Roles and functions of traditional leaders: Department of Traditional Affairs briefing

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Cooperative Governance and Traditional Affairs

04 November 2014
Chairperson: Mr M Mdakane (ANC)
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Meeting Summary

The Department of Traditional Affairs briefed the Committee on the roles and functions of traditional leaders. The institution of traditional leadership was recognised in section 212 of the Constitution. The White Paper on Traditional Leadership and Governance and the Traditional Leadership and Governance Framework Act of 2003 aimed to transform the institution of traditional leadership. The White Paper required that provision be made for the allocation of additional roles to traditional leadership. It had to be noted that section 19 of the Traditional Leadership and Governance Framework Act of 2003 did not allocate any specific roles and functions to traditional leaders whereas the White Paper had indicated a peremptory allocation of roles and powers to traditional leaders; section 20 only provided for the discretionary allocation of roles and functions to traditional leaders. Section 20(1) vested in national and provincial governments the discretion to allocate additional roles and functions to traditional leaders and traditional councils by means of legislation or other measures. Unlike the White Paper it also did not suggest what specific roles traditional leaders and traditional councils should be given within the listed fields or functional domains, by national and provincial governments and other organs of state. It was generally submitted that traditional leaders could play key roles on issues such as job creation, housing provision etc. It was felt that health and education in rural areas should be given priority. The land question for traditional councils remained a crucial point of debate. The evolution of South African land policies removed most powers and functions that traditional leaders had on land administration in terms of customary laws and gave it to government. These powers were returned as added functions to traditional leadership with the said change that traditional leaders were managing land on behalf of government. This was contrary to the actual position of customary law of African communities. In the provision of services at grassroots level municipalities should take traditional leadership and institutions on board so as to further harmonise relationships between themselves. Democratisation of governance, decision-making, law making processes and decision implementation was impossible without effective traditional leadership participation, particularly in the development of rural communities.

Members felt that municipalities were undermining traditional leaders and traditional councils. Municipalities did not seriously take traditional councils and their representation on municipal councils was merely ceremonial. It was evident to members that the issue of the roles and functions of traditional leaders was work in progress. Questions were asked as to what plans were being put in place or what types of institutions the Department envisaged.

Some members were of the opinion that the current government was undermining traditional leaders just as the Apartheid regime had done.

The point was made that not all areas had mineral wealth; hence there were traditional leaders who were poorer than their wealthier counterparts. What activities did the Department have for those areas that needed development? Another point made was that South Africa was not the only country grappling with what the roles and functions of traditional leaders should be given in terms of modernisation.

Concern was also raised about the abuse of the acquisition of rights of surface owners of land that were used for mining. Communities were not being paid royalties that were due to them and in most cases agreements that had been entered into were skewed and biased in favour of mining companies.

The issue of traditional leaders serving as members of parliament was raised and it was felt that measures should be put in place to prevent conflicts of interest. 

The Department made a commitment to come back to the Committee in response to many of the issues raised, as it needed to gather facts on some of the issues.
 

Meeting report

Briefing by the Department of Traditional Affairs

The Department of Traditional Affairs briefed the Committee on the roles and functions of traditional leaders. The delegation comprised of Minister Pravin Gordhan; Deputy Minister Obed Bapela and the Director General of the Department, Mr Muzamani Nwaila. As Minister Gordhan arrived a little late due to delays at Cape Town International Airport, Deputy Minister Bapela and Mr Nwaila undertook the briefing.

Deputy Minister Bapela proceeded with an opening statement. There was a system of traditional leadership recognised by the Constitution. The White Paper on Local Government of 1998 had five pages dedicated to traditional leadership. The White Paper was intended to be the precursor to the Traditional Affairs Framework Act. In South Africa there were 21 million people who believed in traditional leadership. The idea was to bring respect to traditional leadership so that it could play a more meaningful role. Traditional leaders were to be found in both rural and urban areas. Some chiefs and kings were advised by educated and wealthy persons who respected them. The Department had to grapple with the question as to how the issue of the roles and functions of traditional leaders could be resolved. There were also disputes amongst traditional leaders that had to be resolved. He conceded that it was a process and that there was no quick fix. The Nhlapo Commission had to deal with thousands of claims and disputes. There were still 700 cases that needed to be resolved by December 2015. From a continental perspective, the late Libyan President Muammar Gaddaffi had initiated the process to get traditional leadership recognised. He wished the African Union to have a house of traditional leadership. SA’s National House of Traditional Leaders (NHTL) was engaged on the issue.

