Traditional and Khoi San Leadership Bill [B23-15]: public hearings Day 1

Meeting report

Submission by Lesle Jansen
Ms Lesle Jansen, a lawyer from Natural Justice and Expert Member of the African Commission’s Working Group on Indigenous Populations, said they were developing a more detailed submission but today wanted to raise three main points. The first was that it was important to have this Bill because Nelson Mandela had expressed the view that no attempt should be made to abolish African culture and tradition. An amicable solution based on democratic principles should be found and traditional leaders should be allowed to play a meaningful role at all levels of government.

Secondly, Africa was in the process of rebooting its legal policy and institutional framework to resuscitate traditional values and institutions. She quoted Carl Jung as saying that for a man to live without his past was a mutilation of a human being and hence the importance for African culture to be recognised. She spoke of the criteria for the recognition of the Khoisan community and made a recommendation on Section 5(1)(a) that the recognition criteria be amended to take a restorative approach and that the Status Quo reports be used as a guiding standard which would allow modern Khoi to self identify membership.

Thirdly, she spoke about the former homelands and apartheid boundaries which ‘locked in’ communities to communities and leaderships recognised by the Traditional Leadership and Governance Framework Act (TLGFA), which in turn recognised tribes created under the apartheid Native Administrative Act of 1927. She said the preferred option was that Khoisan leadership be given jurisdiction over the people and not over territorial land so as to eliminate the apartheid boundaries issue. However, jurisdiction over people had not solved the problem of the Khoisan’s extreme marginalization in society.

Institute for Poverty, Land and Agrarian Studies (PLAAS) submission
Prof Ben Cousins, National Research Foundation Research Chair of the Institute for Poverty, Land and Agrarian Studies (PLAAS), commented on one aspect of the Traditional and Khoisan Leadership Bill (TKLB). The key issue for him was whether or not a choice should exist in relation to people affiliated to traditional leadership structures. He asked what the relationship between an institution of government and traditional governance is and if the two were incompatible or whether they were only symbolic. At issue was the accountability of leaders to their people. Could these different forms, i.e. elections and hereditary power, function side by side? Both systems should be based on the will of the people and the replacement of corrupt leaders. So governance systems were not compatible if they operated by force or were not by the will of the people, and consequently where oversight and accountability was absent.

In this Bill, two different systems were envisaged, that for the traditional leaders and that for the Khoisan. For Africans there was no self identification required, it was involuntary because affiliation was based on a specific geographic area under the jurisdiction of the chief. The Khoisan however needed to show a history of self identification by members of the community and that members could live in several geographic areas.

There had been many abuses by traditional leaders of their powers in the past 20 years so why did the Bill not make the principle of self affiliation applicable to all? He suggested that the failure of the Bill to take on board the freedom of association guaranteed by the Constitution opened it up to constitutional challenges. By making affiliation to traditional leaders involuntary, it sounded the death knell to that institution.

He noted many other challenges with the Bill: its silence on transformativeness, the weakness of oversight arrangements for Traditional Councils, the inadequacy of boundary dispute mechanisms, the question of succession or secession, the lack of adequate provision for consultation with community members, the lack of clarity on the role traditional institutions might be given and the attempt to cement apartheid tribal boundaries in place.

Discussion
Mr K Mileham (DA) said the submissions spoke to the dichotomy between the Khoisan criteria and the African traditional leaders criteria and that Prof Cousins had come up with a workable solution. If the land criteria were to be taken away, how would that affect the current status quo, especially of the African traditional leaders? Was Ms Jansen calling for a land based system?

Mr P Mapulane (ANC) said that Ms Jansen had said that the current Khoisan criteria had been penalised for having been labelled as coloureds. Were all coloureds Khoisan, or were some Khoisan labelled coloureds? She had also said that the criteria should reflect the historical trajectory of the Khoisan. Was there a specific proposal that the presenter wanted to submit on how that should be done? Were the Status Quo reports available? On the critique of apartheid boundaries, he asked if the suggestion was being made that the current kingships and queenships were based on apartheid boundaries as kingships were existing prior to colonialism and apartheid and that kings led the wars of resistance such as King Bambatha.

