Mohlaba and Others v Minister of Cooperative Governance and Traditional Affairs and Others (2885/2016) [2023] ZALMPPHC 103 (1 November 2023)

Mohlaba and Others v Minister of Cooperative Governance and Traditional Affairs and Others (2885/2016) [2023] ZALMPPHC 103 (1 November 2023)

Section 25 of the Limpopo Traditional Leadership and Institutions Act 6 of 2005 is inconsistent with the Constitution because it authorises traditional councils, which are not democratically elected, to impose compulsory levies or taxes on community members. The Constitution reserves the power to impose taxes and levies to democratically elected institutions at national, provincial, or municipal level. The dominant purpose of section 25 is to raise revenue for traditional councils, making the charge a tax. Customary law does not support compulsory levies; it only permits voluntary contributions after meaningful consultation. The court found sufficient evidence that traditional authorities...

Citation
[2023] ZALMPPHC 103
Parties
Applicant: Ingwana John Mohlaba; Applicant: Marhambu Bennet Chauke; Applicant: Mamila Rose Baloyi; Applicant: Mahasha Mmalekutu; Applicant: Ernest Motsilu Boima; Applicant: Patrick Mduduzi Mphamela Mashego; Applicant: Magate Samuel Maphoto; Applicant: Alfred Chwene Mafikeng; Applicant: Masekela Frans Mathekga; Applicant: Aaron Mogoboya; Applicant: Thomas Mbanyela; Applicant: Nkuzi Development Trust; Respondent: Minister of Cooperative Governance and Traditional Affairs; Respondent: Premier, Limpopo Province; Respondent: Member of the Executive Committee for Traditional Affairs, Limpopo Province; Respondent: Mukhomi Traditional Authority; Respondent: Mavembe Traditional Authority; Respondent: Modjadji Traditional Authority; Respondent: Matlala Traditional Authority; Respondent: Moletji Traditional Authority; Respondent: Mogoboya Traditional Authority; Respondent: Machaka Traditional Authority; Respondent: Limpopo Provincial House of Traditional Leaders
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
1 November 2023
Case Number
2885/2016
Procedural Posture
Constitutional Application / Judgment
Outcome
Section 25 of the Limpopo Traditional Leadership and Institutions Act 6 of 2005 is declared inconsistent with the Constitution and invalid. The order operates prospectively. Customary law only permits voluntary levies after consultation. Publication and implementation steps are ordered. Each party to pay own costs.
Judges
M V Semenya
Legal Topics
Levies by Traditional Authorities, Customary Law Consultation, Constitutional Invalidity, Limpopo Traditional Leadership and Institutions Act, Money Bill Powers
Constitutional Law Administrative Law Levies by Traditional Authorities Customary Law Consultation Constitutional Invalidity Limpopo Traditional Leadership and Institutions Act Money Bill Powers

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Parties

Ingwana John Mohlaba

Applicant

Marhambu Bennet Chauke

Applicant

Mamila Rose Baloyi

Applicant

Mahasha Mmalekutu

Applicant

Ernest Motsilu Boima

Applicant

Patrick Mduduzi Mphamela Mashego

Applicant

Magate Samuel Maphoto

Applicant

Alfred Chwene Mafikeng

Applicant

Masekela Frans Mathekga

Applicant

Aaron Mogoboya

Applicant

Thomas Mbanyela

Applicant

Nkuzi Development Trust

Applicant

Minister of Cooperative Governance and Traditional Affairs

Respondent

Premier, Limpopo Province

Respondent

Member of the Executive Committee for Traditional Affairs, Limpopo Province

Respondent

Mukhomi Traditional Authority

Respondent

Mavembe Traditional Authority

Respondent

Modjadji Traditional Authority

Respondent

Matlala Traditional Authority

Respondent

Moletji Traditional Authority

Respondent

Mogoboya Traditional Authority

Respondent

Machaka Traditional Authority

Respondent

Limpopo Provincial House of Traditional Leaders

Respondent

Procedural Posture

Constitutional Application / Judgment

Legal Issues

  1. 1 Whether section 25 of the Limpopo Traditional Leadership and Institutions Act 6 of 2005 is inconsistent with the Constitution and invalid.
  2. 2 Whether traditional councils are constitutionally empowered to impose compulsory levies on community members.
  3. 3 Whether customary law permits compulsory levies by traditional authorities without consultation.

Ratio Decidendi

Section 25 of the Limpopo Traditional Leadership and Institutions Act 6 of 2005 is inconsistent with the Constitution because it authorises traditional councils, which are not democratically elected, to impose compulsory levies or taxes on community members. The Constitution reserves the power to impose taxes and levies to democratically elected institutions at national, provincial, or municipal level. The dominant purpose of section 25 is to raise revenue for traditional councils, making the charge a tax. Customary law does not support compulsory levies; it only permits voluntary contributions after meaningful consultation. The court found sufficient evidence that traditional authorities...

Court Disposition

Section 25 of the Limpopo Traditional Leadership and Institutions Act 6 of 2005 is declared inconsistent with the Constitution and invalid. The order operates prospectively. Customary law only permits voluntary levies after consultation. Publication and implementation steps are ordered. Each party to pay own costs.

Orders

  • Section 25 of the Limpopo Traditional Leadership and Institutions Act, 6 of 2005 is inconsistent with the Constitution and invalid.
  • The order of invalidity operates from the date of the order and has no retrospective effect.