African National Congress and Another v Minister of Local Government and Housing, KwaZulu-Natal and Others

The appellants (the ANC and Jacob Zuma) challenged Proclamation 54 of 1996 issued by the Minister of Local Government and Housing for KwaZulu-Natal, which established seven regional councils (district councils) and provided that traditional leaders entitled under section 182 of the interim Constitution would be ex officio members. The proclamation stated that these councils comprised elected members from transitional local governments, directly elected members from areas without transitional local councils, nominated members from certain interest groups (levy payers and women), and traditional leaders as ex officio members. The appellants argued that regional councils were not 'elected local government referred to in Chapter 10' of the interim Constitution and therefore traditional leaders were not entitled to ex officio membership under section 182.

• Whether regional councils established under Proclamation 54 of 1996 constituted 'local government referred to in Chapter 10' of the interim Constitution for purposes of section 182
• Whether regional councils constituted 'elected local government' as contemplated by section 182 of the interim Constitution, given that some members were nominated rather than elected
• The proper interpretation of section 182 of the interim Constitution in the context of the transitional local government framework
• Whether traditional leaders were entitled to ex officio membership of district councils

The appeal succeeded in respect of costs only. The order of Combrinck J in the Natal High Court was set aside and replaced with: 'In the result the application is dismissed. No order is made as to costs.' No order was made as to the costs of appeal.

The binding legal principles established are: (1) Local government structures established under the Local Government Transition Act after the first democratic elections constitute 'local government referred to in Chapter 10' of the interim Constitution for purposes of section 182; (2) 'Elected local government' in section 182 does not mean 'wholly elected' local government - the phrase distinguishes between the pre-interim phase (before elections) and the interim phase (after elections), and does not exclude local government bodies that have some nominated members in addition to elected members, provided the nominations are strictly limited and the majority are elected; (3) Section 182 must be interpreted purposively to give effect to its aim of ensuring traditional leaders are entitled to ex officio representation on local government bodies with jurisdiction over areas in which they reside, to ensure continuity and avoid dislocation during the transition to democratic local government; (4) Traditional leaders who meet the requirements of section 182 are entitled to ex officio membership of district councils established under the Local Government Transition Act.

The Court made several non-binding observations: (1) It noted the complexity of South Africa's transition from racially-determined local government to democratic local government, and the three-phase transitional framework established by the Local Government Transition Act; (2) The Court observed that section 182 reflected a constitutional compromise addressing the tension between democratic local government and traditional forms of governance; (3) O'Regan J noted that it would be a matter for review whether and in what circumstances an MEC's decision to permit 'double representation' (traditional leaders as both ex officio and nominated members) would be lawful, but this did not arise on the facts; (4) The Court declined to address the interpretation and application of Item 26 of the sixth schedule to the 1996 Constitution and section 245(4) of the interim Constitution, finding these provisions raised difficult questions that did not arise in the current appeal and should not be anticipated; (5) The judgment reinforced the principle from Sanderson, Ferreira and Motsepe that genuine constitutional complaints on points of substance should not be visited with costs sanctions, even when unsuccessful.

This case is significant for clarifying the constitutional entitlements of traditional leaders during South Africa's transition to democratic local government. It established important principles regarding the interpretation of transitional constitutional provisions, particularly the relationship between the interim Constitution's Chapter 10 on local government and the Local Government Transition Act. The judgment demonstrates the Court's purposive approach to constitutional interpretation, emphasizing the need to understand provisions in their historical and social context. It also reflects the Court's recognition of the complexity of managing the transition from racially-based and traditional forms of governance to democratic structures, and the constitutional compromise that sought to accommodate traditional leadership within the new democratic framework. The judgment on costs reinforced the principle that litigants raising genuine constitutional questions of substance should not be penalized with adverse costs orders, encouraging access to constitutional justice.