National House of Traditional Leaders Bill and Governance Framework Amendment Bill: submission by National House of Traditional Leaders

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Meeting Summary

The National House of Traditional Leaders, as well as the Free State, Eastern Cape, Mpumalanga and Limpopo House of Traditional Leaders, gave submissions on the Department’s recent proposed amendments to the Traditional Leadership and Governance Framework Amendment Bill and the National House of Traditional Leaders Bill. Comments and submissions focused on the creation of principal traditional leaders, establishment of the Councils of the Kings, and amendments to the Commission of Disputes and Claims. The majority did not agree that the Commission of Disputes and Claims should lose its independence. They said that the Commission should continue to have decision-making powers instead of making recommendations to government. They feared that this would lead to political interference. They agreed that government should continue with its plans to decentralise the Commission and create Provincial Committees. The concept of a principal traditional leader as a fourth layer of traditional leadership was rejected. They felt some of the issues needed further engagement with the Department and Ministry

Meeting report

National House of Traditional Leaders submission
Khosi Fhumulani Kutama, Chairperson of the National House of Traditional Leaders, told the Committee their engagement concentrated on two Bills – the Bill repealing the National House of Traditional Leaders Act of 1997 and the Traditional Leadership and Governance Framework Amendment Bill that is amending the Traditional Leadership and Governance Framework Act, 2003. The main focus was on the Commission of Disputes and Claims and the question of the recognition of the principal traditional leader. He stated the institution of traditional leadership had no problems with the provisions in the Bill. They were seen as assisting in fast-tracking the process of investigating and clarifying the positions of various traditional leaders in the country.

On the issue of the Commission, he said the government should continue with its plans to decentralise it and create Provincial Committees.

The second problem they had with the Commission was around its powers. This was one area the House would have liked to have had an engagement with the Department and Ministry, and also to afford traditional leaders an opportunity to have the same understanding on the issue. The Bill seemed to have taken away powers from the Commission. The present legislation gave the Commission more powers to decide on an issue which rendered it independent of any influence from the government and politicians. But now it looked as if the government had taken away power from the Commission and was making it a body that only made recommendations to government. Depriving the Commission of its decision-making powers was likely to lead to political interference in the Commission.

Regarding the issue of recognising the principal traditional leader, Khosi Kutama stated three provinces – Eastern Cape, Limpopo, and Mpumalanga – rejected the idea of a principal traditional leader being recognised as the fourth layer of traditional leadership. No response was received from the North West and Western Cape simply because these two provinces had no kings and this idea of a principal traditional leader was linked to kingship. The KwaZulu-Natal province supported the proposal though no reason was forwarded but they indicated this practice had happened some time ago. The Free State did not respond to the proposal.

Concerning the creation of the Council of the King, he indicated there was a general agreement in the House and there was consensus that politicians should not be allowed in these Councils. The number of members in the Council could be more than thirty, depending on the size of the kingdom.

National House of Traditional Leaders Bill
Khosi Kutama pointed out that the only aspect they could not agree on with the Department of Co-operative Governance and Traditional Affairs was on the dissolution of the House.  The National House of Traditional Leaders was of the view that the House should be dissolved when its term expires. They did not understand the reason behind this and why the department would want to dissolve it at random.

Further, he said they were happy with the manner of representation in the House particularly where provinces did not have enough senior traditional leaders. It was said the province would look into the question of headmen and see whether they would be sent and they agreed with the idea to keep the House made up of senior traditional leaders.

Kgoshi Pheni Ngove, Deputy Chairperson: National House of Traditional Leaders, commented that screening process systems should be established so that disputes involving royal families and their inner circles should not be taken to courts and the National Commission. Internal or family disputes should be solved using traditional mechanisms and channels.

Free State House of Traditional Leaders
Morena Matheadira Mopeli, Chairperson: Free State House of Traditional Leaders, registered acceptance by the Free State of the Bill as amended by the National Assembly. He noted Free State supported the dissolution of the House when its term reached expiration. He also indicated that they did not agree on the issue of the principal traditional leader as it was not in accordance with customary rules. It was just the creation of the department. Further, they did not want the principal traditional leadership to be linked to kingship because its existence did not depend on the existence of a king. For example, there were places like North West that did not have kings but only senior traditional leaders. They also welcomed changes brought to the Commission about disputes as the current commission was too arrogant and disputes were taken to the courts all the time.

