Land Management in practice!

The mandate of Ingonyama Trust is management of land falling within its jurisdiction. Such a process is not simple as it involves various role players amongst whom there is Amakhosi and Izinduna. The latter constitutes Traditional Council structures which administer the same land in terms of customary law exclusively.

This system of law may be too percular to an outsider. This therefore by its very nature is quite complex and has implications in terms of immovable asset management, which is a challenge across most departments with such a mandate.

The year under review brought about new developments. Of these is the introduction of reporting requirements to the Portfolio Committee on Rural Development and Land Reform which is a departure from the past. ITB is still on a learning curve to satisfy some of these requirements and will work closely with the Portfolio Committee to enable it to understand its oversight role while at the same time creating an environment for synergy in understanding the role of ITB.

Management of land comes with a variety of challenges including administration of leases and collection of revenue from various clients. These impose even greater responsibility on the Board which has for many years operated with minimum personnel. The situation is not made better by individuals and entities which include other organs of state which take advantage at hand and irregularly acquire Trust land and some revenue due to the Board.

This in a nutshell demonstrates the need for an integrated approach in managing land and other national resources as there are various stakeholders and interest groups. We are indeed working towards achieving this and we will the coming year sketch our efforts even further with a view of concluding memoranda of agreements with various actors in trying to address this issue.

It is encouraging that other departments like the Department of Forestry and Fisheries have started entering into leases with the Board in respect of the few forests which are on Trust land. Likewise the provincial Department of Transport which has hereto evaded taking responsibility for the plundering of the Trust land quarry over the years has at last agreed to co-operate and enter into leases with the Board in respect of burrow pits.

It should be quite obvious from what I said above that as a Board we need to take bold decisions and implement them in order to make a meaningful and urgent contribution in the country’s economic and social transformation. To this extent we need to engage the financial institutions, especially banks to adapt their mind set in so far as rural people and communal resources especially land are concerned.

The National Credit Act and internal bank prescripts and lending criteria in particular are important and critical instruments in assessing individual’s ability to be granted loans,however, it is an open secret that people living in rural areas are discriminated against by these institutions. In this regard we are hopeful that various ministries in governments as well as engaging the banking sector as a collective will yield positive results. Therefore it would be expected that moving forward radical policy shift would be expected from the Board.

From the past many years I have pleaded for political leadership and guidance in the matter of Municipal Property rates. This I have done because in my view the issues of property rates is second only to land ownerships in issues of sensitivity. That the Board and eThekwini Metro had to go as far as Constitutional Court on this matter and still remain deadlocked to date is a matter of grave concern.

One is justified to think that the glaring silence on this point on the part of local authorities is deliberate. We do note that the strategy is conveniently to issue out summonses against the Board to recover allegedly owing rates.

The strategy is premised on the assumption that in this way there will be disruptions as the true payers targeted are not directly confronted. The idea is that if the ITB loses the case and it’s unable to pay and settle the debt, the local authority will have a free hand to attach in execution any land it chooses registered in the name of the Trust.

This attitude is regrettable because in trust the land which the Board administers belongs to the people. I can only hope for a better cooperation between the Board and the local authorities moving forward. We are indeed looking at options to deal with this matter even if it means charging market related rentals on its leases in respect of state domestic properties to raise revenue if necessary in order to meet the obligation thus created, should the final decision be that the Board must pay.

This approach will have serious implications for the state including municipalities as they also have structures on the land administered by the Board.

It would be noted that the fundamental issues raised by the Auditor General perennially are two. The first and complex one is land valuation. My views on this have not shifted over the years. The Trust came into existence on the 25 April 1994 and has been the owner of the land which is subject matter of this audit finding since.

There was no Public Finance Management Act (PFMA) then. The Board which is being audited came into being on 2nd October 1998. It could not change the cause of history. The PFMA came into operation in 2000 and it would appear that the Auditor General is of the view that the provisions of the PFMA apply retrospectively.

The second audit finding where we come from different perspectives with the Auditor General for some time is that of royalties. My view on this remains what they were in the last financial year.

It will be noted from the audit findings that the Board does everything within its power to meet every legal prescript. Matters where there are adverse findings are legal prescripts which relate to matters which are beyond the Board’s competency.

The technical issues raised are either by audit or Portfolio Committee tends to take the focus away from the great value the Board serves in providing stability in the administration of communal land. We must accept that the system is not perfect and there is room for improvement.

In my view with all the constraints and challenges alluded to in this report the Board has succeeded in discharging its mandate, taking into account that in the year under review it has cost the South African Tax Payer only R17 294m to subsidise the activities of the Board. Clearly the returns far outweigh the costs. No doubt these costs will increase before they go down.

