The Ingonyama Trust Board has rejected land reform and rural affairs minister Mzwanele Nyhontso’s decision to dissolve the structure, suggesting it was considering a legal review of the decision.
The embattled board has lodged a counter view, accusing Nyhontso of being inconsistent with the governing legal framework.
“The board wishes to place on record that, in its considered view, the minister’s announced course of action is unlawful, ultra vires and inconsistent with the KwaZulu-Natal Ingonyama Trust Act, the administrative regulations made under that Act, and the Public Finance Management Act (PFMA)."
The cohort believes that section 2A of the trust’s act stipulates that the board is the statutory body established to administer the affairs of the trust and the trust land.
“The act expressly provides that where a vacancy exists in respect of a member appointed under section 2A(3)(b) or (c), that vacancy does not prevent the board from carrying out its functions.”
Due to this, the board maintains that Nyhontso’s announcement is therefore irrational and contrary to the act to the extent that it proceeds from the premise that vacancies, without more, disable the board from continuing to function.
“The board further notes that regulation 3 of the administrative regulations sets out the limited circumstances in which a member vacates office and expressly provides that, where a vacancy arises before expiry of a term, a replacement must be appointed in the same manner as the vacating member.”
In a statement, the board claims that the lawful response to the resignations is the filling of vacancies through the prescribed statutory process, not the displacement of the board through what they call an “extra-statutory arrangement”.
“Regulation 15 is equally clear. It provides that five members form a quorum for a meeting of the accounting authority, but where a quorum is not present at the first meeting, a further meeting must be convened, and on that later date the members present form a quorum for that meeting, subject to notification to the minister and the premier.”
According to the board, the interpretation of the regulations is that they therefore create an express continuity mechanism and do not support the conclusion that the board becomes legally inoperative merely because the first meeting did not quorate.
“The board also notes that the minister has sought to rely on section 49(3) of the PFMA for the designation of an administrator. That section provides that, in exceptional circumstances, the relevant treasury may approve or instruct that another functionary of a public entity must be the accounting authority for that public entity.”
The board poured cold water on the minister’s intention to appoint an administrator, claiming that section 49(3) does not authorise Nyhontso to unilaterally designate an appointee for day-to-day operational administration.
“Nor does it authorise the bypassing of the vacancy and quorum mechanisms expressly created by the Ingonyama Trust Act and its regulations.”
The fightback cohort defended the four resignations that have landed them in this quagmire, saying that they did so for a variety of reasons, such as the pursuit of other professional opportunities, personal commitments and personal development.
“Their departure starting from September 2024 should not be misconstrued as dissolving the board or extinguishing its legal standing. The ITB is therefore not aware of any lawful basis for the effective sidelining of the board while it remains a legally constituted statutory body under the Act.”
Instead, they maintain that any attempt to displace and dislodge the current board would undermine legality, due process and institutional certainty.
“The board remains committed to the benefit, material welfare and social well-being of the communities residing on Ingonyama Trust land and will continue to act in accordance with its statutory mandate.”
The Ingonyama Trust Board announced it would be escalating the matter by seeking legal advice on Nyhontso’s announced intervention.
“The board reserves all of its rights, including the right to challenge any unlawful decision through the appropriate legal processes. We urge all stakeholders and the public to distinguish between political announcement and lawful implementation. In a constitutional state, public power may be exercised only within the limits of the law.”
The Ingonyama Trust Act states that: “The Board shall consist of (a) the Ingonyama (the King) or his or her nominee who shall be the chairperson of the board; and (b) four members appointed by the minister after consultation with the Ingonyama, the Premier and the chairperson of the House of Traditional leaders of KwaZulu-Natal; and (c) four members appointed by the Minister, with due regard to regional interests, in consultation with the Premier, who shall consult with the Ingonyama and the chairperson of the House of Traditional Leaders in this regard.
“Provided that if a vacancy exists in respect of a member referred to in paragraph (b) or (c), this shall not prevent the Board from carrying out its functions: Provided further that the members appointed in terms of paragraphs (b) and (c) shall be appointed from amongst officers in the employ of the governments of the Republic of South Africa or the province of KwaZulu-Natal or from other persons who do not hold office in or on behalf of a political party or have a high political profile, who have knowledge and experience relevant to the administration of the trust land.”
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