7.2 T HE MAIN FINDINGS OF THE STUDY
7.2.3 Trusts in democratic South Africa
The much-anticipated judgement regarding the Ingonyama Trust which was delivered in June 2021 clarified the property rights of residents of land nominally owned by the Ingonyama Trust and the powers exercised by the Trust and the Trust Board (Pikoli, 2021). In Chapter 6, the political context surrounding the establishment of the Ingonyama Trust was discussed at length.
In particular, the creation of the trust at the end of apartheid rule demonstrated that trusts were useful for the outgoing apartheid state to influence the direction of land reform in the democratic state. Following the deal being made public after the 1994 elections (Lynd, 2021), the existence of the Ingonyama Trust during the democratic era has generated much debate and controversies around its implications for the land ownership and rights of people on communal land (Bloom, 2019, Carnie, 2019; Pikoli, 2021). As such various civil society organisations and research centres have been involved in legal action culminating in litigation.
In the recent two-part webinar hosted by the Land and Accountability Research Centre to discuss on Ingonyama Trust judgment, Dr Claassens remarked that the judgement has gone further than the Richtersveld judgement at the Constitutional Court in 2003 which affirmed
that customary rights to land are not just akin to ownership they are ownership rights. What the Ingonyama judgement did was to go a step further and clarify what this looks like on an individual basis. The judges ruled that claims that people on communal land have to their residential plots are in fact strong property rights that can be passed on from one generation to the next (CASAC v Ingonyama Trust, 2021). This dismisses the myth that there are no individual rights within the layered complexity of overlapping rights that define customary rights to land. However, while the judgement is being scrutinised this is simply rhetoric.
Moreover, and perhaps more concerning there is a risk that a range of political processes can happen between the judgement and implementation that could dilute the gains of this victory.
Here it is useful to reflect on the insights that this study has gleaned from the outcomes after the landmark victory of the Richtersveld community in 2003. Of course, the contexts of the Ingoyama Trust and the Richtersveld Trusts are different however there are parallel implications that are worth noting.
The creation of different trusts in the Richtersveld showed the ability of trusts to morph to meet the evolving demands of the state. As we noted in Chapter 6 the creation of the RNP on communal land as a contractual park required the use of the RGT to ensure that the National Parks Board’s vision to create the park was fulfilled whilst managing land contestations that could come from land reform. By ‘recognising’ the Richtersveld community’s rights to the land there would be no need for land reform to happen on the RNP. Additionally, the RGT would shift the focus to be on the benefits of the park rather than the community questioning the strength of their property rights to the RNP. Interestingly, the configuration of how the community is represented reveals the weakness of the community’s property rights. Strong property rights should result in the community having better bargaining power, but this is not the case in the Richtersveld. Control over the revenue from the leasing arrangement is in the hands of the trustees of the RGT who are not from the community. The community’s representation in the day-to-day management is through the RCMC but as the interview with the community representative reveals, the RCMC has limited power. The RCMC members know the is money in the trust but without the trustee’s permission, the funds cannot be used by the community.
The Richtersveld land claim also opened an avenue through which we can understand changing relations between community trusts and the state. The land claim was about the contestations over property, in this case, the property was the minerals on the subject land. Hence the
Richtersveld victory at the ConCourt was seen as a landmark judgement because it not only restored the land but also the minerals in land. From the perspective of the Cabinet, there was a need to neutralise the contestation as it would have far-reaching ramifications on the government’s control over resources. It is useful to analyse the government’s action in the negotiations in that light. Previous negotiations with the community had not yielded results because, at that stage, the government still had the opportunity to manage the contestations through the court proceedings. This changed following the ConCourt judgement because the judgement effectively gave the community an upper hand in terms of the contestations regarding the ownership of the property. This is also evident in the change in how the government presented its position on the Deed of Settlement. As the government could no longer oppose the land claim settlement endorsed by the ConCourt, it began to emphasise that the passage of the MPRDA in 2002 made it impossible for the government to fulfil the demands of the judgement. Hence, negotiations became necessary for the government and community to find an amicable solution. In effect, the renewed negotiations offered a new possibility to neutralise the contestation over property rights brought by the judgement through the complex trust structure.
What is significant about the trust structure is that it shifted the contestation from the ownership of the resources to benefit sharing. The fact that the Alexkor held majority shareholding in the PSJV was clearly the signal that the government had succeeded in managing the contestation regarding mineral ownership. However, the government needed to have a rationale that presents an alternative reading of the situation. The government then presented the PSJV as its commitment to assisting the community transition well into managing the mining venture, particularly emphasising that the PSJV would ensure that there was not a period where the mine had to be shut down while ownership transitioned from the Alexkor to the community (cf. Chapter 6). These remarks are important because they highlight what was considered as the priority for the people negotiating the Deed of Settlement. What ended up being the priorities for the negotiators was not the original priorities of the community. This is where it is useful to return to the initial relief sought by the community which was articulated in the court papers: the land and the minerals. This is also affirmed by the reaction of the community members when the CPA committee announced the shareholding: many community members walked out of the meeting (cf. Chapter 6). Their walking out, as articulated by a community member, was their reaction to what they considered as a betrayal of the land claim struggle.
The experiences of the Richtersveld community indicate that while there is an expectation that
the democratic state should have a different approach to dealing with the property rights of people living on communal land this is not necessarily the case. Capital interests which drive the desire for states to entrench their control over resources are more powerful in defining state action.