Eastern Cape House of Traditional Leaders
Prince Zolile Burns-Ncamashe, Deputy Chairperson: Eastern Cape House of Traditional Leaders, stated that the Eastern Cape supported the envisaged amendments of the two pieces of legislation.  About the Traditional Leadership and Governance Framework Bill, he told the Committee that South Africa had undergone transformation and that had affected organs of civil society and given rise to the reconstitution of traditional councils, and this remained a cosmetic exercise. For instance, the Bill said nothing on financial implications and was a token of structural reform because it said nothing on the meaningful role that should be played by the participants, and the legislation posed no statutory obligation on funding. On the issue of the principal traditional leader, he said they had widely consulted on this question and formulated a view that had been endorsed. They rejected the idea. Historically, there had never existed the position of a principal traditional leader. This adulterated the genuineness and essence of the institution.

On the Commission of Disputes and Claims, he accepted the amendment that stated there would be commissioners assigned to provinces, and that the powers of that Commission should be to recommend.

On the composition of the National House of Traditional Leaders in the National House of Traditional Leaders Bill, their view was in line with both the transformation and democratisation of the institution. There were provinces with various numbers of traditional leaders and to simply stipulate three members per province was not fair to the broader representation. Therefore, he suggested representation in the National House of Traditional Leaders must be proportionate to the number of traditional leaders per province. However, this was not in anyway intended to undermine provinces with fewer numbers. He suggested that the number of full-time positions in the National House of Traditional Leaders should not be limited to two people only – the chairperson and the deputy - as this did not assist proper representation and participation. He found it difficult to understand why the other twenty members of the House could not be full-time so that the House could discharge its duties diligently and efficiently. Thus he suggested removing from the Bill the matter of full-time status being limited to two people appointed by the President after consultation with the National House.

Mpumalanga House of Traditional Leaders
Inkosi S Mahlangu, Deputy Chairperson: Mpumalanga House of Traditional Leaders, disapproved of the creation of the principal traditional leader. As a province they would not know what to call this principal traditional leader. The government, consciously or subconsciously, was replacing monarchs it did not want with this new creation. He stated that the [Nhlapho] Commission was trying to re-write history and demolish institutions that had been there for many, many years, and which people recognised. Therefore, they rejected the idea of a principal traditional leader. He indicated their support for the recommendation in the Bill that stated that the Commission should have powers only to recommend to the President. Finally, commenting on the National House of Traditional Leaders Bill, he asked the Committee to re-look at the term “secretary” as it was not clear to whom it referred. They supported the Eastern Cape view that members in the National House of Traditional Leaders should be full-time.

Limpopo House of Traditional Leaders
Kgosi Sefogole Makgeru, Chairperson: Limpopo House of Traditional Leaders, commented there was discontent among traditional leaders and their communities about the manner in which legislation about traditional leaders was handled. The Traditional Leadership and Governance Framework Act of 2003 had been passed and most of the provisions of this Act had not been put into effect and in his province constitutional traditional councils had not been effected. This was not about promulgating laws but about implementation. He appealed to Parliament in its oversight role to take into account financial implications of traditional institutions as it was difficult to run institutions that were not properly funded.

Regarding the Commission, he said his province agreed with the Department that the Commission had failed to achieve its mandate and that a fresh start should be made in terms of its composition. They supported the idea of provincial commissioners. In addition, as a province, he said they understood why the government and people of this country wanted the Commission to be truly independent in taking decisions. The main reason was to steer away from political interference. Among the reasons given by the Department for it to change was not the question of capacity of the sitting members of the Commission. As a province they were not convinced that to speed up the process you needed the Minister or the President to decide. The Minister could be fallible and be inclined to make a political decision. The best way to do this was to look for suitably qualified and experienced individuals to be employed full-time in the Commission.

Finally, he pointed out the principal traditional leader did not restore dignity to the traditional institution. Already there were three levels, and any other level would be peculiar. The Department forwarded no reason for creating this position, and that there were traditional leaders not linked to kingship. Hence they rejected the idea from the beginning.

Khosi M Netshimbupfe, Deputy Chairperson: Limpopo House of Traditional Leaders, wanted to know why this term, principal traditional leader, could not be named in an African language so that it could be clear exactly what it was all about, as English could be deceiving. Hierarchy on traditional matters was clear but one did not know where this new creation was going to fit in.

Discussion
Mr D Bloem (Cope) stated that people who made submissions were qualified to lead the Committee in the formulation of these Bills. The Committee should take their concerns seriously.

Kgosikgadi G Moroka, Member of the National House of Traditional Leaders, commented that the treatment given to the institutions of traditional leadership in terms of powers when compared to newly established structures was not palatable. She said the government was not taking the institutions of traditional leadership seriously.

Khosi Kutama, in his concluding remarks, emphasised that the institution of traditional leadership was not only for the traditional leaders, but also for the nation and the community. The institutions were there to address the issues of the people. Some of the issues presented needed further engagement with the Department and Ministry, and traditional leaders should be re-engaged in the process. Finally, he said the government took time in its implementation of policies, and the Bill did not spell out provisions about the welfare of the members.

The meeting was adjourned.
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