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SA Crime Quarterly no 35 • March 2011 11

'confirmation of address' letters they cannot apply
for child support grants, pensions, identity
documents or even open bank accounts. People
complained further that they do not receive
report-backs about how the money collected
through levies is spent. They expressed concern
that the levies do not benefit the local
communities from which they are collected.
Speakers referred to tribal levies as a system of
double taxation, targeting the 'poorest of the poor'.

Similar problems surfaced in all the former
homeland areas. This article focuses mainly,
however, on Limpopo province, where fieldwork
was undertaken in September 2010. During that
research we were informed of the serious
consequences facing people who do not, or
cannot, pay their levies. In a village near Elim we
were told of an unemployed woman who had been
invited to apply for a job with the South African
Police Services. The application required that she
provide her address or submit a form stamped by
the local tribal authority vouching that she was a

Resurgence of
tribal levies

Aninka Claassens*

aninka.claassens@uct.ac.za

People in the former homelands waged a successful battle against the imposition of 'tribal levies' during
the anti-apartheid struggle. Recently, however, there has been a resurgence of traditional authorities
demanding annual levies. Those who refuse to pay cannot access government grants and identity books.
This article argues that recent laws bolstering the powers of traditional leaders have contributed to this
resurgence. It argues that the laws undermine the citizenship rights of the poorest South Africans as well
as their ability to hold traditional leaders to account. It suggests that the laws have been ambiguously
worded in an attempt to disguise the fact that they are inconsistent with the Constitution. It rebuts the
argument that annual tribal levies are consistent with and justified by customary law, by describing their
colonial and apartheid genesis.

* Senior Researcher, Law, Race and Gender Unit at
the University of Cape Town.

Double taxation for the rural
poor

RESURGENCE OF TRIBAL LEVIES

A series of rural consultation meetings1 about the
Traditional Courts Bill (TCB) was held between
2008 and 2010 in former homeland provinces. In
these meetings the resurgence of traditional
leaders extorting tribal levies was raised as a
serious problem, with very severe consequences
for poor people, in particular women who are
struggling to eke out an existence for themselves
and their children. In meeting after meeting the
point was made that people who are not 'up to
date' with their annual tribal levies and other ad
hoc levies or taxes are refused letters from the
tribal authority or traditional council, confirming
that they are known and bona fide community
members. These letters are important in rural
areas where people do not have the types of
formal physical or postal addresses required on
many government forms. Without these official

community member. However, the tribal
authority refused to stamp the form because there
was no record that her family had paid annual
levies in recent years. She was unable to raise the
'back-pay' of R140 demanded by the tribal office
and so, despite meeting the requirements for the
job, she was unable even to apply.2

Barbara Oomen, in her book Chiefs in South
Africa describes similar incidents to those raised
in the consultation meetings. In one incident,
community members proposing development
initiatives at village council meetings 'were not
questioned about the developmental or
organisational aspects of the projects … but
merely whether they were known to the chief and
had paid the R100 tribal levy raised for the
coronation and the building of the chief 's villa'.3

AMBIGUITIES IN POLICY AND LAW

The extortion of tribal levies and taxes was a
flashpoint for anti-Bantustan and anti-chief
mobilisation in the former Lebowa and
Gazankulu Bantustans during the 1980s.4 There
was strong resistance to recurrent demands that
poor rural people 'pop out' innumerable levies,
and vociferous complaints that the funds
collected were not properly accounted for. The
scale of protest, which included recurrent attacks
on the tribal police responsible for levy collection
in some areas,5 combined with United
Democratic Front (UDF) calls for an end to the
'double taxation' of homeland dwellers, led to
traditional leaders muting their demands for
levies during the early 1990s. Many rural dwellers
stopped paying levies from that time, assuming
that they were no longer lawful after the
transition to democracy.