On recourse and accountability, Mr M Hlengwa (IFP) said that in KwaZulu-Natal the traditional councils were elected. He noted this in relation to the assertion that ‘young South Africans do not take kindly to authoritarian rule as the universities had discovered’. What was the link to make such a bold statement, as in his view it painted the entire institution with one brush as well as the fact that in prior statements the presenter had talked of the advances the institutions had made. The tendency was to look at traditional leaders and not the institutions within which they work. There should not be many values other than those enshrined in the Constitution.

The Chairperson said he had always laboured under the impression that the Khoisan were part of the original African communities. He could not understand why they could not be part of the broader African community.

On whether all coloured people were Khoisan, Ms Jansen replied that former President Nelson Mandela’s administration with the Status Quo reports clarified who the Khoisan were in South Africa. There were five historical Khoi and San communities, each of which had subgroupings. The Khoisan were not included in the integration process of the TGLFA and President Nelson Mandela then established a Khoisan Council to ensure that leadership claims could be recognised. International law accepted the right of people to self identify with a community. She said a significant amount of coloureds stemmed from the Khoi community but such an identity could not be forced on people.

On the Status Quo reports, she replied the government ministry prior to it being renamed Department of Cooperative Governance and Traditional Affairs (COGTA) had established the study and had appointed independent researchers.

On the criteria for the recognition of the Khoi and San communities, she replied it was for them not to have a land based culture. Given the complexity of how many people were Khoisan and where they were situated, it was important that the criteria accommodated and respected the complexities that these communities were dealing with. The Status Quo reports should be used as this was work already done by President Mandela to bring them back to their African identity and not to be a separate nation. She could not answer whether the Khoisan were trying to be a nation state but she could answer how the African region was developing an approach. In 2003 the African Commission had said indigenous people were now coming forth like the Aborigines and the Maoris and clarified that when one looked at the problems of Africa, these indigenous communities in post colonial Africa were not accessing their human rights to the same level as the other groups. So, in Africa, to speak about being indigenous did not mean one would be a separate nation or have special rights but that post colonial governments had to look at these communities with regard to developmental concerns.

On the historical trajectory of the Khoi and San, she replied that when the homelands were created, the Khoisan did not go into a homeland. The establishment of homelands led to those people within them maintaining their identity but the Khoisan were forced into the coloured identity and lost their institutions and identity so she was advising that the criteria should not further marginalise the Khoisan and the criteria should take a restorative approach.

Mr Mileham asked how a restorative aspect would be put as a criterion in the Bill.

Ms Jansen replied that at one level it was legislative, because in 1948 they were labelled as coloured. Secondly, there was a proven history of coherent existence of the community.

On how territorial self affiliation would affect current African traditional communities, Prof Cousins replied that for 20% of the rural population it would help undo being placed forcibly under the jurisdiction of a traditional authority. Some communities adhered to custom without having chiefs. For many people it would make no difference. The point about affiliation was that it led to accountability.

On authoritarian versus consensual rule, he hoped the Committee would look up case studies and he could provide a reading list of 20 case studies. Key weaknesses in the current Bill were that there was very little oversight over the functioning of Traditional Councils, with over 70% of councils being ultra vires.

On the history of apartheid boundaries, Prof Cousins said the argument was not about apartheid creating or destroying traditional institutions, the argument was that customary systems were distorted and shaped to meet the needs of the rulers. The problem with the current policies was that these distortions were being accepted as the true nature of the institution. Taking the best of African traditions into a modern democracy to meet the needs of people in society should be the spirit in which the government legislated for traditional institutions.

Mr Hlengwa said that in 2000 when the President chaired a Cabinet subcommittee where resolutions were taken on the need for sections 7 and 12 of the Constitution to be reviewed so as to deal with borders and boundaries because the introduction of wards in municipalities meant that there was a two in one form of government which had come into effect. How did one come out of that conundrum? How did one then deal with municipalities and traditional instances of government, because the geographic nature of it posed a problem.

