A victory for private property rights in customary law – Zakhele Mthembu
25 October 2021
The Ingonyama Trust has been in the news for quite a while. Depending on where you sit on the proverbial political compass, left of right, the issue ought to be of interest to you. The question of whether it is possible, using the paradigm of the indigenous customs of abaNtu, to institute a private property title regime, has been a central one. According to KwaZulu-Natal High Court case of Council for the Advancement of the South African Constitution v Ingonyama Trust (11 June 2021), the answer is yes.
This case was brought by residents of the Ingonyama Trust, with judgment handed down in June. The main point of contention was whether the Trust, governed by the Ingonyama Trust Act of 1994 (Trust Act), had the power to convert Permission to Occupy (PTO) certificates, which it had granted to residents in the former Zululand bantustan (presently the land governed by the Ingonyama Trust), into leases. Beyond the legalese of these facts, the central issue was to whom does the land belong, the people or the Zulu King? The family or the state?
The court ruled that the leases, which were introduced by the Trust in the mid to late 2000s, were unconstitutional, had no basis in the legislation which the Trust Act claims to be governed by, and most importantly, could not be supported by the prescripts and normative paradigm of indigenous Zulu law.
The order also stated that the leases were illegal and that the Trust, with the monarch as its sole trustee, was liable to pay back the money that had been paid to it as rental fees which were introduced when the PTO certificates were converted to leases. Most importantly, the court spent a considerable amount of time interrogating Zulu culture and by extension Zulu law and, as such, contributed greatly towards the development of customary law as it is currently known, and African common law as it should be known in the future.