Seemingly recognising that experience, the 2003
White Paper on Traditional Leadership provides:

The authority to impose statutory taxes and
levies lies with municipalities. Duplication of
this responsibility and the double taxation of
people must be avoided. Traditional leadership
structures should no longer impose statutory
taxes and levies on communities.6

The Traditional Leadership and Governance
Framework Act (Framework Act), enacted in 2003
pursuant to the White Paper, was more
ambiguous. It does not address directly whether
or not traditional councils or chiefs have the
authority to impose levies. It does however state in
section 4(2) that:

Applicable provincial legislation must regulate
the performance of functions by traditional
councils by at least requiring a traditional
council to-(a) keep proper records, (b) have its
financial statements audited, (c) disclose the
receipt of gifts,

and in s(3)(b):

meet at least once a year with its traditional
community to give account of the activities and
finances of the traditional council and levies
received by the traditional council. (emphasis
added)

This provision seems to be the basis on which
Khosi Fhumulani Kutama, the chairperson of the
National House of Traditional Leaders, stated in a
2007 affidavit in the Tongoane7 case that the
Framework Act recognises the 'established
practice of collecting traditional levies'. He added
that '[m]ost provincial [traditional leadership]
laws have retained this long established practice'.
Elsewhere in his affidavit he states that historically
traditional leaders could levy traditional taxes,
and cites the Constitution's recognition of the
'institution, status and role of traditional
leadership according to customary law'.8

On first reading, his statement seems to contradict
the White Paper, as do the provincial laws to
which he refers.9 However, on a closer reading, the
Limpopo10 Traditional Leadership and Institutions
Act differentiates between statutory taxes and
'monies which in accordance with the customary
laws of the traditional community concerned are
payable to the traditional council'.11 Section 25 of
the Limpopo Act provides that a 'traditional
council may, with the approval of the Premier,
levy traditional council rates' and that 'any tax
payer who fails to pay the levy may be dealt with
in accordance with the customary laws of the
traditional community concerned.'

12 Institute for Security Studies

SA Crime Quarterly no 35 • March 2011 13

as they demand, the government will bolster their
ability to push the limits of the open-ended
'customary law arena' in relation to governance
and taxation powers.

If one reconsiders the White Paper's statement
about levies in the light of subsequent events, the
inherent ambiguities in its wording become more
apparent:

The word that now jumps out is 'statutory'. The
door is left open for non-statutory, 'customary' or
'voluntary' levies. While double taxation is to be
'avoided', there is no direct prohibition of non-
statutory, customary or 'voluntary' tribal levies.
The Framework Act and the provincial laws are
similarly deeply ambiguous. Nowhere does the
Framework Act provide traditional councils with
the authority to collect tribal levies and taxes, yet
it refers to the need for provincial legislation to
regulate the way in which traditional councils
account for tribal levies.

LAW, THE BALANCE OF POWER
AND THE POWER OF DEFINITION

The pivotal question is this: what is the content of
unwritten customary law with regard to tribal
taxes and levies? And how, and by whom, are
disputes about its content resolved? It is difficult
for ordinary people to challenge chiefly versions
of customary law in tribal courts overseen by
traditional leaders, or in formal courts which are
precedent-driven and rely on past judgements
that upheld colonial and apartheid versions of
customary law, in which hut taxes and tribal
levies were a motive force. And, as Bennett has
remarked,

[I]n spite of the failings of the official version of
customary law, mere availability of information
has had the effect of creating a de facto
presumption in its favour. Litigants are entitled

Limpopo is the only province in South Africa that
has this kind of wording in its new traditional
leadership law. The KwaZulu-Natal, Mpumalanga
and Free State provincial laws are silent on tribal
levies. Northern Cape, North West, and the
Eastern Cape provincial laws ban them. They
provide that '[a] traditional council may not
impose any levy on any member of the traditional
community or on any section of the traditional
community.' Revealingly, however, these three
provinces also provide that '[a] traditional council
may request members of a traditional community
or section of a traditional community, to make a
voluntary contribution.'

