National House of Traditional Leaders Bill & Traditional Leadership & Governance Framework Amendment Bill : Departmental responses to negotiating mandates and suggested amendments

Meeting report

National House of Traditional Leaders Bill (the Bill): Recommendations and Amendments by Department
Mr Wellington Sobahle, Executive Manager: Department of Co-operative Governance and Traditional Affairs, stated that the Department had now looked at all the comments by provinces contained in the negotiating mandates, and picked out a few issues that were common to all provinces. The Department would comment on these clauses.

Clause 10(2)
Mr Sobahle stated that most of the provinces wanted clause 10(2) to be amended so that all members of the National House of Traditional Leaders (NHTL) could be full-time, instead of only the Chairperson and Deputy Chairperson. The Department commented that the clause already provided that the President may designate certain members to be full-time. They suggested that the clause be amended to make it clear that the President may designate certain or all members of the NHTL to be full-time.

Mr D Bloem (Free State, COPE) asked if the Department knew what the financial implications of such a move would be, and asked what it was likely to cost government if all the members were to become full-time.

Mr A Watson (Mpumalanga, DA) stated that Mr Bloem had raised a valid point. His concern was that almost all provinces were asking that the members should serve full-time, but the amendment was still using the word “may”. This did not necessarily meant that they would be full-time. He thought the amendment should be stronger as it did not fulfill the requests from the provinces.

Mr A Matila (Gauteng, ANC) stated that when Members discussed this previously, it was agreed that if members of the NHTL were full-time they would be able to deal with many more problems regarding issues around traditional leaders and problems in those communities.

Mr J Gunda (Northern Cape, ID) added that the Committee should not create an expectation of what would be done, before finding out the costs of the full-time designation for all. He suggested that the clause be rephrased only once the Department found out how many members were going to be full-time, and how much it was going to cost the government.

Mr B Nesi (Eastern Cape, ANC) stated that the Committee and provinces were supposed to be aligning their strategy with the budget. He thought it was important to ensure that traditional leaders were effective in executing their duties.

Mr T Chaane (North West, ANC) stated that the clause was definitive enough. The North West supported the clause in its present format.

A representative from Mpumalanga stated that it was only the Free State that had a problem with the clause. All the other provinces had supported the clause. As it stood, the amendment did not reassure the Committee that all the members would be full-time. The amendment seemed ambiguous. The cost factor should not be an issue.

Mr Bloem stated that the Committee had to ask why the costing for this suggestion had not been done. It was the Committee's duty to look into the matter, and the Committee must know what the NHTL salaries would be. Whilst he would not oppose the amendment, he would wish to be able to justify it with full knowledge.

Mr Matila noted that Members reported back to their respective provinces with all this information and were told by traditional leaders that the original clause did not work and needed to be amended. However, he agreed that Mr Bloem might be correct, as the Committee had not been informed of the cost implications. If the Committee had all the information, Members would be able to make the correct decision. The Committee had to clarify the situation first before a decision could be made.

The Chairperson clarified that provinces wanted members to be full-time; however, the Department had to go back and find out what the full cost implications of the amendment would be.

Mr L Nzimande (KwaZulu Natal, ANC) stated that Gauteng supported the clause. It simply showed how full-time membership would be appointed.

Mr Bloem stated that if the provinces were saying that they supported the clause then the Department still had to go back and do a cost analysis. The Committee could not take a blanket decision on this clause.

Mr Watson stated that the Committee could not postpone matters any further as the final mandates were going to be given by the provinces on 3 November 2009. He stated that there were at least three other provinces that were adamant that all NHTL members should be full-time, whilst others believed that some members should serve full-time.

The Chairperson said that it was necessary to take a decision on this.

Members indicated that all provinces, with the exception of Mpumalanga, would support the clause, as Mpumalanga still felt strongly that all members would need to serve full-time.

The Chairperson asked the Department to come back with a costing.

Clause 11
Mr Sobahle noted that the long title in the Bill did not correspond with Clause 11 of the Bill. The Department recommended that the title be amended for consistency. All provinces supported the amendment.

Traditional Leadership and Governance Framework Amendment Bill (B57B-2008)
The Department recommended that Section 16 of the Traditional Leadership and Government Framework Act must be amended, to provide for the alignment of the terms of the national and provincial houses of traditional leaders. All provinces supported this amendment.

Clause 15
Previously, the Committee had stated that where no provincial House was established, there should be provision made for a relationship between the NHTL and the local house or traditional council. The Department agreed that Clause 15 should be amended, and now presented its proposed wording.

