Traditional Leadership and Governance Framework Amendment Bill [B8 – 2017]Call for comments opened 22 May 2017 Share this page:
Submissions are now closed (since 04 June 2017)
The Portfolio Committee on Cooperative Governance and Traditional Affairs invites you to submit written submissions on the Traditional Leadership and Governance Framework Amendment Bill [B8 – 2017]:
The purpose of the Traditional Leadership and Governance Framework Amendment Bill is to:
▪ amend the Traditional Leadership and Governance Framework Act, 2003, so as to make provision for extended timeframes within which kingship and queenship councils and traditional councils must be established;
▪ provide for extended timeframes within which community authorities have to be disestablished;
▪ align the term of office of tribal authorities, traditional councils and kingship or queenship councils with the term of the National House of Traditional Leaders;
Comments can be emailed to Ms S Cassiem at email@example.com by no later than Sunday 4 June 2017
Enquiries can be directed to Ms S Cassiem on tel (021) 403 3769 or cell 083 709 8533
Issued by Hon. M R Mdakane, MP, Chairperson: PC on Cooperative Governance and Traditional Affairs.
The Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003) (hereinafter referred to as the Act), came into operation on 24 September 2004. The Act contains certain transitional provisions in section 28. One of the main purposes of transitional provisions is to deal with what existed immediately before the new law came into operation and to provide legal certainty. Section 28(4) of the Act therefore deals with tribal authorities that existed prior to the coming into operation of the Act. Originally, section 28(4) determined that tribal authorities would be regarded as traditional councils as contemplated in section 3 of the Act, with the proviso that they had to meet certain requirements, namely the requirements contained in section 3(2) of the Act. In other words, the tribal authorities had to be reconstituted in accordance with the provisions of section 3(2) and only once that has been done, would they be deemed to be traditional councils. Section 28(4) further required that such reconstitution had to be done within one year from the commencement of the Act. The requirements of the said section 3(2) are, in brief, that the size of traditional councils should be limited to 30 members, that a third of the members should be women, and that the council must consist of 60% selected and 40% elected members. The timeframe of one year was, however, not met. The Act was therefore amended in 2009 to extend the original one-year timeframe to seven years [Traditional Leadership and Governance Framework Amendment Act, 2009 (Act No. 23 of 2009)]. However, the manner in which the particular provision of the 2009 Amendment Act was drafted, meant that the seven-year timeframe was to be determined with effect from the date of commencement of the original Act (24 September 2004) and not from the date of commencement of the 2009 Amendment Act. This means that the extended timeframe of seven years lapsed on 23 September 2011. Furthermore, the 2009 Amendment Act introduced two new principles relating to the composition of traditional councils, namely that the number of members of a traditional council had to be determined by means of a formula to be issued by the Premiers and that such formula has to be ‘‘in accordance with’’ guidelines to be issued by the Minister. The first set of guidelines was issued on 21 April 2011. Thereafter each province had to issue a formula taking into account the guidelines and reconstitute the tribal authorities, all of which had to be done by no later than 23 September 2011. It should be noted that new guidelines were issued in 2015 to address shortcomings of the 2011 guidelines. Therefore, unfortunately, in most instances the extended timeframe was also not met. Furthermore, although there are instances where provinces attempted to reconstitute the tribal authorities, various challenges have been identified in respect of such reconstitution. In some instances— (a) tribal authorities were not reconstituted at all; (b) the reconstitution took place after the expiry of the timeframe within which it had to be done; (c) no formula was issued; (d) where a formula was issued, it was not aligned with the Minister’s guidelines; and (e) certain requirements of the relevant provincial legislation were not met. As a result of the above-mentioned challenges, there is legal uncertainty with regards to the status of those tribal authorities that were not reconstituted as well as those who were reconstituted but did not meet all the statutory requirements. Another challenge is that the term of office of traditional councils must be aligned to the term of office of the National House of Traditional Leaders (NHTL). The term of office of the NHTL expires in August 2017. This means that all tribal authorities and traditional councils must be reconstituted in 2017. To address the above-mentioned challenges and to ensure alignment of the terms of office of reconstituted tribal authorities and traditional councils with that of the NHTL, it is necessary to once again extend the timeframe for such reconstitution. Therefore, this Bill proposes to amend section 28(4) of the Act accordingly. However, the proposed amendment does not only seek to extend the timeframe, but also determines what is to be done in any instance where the extended timeframe cannot be met. This is further explained in the clause by clause analysis hereunder. To some extent, a similar challenge exists in respect of the establishment of kingship and queenship councils and the disestablishment of community authorities. All these challenges are addressed in this Bill as explained hereunder. The Department of Traditional Affairs (DTA) is fully aware of the fact that the Act is to be repealed by the Traditional and Khoi-San Leadership Bill [B23-2015] (TKLB) which is currently being considered by Parliament. The TKLB addresses the challenges referred to above. However, since it is uncertain when the TKLB will be enacted and due to the fact that there is uncertainty as to whether there is any existing statutory provision that can be used for the reconstitution of tribal authorities and traditional councils in 2017, it is advisable to amend the Act to ensure that such enabling provisions are in place in 2017.