The seeming contradictions between the White
Paper, the national and provincial laws and
Kutama's statement need to be contextualised by
other sections of the White Paper, which
recommend that '[t]ribal councils as they existed
before colonialism, and which were based on
custom, should be established and renamed
“traditional councils”'. They 'will exercise the
powers and perform the functions conferred upon
them in terms of customary law, customs and
statutory law' and will 'continue to generally
administer the affairs of the community in
accordance with custom and tradition.' The
White Paper also provides that traditional
councils 'should play a role similar to that
previously played by tribal authorities prior to
1994.'12

Yet, prior to 1994 tribal authorities played an
equivalent role to local government in the former
homelands (although their legitimacy was often
highly contested). The White Paper adds that
traditional councils 'will, however, not discharge
the functions currently assigned to
municipalities.' The contradictory statements in
the White Paper illustrate both the department's
dilemma and, in my view, its attempted 'solution'.
The dilemma is how to accommodate traditional
leaders' demand that their pre-1994 governance
role be restored,13 and yet retain the system of
elected local government required by the
Constitution. The 'solution' appears to be that,
instead of giving traditional leaders direct
statutory powers of taxation and local government

to object, but in practice this right seldom
amounts to much, because in the heat of
litigation, time and money militate against
undertaking a possibly inconclusive search for
the living law.14

The danger of ossified rule-based versions of
customary law trumping the citizenship rights
envisaged by the Constitution is exacerbated
when statute laws such as the Limpopo Act
explicitly authorise traditional councils to impose
‘customary’ levies and duties, and to punish
offenders in tribal courts.

Moreover, section 21 of the Framework Act
provides that disputes concerning 'customary law
or customs' must, in the first instance, be resolved
'internally and in accordance with customs' by
community members and traditional leaders. If a
dispute cannot be resolved internally it must be
referred to the relevant House of Traditional
Leaders (HTL). If the HTL is unable to resolve
the dispute, it must be referred to the premier of
the province, who must resolve it after having
consulted the parties and the provincial house of
traditional leaders. Thus a person complaining
about chiefly distortions of customary law would
have to take the issue up in forums dominated by
traditional leaders and their organisations. The
manifold problems facing litigants who seek to
challenge abuse of power by traditional leaders or
distortions emanating from them 'internally' i.e.,
in traditional courts, would become
insurmountable were the Traditional Courts Bill
to be enacted in its current form [see Mnisi
Weeks in this edition].

The nub of the issue is that all of the legislation,
provincial and national, appears to be deliberately
ambiguous, making it very difficult for ordinary
people to work out what the law says and how to
challenge the resurgence of tribal levies. The in-
built ambiguity also complicates possible legal
challenges to both the practice and the laws
themselves, requiring careful research and
evidence to head off some of the rebuttals and
loopholes that appear to have been built into the
policy and legislation.

TRIBAL LEVIES AND
CUSTOMARY LAW

According to the Constitution, the power to
legislate and impose taxes vests in national,
provincial and local government, and is subject to
stringent legislative and procedural requirements,
none of which has been met by the Limpopo
Act.15 Legal experts have advised that traditional
councils cannot levy taxes, as they are not a
sphere of government expressly mandated to do
so by the Constitution.

Kutama's position, however, appears to be that
tribal levies and taxes are authorised by the
Constitution's recognition of customary law. He
makes the case that traditional leaders have
inherent customary law powers to tax their
'subjects'. In this vein it could conceivably be
argued that the express provisions in the
Constitution authorising national, provincial and
local government to introduce taxes do not mean
that other bodies are prohibited from doing so
where alternative legal authority exists.

It is thus important to look at the origins of
current levies and taxes and the extent to which
they derive from 'custom' as opposed to prior
colonial and apartheid laws. The 'customary law'
justification also raises a series of questions
concerning the extent to which current levies and
taxes are consistent with the reciprocal nature of
past customary practices. It raises the problem of
transposing practices developed in one context
(where traditional leaders were not supported
financially by government and fulfilled a range of
hands-on day-to-day functions) to another
(where traditional leaders are paid salaries, and
may be lawyers or Members of Parliament living
in distant cities). Moreover, the Framework Act
reinforces and cements the controversial Bantu
Authority boundaries derived from apartheid.16

This makes it impossible for rural people to hold
traditional leaders to account by withdrawing
their allegiance.17 It also centralises power to
senior traditional leaders and away from co-
existing multilayered traditional institutions such
as headmen and village councils. Key questions
that arise concern the impact of laws such as the
Bantu Authorities Act and the Framework Act on

14 Institute for Security Studies

SA Crime Quarterly no 35 • March 2011 15

indigenous accountability mechanisms, and
whether tribal taxes and levies can be said to
remain 'customary' once laws are introduced that
undermine age-old indigenous accountability
mechanisms that mediate power.