The provinces supported the amendment of  this clause

Clause 15(5) and (6)
The Provinces proposed that the Chairperson of the NHTL not have discretion to establish a body of chairpersons. The Department agreed with the recommendation and proposed that the clauses be amended so that the chairperson and secretary establish a body of secretaries. The provinces supported the amendment.  

Traditional Leadership and Governance Framework Amendment Bill: Recommendations and Amendments by Department [B57B-2008]
Mr Sobahle presented the proposals of the Department in respect of the clauses as follows:

Clause 23(1) and Clause 26(A)
The Department stated that the appointment of the commissioners and members of committees by the President was not supported because it would result in a cumbersome process, due to the fact that there could be as many eight provincial committees. The Department therefore did not recommend any amendments to the clause.

Mr Nesi wanted more clarity on the inclusion of this process in the Bill. He understood that the appointment of commissioners for a specific purpose was always ad hoc in nature. This duty, in terms of the law, was usually delegated. He wondered if there was even a need for this Bill to encapsulate this.

Mr Nathi Mpungose, Director, Department of Cooperative Goverannce and Traditional Affairs, agreed. He stated that the President could at any time appoint a commission to look at any issue that needed to be investigated. There was also legislation in the provinces that gave the Premiers the ability to appoint commissions. However, a commission could be established for a particular term, such as the Truth and Reconciliation Commission. It was proposed that, if a commission did not complete its mandate within its specified time, the commission should be reconfigured. The existing commission would work with disputes and claims from traditional leaders for five years, after which it would cease to exist. However, if there were any issues that would still need to be dealt with, the appointment of the commission specified in the Act would “kick in”.
 
The Eastern Cape had stated that it was of the view that once the commission was included in the Bill, this would effectively make it a permanent body, and even if it finished its work within three years, instead of the five years allowed, it would still exist. This province had questioned why the commission had to be included in the Bill when commissions worked on an ad hoc basis anyway.

Mr Mpungose said that the answer to that lay in the understanding that the commission would be established by operational processes. There was a clause in the Bill that said that the mandate of the commission was five years. After five years, the commission would cease to exist, unless the President chose to extend its mandate.

Ms Xoliswa Mdludlu, State Law Advisor, Office of the Chief State Law Advisor, added that the commission was a statutory body created by the Act. It would operate in terms of what was provided by the Act and within the specified time frame set out in the Act. There was nothing untoward about it.

Mr Bloem wondered why it was necessary to put this in the clause, as the Minister could at any time appoint a commission.

Mr Matila stated that the idea of a commission was already included in the Bill. The Members were just being asked to comment on the commission's life span. The Committee was not creating something new, it was already in the original Act. He was not sure what the problem was.

Mr Nzimande stated that he was not really happy with the drafting of some of the amendments. The Committee could not “slot” things in where they did not belong. He did not understand why this matter of the commission had to be included in the clause.

Mr Mpungose stated that the Commission to deal with disputes had been in the principal Act all along, as a very specific commission that looked at concerns, claims, and disputes regarding traditional leadership. The commission also had a very specific life span.

Mr Watson asked if this commission would be similar to the Nhlapo Commission. There was a big problem with the Nhlapo Commission in Mpumalanga that needed to be resolved.

Mr Mpungose explained that the commission's mandate was similar to that of the Nhlapo Commission. The Bill sought to reconfigure that Commission to provide for provincial committees and a smaller commission at national level. The mandate remained the same. This would save costs and would ensure that commissions worked where the people were that needed help. The commissions would be appointed for a time not exceeding five years. The intention was to ensure that the reconfigured commission would operate within its mandate for a limited amount of time. If there was a problem after five years, then another specific commission could be set up in that province.

Mr Bloem asked if full-time people would serve on the commission. He noted that the same people who served on the previous commission, and who were ineffective, could be appointed to the next commission. He wondered if there was any guarantee that this commission could deliver.

Mr Mpungose answered that there was no guarantee that that the same people would be appointed to serve in the new commission. He stated that one of the problems with commissions was that people had other jobs and would do the commission’s work on a part-time basis. This Bill would allow these members to be appointed to the commission on either a full-time or part-time basis, so they could work efficiently.

A delegate from KwaZulu Natal noted that the Nhlapo Commission was nearing the end of its term. She wondered if the new commission included in the Bill would only become operational when the President passed the Bill. This would mean that the disputes and claims would stay at their current status, and not be resolved until then.

