Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996)
The mandate of the Ingonyama Trust Board is derived from sections 25 and 27 of the Constitution. Section 25 (property clause) confirms the framework for the granting of tenure rights on land, and section 27 (health care, food, water and social security clause) confirms the framework for the provision of support to rural communities residing under Ingonyama Trust land.
The Ingonyama Trust Board obtains its legislative mandate as follows:
Ingonyama Trust Act, 1994 (Act No. 3 KZ of 1994) as amended by Act 9 of 1997
The Ingonyama Trust was established in 1994 by the KwaZulu Ingonyama Trust Act, (Act No 3 of 1994) to hold the land in title for “the benefit, material welfare and social well-being of the members of the tribes and communities” living on the land. The Act was subsequently amended by the KwaZulu – Natal Ingonyama Trust Amendment Act No 9 of 1997.
The Ingonyama Trust Act places emphasis on the property clause as per section 25 of the Constitution and gives a stronger mandate for the Board to protect the land and ensure the benefit of communities from the proceeds of the land.
Section 2 (2) of the Ingonyama Trust Act establishes the framework for the administration of the land for the benefit of communities.
Section 2 (5) of the Ingonyama Trust Act establishes the framework in which land rights are to be granted and at the same time protecting trust land.
Ingonyama Trust which is a Body Corporate established in terms of (Sec 2 of the KZN ITB Act kzn of 94) is the registered owner of various pieces of land in KwaZulu Natal which have always historically being part of the land in the Zulu Kingdom dating back to various Zulu Kings. From colonial times this land ownership has been registered either as state land or a state created trust like the South African Development Trust (SADT). The Trust was established during the transition period in South African history which leads to the birth of present day democratic government in a constitutional state.
The Trust itself is separate from the Board. The latter is a legal entity created to administer the affairs of the Trust.
Various National, Provincial and Local Government legislation apply to Ingonyama Trust land. The last amendment of the Ingonyama Trust Act was in 1997. There is currently an amendment of the act which will substantially change the role of the Board. Among others is to align its role with emphasis on Rural Development.
The following pieces of legislation are among them.
- Conservation of Agricultural Resources Act 43 of 1983,
- Mineral and Petroleum Royalty Act 28 of 2008,
- Deeds Registries Act 47 of 1937,
- National Environmental Management Act 107 of 1998,
- Environmental Conservation Act 73 of 1989,
- National Forests Act 84 of 1998,
- Expropriation Act 63 of 1975,
- National Veld and Forest Fire Act 101 of 1998,
- Fencing Act 31 of 1963,
- National Water Act 36 of 1998,
- Housing Development Agency Act 23 of 2008,
- Provision of Certain Land for Settlement Act 126 of 1993,
- Intergovernmental Relations Framework Act 13 of 2005,
- Public Finance Management Act 1 of 1999,
- Interim Protection of Informal Rights Act 31 of 1996,
- Restitution of Land Rights Act 22 of 1994,
- KwaZulu-Natal Heritage Act 4 of 2008,
- Spatial Planning and Land Use Management Act 16 of 2013,
- KwaZulu-Natal Nature Conservation Management Act 13 of 2005,
- Traditional Leadership and Governance Framework Act 41 of 2003,
- KwaZulu-Natal Planning and Development Act 6 of 2008,
- Upgrading of Land Tenure Rights Act 112 of 1991,
- KwaZulu-Natal Rationalisation of Planning Laws Act 8 of 2008,
- World Heritage Convention Act 41 of 1999,
- KwaZulu-Natal Roads Act 4 of 2001,
- KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005,
- Subdivision of Agricultural Land Act 70 of 1970,
- Land Survey Act 8 of 1997,
- Local Government: Municipal Property Rates Act 6 of 2004,
- Local Government: Municipal Systems Act 32 of 2000,
- Mineral and Petroleum Resources Development Act 28 of 2002.
Land is a national competence in terms of the Constitution therefore all policies of the National government pertaining to land apply to Ingonyama Trust land.
Apart from the policies relating to land reform other government policies like environmental affairs, water, and conservation equally apply on Ingonyama Trust land.
It is a well recognised principle of indigenous law that land is indivisible. Therefore the Board as a matter of policy has advanced a practice that beneficiaries of this communal land should opt for a lease as a formal instrument of their right in a communal setup.
The proposed Government policy is a four tier land tenure system namely:
- Private ownership (freehold), state (public ownership), foreign ownership, and communal land,
- Based on this a more detailed policy on Communal Land usage will emerge.