What does it mean to say the king holds an asset in trust of the Swazi nation? Dr J.S.M. Matsebula answered this question many years ago. However, it continues to linger in the country’s body politic because, through manoeuvring and political gamesmanship, it has come to be defined as meaning such property belongs to the king to the exclusion of all others. Not so, says Dr Matsebula, who says such an asset, particularly land, belongs to the people of eSwatini, the king being its custodian and overall overseer, writes NIMROD MABUZA.
The question of what is really meant when it is said that the king holds an asset in trust of the Swazi nation was settled a long time ago by historian, royal counsellor and teacher, Dr J.S.M. Masebula who wrote that this did not mean that such an asset was the king’s personal property.
This means that entities such as Tibiyo Taka Ngwane, a royal investment company created by King Sobhuza II in 1968 and its sister company, Tisuka Taka Ngwane created in 1976 are not assets belonging to the king and royal family to the exclusion of emaSwati.
The issue of the king’s holdership of national assets has been blurred over the years by a greed that has set in at leadership level in this country where that which is supposed to serve and benefit the people has been redefined as assets belonging exclusively to the king.
A political activist, Goodwill Sibiya, is in prison right now because he dared to question the monarch on its ownership of some of these national assets.
Dr Matsebula, in his book entitled “A History of Swaziland,” third edition, says anything held by the king in trust for the Swazi nation is neither personal nor family property but belongs to the nation.
If Dr Matsebula’s published work is anything to go by, as he is considered an expert on Swazi law and custom, it brings clarity to the question of ownership of Tibiyo and Tisuka Taka Ngwane.
It also puts to rest the confusion over ownership of farms and land held by the king in trust by for the Swazi nation.
The land belongs to emaSwati and it should be used for their benefit. This, in many cases, is done through chiefs. The king allocates such land to chiefs who in turn allocate portions to the people.
Advocate Lucas Maziya, in his dissertation for his LLB at the University of Swaziland, also concluded that the widely held belief that the king and the royal household own Tibiyo and Tisuka is a huge fallacy.
Both organizations report neither to parliament nor cabinet but only to the king. They are not accountable to anyone else.
Their board committees are handpicked by the king. So is the executive or its heads. Practically, the king and the royal household run these entities.
Through political persuasion and manoeuvring over the years, emaSwati have come to believe that the two institutions belong to the king and the royal family.
And 1968, when Tibiyo and in 1976 when Tisuka were established, they have been run as private property belonging to the king and the royal family.
So ingrained is the belief among emaSwati that Tibiyo and Tisuka belong exclusively to the royal family, it is only they who really benefit from their huge asset base while ordinary folk scramble for the crumbs along the way.
Last year, Amnesty International in its special report on evictions eSwatini raised the question of land held by the king in trust for the nation.
It said that while the Constitution of 2005 recognizes a dual land tenure system, “one of its weaknesses is that it does not clarify various key items. The Constitution outlines a ‘trust’ relationship regarding land.”
Amnesty International wrote: “However, the Constitution provides no clarification about what holding land in “trust” means, and the nature of the trust relationship between the king and the Swazi nation is therefore shrouded in uncertainty.
“The Constitution does not elaborate on the obligations or entitlements regarding land allocation and acquisition that flow from this “trust” relationship.”
In its quest for clarity over the interpretation and meaning of “held by the king in trust for the Swazi nation”, Amnesty International approached the High Court but an unidentified judge could not help.
“It has not been interpreted. I do not know,” Amnesty International quoted the judge as saying.
Says Amnesty International; “The lack of clarity in the Constitution regarding the interpretation of the “trust” relationship contributes to overall confusion and controversy on land ownership and tenure.”
Dr Matsebula gives plausible clarity on the long-sought interpretation and meaning of land and anything “held by the king in trust of the Swazi nation.”
He says when Dutch settlers came here, they also failed to understand that the land the king allocated them was not to become their personal property.
Wrote Dr Matsebula; “The Dutch interpreted the hand-over of cattle and other items to the Swazis as payment for the piece of land on which they were allowed to settle, and therefore believed ownership passed to them.
“The Swazis on the other hand did not understand the Dutch system whereby tributes paid to the king meant the purchase price of the land on which they were settled.
“According to the Swazis what was being passed on to the emigrants were mere usufruct rights over the lands in question.”
He elaborates, to give a much clearer picture, that: “The Swazi law in this case stems from the fact that land is collectively owned by the nation which collectively fights for it.
“The king merely holds it in trust for the nation. As such he has no power to sell or alienate land from the nation. The Boers thought they could purchase land for anything from any chief.”
To bolster his assertion that from time immemorial Swazi law and custom did not permit the sale of national land, Dr Matsebula quoted two people who “honestly mentioned this fact.”
