Rural or Tribal Trust Land in South Africa
In South Africa, you cannot own rural trust land, but you can lease it for specific purposes with permission from the Trust.
Summary
If you have ever asked yourself whether or not you can own rural trust land in South Africa, the short answer would be “No”. However, this does not necessarily mean that many do not acquire the rights to use the land for a specific purpose. In order to use such land, one would have to request permission from the Trust to lease the land, but you will not be allowed to purchase and acquire the full title of ownership as registrable at the Deeds Registry.
A brief history of tribal/rural trust land and black property ownership in South Africa.
South Africa, with an overwhelming history of inequality has seen property rights being distributed unfairly amongst the South African population with the majority population enjoying little to none of the property rights. One of the instruments used to implement the unequal distribution of land in South Africa was the The Native Trust and Land Act of 1931 1.
The implications of The Native Trust And Land Act
As this Act, amongst many others, was enacted by the apartheid government in pursuit of segregation and land deprivation in respect of black people, the government was able to dispossess communities of vast areas of land which were acquired by black people before 1931 2.
This piece of legislation also abolished black individual ownership of land and various Trusts were established by the apartheid government to administer black tribal land on their behalf. Land owned by black people was transferred into various trusts and each trust could only administer for its respective tribe. The Trusts were only able to acquire land for the purposes of their respective tribes for providing settlement and various other non-robust economic purposes. More disparagingly, these trusts that were administered by the apartheid government were collectively limited to acquire only 7% of the total land in the country. Only later was this number increased to 13% which still left the majority of South Africans confined to the peripheral of economic, agricultural and socio-economic prosperity 3.
With little to no economic prosperity in the so-called trust land areas, many black South Africans then moved to urban areas in search to work. As a result of the increasing number of black people entering urban areas as labourers, the then government decided to give housing permits to black people for the homes in which they lived in. Essentially what it meant was, that black people living in urban areas, were only entitled to 99-year leaseholds that could be registered in the Deeds Registry. This however created a façade of black land ownership in urban areas, as those who held permits could never enjoy full ownership of their property 4.
The current position of black land ownership in South Africa.
As the new Democratic dispensation approached the horizons of the South African people, many changes were implemented in efforts to bring about equality in the country.
Land owned by black Individuals
Property owned in urban areas/townships, to which people had housing permits, were now automatically transferable into the name of the head of that particular household. 5 This then meant that the black population that lived in township areas now had Title Deeds that were registered at the Deeds Registry. They could now enjoy the full rights of property ownership.
In addition, the Constitution thus led to the abolishment of unjust laws in the country and afforded equal access to property to all South Africans. Through the Constitution, the Land Reform Programme was then implemented in pursuit of redistributing land for human settlement, agricultural purposes as well as non-agricultural purposes. The programme aimed to redistribute 30% of commercial agricultural land to previously disadvantaged persons. However, a lot of progress has to be made because, as of 2022, only 10% of the land was distributed in terms of the redistribution programme.
Tribal/rural trust land
The Native Trust and Land Act of 1931 and various other pieces of legislation were abolished in the 1990’s. 6 This then allowed for the transfer of ownership of tribal property to many tribal groups of South Africa. Various tribes that were not afforded the rights to acquire and own land/property could then request the relevant minister to transfer the land to which they had control, over into the names of the tribes. Which tribe will then hold valid Title Deeds that were registrable at the Deeds Registry. 7 The Ingonyama Trust being one of the tribal trusts, which owns land and controls such land on behalf of its inhabitants, (the Zulu Nation), provides some insight on how tribal land trusts function.
The Ingonyama Trust
n 1994, the Ingonyama Trust was founded by the then government of KwaZulu Natal. This resulted in almost 30% of the land in the province of KwaZulu being transferred into the named trust to be kept on behalf of the Zulu Nation for the benefit of its inhabitants. 8 The trust is essentially controlled and administered by the Zulu king as the sole trustee of the trust and the title deeds of such land vest solely in the trust. 9 All individuals who want to use land which vests in the Ingonyama Trust will do so by leasing the land. 10 Essentially one may not purchase and acquire a registerable title in the land which so vests in the trust.
You might ask yourself, what are the various steps to be followed in order to lease such trust land? Three main steps will have to be followed, being: 11
Approach the relevant Traditional Council: In order to lease a portion of the land in the trust the first process would be to approach the relevant traditional council to request the allocation of a site/stand.
Enter into a lease agreement with the Trust: Once you have been allocated a site, the trust will provide you with a lease agreement that sets out the terms of the lease agreement to be entered into by the prospective lessee and the Trust Board. Once signed by both parties, the lessee will receive a document proving that the land was indeed allocated to them and thus, they have the right to use that land for a specified purpose.
Receive a Traditional Consent form: Once the lease agreement is signed and approval for the right to use is given by the traditional council, the lessee must sign a Tenure Option Application form. Thereafter the Traditional council will provide the lessee with a Traditional Consent Form which serves as proof that the land has been allocated the that particular lessee.
In conclusion, land ownership by black people in South Africa significantly increased during the democratic dispensation and acquiring trust land as an individual is possible. However, when leasing trust land, one does not receive a registered Title Deeds which is registerable at the deeds office. As a result, the issue faced by Rural trust land inhabitants still continues in that, they will still not enjoy full ownership of the land that they live on and have paid for.
Written by: Mpho Molapo
Moderated and approved by: Clive Smith
1 HJ Kloppers and GJ Pienaar THE HISTORICAL CONTEXT OF LAND REFORM IN SOUTH AFRICA AND EARLY POLICIES PELJ 2014(17)2
2 Ibid 1
3 Ibid 1
4 Gauteng Provincial Government: Department of Human Settlements and Others v Pogatsi and Others (2020/19559) [2022] ZAGPJHC 762
5 Ibid 4
6 Upgrading of Land Tenure Rights Act 122 of 1991 Chapter 3
7 Ibid 6
8 Hilary Lynd (2021) The Peace Deal: The Formation of the Ingonyama Trust and the IFP Decision to Join South Africa’s 1994 Elections, South African Historical Journal, 73:2, 318-360
9 Ownership of Land in Tribal areas. Available at: https://www.ghostdigest.com/articles/ownership-of-land-in-tribal-areas/56044 [Accessed 13 June 2024]
10 Real Estate: Ingonyama Trust. Available at: https://www.ingonyamatrust.org.za/real-estate/ [accessed 13 June 2024]
11 Ibid 10
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