Case  CCT 116/25
[2026] ZACC 35

Hearing Date: 24 February 2026

Judgement Date: 11 September 2026

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Friday, 11 September 2026, the Constitutional Court handed down judgment in an application for the confirmation of an order of constitutional invalidity granted by the High Court, KwaZulu- Natal Division, Pietermaritzburg (High Court). The High Court declared sections 21(4), 22, 23 and 24(1) of the KwaZulu-Natal Traditional Leadership and Governance Act (KZN Governance Act) (impugned provisions) inconsistent with the Constitution and, therefore, invalid.

The dispute originates in a petition lodged in 2015 with the third respondent, the Member of the Executive Council for the Provincial Department of Cooperative Governance and Traditional Affairs, KwaZulu-Natal (MEC), by members of the eMathulini Traditional Community in KwaZulu-Natal. The petition alleged extensive misconduct on the part of iNkosi Bhekizizwe Nivard Luthuli (iNkosi), which included the imposition of extortionate levies, the confiscation of land and political favouritism in the allocation of community services. As a result of the petition, the MEC advised iNkosi to cease the collection of levies. The MEC engaged a firm of attorneys to interview members of the community together with the applicants (uMndeni weNkosi and iNkosi) regarding the allegations and to submit a report on that process. After unsuccessful attempts to interview iNkosi and the eMathulini Traditional Council, the attorneys expressed doubt that iNkosi had authority to impose and collect levies from members of the community.

The interviews resulted in an inquiry constituted under section 23 of the KZN Governance Act. Pursuant to that inquiry, iNkosi was found guilty of, among other things, having acted in breach of the Code of Conduct promulgated under the KZN Governance Act, by conducting himself disgracefully and failing to act in the best interests of the community. The ninth respondent, being the presiding officer over the inquiry, recommended that the first respondent, the Provincial Executive Council, KwaZulu Natal (PEC), withdraw the recognition of iNkosi as a traditional leader as provided in section 23(11)(d) of the KZN Governance Act (recommendation). The PEC adopted the recommendation (withdrawal decision) and, acting in terms of that decision, the second respondent, the Premier of KwaZulu-Natal (Premier), withdrew the recognition of iNkosi.

Aggrieved by the withdrawal decision, iNkosi brought an application in the High Court seeking an order in two parts. Under Part A, he sought a rule nisi on an urgent basis, suspending the withdrawal of his recognition pending the final determination of Part B of his application – a review of the withdrawal decision. Inter alia, iNkosi asserted that the presiding officer did not afford him an opportunity to make representations prior to adopting the withdrawal recommendation. The High Court granted the rule nisi, finding that the failure to provide iNkosi with an opportunity to make representations prior to adopting the withdrawal recommendation justified the provisional suspension of the withdrawal of recognition pending the review by iNkosi.

For a long time after the granting of the rule nisi, iNkosi did not prosecute the review application. Ultimately, the government respondents (PEC, Premier and MEC) initiated a self-review in the High Court seeking an order setting aside the withdrawal decision and remitting the matter to the PEC for redetermination, with iNkosi being afforded an opportunity to make representations regarding the presiding officer’s recommendation and the appropriate sanction. In response to the self-review, uMndeni and iNkosi launched a counter-application challenging the constitutionality of the impugned provisions, the inquiry conducted in terms of those provisions and the sanction imposed pursuant to the inquiry, on the basis that they excluded uMndeni from participating and presiding over the inquiry. INkosi also launched a conditional counter- application seeking an order that, in the event of the constitutional challenge being unsuccessful, the “decision” of the presiding officer be reviewed and be set aside, that the section 23 inquiry commence afresh, and that in the section 23 inquiry, the presiding officer be directed to “call for and receive the evidence of uMndeni and him”.

