ON THE REPORT OF
THE HIGH LEVEL PANEL ON THE ASSESSMENT OF KEY LEGISLATION
AND THE ACCELERATION OF FUNDAMENTAL CHANGE
PRINCE MANGOSUTHU BUTHELEZI MP
INKOSI OF THE BUTHELEZI CLAN
TRADITIONAL PRIME MINISTER TO THE ZULU MONARCH AND NATION
AND PRESIDENT OF THE INKATHA FREEDOM PARTY
Durban International Convention Centre: 24 – 25 January 2018
Chairperson of the Ingonyama Trust Board, Judge Jerome Ngwenya; Chief Executive Officer, Dr FB Madlopha; Members of the Board; Members of the Zulu Royal Council and Amakhosi.
I must commend the Ingonyama Trust Board for convening this discussion forum so that we as Amakhosi can gain deeper insight into the report and the recommendations of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change.
From within Parliament, my Party supported the objectives of the Speaker’s Forum in so far as this Panel was intended to review all legislation and identify what is working well and what is hindering the achievement of South Africa’s goals as laid out in our Constitution. These are the goals of social justice, economic development and human rights.
I must admit, however, that I was somewhat concerned when I saw that Dr Aninka Claassens had been appointed to the Panel, as a Land Reform Specialist from the University of Cape Town. Just two months before, in October 2015, I had read an article by Dr Claassens in the City Press titled “Back to the bad old days” in which her antagonism towards the institution of traditional leadership was patently evident.
She wrote that “chiefs”, as she called us, “wield unconstitutional power”, and that (and I quote) “18 million South Africans living within the former Bantustans” long to “escape” their “imposed status as tribal subjects”. I wrote to the City Press asking on what basis she speaks for these communities. Knowing that she entered the Panel with the belief that traditional leadership must be neutralised, I felt considerable concern over how her beliefs would influence the outcome.
Looking at the Report, I do see evidence antagonism. For instance, on page 262 under the heading “Overview of Trends Between 1994 and 2010” the Report states: “The National Party Government together with the Inkatha Freedom Party enacted the Ingonyama Trust Act in 1994 just before the transition to democracy. This Act transferred the trusteeship of land in KwaZulu from the national minister to King Goodwill Zwelithini.”
Firstly, I have never heard of a political party enacting legislation. The Ingonyama Trust Act was enacted by the KwaZulu Legislative Assembly. It was adopted on 22 April 1994 and it was the last piece of legislation passed by the KLA. It transferred ownership of land from the KwaZulu Government into the Ingonyama Trust, which prevented communal land held in terms of indigenous and customary law from automatically becoming State land after 1994.
I served at the time as Chief Minister of the KwaZulu Government and I had the privilege of introducing this legislation, which sought to preserve the rights of rural people to their land. It maintained within indigenous law and the Zulu monarchy the land left to the Zulu Nation after colonial conquest and racial dispossessions.
As we consider Recommendation 3.5 of this Report, in which the Panel motivates for the repeal of the Ingonyama Trust Act, I felt it important that we remind ourselves of the intentions behind this legislation. Why was it enacted in the first place? What did we seek to achieve? And have those reasons disappeared, or are they still valid?
I would have liked to seek your indulgence to read my verbatim remarks as captured by Hansard in the KwaZulu Legislative Assembly when the Ingonyama Trust Act was passed, but unfortunately this is not possible.
I wish that I could actually read out to you the Hansard at this point with a verbatim report of my address to the KwaZulu Legislative Assembly when I brought the Act in the form of a Bill of the KwaZulu Legislative Assembly. Unfortunately at the time of my writing this address, I could not get hold of my copy of the KwaZulu Hansard. So I shall in answering the question of all those who want to know why I did it. I accept my responsibility as the author of the Ingonyama Trust Act that I have to answer their question on why I did what I did. When I piloted the Bill through the KwaZulu Legislative Assembly I wanted to ensure that the bits and pieces of left overs of land on which the King and Amakhosi remained literally perched with their Communities, would not become automatically government land when the life of the KwaZulu government ended with the dawn of our democratic era .What was called KwaZulu land was nothing but bits and pieces which were generally referred to as ‘Reserves’. So all that I was doing was to ensure that I preserve the rights of rural people in their land. And as I have already said all this achieved was to maintain within indigenous law and the Zulu Monarchy the bits and pieces that were left over after colonial conquest and racial dispossessions by the white minority governments that ruled over us. This was after they had taken their picks of the best of our land and divided it amongst themselves. I am reminded of a book I read as a young man by Oliver Walker “KAFFIRS ARE LIVELY.” He has a good description of the state of land division in South Africa where all the best land was taken over by the conquerors and what he described as good scenery was left to us blacks. He described some of our land as land where even a baboon would need crutches to walk on it. I was just ensuring that these bits of left overs after black dispossession in this province at least remained under the Monarchy and Amakhosi and their communities and prevent these left over pieces automatically from becoming state land after 1994.
I was convinced as much as I am now that I did the right thing in the eyes of God and man. People are entitled of course of their own opinions on what I did by creating the Ingonyama Trust Act. I wish to say to my fellow Amakhosi, I cannot agree with the motivation of the High Level Panel regarding the reasons to repeal this Act. Recommendation 3.5 claims for instance that repeal or amendment is necessary, “to ensure that the land vests in a person or body with proper democratic accountability.”