Ms Nomboniso Gasa, Chairperson of the Commission for Gender Equality, said it must be acknowledged that people moved in and out of different systems or beliefs every day. The problem with an identity that was fixed on geographical boundaries was that it assumed that because the boundary was fixed, that everything else was static. What did one then do with the different systems of traditional leadership and local government? She felt that guidance should be taken from the Constitution. Local government was part of the three spheres of government and there was not a fourth sphere. Communities existed and dealt with the social contradictions of navigating their identity every day. The problem was when it was legislated and it ran the risk of negating the three spheres of government. Bantustans did not affirm the African identity, they disrupted and isolated them and family members were still affected by these fissures. Family and African identity had been disrupted by it.

Ms Jansen reiterated that culture should not be abolished and should be in line with human rights, democratic principles and legislative trends in the region. It was important that the Khoisan criteria for recognition take a restorative approach and that the Status Quo Reports could be a guiding document.
Decolonising efforts were still continuing, but the result should not be the loss of culture and identity.

Prof Cousins said that with respect to the question of authority there were three issues. The first was the geographic area it was exercised in. The second was in which institutions that authority was located and the third was the scope of the authority in terms of its powers, its roles and responsibilities and that this was the nub of the matter as an area of contestation, conflict and chaos. One could not have two authorities in the same area exercising power over the same things. The roles need to be delineated. Currently it was not made clear in the Bill and ambiguity was a recipe for conflict. Planning for development or land use was not appropriate roles for a traditional leader. Traditional leaders should rather focus on culture and identity.

Land and Accountability Research Centre (LARC) submission
Ms Nolundi Luwaya, LARC Deputy Director, said LARC had an explicit concern over power relations and the impact of laws and policy on rural women and men as they struggled for change. LARC was concerned that the Bill would be detrimental to the full recognition of ‘living’ customary law and the democratic rights of citizens of the former homelands. LARC asserted that the Bill entrenched colonial and apartheid geographic boundaries. These boundaries locked people into territorial jurisdictions used to justify unaccountable authority by traditional leaders. This resulted in the imposition of tribal identities and the suppression of countervailing forms of resubmission. These flaws were not sufficiently mitigated by the weak transformative mechanisms provided.

LARC called for the Bill to be rejected and proposed that the government use ‘living’ customary law, self identification and consensual legitimacy rather than colonial and apartheid tribal boundaries and that the Bill’s treatment of the Khoisan set a precedent for the recognition of customary identification through affiliation rather than territory.

Legal Resources Centre (LRC) submission
Ms Wilmien Wicomb, Constitutional Litigation Unit attorney of the LRC, said the LRC’s approach was on how to hold traditional leaders to account. The current legislative framework had failed the LRC’s clients and it believed that the recognition of the Khoisan was long overdue. The TLGFA was meant to give effect and expression to recognising customary law as a legal system equal to common law. However, while the TLGFA had allowed unelected headmen to be challenged in court, the Bill would take that ability away. It had to be recalled that while it was the expression of culture, customary law was also the basis for land and fishing rights.

There was no space for self definition and chieftainship was reduced to a rubber stamp role. The transitional provisions of Section 28 of the TGLFA called to keep and transform boundaries. The transitional provisions did not appear to have been a success and elected structures failed to hold traditional leaders to account. The Commission had all but fallen apart, with most of the members withdrawing and the Traditional Councils being engaged in continual litigation. The Commission on Traditional Leadership Disputes and Claims and its Provincial Committees lacked legitimacy with communities and there was no trust in the Commission’s deciding who the community’s leaders were. Amongst the LRC’s recommendations, was what was contained in the White Paper that said measures had to be taken to ensure that people in rural areas shape the character and form of the institution of traditional leaders at the local level and inform how it operated and held it accountable. This recommendation was made because the opposite was true of the current legislative framework.

Discussion
Mr E Mthethwa (ANC) said the LRC had been complaining that a lot had not been done in the past that needed to be corrected. What were the crucial items that needed to be looked at by the Committee?

Mr A Masondo (ANC) said some comments made on boundaries required some scrutiny. The OAU position was wise when it said that it would abide by colonial boundaries because not doing so would have resulted in numerous wars. In South Africa, there were more Swazi speakers than in Swaziland, more Tswana speakers than in Botswana while their chiefs resided across the border and this needed to be taken into account.

