The Committee, as part of the process of hearing public submissions on Constitutional matters that needed to be reviewed, heard briefings from the National House of Traditional Leaders (NHTL) and the Mpumalanga Provincial House of Traditional Leaders (PHTL). Both indicated that the institution of Traditional Leadership was frustrated that its role was not clearly defined, and that despite calls for rural development, and for the House to play a greater role, it was neither Constitutionally empowered to do so, nor given sufficient physical resources to change the current status. The NHTL recommended that Chapter 12 of the Constitution should be amended, and suggested that the Committee should have regard to the provisions of the Constitution of Ghana, which guaranteed the existence of the institution of Traditional Leadership in that country, noted that Parliament should not be able to interfere with it, did not allow traditional leaders to play a role in party politics, but defined their function and powers clearly. The NHTL further recommended that Chapter 7 be reviewed and that certain functions and powers of local government be performed by traditional leaders to ensure proper service delivery and fully utilise the skills in that institution. It was recommended that a task team consisting of the Joint Review Committee and Traditional Leaders visit Ghana, and perhaps also Botswana and Nigeria. It also expressed unhappiness about what it saw as lack of consultation on issues such as Reserve Bank and electricity services matters, in particular, and noted that it did not always receive Bills for comment, despite the fact that they directly affected the rural people. NHTL believed that the Constitution should make it compulsory for consultation with the institution.
The Mpumalanga PHTL made extensive recommendations for amendments to the Constitution, including amendments to Sections 9, 41(2), 151 and 155, an insertion into Section 66 to reflect traditional courts. It also recommended that consideration had to be given to making the NHTL a Chapter 9 institution, at least that it be autonomous. It also suggested that the Independent Electoral Commission should manage elections in traditional communities. Several comments were made in regard to Chapter 12. Firstly, the roles, functions and status of Traditional Councils must be enshrined, the role and type of entity of the House must be clearly defined, and its status as public entity or part of Parliament must be defined.
Several Members indicated their concern with the proposed amendments to Chapter 2, and also said that it would be necessary to look carefully at governance issues under Chapter 7. Although they were not averse to looking comparatively at the situation in Ghana, they also discussed whether other countries might also provide useful guidelines and the comments of the Constitutional Court about the necessity to exercise caution before importing something that might not be in line with South Africa’s unique requirements. Members also commented that there seemed to be some problems with the Indigenous Knowledge Fund Bill and sought input from the presenters. Although Members noted that the Constitution required a Bill to be referred to the NHTL only if it had implications for customary law or traditional affairs, and suggested strongly that the NHTL should be tracking legislation itself, the presenters maintained that they wanted all Bills to be specifically referred to the NHTL. Members noted that the Traditional Courts Bill was currently under consideration. Members thought that it might not be appropriate for the NHTL to be given a role akin to the Chapter 9 institutions, but would be focusing on whether Chapter 12 expressed the position adequately. They asked that specific flaws should be identified that presented barriers to effective regulation. It was noted that the Legal Advisors would look again into the position to advise the Committee, and the submissions would be discussed the following week.
Traditional Leaders’ role and status: National House of Traditional Leaders briefing
The Chairperson welcomed representatives of the National House of Traditional Leaders and the Chairperson of the Mpumalanga Provincial House of Traditional Leaders, noting that their input on any Constitutional changes would be welcomed, particularly since they perhaps had not received as much focus in the past. He noted that this was a preliminary briefing only as in due course there would be a consultative meeting of all Traditional Leaders, including Contralesa, the supporters of traditional leadership and representatives from civil society.
Khosi Fhumalani Kutama, Chairperson, National House of Traditional Leaders, said that the submissions followed certain submissions presented last year but he would present an updated document to Parliament at a later stage.
The National House of Traditional Leaders (NHTL) recommended that Chapter 12 of the Constitution, which dealt with the recognition of the institution of Traditional Leadership, be amended.
It also recommended that Chapter 7, dealing with Local Government, be amended as it deprived traditional leaders of their right to govern their own communities. The NHTL felt that the functions and duties of local government should be performed by traditional leaders, in order to ensure that service delivery took place rapidly in traditional communities.
