02.08.2018

Is expropriation a red herring for traditional leaders?

Traditional leadership and land expropriation are two very thorny issues in their own right, but once the two became conflated it was bound to ruffle some feathers. The issue came to the fore after the recent comments made by King Goodwill Zwelithini regarding the Ingonyama Trust, but are these issues really related? - Theo Boshoff, Agbiz head of Legal Intelligence * Written for and first published in Mail & Guardian

Traditional leadership and land expropriation are two very thorny issues in their own right, but once the two became conflated it was bound to ruffle some feathers. The issue came to the fore after the recent comments made by King Goodwill Zwelithini regarding the Ingonyama Trust, but are these issues really related?

Expropriation takes place where the state acquires private property for the public good. The owner does not have a choice in the manner but is usually compensated for the loss. The compensation aspect is currently up for debate but the more important question to ask is whether the trust land can even be expropriated in the first place? Is the Ingonyama land ‘private property’ in the true sense of the word?

Trusts are often used to house property when beneficiaries are unable to manage property themselves. The classical example is where a parent passes away and leaves a house to her children but the children are too young to own and manage the house. Instead, the house is placed in a trust and managed by a trustee until the children are old enough to manage it themselves. The Ingonyama Trust is a very different instrument as it is a trust in name only.

Prior to democracy, the former ‘homeland’ areas were formally owned by the South African Development Trust (SADT), which was nothing more than an Apartheid-era state institution. When the SADT Act was repealed in the early nineties, most of the land was transferred into the name of the Department of Land Affairs with a special dispensation being created for KwaZulu-Natal through the Ingonyama Trust Act. The Ingonyama Trust is therefore most likely an organ of state under the Constitution as it is an institution created by statute which performs a public function. For the state to acquire land through expropriation from an organ of state, would be like moving change from its one pocket and putting it into the other – there would simply be no point to it.

The real issue at hand is the way in which the land is governed by the Ingonyama Trust on behalf of the people who occupy it. Although the land is formally owned by an organ of state, it is managed in terms of customary law on behalf of the occupiers whose rights are also legally protected. Customary law, as is the case with all law in South Africa, must be aligned to the constitution and the fundamental rights contained therein, which includes the rights to legally secure tenure and to just administrative action. The real issues at play, and indeed the recommendations made by the High Level Panel chaired by former president Mothlante has little to do with ownership and expropriation but everything to do with transparency and accountability in the governance of communal land such as that owned by the Ingonyama Trust.       

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