20 Years of the Ingonyama Trust Board

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.

 

Ingonyama Trust Board is a unique entity

Towards the end of 2012, Ingonyama Trust Board officially opened its Headquarters offices in Pietermaritzburg at number 65 Trelawney Road on 9 November 2012. To His Majesty the King, the Board Members, the Staff and Amakhosi this was a dream come true. This was one great event after another. An earlier event was the launch of Ingonyama Rural Development Forum which took place in May 2012.

Why should one regard these events as landmarks? The answer is simple. Ingonyama Trust is a very unique entity in the whole world. It is a property owning trust, managed by a professional Board with the King as its Chairman, for the benefit of the communities. The land is allocated by the Traditional Councils in terms of indigenous law and culture. Therefore it is very important that an institution like this should have sufficient space from which to operate. There are many reasons for this. Let me deal with one or two.

Most practises of indigenous law and culture are not written. Hence, it is difficult to understand from the onset as an outsider how the system works. For this reason the existence of the Board to administer land at a higher level makes a compelling case for researchers and academics to constantly observe the workings of this institution. But even generally while indigenous law and culture is recognised by the Constitution of the country and governs relations among the majority of the population of this country many still do not have full appreciation of its application. Especially in land matters.

While at the end of the day, the preferred tenure issued by the Board is a leasehold, this is a simplification of a complex process which in essence contains a myriad of rights. People who live according to indigenous law and custom know that their rights are not adequately described in the leasehold as theirs is more than this. Hence, a leasehold agreement   is a convenient description of part of the content of their rights. There is a lot that a lease agreement does not cover. Their association with land of which they are beneficiaries, is permanent and perpetual.

As such to them Ingonyama Trust Board is not a landlord. It could not be rationally explained how an entity which came into existence just the other day can be the owner of land which most of the beneficiaries predate its existence. The fact that they have no documents to prove their rights is not good enough to deny their existence.

Previous successive government administrations retained the land which is the subject of ownership by Ingonyama Trust in a communal set up for a variety of reasons. These were mostly political and I do not intend dealing with them here. What is important though is the subtle acknowledgement that communal land ownership consists of more than land ownership.

The layers of rights embedded in communal land which Ingonyama Trust Board is entrusted to oversee consist among others of the rights to land, as well as social and economic rights. These rights are intertwined and cannot be easily discerned.

In a way indigenous layers of rights   in the absence of clear recordal are suppressed and hidden. The Board is like an outside world which is there to protect them in the language and manner that can be interpreted in the context of our common law.

The Board must, moving forward, seek to document and clarify the entire content of these communal rights which each holder has on land. Hopefully once this is done a correct description of the nature of the instrument which encapsulates these rights will be properly described or given an appropriate term. In order to undertake this, the Board needs resources and space. Hence the significance of having new and bigger office space. It is this space that has now been acquired. The work is thus about to begin.

One might ask what other work is done in the ITB offices. There is a lot, but let me confine myself to one. Most title deeds have conditions. Likewise most things, properties apart from cadastral description, have names.

Some of these names are offensive and derogatory. Some of the conditions are likewise offensive and racially discriminatory. It is not unusual to come across for instance a condition of title which reads “this piece of land shall not be owned by a native”.

While in terms of our current law conditions like this are unthinkable and unconstitutional, they do not remove themselves automatically from the title deeds if they were once there. Therefore as part of aligning issues and in particular land matters to a new constitutional order, our staff also attend to the removal of these outdated conditions and names on title deeds.

I am not aware of any institution which has made it its business to focus on the issues the ITB is focusing on. No doubt its birth will remain forever an area of controversy, but that is not what preoccupies the Board.

What I intended to drive home here is that in 2014 Ingonyama Trust will be twenty years old. The lessons learnt from its operation, (especially from the time the Board came into existence in 1998, after the Act was substantially amended and effectively rewritten) are worth capturing for generations to come.

The proposed legislation on land reform has isolated communal land and deem it appropriate to deal with it separately. One is inclined to agree with this view. We believe that there are many lessons to be learnt from the experience of Ingonyama Trust. That experience needs to be factored in when the communal land law is ultimately passed.

We as a Board would not have moved this far alone. It is therefore very important that we extend our gratitude to all the communities living on this land we are asked to contribute in its administration, Amakhosi and their Councils, the Minister of Rural Development and Land Reform, our Executive Authority and his staff, members of the Portfolio Committee on Rural Development and Land Reform, the entire ITB staff, various Municipalities in the Province as well as various Provincial Government Departments. Without your co-operation, our existence stand to suffer. We are as always for ever grateful for the sterling leadership from His Majesty, the King. Bayede!