals, stating that –
The individual’s holding of a portion of the land allotted to him or her is sacrosanct in that it is inviolable and passes from generation to generation (inheritable). It becomes the property of the individual’s family.[7]
The High Court went on to make it plain that once an individual or family becomes a customary law owner in this way, they benefit from the right to possess, use and dispose of their property in much the same way as an owner under the common law would be able to.[8] While the judgment touts the benefit of formalizing these rights, it by no means implies that customary property rights that are not formally recognised deserve any less protection. This means that any private or public act that that deprives individuals or families of the ability to exercise the benefits of land ownership in terms of customary law, will have to reckon with the protections provided in sections 25(1) and 25(2) of the Constitution.[9]
A MODEL FOR TENURE REFORM
The High Court’s conception of customary property rights represents a radical shift of power towards the holders of customary rights to land and away from traditional governance structures. It accordingly provides a helpful conceptual framework on which to model future land reform efforts. In the short term, this means that two important legislative developments are destined to fail in the courts. First, the Communal Land Tenure Bill, which provides for communal ownership of land, without meaningful consideration of land that is owned by individuals and families. Second, the Traditional and Khoi-San Leadership Act, which empowers traditional leaders to make important decisions about the use of land in the pursuit of commercial enterprises with third parties, without establishing the consent of land owners as a pre-requisite for the deprivation of their rights.
Looking to the future, the High Court has provided insight into how to fashion a legal framework that takes customary property rights seriously, by giving a helpful interpretive framework for section 2 of the Interim Protection of Informal Land Rights Act No. 31 of 1996 (“IPILRA”). This section prevents rights in land from being deprived without the holder’s consent, but provides for deprivation via customary law rule where the land is genuinely held communally. The High Court’s judgment imports the notion of individual and family ownership of land into section 2 of IPILRA by defining ‘communal’ land as ‘unallotted’ land. In this regard, the High Court states –
Once a portion of land has been allocated to a particular individual as residential or arable land, it is automatically taken out of the realm of communal ownership... However, unallotted land is communally owned by all members of a particular community.[10]
Therefore, government would do well to ensure that any future legislation begins with the recognition that customary property rights can be held by individuals and families and that their genuine and informed consent is a pre-requisite for any lawful deprivation of their rights. It should make clear that there is an obligation on the state and other actors to responsibly seek out the existence of these rights and determine their nature and extent before embarking on commercial enterprises on traditional land.
This undoubtedly will complicate economic development in traditional communities but it is precisely this sort of inconvenience that we should tolerate in a rights-based system of property law. It is in the very nature of such a system that we do not subject the legal rules governing property rights to whatever outcome serves parochial government or the economic interests of persons of authority.
GOVERNANCE FROM THE BENCH
The High Court also found that the Minister, in whom ultimate authority for issuing and registering PTOs rests, had breached her constitutional duties by failing to ensure that PTOs were issued on Trust-held land. Until government puts together a better program for formalizing land rights held by those living on Trust-held land, the Minister will need to recapacitate her department in order to properly issue PTOs and report back to the court every three months on her progress. While this order should be welcomed, it cannot be ignored that it reveals the astounding lack of will among those who govern Trust-held land to respect the property rights of those living thereon.
The High Court’s judgment makes plain that the Minister was fully aware of the PTO Conversion Program and did nothing to determine its legality, let alone put a stop to it.[11] While the Minister has decided against an appeal, it should not be forgotten that she stood with the Trust and its Board against those living on Trust-held land when the case was initially litigated in the High Court. This begrudging commitment to protecting property rights does not bode well for diligent compliance with the High Court’s order, especially given that the Minister appoints the vast majority of the Trust’s Board.[12] Faced with the fact that this appointment process consistently generates a leadership that acts against the interests of those holding property rights in Trust-held land, perhaps it is time to rethink how we constitute its governance structures.
CONCLUSION
The High Court’s judgment is another in a series of losses for a state that appears committed to pursuing policies that undermine the property rights of South Africans left uniquely vulnerable by colonial and apartheid property laws. With the Minster’s installation of a new chief executive and her decision not to appeal, one can only hope that the Trust and its Board will direct its energy away from fighting for its ill-gotten gains and towards defending the rights of those living on Trust-held land.
Christopher Fisher, Legal Researcher, Helen Suzman Foundation.
Footnote:
[1]Council for the Advancement of the South African Constitution and Others v The Ingonyama Trust and Others (12745/2018P) [2021] ZAKZPHC 42; 2021 (8) BCLR 866 (KZP) (11 June 2021) at para 193.
[2]Ibid at para 106 and 107.
[3]Ibid at para 99.
[4]Ibid at para 142.
[5]Ibidat para 203.
[6] Ben Cousins, ‘Characterising “Communal” Tenure: Nested Systems and Flexible Boundaries’, in Aninka Claassens and Ben Cousins (eds.), Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act (Cape Town, 2008), pp. 109-137
[7] Op cit. note 1 at para 96
[8] Op cit. note 1 at para 9.
[9]Ibid at para 158
[10]Ibid at para 136
[11]Ibid at 167.
[12] See section 2 of the Kwa-Zulu Natal Ingonyama Trust Act No. 3KZ of 1994.
