Commission on Traditional Leadership Disputes and Claims findings; National House of Traditional Leadership Annual Report 2010/11; Budget Review and Recommendation Report

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Cooperative Governance and Traditional Affairs

31 October 2011
Chairperson: Acting Chairperson: Ms D NIhengethwa (ANC)
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Meeting Summary

The National Chairperson of the Commission on Traditional Leadership Disputes and Claims summarised the evolution of the Commission, starting from the Nhlapo Commission to the present. He highlighted the functions, structures and powers of the present Commission.

The Department of Traditional Affairs as the implementing agent gave the first presentation which focused on the genesis of the Department to the findings of the Commission. The Department was this year assessing the state of governances within the institution of traditional affairs. The findings of the assessment would inform its capacity building strategy, strategic plans, annual performance plans and improve monitoring, evaluation and accountability. The NHTL was dependent on the Department for financial, human and infrastructural support.

The Traditional Leadership Governance Framework Amendment Act provided a transitional period in which the previous leader served till the new one came into power therefore creating stability. The findings were:
▪ The following kings received their recognition certificates; King Mpendulo Calvin Sigcau of AmaXhosa, King Ndamase KaNdamase of the AmaMpondo of Nyandeni, King Makosoke Enock Mabhena of the AmaNdebele, King Mbusi Mahlangu of AmaNdebele of Ndzundza, King Lekunutu Cavandish Mota of Batlokwa and King Mopeli Thokoana Mopeli of the Bakwena.
▪ The investigations by the Commission revealed that the Amahlubi, AmaShangane, AmaKwayi, AmaKhonjwayo, AmaSwati akaMlambo and AmaMpondomise did not have Kingships at all and therefore all their claims were dismissed.
▪ The Kings who had not yet received their recognition certificates were King Zwelithini Goodwill Zulu of AmaZulu, King Zwelibanzi Dalindy’ebo of AbaThembu, King Thulare Victor Thulare of Bapeli and King Toni Peter Mphephu of VhaVenda.
▪ Cases that were in ligitation were the Kinghip of the VhaVenda, Bapedi Ba Marota, AmaShangane (Limpopo Province), AmaPondo of Nyandeni, AmaMpondomise and AmaRharabe in the Eastern Cape and finally AmaNdunza (Litho) Mpumalanga.

The National House of Traditional Leaders (NHTL) also presented its Annual Report and its Strategic Plan for 2010-2013 explaining its four strategic goals and the activities undertaken to advance them. Notable challenges included the non-allocation of roles and functions to traditional leadership; acute staff shortages and non filling of vacant posts; non-finalisation of the Traditional Courts legislation, capacity building for traditional leaders and a lack of a partnership model to promote cooperative governance.

NHTL had used R15, 5 million (83%) of its allocated R18.8 million. It spent 57% of its budget for employee compensation due to vacancies; 87% in assets and catering. Budget allocations for legal costs, entertainment and computer services were not utilised. Overspending was reported in the communication budget (103%), travel and subsistence (239%), training and development (170%), venues and facilities (111%) and goods and services (124%).

Members asked for clarification for the criteria used to qualify traditional leaders in the event that a dispute emerged over a claim and the criteria used in the selection of the NHTL members. They asked for the timeframes and strategies for restoring the dignity and resolving disputes over Kingship and chieftain claims. Members brought up the issue of the dispute between King Mpendulo Calvin Sigacure and Princess Nomaqcosa. Members also questioned the autonomy of the Commission which they described as a “mere appendage” of DTA.

Members expressed disappointment at the non filling of vacant posts by the House most notably being that of the Parliamentary Officer which was critical for the NHTL to effectively action Bills from Parliament. Members asked about the litigation cases that the House had won and lost so far. The overspending by the NHTL was an issue of great concern. Members expressed dissatisfaction at the responses given by the House and DTA and suggested that a more detailed explanation be presented to the Committee at a later date with the Chief Financial Officer present.

Members made recommendations to be included in the Committee’s Budgetary Review and Recommendation Report.

Meeting report

Prof Muzamani Charles Nwaila, Director General of the Department of Traditional Affairs introduced his team from the Department of Traditional Affairs (DTA) and National House of Traditional Leaders (NHTL).

