The Zulu kingdom should develop customary law to keep the peace

 On 20 August, the Zulu kingdom held a ceremony to introduce their new king, Misuzulu ka Zwelithini, to his ancestors. This ceremony, known as the entering of the kraal (ukungena esibayeni) saw the king at the KwaKhangelamankengane royal palace perform sacred rituals after a lion hunts the previous night. 

According to historians, this particular ceremony was last held in 1954.

The ceremony saw delegations from Nguni nations across Africa visiting the Zulu. This shows how silly xenophobia against African immigrants is. Among these were delegations from eSwatini, Malawi, Zambia, and Zimbabwe. These are tribes that are related to Amazulu. The Ndebele in Zimbabwe trace their lineage to Mzilikazi KaMashobane, once Shaka Zulu’s most capable general before they fell out and he fled to what would later become Zimbabwe.

These people speak Ndebele, which is almost indistinguishable from the Zulu language. Members of the delegation pointed out that when South Africans tell members of their tribe to “go back to Zimbabwe”, some Shona people in that country tell them to “go back to South Africa”. 

These are the same people that in the 1980s suffered from Robert Mugabe and Zanu-PF’s Gukurahundi ethnic cleansing campaign in Matebeleland, which saw more than 20 000 Ndebele people killed. These people are not South African only by an accident of history. 

To call them foreigners is silly, and restricting immigration would be a serious tragedy if another Gukurahundi-type event were to occur. This applies to many other people across Africa, where borders are arbitrary.

The entering the kraal event follows what was supposedly a similar ceremony a week earlier to introduce Prince Simakade Zulu to the ancestors as the new king at Enyokeni palace. That event was less well attended and came as a result of an ongoing dispute over the throne, which is being fought in the courts. 

Depending on who you talk to, the King of amaZulu is Simakade. To compound matters, a few days later another “heir” was introduced by some brothers of the late king when Prince Buzabazi was announced as the preferred candidate to take over the throne. 

There are thus potentially three people vying for the Zulu throne, which highlights the need to develop customary law.

The dispute in the court centers on the late King Zwelithini kaBhekuzulu’s will, which named Queen Mantfombi Dlamini, his third wife, as regent. Even though she was not the first wife, she was the great wife of the king because her lobola was paid by the nation and she is the daughter of King Sobhuza II of eSwatini, so she is from a royal lineage. 

Customarily it was understood that she would birth the heir, but this precedent had been broken, hence the dispute. It would be too hasty to say that codification of Zulu law is the answer here, but certainly, a home-grown system of interpreting and establishing precedent in Zulu law is required.

Cases such as these have to be dealt with through some sort of court system that belongs to the Zulu nation and provides a logic for when departure from the custom is warranted based on precedent.

Developing customary law (the common law of amaZulu) will help bring about a peaceful resolution to conflicts over succession, and perhaps even conflicts over land. 

This should be done without involving South African courts, with judges whose primary responsibility is enforcing South African law. These judges will not prioritize the Zulu view of things when there’s a clash between Zulu customary law and legislation by parliament for example. This becomes especially important when it comes to Ingonyama Trust land.

The trust represents 33% of the land of KwaZulu-Natal and the Zulu king is the sole trustee. This was an arrangement negotiated primarily by Inkatha under Prince Mangosuthu Buthelezi during South Africa’s transition to democracy. 

Although 33% of the province is a lot of lands, it is a fraction of the land once controlled by the Zulu nation, and largely represents the land allocated for the KwaZulu homeland during apartheid. 

It has been reported that there is a strong push from the ANC to disband the Ingonyama Trust and give title deeds to the people who live on the land.

Expropriation without compensation 

Although ownership in the form of title deeds will bring untold benefits to the people who occupy the land, it should give us some pause as to why the ANC would suddenly be championing title deeds for Ingonyama Trust land, while simultaneously pushing for expropriation without compensation for the rest of the country. 

This smacks of a two-pronged strategy where people are “given” land, only to have it expropriated after they have received title deeds. 

The ANC does not care about property rights, for them, title deeds on Ingonyama Trust land are a means to disempower the Zulu king, who is possibly the most powerful alternative source of power to the South African government.

On the other hand, Ingonyama Trust land is a dead asset. While people on that land are living like serfs, poverty in rural KwaZulu-Natal will not be solved. 

Introducing a leasehold, as the trust has done, does not solve the fundamental problem; it only brings more unnecessary hardship to the people who occupy that land. A better solution needs to be found. 

A solution could lie in the development of customary law where a form of ownership for occupiers of Ingonyama land is introduced. This system would give all the rights of ownership including the right to subdivide and alienate the land. 

The crucial difference from a title deed would be that this system would allow the trust to levy a rent as a fixed percentage of the profits produced from the land regardless of who uses or occupies the land. This would also reduce the need for chiefs and izinduna to allocate land; they would simply need to monitor whether the productive activity is taking place on the land and that the person peacefully acquired it from the person who was previously given the right to use the land.

Alienating the land would not require the involvement of the chiefs and izinduna. It would eliminate the burden of paying leases for poor people who live on the land and whose activity is just at or slightly above the subsistence level. It would also encourage economic activity and not strangle it, as a blanket leasehold system does. 

Best of all, it would remove the rationale for introducing title deeds into Ingonyama Trust land. The Zulu nation would still have control over the land and the economic benefits thereof. Although the kingdom would lose the ability to allocate this land, it would not lose the economic benefits of that land, and this could be used to further develop customary law and the kingdom in general.

Finally, King Misuzulu kaZwelithini must count himself lucky that he has Prince Mangosuthu Buthelezi at his side. 

He has stood at the side of three Zulu kings, fought tooth and nail to ensure that the Zulu kingdom has at least some of their historic lands, and helped ensure that amaZulu would retain their customs and traditions. Long may he live and long may the King reign.

Mpiyakhe Dhlamini is a libertarian, writer, programmer, and contributing author to the Free Market Foundation. The views expressed in the article are the author’s and not necessarily shared by the members of the foundation.

The views expressed are those of the author and do not reflect the official policy or position of the Mail & Guardian.