Luthuli and the limits of a family inquiry
Participation is not adjudication. Recognition is withdrawn by the authority that holds the power.
The office is constitutional. The power to withdraw recognition is statutory.
“Custom lives. The power to decide is the power the law confers.” On Luthuli
On 11 September 2026 the Constitutional Court gave judgment in uMndeni weNkosi of iNkosi Luthuli and Another v Executive Council, KwaZulu-Natal and Others [2026] ZACC 35. The applicants had contended that the family council held an exclusive customary right to conduct and decide a misconduct inquiry, and to impose the sanction. The Court rejected that construction.
A magistrate asked to enforce the outcome of such a meeting should ask, first, what power the meeting had; secondly, whether recognition has in law been withdrawn
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JASA · Judicial Officers Alliance of South Africa The Bench · Sixth Edition · October 2026
by the authority that holds that power; and thirdly, whether the relief sought is competent on motion. Customary law is recognised under section 211. It is not a parallel system of removal operating outside the statute and the Constitution. Section 211(3) still requires the court to apply customary law when it is applicable, subject to the Constitution and to legislation that specifically deals with it.
Women succeed. Bhe v Magistrate, Khayelitsha and Shilubana v Nwamitwa already said so. A rule that erases a daughter because it is said to be “how we have always done it” is not customary law the Constitution will enforce. A lekgotla is not a magistrates’ court. If a matter has been heard under custom, write what was decided and what remains for this room.
A note from Neelan Karikan. The office should be addressed with respect. Living custom should be proved. A body that had no power to decide should not be treated as if it had.