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ABSTRACT
This article discusses the implication of the 2021 CASAC v Ingonyama Trust judgment on South Africa’s land governance policy trajectories. It explores the extent to which there are missing links between policy imperatives, the legal system, court processes and socio-economic emancipation. It argues that the failure of the state in policy design and implementation has turned courts into contradictory sites of struggle for emancipating land rights. In particular, we examine some of the key specific and broader implications that emanate from the landmark ruling in the case that was lodged by the Council for the Advancement of South African Constitution and Rural Women’s Movement against the Ingonyama Trust and Board, where the conduct of Ingonyama Trust was found to be illegal and unconstitutional, as it undermined the indigenous land rights of people occupying the land by converting their land tenure rights into leasehold. The verdict was a huge affirmation of indigenous land rights, but the judgment is unlikely to translate into clear policy. Instead, it has unleashed confusion and dilemma tied to colonial and apartheid legacies as well as competing jurisdictions. Our main argument is that court judgments become de facto policy statements, but those policies are not easily implemented because they are intersectional. We show that current land policies, including the one involving the Ingonyama Trust, has an intersectional genesis that includes old apartheid legislation and policies, the Constitution of the Republic of South Africa, 1996, as well as legislature and other political deals (such as negotiations to bring about reconciliation) that cannot be easily undone by any one court judgment.
Acknowledgements
The authors acknowledge funding support for the initial research from Land Network National Engagement Strategy (LandNNES).
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 See Ingonyama Trust paragraph 16: ‘The Zulu monarchy became in all essentials a unitary state, ruled by the despot who had called it into being’.
2 Interim Protection of Informal Land Rights Act 31 of 1996. The Ingonyama Trust thought this Act does not apply to Trust land – see Ingonyama Trust paragraph 65.
3 Gumede v The President of the Republic of South Africa reaffirmed indigenous law as an independent source of law, existing side by side with common law.
4 Ingonyama Trust paragraph 15. See Black Administration Act 38 of 1927, section 24 of KwaZulu Land Affairs Act 11 of 1992, the Ingonyama Trust Act, Proclamation R168 of 1994, KwaZulu Chiefs and Headmen Act 8 of 1974, Traditional Leadership Governance Framework 41 of 2003, KwaZulu-Natal Traditional Leadership Governance Framework Act 5 of 2005 and Regulation R1238 in Government Gazette 19300. Also see the Report of the South African Native Affairs Commission, 1903-1905 (Commission) section 81 page 14.
5 Ingonyama Trust paragraph 1.
6 Ingonyama Trust paragraph 3.
7 Webinar held on 6 July 2021 entitled ‘Ingonyama Trust Lease Case: What are the Judgment’s Implications for Tenure Security of Rural South Africans?’
8 Ingonyama Trust paragraph 61(2).
9 This emerged during a virtual seminar organised by the Technical Dialogue on Agricultural Finance Issues of Land Management in South Africa, the Land Bank and Land Network National Engagement Strategy held on 9 December 2020.
10 This lacuna also arises in the CASAC hearing in the KwaZulu-Natal High Court (case no:12745/2018P), discussed further down.
11 This emerged in email correspondence with a government official dated 29 August 2022, following a request for shape files of land owned by Ingonyama Trust. The email notes that Ingonyama Trust does not share land data.
12 Ingonyama Trust paras 200, 201.
13 Section 195(1)(f) of the Constitution commits to a public administration that is underpinned by minimum basic values of accountability, while section 195(1)(g) is committed to transparency by providing the public with timely, accessible and accurate information.
14 Ingonyama Trust paras 115, 116,121, 124, 129, 136, 161 & 181.
15 Ingonyama Trust paras 97, 98 & 101.
Additional information
Notes on contributors
Siyabulela Manona
Siyabulela Manona is a Research Associate at Rhodes University. He is also Director Land Governance Policy and Implementation at Phuhlisani NPC. He is recognised as one of the leading land governance specialists in South Africa, with unique insights in land administration, land law, rural livelihoods, environment, forestry and land data information systems. He is also a research associate at Rhodes University.
Thembela Kepe
Thembela Kepe is a professor of geography at the University of Toronto and is cross appointed to the department of global development studies at the same university. He is a visiting professor at Rhodes University. His interests include land rights, political ecology and rural struggles.