When the Constitution was drafted a lot of input was taken from the Constitution of Ghana constitution. NHTL felt, on making a comparison between the two final documents, that many aspects that would have been of benefit to South Africa had been omitted, and it would thus like the Constitutional Review Committee to revisit the Ghana Constitution. Chapter 22 of the Ghana Constitution had captured issues of Traditional Leaders well. It recognised and guaranteed the existence of the institution of Traditional Leadership and stated that Parliament would not be allowed to interfere with that Chapter. Traditional Leaders in Ghana were not allowed to play a role in party politics, and NHTL thought that the South African Parliament should consider something similar. The role of Traditional Leaders was to look after the people, who were diverse people who had allegiance to diverse political parties. Khosi Kutama urged that a task team consisting of the NHTL, and national and provincial Parliaments should visit Ghana to study such issues.
The Constitution should also make it obligatory that the institution of Traditional Leaders and their communities be consulted. He was concerned that various organs of government tended to hold meetings throughout the country, but only in metros and not in the rural areas. For instance, it was not correct that Eskom tariffs, which also affected the poor in the rural areas, should be decided in the boardrooms of metros. Similarly, the South African Reserve Bank also conducted investigations outside the urban areas and took decisions affecting the rural poor. He stressed that the people were suffering, and Parliament was the people’s representative. Any study that was conducted that had an impact on the people must go through the institution of Traditional Leaders and their people in the rural areas, because South Africa was the country of all people.
Mpumalanga Provincial House of Traditional Leaders (PHTL)
Inkhosi SE Mahlangu, Chairperson, Mpumalanga Provincial House of Traditional Leaders, briefed the committee on the provincial submission. He agreed that further consultations would still be done and the next document would reflect the consolidated views of the various Houses of Traditional Leaders, on all issues that affected the institution. He noted that the views expressed today had been gathered from rural communities.
He noted that the following issues of concern were highlighted in the consultative process:
a) In the Constitution’s Chapter 2, Section 9 should exclude sexual orientation, as it impacted negatively on the drive to deal with moral regeneration.
b) It was recommended that in Chapter 3, section 41should be amended to include traditional leadership institutions, namely the Houses and Traditional Councils as Intergovernmental Review (IGR) structures.
c) In Chapter 7, it was recommended that government must disestablish local municipalities replaced by Traditional Councils as service providers within traditional communities. Sections 151 and 155 should be amended to replace municipalities that were self-sustainable with traditional councils. In areas where municipalities were not sustainable, they should be dissolved and replaced by a traditional council, which would be declared as a municipality in terms of Section 155.
d) It was recommended that in Chapter 8, Section 166 should be amended to insert item (f) which would refer to Traditional Courts.
e) The House of Traditional Leaders must be a Chapter 9 institution. For the Institution to perform to the maximum, it should be an autonomous institution and be treated similar to a Chapter 9 institution, and not as a sub-directorate, in order to perform proper monitoring of government projects properly. An oversight role could not be properly performed as an executive arm of government. The level of reporting was too extended, and people tended not to understand the institution. Issues relating to the community and the institution itself were not reaching the correct ears. The institution should be independent and able to monitor and represent itself, and to approach government without fear in cases where it felt that government was failing the institution.
f) In regard to Chapter 9, Section 190(1)(a), it was felt that the Independent Electoral Commission and traditional councils must manage elections in traditional communities. Mpumalanga had a bad experience where an independent body had conducted elections, and things did not go according to plan. Election processes were speeded up, traditional councils were elected for two years, yet were not sworn in and had not started working. The reputable Independent Electoral Commission should hold elections with proper monitoring standards. It was recommended that the words “Traditional Council” should be inserted after the word “bodies” in Section 190(1)(a)
g) In terms of Chapter 12, the roles, functions and status of Traditional Councils must be enshrined in the Constitution. Khosi Mahlangu said that Chapter 12 needed a lot of work. The roles, functions and powers of Traditional Leaders were not defined and caused confusion. It was therefore recommended that three new sections must be inserted as follows: a new Section 212A, dealing with functions and powers, a new Section 212 B, setting out the roles for the Houses of Traditional Leaders, and a new Section 212C, dealing with the tenure of the House of Traditional Leaders.
