The Ingonyama Trust Case

Ms Hletshelweni Lina Nkosi was one of several thousand women stripped of their land rights by a traditional leadership institution. Following the Ingonyama Trust’s 2007 launch of its ‘PTO Conversion Project’, she was notified by Trust officials that her PTO certificate no longer had validity in law. IPILRA says that ‘[t]he holder of an informal right in land shall be deemed to be an owner of land’ for various purposes (IPILRA, s. 1(2)(b)). By contrast, the Trust told community members that to have a more formal and secure title deed under the Upgrading of Land Tenure Rights Act, they had to sign a lease agreement with the Trust, which resulted in a downgrading of their property rights to those of rental.

Ms Nkosi was led to believe that she had to sign the lease. Yet when she tried to sign the agreement, she was further informed that single women were not permitted to do so. Fearing eviction and the loss of her home, Ms Nkosi co-signed the Trust’s lease with her partner. These allegations formed part of the application brought against the Ingonyama Trust, the ITB and the Minister of Rural Development and Land Reform (the Minister) by the Legal Resources Centre (LRC), acting on behalf of the Council for the Advancement of the South African Constitution (CASAC), the Rural Women’s Movement (RWM) and seven informal land rights holders. In this case, CASAC and RWM were acting in the public interest; Ms Nkosi and the other six informal land rights holders represented a class of people whom the Trust had swindled.

The applicants requested that the court declare the actions of the Trust unlawful and in violation of the Constitution. The ITB persisted in arguing that the leases it had fraudulently persuaded the parties to enter into provided stronger tenure rights than those they already had and would help the residents secure financing from banks and enable them to establish businesses. The truth of the matter was that converting their strong informal land rights into formal but weak land rights under the guise of leases would diminish their tenure security.

On 11 June 2021, Madondo DJP (with Mnguni and Olsen JJ concurring) issued a landmark decision in the applicants’ favour. As the LRC had argued,Footnote ⁹ the unlawfulness and unconstitutionality of the Trust and ITB’s actions lay in concluding, under false pretences, residential lease agreements with residents on the land held in trust – some, if not all, of whom had PTOs or other informal rights protected by IPILRA. Thus, the resultant leases over ‘residential land or arable land or commonage on Trust-held land’ were invalid, and the Trust or ITB has to refund all money received pursuant to these invalid agreements to the people who had made lease payments.

Given the Minister’s assigned responsibility to ensure adherence to property rights,Footnote ¹⁰ she was in breach of her duty by ‘failing to exercise, or failing to ensure the exercise by her delegate, of the powers conferred by chapter XI of the KwaZulu Land Affairs Act 11 of 1992 and the KwaZulu Land Affairs (Permission to Occupy)’. The decades-long failure of the DRDLR to ‘implement an alternative system of recording customary and other informal rights to land of persons and communities residing in Trust-held land’ necessitated the implementation of PTOs under chapter XI of the KwaZulu-Natal Land Affairs Act in the interim. The Minister was therefore ordered to report to the court on how her department had fulfilled this obligation.Footnote ¹¹

The Maledu Case

Nearly three years prior, the Constitutional Court had confronted a different yet similarly predatory assault on rural residents’ ‘informal’ customary land rights in the Maledu case. The first applicant of thirty-seven in this case was Ms Grace Masele Mpane Maledu, a resident of Lesetlheng village, which formed ‘a community-based organisation consisting of persons claiming to be owners of the farm’ in the Rustenburg district of the North West Province (para. 10). She and the other applicants asserted occupancy and ownership of the farm on which they conducted farming operations following their forebears’ purchase of the land in 1919, in accordance with a decision made by their community in 1916 (para. 12).

