AG vs Ingonyama Trust Board: The trust in the present constitutional order

The Auditor General’s (AG) recent finding on the financial performance of the Ingonyama Trust Board (ITB) has reignited the debate around the trust’s land ownership.

The AG told Parliament earlier this week that Ingonyama Trust (IT) was qualified due to failure to appropriately recognise and value land under its control.

Ingonyama Trust Board (ITB) is a Schedule 3A entity in terms of Public Finance Management Act (PMFA) with the mandate to administer the Ingonyama Trust land and the affairs of the Trust.

According to the ITB’s annual performance plan, the ITB and IT were two separate entities that were usually conflated with each other.

“The Ingonyama Trust is a legal entity created by a legislation to own land for and behalf of certain clans who are part of the Zulu Nation. The Board is an entity created to administer the Trust land and the affairs of the trust. The members thereof are not trustees and are appointed by the Minister. The Trust is not listed in terms of the PFMA,” it read.

His Majesty King Goodwill Zwelithini is the sole trustee of the trust, directly controlling land holdings of 2,883 million hectares and 1491 title deeds, with an estimated population of 5.2 million under his rule.

The AG recently told Parliament that it was concerned that ITB’s monitoring and evaluating systems were inefficient and needed to consider a detailed exercise to identify properties owned by the trust.

“Municipal property rates invoices should be obtained from all applicable municipalities and recorded in the accounting records of the entity and the appropriate disclosures in terms of GRAP should be made in the financial statements,” said the AG.

In the 2018/2019 financial review period, Chairperson of ITB and Royal Nominee, Judge S Ngwenya, appeared before Parliament portfolio committee on agriculture, land reform and rural reform to give background history of the establishment of IT and ITB, including concerns of the Trust legality.  

“It would be noted that structurally there is nothing wrong with the Trust and the Board. Neither is there any questions with the legality of this institution. Obviously if there was, I have no doubt that such would long have been pointed out to all the affected in particular the King, Amakhosi and various clans who are the beneficiaries of the Trust,” Judge Ngwenya told parliament then.

The ongoing disagreement between the AG and ITB over the operating legality of the Trust seemed to have caused consternation.

ITB did not submit its annual financial statements as per PFMA legislative deadlines, subsequently receiving a qualified opinion. There were fears that such disregard by ITB was the beginning of an impasse which would in future require the intervention of President of the country.

Judge Ngwenya walked out the Parliament hearing last year and blatantly indicated ITB’s intentions of not ruling out the possibility of transferring IT into a private trust if the ‘ongoing attack on the King and royal institution continues’.

“As for the Ingonyama Trust, it is just the goodwill of the King that he agreed that the land he holds in Trust be so held under a statutory trust. If he so wishes he could seek a mandate from his people and hold the same land under a private trust. Perhaps this avenue may have to be explored,” added the Judge.

AG’s recommendation for the trust to value its properties will be complex as the ‘the land owned by the Ingonyama Trust is administered in terms of Zulu customary law by Traditional Councils’.

Under the constitutional order, the King owns the land as a Zulu National Asset as compared to other provinces wherein government owns tribal lands.

Judge Ngwenya furthered noted: “on a daily basis, the interface between the individual who is either an existing land beneficiary or prospective land rights holder under Ingonyama Trust, takes place at Traditional Court level. It is this institution which is entrusted with land allocation and dispute resolution among the beneficiaries. These interactions are mainly governed by customary law and are predominantly oral”.

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