The High Court upheld the applicants’ arguments. It found that, in failing to defer to uMndeni in relation to presiding over the section 23 inquiry, and providing no mechanism for the family to participate in that inquiry, the impugned provisions are unconstitutional. The High Court further held that the impugned provisions are unconstitutional for failing to afford iNkosi the opportunity to make representations before the PEC adopted the inquiry’s recommendation. It found that the impugned sections infringed unreasonably upon the rights of uMndeni under sections 30, 31, 211 and 212 of the Constitution by conferring on the MEC the authority to summon iNkosi. It then dismissed the self-review on the basis that “if the impugned sections are unconstitutional and invalid, the finding of misconduct must equally be set aside”. It confirmed the Part A rule nisi that was granted in 2020, and pronounced that there would be no order in respect of the conditional counter-application. The High Court thus struck down the impugned provisions and suspended the operation of the order pending confirmation of the order of invalidity by this Court.

In this Court, the salient issues were identified as follows: (i) whether condonation should be granted for the late lodgement of this application uMndeni and iNkosi; (ii) whether the order of constitutional invalidity should be confirmed; and, if necessary, (iii) the appropriate remedy.

On condonation, this Court concluded that even though this application was filed over a month of time, it was in the interest of justice to grant condonation, and the respondents will suffer no prejudice should condonation be granted. Condonation was thus granted.

On whether the order of constitutional invalidity should be confirmed, this Court cited section 2 of the Constitution which provides that all law and all exercises of public power must be consistent with the Constitution, and sections 30 and 31 which entrench, in broad terms, the right of individuals and communities to use their languages and practise their culture. In relation to the applicants’ argument that uMndeni enjoys under section 9 of the TKLA, an exclusive customary right to adjudicate and decide the outcome of the section 23 inquiry, and to impose a sanction in enquiries relating to allegations of misconduct against a traditional leader, the Court held that reliance by uMndeni and iNkosi on section 9 of the Khoisan Act is misplaced because under section 9, the final decision to withdraw the recognition of a king or queen or a traditional leader vests in the President or relevant Premier, just as such authority vests in the Premier under the KZN Governance Act. The Court reaffirmed that, in a constitutional democracy such as ours, this interpretation safeguards traditional communities, which are led by mostly unelected leaders through the institution of traditional leadership.

The Court went further to state that uMndeni’s right to remove iNkosi under section 21(3) read with section 23 of the KZN Governance Act when given its proper constitutional expression, it is not limited by the impugned provisions. The Court concluded that uMndeni weNkosi is not an independent or impartial body within the traditional community context. It is defined in the KZN Governance Act as “the immediate relatives of an iNkosi, whereas the inquiry in section 23 is designed to provide an impartial forum to determine disputes relating to the traditional leader. UMndeni therefore, does not meet the prerequisites for a constitutionally compliant arbiter in a dispute resolution forum. The Court clarified that, the conclusion that uMndeni does not have a right to adjudicate or withdraw recognition of a traditional leader pursuant to a section 23 inquiry does not mean that it has no right or interest in the section 23 inquiry. The role of uMndeni as a custodian of customary law may be invaluable in appropriately resolving a dispute relating to a traditional leader. In the context of the KZN Governance Act, uMndeni’s participation may be necessary when, inter alia, an inquiry arises as a result of misconduct contemplated under section 21(1)(d) regarding “a transgression of a customary rule or principle that warrants removal”. The Court concluded that, if the contentions advanced by uMndeni and iNkosi were proved – that they were denied participation in the inquiry, that may be an infringement of their right to procedurally fair administrative action under section 33 of the Constitution.

With regard to the challenge to sections 22 and 24(1), the Court held that these are abstract challenges, and the applicants have not demonstrated that it in the public interest to consider them.

As a result, on remedy, the Court, did not confirm the High Court’s order of unconstitutionality. Second, the Court found that sections 21(4) and 23 are capable of a constitutionally- compliant interpretation and implementation. The counter-application was therefore dismissed, and iNkosi was ordered to approach the High Court within one month from the date of the order to have his conditional counter-application set down for hearing.

The Full judgment  here