On Clause 25 of the Bill on the roles and responsibilities of traditional leaders, Mr Mileham said he wanted to hear the presenters input on the applicability of the Bill’s Schedule 3 where Item 7 amended Section 81 of the Municipal Finance Management Act (MFMA) to give traditional leaders a role to play on municipal councils. They were not the same as a councillor because they were not allowed to vote but could support motions and make an input.

Mr Mapulane said he wanted clarity from LARC on its statement that it welcomed some of the provisions of the Bill because it allowed self affiliation yet called for the Bill to be rejected. It had to be understood that the system was a negotiated compromise. Were there still tensions between local government and traditional leaders? Other post colonial societies had done away with traditional leaders while South Africa had taken a conscious decision to retain this. What was needed was for presenters to point out specific areas that need to be corrected by the legislators.

Ms Wicomb replied that the LRC’s recommendations included the need to discuss the transitional provisions and allow communities self identification. The TGLFA was closer than the Bill in this regard. People should be allowed to shape their customary institutions. The second recommendation was to allow the community to hold structures to account.

On Mr Masondo’s question, Ms Luwaya replied that LARC was not advising complete abandonment of boundaries. The real problem was that the boundaries as defined in the Bill were linked to the recognition and authority of traditional leaders and this should be uncoupled. The boundaries were contentious because there was no potential for people to opt in or out. One was locked in.

On Mr Mileham’s question, Ms Luwaya replied it was precisely because the roles were not clearly defined in the Bill. Clause 25 was not clear on the roles that were envisaged for traditional leader and the challenge was for Parliament to consider what that role should look like.

On welcoming certain parts and rejecting other parts of the Bill, Ms Luwaya welcomed the principle that Khoisan jurisdiction was determined over people rather than over territory and this was the closest to living customary law. However, the conditions that the Khoisan have to prove were so onerous it made the mechanism flawed and hence needed to return to the drawing board. LARC was concerned about the manner in which recognition was being given differently to the Khoisan and African traditional leader structures.

On Mr Masondo’s question, Ms Gasa pointed out that no one was suggesting to go back and to undo the boundaries. The issue of boundaries was complex. There was a need to interrogate what was actually meant by boundaries. The OAU response on boundaries went together with a process that looked at intra-boundaries in countries so that people could have a better post-colonial life. In Nigeria, at independence, there were three states but today they had 38 states. The continent was discussing how does where I am relate to how I recognise myself. How could this Bill be informed by the Constitution and move to include customary law which offered opportunities for geographic space and design.

Finance and Fiscal Commission (FFC) submission
Mr Bongani Khumalo, FFC Chairperson, said the function expansion required that the Minister must consult the FFC and give it 180 days to give its recommendations. The expansion would have implications across the three spheres of government because more institutions would have to be created across the three spheres of government and impact on future Divisions of Revenue. This brought into focus the challenge to Government of unfunded or underfunded mandates. The FFC was particularly interested in Part 3 of the Explanatory Memorandum on the financial implications of the Bill. He said he had spoken to the Director General who had indicated that there had been an oversight not to consult the FFC. They had agreed that this needed to be done urgently. There was very little information or certainty on the outcome of the whole process.

Dr Thembi Ntshakala, FFC programme manager: Intergovernmental Fiscal Relations, spoke to the objectives of the Bill, the traditional leaders per level and per province, the increase in the Department of Traditional Affairs spending between 2011/12 and 2014/15 and noted that the financial and fiscal implications of the objectives were not specified within the Bill. The Bill only noted that the provision of new structures and leadership positions for the Khoisan would have additional financial implications. It was the FFC’s submission that costing was key even before the Bill became law. As the Bill involved the expansion of the existing function, the FFC had to be consulted and the FFC had to be informed of its possible impact on future Divisions of Revenue for the different spheres of government; the financial implications of the Bill projected over at least three years and any possible financial liabilities or risks after that three year period. The FFC would engage with the Department to look at the financial and fiscal implications and make appropriate recommendations.

Discussion
Mr Mileham asked if the FFC had received a request for recommendations from the Minister? Has the FFC calculated what the projected costs would be? Would the FFC make recommendations on the disparity in remuneration benefits and was it prepared to make recommendations on this?