In 2004, the Department of Mineral Resources (DMR) granted the first respondent, Itereleng Bakgatla Mineral Resources (Pty) Limited (IBMR), a prospecting right over the farm. Later, on 19 May 2008, the DMR awarded IBMR a right to mine for platinum group metals and associated minerals on the same farm. IBMR then contracted the second respondent, Pilanesberg Platinum Mines (Pty) Limited (PPM), to do the actual mining. IBMR applied to the DMR to excise from its mining right the Sedibelo-West portion of the farm which IBMR was to cede to PPM. In 2014, IBMR and PPM began preparations to undertake full-scale mining operations on the farm, which the applicants resisted by applying to the courts. IBMR and PPM challenged them on the grounds that the Lesetlheng Community were not the owners of the land and had not been entitled to special consultation, consideration or consent.

However, the reason joint ownership of the Lesetlheng village farm had not been registered in the purchasers’ names was the existence of pre-1994 racist legislation. The farm was registered as held in trust by the designated Minister. Furthering the Lesetlheng Community’s legal disadvantage and dispossession was the fact that the community was not legally ‘recognised as an autonomous and separate entity by the government of the day’. Instead, the farm’s title deed ‘reflected that the Minister held it in trust on behalf of the entire Bakgatla-Ba-Kgafela Community’, of which the Lesetlheng Community was a subunit (Maledu, para. 12). This was not an unfamiliar scenario. The drafters of IPILRA had pre-empted such situations resulting from apartheid’s messy history. While the Lesetlheng Community could legitimately fall under IPILRA’s definition of a ‘community’,Footnote ¹² the government entirely disregarded the law and its statements on the nature and interpretation of vernacular law pertaining to land ‘held on a communal basis’ (Maledu, paras. 12–13).Footnote ¹³

The Court answered the crucial question, ‘did the surface lease deprive the applicants of their informal land rights?’, quoting section 2(2) and (4) of IPILRA, which provides the consultation requirements as follows:

In response to the applicants’ claim that the kgotha kgothe – the traditional meeting of the Bakgatla Ba Kgafela – had deprived them ‘of their informal land rights in terms of the customs and usages of the Bakgatla’, the respondents sought to show that the resolution adopted by the Bakgatla Ba Kgafela at that same meeting fulfilled these requirements (Maledu, para. 108). However, given that ‘this resolution does no more than merely indicate that it was adopted and signed by Kgosi Pilane and a representative of Barrick’ (para. 108),Footnote ¹⁴ the court found that ‘there is no shred of evidence to substantiate the respondents’ assertions that the applicants were deprived of their informal land rights in conformity with the prescripts of section 2(4) of IPILRA’ (para. 108).

It was central to the Constitutional Court that the rightful owners of the farm – albeit as ‘informal’ rights holders under IPILRA and thus, by extension, under the MPRDA – were not consulted and did not give approval for any of these undertakings. Even though they were evidently the active occupiers and users dependent on the property, they were dispossessed and stripped of their primary source of livelihood and subsistence by the signature of Kgosi Pilane, following the approval of whoever had gathered to approve the transaction on behalf of the Bakgatla Ba Kgafela Community as a whole. The disregard of the requirements stipulated in IPILRA was used defensively by the applicants to ensure appropriate recognition and advanced protection of the rights of customary residents such as Ms Maledu, although these requirements were actually intended to be used proactively by bodies such as the DMR and the DRDLR.

From these two cases, it is evident how the higher courts have applied the Constitution to protect and advance customary rights to land in the face of the clear determination of the government and traditional authorities to shield and/or push the interests of traditional leaders. The political economy and land reform challenges that are revealed are that the ITB is more interested in rents than the productive use of the land or the security of its dependants, while the Maledu case is fundamentally about the traditional institutional leaders’ focus on extracting profits from mining. This tells us that land is a primary site of politico-economic contestation between ordinary people and their leaders – contestations that centre on the control of assets and the extraction of value from the land on which rural people (and especially women) depend for their material security or, in the case of traditional leaders, their prosperity.