Alternatively, Sections 60(2)(a) and 105(1) of the Constitution should be amended, by the insertion of Sections 60(2)(a)(iii) and 105(1)(e). These sections would make provision for participation of certain numbers of Traditional Leaders within the National Council of Provinces and Provincial Legislature, and thereby dissolve the Houses and repeal Section 212(2)(a) of the Constitution.
h) The role and type of entity of the NHTL needed to be clearly defined, in particular as to whether it was part of the legislative processes, an advisory entity, and oversight body or advisory institution.
i) Recognition of traditional leadership must include all layers of traditional leadership.
j) The status of the NHTL must be defined, whether it was regarded as a public entity or as part of Parliament.
k) The financial management of the NHTL must be regulated by the Public Finance Management Act (PFMA).
The Chairperson said that the submissions contained an indication as to why this Committee needed to pay attention to the issues. He noted that the Committee would discuss the submissions on Wednesday. However, he called upon the Parliamentary Legal Advisor to comment on any issues that may already be covered by legislation, meaning that it may not be necessary for the Constitution to be amended.
Ms Refilwe Mathabathe, Parliamentary Legal Advisor, identified the three main issues arising from the submissions.
In relation to the submission that perhaps South Africa might wish to model its own Constitution on that of Ghana in respect of traditional leaders, she pointed out that the Constitutional Court had cautioned that, when considering whether to copy examples from other countries, South Africa must recognise its own unique issues and not simply import examples. Thus, for instance, South Africa must be very sure that the Ghana situation was the same as the South African. South Africa had a number of ethnic groups whose customary laws and practices differed, and extreme caution must be exercised in dealing with such issues in the Constitution, particularly bearing in mind that it was difficult to amend the Constitution.
The same argument applied to the question of defining the role, status and function of Traditional Leaders in the Constitution. . Customary law, by its very nature, fluctuated, and defining matters in the Constitution meant that they would be fixed instead of fluid. It was far easier to define matters in ordinary legislation, which could more easily be changed if necessary.
Many of the areas addressed in the submission were already regulated in legislation. If more areas needed to be included in legislation, then she recommended that a proposal be put forward specifying those legislative areas that the House of Traditional Leaders wished to have covered, again bearing in mind that the legislation could more easily be amended than the Constitution.
In regard to the proposal that the House of Traditional Leaders should be a Chapter 9 institution, Ms Mathabathe noted that a Chapter 9 institution could not play a role in government, either in Parliament or local government, because it had to be independent from government and would play a role as a watchdog. Either one role or the other would apply, as an institution could not follow both.
Khosi Kutama responded in regard to the suggestions around a Chapter 9 institution. He noted that, at present, Traditional Leaders were treated in such a manner that they could not do anything. He cited, for example, that some non government organisations (NGOs) had indicated their desire to enter into partnerships with the NHTL, and had asked for a contribution of R350 000, but the Department of Cooperative Governance and Traditional Affairs (COGTA) had responded that this was not possible in terms of the Constitution, which required the NHTL merely to advise government and other institutions. It did not even have the mandate to own property. NHTL wished to purchase a house in Pretoria in order to exhibit its culture, but was also denied that right. He would like engagement on these areas.
Inkhosi Mahlangu added that the issues raised were built on the frustrations that the institution was experiencing. There was a very strong feeling that independence was required, and also that some more precise definition was needed as to what the institution was supposed to do. He said that if these issues were already legislated for, then the legislation was not being implemented. He appealed that the Constitution should clearly state the rules and functions, as these would not directly have a bearing on the fluidity of the customary law itself. Much work needed to be done. The institution requested that those who had been tasked with the responsibility of crafting the laws and the Constitution must do thorough consultation and research to cover the institution, and he appealed that more be done regarded the institution of Traditional Leaders.
Ms M Smuts (DA) said one of the challenges was to harmonise the Constitution, in particular Chapter 2, in regard to fundamental rights. She was surprised at the remarks on sexual orientation, and her party would not consider amending Section 9.
