On 11 June the KZN High Court (Pietermaritzburg) ruled that the PTO (permissions to occupy) Conversion Project, implemented by the Ingonyama Trust, was unlawful.

According to the project, the trust stopped issuing PTOs in 2007 and started systematically replacing all PTOs with lease agreements, requiring that the occupiers had to pay rent to the trust.

The court ruled that the Agriculture, Land Reform & Rural Development Minister ‘breached her duty to respect, protect, promote and fulfil the constitutional right to property of the holders of (Interim Protection of Informal Land Rights Act) rights vested in respect of the trust-held land’.

According to the Agricultural Business Chamber of SA’s Theo Boshoff and Wandile Sihlobo, and Stellenbosch University’s Professor Johann Kirsten, the court held that the Minister failed to exercise adequate oversight over the conduct of the board.

‘If this seems like an unfair burden on the shoulders of the Minister, imagine the burden if all land fell under the custodianship of the state. This is simply an impossible burden and no government would ever be able to meet this requirement.’

Writing in Business Day, the authors says the concept of a ‘trustee’ or ‘custodian’ is critical – it does not mean the trustee/custodian is entitled to use the property for its own benefit.

While it can be argued that this form of custodianship is closer to the manner in which traditional councils allocate land under customary law, the authors argue that there is a temptation to make this connection as a vehicle to restore traditional land governance.

However, they say property rights cannot be read in isolation from the rest of the Bill of rights. ‘Our Constitution does recognise customary property rights, and they should receive the same legal recognition as common-law property rights.

However, both systems must be administered in a manner that is consistent with the Constitution. This means systems of administration may not be arbitrary, must be transparent and must be accountable.’

The Ingonyama Trust ruling has highlighted the dangers inherent in a system of state custodianship where one relies on the state to act in your best interests.

As the Constitution provides for the right to administrative action that is lawful, reasonable and procedurally fair, traditional and customary forms of land governance must follow these criteria to pass constitutional muster.

In the Ingonyama Trust case, the trust had argued that it needed to raise funds for the management of the trust, which is not possible under the PTO system.

‘The court rightly held that the Act does not allow the trust to do so, and that there was no evidence that the rent was used on projects that would benefit the community.’

The authors say this raises an interesting question: How would municipalities raise revenue if all land is held by the state?

The say the ‘ailing’ state of rural municipalities is well known, and ‘a situation whereby they could not tax landowners would only serve to weaken these institutions further’.

Full analysis in Business Day