The Department of Cooperative Governance and Traditional Affairs (COGTA) took the Committee through the changes that had been proposed to the Traditional Leadership and Governance Framework Amendment Bill following the National Council of Provinces (NCOP) process. Amongst other matters, there had been proposals for the substitution and insertion of definitions, recognition of principal traditional communities, regulation of the establishment of traditional councils, and regulation for the recognition and removal of kings and queens. Summaries to the Committee on the meaning of Clause 5, Section 13 of Clause 9, Chapter 6 of the New Clause, and the future of the deposed kings were presented during the discussion.
Members commented that the revised definition of the principal traditional leader now seemed to indicate a political compromise, as it seemed to reflect the realities on the ground. Members asked what would happen to the six people who were not recognised, how it happened that they had not been recognised as kings if the communities recognised them as such, and asked for a summary of Clause 5. Members commented that they would like to see the disbandment of the Nhlapo Commission, and clarity on which groups were being referred to in the 40% and 60% election process. Members asked about the transitional periods that might need to be arranged to bring the traditional councils in line with the terms of office of the National House of Traditional Leaders, and wondered if this could be done administratively rather than by legislation. Members then queried why a person who was a part time member of a municipal council could not hold office as a traditional leader, what was the stance of the Department if a leader were to participate in small municipal councils, and who would appoint headmen. Members cautioned that the 60% appointments might be appointed from one clan only, and asked for a summary of Clause 9 and the recognition of kings and queens, and to summarise the situation in regard to commissioners and Clause 13. Members also enquired what would happen if communities refused to have traditional leaders, why a community could lose its recognition, and what was to happen to the six demoted kings. Members then adopted their Report on the two Bills and resolved to adopt the Select Committee amendments to those two Bills.
Traditional Leadership and Governance Framework Amendment Bill and National House of Traditional Leaders Bill: Department's presentation of amendments proposed by Select Committee
Professor Wellington Sobahle, Executive Manager: Traditional Leadership and Institutions: Department of Cooperative Governance and Traditional Affairs (COGTA) presented the amendments that had been proposed to the Traditional Leadership and Governance Framework Amendment Bill (the Bill) by the Select Committee. He took the Committee through the attached document, and explained the substituted and inserted definitions, amended and new clauses, provisions for transformation of tribal authorities to traditional councils, reconstitution and operation of the Commission on Traditional Leadership Disputes and Claims, and the shortened long title. The Act would be called the Traditional Leadership and Governance Framework Amendment Act, 2009, and Chapter 6 would come into effect on 1 February 2010. Summaries to the committee on the meaning of Clause 5, Section 13 of Clause 9, Chapter 6 of the New Clause, and the future of the deposed kings were presented during the discussion.
Mr P Smith (IFP) commented that the revised definition of the principal traditional leader in Clause 1(2) (a) seemed to indicate that there had been a political compromise, and the real situation on the ground. He asked if the definition accepted both those factors or reflected the real situation on the ground.
Mr Nathi Mpungose, Director, COGTA, stated that Section 10A would still have to apply to the leaders who would be deemed to be principal traditional leaders.
Mr Smith stated there were six people who considered themselves one level up from the senior traditional leaders. They had been deposed and reduced down a level. In terms of the definition of “King”. Referred to in Clause 2A(1)(d) and (e) the people who had been deposed, in fact, seemed to comply with the definition of a “king”. He asked on what basis they would be removed and deposed if their situation was such that they complied with kingship, rather than the principal traditional leadership. He emphasised it was stated that post-colonial custom was sufficient to be customary law. These kings who had been deposed were, in fact, kings in terms of the customs, even though this was done in post-colonial times. Therefore, if they were kings, and complied with the definition, he enquired how the Department was going to remove them and make them principal traditional leaders .
Mr Abram Sithole, Executive Manager: Traditional Leadership and Institutions, COGTA, replied these communities did not have kings before, only paramount chiefs. Out of those paramount chiefs, six were not recognized as kings and were deemed, in terms of the Bill that was currently being processed, to be principal traditional leaders. In terms of the customary law, the recognition of a king should meet the criteria stated in this particular section. He further added if regard was had to the trend of recognition, the recognition of a king, senior traditional leader and principal traditional leader had to conform to the customary law of that particular community. Although the community in that area would still recognise their king as a king, for most purposes, in terms of the definition and findings of the Commission, they did not live up to the standards or requirements in terms of the history of that particular community. This was the reason for their de-recognition.
