2.3 T RUSTS AS AN INSTITUTION TO HOLD PROPERTY
2.3.3 Trusts and Trusteeship
hence the ‘need’ for supervision. This invocation of a moral obligation was important as it enabled colonial powers to project a different narrative of what was happening. Instead of the colonial project being viewed as land dispossession it could be portrayed as a project of civilisation of an inferior people (Ramutsindela, 2012). The establishment of trusts would facilitate this by enabling the colonial state to portray itself as a benevolent figure towards African people who would become beneficiaries in these established trusts (Bennet & Powell, 2000). This can be seen from the language that was used in the acts and treaties that facilitated the establishment of these trusts in several British colonies (Ng’ong’ola, 1992; Hare, 1998).
In South Africa, the colonial government established the South African Native Trust (SANT) through the Native Trust and Land Act, No. 18 of 1936. According to the colonial state, the trust’s objective was the “settlement, support, benefit, and material and moral welfare of the natives of the Union”. This trust will be discussed in greater detail in the coming chapters, however, what is important for the analysis at this moment is the narrative that was projected by the colonial state through this objective. The colonial state gave the impression that it cared for the welfare of African people. Absent from this narrative was the implications for property relations that this trust would have for African people. Trusts introduced a complex structure under which property was controlled which not only blurred but eroded existing claims to land.
Under this schema of trusts, land that belonged to African people under their customary law became Crown land, held in trust by an officer of colonial state as the supreme trustee (Bennet
& Powell, 2000). The traditional authorities of the respective African societies became sub- trustees accountable to the Crown through the colonial officer as the supreme trustee (Bennet
& Powell, 2000).
While Schapera (1943) argues that traditional leaders being seen as trustees might seem consistent with the understanding of African societies at the time, there is a difference in Schapera’s use of the term and its use and implications under the trust schema (Ng’ong’ola, 1992). Schapera (1943) uses the term of the trustee when referring to chiefs to avoid the use of the “absolute owner” which he cautions against. Schapera (1943) argues that while the chief was the leading figure in Tswana tribal life, being at the centre of land administration and commonly referred to as the owner of the land, his power was not absolute. For example, the chief could not alienate tribal land to outsiders without the approval of his people, nor did he have limitless power to take back land that members of the tribe were not occupying or using properly. Building on Schapera’s examples of the constraints to the chief’s power, Ng’ong’ola
(1992:142) suggested that it was “more accurate to understand the chief as a trustee holding land for this tribe”. Therefore, Schapera’s use of the term trustee when referring to traditional leaders in African societies is to emphasise that their power was not unlimited and that their tribesmen also had claims to land that could not be undermined by the chief.
This is not the same implication that the word carried in the trust schema. Under the trust schema, traditional leaders were sub-trustees, and this denoted a particular relationship of accountability. Instead of being accountable to their tribes as under their customary law, traditional leaders were accountable to the supreme trustee who was the officer of the colonial state. Ng’ong’ola (1992: 147) puts it well, making the following analysis when engaging Schapera’s use of the word trustee to its use in the colonial context, “To apply this to the position of the chief might suggest that he was not at all accountable to his community for the discharge of his functions as a land administrator”. As such, the introduction of trusts affected existing methods of accountability that kept land administration systems in African societies intact. Methods of accountability are embedded in power relations while at the same time reproducing particular power relations. Before the intervention of the trusts, chiefs were accountable to their communities. Communities could dispose of chiefs, in line with their custom, and this meant that there was a way to control the chief’s power and consequently power over land in ways that were empowering for the community (Comaroff, 1974). With the introduction of a supreme trustee as the ultimate custodian of all communal land, it meant that power was wrestled out of communities. The colonial and later the apartheid state would possess the power over land administration with no way of communities being able to negotiate their power in this new system.
Apart from altering existing methods of accountability, trusts also introduced a particular conception of property and ownership to understand claims to land. While African people did not use the explicit language of property and ownership to explain their claims to the land and how these claims were relational, a language of land rights was present (Okoth-Ogendo, 1989;
Ng’ong’ola, 1992; Okoth-Ogendo, 2008). However, with the introduction of trusts, those claims were altered and subsumed into the trust structure. African people become beneficiaries of trusts which was different from the land rights or entitlements they had according to their respective customary systems of law.
This change was significant in two ways. First, a beneficiary has little decision-making power and as such is a passive participant in property relations whereas a land right holder is an active participant with some autonomy. Second, the language of ownership and property failed to grasp and account for how African people understood their claims to land and so their land tenure regimes were transformed to fit European understandings (Ramutsindela & Sinthumule, 2017). In many cases what was captured under the trust schema was a weaker conception of the claim to land under customary law.
A common misconception that occurred was to conflate customary claims to land as equivalent to usufructuary and occupational rights (Ng’ong’ola, 1992). In African societies, ownership was not absolute because there were mechanisms that constrained the rights of individuals, families and even chiefs. This was not the case in the European context where property pivoted on the idea of absolute ownership. When observing this difference colonial authorities then conceived of African claims to land as mere rights of use, in relation to agricultural land, and rights to occupy, in relation to residential land (Ng’ong’ola, 1992). This meant that rights or claims to land that were more substantive were rendered temporary because they did not fit into European understandings of rights that were embedded in ideas of absolute ownership of property.