PRINCE MANGOSUTHU BUTHELEZI MP
INKOSI OF THE BUTHELEZI CLAN
TRADITIONAL PRIME MINISTER TO THE ZULU NATION AND MONARCH
AND PRESIDENT OF THE INKATHA FREEDOM PARTY
Durban International Convention Centre
Chairperson of the Ingonyama Trust Board, Judge Jerome Ngwenya; Members of the Board, Advocate Robin Raubenheimer, Ms Jabu Bhengu, Dr Tshitshi Mbatha, Mr Bhekani Shabalala, Pastor Ntombifikile Dizenza and Advocate Vela Mngwengwe; Chief Executive Officer of the Board, Dr FB Madlopha; Members of the Zulu Royal Council; Amakhosi; officials from Government; distinguished guests.
I wish to thank the Ingonyama Trust Board for inviting me to participate in this important conference. I value the opportunity to engage on issues before the Board, for I retain a sense of pride in having piloted the legislation that birthed the Ingonyama Trust. It matters a great deal to me that the Board continues to provide sound leadership, for the benefit of all our people. It is therefore good to see such wise leadership at the helm of a strong and competent team.
The fundamental issue before us is, of course, the granting of title deeds to individuals residing on land held by the Ingonyama Trust. I regret that I was unable to be present when His Majesty the King made this announcement at the opening of the KwaZulu Natal Provincial House of Traditional Leaders on the 7th of this month. I was immediately contacted by journalists seeking my opinion on the matter.
I therefore feel it important to place my thoughts on record. For this purpose, let me briefly describe how land came to be held under the Ingonyama Trust.
In 1993, shortly before the adoption of the Interim Constitution, I became concerned about the imminent negative effects on land administration. In terms of the Interim Constitution, all communal land held by the erstwhile 18 self-governing territories and the 4 nominally independent TBVC states was automatically transferred to the Government of South Africa. In this process, what was communal land held in terms of indigenous and customary law became State land held in terms of the Land Administration Act.
That Act made no reference whatsoever to indigenous and customary law, did not contemplate the power of Traditional Authorities to administer land and, more significantly, did not recognise the right of the members of each community to receive an assignment of sufficient land to be able to sustain their families.
That meant that the Interim Constitution would have made all black South Africans landless as far as legal entitlement was concerned. And that is exactly what happened in the rest of the country, except for the areas under the Ingonyama Trust.
In October 1993, in my last act as we wound up the KwaZulu Legislature, the KwaZulu Legislative Assembly adopted the Ingonyama Trust Act which maintained within indigenous law and the Zulu monarchy the land left to the Zulu Nation after colonial conquest and racial dispossessions.
The Zulu nation is now the only ethnic group whose land is controlled by a Trust, headed by the King. Land held under this Trust is administered as communal land in terms of indigenous and customary law, rather than as private or public property. By direction of our King, Traditional Councils and traditional leaders have been tasked with using this to the benefit of the people.
The intention was to ensure that each of the then Traditional Authorities received a title deed for the area under its jurisdiction. That was the path we intended to follow. We understood that it would be a process, moving from one stage to the next, and that the end result would be title deeds for individuals. We had started that process through the Government of KwaZulu, just before the administration folded up in 1994. Under my direction, the Surveyor-General had just completed a survey in preparation.
But immediately after 1994, Government sought to scrap the Ingonyama Trust Act, for it was unwilling to give any powers to provinces. In the end, Parliament amended the Act, taking away the powers to administer and dispose of land, which were transferred to the Department of Land Affairs, leaving the Trust with only advisory functions rather than actual powers.
That is the history of the Ingonyama Trust. It was legislation enacted by the KwaZulu Government to preserve the rights of rural people to their land. This laid the foundation for His Majesty the King to make the announcement he made on 7 June 2016. Granting title deeds to individuals will, undoubtedly, still be done in stages, for a process like this cannot be rushed into. It must be done justly and with wisdom, to avoid creating tensions among our people.
The second issue I wish to speak about relates to the Expropriation Bill of 2015.
I recently received a letter from Mr John Kane-Berman of the South African Institute for Race Relations, conveying a memo produced by his colleague, Dr Anthea Jeffery. Dr Jeffery raised concerns over aspects of the Expropriation Bill that affect traditional leaders, but which have received very little attention in the media.
I wish to read Dr Jeffery’s comments in full –
“The Expropriation Bill has major ramifications for all land held in traditional or customary tenure. Traditional leaders thus requested last year that all land held in customary tenure should be exempted from the operation of the Bill, but Jeremy Cronin refused this request. [City Press 9 August 2015]
In addition, the State Law Advisers have advised that ‘it is not necessary to refer the Bill to the National House of Traditional Leaders’ because it ‘does not contain provisions pertaining to customary law or the customs of traditional communities’. [Para 15.6, Memorandum on the Objects of the Expropriation Bill of 2015]
However, the Bill could easily see cash-strapped municipalities, for example, deciding to expropriate customary plots near the cities for RDP housing (or a host of other purposes). Compensation will be less than market value, while payment could often be much delayed and the people now living on these plots could battle to afford replacement homes.