Mr Nwaila continued with the actual briefing. The Deputy Minister had not mentioned the fact that the Khoi and San people were in the process of being recognised through the National Traditional Affairs Bill. In 1994 there had been no written history of the Khoi and the San. At that point in time traditional leadership was in various forms. In 2003 a White Paper on traditional leadership was drafted. Research had been commissioned and the result was the National Traditional Affairs Bill. The Khoi and the San would be recognised.

He reiterated that the institution of traditional leadership was recognised in section 212 of the Constitution. The White Paper on Traditional Leadership and Governance and the Traditional Leadership and Governance Framework Act of 2003 that followed aimed to transform the institution of traditional leadership. The White Paper required that provision be made for the allocation of additional roles to traditional leadership. It had to be noted that section 19 of the Traditional Leadership and Governance Framework Act of 2003 did not allocate any specific roles and functions to traditional leaders, whereas the White Paper had indicated a peremptory allocation of roles and powers to traditional leaders, section 20 only provided for the discretionary allocation of roles and functions to traditional leaders. Section 20(1) vests in national and provincial governments the discretion to allocate additional roles and functions to traditional leaders and traditional councils by means of legislation or other measures. Unlike the White Paper it also did not suggest what specific roles traditional leaders and traditional councils should be given within the listed fields or functional domains, by national and provincial governments and other organs of state. It was generally submitted that traditional leaders could play key roles on issues such as job creation, housing provision, etc. It was felt that health and education in rural areas should be given priority. The land question for traditional councils remained a crucial point of debate. The evolution of South African land policies removed most powers and functions that traditional leaders had on land administration in terms of customary laws and gave it to government. These powers were returned as added functions to traditional leadership with the said change that traditional leaders were managing land on behalf of government. This was contrary to the actual position of customary law of African communities. In the provision of services at grassroots level municipalities should take traditional leadership and institutions on board so as to further harmonise relationships between themselves. Democratisation of governance, decision-making, law making processes and decision implementation was impossible without effective traditional leadership participation, particularly in the development of rural communities.   

Discussion

Mr M Hlengwa (IFP) referred to page 19 of the presentation document and asked whether the Cabinet resolution mentioned on the page was the Cabinet resolution of 2000, which called for the amendment of Chapters 7 and 12 of the Constitution so that the roles and functions of traditional leaders could be concretised. A concrete conclusion was needed. The challenge was huge as municipalities were undermining traditional leaders and traditional councils. Municipalities had the financial capacity to undermine traditional leaders and traditional councils. Traditional Councils were not taken seriously because of a bias towards municipalities. Representation of traditional leaders on municipal councils was ceremonial. The issue of traditional leaders on municipal councils was about having voting rights. At the end of the day municipalities did not have to take into account what traditional councils had suggested. Another concern was the funds collected by the Department of Cooperative Governance and Traditional Affairs (COGTA) on behalf of the Traditional Councils and their ability to access it when needed.

Minister Gordhan noted that there were many issues raised by members that the Department could not respond to offhand and had to gather facts on. The Department could therefore return to the Committee with responses. The matter of monies collected by the Department was one such issue. He gave the Committee the assurance that the Department would do its homework and come back to the Committee.

Deputy Minister Bapela stated that traditional leaders had asked government to amend the Constitution so that more roles and functions could be given to them. Government however responded that the Traditional Framework Affairs Act needed to be implemented first.

Mr Nwaila, on the issue of collections of revenue, said that people that had been appointed to perform the duty were not suitably qualified. The Department had agreed to provide capacity building. There needed to be quarterly financial statements.

Ms N Mthembu (ANC) said that from the briefing it was evident that the issue of roles and functions of traditional leaders was work in progress. Traditional leaders in the Gert Sibande District had more of a ceremonial role to play. They did have budgets and sat in council meetings, however they did not make inputs on the Integrated Development Plans of municipalities. Traditional Leaders were being assisted but there were gaps. There were issues but they were being addressed.

Deputy Minister Bapela confirmed that support was there for traditional councils. The Department audited which traditional councils were functional and were obtaining support from municipalities.

Mr Nwaila noted that ideally traditional councils should look at community development and issues such as gender equity etc. Traditional councils needed to listen to communities and articulate their needs to municipalities.

