Ingonyama Trust leaves millions in legal limbo while political compromise endures

Thirty years into democracy, a dark remnant of apartheid-era brinkmanship continues to govern the lives of more than five million South Africans. The Ingonyama Trust, established just days before Nelson Mandela walked to freedom, holds nearly three million hectares of land in KwaZulu-Natal – roughly 30% of the province – in a legal structure that exists nowhere else in the country. It is an institution born of political compromise, not constitutional principle. And it is failing the very people it was meant to serve.

The recent decision by the land reform minister to appoint an administrator to oversee the Trust’s operations has sparked predictable outrage from traditionalist quarters. But this skirmish misses the larger point. The Ingonyama Trust Act, as amended in 1997, is up for review through the Ingonyama Trust amendment bill before Parliament.

It must be stated that the bill, in its present form, remains fundamentally incompatible with the Constitution, with the principles of land justice, and with the rights of the millions who live under its authority. It is time for a fundamental rethink.

The myth of the title deed

The dominant paradigm of property in SA – what scholars Donna Hornby, Rosalie Kingwill, Lauren Royston, and Ben Cousins call the “edifice” of private property – holds that a title deed equals tenure security. The Ingonyama Trust operates on this assumption, seeking to convert customary land rights into leasehold arrangements. But as the editors of Untitled: Securing Land Tenure in Urban and Rural South Africa argue, this approach fundamentally misunderstands how the majority of South Africans access and hold land.

“The book reveals that ‘informal’ and customary property systems can be well organised, often providing substantial tenure security, but lack official recognition and support,” the editors write. “This makes them difficult to service and vulnerable to elite capture.”

The trust’s attempt to force residents into lease agreements – requiring monthly payments for land their families have occupied for generations – is a textbook example of this dynamic. In 2021, the KwaZulu-Natal Division of the High Court in Pietermaritzburg ruled that the trust had acted unlawfully and unconstitutionally by compelling residents to sign leases, declaring that residents were, in fact, the true owners of the land under customary law. The court ordered the trust to repay the money extracted from vulnerable families.

Women pay the price

If the trust were simply a bureaucratic failure, that would be one thing. But it is also a profoundly gendered institution. The trust’s reliance on a version of “Zulu indigenous law” that has been frozen in colonial amber systematically discriminates against women.

Hluphekile Mabuyakhulu, a 74-year-old grandmother from Jozini, was told in 2011 that she would have to sign a lease for the land her family had occupied since the 1980s – and that the lease had to be in her then-boyfriend’s name because he was deemed the head of household.

“In Zulu culture, women are kept down, down, down,” her neighbour Linah Nkosi told The Economist.

This is not tradition. It is a colonial fabrication, imposed and then weaponised. As Nokwanda Sihlali documents in the feminist journal Agenda, women in rural KwaZulu-Natal have been forced to navigate a system where both apartheid-era “permission to occupy” certificates and trust-imposed leases serve to subordinate them. The Rural Women’s Movement, led by activists like Sizani Ngubane, has spent decades fighting this system – a system that made Ngubane’s own mother a victim of eviction by her uncle in 1956.

The Constitutional Court has repeatedly affirmed women’s rights to customary land, inheritance and equality. But these judgments mean little if the underlying structure of land governance remains unreformed.

A kingdom apart

Perhaps the most troubling aspect of the trust is its singularity. SA is home to eight recognised kings and queens – Zulu, Xhosa, Swati, Ndebele, Venda, Tsonga, Tswana, and the Khoi-San peoples. Yet only the Zulu monarch holds statutory ownership of nearly three million hectares of land. When the other nine former homelands were reintegrated into SA after 1994, their land came under national government authority.

KwaZulu was the only exception. This exceptionalism was not the product of constitutional principle. It was the result of a desperate last-minute deal to secure the Inkatha Freedom Party’s participation in the 1994 elections and avert a bloody boycott. A political compromise has now hardened into a permanent constitutional anomaly.

The High-Level Panel on the Assessment of Key Legislation, chaired by former president Kgalema Motlanthe, found that the trust has been “a source of tension between the Zulu monarchy and other traditional leaders, as well as between traditional leaders and democratically elected structures”. How can a democratic SA justify a system that elevates one kingdom above all others?

Violence as governance

The stakes are not merely abstract. In communities across KwaZulu-Natal, the intersection of the trust with mining capital has produced a wave of violence that can only be described as terror.

In eMpembeni, south of Richards Bay, residents who questioned a proposed development backed by the trust were systematically assassinated. Between July and October 2018, four residents were shot dead. Two-year-old Angel Ncube was murdered with her relatives in a petrol-bomb attack after her family refused to be silenced. The alleged perpetrators – with connections to local traditional authorities – walked free when charges were withdrawn.

This is not an isolated incident. The Global Initiative against Transnational Organised Crime documented at least 38 assassinations and 14 attempted assassinations in mining-affected communities between 2016 and 2020. The trust generates more than R100-million annually from land leases. In a system with no transparency and no accountability, that money has become fuel for violence.

Beyond the edifice

The editors of Untitled argue that “interventions based on an understanding of locally embedded property relations are more likely to succeed than those that attempt to transform them into registered tenures”.

This insight must guide any reform of the Trust.

The Constitution requires that customary law be developed in accordance with the Bill of Rights, not frozen in a colonial mould. It requires that women have equal access to land. It requires that the state protect the most vulnerable from exploitation and violence. The Ingonyama Trust, in its current form, meets none of these requirements.

The answer is not to abolish traditional leadership or customary law. Many communities find traditional authority more accessible and responsive than elected government. But the answer is equally not to preserve a system that has become a vehicle for corruption, violence and the subordination of millions of South Africans.

A reformed land governance framework must recognise the reality of legal pluralism. It must affirm that customary land rights are real rights, not mere permissions. It must ensure that women’s rights are protected. And it must subject all land governance – whether by traditional authorities or the state – to constitutional scrutiny.

The question is not whether the trust should exist. It is whether SA can continue to tolerate a system that makes a mockery of the Constitution, that treats millions as subjects rather than citizens, and that has left a trail of bodies in its wake. Thirty years into democracy, it is time for an answer. DM