Beware taxation without representation – Polity, 1 August 2016

“Taxation without representation is tyranny” is the famous cri de coeur uttered in about 1761 presaging the American War of Independence.

By Sara Gon

“Taxation without representation is tyranny” is the famous cri de coeur uttered in about 1761 presaging the American War of Independence.

Poor villagers in Limpopo are subjected to “unlawful” annual tribal levies, forced to buy groceries, cars for traditional leaders, and even pay for their consultations fees with sangomas (Chiefs ‘fleece’ rural poor, Lindile Sifile, Sowetan 28 July 2016).

According to Sifilie some villagers are made to pay up R2 000 to move between two traditional jurisdictions, R350 to transfer property ownership, R400 for a stand, R600 for a burial site and R60 to cut firewood.

Villagers also pay R20 to acquire proof of residence. If they don’t pay they don’t get proof of residence. They then can’t apply for social grants or identity documents. They face being outcasts or denied access to common resources.

The Legal Resources Centre has launched an application to strike down provisions in Limpopo Traditional Leadership and Institutions Act 6 of 2005 (the Act), which allows traditional leaders to levy tax, as being unconstitutional.

According to Wilmien Wilcomb of the LRC these levies are a tax; villagers are forced to pay them by virtue of being the subjects of tribal leaders. These  levies create salaries for Traditional Leaders.

The House of Traditional Leaders argues that leaders need to tax their people because they receive no government support.  However, according to the Sowetan these taxes have been levied for years despite R163.8-million being paid by the state annually to 177 traditional leaders in Limpopo.

The Constitution provides that only elected legislative bodies can impose taxes.

Section 25 of the Act provides "a traditional council may, with the approval of the Premier, levy a traditional council rate upon every taxpayer of the traditional area concerned".

It also provides "any taxpayer ….who fails to pay the traditional council levy may be dealt with in accordance with the customary laws of the traditional community concerned.”

The problem is exacerbated by the Traditional Courts Bill (the Bill) which ignores the customary courts that exist at village level and concentrates power in the hands of the senior traditional leader as presiding officer of the only recognised court, the Tribal Authority Court. In contrast the existing customary practice in many villages occurs where villagers and councillors participate in localised dispute resolution forums.

These forums developed and adapted customary law to reflect the views and values of all the people engaged in the process.

The Bill enables the presiding officer to continue to interpret customary law to support the narrow self interest of traditional leaders. Since time immemorial village forums have interpreted law and custom. Now they will simply be decided by the chief as presiding officer who can bolster his power and undermine the customary entitlements of his “subjects”.

The Bill allows the chief to demand that people attend his court. He will have the authority to fine them, make them do forced labour or strip them of their customary entitlements to land. Traditional leaders will have more powers than they had under apartheid.

It destroys the indigenous accountability mechanisms that mediate power and protect those who try to hold leaders accountable.

The LRC application to the Limpopo High Court is being made on behalf of 12 individuals against seven Limpopo traditional authorities plus Cooperative Governance and Traditional Affairs Minister Des Van Rooyen, Limpopo premier Chupu Stanley Mathabatha, provincial cooperative governance, human settlements and traditional affairs and the House of Traditional Leaders.

The complainants mostly live on social grants. John Mohlaba, a pensioner from Phaphazela in the Thulamela municipality supports eight people on R3 000 a month from social grants. Mohlaba incurred a R150 levy debt in 2011 which he paid for fear of being denied services in future.

“When I took my wife to apply for social grant and we needed a letter to confirm our place of residence, we were required to pay R50.”

Mahasha Mmalekutu from Thako village under the Modjadji Authority was forced to pay R600 to be allocated a burial site.

Villagers in Sekhukhune also pay an “ancestral levy” for when their chief, Mokgoma Matlala, consults with a sangoma.

National House of Traditional Leaders deputy chairman, Chief Sipho Mahlangu from Mpumalanga, says they support tribal levies because they keep the tribal administration offices running. The annual state allowance given to chiefs does not cater for other services such as salaries of employees who work in tribal offices.

Mahlangu said almost all provinces implemented tribal levies. He said money collected through levies is supposed to be kept in an official bank account that is audited by the department of traditional affairs annually.
“The department can impose sanctions and criminal cases on those abusing the system,” he said.

Much of the above detail comes from a representation made to the Centre for Law and Society at the University of Cape Town by Patrick Mashego of Letebejane Village.

Mashego says tribal levies have been controversial in the Rakgwadi Authority for a long time. The extortion of excessive levies by their kgosi who was also finance minister of Lebowa, sparked an uprising in 1986. People were fed-up with paying large sums that were never properly accounted for. “Our rallying cry was that rural people should not suffer double taxation - that should be equal to other South Africans.”

With the change of government they believed that the problem of tribal levies was past. However, in 2004 their kgosi demanded a R50 levy to buy himself a car. The chief began to use the kombi he had bought as a taxi. Rakgwadi is large area of 23 villages; that’s a lot of money.

He also demanded R20 to cover the costs of the 50 year celebration of the tribe arriving at Rakgwadi. “This one is very painful because when the Sekhukhune's (sic) refused to co-operate with the Bantu Authorities system, the apartheid government approached MatIala's father and he agreed to form the MatIala Bantu Authority. He was rewarded with 23 rich SADT farms near Marble Hall. This is the land which the tribe moved to in 1957. And it was to celebrate this sell-out act that we are required to pay the additional R20 levy.”

“We wrote to the Premier of Limpopo to complain and to ask for clarification. He sent two officials from his office who deal with traditional affairs. They told us that tribal levies have been brought back by a new law, and there is nothing we can do. We must pay. We asked for a copy of the new law and they told us they had no copy to give us or even show us.”

“This Bill and laws such as the Limpopo Act destroy the dream we fought for over many years. Instead of making rural people equal citizens in a unitary South Africa, they make us subjects of chiefs who are given the coercive power to get rid of those who try to hold them to account. You may say that not all chiefs are bad. That is true, but only bad chiefs need laws like this.”

Unrepresentative taxation by monarchs, feudal lords and the church are as old as history itself. But excessive taxation without representation benefit has often ended badly.

Sara Gon is a Research Fellow at the IRR

Read the article on Polity here.