Another fundamental question is whether tribal
levies are in fact 'taxes', as opposed to 'voluntary
contributions', in which case the limitations on
taxation power imposed by the Constitution
would not apply. This is relatively straightforward
however, as once sanctions for non-payment are
imposed (as all the consultation meetings report)
it becomes clear that tribal levies are neither
voluntary contributions nor donations, but
instead constitute a form of taxation. Closely
related to this question is that concerning the
manner in which the 'voluntary contributions'
mentioned in the Eastern Cape, North West and
Northern Cape provincial laws are approved by
those to whom they apply, and whether there are
adequate checks and balances to ensure that such
approval is freely given. There is a long-standing
practice of groups of African people agreeing to
finance specific development projects by clubbing
together to raise funds. Historically this was the
primary mechanism that black people used to
purchase land. Indeed, white farmers in arguing
for the 1913 Land Act to be more stringently
applied complained to the Beaumont Commission
that black people had an unfair advantage in the
land market because they routinely clubbed
together to outbid individual white buyers.18

Colonial and union laws governing 'native'
taxation included provision for a tribe or
community to apply for permission to levy a
'special rate' to finance specific projects such as
buying land, building a school or sinking a well.
Such 'voluntary' special rates had to be approved
at a community meeting and were only possible in
relation to specific projects.19 Once approved at
community level, the special rate was referred to
the Minister of Native Affairs for approval and
was then published in the government gazette
along with the restricted time period for
collecting the rate, the name of the tribe and the
purpose of the special rate. A study of special rate
notices by Kathryn Blair20 shows, however, that
over time there was a noticeable shift away from

'special rates' being collected for specific projects
towards special rates being used to finance on-
going tribal administration over multi-year
timeframes.

Blair shows that initially special rates were not
legally defined to constitute taxation in the same
way as taxes imposed by government, but that the
1925 Native Taxation and Development Act was
subsequently amended to enable punishment of
special rate defaulters as tax evaders. In other
words, what began as voluntary contributions for
specific agreed purposes became, in practice, a
tax to finance the running costs of Bantu
Authorities. The various homeland governments
subsequently introduced legislation that built on
this history, but in many cases removed the
formal protections and requirements that had
existed in law, if not in practice. For example, the
Lebowa Tribal Taxation Act of 1975 removed the
requirement for community approval of a
proposed rate. The only explicit requirements for
the enactment of a tribal rate were the approval of
the Lebowa Minister of Finance and publication
of the rate in the Lebowa Gazette. Neither a
special purpose nor the approval of the majority
of the tribe was mentioned in the Act. After 1977
Lebowa gazette notices stated merely that the
money collected would be used 'for the general
administration of the tribe', instead of the more
specific purposes published in earlier gazettes,
such as 'the purchase of ploughing units' or 'the
building of Bakenberg High School and
Secondary School.'21

During a recent research trip to Limpopo, people
near Elim described the historical origins of
current annual levies. Both men and women said
that annual levies started with the 'call-in cards'
that migrant labourers had to get stamped by the
chiefs every year when they renewed the annual
contracts that locked them into the migrant
labour system. They said that migrants were
dependent on the chief 's signature for the
renewal of their annual contracts and that
signature was dependent on the migrant paying
an annual tax that started at R1,50 but increased
rapidly over the years. Over time, people
explained, the 'call-in card' levy was extended to
all families, whether they included a migrant

16 Institute for Security Studies

labourer or not. Various people said that by the
1980s the annual tax had increased to R160 per
family per year and was collected by tribal police
going door-to-door, demanding payment.

However, during the anti-Bantustan rebellions of
the late 1980s residents began to attack the tax
collectors and drove them out of their villages.
The system fell into abeyance and only re-
emerged recently. Many people said they got away
with refusing to pay the annual levy until recently,
but are now forced to pay, because without
stamped 'proof-of-address' letters they cannot
obtain ID documents for their children, apply for
pensions and social grants, or even obtain driver's
licenses.

