The Origins Of Trust Lands
Under British colonial rule land that was claimed by the British empire but had not been granted to a specific (legal) person was deemed to be held in trust by the crown. It was the Queen's land or the King's land.
Many native reserves that were prevalent in British colonies were created on such land. The trust lands system was specifically designed to deny rights to the native occupiers of the land.
Anyone who was occupying that land did so, 'upon the grace of the Crown'. That grace could be withdrawn at any time and the occupiers had no legal recourse. They could not, and still cannot, take the matter to any court. If they do, they are at an automatic disadvantage because they do not have a registered deed to prove they own the land.
On the other hand, land that was not trust land (private land), was held under deed of grant or deed of lease by (legal) persons. Such deed was registered, in jurisdictions based on British law, by an office called the registrar of deeds.
Under racist, sexist and segregationist systems that prevailed under colonialism, legal persons could only be white males or their companies. White women were not legal persons despite what many assume.
Trust Lands After Colonialism
However note that the respective governments have got full authority over that land. Occupiers deal with their elected government, not the Queen or her Lords, when administering the land. The governments have got authority to grant title to persons on that land. That is a key difference with the Ingonyama Trust.
In those countries that chose to become republics the trust land was transferred to ownership of the state. In the case of my country when Ian Smith unilaterally declared independence from Britain in 1965, the land was taken over by government and became Tribal Trust Lands (TTLs). Upon proper independence in 1980 the land was re-christened Communal Lands but remained under ownership of the state.
The Case Of South Africa
In the case of South Africa, after gaining nominal independence in 1910, the Bantu Land Act was passed in 1913. That act created 'native reserves' in which nominal tenure was vested in chiefs. The act specifically prohibited the natives' land, at the time about 7% of the total land area, from being bought, sold, rented or used as surety (security for loans).
John Dube and Sol Plaatje (founders of what is now the ANC) cut their teeth opposing the Bantu Land Act.
The act also banned blacks from renting, sharecropping or farming on land reserved for whites. That ban is the reason why there were no black farmers in apartheid South Africa not competence as racists like to insinuate.
Under apartheid native land went through several transformations, and a slight increase, most of it eventually becoming Bantustans which the apartheid government called independent states, but nobody else in the world recognised.
The Complication of KwaZulu-Natal
Upon majority rule in 1994 bantustans were incorporated into South Africa with much of the land reverting to state ownership except for one key exception. In what was to become KwaZulu-Natal, communal land was handed over to the Ingonyama Trust.
This communal land included what had previous fallen under the former British Natal colony. It is not clear to me but it appears the Ingonyama Trust is a legal person that can sell or rent land under its control. This is a significant departure from the provisions and spirit of the original Bantu Lands Act.
It is a potential future complication that land that had not been part of Zululand or even historically part of Zulu territories, was handed over to the Zulu King. Especially given that the Zulu king is talking as if that land belongs exclusively to ethnic Zulus. Those who are not ethnic Zulus living on that land may find themselves targeted in future.
Much of the land handed over to Ingonyama Trust (South of Durban) was traditionally Xhosa land, with big portions being Sotho, Swati and Ndebele.
Tribalising the issue only complicates matters but does not solve the problem of lack of legal rights even for Zulus. It is also likely to complicate things for the Zulu king because other ethnic groups may not be comfortable with being treated as being second class to Zulus.
Already noises are being made about Umshinini Trust land, that was held in a trust recognised by the British crown before 1910.
The Risks Of Trust Land To Home Owners
There is one thing that remains the same even for Zulus. Those who have occupied and lived on that land for centuries, if not millenia, still do not have full rights to their homes and other land. As before, their rights are subject to the whims (grace is a euphimism) of a trustee.
There is always significant risk to the occupier of land held in trust on their behalf. Tinpot dictatorship is the least of them. They are subject to the whims of the trustee and I will cite examples from my home country Zimbabwe and neighbouring Botswana.