Particularly important too is the definition of expropriation that was inserted into the Bill towards the end of 2015. This raises the risk that the government will be able to assume control of land, without paying compensation for it, through the simple expedient of taking it as custodian, rather than as owner.
Moreover, the government has already drawn up a bill (the Preservation and Development of Agricultural Land Framework Bill of 2014 or the Agri Land Bill for short) that aims to vest all agricultural land in the custodianship of the Department of Agriculture, Forestry and Fisheries (DAFF). If this bill is enacted into law, DAFF’s assumption of custodianship may not count as an expropriation, in which case no compensation will be payable.
The Agri Land Bill, if enacted, will clearly affect all commercial farmers, but it is also likely to have major impact on traditional leaders holding customary land. The Agri Land Bill will apply to all land which is not currently zoned for urban use – and this, of course, includes vast swathes of customary land in rural areas.
If all rural customary land becomes vested in the custodianship of DAFF, traditional leaders are unlikely to receive any compensation for this diminution of their current rights over this land. In addition, if the government acquires custodianship over all rural customary land, this could give it an important additional instrument of political control over traditional leaders and the people living under their tutelage.
The Bill should thus have been referred to the National House of Traditional Leaders for their comment. It has already been passed by both the National Assembly and the National Council of Provinces, but traditional leaders also need to have their say – preferably before the Bill is signed into law by the President.”
On my instruction, the Chief Whip of the IFP wrote to the Ministers of Public Works, and Cooperative Governance and Traditional Affairs, requesting their response to the concerns raised by Dr Jeffery.
A response was received from the Hon. Mr Jeremy Cronin, the Deputy Minister of Public Works, who has been tasked by his Minister to play a leading role in piloting this legislation through the parliamentary process. In essence, the Deputy Minister believes that sufficient consultation has been held with traditional leaders.
He then quoted the Municipal Structures Act of 1998 as it relates to the participation of traditional leaders in municipal councils. In light of this participation, he said (and I quote) “It is therefore clear… that it is virtually impossible to enforce an expropriation on land held by a traditional authority without that institution’s knowledge.”
This, however, does not invalidate the concern. As Dr Jeffery pointed out, in response to the Deputy Minister’s letter, traditional leaders who participate in a municipal council will be able to “express their views” on a proposed municipal expropriation of customary land, but they will not be able to stop a municipality from proceeding with it. I have often lamented the degree of participation the Act affords Amakhosi. This again is evidence that the influence of traditional leaders in local governance decisions is limited.
Dr Jeffery notes another shortcoming in the Deputy Minister’s response, relating to the significance of the Preservation of Agricultural Land Framework Bill of 2014, which proposes to vest the custodianship of all agricultural land in the Department of Agriculture, Forestry and Fisheries. She points out (and I quote) –
“He says that this will ‘not necessarily amount to [a] divesting of property or property rights in the legal sense’, but he also does not exclude this possibility.
This has been the practical result of the Mineral and Mineral Petroleum Resources Act of 2002. That Act contains a clause (very similar to that in the Agri-Bill) which vests all mineral resources in the custodianship of the state. This clause has effectively put an end to prior common law and customary rights over the country’s mineral resources. It also means that anyone who wants to exploit these resources must now obtain a new-order mining right from the state. The granting of these mining rights has been made subject to vague (and often shifting) conditions, while mining rights can now be suspended or terminated by the state in wide-ranging circumstances.
There is no guarantee that the vesting of all agricultural land in DAFF will not have similar consequences.”
The Deputy Minister correctly states that traditional leaders were given an opportunity to present their views on the Expropriation Bill, during public hearings in the National Assembly on 4 August 2015. However, listening to the point of view of Amakhosi and being responsive to that view are two different things. Traditional leaders sought to have customary land excluded from the ambit of the Expropriation Bill, but this did not happen.
Dr Jeffery still believes that the Bill should be brought to the National House of Traditional Leaders before it is signed into law by the President, and I am inclined to agree. Because, at the time of public hearings, the definition of expropriation had not yet been inserted into the Bill. Traditional leaders could thus not comment on this important provision. It can be argued that the definition raises the risk of land being taken into the custodianship of the State.
These are not simple matters. They require careful consideration, not only by Amakhosi, but by the Ingonyama Trust Board. There is a definite sense that no real commitments are being made in the face of an evident threat. In the absence of guarantees, the door remains open to a continued erosion of the institution of traditional leadership. If customary land is expropriated, our communities will suffer. Moreover, the process of granting title deeds to individuals will become meaningless.
These are issues we must confront, with courage and collective wisdom.