5.2 N ATIVE T RUST AND L AND A CT : STRENGTHENING TENUOUS WHITE POLITICS
5.2.2 The final version of the Native Trust and Land Act
and/or bought by Government for the African settlement, carefully removing strategic and fertile areas in the final schedule of the released areas (South African Parliament, 1936; Platzky
& Walker, 1985). But more importantly, for purpose of this study, there was a push for the state to exercise more oversight power over the current land in the reserves as well as over the land to be released through the NTLA.
such courts will often define this duty as an obligation of loyalty (Smith, 2002). While the concept seems straightforward at face value, legal scholars concede that fiduciary law remains an elusive concept in practice (Boxx, 2001; Smith, 2002; Rahman, 2006). It is not within the scope of this study to get into the legal debates around fiduciary law but what stands out in these debates is the use of the courts to flesh out what this fiduciary duty entails in practice (see Cameroon et al., 2018).
In her attempt to define the concept within South African law of trusts, Rahman (2006), traces various court judgements and therein lies the problem. The concept was not well defined in South African law, hence its continuous development within the courts (Rahman, 2006). At the time that Rahman (2006) writes there had been multiple judgements meaning that there was progress in the development of the concept within South African law. This, however, was not the case when trusts were first introduced. Therefore, there was no case law that African beneficiaries could draw upon to understand their rights under this institution. Moreover, because of the Native Administration Act No. 38 of 1927, regular courts were limited in intervening in African affairs (Platzky & Walker, 1985). The result was that the state as the trustee was simultaneously responsible for defining, executing, and regulating its fiduciary duty towards African beneficiaries. More importantly, Africans were not privy to this process which meant that where there were cases that the state failed to act in ways that were in line with a fiduciary duty, Africans could seek no legal recourse as there was none provided for in the law (Capps, 2010). Africans depended on the goodwill of the state in interpreting and executing its fiduciary powers (Capps, 2010) leaving them vulnerable to abuse. To illustrate this further, it is perhaps useful to tease out some of the key features of how Africans organised their space before the introduction of trusts.
While different groupings organised space differently whether using kinship relations, patrimonialism or chieftaincies, a commonality was that the accountability mechanisms of these arrangements centred around the group itself (Ng’ong’ola, 1992; Hann, 1998; Comaroff
& Comaroff, 2009). That is to say that the parties involved in the organisation of the space were accountable to the same customary law which they could revert to in cases where there was a deviation from the expected behaviour about the organisation of space. Naturally, within each group, there were power dynamics as has been noted by scholars who show that women and unmarried men often have less say than married men under customary law (Moyo, 2004).
Customary law was not stagnant, meaning that the group collectively participated in the
evolution of the customary law and by extension the principles of that law that related to the organisation of space. More importantly, there was no ambiguity as the mechanisms of accountability were embedded within custom that was understood collectively by the group (Comaroff, 1974). As such the customary law, while ever-changing, remained sacrosanct as the highest authority in determining how space was organised. There could be no individual who was above the custom meaning at that level, there was equality in how space was organised. This was not the case under the trust arrangement because no provisions detailed the rights of beneficiaries in this institution and the duties of the state, as trustee, towards beneficiaries.
The lack of duties outlined in the NTLA suggests that there was an implicit expectation that the Governor-General would act in the best interests of African beneficiaries. But the resistance to governments attempts to exert its oversight over African people’s rights of use on SANT land shows that there were cases where there was a misalignment between the expectation of fiduciary duty and its experience of it on the ground. An example of this is the resistance to Betterment Planning it was introduced in the late 1930s (South African History Online, 2020a).
Betterment firstly entailed the government dividing SANT land into residential and agricultural plots (Platzky & Walker, 1985). Instead of living in scattered homesteads close to fields, African people were forcefully clustered into villages on poorer soils, for example, hill stops, while the rest of the land was divided into defined plots for growing crops, forestry and grazing respectively (Platzky & Walker, 1985). The exact number of rural people affected by this enforced villagisation is not known but is thought to be considerable with an estimated one million people being moved in Natal since 1950 (Platzky & Walker, 1985).
Secondly, Betterment was accompanied by stock limitations. The argument from the state’s perspective was that there was overgrazing on the land and of course the government was not willing to release more land as a solution meaning that stock culling was the solution used to address overgrazing in the reserves. While Betterment Planning was resisted heavily by African people (Kepe & Ntsebeza, 2011), it occurred by and large precisely because the segregation state was empowered by the law to regulate how SANT land was to be used.
Meaning that while the SANT appeared to give rights of use to Africans even those rights of use were not secured because the segregation state had ultimate authority to regulate these
rights of use by being able to not only force African people to move homesteads but also to cull livestock.
While all property rights are regulated in some shape or form, property rights holders have reasonable levels of autonomy and decision-making power within the land that forms part of their property. This is especially around rights of use (Blomley, 2013); as such the regulation of stock numbers of Africans highlights the weakness of the property rights of Africans on SANT land. Consequently, even the resistance measures used by Africans during this period were in line with this acceptance of vulnerability at the level of the law. African people resisted Betterment Planning militarily (Kepe & Ntsebeza, 2011). If African people under the SANT had recognised property rights, be it rights of use and occupation, their resistance should also have been through the law, but this was not the case. As such, the segregation state in dealing with this resistance could justify its actions because the state was within its right as the trustee to control how the land was to be used.
Lastly, compensation under Betterment Planning. For the people who lived on scheduled land (i.e., SANT land) compensation did not include the value of the loss of land. This was the case for the people who were removed from the Tsitsikamma reserves. The government’s justification was that the land was held in trust meaning that residents were only entitled to compensation for the loss of the structures built on top of the land for example houses (Platzky
& Walker, 1985). When people are removed the compensation received is meant to include the value for the loss of surface land rights (Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another, 2018) and so the ability of the apartheid government to move people without paying this category of compensation is evidence of the assertion that the NLTA made African people tenants on their own land (Clark & Luwaya, 2017).