Preamble by Chairperson of Commission
on Traditional Leadership Disputes and Claims (CTLDC)
Dr Baguli Tolo, Commission Chairperson, noted that the challenge faced by the institution of traditional leaders in partnering with Government was that over the years the institution had became distorted and corrupted. To try and restore the dignity of these institutions Government had established the Nhlapo Commission in 2004 which had came to an end in 2010. The recent commission was then established in 2011 with the mandate to deal with the restoration of the dignity of traditional leaders through the resolution of the 1300 outstanding claims and disputes over five years.

Dr Tolo noted the contrasts between the two Commissions. Unlike the Nhlapo Commission which consisted of part time staff members and which was allowed to make independent decisions that could not be reviewed by Government, the current Commission was made up of five permanent staff members at national level and it could only make recommendations which could be reviewed by Government.

He highlighted how the amendment to the Traditional Leadership Governance Framework Act in 2010 resulted in matters which dealt with kingship claims being handled at national level only while disputes of a lower level (chieftainships, principal traditional leadership and nduna) where to be handled at provincial level. Two committees in Mpumalanga and the Eastern Cape had been established out of the intended five. At national level the Commission had made progress, for example, in the Eastern Cape 22 claims for kingships had been brought to their attention. Members were assured that within a period of five years the Commission could realise its primary mandate of settling disputes over kingship. He noted that the Commission worked closely with the DTA which was the implementing agent.

Department of Traditional Affairs (DTA) presentation on the findings of the Commission
Prof Muzamani Charles Nwaila, Director General: Department of Traditional Affairs, explained the evolution of the Department which was promulgated on 1 December 2009 in terms of section 7(5)(a) of the Public Service Act. The DTA was transformed from being a Chief Directorate of Traditional Leadership into a Department which consisted of three branches: Institutional Support and Coordination; Research, Policy and Legislation; and Management and Administration. Three entities fell under the Department: the NHTL, CTLDC and the CRL Commission
(Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities). The Traditional Leadership Disputes and Claims Commission had been established in 2011.

An assessment was made this year of the state of governance within the institution of traditional affairs. There were eight levels to the assessment process and DTA had gone up to the seventh stage which involved the analysis of data. A list of provinces and the date when the assessment took place was provided. Prof Nwaila mentioned that the findings of the assessment by DTA would inform the Provincial and National Consolidated Report, the Capacity Building Strategy, Strategic Plans, and Annual Performance Plans and improve monitoring, evaluation and accountability. The budget set aside to support Traditional Leaders varied between 0.003% to 30%.

The vision, core values and mission statement of the Department were explained. Mention was made of DTA provision of human, financial, infrastructural and training support to the NHTL and CTLDC. The Department gave only financial and not human resource support to the CRL Commission which was a Chapter 9 institution which could recruit its own staff members but still was accountable to the DTA in terms of the Public Finance Management Act (PFMA).

The Commission membership was summarised. Prof Nwaila noted that in 2010 an amendment was made to the Traditional Leadership Governance Framework Act which provided a transitional period and a new position for traditional leadership. The transition allowed for the continued leadership of those paramountcies that did not qualify to be kingships, until they passed on to their successors those who were deemed the principal traditional leaders.

A summary of the findings was tabled (see document). The following kings received their recognition certificates; King Mpendulo Calvin Sigcau of AmaXhosa, King Ndamase KaNdamase of the AmaMpondo of Nyandeni, King Makosoke Enock Mabhena of the AmaNdebele, King Mbusi Mahlangu of AmaNdebele of Ndzundza, King Lekunutu Cavandish Mota of Batlokwa and King Mopeli Thokoana Mopeli of the Bakwena.

The investigations by the Commission revealed that the Amahlubi, AmaShangane, AmaKwayi, AmaKhonjwayo, AmaSwati akaMlambo and AmaMpondomise had no Kingship and therefore all their claims were dismissed.

Kings that still needed to receive their certificates included King Zwelithini Goodwill Zulu of AmaZulu as the province was organising a function for his inauguration; King Zwelibanzi Dalindy’ebo of AbaThembu who set preconditions for the Government to accepting the certificate; King Thulare Victor Thulare of Bapeli and King Toni Peter Mphephu of VhaVenda who both had High Court Interdicts.