Mr B Bhanga (DA) was disappointed that the National House of Traditional Leaders was not present in the meeting. He had expected them to be present. What the Deputy Minister had said about the evolution of traditional leadership was important. He linked the evolution of traditional leadership with the evolution of man. Traditional leadership had ownership issues attached to it. Looking at the objectives of the White Paper on Traditional Leadership, he asked what was it that South Africans wished to do. Were traditional leadership roles going to remain as ceremonial heads as the prescripts of the Constitution set out? Was there a plan to make a change?  What kind of institution was envisaged? What were the models that South Africa was to learn from? What instruments were in place? He also asked who decided on what support was to be given to different kings. There were kingdoms that did not have mineral wealth. Were kingdoms looked at in terms of areas of occupation? What role did kings have beyond the area of monarchies? In the demarcation of kingdoms there was a perpetuation of what had been done in Apartheid times, there was a continuation of Bantustan systems. Would the National Framework guide the privileges of kings?

Deputy Minister Bapela agreed with Minister Gordhan that members had raised a number of issues and the Department would have to return with responses. The Eastern Cape was the province performing the best on benefits. On the issue of traditional leadership a model needed to be developed for the provinces. The Eastern Cape Province was also doing the best on remunerations. A model was needed for support to kings. The Municipal Infrastructure Act needed to be enhanced.

Mr Nwaila conceded that jurisdictional areas were a problem. The Department did work with the Demarcation Board. The issue was about mapping out the jurisdictional areas of traditional councils. In kingships one found artificial boundaries. The issue was being looked at from a policy level.

Minister Gordhan, on the issue of district municipalities, explained that the original idea in the White Paper was that municipalities could not sustain themselves. Hence came the belief that a district model was needed. Since then government had lost its way somewhat over the issue but it was being looked at.

Deputy Minister Bapela said that traditional leaders were not present in the meeting because the invitation had only been to the Department.

The Chairperson said that traditional leaders would be invited to address the Committee.

Mr Bhanga responded that the Committee had agreed to invite traditional leaders to address the Committee before the end of 2014, was it still going to happen in 2014? He was very concerned about the issue of initiation schools.

Mr M Galo (ANC) noted that the White Paper on Traditional Leaders promised that in the end traditional leaders would be recognised. What was being proposed in the White Paper? Would it bring fundamental changes to recognise traditional councils? Traditional leaders were leading people before the advent of politicians. The leadership of the liberation movement in South Africa had adopted the same Westminster system of government that had previously undermined traditional leaders. The present government continued to undermine traditional leaders. After 20 years of democracy in South Africa people in rural areas were still seen as second-class citizens, and basic services in rural areas were still lacking. He was concerned about the phenomenon of traditional leaders joining political parties and becoming members of parliament. It blurred the lines. He said that in May 1910 traditional councils were elected in some provinces. What was the purpose of the exercise if traditional leaders did not have roles and functions? He suggested that district councils be done away with and that grant funding be used to fund traditional councils.

Minister Gordhan responded to the claim that rural persons were treated as second-class citizens and said that people had to put their party political issues aside; there was no need for outlandish claims of the sort made. 

Mr C Matsepe (DA) was concerned that traditional leaders and traditional councils were grappling with issues of modernity. Many traditional leaders were only educated up to primary school level. What was the Department doing to uplift their levels of understanding?

Minister Gordhan said that issues of modernity did have an impact, and used the issue of job creation as an example. Whether in a democratic or traditional context, technology had contributed towards the increase in productivity but was becoming dubious in the sense that it was taking away jobs. Where would salary earners get their salaries from in twenty years time?

Mr Nwaila responded that currently traditional leaders were highly educated academically. The Department had programmes in place to capacitate traditional leaders. The Department took traditional leaders through policy and legislation, and the Department of Justice and Constitutional Development trained presiding officers in traditional courts.

Mr A Mudau (ANC) asked whether it was true that traditional leaders and traditional councils did not receive sitting allowances. How then were traditional leaders encouraged to attend council meetings?

Mr Nwaila stated that the Department was working on regulations to deal with the issue of sitting allowances in the interim until such time as the Bill was finalised.

Mr E Mthethwa (ANC), on the issue of strategic plans of the Department, asked whether there were any reports on capacitating traditional leaders. He asked for greater detail on the participation of traditional leaders at local, regional and at international or SADC level.

Deputy Minister Bapela noted that traditional leaders were doing work on their own at Southern African Development Community (SADC) and continental level. The Department was not involved.