CONCLUSION

The history and contested nature of tribal levies
provides clear evidence of the distorting impact of
past discriminatory laws and practices. In
addition, recent laws such as the Framework Act
and the provincial laws enacted pursuant to it are
fundamentally at odds with the consensual
character of customary law – and appear to have
sparked the re-emergence of levies. People are
forced to pay levies, not on the basis that they
have agreed to them, but because otherwise they
are deprived of access to their entitlements as
South African citizens. They are put between a
rock and hard place not by customary law, but
because of the state's choice to enact laws that
reinforce Bantustan boundaries and apartheid
precedents. Despite the state's attempts to cloak
the new laws in ambiguity, the levy provisions in
the Limpopo Traditional Leadership and
Institutions Act are manifestly vulnerable to
constitutional attack.

To comment on this article visit
http://www.issafrica.org/sacq.php

NOTES

1. The Law, Race and Gender Unit, together with the
LRC and other NGO and CBO partners held
community consultation workshops on the TCB in
Madikwe (North West), Nelspruit, East London and
the Eastern Cape. During 2008 the LRC had convened
community consultation workshops in Qunu in the

Eastern Cape, and in Pietermaritzburg with the Rural
Women's Movement. The provincial consultation
meetings culminated in a large national workshop of
100 rural delegates from around the country in
Johannesburg in November 2009. Since then further
meetings have been held in North West, Eastern Cape
and KwaZulu-Natal.

2. Group interview in Bungeni village 1st September 2010.
3. B Oomen, Chiefs in South Africa: Law, Power and

Culture in the Post-Apartheid Era, Oxford, James Currey,
2005, 140.

4. P Delius A Lion Amongst the Cattle: Reconstruction
and Resistance in the Northern Transvaal, Johannesburg,
Ravan Press 1996, 162-3; E Maloka, 'Populism and the
politics of chieftaincy and nation-building in the new
South Africa' Journal of Contemporary African Studies
14 (2) (1996), 177.

5. Interview with Shirhami Shirinda December 2010.
6. White Paper on Traditional Leadership, 2003, 43.
7. Tongoane and Others V Minister for Agriculture and

Land Affairs and Others, CCT 100-09 [2010] delivered
on 11 May 2010.

8. Kutama's affidavit in the CD ROM of Court papers
(paras 40.3, 17.3, 40.2, 23.2) that is included in A
Claassens & B Cousins (eds) Land, Power and Custom;
Controversies Generated by South Africa's Communal
Land Rights Act, Cape Town, UCT Press, 2008.

9. Most of these laws were enacted in 2005 and 2006
pursuant to the national Traditional Leadership and
Governance Act 41 of 2003, which created a framework
for mandatory laws to be introduced by the provinces.

10. Kutama's province.
11. Section 24(a) of the Limpopo Traditional Leadership

and Institutions Act 6 of 2005.
12. White Paper on Traditional Leadership, 2003, 46, 47.
13. Status Quo report on Traditional Leadership and

Institutions, 1999.
14. T Bennett, Customary Law in South Africa, Cape Town,

Juta 2004, 49.
15. Christina Murray and Megan Herzog, forthcoming.
16. Section 28 deems pre-existing tribal authorities

established and delineated in terms of the Bantu
Authorities Act to be the traditional councils of the
future, provided that they meet new composition
requirements.

17. P Delius, Contested terrain: land rights and chiefly
power in historical perspective, Claassens & Cousins
(eds.) Land, Power and Custom, 231-235; A Claassens,
Power, accountability and apartheid borders: the impact
of recent laws on struggles over land rights, in Claassens
& Cousins (eds.) Land, Power and Custom, 286-290.

18. Beaumont Commission report 1916, cited in TRH
Davenport and KS Hunt (eds.), The Right to the Land,
David Philip, 1974, 41.

19. S 15 of the Native Taxation and Development Act, 1925.
20. K Blair, Tribal levies and Proclamations levying a

special rate, March 2010, [Available at www.lrg.uct.ac].
21. A Gardea, Analysis of relevant legislation and

regulations in the Bantu Authorities era case studies:
Lebowa and KwaZulu, August 2010, [Available at
www.lrg.uct.ac].