In re KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995 and In re Payment of Salaries, Allowances and other Privileges to the Ingonyama Bill of 1995

In October 1995, two Bills were before the KwaZulu-Natal provincial legislature: the Payment of Salaries, Allowances and Other Privileges to the Ingonyama Amendment Bill and the KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill. These Bills sought to re-enact and amend legislation previously enacted by the KwaZulu legislature before the 1993 Constitution came into force, making them applicable as provincial laws. Members of the KwaZulu-Natal legislature objected to the constitutionality of certain provisions, particularly new provisions that would prohibit the Ingonyama and traditional leaders from accepting remuneration or allowances from any source other than those provided by provincial legislation. This occurred while Parliament was considering national legislation (which became the Remuneration of Traditional Leaders Act 29 of 1995) to provide for remuneration to traditional leaders from the national revenue fund. The disputed issues were referred by the Speaker to the Constitutional Court for a ruling in terms of section 98(9) of the Constitution.

• Whether the KwaZulu-Natal provincial legislature had competence to repeal or amend the KwaZulu Amakhosi and Iziphakanyiswa Act of 1990 and the KwaZulu Act on Payment of Salaries, Allowances and Other Privileges to the Ingonyama of 1993
• Whether the Bills dealt with matters within the functional areas specified in Schedule 6 of the Constitution
• Whether the disputed provisions prohibiting acceptance of remuneration from other sources constituted taxation beyond provincial competence
• Whether the provisions had impermissible extra-territorial application
• Whether the provisions unlawfully encroached upon the powers of Parliament and other provincial legislatures
• Whether the provisions infringed Chapter 3 rights, including property rights (sections 28(1), 28(2), 28(3)), freedom from seizure (section 13), and freedom to engage in economic activity (section 26)
• Whether restrictions on members of the Royal House were constitutional

The Constitutional Court ruled that the Payment of Salaries, Allowances and Other Privileges to the Ingonyama Amendment Bill of 1995 and the KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995 were not unconstitutional on any of the grounds advanced by the petitioners. No order as to costs was made, consistent with the principle that litigants should not be deterred from ventilating important constitutional issues by the risk of adverse costs orders.

A provincial legislature has competence under Schedule 6 of the Constitution to legislate on matters concerning traditional authorities and indigenous and customary law, including the appointment, powers, and remuneration of traditional leaders. The power to provide for remuneration is incidental to the power to appoint and regulate such functionaries. A prohibition on traditional leaders accepting remuneration from other sources as a condition of holding office does not constitute taxation, does not have impermissible extra-territorial application when it imposes personal obligations on office-holders within the province, and does not infringe constitutional rights when limited to payments received "in their capacity as such" traditional leaders. The purpose and substance of legislation, not merely its form, are relevant to determining whether it falls within a functional area listed in Schedule 6.

The Court made several notable observations: (1) Chaskalson P expressed regret that political conflict concerning KwaZulu-Natal had degenerated to the point where who has the "right" to pay traditional leaders became an issue; (2) The Court observed that traditional leaders can best serve their people if they are not dependent or perceived to be dependent on political parties or national or provincial governments; (3) The Court noted that neither the national nor the proposed provincial legislation was desirable insofar as it made traditional leaders the subject of conflicting legislation; (4) The Court expressly left open the question of whether the provincial legislation would prevail over or be subordinate to the national Remuneration of Traditional Leaders Act 29 of 1995 under section 126(3), stating this must be determined if and when it arises; (5) The Court noted that section 160(3)(b) of the Constitution requires provincial constitutions to make provision for the Zulu Monarch, recognizing the special constitutional status of this institution; (6) The judgment affirmed the principle that litigants should not be deterred from ventilating important constitutional issues by the risk of adverse costs orders.

This case is significant in South African constitutional jurisprudence for several reasons: (1) It clarified the scope of provincial legislative competence under Schedule 6 of the 1993 Constitution, particularly regarding traditional authorities and customary law; (2) It established that provincial legislatures have incidental powers to provide for remuneration of functionaries they appoint and regulate; (3) It affirmed that the purpose and substance of legislation, not merely its form, are relevant to determining whether it falls within a province's competence; (4) It provided guidance on the interpretation of "extra-territorial" application of provincial laws, holding that personal obligations imposed on office-holders within a province do not constitute impermissible extra-territoriality merely because they affect conduct outside the province; (5) It demonstrated judicial sensitivity to conflicts between national and provincial spheres of government while recognizing the special constitutional status of traditional leadership, particularly the Zulu Ingonyama; (6) The case is an early example of the Constitutional Court's approach to co-operative governance and the proper boundaries between national and provincial authority in the new constitutional order.