In recent weeks there has been a lot of discord about the report of the High Level Panel on the Assessment of Key Legislation and Acceleration of Fundamental Change headed by former President Kgalema Motlanthe.

The panel, appointed by the Speaker’s Forum, released its report on 21 November, 2017. It reviewed over 1,000 pieces of legislation passed since 1994. Its thematic thrust was on how legislation has impacted on such issues as poverty, unemployment, equitable distribution of wealth, land reform, social cohesion and nation building. The report itself is over 600 pages long, with a 42- page executive summary. Accurate implementation of legislation seems to be South Africa’s biggest short-coming in the post-1994 era, and the panel was, obviously, unhappy.

In some instances the panel recommended repeal or amendment of legislation. The Ingonyama Trust Act (1994, as amended in 1997) is one such legislation which received recommendation to review with a view to repeal or substantially amend. The review of Ingonyama Trust Act was done under the theme of Land Reform.

Contemporary wisdom on land reform tends to emphasise the view that land reform should be seen as an autonomy-fostering form of service delivery. Land reform should strive for the betterment of the lives of the previously disadvantaged individuals through facilitating access to and ownership of land. It is common course that state-dependency, high levels of poverty, low levels of education, and lack of infrastructure and resources are found mostly in the former homeland territories of South Africa.

Contemporary advocates of land reform view agricultural development, provision of economic and social infrastructure, cultural transformation and attraction of strategic investments in rural areas as key indicators of a successful land reform programme in the country.

The 1913 Native Land Act, the 1936 Native Land Trust Act and the Group Areas Act (1950 and 1966), were key instruments of statutory dispossession of land from Africans. The African heritage of customary land tenure was destroyed at the conclusion of the legislated dispossession spree by the colonial and apartheid governments.

The Ingonyama Land Act was first passed by the KwaZulu Homeland government in 1994, in order to secure the homeland geographic area from returning to the trusteeship of the national minister. As a result of the homeland legislature passing this act, the new Province of KwaZulu-Natal became uniquely different from the rest of South Africa in its rural outlook. Obviously, because the apartheid framework was against individual or any form of land ownership by Africans, the land in the homeland was “loaned” to the homeland governments to administer on behalf of national government. The homeland system did not result in the return of land to the masses of black people.

The Ingonyama Trust Act did not also address the problem. Instead the Ingonyama Trust Act, or the institution in operation, started a narrative that, by operationalising a legislation which came as a result of consent between the Ulundi and Pretoria governments in 1994, it was shielding rural African residents from the harshness of coming democratic state.

This, in return, had the consequence to prevent the national land reform initiatives in the democratic era from applying directly to the former KwaZulu Homeland geographic area.

A potential headache! The recommendation of the High Level Panel reads: “The panel proposes the review of the Ingonyama Trust Act with the view to repeal or to amendment.”

It is unclear what triggered the war talk of recent weeks by some Zulus and some Zulu leaders, as a response to the High Level Panel’s report. So much has happened in land reform in South Africa, since 1994. Those calling for war, should instead be spending their efforts on listening to land reform activists, rural residents and aligning the aims and the objectives of the trust with the Constitution and applicable national legislation.

Repealing and amendment of the legislation is part of the day-to-day work of governments all over the world. It is also generally accepted, in many parts of the world and in the developmental state of South Africa that land tenure systems are evolving. The Ingonyama Trust is challenged to demonstrate that, in its operations, it respects rights of rural citizens to reasonable occupation and use of land, and to security thereof.

The panel noted that in recent years Ingonyama Trust, possibly buoyed by its feeling of uniqueness, decided to do away with issuing Permission to Occupy (PTO) certificates to rural citizens and developers. Instead it chose the route of 40-Year Lease Agreements, with a provision that should a tenant default on rent payment, such agreements can be dissolved. In such a case assets return to the trust, including any improvements that the tenant may have done.

That is scary! Therefore, the pervasive issue facing the trust is finding the answer to the question: Who owns the land which is held in trust by the Ingonyama Trust? Who is / are the intended beneficiaries? And what are the operational plans aimed at ensuring that the intended beneficiaries do benefit? This becomes more imperative where rural land is leased to developers and the miners without the benefits of lease accruing to the ordinary users and occupiers of the land. The trust is reported to have netted R96-million in the 2016/17 financial year, the panel observes, and questions the use of such income. The panel concluded that the Ingonyama Trust abrogates the rights of those it claims to be protecting.

First president of the ANC, John Dube was adamant in front of the Parliamentary Committee, holding hearings before the passing of the 1913 Native Land Act that access to and ownership of land was a basic essential for the growth and prosperity of Africans in South Africa.

The panel had problems with the functioning style of the Trust, averring that the Trust “had to exist and function subject to the land rights under customary law”. Customary law land ownership gets complicated by the corruption of the traditional leadership system by Theophilus Shepstone in the 1840s and 1850s in the case of Natal, and the creation of kinglets in Zululand in the aftermath of the Anglo-Zulu war of 1879.

A reasonable solution would be to give title deeds to those who occupy and use the land, without intermediaries like Amakhosi intercepting those rights. How legal can a scenario be where amakhosi intercept the land rights meant for families and individuals in rural KwaZulu-Natal?

My submission is that the recommendations of the High Level Panel cannot be answered by war talk. The affected leaders, the rural residents and the land reform activists can come up with reasonable amendments, bearing in mind that if, in future, there is a hostile government this matter will not be up for discussion. DM

Professor Musa Xulu is the Executive Director of the Heritage Development Trust NPO, and a member of the Mthonjaneni Development Network. He is writing in his personal capacity

Photo: King Goodwill Zwelithini delivers an address at the National Day of Reconciliation celebrations at Ncome Museum in KwaZulu-Natal, December 2014. (Photo: DoC)