On 20 December 2024, South Africa’s Constitutional Court (CC) handed down judgment in Mohlaba v Minister of Cooperative Governance and Traditional Affairs. The CC confirmed the High Court’s order of invalidity that section 25 of the Limpopo Traditional Leaders and Institutions Act 6 of 2005 (the Act) is unconstitutional to the extent that it allows traditional councils to impose involuntary levies on community members residing under traditional authorities in the province of Limpopo. This confirmation affirms a crucial principle: taxation authority lies with democratically elected legislative bodies and must reflect democratic principles.

Section 172(2)(a) of South Africa’s Constitution provides that the declaration of constitutional invalidity by lower Courts has no force unless and until it is confirmed by the CC. After the High Court’s ruling (which I have discussed in an earlier blogpost) the applicants made an application to the CC for confirmation of the High Court’s order of constitutional invalidity.

The roots of this ruling are deeply embedded in South Africa’s socio-political history. Historian, Professor Peter Delius provided compelling expert evidence that pre-colonialism tribal levies functioned as ‘tributes’ to traditional leaders rather than legitimate taxes. Traditional communities, often through goods or labour, expressed their appreciation and respect for their traditional leaders. The backdrop of colonialism and apartheid saw traditional leaders being co-opted as agents of State, who collected levies for personal gain and/or for the colonialists [5]. This exploitation of community members laid a foundation of distrust and inequity, one that contemporary traditional communities are still grappling with [6].

The CC emphasised that these levies still commonly serve as a means for traditional leaders to cover personal expenses, all while sometimes being demanded for state-provided services that are constitutionally guaranteed [6]. The imposition of these levies does not originate from a community consensus; rather, they are dictated by traditional authorities, leaving community members with little recourse. Failing to pay these levies often resulted in denied access to essential services and resources, effectively impoverishing already vulnerable communities [7].

The CC’s analysis elaborated on the nature of taxation power, affirming that it is fundamental democratic as enshrined in the Constitution. Taxation, as the CC noted, should be exercised by authorised bodies—provincial legislatures and municipal councils, with no provision for the delegation of this critical power to traditional leaders [15]. The CC cited section 77 of the Constitution, which lays out specific procedures for “Money Bills” that impose national taxes and duties, underlining the structured, democratic process governing taxation [16]. Crucially, Fedsure, Shuttleworth, and Casino Association reinforce that a taxing authority cannot emanate from either elected or non-elected bodies unless explicitly provided for by the Constitution [17–20].

By seeking to empower traditional leaders with taxing authority, the Act sought to legitimise a model of governance that is distinct from the democratic framework [21]. The Constitution does not allow unelected traditional leaders to impose taxes because it subverts democratic tenets and undermines the collective voice of the community [23]. Furthermore, expert opinions reinforced that customary law does not support the imposition of compulsory taxes—only voluntary contributions [24]. This clarification is paramount; it illustrates that traditional leadership, while established and respected, cannot ascend to roles that infringe on the rights and obligations delineated by the Constitution [22–24].

The CC outlined key factors to determine whether the levies constituted taxes in a constitutional sense: their compulsory nature, the uniformity of their imposition, and their collection into a general revenue fund meant for public good [34]. The evidence indicated that these levies were indeed mandatory; communities faced penalties for non-payment, and the obligatory constructs around their collection strongly resembled taxation [35].

In addition, instead of being funnelled into public welfare or designated projects, the funds accumulated from these levies were deposited into a traditional council’s general account, devoid of clear accountability or earmarking. Such practices raise serious concerns about fiscal responsibility and equitable resource distribution within these councils, further substantiating the CC’s decision [36].

The CC’s ruling signals a pivotal moment for traditional governance in South Africa, advocating for accountability and adherence to democratic principles [37–38]. The confirmation of the High Court’s declaration of invalidity safeguards the rights of communities living under traditional authorities, promoting a more equitable framework for governance where the voices of rural citizens are prioritised [40].