Ms Smuts noted that the final Constitution dated back to 1996. Local government was in considerable disarray in many parts of the country, and this made it appropriate now to look at the role of Traditional Leaders in the community, and the argument that they had been deprived, under Chapter 7, of the right to run local services in the community. She said that when local government was in disarray, the government could hardly resist reopening the subject of governance. In a recent Sunday Times report, on the progression of young boys to manhood and associated problems, Khosi Holomisa had made the point that the authority of Traditional Leaders had been affected by governance arrangements, which in turn had tragic consequences. There was more than one argument as to what was the best way to look after the people and to effect good governance. The bottom line was democracy, but it was necessary to look at the problem areas.
Khosi Kutama responded that Chapter 7 set out clearly what the functions of local government were, but there was nothing relating to Traditional Leaders. He said that Ghana’s Constitution did set out functions for Traditional Leaders.
Ms Smuts expressed her enthusiasm to look comparatively at the Ghana situation. She was also pleased that Khosi Kutama had raised the matter of culture and the inability to participate in the Cultural Centre. She asked if the NHTL had been consulted on the Indigenous Knowledge Fund (IKF) Bill. This Bill purported to enable the commercial promotion and exploitation of indigenous traditional knowledge, but, as it stood, it tended to take away from communities the fruit of commercial exploitation and put this in a Fund. The intellectual and artistic fruits of the traditional communities would effectively be removed from the people, and money raised would be under the sole discretion of the functionary, with no guarantee that the money would be ploughed back into tertiary institutions or colleges or schools in the relevant communities. She asked if any of the houses of Traditional Leaders would be making input into that Bill.
Khosi Kutama responded that there was a serious problem with the IKF bill. The NHTL, which took responsibility nationally to comment on legislation, was not receiving all bills. He had been invited by the Department of Trade and Industry to make some comments to a seminar in Midrand. This Bill was not received by the NHTL. The NHTL was defined as the “custodians of culture, customs, tradition, languages and knowledge systems” but the question was what this really meant. He had asked the Traditional Culture Committee to raise this question with the Department of Arts and Culture, the National Heritage Council, and all other stakeholders. Traditional Leaders, despite being the custodians, did not have a clear mandate or resources, nor were issues being discussed as expected.
Inkhosi Mahlangu concurred with Khosi Kutama around those issues.
Adv M Masutha (ANC) said that he understood that consultation with NHTL on any legislation that affected tradition or custom should ensue when a bill was introduced in Parliament. The joint tagging mechanism included a determination of whether that legislation had implications for customary law or traditional affairs, and, if so, then the Constitution required the Bill to be formally referred to the NHTL. If this had not happened, then the Committee could look into what had gone wrong.
The Chairperson said there was no Constitutional obligation for any legislation to go through the House of Traditional Leaders. This was an obligation covered by the Traditional Leadership and Governance Framework Act (TLGFA). All legislation was published in the Government Gazette, so that any member of the public could make input before it was even tabled before Cabinet. He would have expected that the NHTL had personnel who tracked legislation and made the necessary representations, as the NHTL should not wait for a Bill to be referred to it.
Ms D Rantho (ANC, Eastern Cape) asked for clarification on the request that sexual orientation should be excluded from Chapter 2.
Ms B Mncube (ANC, Gauteng) also asked for clarification on the comments in regard to Section 2, asking exactly what type of confusion was being created, and whether it was not clear what was meant by “sexual orientation”.
Inkhosi Mahlangu responded that the Traditional Leaders were the custodians of culture. The current section caused confusion. If it was not possible to amend this section, then the NHTL would have to accept that, but he was emphasising that, from a cultural standpoint, differing sexual orientation was incorrect.
Ms Rantho referred to the comments regarding Chapter 8, and asked whether the people in the Traditional Courts were trained, whether matters would be taken to the courts and whether there was provision for lawyers to assist.
Inkhosi Mahlangu responded that some of these issues were dealt with in terms of the Traditional Courts Bill, and there were some issues around training. He pointed out that the Traditional Courts had existed “since time immemorial” and they were very busy. No lawyers were allowed to represent people in these courts; instead the community and the different families would be involved.