Mr Johan Meiring; Senior Manager, Department of Cooperative Governance and Traditional Affairs, stated that the commission included in the Bill would only become operational once the Bill was passed by the President. The Department hoped the Bill would be signed before the end of the outgoing commission. All claims and disputes received by the Nhlapo Commission would be treated as if received by the new commission. The claims and disputes would be reviewed by the Department as well, to speed up the work.

Mr Watson wondered if decisions made by the Nhlapo Commission, specifically by the Ndebele king, were cast in stone, or if the issue could be revisited. His mandate was very clear that the matter should be pursued. He wanted to hear what the Department thought about this issue.  

Mr Abram Sithole, Executive Manager: Traditional Leadership and Institutions, Department of Cooperative Governance and Traditional Affairs, stated that the decisions made by the Nhlapo Commission were final. The Nhlapo Commission operated in terms of the principal Act. Anyone that wanted to challenge the decisions of that Commission had to approach the relevant court.

Mr Matila suggested that the delegates approach their provinces again and seek further information on the clause and the Department's amendment.

The Chairperson noted that Members were generally in agreement with this suggestion. He therefore asked the Department to leave out any clauses referring to the Commission during their briefing.

Clause 2B, 3B, 8 and 10A
Mr Sobahle noted that provinces did not support a provision for the recognition of a principal traditional leader, community and council, as it was not the customary position. The Department commented that the recognition of a principal traditional leader, community and council was not compulsory. However, the Bill provided that where a traditional leader and community existed in terms of custom and customary law, such leader and community may be recognised by the Premier of the province concerned. No amendment was recommended by the Department.

Mr Bloem asked if this implied that someone would be able to make an application to say that he had been declared by his community to be a principal traditional leader. He wondered who would go back and look into the individual’s history and if this process was properly captured in the Bill. The Bill had to be clear about who would take on this responsibility.

Mr Mpungose stated that provision would be made in the provincial legislation for this category of traditional leadership. Such applications were viewed provincially and not nationally. Provincial legislation would have to demonstrate that applicants were on “firm ground”. There were guidelines that demonstrated what was needed in order for an individual to become a chief. So far, there had not been one person who had slipped through, who had not been a traditional leader by birth. As far as the Department was concerned, people not qualified to be named as traditional leaders could not just slip through.

The Chairperson noted that the provinces supported the clauses in their current form.

Clause 26A(9)
Provinces felt that the authority of paramountcies and paramount chiefs who did not qualify to have the status of a king or queen, and the issue of kings’ or queens’ authority over other traditional leaders needed to be clarified. The Bill provided that paramountcies and paramount chiefs who did not qualify to have the full status of kings or queens would be deemed to be kings or queens, or principal traditional communities, subject to transitional arrangements. They would exercise authority over the same communities as before. No amendment was recommended.

The delegate from KZN noted that the Department had not recommended any amendment even though provinces did not really support the clause.

Mr Meiring stated that there were additional proposals from provinces that were not part of the initial Bill. This was probably why the delegate from Natal was confused. He reminded Members that there were twelve kingships/queenships that were subject to the investigation by the Nhlapo Commission. Six of these qualified to be recognised as full kingships or queenships, and six did not. The clause stated that those that did not qualify according to the requirements were nonetheless deemed to be kingships/queenships provided that the incumbents in those positions were already fully fledged leaders at that point. When these positions became vacant, which would happen at the time that the current fully-fledged incumbents passed away, then the community would automatically become a principal traditional community.

Mr Bloem stated that this was very confusing. He needed more clarity. 

Mr Matila stated that this was what the Minister and Deputy Minister came to brief the Committee about. During the briefing, the Department accepted that it would look at the clause. This was why the provinces needed to respond to these issues.

The delegate from KwaZulu Natal stated that the Committee had previously agreed to an amendment, but the Department was now telling Members there was no amendment. This was just a little confusing.

Mr Meiring answered that the Department was trying to clarify what would happen with those paramountcies that did not qualify. No amendment was needed, as the clarification was within the Bill already.  

The delegate from the Eastern Cape stated that there was a problem with the notion that when fully fledged incumbents passed on, the community would automatically become a principal traditional community. This was a bone of contention. If the kingdoms were not recognised, then according to the Eastern Cape traditional leaders, they had to cease to exist as such immediately.

