The Constitutional Court has ruled that constitutional governance trumps traditional authority, adding a new twist to a persistent source of tension in South Africa.

The court overturned a ruling from the KwaZulu-Natal High Court, which had struck down a provincial law, the KwaZulu-Natal Traditional Leadership and Governance Act, passed in 2005, which provided for investigations into alleged misconduct by traditional leaders.

The court overturned the High Court’s finding that several provisions of the law were unconstitutional, although it accepted that traditional family structures may have an important role to play in such investigations.

The case had arisen after members of the eMathulini Traditional Community complained in 2015 about the conduct of iNkosi Bhekizizwe Nivard Luthuli, who in addition to his traditional office is also a Member of Parliament for the Inkatha Freedom Party (IFP). Community members alleged that he has imposed excessive levies, had unfairly allocated land, and shown favouritism in dispensing services.

The Member of the Executive Council for of Cooperative Governance and Traditional Affairs in KwaZulu-Natal initially instructed Luthuli to cease collecting the levies, and later instituted an investigation into his conduct, and found Luthuli guilty of various forms of misconduct. The investigation recommended that his recognition as a traditional leader be withdrawn, and the KwaZulu-Natal provincial government accepted the recommendation.

Luthuli challenged the decision in the KwaZulu-Natal High Court, which sided with him, and declared several provisions of the KwaZulu-Natal Traditional Leadership and Governance Act unconstitutional. The matter then had to come to the Constitutional Court for confirmation.

The Constitutional Court rejected the arguments, stressing that the final authority to withdraw recognition of a traditional leader belongs to the premier.

This, the court said, is important in a constitutional democracy because traditional leaders are generally not elected. Government must therefore retain constitutional oversight over the institution of traditional leadership.

Traditional authority remains a reality for millions of South Africans, particularly those living in the territories previously designated as ethnic homelands during apartheid. Among their key powers is the holding of land, technically in trust for their communities, and adjudicating disputes among their subjects. These powers have extensive consequences for the people living under this regime and has the effect of limiting the protections of South Africa’s formal constitutional order.

Traditional authorities have jealously guarded their power and role in society.

The considerable power wielded by traditional leaders has made political leaders reluctant to confront this situation. The African National Congress moved rapidly in the 1990s from wanting traditional leaders to exercise a largely symbolic role to recognising their utility as part of its patronage network in South Africa’s rural parts. The IFP has always viewed traditional leadership as core to its outlook, while the uMkhonto we Sizwe Party proposes making traditional leadership the central institution of a revised constitutional dispensation. No other party has proposed any diminution of traditional authority.

With the country’s most senior court having ruled on the side of constitutional supremacy, it remains to be seen whether traditional institutions will accept it.