Mr D Bloem (COPE, Free State) asked for more motivation. He noted the comparisons with Ghana, but wanted also to hear of examples from other countries. He pointed out that in 1994 there was much haste to change legislation, some of which subsequently needed to be amended again, and urged that that not happen again.
Khosi Kutama responded that Ghana was the most advanced Constitution, although a study had also been done in regard to Botswana, which was complicated. The proposed task team could visit Botswana and Ghana, and perhaps Nigeria. The institution was also interacting with other kings and Traditional Leaders on the Continent, and was trying to arrange that eventually a Continental House of Traditional Leaders would come into being.
Ms Mncube asked whether the broad references to health by Ikhosi Mahlangu applied to Mpumalanga or throughout South Africa, as the Constitution applied to everyone in all provinces.
Ms Mncube suggested that if the role of the Traditional Leaders was not clear in the Act that established the NHTL, then perhaps it was possible to achieve clarity in amending legislation.
Inkhosi Mahlangu responded that he would go back to what Khosi Kutama had requested in respect of Chapter 12. The Constitution tended to clearly define the roles of other institutions, but not that of the institution of Traditional Leadership. The Constitution allowed for Chapter 12 to evolve. The institution had existed for time immemorial, but it seemed that there had not been a proper investigation into what the Institution was all about, or what it was doing, and to clearly define the powers. Traditional Leaders were frustrated because the Constitution had never been clear as to their powers. Work needed to be done on that Chapter.
Adv Masutha said Chapter 2 would need to be treated separately and in a different way to issues relating to Chapter 12.
He understood that Chapter 12 provided a framework, and that the Constitution envisaged that traditional law could evolve through legislation or customary law development. It also gave recognition to the institutions that would be responsible for seeing to the development of customary law. He asked whether the principles or the framework outlined in Chapter 12 were acceptable to the NHTL, and what the NHTL saw as the specific shortcomings or weaknesses. Chapter 12 provided not only for recognition of the institution of Traditional Leadership, but also for ways in which issues relating to Traditional Leadership should be dealt with, and the legislation that should be provided. The Constitution gave recognition to the system of customary law in the Constitution, and provided for those institutions directly interested in traditional or customary law to play a pivotal role in the development and application of customary law, as they themselves were constituted under customary law in the first place. Those were very profound principles and frameworks in the Constitution within which policy and legislation could be framed.
Adv Masutha said the suggestion to depart from Chapter 12 and give the institution a role akin to the Chapter 9 institutions would be to overlap roles of the institutions that were never meant to serve the same purposes. He thought the Committee should focus on whether Chapter 12 was adequate.
Adv Masutha did not feel that the relationship between Chapters 7 and 12 was clearly articulated. The Committee needed to get a sense of what other shortcomings in the legislation existed, and regulate the relationship, to identify any possible barriers to effective regulation, and then to review the Constitution. He suggested that specific flaws be isolated that prevented the system responding effectively to the needs of this particular sector.
Inkhosi Mahlangu answered that the institution was alluding to those from rural areas. The ordinary residents found it difficult to understand how a municipality that did not collect on its own was building a R200 million structure. Many poor municipalities were dependent on government, and the Traditional Leaders felt that it could do far more, if it was properly capacitated, to assist with the situation, without incurring such substantial costs. For this reason the institution had suggested that other ways of governance be sought where municipalities could not collect and could not be self-sustainable. The institutions of Traditional Leadership used to be involved with service delivery, but the question was now how to capacitate a new department that was created to deal with Traditional Leaders, and whether the fact that two institutions were to be capacitated would not mean a duplication of roles and encroachment on each other’s territory.
Inkosi Mahlangu said that multi-purpose centres were being proposed in Mpumalanga. Traditional Councils were also going to become multi purpose, with certain departments within them driving service delivery. It was important to fully utilise the skills that were brought into the institution of Traditional Leadership. That was why there was a proposal, to do away with municipalities that were not sustainable, and to create a link with different municipalities in terms of service delivery.