Mr Matila stated that the province of Gauteng did not have a problem with the proposal. However, he wondered if the Eastern Cape would be compelled to follow this Bill when the province had to draft its own legislation for the provincial house. He asked if this would cause problems for other provinces.  

Mr Meiring agreed that the Committee should be very clear on the issue. The Department was saying that those paramountcies that did not qualify to be kingships/queenships, would nonetheless, in terms of this Bill, be deemed to be kingships/queenships until the present incumbents passed on. At that point, the new incumbents  would automatically qualify to be principal traditional leaders. The provinces would be able to use their own discretion in the recognition of new principal traditional leaders. The six kingships/queenships that did not qualify would automatically become principal traditional leadership communities. In the case of Mpumalanga, the one kingship/queenship that did not qualify would automatically become a principal traditional leadership.

The delegate from KwaZulu Natal asked what the definition of a principal traditional leader was at the moment.

Mr Sithole stated that it was defined as being a traditional leader under whose authority or area of jurisdiction senior traditional leaders exercised authority, in accordance with customs and customary law.

The delegate from Mpumalanga stated that there was no “vacancy” as far as the kingship was concerned in Mpumalanga. The Department might not have issued a certificate to that king. However, the king existed, and if he were to die tomorrow, his successor would be appointed as a king immediately. He did not believe that there was any such thing as a “vacancy” and therefore there could be no such thing as an automatic principal traditional leadership. This had to be corrected.

Mr Sobahle stated that the situation, including most of the kingships, was that they were established and organised through the old legislation, which had since been repealed. The appointment of kings was taken away from provinces. During the Nhlapo Commission's investigation of the kings/queens, one king passed away, leaving the province without any legal mechanism to fill the vacancy. This was a fact.

The delegate from Mpumalanga stated that this was not a fact. When the king died there was a provision, but there were squabbles within the royal family. However, even at that time a successor was named by the royal family.

The Chairperson noted the disagreement between Mpumalanga and the Department. The issue would be resolved another time.

Mr Watson stated that this matter could not wait. Members, as legislators, had a duty to keep the country governable and at peace. This dialogue today was symptomatic of a major dialogue going on in Mpumalanga. The Committee had to resolve the matter urgently.

The Chairperson stated that the issue would be resolved another time. A mechanism of engagement had to be created in order for the matter to be put to rest. He noted that the provinces generally supported the clause in its current form.

Clause 4B
The Department noted that provinces had thought that government should not be required to support traditional sub-councils in addition to traditional councils. The Department recommended that support should be provided to traditional sub-councils as this would enhance the functionality of the sub-council. They recommended that the clause therefore be amended.

The provinces also thought that a threshold for traditional sub-councils had to be determined. The Department therefore proposed that clause should prescribe a maximum of 15 members. The Department’s further proposed amendment was therefore that, in line with traditional councils, the number of members should be determined by a formula made by the Premier.

The Chairperson noted that the provinces supported the amendments.

Closing Remarks
The Chairperson stated that members needed to go back to their provinces to discuss the matter of commissions. The Department also needed to return to the Committee with a cost analysis of having all members of the NHTL as full-time. He suggested the Department draw up a list of amendments that could be sent to provinces. All the provinces and the Department's comments had to be given to the provinces, so they could help with the legislation.

Mr Matila asked if Members could agree to submit all their provinces’ comments by the end of the following Monday.

The Chairperson added that the Committee could meet the week after that to discuss the comments.

Ms Mdludlu stated that this would be impossible, as there were still issues that had to be discussed thoroughly by provinces. The Department could not send the proposed amendments to the printers.

Mr Watson stated that he was still not clear on the matter of the commissions. The Committee needed to agree to the proposed amendments. He did not know yet how they would proceed, as the members needed to take back to their provinces a final document containing all the proposed amendments, and thereafter the provinces would have to draft a final mandate.

Mr Bloem said that Members had to go back to their respective provinces and take a final stand on certain matters.

Mr Watson stated that the process did not work that way. Members had to resolve matters through the negotiating mandates, before they could formulate their final mandates.

Mr Matila stated that provinces would come with their final mandates when these were needed. He appealed to provinces to move forward. He stated that he had received enough clarity on the matter concerning commissions.

The Chairperson noted that the rest of the provinces agreed with this, and that there seemed to be general support for Clauses 23(1) and 26A.

Mr Watson noted that final mandates were supposed to be dealt with on 3 November, so there was a need to deal with matters speedily.

The meeting was adjourned.