Mr M Masondo (ANC) noted that expectations of South Africans were great that their quality of life was going to improve. The issue of development was important and was not only about having access to water and sanitation; it included restoring the dignity of people. How was government going to afford the upkeep of the hundreds of traditional leaders? How sustainable was the exercise? The institution of traditional leadership had to become an important element in the development of South Africa.

Not all areas were rich in minerals. What other activities besides mining could be encouraged? Traditionally people ploughed and harvested together. People should be encouraged to work together on projects such as, for example, producing bricks that could be used to modernise houses. Government could supply the brick making equipment. There was also a need to strengthen cooperative governance. Traditional leaders and councillors needed to work hand in hand.

Minster Gordhan stated that in relation to service delivery of water and sanitation there were many achievements that one could be proud of and also failures that one was not proud of.

Mr Nwaila, said the Department was looking into the issue of sustainability and affordability of the upkeep of traditional leaders. A pooling of resources across departments would take place. The idea was for traditional leaders to become self sustained. There needed to be vibrant traditional communities. Traditional leaders needed to be guided towards a transformed agenda.

Mr M Mapulane (ANC) noted that two thirds of the South African population lived in urban areas and rapid urbanisation was taking place. In 1990, 52% of the population stayed in rural areas. In 2011 over 62% of the population stayed in urban areas. More and more people were leaving rural areas to stay in urban areas. In many societies traditional leaders had more symbolic roles. It was however a battle for many countries to assign tasks and duties to traditional leaders. In some countries like the United Kingdom monarchies were the heads of state. The Queen’s duties were however very limited to the UK’s opening of parliament and the State of the Nation Address and her role was more symbolic. In the Kingdom of Lesotho the King had to accept the recommendations made by its Prime Minister. Traditional leadership had become the symbol of the Basutho and very little substance remained. It was important to look at the function of traditional leadership. There were two pieces of legislation that had affected black people of South Africa; the first was the Union Act of 1910 that brought about a sharing of power between the British and Dutch descendants, and the second was the Land Act of 1913, which dispossessed land from non-whites.

Some practical issues that the Committee had to look at were the abuse of the acquisition of rights of surface owners of land that was used for mining. Traditional leaders were supposed to hold the land in trust for its people. Communities were also being exploited on the non-payment of royalties by mines. There was a move from royalties to a share option in mines for communities and perhaps this was a step in the right direction. He asked whether the Department had a system in place to resolve disputes amongst traditional leaders. On vested mining areas there were continuous disputes.

Minister Gordhan responded that at the end of the day three or four Members had brought up the issues of urbanisation, modernisation and technology and how issues were to be balanced with the institution of traditional leadership. The issue was about the modern constitutional state versus traditional leadership structures. A balancing formula was trying to be used to accommodate both concepts. In going forward there was a need to adapt in a constructive way. Whether a person was the leader of a democratic constitutional state or a traditional leader, the development of people was paramount.

Deputy Minister Bapela stated that traditional leaders complained about the unfairness of deals that had been signed in the past. Many of the deals did not have social plans and no schools or crèches were provided. He gave the example of a community in Venda that had entered into an agreement in 1989 to be paid 20 cents/ hectare for the use of the land by a mining company. The community earned R77 000 per annum. The Department had asked the Department of Minerals to look into the matter. The only item that the traditional leaders had additionally received from the mine was a second hand printer to be used for administrative purposes. He added that on the issue of modernity an innovative institutional arrangement was needed. 

Mr Nwaila stated that 1244 disputes were being processed. The deadline was set for the end of December 2015. The Department was trying to put mechanisms in place.  

Minister Gordhan, on the issue of mining areas, pointed out that there were two sides to consider. The first was about deals that had been concluded on mining areas, and secondly about what was happening in mining towns. The key issue in mining towns was the use of migrant labour in this modern day and age.

He said that there was a need to generate a culture of collaboration and cooperation and not of destruction. Forces like urbanisation could not be stopped. Culture was affected by technology too and one had to be alert to changes that were taking place.

Mr Hlengwa, on the issue of traditional leaders playing political roles in Parliament, felt that there should be measures in place to prevent conflicts of interest.

Mr Gordhan said that everybody had a different perspective over the issue. Everybody had to focus on what developed communities. In the past the approach had been very partisan.
In conclusion he asked the Committee to call up provincial administrations and municipalities and to ask them to implement the back to basics principle. The recipient of benefits was after all the community.

The meeting was adjourned.

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