Rural communities are at a significant disadvantage when it comes to holding to account the institutions that affect their daily lives. Increasingly, it is only through inaccessible channels such as litigation that they can force institutions such as the controversial Ingonyama Trust to answer for its conduct. Even when communities do manage to find a way to institute legal action, the road to a courtroom encounter can be bumpy.

Since the filing of the papers in 2018, the case against the Ingonyama Trust Board (ITB) brought by the Council for Advancement of the South African Constitution, the Rural Women’s Movement and several community co-applicants has faced numerous challenges, the most disruptive being the postponements to the case.

Initially set down for November 2019, the case was abruptly postponed without consultation with the parties who had brought the matter to court, after a decision by the Judge President of the Pietermaritzburg High Court that three judges should preside over the hearing and, since the matter was of national significance, it should be televised.

Just before the new dates set down for the case — 25 and 26 March 2020 — it had to again be postponed because the coronavirus pandemic erupted. The applicants are eagerly awaiting their day in court, scheduled for 9 and 10 December

At the centre of this case is the question of how the Ingonyama Trust can legally deal with the land it holds in trust for rural residents who largely have unregistered and vulnerable customary ownership rights to that land. Since at least 2006, the trust has been inducing rural citizens living in trust areas to conclude onerous residential leases with it — effectively turning residents into tenants on land they have owned by customary right for generations.

In addition to being made to sign away their rights, families that struggle to put food on the table are required to pay rent to the trust which was meant to have been established to look after their well-being on this land. With this case, the trust will be asked to stand in open court and explain its ongoing violation of rural citizen’s constitutional rights.

This case will illustrate whether the mechanisms in place are able to effectively hold the trust accountable for its operations and it will highlight the impact of trust operations on people living on the land it administers. The applicants are hoping for answers about the significant income from leases the trust has generated for itself over the years. The residential leases at the core of this case reportedly bring in an estimated R90-million in revenue annually.

In terms of the law that established the trust, the money is meant to be used for the benefit, material welfare and social well-being of community members that live on the trust’s almost three million hectares of land.

In terms of the Ingonyama Trust Act, the board is meant to report to Parliament annually on its financial performance and its activities. But this accountability mechanism has been repeatedly side-stepped. Concerns over the affairs of the board have been raised repeatedly at the Parliamentary Portfolio Committee on Agriculture, Land Reform and Rural Development, but these have had little effect.

Earlier in 2020, the board again failed to provide a requested five-year report detailing the community work it had done, in line with its legal obligations. The excuse that the report was delayed because of internal labour disputes was rejected by the committee, which voted to withhold state funding for the entity. Committee chairperson Mandla Mandela then initiated a request to the department to intervene in matters.

Subsequently, in September 2020, a forensic investigation into the financial affairs of the ITB was instituted by the Minister of Agriculture, Land Reform and Rural Development, Thoko Didiza. The outcomes of the probe are due to be released later in December.

The probe includes an investigation of allegations that recently re-elected board chairperson, Jerome Ngwenya, enriched himself through the entity. The former judge has denied that the allegations against him amount to financial misconduct and has challenged the minister’s authority to investigate him, arguing that he reports to the Zulu king, Goodwill Zwelithini Zulu, who has nominated him to the board, not the minister. He has argued that the investigation “lacks the necessary legal foundation” and has threatened legal action against the minister if it is not halted. He has previously argued that the board’s finances beyond the more than R20-million administration funding received from the department annually are not subject to the Public Finance Management Act.

While the case at the Pietermaritzburg High Court will address issues that are particular to the Ingonyama Trust, it illustrates the wider challenge communities face in holding state institutions to account. It also highlights the urgent need to bolster democratic and accessible mechanisms for doing so.

This case has been under way for more than two years and has drawn on the expertise of many expensive lawyers over this time. It is unacceptable that communities must wait years, spending huge sums on litigation, before they can get answers to which they are constitutionally entitled.

What is clear from the ongoing litigation and the recent more decisive actions from Parliament and the minister is that the trust is required to account for its operations. Stakeholders in all forums have faced the frustration of being unable to obtain information and accountability from the ITB. The board’s failure to demonstrate that it is meeting its legal mandate and its lack of transparency over the way it manages its funds has given rise to both this case and the minister’s forensic probe.

The board is an organ of state and as such, is inescapably mandated to act with transparency and accountability. Those who live on the land administered by the trust are entitled to expect that their rights are protected by the trust, not eroded by it. DM