South African High Court Rules that Tribal Levies are Unconstitutional and Contrary to Customary Law

by | Dec 20, 2023

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About Wandile Brian Zondo

Wandile is a PhD candidate in Public Law and a Research Assistant at the Land and Accountability Research Centre (University of Cape Town). He holds a LLB (University of KwaZulu-Natal) and a LLM in Environmental Law (UCT). He worked as a Teaching Assistant in the Department of Public Law at UCT.

On 1 November 2023, the High Court of South Africa held that levies involuntarily imposed under section 25 of the Limpopo Traditional Leaders and Institutions Act 6 of 2005 (the Act) to community members living under traditional authorities in Limpopo were unconstitutional and invalid.

The Court held that traditional councils were not democratically elected and consequently did not have the power to impose taxes, levies, duties, and surcharges. The Court also concluded that the imposed levy was contrary to customary law because it was not voluntary or enacted with consent. This judgment sheds light on the role of traditional authorities in a democratic South Africa, highlighting that they do not have the power to assume the duties and responsibilities of a democratically elected government. The judgment also indicates the importance of consultation under customary law.

The case concerned the constitutionality of section 25 of the Act. According to section 25(1), traditional councils, on the approval of the Provincial Premier, have the power to levy a traditional council rate to all taxpayers living under the concerned traditional community. Section 25(2) provides that the levy of traditional council rates shall be made known by the Premier through notice in the Government Gazette and shall enter into force from the date mentioned in such notice. In section 25(3), the Act provides that a taxpayer who fails to pay the traditional council levy may be dealt with in accordance with the customary laws of the traditional community concerned.

The applicants in the case reside within traditional communities in Limpopo and had been subjected to paying levies under the provisions in the Act. They argued that the levies were compulsory and imposed without consultation with community members. These levies were charged for different things, including for the report of a death in a family, relocation to another village, the allocation of a residential stand, or the transfer of property ownership, among others. Significantly, the applicants also argued that in cases where they failed to pay the levy, traditional authorities denied them essential services, including the installation of toilets, access to grazing fields, and assistance with the burial of loved ones.

At the core of the case was whether section 25 of the Act was inconsistent with sections 228 and 229 of the Constitution, which deal with provincial taxes and municipal fiscal powers and functions, respectively. In this regard, the Court considered the meaning of the word ‘levy’ under section 25 of the Act read together with section 77 of the Constitution, which regulates bills that involve public money, and held that levies were equivalent to taxes [18]. However, because traditional councils were not democratically elected, they did not have the power to impose taxes, levies, duties, and surcharges.

Another important issue at stake was whether imposed or compulsory levies are permissible under customary law. These levies are collected with the aim of assisting the institutions of traditional leadership in running their affairs [25]. The Court held that, in terms of customary law, the contributions to traditional authorities must be made voluntarily and subject to consultation and agreement with community members [22]. In this case, the traditional authorities enforced the payment of levies by withholding certain services – they were not voluntary. Consequently, customary law and the Constitution did not support the imposition of compulsory levies or taxes by traditional authorities [30].

In sum, the judgment states that traditional authorities do not have the power to impose involuntary levies under customary law. But not only that: it also states that the legislature is also not constitutionally permitted to promulgate legislation that grants traditional authorities the power to impose involuntary levies. This decision highlights the importance of consultation within customary law and promotes traditional governance through processes that are participatory in nature. The High Court, through the lens of customary law, adds to the jurisprudence of the Constitutional Court on public participation within South Africa’s constitutional democracy. While the implementation of the judgement is likely to present a challenge where complicated relationships between traditional councils and community members already exist, the significance of this decision cannot be gainsaid.

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