The question of whether it is possible – using the paradigm of the indigenous customs of Zulu law – to institute a private property title regime has been answered in the affirmative in the recent KZN High Court (Pietermaritzburg) judgment in Council for the Advancement of the SA Constitution v Ingonyama Trust.

Zakhele Mthembu, a law student at Wits University and a legal researcher at the Free Market Foundation, says the main point of contention was whether the trust had the power to convert Permission to Occupy (PTO) certificates into leases.

The central issue, he says, questioned the ownership of the land, and whether it belonged to the people or the Zulu king.

Writing on the Politicsweb site, Mthembu notes the court ruled the leases could not be supported by the prescripts and normative paradigm of indigenous Zulu law.

‘Most importantly, the court spent a considerable amount of time interrogating Zulu culture and, by extension, Zulu law and, as such, contributed greatly towards the development of customary law as it is currently known, and African common law as it should be known in the future.’

Mthembu says the court’s ‘impeccable’ reasoning found that the land – as per Zulu culture – belongs to the people, with the king being the administrator, and not the owner, of the land.

The idea of paying rent to the king for land was unheard of in Zulu law.

The court referred to how full ownership over property like land vested in the families that occupied it themselves, instead of in the king.

The court ruled that the trust should convert all PTO certificates into full title.

‘This should be done to represent the true ownership of the land administered by the trust, vesting in no one else but the people themselves.’ Mthembu says the case represents a fundamental development in customary law in SA.

‘It highlights how private property is not divorced from the prescripts of African culture and law. The ill-considered “solution” to the history of property dispossession in this part of the world is usually presented as the state becoming the custodian of the land and everyone else being a tenant for all intents and purposes.’

Mthembu wonders how the property owners who are to be created by the PTO system being reinstituted would feel about the prospect of the state having the power to take their property and not pay them any compensation at all, as proposed by the Constitution Eighteenth Amendment Bill being considered by Parliament.

‘Until then, the property rights as well as the liberty of indigenous peoples remains an imperative. The principles of private property are not opposed to indigenous culture. So those opposed to private property will have to find a better reason for their rejection of it beyond the ridiculous notion that it is an extension of colonialism and thus somehow can be consciously undermined.’

Full analysis on the Politicsweb site