The Chairperson explained that although the Committee had referred to issues being dealt with separately, the representatives and Committee could speak of any matters in the Constitution, falling under any Chapters, and not only those relating to customary practice and tradition.
Ms Smuts said the Chairperson himself had addressed the fact that Traditional Courts were excluded from the list of Courts in Chapter 8. The Portfolio Committee on Justice was considering the Traditional Courts Bill. She did not see that there was any difficulty in including reference to a body that should have been included in the first place.
The Chairperson noted that the Constitutional Court had emphasised the importance of the recognition of South Africa’s unique, multi ethnic and multi cultural characteristics, which may not be reflected in any other country. However, the South African Constitution had drawn heavily on examples from, for instance, Canada, Germany, Switzerland and India, although nothing much was said about the rest of the African continent. He asked for clarity on that.
Adv Masutha commented that the Constitution recognised the applicability of international common law, which applied throughout the world. It specifically recognised the application of comparative law, which involved looking at how other countries applied their laws under similar circumstances. A number of Constitutional Court judgments had drawn comparisons from the judgments of other jurisdictions, in order to keep up with international trends.
Ms Mathabathe agreed that the South African Constitution had given recognition to points contained in constitutions from other jurisdictions. The Constitutional Court looked also at the judgments of those other jurisdictions. She had not seen comments about any other African countries. She clarified that the Constitution did not say that South Africa should not copy examples, but called for caution should it do so, to ensure that South Africa did not import systems from other countries that would not necessarily be compatible with South Africa’s unique circumstances. In regard to international law, she said that South Africa was signatory to various international treaties, and that South Africa must ensure that it did not contradict or depart from undertakings made under international instruments.
The Chairperson understood that the Constitution catered for a number of institutions, some that were already in existence and some new, and stated their roles and functions as well as their powers. He asked whether the Constitution, when it gave recognition to Traditional Leadership, had outlined the powers of the Traditional Leaders at all, or whether any other legislation did so. He was aware of the functions and roles being mentioned, but pointed out that in order for an institution to be able to carry out its function and play its role, it would also need to be empowered.
Ms Mathabathe said that as far as she was aware the Constitution did not, in terms, outline the powers of Traditional Leaders but she would like to reconsider that point again. The principles on which the Constitution was based could not be amended. She would again research the question of powers and revert to the Committee.
Ms Smuts asked what the Constitutional principles were in terms of Traditional Leaders.
The Chairperson said that the Interim Constitution referred to the institution of Traditional Leaders being recognised and protected in the Constitution. The final Constitution did not say anything about “protection” but only “recognition”. Government could, in theory, make laws that may not necessarily promote the protection of the institution.
Khosi Kutama reiterated that the NHTL was not happy with Chapter 12. He did not think that it captured enough. It was important that the Institution be recognised and protected. The Ghana Constitution protected and guaranteed the institution. He again stressed the need for a task team of Traditional Leaders and the Committee to visit Ghana.
Khosi Kutama added that the President, when opening Parliament, had said that the NHTL must move away from its purely supportive role, and become an institution that did things, and there were implications also in the allocation of R800 million for rural development. However, the institution did not have resources, nor did the Constitution give it a mandate to do all these matters. He maintained that this must be captured in the Constitution. The NHTL and PHTL were statutory bodies that should not be denied the opportunity.
He stressed again that the communities in the rural areas were also being denied opportunities. Eskom had been authorised to increase its rates to such an extent that rural people could not longer afford electricity. Reserve Bank and services issues affected Traditional Leaders and their communities, as also did matters of education. All the Bills that were before Parliament, because they spoke about the people, must be referred to the institution, as Parliament needed to ensure that the institution was informed and participated fully on these issues.
The Chairperson thanked the National House of Traditional Leaders and the Mpumalanga Provincial House for responding to the invitation to make submissions. The Committee would discuss the issues raised in the following week and he suggested that an observer from those Houses be present. People had expectations of these statutory bodies. He added, however, that although the Constitutional Review Committee had called for submissions, the Constitution was intended to be a document that could not be easily amended. He asked that further research be done and that the presenters be ready to support their submissions that there was a need for the amendments proposed.
The meeting was adjourned.
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