Mr Johan Meiring, Senior Manager, COGTA, agreed with Mr Sithole on the grounds that when looking at the kingship it would be seen that senior traditional leaders and communities subjecting themselves under kingship were not at all related to the same genealogical line. However, in relation to the principal traditional leaders, the genealogical line played an important role. That was where the definition made a difference.
Chairperson asked the Department to summarise what Clause 5 was all about.
Mr Meiring explained that this Clause was stating that the same principle applied as from the level of the traditional council right through to that of the principal traditional council. The Department was trying to enhance democracy. 40% of that Council would be elected democratically, and 60% would be selected in terms of the custom and customary law. There was also a provision for the gender issue. A third of the members must be women. There was also a process of the role of the Premier, the Provincial House, and everybody in the establishment of the Council.
Mr J Matshoba (ANC) commented he was happy with the explanation as long as the Nhlapho Commission was to be disbanded, and a new Commission formed that would deal with the real issues, so that when there was reference made to the 40% everybody know who the chief would be and who would constitute the 60%.
Mr Smith commented that if the term of office of the members of the traditional council was aligned to that of the National House of Traditional Leaders (NHTL), a transitional measure would be needed for the first election to make up the five-year period. He asked the Department to explain how this was going to be managed.
Mr Mpungose replied that in the transitional arrangement this was not provided for. However, there were councils that would be established. However, COGTA was not sure when they would be established. When the Act was passed, the Councils would be set up. COGTA agreed there should be a transitional arrangement, although it would be shortened because the National House of Traditional Leaders was re-constituted three years ago and it was left with two years to run. Therefore, it was important to shorten the period of the councils, to align them with the National House. COGTA was unsure if, legally, it was possible to do this in a purely administrative way, and tell the councils their period would be shortened to become aligned with that of the National House. This would make it possible for them to reconstitute when the National House reconstituted.
Ms Xoliswa Mdludlu, State Law Advisor, Office of the Chief State Law Advisor, replied that this could be done administratively.
Mr Smith stated the new Clause set out on page 6, under subsection 13 (a) to (j) seemed to be in contradiction with the NHTL Bill. This Bill stated that a person who was a part-time member of a Council could not hold office. He asked the Department to explain this inconsistency.
Mr Sithole explained that as far as the traditional council was concerned, a person becoming a full-time member of a municipal council, would not be able to execute his or her duties as a member of the traditional council. The issue was not about membership, but the discharging of duties. For instance, if the traditional council appointed a committee that the person had to lead, he or she would not be in a position to do any other work. One organization would become compromised. The best would be to disqualify any person who becomes a full-time member of the municipal council. That was also provided for in the Traditional Leadership and Governance Framework Act, as any person who was about to become a full-time member of a council may appoint a deputy to continue with his work as a traditional leader in the area, although it was optional to have a traditional leader who occupied that position.
Mr Mpungose added that in terms of Section 81 of the Structures Act, traditional leaders did participate in municipal councils by virtue of being traditional leaders. However, if the traditional leader was politically appointed to serve in the municipal council, then he/she could not continue to be a traditional leader, but would only continue as an ordinary member of the municipality council. The National House Bill was very clear on the issue of traditional leaders.
Mr Smith wanted to know the stance of the Department in small municipal councils, where a traditional leader could occupy a part-time role in that municipal council.
Members of the Department could not agree on this matter as no decision was taken yet on this issue. However, Mr Meiring stated that according to the principal Act, if the traditional leader was appointed to serve on a municipal council, the leader would be disqualified from traditional leadership.
Mr Matshoba asked, in regard to the new clause set out on page 7, under 8(c), who would appoint headmen He stated the Commission should, first, deal with the appointment of chiefs, and then consider the issue of headmen.
In support of Mr Matshoba, the Chairperson asked if the Department had provisions in place if it found that in some areas the headmen were self-appointed, or if it was going to create something new.
Mr Mpungose said the issue of headmanship was already in the White Paper and Framework Bill. They were recognised. The Act further stated the process of recognising the headmen was respected as there were differences in different communities of the country as to how a person may become a headman. Throughout the country COGTA had learned that people could become a headman in three different ways: either through hereditary accession as a headman, or being appointed by the senior traditional leader (inkosi),or by being elected by the community, which then recommended a person you to the senior traditional leader as a headman. Where a person was elected by an inkosi, it stood to reason that the inkosi must be legitimate in the provision before he /she could appoint people. But the Commission would determine who was rightfully inkosi or not.
Mr Matshoba mentioned that Act No 41 of 2003 stated that the traditional council that was established should comprise 40% of people from the community and the 60% from the royal blood. He cautioned that it was possible that the Chief might appoint people from his or her own clan in the 60% as headmen.
