The Ingonyama Trust Board (ITB) says that the decision by Minister of Land Reform and Rural Development, Mzwanele Nyhontso, to block the suspension of the board and its officials was sound and founded in law.
The CEO of the ITB, Vela Mngwengwe, remarked that the minister’s statement reflected the board’s understanding of the rules and regulations governing the ITB.
“The minister’s statement is consistent with the Board’s understanding of the law that governs Ingonyama Trust,” said the ITB CEO.
In a statement issued yesterday, Nyhontso said only the Land Reform Minister had the powers to suspend board members of the ITB, after Zulu King Misuzulu kaZwelithini had sought to suspend board members.
The board and King Misuzulu, who is the chairperson of the board, have been at loggerheads for some time. Tensions reached an all-time high this month after the king sent several letters to the board, including letters intending to suspend its members.
In one of the letters from the king, it was announced that the law firm Van Rensburg Kruger Rakwena Attorneys was appointed to handle certain matters involving the trust.
The king had made it clear that he cannot work with the current board and has previously called for its removal.
The Mercury reported that the king had written several letters to the ITB board, including one that informed them of the law firm’s appointment to undertake specific trustee functions. This law firm subsequently distributed letters suspending members of the board and senior staff at the ITB.
But Nyhontso said yesterday the king lacked the legal authority to suspend the ITB board and its employees, stating that the board would remain in place.
He also said that the appointment of the law firm Van Rensburg Kruger Rakwena Attorneys to handle ITB matters was irregular.
“I have learnt about the suspension of the Ingonyama Trust Board following a letter from the chairperson of the Ingonyama Trust, His Majesty King Misuzulu, dated 24th December.
“I am also aware of subsequent developments in which the suspension was executed by one Stephen Jabulani Rakwena, purportedly acting on behalf of His Majesty King Misuzulu,” the minister stated.
He reiterated that the minister has the power to make regulations and to appoint eight of the board members, designate a vice-chairperson since the king, as sole trustee, is also the chairperson of the trust.
As the executive authority, the minister exercises control over the trust as prescribed by Section 1 of the Public Finance Management Act (PFMA). This ownership control includes the ability to appoint or remove the majority of the members of the entity’s board of directors or equivalent governing body.
Nyhontso explained that Section 49(1) and (2) of the PFMA mandates that every public entity must have an authority accountable for the purposes of the Act. If the public entity has a board, that board becomes the accounting authority. In this case, the Ingonyama Trust Board is the accounting authority of the trust.
As the accounting authority, all public finance responsibilities imposed by the PFMA and the Treasury Regulations rest on the board.
“From the above provisions of both the PFMA and the Ingonyama Trust Act, it is evident that only the minister appoints the board. The PFMA further empowers the minister to appoint, remove, and by extension, suspend the members of the board as the entity’s executive authority. It follows that the king acted ultra vires by suspending the members of the board; this power is solely placed on the minister,” he said.
He continued: “Regarding the commissioning and appointment of the service provider to conduct the investigation, the king again acted ultra vires by doing so outside of and without the board, as provided for in the Financial Regulations of the Act. This action is similar to those the king is purportedly addressing with the commissioning of the investigation.”
“The decision to suspend the board members and the king’s choice to run the board independently, with the ‘sole unaffected board member’, not only undermines good corporate governance but will also not withstand legal scrutiny if challenged,” added the minister.
He said that as a result “the board remains in office until the minister decides otherwise, and even then, only after following proper processes”.
“The Ingonyama Trust Act of 1994 and the PFMA inform my actions as Minister of Land Reform.
“ I will continue to engage the chairperson and other board members of the Ingonyama Trust to address the concerns raised, whether in governance, supply chain management, violations of the PFMA, or any other related matter. I will execute my duty of appointment and removal of board members accordingly.”
The king’s spokesperson had not responded to a request for comment by the time of publication.