In terms of the Public Finance and Management Act it is a public entity and its executive authority is accountable to Parliament for the performance of its duties. It is subject to Section 217 of the Constitution, which requires it to comply with the principles of fairness, equity, transparency, competitiveness and cost-effectiveness. The Board publishes Annual Reports. It is subject to investigation by the Auditor General. It must comply with financial legislation, including preparing financial statements in accordance with the legislated financial reporting framework. What is then meant by “proper” democratic accountability?
The Recommendation further states that “If the Act is either amended or repealed, this will not result in automatic transfer of ownership to the people on the land…” Instead, ownership will transfer to National Government. Is Government better equipped to manage the land of our communities than we are as Amakhosi? This is to imply that governments are run by Angels who as paragons of perfection can commit no error.
I have lamented time and again that the role, powers and functions of Amakhosi have never been defined in a single piece of legislation, allowing them to be undermined and diminished by successive Acts. Government has usurped the role, powers and functions of traditional leaders, from the moment the Municipal Structures Act created wall-to-wall municipalities without distinguishing what falls under the jurisdiction of traditional leadership. Without the government fulfilling its promise to amend Chapters 7 and 12 of the Constitution, Amakhosi including the Monarchy, they are no more than mere ceremonial figures.
The promise made to us in 2000 by a Cabinet Committee led by the then Deputy President Jacob Zuma, that Chapters 7 and 12 of the Constitution would be amended to ensure that traditional leadership would not be destroyed, has never been fulfilled. This recommendation by a High Level Panel to repeal the Ingonyama Trust Act – so that all the land will be given to national Government – is surely the final nail in the coffin of traditional leadership. We achieved political emancipation in 1994, but that has not truly applied to Amakhosi and indigenous communities.
Recommendation 3.5 states that amendment to the Act “…should include provisions for the transfer of the Trust land, assets, liabilities, rights and obligations to the Minister responsible for land affairs as custodian on behalf of the members of the communities and residents concerned.”
I know the Honourable Minister Gugile Nkwinti, MP. He is a humble servant of the people. He cannot claim to be the embodiment of justice and fair play more than the Honourable Justice Jerome Ngwenya. What would then qualify the National Minister to be a better custodian on behalf the members of the communities and residents concerned? Is it not an insult to His Majesty and Amakhosi that people elected to be Representatives in Parliament have more empathy for our own people than the King and all of us?
The Ingonyama Trust Act recognises that our King is the custodian on behalf of all his people. Even when amendments were made to the Act in the past, it was accepted by all parties that the King holds this authority, and should hold this authority. In the KwaZulu Natal Legislature on 11 March 1997, the Hon. Dr ZL Mkhize, the then Minister of Health, spoke in a debate on the Ingonyama Trust Amendment Bill and said the following –
“(The Bill) makes it possible for this Province to move ahead with the programme of development… I wish to confirm that we have accepted and supported that the King should be the Chairperson of the Board or the representative of the King. Because as we all are agreed on the proposition that all the land belongs to the King it should not appear to be only said by word of mouth but it should be seen that the Monarch is inclusive in the Act.”
To my mind, the motivations put forward for amending the Act are weak. For instance, it seeks to provide “that trust land shall be subject to national land programmes”. But that is already the case. As the Hon. Mr JH Jeffery stated when the Ingonyama Trust Amendment Bill was debated in the KwaZulu Natal Legislature in 1997: “The Bill provides for national land reform programmes to apply to land in the Trust. That is something that actually would have applied anyway but it makes it easier by putting it into the Bill.”
The recommendation also states that amendments to the Act must “reiterate that the Act shall not apply to land in all townships”. However that too was done in the 1997 amendment. Why amend an Act to reiterate something already in the Act? That makes no logical sense.
Further, it states that amendments to the Act should “include provisions amending the composition of the Ingonyama Trust Board, which should fall under the auspices of the Minister responsible for land affairs”. When the Act was amended it was agreed that the Minister makes appointments to the Board in consultation with the Premier, the House of Traditional Leaders and the King. Clearly the Panel prefers the Minister to have unilateral power to appoint whomever he pleases to administer our communal land.
Why does the ruling Party, the African National Congress prefer the Minister to have unilateral power to appoint whomsoever he pleases to administer our communal land? Is this in keeping with the culture of patronage which dominates our country today? Let us have no illusions that it is not the ruling Party, the African National Congress which is behind this whole operation of scrapping the Ingonyama Trust Act. I know that we belong to different political affiliations and I appeal that my statement should not be perceived as a political attack on the ANC. It is the ANC which has passed resolution after resolution, wanting this to happen. Let us not now be blinded by the fact that it is our former President, His Excellency Kgalema Motlanthe who headed this particular panel and focus on him instead of on the ANC.
This is not the first attempt we have seen to try to scrap the Ingonyama Trust Act. Government tried to do so immediately after the 1994 elections, 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. Even as I speak the ANC wants Provinces to be abolished, because they were my contribution to Constitution-making. To them until the institution of Traditional Leadership is abolished, South Africa is not yet free.
Apparently, there are moves afoot to now take that final step and abolish the Trust completely. This is not in the best interests of our people. Let us therefore be careful in our deliberations so that we will emerge from this Discussion Forum with resolutions that will secure the future of our people and the future of traditional leadership. If this programme is not abandoned, we still face a future that is too ghastly to contemplate.
I thank you.