By Ben Cousins, Emeritus Professor, Institute for Poverty, Land and Agrarian Studies (PLAAS), University of the Western Cape

* This article originally appeared in the The Conversation on 22 June 2021

In a landmark judgment a South African high court has declared that people living on customary land in the province of KwaZulu-Natal, notionally held in trust by the Ingonyama (king) of the Zulu people, are the “true and beneficial owners” of that land.

It confirms that the Ingonyama Trust Board (link is external) is not the real owner of this land. It, therefore, cannot convert the customary land rights of occupiers to rent-paying leases as it has been doing.

The Trust is in fact only a notional owner of this land. It is mandated to administer the land “for the benefit, material welfare and social well-being” of members of the affected rural communities. It administers around 2.8 million hectares, amounting to about one third of the whole of the province.

The court also found that the minister in charge of land reform has breached her duty to respect, protect and promote these informal land rights, as required by law. She is responsible for overseeing the operations of the Trust, and ensuring that the land rights of communities are not infringed upon.

The judgement has massive implications for the government’s land reform programme. Tenure reform policy has yet to deliver legislation to secure the land rights of people in communal areas. The fact that the legislation required by the Constitution is still absent, after 27 years of freedom, is a major blemish on the record of the governing African National Congress.

The reasons for the lacuna are primarily political, centred on the contested roles and powers of traditional leaders in a democratic South Africa. In turn, this issue connects to the wider politics of “state capture” - the refashioning of state institutions during the presidency of Jacob Zuma, (May 2009-February 2018), to serve the interests of politically-connected elites.

The judgment lends support to efforts by President Cyril Ramaphosa to turn the tide on both state capture in the narrow sense, and on corruption more generally.

The judgment also sheds light on the marginal role of parliament in overseeing land affairs, the lack of transparency and accountability of bodies such as land trusts, and the absence of state capacity to deal with questions of land administration. It also highlights the lack of interest by successive ministers in curtailing the self interested actions of rural elites.

All these problems have been in evidence over many years. This is clear from even a cursory review of government support for corrupt traditional leaders in areas with large deposits of platinum, coal or titanium.

Ingonyama Trust Board

The Ingonyama Trust Board was founded by the apartheid government in 1994, just before the first democratic election. This is widely believed to have been a sop for the Inkatha Freedom Party to participate in that election, which it was threatening to boycott.

The democratic government amended the Trust’s founding act in 1997 , establishing a board for the Trust. It also made it subject to the Trust Act of 1988. As with other customary land held in trust by national government, “ownership” by the Trust is nominal. Administration of the land must be for the benefit of those occupiers.

In communal areas, most daily land administration tasks, such as approving applications for allocations of land, are carried out by traditional leaders (amakhosi) and village-based headmen (izinduna). Customary land rights derive from locally accepted membership of rural communities, mostly through descent but also of newcomers. They are protected by the Interim Protection of Informal Land Rights Act, 1996.

Some 12 years ago the Trust began to convert rights of customary ownership to rent-paying leases. It planned to escalate rental by 10% a year, to increase its own income. Residents who did not pay could in theory be evicted - although none have been to date. The court found that the land rights holders did not give consent to these “conversions”. It also provides details of how they were intimidated and deceived into signing leases. Both Trust officials and local traditional leaders were involved in the dispossession.

The portfolio committee of parliament for traditional affairs and its panel on post-apartheid legislation, chaired by former president Kgalema Motlanthe, have called attention to these problems , but to no avail. Now, litigation against this abuse has succeeded, with the court ordering the Trust to repay the funds it extorted.

Tenure reform and customary land rights

What does this judgement mean for land rights in communal areas, home to the largest proportion of rural South Africans, who form one third of the population?

These areas provide essential resources, services and livelihoods to the poorest sections of South African society. They are a crucial cushion against rampant unemployment and the insecurities inherent in capitalist economies today.

The court characterises these land rights in the following terms: land is allotted to a family head as residential and arable plots and access to communal pasture; no financial payments are involved, and land rights are inheritable. Land becomes the property of the family, and nothing may be done with such land without the involvement and consent of the owner.

Land rights are closely tied to social and cultural relationships, and tenure security is derived in large part from locally legitimate landholding.

The challenge for tenure reform policy is to express these principles in law in a way that provides certainty, and ensures the protection of land rights holders. This will lay a firm foundation for administrative systems focused on both support for rights holders (for example, in resolving disputes over land), and to facilitate development planning and service provision.

A further challenge is to clearly define and delimit the powers and functions of traditional leaders in relation to land. Policy has to promote full transparency and accountability in all aspects of land administration. This requirement can be met by the vesting of rights to land in families and not in institutions. Traditional leaders, trusts or other bodies with administrative roles would then have to be accountable to land rights holders.

The parameters suggested by the judgment should frame tenure reform. Worryingly, current drafts of the Communal Land Tenure Bill are based on the same paradigm as the 2004 law that was struck down in 2010 by the Constitutional Court, in which traditional leaders were empowered to act as if they are owners of the land. Any law informed by this paradigm is sure to be challenged again.

Need for pressure from below

If land reform is to return to a strong focus on the rights, opportunities and needs of ordinary black South Africans, as was the case in the 1990s, building the capacity of institutions responsible for both implementation and oversight of policies is vital. But, national policies also need clear political direction.

Here the main obstacle is the lack of mobilisation of rural dwellers, as well as those living in informal settlements, to push for pro-poor, structural change within a democratic political framework.

Although litigation using human rights lawyers is essential for preventing abuse, it is expensive and time consuming. This constrains wider impact. Often only the bravest of rural people are willing to stand up and make their voices heard as applicants and witnesses, as in this case.

But their courage shows what is possible. In greater numbers, and applying more sustained pressure from below, ordinary South Africans can ensure that the state begins to deliver the promises enshrined in the Constitution.