Coronation of King Misuzulu kaZwelithini. At this stage, it
is unclear whether King Misuzulu will steer the Trust in a new
direction grounded on protecting the land rights of communities.LANDBy Ramabina Mahapa
T
HE RECENT CORONATION OF
Zulu King Misuzulu kaZwelithini
was witnessed by people well
beyond South Africa’s borders,
and widely welcomed by commentators.
However, few reflected on what it might
mean for rural residents living on land
held under the Ingonyama Trust.
The Ingonyama Trust was established
in 1994 by what was then the KwaZulu
Government, in terms of the KwaZulu-
Natal Ingonyama Trust Act of 1994. The
Trust is the nominal owner of some 2.8
million hectares of land in KwaZulu-
Natal that was previously owned by the
“homeland” government of KwaZulu. The
Trust Act stipulates that the land must be
administered for the “benefit, material
welfare and social well-being of tribes and
communities”. In 1997, an amendment to
the Trust Act established the Ingonyama
Trust Board.
With his coronation, the sole trustee
of the Trust is now Ingonyama yamaZulu,
King Misuzulu.The Trust fails to protect
land rights
The land that falls under the Trust includes
the Makhasaneni community located near
the town of Melmoth. The experience of
the Makhasaneni community is an example
of the failure of the Ingonyama Trust Board
to protect the land rights of communities.
It has authorised commercial mining
activities without proper community
consultation. This has deprived the
community of its informal rights to land.
A recent judgment of the
Pietermaritzburg High Court was scathing.
It reprimanded the Trust for underminingthe rights of rural communities by
converting their land rights into “lease
agreements” and then charging exorbitant
fees for occupation of land that the
communities already had the right to be on.
At this stage, it is unclear whether
King Misuzulu will steer the Trust in a
new direction grounded on protecting
the land rights of communities. Both the
Parliamentary High-Level Panel led by
former President Kgalema Motlanthe and
the Presidential Advisory Panel on land
reform and agriculture chaired by Dr
Vuyokazi Mahlati recommended the repeal
of the Trust Act.What the Trust Act says
The Act specifies that trust land vests in
the Ingonyama (the king) as a trustee on
behalf of communities. The courts have
clarified that mining companies and the
Trust Board must follow Zulu customary
law whenever they enter into an agreement
affecting people’s land rights. The Trust
Act explicitly says the Ingonyama must
not “encumber, pledge, lease, alienate
or otherwise dispose of any of the said
land or any interest...in the land unless he
has obtained the prior written consent of
the traditional authority or community
authority concerned.”
When the Trust Act was amended in
1997 to create the Trust Board, it did not
specify or prohibit a role for the Ingonyama
in the administration and governance of
the Trust. So it is unclear what role the
Ingonyama plays in the functioning of the
Trust. However, the Act does reveal his
crucial role in the appointment of the nine-
member Board, which consists of:a. the Ingonyama or their nominee who
shall be the Chairperson of the Board;
b. four members appointed by the
Minister after consultation with
the Ingonyama, the Premier and
the Chairperson of the House of
Traditional leaders of KwaZulu-Natal;
and
c. four members appointed by the
Minister, with due regard to regional
interests, in consultation with the
Premier, who shall consult with the
Ingonyama and the Chairperson of the
House of Traditional Leaders in this
regard.The late King Zwelithini never served on
the Trust Board himself. He preferred
having a nominee who subsequently
served as the Chairperson of the Board.
The Ingonyama is consulted in the
appointment of the eight other members,
thus having significant power to influence
its operations.High court judgment is a
game changer
The judgment of the Pietermaritzburg
High Court on 11 June 2021 was a game-
changer for communities living on
land held under the Ingonyama Trust.
It confirmed that it is individuals and
communities, and not the Ingonyama
Trust or the Ingonyama, who are the “true
and ultimate owners” of the land.
Prior to the ruling, mining companies
had refused to negotiate with affected land
rights holders and pay them compensation
for the loss of their land. Instead, they
acted on the basis that the land belonged to
the Ingonyama Trust. So they entered intoKing
Misuzulu
and the
Ingonyama
Trust:
LAND IN
KWAZULU-
NATAL