RAMABINA MAHAPA: Traditional leaders are being stripped gradually of autocratic powers

The recent unanimous judgment by the Constitutional Court on the power of traditional leaders to impose taxes on people who fall under their jurisdiction has spotlighted the changing powers and functions of traditional leadership, under customary law and the constitution. 

On December 20 the Constitutional Court confirmed a November 2023 judgment of the High Court of Limpopo, which declared that customary law only allows traditional leadership structures to impose voluntary levies after meaningful consultations with their communities about the need for, purpose and size of the levy.

Traditional leadership structures commonly impose compulsory levies for various purposes, including allocating a residential stand, burying a family member or providing proof of address. Failure to pay the levy often results in fines or refusal to provide access to services. Traditional leadership structures routinely impose levies without consulting their communities. The Constitutional Court declared that the constitution limits taxing powers to elected legislative bodies. 

The Constitutional Court distinguished between the precolonial practice of communities paying voluntary tributes, often in the form of labour or goods, and the practice of imposing compulsory levies, which was introduced during the colonial and apartheid periods by the governments of the day. When traditional authorities were co-opted by the state and given responsibility for collecting taxes on the state’s behalf the practice of voluntary tributes was replaced with a compulsory, nonconsensual and punitive system. Therefore, the power of traditional leaders to impose compulsory levies cannot be said to be derived from customary law.

Over the last few years the power and functions of traditional leaders have come under scrutiny. In May 2023 the Traditional & Khoi-San Leadership Act was declared unconstitutional and set aside by a unanimous judgment of the Constitutional Court, because of a wide-ranging and substantial failure to facilitate public participation by parliament.

The act had implications for the traditional and Khoi-San communities and parliament needed to ensure adequate consultation with those communities. The law provided for traditional councils to enter into agreements or partnerships with third parties, but some communities feared this might undermine their land rights and, therefore, successfully challenged the legislation in the Constitutional Court.

Two other judgments clarified and invalidated the powers and functions previously assumed by traditional leaders. The November 2018 judgment of the high court in Pretoria and the June 2021 judgment of the KwaZulu-Natal (Pietermaritzburg) High Court said holders of informal land rights must provide their consent whenever they are deprived of land rights. Typically, traditional leaders claim decision-making powers over land.

Before the Native Administration Act of 1927 senior traditional leaders could alienate land with the consent of their councils but without the participation of the wider community. The Native Administration Act introduced the need to consult communities through a public meeting before alienating land. Post-1994 legislation and judgments have affirmed individuals, families and village-level community structures as the holders of land rights, not senior traditional leaders and their councils. 

The recent tensions between King Misuzulu and the Ingonyama Trust Board may indicate what is to come as we navigate the changing powers and functions of traditional leaders. The KwaZulu-Natal Ingonyama Trust Act of 1994 established the trust and provided for the Ingonyama to nominate themselves or someone else as the chair of the board.

Departing from the practice established by his late father, King Goodwill Zwelithini, King Misuzulu nominated himself after unceremoniously removing his previous nominee. The act requires the minister of land reform & rural development to appoint the remaining eight members of the trust’s board and designate the vice-chair of the board. The minister can suspend the board or replace any of the board members, except for the Ingonyama or their nominee.

While in the legislation enacted on April 25 1994 the Zulu king had control and influence over the functioning of the Ingonyama Trust, the legislation was amended in 1997 to include a trust board, which is responsible for administering the affairs of the trust and the trust’s land. The creation of the board reduced the Ingonyama’s role and participation to that of a member of the board. The KwaZulu-Natal Ingonyama Trust Act does not give the Ingonyama unilateral powers to suspend other board members.

In a nutshell, traditional leaders are gradually being stripped of their autocratic powers, which are a legacy of colonialism and apartheid. The courts have repeatedly emphasised a consensual, voluntary and consultative form of customary law. Traditional leaders can no longer claim sole decision-making powers over land; they cannot impose taxes; and rural residents can opt out of traditional courts.

What will the role of traditional leaders be in future? We should expect agitation, threats of violence and litigation as the country and courts answer this important question.

• Mahapa is a senior associate at conflict management and development practice Concentric Alliance.