Land as Primary Site of Contestation

In terms of section 25(6) of the Constitution, ‘[a] person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress’. Section 25(7) goes on to prescribe that ‘[a] person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress’.Footnote ¹⁶ In 2004, in Alexkor v Richtersveld Community (paras. 36–37),Footnote ¹⁷ the Constitutional Court affirmed that traditional communities’ land is included under section 25 (paras. 50–64).Footnote ¹⁸ That being so, ‘Parliament must enact the legislation referred to in subsection (6)’ of section 25 of the Constitution (ending tenure insecurity). The government also bears the obligation, under section 25(5), to ‘take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis’. However, as described in the brief discussion of IPILRA, CLARA and the CLTB earlier, the government has not fulfilled this constitutional obligation.

A detailed look at the land distribution statistics for the country demonstrates the persistent impact of apartheid’s discriminatory land policies. In 2019, the Presidential Advisory Panel on Land Reform and Agriculture (PAPLRA), which drew on the 2016 Agricultural Households Survey by Statistics South Africa and the DRDLR’s Land Audit of 2017, reported that white people owned 72 per cent of South Africa’s individually owned farming and agricultural land – precisely 26,663,144 hectares of the total 37,031,283 hectares (PAPLRA, 2019: 43). People classified as ‘coloured’ owned 15 per cent, Indians 5 per cent and the African majority owned the smallest amount of this land, at 4 per cent. The DRDLR’s Land Audit (2017: 2)Footnote ¹⁹ also found that men owned 72 per cent of the total farm and agricultural land it audited, in marked contrast to the mere 13 per cent owned by women. A 2022 report by Statistics South Africa, Women Empowerment, 2017–2022, confirms the gender imbalance, noting that in 2007 and 2018 South African men ‘recorded the highest percentage of owners who farm for themselves full-time or part-time in both years (80,9% and 79,5%) compared to their female counterparts’ (Statistics South Africa, 2022: 59). Yet while the extent and persistence of racial inequity are well established, the gendered dimensions are less so, this imbalance complicated by the fact that there is an assumption that men are the farmers and their female partners not, even though the latter may be very active in the actual farming on male-owned land.

Of course, individual land ownership is not the only consequential category of private ownership, since some land is also owned by communal entities such as community-based organisations (CBOs) and trusts. Referring to doctoral research by Donna Hornby (Reference Hornby2014), the Institute for Poverty, Land and Agrarian Studies (PLAAS) described what appears to be a ‘successful redistribution project at Besters in KwaZulu-Natal, where 21% of the district’s commercial farmland, along with tractors and beef cattle herds, have been redistributed to 13 Communal Property Associations made up of 170 former labour tenant and farm worker households’ (Hornby, Reference Hornby2014, cited in PLAAS, 2016: 28). Yet still, the rate of delivery in land reform is far from satisfactory. Indeed, by March 2017 less than 10 per cent of commercial farmland had been redistributed, well short of the government’s proposed target of delivering 30 per cent of this land by 2014. According to a 2018 World Bank report, ‘[a]lthough 80 percent of land claims had been settled by 2016, the amount of land transferred is still small. The target of transferring 30 percent of arable land to black landholders by 2014 was not achieved, and there is limited information on the current level of transfer’ (World Bank, 2018: 43–44; but see also Sihlobo & Kapuya, Reference Sihlobo and Kapuya2018).Footnote ²⁰

As the World Bank accurately notes, IPILRA continues to govern tenure security in South Africa. Although when it was passed a quarter of a century ago it was envisaged as stop-gap legislation, it has since had to be renewed annually. IPILRA is aimed at securing ‘the rights of people occupying land without formal documentary rights, such as rights to household plots, fields, grazing land, or other shared resources’ (World Bank, 2018: 44). However, its effectiveness is limited by the absence of a robust, supportive land administration system that is run by a well-staffed department whose employees enable extensive community consultation. Rather, based on the prevailing presumption that only consultation with traditional leaders is required, the formal administrative processes needed to identify and record rights properly and resolve disputes are currently lacking. This is despite the fact that the Department of Land Affairs (as it was named at the time IPILRA was passed) has internal policies aimed at clarifying the process for systematically documenting rights and thus preventing disputes, as required under the Act. These policies are not often implemented. Given the scale and public nature of the Ingonyama Trust and Itereleng Bakgatla land rights violations, this leads one to suspect that the political will is wanting.

