Madzhadzhi v President of the RSA

The appellants were headmen and headwomen (traditional leaders) in Limpopo Province. The first and fourth appellants were headmen who were also employed as public servants under the Public Service Act 1994. In July 2002, the provincial government wrote to them stating that section 5(2) of the Remuneration of Public Office Bearers Act 20 of 1998 (REPOB) prohibited them from receiving two salaries simultaneously, and gave them until August 2002 to choose which salary to retain or their traditional leader salary would be terminated. When they did not respond, their headmen salaries were terminated on 30 September 2002. Additionally, in October 2002, the provincial government reduced the salaries of headmen appointed after 1 October 2002 from R30,000 to R13,000 per annum, while maintaining the R30,000 salary for those appointed before that date. The second appellant was appointed after this date and received R13,000. The fourth appellant, upon retiring from public service in March 2005, had his headman salary reinstated at R13,000 rather than the R30,000 he previously earned. The third appellant earned R30,000 but complained he was not receiving increments that the President determined for kings and chiefs. In December 2005, the appellants' attorneys demanded reinstatement of salaries and elimination of the discriminatory system. When the province did not respond adequately, the appellants launched proceedings in December 2006 seeking declaratory relief.

• Whether section 5(2) of REPOB prohibited traditional leaders from receiving salaries as traditional leaders if they were also employed as public servants
• Whether employment in the public service constitutes 'holding public office' as contemplated in section 5(2) of REPOB
• Whether the provincial government had authority to determine salaries of traditional leaders under the Venda Traditional Leaders Proclamation 29 of 1991 notwithstanding section 5(1) of REPOB
• Whether the differential remuneration of headmen appointed before and after 1 October 2002 constituted unfair discrimination
• Whether the appellants were entitled to declaratory relief
• Whether the application should be characterized as a review under the Promotion of Administrative Justice Act 3 of 2000 (PAJA)

1. The appeal was dismissed. 2. The cross-appeal was upheld to the extent that the high court's costs order was amended. 3. The application was dismissed, with each party to pay its own costs in both the high court and the Supreme Court of Appeal.

1. Section 5(2) of the Remuneration of Public Office Bearers Act 20 of 1998 prohibits traditional leaders from receiving dual salaries when holding two 'public offices' simultaneously, but does not prohibit them from receiving a salary as a traditional leader if they are also employed in the public service. 'Public office' in section 5(2) refers only to elected officials and traditional leaders in their capacity as office bearers under REPOB, not to public service employees. 2. The mischief at which section 5(2) is aimed is preventing traditional leaders from drawing multiple salaries from national and provincial government or from the same sphere of government under the dual remuneration system contemplated by REPOB and its predecessor legislation, not preventing public servants from being paid for traditional leader responsibilities. 3. Section 219(1)(a) of the Constitution requires national framework legislation to determine salaries of traditional leaders, but where provincial statutes validly determining such salaries remain in force and are not constitutionally challenged, provincial determinations are valid. The dual system of remuneration can continue until provincial legislation is repealed. 4. A declaratory order will not be granted where it serves no purpose because it cannot validate an invalid administrative decision or undo its consequences. An invalid decision remains valid until set aside by review proceedings. 5. Differentiation in remuneration is constitutionally permissible if it bears a rational connection to a legitimate governmental purpose.

The court observed that the high court erred in characterizing the application for declaratory relief as a review under PAJA and dismissing it on the basis of delay. Even though the appellants could have reviewed the decision under PAJA, this does not mean their application was necessarily a review under PAJA. However, the fact that a litigant has an alternative remedy is relevant to the exercise of a court's discretion as to whether a declaratory order should be granted. The court noted that if the provincial government is of the view that remunerative work performed by headmen conflicts with their duties in the public service, it may take steps to end the practice under section 30 or section 31 of the Public Service Act rather than invoking section 5(2) of REPOB. The court observed that the parties and their legal representatives appeared unaware that the Venda Proclamation continued in force until repealed in April 2006, meaning the province retained authority to determine traditional leader salaries during this period. Regarding costs, the court observed that once the respondents disputed the claims, there was no way to resolve the dispute except by agreeing to the appellants' demands, which they were not obliged to do. However, the first and fourth appellants were entitled to go to court because the provincial government had wrongly terminated their salaries, so the respondents were not blameless.

This case is significant in South African law for clarifying the scope and interpretation of section 5(2) of the Remuneration of Public Office Bearers Act 20 of 1998. It establishes that the prohibition on dual remuneration applies only to persons holding multiple 'public offices' (as elected officials or traditional leaders in different capacities), not to traditional leaders who are also employed in the public service. The judgment also clarifies the concurrent jurisdiction of national and provincial governments over traditional leadership matters under the Constitution, particularly regarding remuneration. It confirms that while section 219(1)(a) of the Constitution requires national framework legislation for determining salaries of traditional leaders, provincial legislation determining such salaries remains valid until properly challenged and set aside, and the dual system of remuneration contemplated by REPOB can continue where provincial statutes remain in force. The case demonstrates important principles regarding declaratory relief—that such relief will not be granted where it serves no purpose because it cannot validate an invalid decision or undo its consequences. It also illustrates the rational connection test for differentiation under equality jurisprudence.