Prof Nwaila gave a summary of cases that were in ligitation. They were the Kinghip of the VhaVenda, Bapedi Ba Marota, AmaShangane (Limpopo Province), AmaPondo of Nyandeni, AmaMpondomise and AmaRharabe (Eastern Cape) and finally AmaNdunza (Litho) Mpumalanga.

In conclusion the Professor noted that the Commission had to be commended for a job well done as it was handling cases that traced back centuries. DTA was confident that it could win all the litigation cases with costs. He also assured the Members that he was optimistic that all the remaining recognition certificates could be issued to all the kings before the end of the financial year.

National House of Traditional Leadership (NHTL) Annual Report 2010/2011
Dr Wilson Makgalancheche, NHTL Chief Executive Officer, said the mandate of the NHTL was the promotion of the role of traditional leadership within a democratic constitutional dispensation. Its mission statement included the House acting as a custodian of customs, cultures and traditions.

The Strategic Plan for the period 2010-2013 of the NHTL was outlined. Strategic Goal Number One was the advancement of service delivery in which the House was to interact with government, partners and stakeholders on issues of governance, development and service delivery. Key achievements here were:
▪ The House played an active role in the hosting of the Women and Poverty Indaba on 23-24 November 2010 in Nelspruit.
▪ It played a significant role in its partnership with other stakeholders in the fight against HIV/AIDS
▪ Its role in the 2010 FIFA World Cup and Legacy Project.
▪ Its role on issues of morality in the moral regeneration movement.
▪ It participated in conflict resolution
▪ Its involvement with National Arbor Week.

With regard to Strategic Goal Number Two (Focus on custodianship of culture, customs, tradition and values, meant the NHTL had continued to work with the Provincial Houses and Government Departments in promoting African cultural practices, customs and values including language and heritage)
▪ Activities included the compilation of a Cultural Calendar
▪ Celebration of Heritage Day in South Africa
▪ Promotion of practices such as initiation of boys and traditional practices like Ukuthwala.

Under Strategic Goal Number Three (Proactive communication).
▪ The House had been involved in numerous press and media statements about traditional practices such as ukuthwala, slaughter of animals for ritual purposes and death of male initiates during initiation.
▪ The donation of R100 000 by the Department of Communication (DoC) towards the purchase of laptops had advanced this objective. However, the restructuring of the DoC however had had a negative impact on the updating of the NHTL website.

Finally under Strategic Goal Number Four (Capacity building of the House through its interaction with Government and other partners) the following activities were highlighted:
▪ Participation by NHTL in capacity building campaigns to do with women, children and vulnerable groups conducted by the National Prosecutions Authority (NPA).
▪ The House organised community izimbizo in the Eastern Cape, Free State, KwaZulu Natal, Limpopo, Mpumalanga, Northern Cape and the North West Provinces.
▪ Training was given to some traditional leaders on the Domestic Violence Act.

Dr Makagalancheche commented the NHTL was experiencing similar challenges that it had raised in its 2009/10 Annual Report to the Committee. Major challenges included:
• Non-allocation of roles and functions to traditional leadership in terms of the provisions of the Traditional Leadership and Governance Framework Act, 2009;
• Acute staff shortages, vacancies not filled.
• Lack of Chamber and other resources, including tools of trade;
• The non-finalisation of the Traditional Courts legislation;
• Policy on the affairs of the House and the work of the Seriti Commission;
• Capacity Building issues for traditional leaders;
• Lack of partnership model to promote cooperative governance; and
• Challenges regarding the establishment of a functional SADC-Khotla

A summary of the budget expenditure was provided. NHTL used R15, 5 million (83%) of its allocated R18.8 million. It spent 57% of the budget allocation for employee compensation due to high vacancy rate and 87% in assets and catering. The budget allocations for legal costs, entertainment and computer services were not utilised. Overspending was recorded in the communication budget (103%), travel and subsistence (239%), training and development (170%), venues ad facilities (111%) and goods and services (124%)

Discussion
Members nominated Ms D NIhengethwa as Acting Chairperson.