In the 1960s the Tangwena clan from the remote east of then Rhodesia were evicted from their lands by the Rhodesian government. When they resisted their homes were bulldozed. They still refused to leave and built plastic shacks. To this day a mukuku is called a chiTangwena in Zimbabwe.
More recently diamonds were discovered in Marange communal lands also in the east of Zimbabwe. The Zimbabwe government forcibly removed some of the occupiers and handed over the land to various companies, most Chinese, for diamond mining. Those who were willing were relocated to an area called Odzi, which was more humane.
However the diamonds have not benefited the community and recently Zimbabwe's parliament was investigating what happen to more than US$15 billion worth of diamonds.
Still in Zimbabwe a few years back, two traditional rulers (madziShe) lost a court case, with costs, after they challenged the leasing of a hilltop that was the burial ground of ancient rulers of their clan, to a local cellphone company to build a transmitter station.
In Botswana there have been complaints about the behaviour of the trustees of what was the Tati Concession Trust. That land constitutes the entire North Eastern district of present day Botswana. There have been grumblings that Sir Seretse Khama, the first president of Botswana, entered into an agreement that benefited his family.
Corruption and Tribalism: Elephants in the Hut
However throw in corruption and tribalism then you have dynamite with a lit fuse in your hands. In the case of Zimbabwe, Marange was handed over to the Chinese primarily because the political leaders of Zimbabwe were thrown scraps of cash. Although not worth as much as the diamonds looted, those scraps represented personal fortunes to the individuals involved.
In Botswana many complaints and even a political party, The Botswana People's Party, has been formed over the issue of Tati Concession Land. The Khama family is accused of smothering attempts to tackle it. Claims are that this is because of a personal agreement between first president of Botswana Seretse Khama and those who inherited the concession lands. Indeed the current manager of the Tati Land Board, Ogaisitse Khama ,is member of the Khama family.
What puts a hint of tribalism in the Botswana case is that the Tati Concession is on land that traditionally was occupied by the Kalanga ethnic group, who like the Venda spill into Zimbabwe. The Tati Concession was never part of the Bechuanaland Protectorate but was administered by the same British gorvenor because the other concession, the Rudd Concession (loosely the rest of Zimbabwe) was being administered by the British South Africa Company of Cecil John Rhodes. The British government felt it not proper to hand over a second concession to the company.
A few years back Botswana deported a man to Zimbabwe despite him having lived on the Botswana side of the border for 70 years. The insinuation is that the Kalanga should go back to Zimbabwe. I think the Venda of South Africa know the story very well.
In South Africa it has been reported that Ingonyama Trust has send letters demanding rent from those occupying what was previously the Umshinini Trust land. I hope those demands have got nothing to do with that those people are Xhosas not Zulus.
In South Africa it has been reported that Ingonyama Trust has send letters demanding rent from those occupying what was previously the Umshinini Trust land. I hope those demands have got nothing to do with that those people are Xhosas not Zulus.
The Way Foward
Trust lands were created to disempower natives by denying them title to the land they lived on. Obviously the solution is to give title to the natives. Most post colonial governments shirk taking this step. Empowering natives means less political control over them, and less ability to manipulate their votes.
It is also an administratively and logistically monumental task. Every piece of land granted to a person based on occupation needs to be surveyed, disputes adjudicated and proper cadastral records established often for the very first time.
The only state that I know to have been doing this is Malawi. Villagers can apply to the ministry of lands to have their pieces of land surveyed and then be given title deeds.
I do not see how this can be done in South Africa without first transferring the land to government, the democratically elected representatives of the people. The government can then administer the granting of deeds properly and democratically.
It does not help that the language used is that of 'taking' land from Ingonyama Trust. King Zwelithini has understood, or twisted, that to mean taking land from Zulus. Yet the truth is the exact opposite of that. It is a necessary step give full land rights to all Zulus, not just one Zulu.
If the land is transferred to the KZN government, which is the elected representative of Zulus (among other ethnicities) that land will actually be under the control of all Zulus for the first time since Cetshwayo, the last independent king of the Zulu.
The South African government should take the step of giving title to individual occupiers of former communal lands.