Like the World Bank, Songca (Reference Songca2018) concludes that the unresolved apartheid-instituted role of traditional leaders in rural land holding and management is also part of the problem. The World Bank aptly observed that ‘[a]n important provision of the act [IPLRA] is to ensure proper community consultation in cases where external investors wish to access communal land’ (World Bank, 2018: 44). The fact that the DRDLR has mostly failed to enforce these protections (due to an apparent lack of political will, a shortage of trained personnel and the absence of comprehensive legislation) has led to some external investors violating them, especially in the case of the exploitation of mineral resources by extractive industry. The World Bank also describes the ‘best’-case scenario, where some potential investors have declined to invest due to uncertainty on how to negotiate leases on communal land or a lack of confidence that they can trust that the arrangements will be respected.

As demonstrated by the Maledu case, the violation of communal land rights protections can be observed from internal investors too; after all, the IBMR was an entity established by members of the Bakgatla Ba Kgafela traditional community. Indeed, as the Parliamentary Monitoring Group reported following a parliamentary committee briefing by the Deputy Minister of Mineral Resources on 14 November 2018: ‘The Ingonyama Trust and Itireleng [sic] Bakgatla Mineral Resources cases have been challenging because the traditional rulers played double roles. DMR is working on how the Ingonyama Trust and local chieftaincies affect land but it has to be thorough.’ The flagrancy of the persistence of ‘chieftaincies’ with their exploitation of the informality of ordinary rural people’s land rights, even ignoring multiple warnings, was striking – but so was the government’s relative inaction when it came to protecting these rights and people. In the end, it was a lawsuit that got the government to adopt a just position in both Ingonyama Trust and Maledu. In both cases the government seems to have left the options it had available to it, especially in terms of IPILRA, all but entirely unimplemented. This is despite the abundant encouragement and advice it has been offered on how to do so.Footnote ²¹

Traditional Leaders Stand in the Way

As the Ingonyama Trust and Maledu cases show, some traditional leaders have exploited the weak regulatory and enforcement environment to acquire more land through the further dispossession of the already dispossessed people in their areas. In his comments on the ITB situation of May 2018 quoted earlier, Motlanthe was speaking in his capacity as a member of a team established by then still new President Ramaphosa to ‘clear existing confusion’ on the African National Congress’ (ANC) position on ‘the land question’ (Madia, Reference Madia2018). Motlanthe’s remarks received some negative attention, particularly from traditional leaders (Staff Reporter, 2018; see also Friedman, Reference Friedman2018) as well as allies of traditional leaders such as Mangosuthu Buthelezi, who criticised him for making the following comments:

Motlanthe’s comments were, of course, not unwarranted, and not only with reference to the ITB. The fundamental issue is who owns the land. Is customary land owned by the traditional leaders and/or kings or by the people who have lived on the land (burying their ancestors, grazing their cattle, gathering grass, wood and water), often for generations? As Motlanthe boldly observed, thus far it appears that – whether by commission or omission – the ANC has come down on the side of traditional leaders in this debate. One measure of this is that the legislation passed on governance and land tenure since the ANC took over in 1994 has been built largely on the foundations of preceding apartheid-era legislation. The ANC has thus preserved structures that were invented by the Native Administration Act 38 of 1927 and the Bantu Authorities Act 68 of 1951 and then branded ‘tribal’ by South Africa’s past segregationist regimes. The rhetoric of the government and traditional leader lobby seeks to persuade the public that these legislative actions are protecting and continuing ordinary rural people’s culture and traditions. However, close examination of the evidence reviewed by the courts in the Ingonyama Trust and Maledu cases clearly shows that they are not.