The Chairperson reminded Mr Cebekhulu, a non-committee member, that he did not have voting right to nominate an Acting Chairperson.

Mr Cebekhulu (IFP) replied that he had been attending Committee meetings even though he had been redeployed as he was under the impression that all Parliament Members were allowed to attend any meeting. He added that he appreciated that as a non member he did not have a right to participate in the vote for the individual to Chair the meeting. He therefore went on to formally ask for the right to speak.

The Chairperson replied that her remarks referred to their previous dialogue in which he communicated to the Committee Secretary that he was requesting speaking rights in the meeting as the topic under discussion was close to his heart.

The Chairperson invited Members to give comments and questions.

Ms M Segale-Diswai (ANC) asked who determined which traditional leader qualified as king, based on which criteria and procedure.

Mr Abram Sithole, Chief Executive Officer, Commission on Traditional Leadership Disputes and Claims replied that the qualification was determined by the royal family in terms of its customary laws of lineage. The Commissioner stepped in when disputes emerged.

Mr Cebekhulu asked for the criteria used in the selection of NHTL members.

Mr Pontsho Maubane, Chairperson of NHTL, replied that the NHTL representatives were elected by the Provincial Houses that in turn nominated three representatives to the National House. He added that these representatives were mainly traditional leaders.

Mr Sithole added that the qualification for membership to the Commission was based on knowledge on Customary Law and understanding of traditional leadership.

Ms Segale-Diswai asked for clarification on the statement made by the Department about its defending litigation.

Prof Nwaila replied that the President had made an announcement about the recognised kings based on the findings made by the Commission on 29 July. In instances were counter claims were made, the DTA came in to defend its position.

Ms Segale-Diswai and Ms W Nelson asked for reasons for vacant posts within DTA and the NTHL.

Dr Makagalancheche replied that failure to fill vacant posts was partly as a result of its relations with the Department which gave specific criteria for filling the posts. He added that there was a lot of politics involved in the filling of these vacant posts.

Mr Smith asked about the reasons as to when and how the dignity of Traditional Leaders could be restored.

Mr Mpiyezintombi Boy Mzimela, Inkosi, NHTL explained that lack of political will was the main reason that Traditional Leaders and institutions had not been accorded the respect they deserved. Furthermore, the Committee needed to work on this objective.

Mr Mzimela commented that the current policy was undermining the role of the House and needed to be re evaluated. It was important to note that policy, if it was not functional, could be changed. The NHTL had discussed the matter with the President emphasising how the intended autonomy of the House had not been achieved.

Mr Smith asked about the timeframes for the restoration of kingships and how far back had the investigations gone.

Prof Nwaila noted that the DTA used a five year term and that the cases under review dated back to 1929.

Mr Smith asked for DTA’s plan to resolve the 1300 disputes over the five year period.

Mr Sithole replied that DTA had put in place a five year strategic plan which it could gladly provide the Committee upon request. Unlike the previous Commission that had part time staff members, the current Members were permanent at National and Provincial level. This guaranteed increased efficiency in solving disputes and claims. DTA intended to resolve all cases in KwaZulu Natal in the next financial year.

Mr Cebekhulu asked if DTA could provide specific strategic reports on progress made on disputes.

Prof Nwaila replied that quarterly reports were available on progress made.

Mr Cebekhulu asked for the Department’s strategy in the interim, while the disputes where going on, in order to curb the instability.

Mr J Matshoba (ANC) asked for clarification on the issue of the AmaXhosa, King Mpendulo Calvin Sigcau being awarded a certificate while there was a counterclaim given by Princess Nomaqcosa.

Mr Sithole replied that the reason why King Mpendulo Calvin Sigcau received a certificate was firstly based on the fact that he had been announced by the President. In addition the dispute by Princess came only after the announcement had already been made, so an interdict had not being in place. This was contrary to the cases of the Amapondo of Nyandeni, AmaMpondomise and AmaRharabe in the Eastern Cape where court interdicts where already in place so certificates could not be issued. However, the DTA was working towards resolving the dispute, a public hearing had been held in which the Princess accompanied by the Gender Commission and her lawyers presented her evidence. This would be evaluated against the history of amaXhosa to determine the validity of the claim that she has made.

