The Ingonyama Trust Board says the Land Reform Minister, Mzwanele Nyhontso's decision to disband it is unlawful.
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The Ingonyama Trust Board has rejected the decision of the Land Reform Minister, Mzwanele Nyhontso to disband it.
On Wednesday, Nyhontso announced that he has taken the decision to dissolve the Board, citing the lack of capacity to take lawful decisions since it was left with less than five members, which did not constitute a quorum.
Nyhontso said in a statement that he had consulted with KwaZulu-Natal Premier Thamsanqa Ntuli and King Misuzulu kaZwelithini before making a decision. Nyhontso also announced that the day-to-day operations of the Board would fall under an administrator.
In a statement, the Board rejected the decision, arguing that it was unlawful.
“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).
In terms of section 2A of the Ingonyama Trust Act, the Board is the statutory body established to administer the affairs of the Trust and its 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.
"The Minister’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,” read the statement
The Board said it noted 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. Furthermore, the Board said the lawful response to resignation was the filling of vacancies through the prescribed statutory process, not the displacement of the Board through 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. The regulations thus create an express continuity mechanism and do not support the conclusion that the Board becomes legally inoperative merely because the first meeting is not quorated,” read the statement
The Board announced that it was obtaining legal advice on the Minister’s announced intervention and reserves all of its rights, including the right to challenge any unlawful decision through the appropriate legal processes.
Ntuli said he had noted the decision, confirming that he was consulted before the decision was made.
The king’s spokesperson Prince Thulani Zulu said he would not yet comment on the matter.
During the recent opening of the KwaZulu-Natal provincial Legislature, the king announced that he had appointed a legal team to make representations to Parliament for the amendment of the Trust Act which empowers the Minister to appoint the Board and place those powers under him.