- The Constitutional Court will hear a confirmation application after the High Court in Pietermaritzburg declared sections 21(4), 22, 23 and 24(1) of the KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005 unconstitutional and invalid.
- The Umndeni Wenkosi of Inkosi Luthuli and Inkosi Bhekizizwe Nivard Luthuli argue that the Act permits provincial authorities to remove an Inkosi without decisive involvement of the royal family, contrary to customary law and sections 30, 31 and 211 of the Constitution.
- The matter, enrolled under case number CCT 116/25 and set down for 24 February 2026, will determine the constitutional limits of executive power over traditional leadership.
The Constitutional Court will, on 24 February 2026, hear a matter that goes to the heart of who has the final say in the removal of a traditional leader.
The applicants are the Umndeni Wenkosi of Inkosi Luthuli and Inkosi Bhekizizwe Nivard Luthuli. They challenge Sections 21(4), 22, 23 and 24(1) of the KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005. These provisions empower the MEC to institute an inquiry into alleged misconduct by a traditional leader, and after receiving findings, to suspend or remove that leader from office.
Background
The dispute follows a Section 23 inquiry into alleged misconduct by Inkosi Bhekizizwe Nivard Luthuli. The inquiry, conducted under the Act, resulted in findings and a recommendation that his recognition as Inkosi be withdrawn. Provincial authorities acted on those findings and removed him from office.
The applicants contend that this statutory framework allows government officials to sit in judgment over customary practices without the meaningful participation of the Umndeni Wenkosi, the royal family recognised under customary law as the custodian of succession, appointment and removal of an Inkosi. They argue that under the customary law of the Mathulini community, the Umndeni Wenkosi is the decisive authority in both appointing and removing a traditional leader.
They further contend that by excluding or marginalising the royal family in removal proceedings, the Act violates Sections 30 and 31 of the Constitution, which protect cultural rights, and Section 211, which recognises the institution, status and role of traditional leadership in accordance with customary law.
High Court findings
In October 2023, the High Court in Pietermaritzburg declared Sections 21(4), 22, 23 and 24(1) unconstitutional and invalid. The court found that the provisions failed to give adequate recognition to the constitutional protection of customary law and the entrenched role of the umndeni wenkosi in matters concerning the status of an Inkosi.
The High Court held that the impugned sections permit provincial authorities to remove a traditional leader on the basis of their own assessment of customary practices, even where those officials are not members of the affected community. It concluded that this framework undermines the constitutional recognition of traditional leadership structures.
Because a declaration of constitutional invalidity by a High Court has no force unless confirmed by the Constitutional Court, the matter now comes before the apex court for confirmation.
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