In the last twenty years Ingonyama Trust has grown leaps and bounds as an institution. The Trust was created in 1994. The Act was amended in 1997 which amendments came into operation on the 2nd of October 1998 and introduced a Board to administer the affairs of the Trust and Trust land.
The Ingonyama Trust Board is the only one of its kind. Some of its founding members like myself are still on board. Whatever its shortcomings are it is the only institution in the country that is completely dedicated to and focused in managing and administering communal land under the custodianship of the Traditional leaders. This is no easy task. Firstly land is a national competence. Traditional Leadership is concurrent between provinces and national. The Minister responsible for Traditional Leadership has no relationship with land issues. Instead he/ she has a dual responsibility on co-operative governance. The effects of these separate competences is that in the country as a whole there is no legislation setting out powers of traditional leaders over land. This is simply because the Minister responsible for Traditional Leadership has no authority to legislate on land matters. Yet we all know that most energy in traditional leadership and governance is channelled at land and people management.
As stated earlier, Ingonyama Trust Board administers land with the Traditional leaders. This is not because the Act says so. But it is because from the onset the Board recognized the gap in the legislation and took a conscious decision that it would read into the legislation the words which were omitted. No doubt this could not have been intended. By being conscious of this omission the Board worked hard over the years to improve its relations with the Traditional leaders. In so doing it has allayed their fears and suspicions. The Board is enjoined in administering land owned by the Trust in terms of Zulu law and any other law. To this extent there is a clear recognition that indigenous law recognizes horizontal and vertical ownership of land. Horizontal ownership of land is inalienable while vertical is capable of disposal. Differently put, land under indigenous legal system from where we as the Ingonyama Trust Board sit, cannot be sold. However, improvements on it like buildings can be sold. This is a big difference with South African common law seen from the lenses of Roman Dutch law. The latter takes the view that land can be sold or alienated, and that whatever is permanently attached to land is treated as part of the land, it is not necessary in this report to take this aspect any further. Suffice it to state here that there exists a dire and urgent need to comprehensively review land and property law in South Africa.
I wish to share with the readers and authorities what we have learnt as an institution over the years and what challenges lie ahead. Firstly, because land allocation under traditional system remains oral, rights to land are treated as informal and unregistered. Yet people invest their life savings building permanent homes. The land owned by Ingonyama Trust, which we as the Board administer jointly with the traditional leaders is classified agricultural land. The truth is that this is mixed use in every sense of the word. People reside on this land, there are schools and all other public facilities and infrastructure. The land is not formally subdivided. In practice people build whatever they want as long as they have been given consent to have access to a particular piece of land. The problem arises as soon as they seek any formal approval from the local authority. Let me give an example to illustrate the point. Currently, building shopping centres in rural areas where none existed before is the flavour of the day. So, a particular developer will approach the local leadership for rights to and where the proposed shopping centre will be built. Once the necessary written consent is obtained, the developer will then approach Ingonyama Trust Board (ITB) for a lease. Once a lease agreement is finalised, then he must apply for it to be notorially registered. As this process is underway, the developer also applies now for development rights, which is nothing else but zoning of the property which is by its very unique nature already zoned for the purpose. This process of applying for development rights can take ages, with objections and environmental and a host of other requirements.
In my view failure to appreciate the complete nature of communal land result in a huge bureaucratic red tape and unnecessary costs being incurred as a result of local authorities thinking they are dealing with agricultural land. What is even more concerning is that most local authorities with infrastructure on Ingonyama Trust land do not follow their own laws. They simply build whatever they want. This to me belies the very assertion that communal land is generally agricultural land. It also belies the argument that the Subdivision of Agricultural Land Act 70 of 1970 automatically applies to communal land except where the state or a statutory Trust is the owner.
Happily the Office of the Surveyor General has now issued a memo after the Supreme Court of Appeal judgement between eThekwini Municipality and Ingonyama Trust, in which the Surveyor General acknowledges that this Act does not apply on Ingonyama land. Hopefully this settles the matter once and for all.
The provincial government through the Department of Co-operative Governance and Traditional Affairs (COGTA), has set up what has become known as the small towns development committee. This committee as far as I could ascertain was set up to formalise small towns, some of which are on communal land. It would be beneficial to all to know the legislation in terms of which this committee was established and that which it will invoke to set up or formalize these small towns.
As long as there is no general recognition that the development on communal land and in particular Ingonyama Trust land is not premised on municipal ordinance or legislation but on appropriate understanding and acknowledgement that this land when it was set aside for black occupation in 1913 and later as native reserves it was inherently designed that the “natives” could live their complete lives there for ever, the problem will fester on. That is the reason why the government of the day and communities built houses, schools, shops, churches and all public facilities and amenities there without any further ado. Thus rural development remains an elusive dream. This is further compounded by those who confuse land tenure legislation with development and planning legislation. For municipalities to discharge their constitutional mandate as far as planning is concerned, they need not be the owners of land which is the subject of planning and development legislation.
It is my hope that moving forward in this phase of our democratic transition there would be a greater understanding and co-operation between all the stakeholders and role players in this space. In particular I wish to see both local government and Ingonyama Trust Board reaching an agreement in terms of how they would fast track rural development on Ingonyama Trust land. The critical piece of legislation here is the recently passed Spatial Planning and Land Use Management Act (SPLUMA). Once a common understanding is reached on this point I have no doubt that we could all notice a rapid development free from red tape taking place on ITB administered land.