THE 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 undermining the 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 into lease agreements with the Trust, to the exclusion of those whose land rights were affected.
The judgment made it clear that IPILRA (Interim Protection of Informal Land Rights Act 31 of 1996) applies to Ingonyama Trust land. This re-enforces the provision in the Trust Act that says the Board must comply with Zulu customary law whenever it administers the land. Mining companies are unquestionably obliged to seek the consent of people whose land rights are affected if they wish to mine on Ingonyama Trust land. The judgment also confirmed that each community member is entitled to an allotment of land under Zulu customary law. After an individual is allotted residential or arable land, it ceases to be communal land.
The judgment further stated that land allotted under Zulu customary law cannot be interfered with, except with the consent of its owner. It is only unallocated land that requires the prior written consent of a traditional or community authority for it to be “encumbered, pledged, leased or alienated”. The court further stressed that “the consent required for the deprivation of a right is a genuine and informed consent” and must be given freely and without duress.
The Makhasaneni community
Jindal Iron Ore is owned by Jindal Steel and Power (Mauritius) Limited (74%) and Jindal’s BEE partner, Thabang Khomo (26%). In the case of the Makhasaneni community, Jindal Iron Ore is proposing an open-pit iron ore mine and associated infrastructure on a site 25km southeast of Melmoth in KwaZulu-Natal. In June 2021, Jindal announced its intention to apply for a mining right. The company holds two prospecting rights for the project site (the ‘North’ and ‘South’ Blocks), a total of 20,170 ha. The North block covers the entire area of Makhasaneni village.
In the 1930s, the Makhasaneni community were forcibly relocated from eMagogogweni and dumped at their current location, to make way for tree plantations. Currently, the community has approximately 300 households. Jindal first came to the area in November 2011 and began prospecting for iron in residents’ ploughing fields. Residents complained about damage to graves and the deaths of livestock from water sources poisoned through the prospecting activities. The community contends there was no consultation before prospecting began. Resistance to the mining grew, and in 2016 Jindal withdrew from the area. Residents say that the Dludla family was the original landowner of the Makhasaneni land. All land now belonging to other families was given to them by the Dludlas – not as a loan, but rather as landowners.
Three primary categories of land were allocated to residents: plots for homestead construction, land for small home vegetable gardens, and larger field plots, usually used for monocropping maize. Residents were allocated the three plot categories adjacent to each other. Several years ago, a new plot category was added when land known as the “old maize fields” began to be allocated to Makhasaneni residents at the time. This plot category was detached from the homesteads and was used mainly for maize cultivation. The bulk of the “old fields” land is no longer being cultivated. Due to the increasing number of residents and associated space limitations, this land is no longer being allocated to new Makhasaneni residents. Some Makhasaneni residents have allocated parts of their “old fields” to new residents for homestead construction and some have used the land for smallscale forestry plantations.
Free, prior, informed consent
The prevailing practice in the mining industry has been for companies to consult only with traditional authorities, who claim to act on behalf of rural residents. In many cases, this has caused deep divisions within the community, due to perceptions that traditional authorities have accepted terms unfavourable to the residents. The Pietermaritzburg High Court judgment is a game-changer for communities like Makhasaneni. It clarifies that mining companies must consult and seek the community’s consent for unallocated land. For allocated land, they must consult and seek the consent of those who have been allotted the land, not traditional authorities.
The Trust can no longer unilaterally enter into lease agreements with third parties for land held under the Trust Act. Most importantly, the Ingonyama cannot claim ownership of land held by the Ingonyama Trust. The judgment has strengthened the tenure security of communities like Makhasaneni. How the new Ingonyama executes his responsibilities will be closely watched.
Ramabina Mahapa is a researcher with the Land and Accountability Research Centre in the Department of Public Law at the University of Cape Town.