Traditional leaders in Limpopo are no longer allowed to collect levies from residents, the Constitutional Court has ruled.
In terms of the ruling, the Limpopo High Court’s earlier judgment of unconstitutionality is affirmed, traditional leaders are stripped of their taxing powers, and clarity is provided regarding the collection of customary levies – stating they should only be permissible as voluntary contributions after community deliberation.
The decision was made in case of Mohlaba and Others v Minister of Cooperative Governance and Traditional Affairs, which had been heard on September 17, 2024. The case stems from a dispute over Section 25 of the Limpopo Traditional Leadership and Institutions Act of 2005, which allowed traditional councils to levy what were termed 'traditional council rates’.
The High Court previously ruled that the imposition of these levies was unconstitutional, asserting only elected legislative bodies can impose taxes. The Constitutional Court confirmed this ruling, labelling the section as inconsistent with the Constitution.
Before colonialism, communities in Limpopo paid tributes to their traditional leaders, often in the form of goods or labour. With the advent of colonialism and apartheid, these practices were corrupted as traditional leaders were co-opted to act as servants of the State, and to collect taxes both for themselves and for the colonialists.
An expert for the applicants explained, “Pre-colonial customary law recognised the use of levies based on consent and reciprocity”. The levies which were imposed in the 1980s “were not accepted as an expression of custom, but were instead viewed to be creations of the apartheid regime, which contributed to wide-scale oppression”.
The evidence in this matter has demonstrated that the practice of traditional leaders imposing taxes rather than receiving voluntary tributes has survived to this day. Across Limpopo, communities are forced to pay levies to traditional leaders. Communities are required to pay a wide range of levies imposed, and collected by, traditional authorities.
The most common is the annual levy. The amount of the levy varies widely from about R20 to R150. Levies are imposed to raise money for a specific purpose, including in one instance for a new car for a chief. Some levies are imposed in order to access a common resource. These include levies to allocate a stand, allow the running of a business or bury a family member. Levies are imposed for an act that should be free of charge, like providing a proof of address letter. Fines are often imposed for the non-payment of levies.
Leading the unanimous decision, Justice J Theron noted that, under South African law, taxes can only be imposed by democratically-elected representatives, and delegating such powers to unelected traditional leaders undermines the fundamental principle of 'no taxation without representation.' The judgement further addressed the historical context, highlighting how traditional taxation practices had morphed into an oppressive tax system during colonialism and apartheid.
In their application, various community members testified about the unjust levies enforced by traditional authorities. Testimonies revealed that these levies, which ranged from R20 to R150, were imposed arbitrarily, often without community consultation, and non-payment resulted in severe penalties, including denial of access to resources and services necessary for basic social functions, such as burial allocations.
The High Court had initially ruled that only voluntary contributions could be permitted under customary law, necessitating community consultation before imposing any financial obligations. The Constitutional Court’s confirmation of this view strengthens the rights of individuals in traditional communities, ensuring their powers are constitutional and aligned with democratic principles.
Additionally, significant costs were awarded in favour of the applicants, overturning the High Court’s previous decision that each party bear their own costs, reflecting the successful challenge posed by the community members against state opposition.
