Ingonyama Trust was established in 1994 by the erstwhile KwaZulu Government in terms of the KwaZulu Ingonyama Trust Act, (Act No 3KZ of 1994) to hold all the land that was hitherto owned or belonged to the KwaZulu Government. The mandate of the Trust was to hold land for “the benefit, material welfare and social well-being of the members of the tribes and communities” living on the land.
When the democratic government came into existence initially in terms of the Interim Constitution of 1993 the original enabling Act creating Ingonyama Trust was reviewed comprehensively such that the final product was a new Act albeit called the Amendment Act. This Amendment Act had to meet all the constitutional requirements both in terms of the Interim Constitution and the final Constitution of 1996.
His Majesty the King is the sole Trustee of the land. The Amendment Act provides, among other things, for the establishment of Ingonyama Trust Board to administer the affairs of the Trust and the Trust land.
There are at least four provisions in the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) which are crucial in order to grasp the context and the environment in which Ingonyama Trust find expression. Section 211 and 212 recognise the institution of traditional leadership and customary law, subject to the constitution. Section 2 of the Constitution provides for the supremacy of the constitution and provides that law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.
While the Ingonyama Trust predates the Constitution, its existence finds expression and protection under the provisions quoted above and Section 25 of the constitution. Firstly, the land which the Trust is the nominal owner of is administered mainly in terms of Zulu customary law. The land is divided according to clans under the leadership of Traditional Leaders (AMAKHOSI) who in turn are responsible to the King in terms of customary law. Hence the King is the only Trustee of Ingonyama Trust.
Click here for the schedule that depicts the clans which are beneficiaries of the land under His Majesty the King as sole trustee.
The enabling Act was amended in 1997 to create a Board separate from the Trust to administer the trust and its assets which include land. This amendment tried as far as possible to align itself with the practice under customary law. The King for all practical purposes is relieved of all hands on administration. This is left to Board members none of whom is a trustee.
Communally the land is owned by the clans as a collective in respect of each demarcated area. In turn each member of each clan is entitled through the procedures under customary law to have ownership of his/her allotment. The land which Ingonyama Trust owns, is the property envisaged in Section 25(1) of the constitution. Thus while not each and every member of the beneficial clans has a registered title deed in respect of his/her allotment, such ownership is protected by the law.
While Section 25(6) provides for the enactment of a legislation to strengthen land right ownership to address past historical racial inequalities, it is submitted that land beneficiaries of Ingonyama Trust land can have access to such protection even currently.
The Ingonyama Trust land is still the most economically accessible land in the province. However, due to population exponential growth strong measures are to be applied in land allocation by the Traditional Councils on the ground. For this to happen, the Ingonyama Trust Board needs to expedite policy formulation and cascade it to the Traditional Councils sooner than late.
The Trust mandate is not confined to land ownership only. It is entitled to do anything which a corporate body may do, subject to the enabling legislation.