Mr Cebekhulu questioned the autonomy of the Commission to the DTA as envisioned by the White Paper. He added that the House seemed a mere “appendage” of DTA.

Prof Cwaila replied that DTA had three entities of which the NHTL was not a Chapter 9 institution. At the current moment NHTL was configured in such a way that its budget was channelled through DTA. The DG was the accounting officer and therefore determined its budget. The DTA provided infrastructure and human resource support. Nonetheless, the DG explained that he did not interfere with the activities of the NHTL. He added that discussion about the entity becoming autonomous could be made going forward.

Prof Cwaila added that amendment of section 28(9)(b) of the Traditional Leadership Governance Framework Act, 2003 was as a result of the Nhlapo Commission which had autonomous power to make decisions without recommendations from Government. This, however, at times had far reaching negative consequences. An example was when Commission identified 12 paramount chiefs as qualifying for kingship and went on and made the announcement. However upon further investigation, it was established that only seven qualified. This led to the reconfiguration of the structure of the present Commission as lessons from the previous Commission could not be ignored.

Mr Maubane reiterated that the Commission was not autonomous but had become more of a Chief Directorate of DTA.

Mr Cebekhulu referred to the slide providing the membership of the Commission in the presentation by NHTL. Some names had been omitted and, as a public document, it needed be corrected.

Mr Sithole replied that the list had been provided only to refresh Members’ memories and was not detailed.

The Chairperson asked how many cases had been lost and won.

Mr Sithole replied that the Commission had managed to win one case with costs last year and was now working on the second one.

Mr Smith expressed dissatisfaction that the NHTL leadership had not given their preliminary input on strategic issues at the start of the CEO’s presentation. He asked why this had been the case.

The Chairperson added that the NHTL Chairperson had not observed protocol by not introducing his team.

Mr Maubane replied that the introductions had been made by the DG of DTA at the beginning of his presentation. He noted that this revealed the status quo and relationship between the NHTL and DTA.

Mr Smith referred to the Strategic Goal on the role of the NHTL in policy and legislation processes. He asked how many Bills to date had the House given input on and made recommendations on in the current year. He stressed that this was essential as it was part of the House’s primary mandate to give policy recommendations to Government.

Mr Maubane replied that the post of Parliamentary Officer had not been filled which was essential in updating the Commission on new Bills that had an impact on traditional leaders and institutions. However, headway had been made towards filling the post.

Mr Mzimela and Dr Makagalanche reiterated that the absence of a Parliamentary Officer hindered the quick and effective response to Bills.

Members expressed disapproval as this matter had been outstanding even when Mr Tsenoli was Chairperson. The matter needed an immediate resolution.

Mr Smith asked what had been the implications of the non-allocation of roles and functions to traditional leadership in terms of the provisions of the Traditional Leadership and Governance Framework Act, 2009.

Mr Maubane replied that the DTA should take the lead in ensuring that all departments allocated roles to the National House and the traditional leadership. He added that engagements were taking place between DTA, NTHL and other departments to discuss the way forward on the issue.

The Chairperson inquired about the demands given by King Zwelibanzi Dalindy’ebo of the AbaThembu that certain conditions had to be met by Government before he would accept the certificate of recognition in the Eastern Cape.

Prof Nwaila replied that the king had demanded among others that his constituency becomes a Republic.

The Chairperson noted that in the case of the AmaZulu, the Province was arranging a function for the certificate of recognition to be handed over to King Zwelithini Goodwill Zulu. She asked whether functions had been arranged for the other kings. She stated that this was essential as Members had often alluded to an issue of favouritism and inconsistencies in DTA’s dealings with the kings.

Mr Mzimela replied that it was a provincial arrangement and therefore other provinces could do the same if they so wished.

The Chairperson asked if any additional cases to the listed 1300 had been brought to the Department’s attention.

Dr Tolo replied that at the moment no new cases has been brought up, however, as the proceeding continued he expected new cases to emerge.

Overspending by the NHTL
Mr Smith asked the status of the current relationship between the Department and the House in terms of drawing up the budget.

Mr Maubane replied that the Commission played a mainly administrative role on the Budget and did not fully participate in the allocation of the budget.