The Chairperson replied the provinces should handle the issue. The Traditional House of the province should decide on the processes to be followed and determine whether a headman was genuine or not.
The Chairperson also asked the Department to summarise Section 13 of Clause 9.
Mr Mpungose explained that the idea behind this was that the Minister should be involved in the recognition of the king or queen, so that it could make recommendations to the President.
Mr Smith asked, in relation to the new clauses set out on page 8 – and specifically to the insertion of Part 2A in Act 41 of 2003, what this meant. He needed an explanation as to what it meant and what it would achieve. He asked what kind of uniformity was sought and how it was intended that the nine provinces were each to align with legislation and whether this was to be done voluntarily, in order to achieve uniformity. He also asked, with regard to the involvement of the Premier in confirming the traditional leader, why a Premier was likely to investigate whether a traditional community existed if he was merely confirming one traditional leader to replace another. In this case the issue was not the recognition of the position, but the filling of the vacancy.
Mr Mpungose explained that the process was very clear. Firstly of all, there would be a community. Once the community was recognised, then the leader had to be recognised. Once that was in place, then a council would be established. The Premier was obliged to follow the Act as it was currently set out, so as to see that things were done the same way in all provinces.
This formulation was taken from the Act with regard to kings and queens. The uniformity principles had been adopted since 2003, and the same formulation was used here.
Prof Sobahle added that the Premier concerned had to take into consideration how the institution of traditional leadership was established. The same criteria must be applied to work in all provinces, and there was a need to have uniform criteria of how a certain traditional leadership was established.
Mr Matshoba wanted to know what would happen to people who refused to have traditional leaders.
Mr Meiring explained there was legislation that dealt with that situation. The Premier of that province could investigate the matter, and withdraw the recognition of the leader and community, but only on good grounds.
Mr Smith maintained that he understood the withdrawal of a leader if there were transgressions. He also understood that in order for a community to be recognised, it had to comply with certain conditions, including customs. He could not, however, understand the situation where a community could lose its recognition through the transgression of a leader.
Mr Meiring said the definition of a traditional community was a specific definition, and that of a community was specific on the issue. The definitions were different. If a traditional community was de-recognised, it became a normal community.
Ms D Nhlengethwa (ANC) asked what the situation was when a traditional community wanted to be a normal community, and what would then happen to the traditional leader.
Mr Mpungose replied that if a traditional community was withdrawn, there could be no traditional leader and council in that community. This happened in a community near Umlazi. The area became industrialised, and people felt they were no longer a traditional community.
The Chairperson asked the Department to summarise Chapter 6 of the new clause set out on page 13.
Prof Sobahle stated the idea was to have Commissioners, who would have provincial committees. The Commissioners would try to solve disputes that traditional communities and customary institutions failed to settle internally. The Commissioners would recommend, rather than taking final decisions.
In relation to Clause 13 set out on page 17, relating to the transformation of traditional authorities to traditional councils, Mr Mpungose explained that the government was given one year within which to transform Traditional Authorities to Traditional Councils. The five-year period had now ended and there were still unresolved issues. Now there had been two more years extension granted to finalise the process, hence the suggestion that the whole process extend to seven years. This was because the Bill had not been finalised in the anticipated timeframe.
Prof Sobahle further noted that traditional authorities existed in terms of the old order legislation. They were recognised. However, when the new Act came into place, this said that they were deemed to be Traditional Councils, provided they satisfied the new requirements.
On the issue of the composition of the Traditional Council, Mr Matshoba asked who would constitute the 60%.
Mr Mpungose replied the 40% would be democratically elected. The remaining 60% would fall under to the traditional leader, and it was his / her prerogative to decide who to select for the 60%, but that would be done according to the custom and customary law.
In addition, he said the
The Chairperson asked the Department to summarise what was going to happen to the six demoted kings.
Mr Meiring explained that the arrangement was that these paramountcies would be deemed kingships until the present king or queen in place died. At that stage, the communities would revert to being referred to as the principal traditional communities. The leaders, who would be replacing the king or queen, would be called principal traditional leaders. However, if there were any vacancies at the moment, then the communities would be immediately referred to as principal traditional leaders.
Committee Reports on the Bills and Adoption of the Bills
The Chairperson read the report of the Committee on the National House of Traditional Leaders Bill and Traditional Leadership and Governance Framework Amendment Bill 2009.. The Committee resolved to adopt the reports.
The Committee then resolved unanimously to accept the changes as proposed by the NCOP and therefore to adopt the Bills, as amended.
The meeting was adjourned.
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