‘Citizens’ with No Consultation and No Choice are ‘SubjectsFootnote ²²

While the rights claimed by traditional leaders over so-called communal land are allegedly premised on a version of customary law, they are based on a distorted and/or opportunistic version. Within a dominant political economy framework that privileges individual and exclusive forms of ownership and decision-making over property, this version exploits the fluidity and ambiguities of customary law’s distributed power model and its system of nested and overlapping land rights (Cross, Reference Cross1992: 305–31; Okoth-Ogendo, Reference Okoth-Ogendo, Claassens and Cousins2008: 95–108). This results in communal land tenure processes that, especially at the intersection between informality and formality in South Africa’s pluralistic legal system, effectively amount to ‘no consultation and no choice’. The consequence is that people who are already vulnerable are left even more tenure-insecure than they were previously. As the hunger for the commercialisation of land and minerals in traditional areas grows, the dehumanising processes and dispossession of property that follow set up what can be experienced as an intimate relationship between selling land and selling people (many of them women) – in the haunting words of one elderly woman featured in This Land (2019), a documentary about the struggle of black, rural people to protect their rights on communal land in KwaZulu-Natal: ‘They want to sell us.’Footnote ²³

The practical implication is that the oft-repeated aphorism Inkosi iyinkosi ngabantu or Kgosi ke kgosi ka batho, which can be translated as ‘a traditional leader is a traditional leader in, through and because of the people [who follow him]’, is effectively replaced by a problematic inversion. This says that ‘a community is a community because of having a senior traditional leader’ or, even more troubling, that ‘people are (a) people in, through and because of (being under) a senior traditional leader’. In this way the process is not just one of dispossession but also one of dehumanisation.

Given that Inkosi iyinkosi ngabantu is part of the popular discourse of most South Africans, one might think that it would form the foundation of the recognition accorded traditional leaders in legislation. However, the Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA) disregarded it. Its replacement, the Traditional and Khoisan Leadership Act 3 of 2019 (TKLA), also does not describe ‘traditional’ structures as dependent upon consultation with the people who are to be governed by them.Footnote ²⁴ With this legislation in place, the government has ensured that the holders of informal land rights on rural land need not be consulted on issues involving their land (Manona, Reference Manona2012; Mnwana, Reference Mnisi Weeks and Claassens2014: 21–29; Beinart et al., Reference Beinart, Kingwill and Capps2021; Ubink & Duda, Reference Ubink and Duda2021). The power granted by the government to traditional leaders – converting cultural and political power into economic and legal power, encapsulated as ‘Ethnicity Inc.’ by Comaroff and Comaroff (Reference Comaroff and Comaroff2009) – is demonstrated in both the Ingonyama Trust and Maledu cases described earlier.

The insistence of the Portfolio Committee on Justice and Correctional Services on embracing the recommendations of traditional leaders in its deliberations in 2017 on the Traditional Courts Bill (B1D-2017) must be read against this background.Footnote ²⁵ Specifically, the Committee insisted that permitting people to opt out of the jurisdiction of traditional courts would undermine the power of these courts, thereby dangerously re-enacting apartheid’s repressive principles of depriving rural residents of choice – choice that sections 30 (on ‘Language and culture’) and 31 (‘on Cultural, religious and linguistic communities’) of the Constitution assure them. The Portfolio Committee’s direction to the Department of Justice to remove the explicit right of people to opt out is a rejection of the fundamental customary law principle of Inkosi iyinkosi ngabantu/Kgosi ke kgosi ka batho. Implicit in debates on traditional governance has been the question whether ordinary rural people are, in the words of Mamdani (Reference Mamdani1996), ‘citizens’ or ‘subjects’. This move highlighted the extent to which they remain subjects (women even more than men).

IPILRA tried to stake a claim for ordinary rural people as citizens worthy of consultation in all matters pertaining to the land that they ‘occupy’, ‘access’ or ‘use’, arguably with consent required in the case of land which they ‘occupy’. However, this was completely ignored in the case of Maledu and fraudulently violated in the case of the Ingonyama Trust. The result is the exacerbation of rural poverty.