Ms Segale-Diswai asked for the rationale behind the combining of assets and catering in the expense column. She asked for a breakdown of the expenses as she considered catering not a core business.

Ms Segale-Diswai asked for reasons for the 170% overspending for training and development which she viewed as financial misconduct. She asked for reasons why the Budget allocations for Legal Costs, Entertainment and Computer Services were not utilised.

Ms Nelson asked why there were no legal costs incurred in light of the litigation cases that the Department was fighting.

Mr Sithole noted that the recent court case DTA had won had included costs.

Mr Cebekhulu noted that it was reckless that the NHTL had recorded an overspending of 239% on Travel and Subsistence. He asked who was the person responsible for the authorisation of these transactions.

Mr Matshoba asked for a breakdown of the budget and not simply a breakdown in percentages.

Mr Smith asked what measure had been put in place to ensure that overspending could be mitigated against in the future.

Dr Makagalancheche replied that NHTL was introducing monthly cash flows so the National House would be able to track the movement of funds. The shortage of staff was the main determining factor for this lack of efficiency.

Members agreed that the budget could not be adequately dealt with in the meeting and therefore a date should be set for the DTA and NHTL to give a detailed presentation on the Budget. The Members needed to know the individual responsible for the reckless expenditure and what had happened to that person in terms of disciplinary action taken against them.

Ms Nelson stated that the document had to be distributed to the Members prior to the meeting.

Prof Nwaila replied that he had not known that the NHTL could make a presentation on the budget. If he had known that it was part of the agenda, he could have requested the Chief Financial Officer to be present. He agreed with the suggestion by the Members to make a presentation at a later date.

Co-operative Governance and Traditional Affairs Budgetary Review and Recommendation Report The Chairperson asked Members to comment on additions or omissions to the Committee observations listed under Section 7 of the BRRR report.

Mr Smith noted that he had not read through the report but felt that it lacked substance as it was comprised of 15 pages of preliminary description while less than a page were assigned to the conclusions and no recommendations had been made. He felt that recommendations should be the main focus of the report. Giving the recommendations given by the Committee in bullet form was problematic as it reduced the emphasis each observation made. He suggested that each observation be accompanied by a finding and recommendation.

The Chairperson noted that she had gone through the report and had come up with the following recommendations:
▪ The fast tracking of the regulatory and support mechanisms for Municipal and Ward Committees by developing a plan which was supposed to have been submitted by 30 March 2011.
▪ The fast tracking and close monitoring of anti corruption structures established to fight corruption within the Department.
▪ In relation to Programme Two that focuses on policy and research and knowledge management, monitoring and evaluation of the program should be strengthened. Strong leadership should be provided for the programme as indicated by the Auditor-General.
▪ The financial statements of the Department should be looked into.
▪ The supply chain management of the Department must be strengthened through the creation of stronger internal audit controls.
▪ Provincial and National government must support Municipalities in attaining accurate reporting in the provision of basic services for individual households.
▪ An explanation had to be given as to the audit trend of the Department alternating between qualified and unqualified reports.

The Chairperson indicated that recommendations had to be made by the Committee on how CoGTA was to strengthen its Disaster Management Responses.

The Chairperson noted that the Committee had to make recommendations on the dumping projects at Provincial and National level.

The Chairperson stated that an explanation was required on the R55 million under spending in the Community Works Projects.

Ms Nelson brought up the issue raised by Municipals on the non functioning of the introduced Special Purpose Vehicle (SPV). She asked what recommendations the Committee could make about this.

Ms Nelson said that a follow up report about internal investigations of financial misconduct in the provinces had to be presented to the Committee.

Ms Nelson indicated that the problems that were identified by the Committee needed to form the basis of the recommendations. Therefore, the process could not be undertaken in the remaining time.

Mr Smith suggested that the Committee Researcher should consolidate all the recommendations made by the Members into a draft report.

The Chairperson noted that the Researcher would require the assistance of Members. Volunteers for this were the Chairperson, Ms Nelson and Ms Segale-Diswai.

Ms Wenger suggested that Members’ inputs be emailed to the secretary before midday the next day.

The meeting was adjourned.


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