National House of Traditional Leaders Bill; Traditional Leadership & Governance Framework Amendment Bill: Department response to submissions

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Meeting Summary

The Department of Co-operative Governance and Traditional Affairs responded to the submissions provided on 2 September by Chairpersons of National and Provincial Houses of Traditional Leaders on the two bills before this Committee: National House of Traditional Leaders Bill and Traditional Leadership and Governance Framework Amendment Bill

Points discussed where the powers of the reconstituted Commission; the institution of principal traditional leader positions; the need for public involvement with the appointment of the Commission; the need to include meetings with the President in the legislation, and proportional provincial representation.

Discussion commenced with a Committee member remarking that the Department had “wiped the submissions off the table” too easily. Discussion centered on matters like proportional provincial representation in the National House, and the related issue of provincial autonomy. A Chairperson from Limpopo remarked that that province was not opposed to proportional representation, but that the issue had to be engaged with. The number of traditional leaders could not be the only criterion. The multiplicity of traditional communities in a given region, also had to be taken into account.

The position of Khoisan and Griqua traditional leaders, and a perceived lack of recognition, was interrogated.

The financial implications of these Bills were contested. The Committee were concerned that the Bills would provide unfunded mandates as the Explanatory Memorandum of both Bills stated that there were “no financial implications”. The Department had to face some critical questions about a perceived lack of concern therewith. Although it was remarked that there were Houses that could not function on account of finance restraints, the Department seemed to remain convinced that the framework Bill would not be expensive to implement.

Meeting report

Department of Co-operative Government and Traditional Affairs briefing
Professor Sobahle, Executive Manager, took the Committee through submissions by the National and Provincial Houses of Traditional Leaders, and the Department’s responses to these:

▪ Limpopo and the National House had submitted that the Commission had to have the final say, without interference.

The Department maintained that the President had to have the final say.

▪ The Eastern Cape and Mpumalanga submitted that the Commission only make recommendations.

The Department supported that.

Mpumalanga had submitted that the reconsidered Commission be able to review the decisions of the former Commission.

The Department response was that the current Commission would not be disestablished, only reconstituted. It would attend to the same issues, but would only make recommendations.

▪ The Eastern Cape had submitted that the legality of the Commission was questionable. The provinces had not been part of its formation.

The Department responded that the matter was regulated by a National Act.

Northern Cape, Mpumalanga and North West were opposed to the institution of a principal traditional leader as a 4th level of traditional leadership. It was felt that it was a position that did not exist in terms of custom, and would even follow in the footsteps of colonial regimes. Kwazulu and the Free State were in favour.

The stance of the Department was that the current paramount chiefs would retain their positions. Kings or queens would retain their positions until death, and would then be succeeded by principal traditional leaders. The council for principal traditional leaders would function according to the same principles as the council for kings and queens. Where customs supportive to principal traditional leaders existed in a province, provincial legislation had to provide for recognition of such a leader and the council. The transition to principal traditional leader positions, had to be guided by provincial legislation.

▪ A submission from the provinces was that the public nominate Commissioners, and also participate in short listing and interviewing.

The Department thought that the involvement of the public could result in a cumbersome and costly process. It could very well prove to be time-consuming. The Minister had stated that time was of the essence.

▪ It was submitted that the title of Secretary be amended to CEO.

The Department was in favour of retaining the title of Secretary, as it was more in keeping with terms used in government.

▪ The Eastern Cape and KZN submitted that provincial representation in the National House should be proportional.

The Department responded that the matter had been raised during the previous year, and had been rejected. It was not in favour of amendment.

▪ It was submitted that a two thirds majority be required for the dissolution of a House.

The Department responded that it was a statutory body. If a majority agreed, it could be dissolved.

▪ It was submitted that the Bill be amended to provide for meetings with the President.

The Department responded that provision had been made for the President or a representative to address the opening of the National House. Nothing prevented interaction with the President. There was no real need to resort to legislation.

Mr A Watson (DA, Mpumalanga) expressed concern that submitted proposals by Houses of Traditional Leaders had been wiped off the table, in his view, by the Department’s response. Not enough explanations had been listened to. The Department had expanded on certain points, with information not written down. In reply to the suggestion that the title of secretary be changed to CEO, Prof Sobahle had said that “secretary” was the term employed by Parliament. Such statements had best be recorded in writing. Committee members needed it to brief the provinces. He asked if the Department could send officials to accompany Committee members to such briefings, in order to assist with difficult questions.

Ms X Mdludlu, Principal State Legal Adviser, referred to the concerns of Eastern Cape and Mpumalanga, that the Bill’s explanatory memorandum stated that implementation of both bills had no financial implications. Did that imply that there was no money to cater for the Bill? Could it be implemented?

A House Chairperson from Mpumalanga, referred to the review of decisions taken by the previous Commission. He urged that such reviews had to assure that mistakes made by the previous Commission, were not implemented. There was serious discontent in Mpumalanga, and reassurance was needed that there would be a review.