Poor Democracy Makes Vulnerable People Poorer

In the most unequal country in the world, poverty remains strongly racialised and gendered. Ninety-three per cent of the 30 million South Africans declared poor (55.5 per cent of the total population) are black (Sulla & Zikhali, Reference Sulla and Zikhali2018). The 2019 General Household Survey found that 16.2 per cent of rural residents had inadequate access to food and 12 per cent experienced severe inadequacy (compared to 11.7 per cent and 6.4 per cent, respectively, in urban areas) (Statistics South Africa, 2021: 92). The rural figures are based on ‘an under-representation of poor rural households’ (Statistics South Africa, 2021: 93), meaning that the extent of rural poverty is likely greater than they reflect. Against this backdrop, women, in rural areas especially, have remained at a substantial disadvantage, even as rural men (especially those in traditional provinces) have experienced significant hardship as well. While roughly 41.6 per cent of South African households were female-headed in 2021, the prevalence of female-headed households is highest ‘in provinces with large rural areas such as the Eastern Cape, KwaZulu-Natal, Free State, Mpumalanga and Limpopo’ (Statistics South Africa, 2022: 14). These households have seen a slight reduction in very high unemployment rates (56.2 per cent in 2021 versus 57.6 per cent in 2017), but a higher proportion of female-headed than male-headed households continue to be without a single employed household member (Statistics South Africa, 2022: 13–15).

Women’s labour force participation is highest in Gauteng and the Western Cape and lowest in the rural provinces with substantial traditional leadership presence (Statistics South Africa, 2022: 20–21), while men’s labour force participation rates are generally higher than those of women (Statistics South Africa, 2022: 22). This is explained by the reality of differentiated responsibilities and concomitant obstacles, specifically: ‘childbearing, lack of affordable childcare, gender roles and work–family balance’, resulting in ‘[l]abour force participation rates by sex and the presence of children in the household … showing a linear relationship between the number of children in the household and participation rates irrespective of sex’ (Statistics South Africa, 2022: 21). In sum, unemployment rates for women are higher than the national average and increase with the number of children in the household (Statistics South Africa, 2022: 34).

While COVID-19 worsened every group’s unemployment and poverty rates, once again the rural provinces (especially Eastern Cape, Limpopo and Mpumalanga) were generally hardest hit (Statistics South Africa, 2022: 48). In both 2017 and 2021, women’s primary sources of income were social grants and remittances while men’s were business and ‘salaries/wages/commission’ (Statistics South Africa, 2022: 47). Nearly double the proportion of women in rural areas (51.8 per cent) depended on social grants than in urban areas (26.9 per cent), reflecting the higher ‘unemployment rate in rural areas and the fact that women are more likely than men to be unemployed’ (Statistics South Africa, 2022: 47).

Looking at the facts of the Ingonyama Trust and Maledu cases (which demonstrate material dispossession without informed consent and due consultation), one might justifiably argue that the two problems of endemic poverty and impoverished democracy for traditional communities are deeply related. Both reveal how traditional leaders’ and institutions’ relatively unchecked powers are depriving poor, rural people of resources, resulting in deepening poverty for the most marginalised people in society. The impoverishment of democracy is enabled by prevailing legislation. Traditional communities are still defined by apartheid boundaries while the TLGFA’s ‘transitional arrangements’ extended recognition to pre-Constitution traditional leaders, ‘tribes’ and ‘tribal authorities’, subject to democratising conditions that have not been fulfilled.Footnote ²⁶ The historical continuities with the apartheid era are further entrenched by the ‘transitional arrangements’ set out in section 63 of the TKLA of 2021. This provides for the continued recognition of the ‘traditional leaders’, either by the TLGFA, prior to its repeal, or ‘in terms of any applicable provincial legislation which is not inconsistent with the Framework Act, as the case may be’, ‘subject to a recommendation of the CTLDC, where applicable’.Footnote ²⁷ The TKLA gives these same structures another two years to comply with requirements (in s. 16(2)) that their councils be reconstituted to include elected representatives (40 per cent of members, as against the 60 per cent appointed by the leader), and for one-third of their members to be women.