He quoted one G. Wolsely who stated that: “According to the laws and usages of the Zulu nation…the land belongs to its people and no chief or king has ever had the power to alienate it.”
Another quoted figure is Brian Marwick, once Resident Commissioner for Swaziland who, according to Dr Matsebula, wrote: “The private ownership of land was unknown amongst them [the Swazis] and indeed throughout the Bantfu world before the advent of the white man.
“The dominion in the land was vested in the whole nation and belonged also to the generations to follow; only the control of the use of it was in the hands of their ruler.”
He said such use “might be given to anybody so long as the land was not needed by the members of the tribe, and it was in the power of the ruler to vary his grants of land and even to cancel them for good cause arising from the behaviour of the grantees and from the needs of his people.”
Despite that Dr Matsebula dwelt on the question of land held by the king in trust, it may well be argued that his definition extends to other entities held by the king in trust for the Swazi nation.
Over the years, labour civic society formations have questioned the ownership of Tibiyo Taka Ngwane and called for its taxation.
The International Monetary Fund has added its voice on the matter.
Advocate Maziya tells the history of the two organizations.
In the aftermath of the Partition Proclamation of 1907, Queen Regent Labotsibeni was not happy when one-third of the land was assigned and made available at the time to the majority indigenous emaSwati.
In 1908, she sent a delegation to London to protest about the unfair distribution of land. Her effort was in vain, says Maziya.
Even though she was beaten, refused to go down. She put in motion a second plan which involved buying back the land from foreign settlers.
A scheme to collect money for the purchase of the land was established in 1913. She commanded that able-bodied men should flood the mines in South Africa and a portion of their money was paid to the fund and used to buy the land back.
It was a successful scheme and vast amounts of land were bought back.
King Sobhuza II who took over as monarch in 1921 picked up the baton from his grandmother.
Negotiations and court challenges to get the land back made no headway. The king lost the case against Allister Miller and the trips to London were expensive for emaSwati.
The Lifa Fund was established to carry on the work started by Queen Regent Labotsibeni. The nation made contributions in the form of cattle which were sold but corruption soon set in.
In 1968, Tibiyo Taka Ngwane was established. When Tibiyo was able to stand on its own, royalties which partly sustained it from inception were diverted to Tisuka.
The king instructed the then minister of finance to ensure royalties were paid to Tisuka.
Maziya concludes; “A close examination of the contents of the 1968 “Royal Charter” (establishing Tibiyo and the 1976 “Letter of Authority” (establishing Tisuka) reveals the fact that the two organisations are national properties entrusted to the care and custody of the Head of State on behalf of the Swazi nation.”
He adds: “This is because both were created out of, and at least one of them still subsists on, national funds (i.e. mineral royalties). The assertion, therefore, that the two are private properties of the King is not true.
“It is a trite principle of the law of trusts that holding property “in trust” for somebody else does not, cannot, and should not, by any stretch of imagination, confer ownership on the trustee (in our case – the king). Rather, ownership remains vested in the beneficiary, (in our case – the Swazi nation at large).”
Tbiyo’s Managing Director, Absalom Themba Dlamini, in an earlier interview with The Nation referred to the organization as a “dynamic national entity.”
He highlighted what Tibiyo gives to the ordinary Swazi.
The only indication about the ownership of Tibiyo could be read from his response that most assets of the organization are not in cash resources “e.g. Swazi nation land is held by the iNgwenyama on trust for the Swazi nation. This is not tradable land and hence a nominal value in the books of Tibiyo.”
Prince Mabandla, as prime minister, may have not been mistaken to think that Tibiyo could be brought to scrutiny as a national entity.
With corruption threatening growth in the kingdom, Prince Mabandla successfully persuaded King Sobhuza II to establish a commission of inquiry.
The Mohammed Commission, however, came to screeching halt after Prince Mabandla reportedly instructed that it should spread its scope and investigate Tibiyo.
The commission hit the panic buttons when it called for documents from Tibiyo.
King Sobhuza was advised to stop the commission because it had begun to tread on sacred ground.
He stopped it and as Prince Mabandla had ruffled many feathers in the corridors of power, he was hounded out of the premiership shortly after the death of the king.
In a recent case, Tisuka refused to pay rates for its numerous properties under the Manzini municipality and its major reason was that it is owned by the king.
The High Court held in its favour, ousting a decision by the Manzini magistrate court that Tisuka should pay rates.
In May, Sibiya (Goodwill) launched a legal battle to reclaim Tibiyo. As soon as he had filed those papers, he was arrested and charged with sedition and terrorism.
Some major sections of the sedition law in the country were declared unconstitutional by the High Court.
To arrest and detain a person on the strength of a law that technically does not exist is by any stretch of imagination, a blatant intimidating tactic.
Story produced by Inhlase Centre for Investigative Journalism