A Chairperson from the Eastern Cape, added that regarding the review of Commission decisions, it was crucial that the Department investigate constitutional validity. Traditional leadership was a Schedule 4 competency function. The Department had to test validity against the provisions of the Commission, and ask to what extent the actions of the Commission complied with these.

He continued that the opinion of a constitutional expert was still lacking. Section 20 of the Principal Act referred to a confederation of departmental functions in the new administration. Had Section 20 been reviewed to be in line with what currently obtained? The finance implications of the Bills had not been talked to. Traditional leadership was a concurrent competency. The National Legislature could not pose obligations to other spheres of government, and not mention finance. There were Houses of Traditional Leaders that could not function, for the very reason that legislation had been passed that failed to take the finance implications into account. What was the Department’s strategic plan with regard to that? Was there a budget?

The number of seats awarded in Parliament, was calculated according to votes received. That was an arrangement based on the fundamentals of democracy. Why would the Department be so adamant that proportional representation for the provinces was wrong? Had communities been consulted? Traditional leadership was an institution of traditional communities. The individual views of affected people, could not serve as guidelines.

He referred to the statement that there was no need for an electoral college. There had to be a nomination process to obtain leadership that was legitimate. Eighteen people could not decide on behalf of thousands of traditional leaders. If a province wanted the dissolution of a House, it was the democratic right of that province.

A Committee member remarked that in failing to consider the financial implications, the Department was driving through an unfunded mandate.

A Chairperson from Kwazulu-Natal interrogated the issue of uniformity. KZN and the Eastern Cape had supported proportional representation. The National House was a representative body, but when it sat and came up with a document, it seemed to come from nowhere. National legislation could not dictate that provinces had to be uniform. Section 146 of the Constitution stated that there had never been uniformity in terms of traditional leadership. It was properly left up to the provinces. He wished to submit that traditional leadership was a sui generis institution that stemmed from traditional communities. As such, it could be viewed as an organ of civil society. Legislation had to grant autonomy. It would be better for the provinces to regulate themselves. The Department seemed to be saying that it was not keen to consider further inputs.

The Eastern Cape representative in the National House questioned the fact that the Department did not want to regulate meetings with the President. Provinces had to assist each other. Finance implications could not be ignored. The Department did not provide for implementation.

A Chairperson representing Limpopo remarked that representation in the National House was an emotional issue. It would be best to stay level-headed. Limpopo was not against proportional representation, but there was the feeling that the ground had to be worked. The province was home to a multiplicity of cultures. Although it might contain fewer traditional leaders than some other provinces, there were many traditional communities to represent. Cultural and linguistic communities had to be taken into account. Such attributes could not be relegated.

Mr T Chaane (ANC, North West) remarked that the proposition that the President merely address the House of Traditional Leaders at did not provide for significant interaction. There had to be a definite platform for meeting with the President. The Department had to share the real reasons behind its position in that regard.

Mr D Bloem (COPE, Free State) ventured that the Department had to point out where the money was, that was needed for implementation.

He said that he did not see any reference to the Khoisan as traditional peoples. The National House could not function without the provinces. The Department could not subscribe what had to be done. It was not an elected body. Provincial suggestions had to be listened to. It was erroneous to think of some communities as being more traditional than others.

Mr Abram Sithole, Executive Manager: Traditional Leadership and Institutions: Department of Co-operative Government and Traditional Affairs, responded that the Department would be unable to reply to all the questions there and then.

He said that the document presented had been intended as a response. It had not been the intention to supply directives.

He noted that further meetings with the President, was in fact provided for in the Bill. But the intention was to avoid pinning the President down to a series of formal engagements. Appointments with the President could be made, according to the legislation as it stood.

He conceded that current amendments did not refer to the Griqua or Khoisan, but that it would be included in the following year. The claims relating to Griqua and Khoisan traditional leaders were not disputed. The Northern Cape already had Khoisan representatives in their House. A policy on the Khoisan had been adopted.

On the issue of proportional representation, notably whether it would come down to the number of traditional leaders or the number of traditional communities, he advised that Provincial Houses start to engage with the matter. The National House had to define proportional representation.

The submissions about dissolution of Houses had come from the provinces, and the Department had answered that provision would be made for that.

Professor Mkhululi Sobahle, Executive Manager: Traditional Leadership and Institutions: Department of Co-operative Government and Traditional Affairs, gave the assurance that the Department would provide officials to help explain the Bills. It had already done so in the Eastern Cape, and was scheduled for KZN that Friday 17 September.

Regarding uniformity versus diversity, he noted that the national legislation was there for guidance. It was a framework Act that also opened the way for provincial specificity. It had to be borne in mind that the ruling party was committed to equal government treatment.

The Department respected the National Council of Provinces. It was entirely ready to submit proposals to political principals, before it was brought to Parliament. The power of government was recognised, and the Department only proposed. Legislation could be viewed as the voice of the people. The Department did not present its own views. There was no vested interest. Parliament was seen as the final arbiter.

Mr Sithole said that it was not possible to supply figures of available funds, but that it would be forwarded to the Committee. The implementation of the Bill would not be that expensive. There were implications for local and provincial budgets.

The meeting was adjourned.



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