Mr Khumalo replied they had not received a formal request from the Minister. In conversation with the Director General, the DG had said that this was an oversight of the Department and would be corrected. The FFC had done work on traditional leaders and could use that as a basis for projected numbers. On the income disparity, he assumed there was a history to this and that it was not the mandate of the FFC but rather fell under the Remuneration of Public Office Bearers Act.

Mr Hlengwa said both LARC and the LRC had noted that Limpopo had not complied with the Act. What was the picture elsewhere on compliance with legislation?

Mr Francisco Mackenzie, Chairperson of the Western Cape Legislative Khoisan Council, asked whether the introduction of the Bill was on the basis of the five groups, the five bloodlines.

The Chairperson replied that as far as he knew it was based on the five.

Mr Mackenzie said he was an authentic aboriginal Khoisan. The five groups were the Nama, Koranna, Griqua, the San and the Cape Khoi. He said there was talk of speeding up the passage of the Bill yet the authentic voice of the Khoisan was missing from the discussions and consultations. There appeared to be historical amnesia on the land grab from the Khoisan. His organisation had been knocking on the door of the Department of Rural Development and Land Reform and government to speak with them but they did not want to speak with the authentic voice of the Khoisan. Why not?

He said the Bill spoke of property while the Khoisan spoke of land, the Bill spoke of traditional leaders while the Khoisan spoke of aboriginals. Unless the concepts and words in the Bill changed there would always be a voice outside as after all who were the first people to lose land? He called for the aboriginals who started the first wars of liberation, against D’Almeida of Portugal, to be respected and accepted. Who were the people who first lost land? Why did whites today have full constitutional rights while the Khoi had none? As he saw it the Constitution was all about white interests and black aspirations.

He said the Khoi had been grouped as coloured by the apartheid government, but the Khoi regarded themselves as Khoisan forever and coloured never. The current government was the same as the apartheid government in that respect. The Khoi were not ‘traditional’, they were ‘indigenous aboriginal’ and the Western Cape Khoi Council wanted the opportunity to speak as the aboriginal voice and make an input into the making of the Bill. The parliamentary buildings stood on sacred Khoisan ground according to aboriginal Khoisan rites. He pleaded that the Committee speak to the Khoisan people and called for the establishment of a concordat amongst all those that were not white. The Khoisan struggle predated any other struggle and it was painful when other people decided on the spirit and blood of his nation and he encouraged the Committee to reach out to the Western Cape Khoisan Council leadership.

The Chairperson confirmed that the Committee would be meeting with the Khoisan in the Western Cape.

Khomani San Bushmen submission
Ms Aishia Pinto, personal assistant to the late traditional leader Khomani San Bushmen leader, Mr Dawid Hermanus Kruiper, said the transitional arrangements were troublesome and should be scrapped. On customary law, she said every community had its own customary laws and provision should be made for that. The national immunity for traditional leaders was wrong and should be changed. On boundaries, she said the Kruiper family stretched across South Africa, Namibia and Botswana and wanted to come home. She asked how the Bill could talk of five houses when talking of land. She said it was asking for trouble when talking of Traditional Councils where a branch head served on the council. She said she would submit a written document for consideration.

Jan Arrie Royal House submission
Ms Belinda Petersen, of the Jan Arrie Royal House, which had the biggest land claim, asked why the Khoisan were not free as its people had gone through Dutch, British and apartheid revolutions. She said there could not be reconciliation without restitution. Why were the Khoisan left out of the 1913 land claim. She had asked the Minister to scrap the issue of race and his reply was that it could not be done because the law was based on Roman Dutch law. She said there were different fiscal budgets but financial cover was taken away from her queen, Queen Katrina. She asked where the equality was in that. The Bill would affect the Khoisan’s existence and livelihood and she would fight until their voices were heard. The Bill as it stood would result in many of the Khoisan chiefs going to jail. Could there rather not be restorative or corrective measures put in place? She said the Bill stripped the Khoisan naked and she would fight because the Khoisan could not be submissive, the Khoisan are here to stay.

Griqua Royal Authority Council submission
Mr Cornelius Lukas Kok, Vice Chairperson of the Griqua Royal Authority Council, said the Bill gave no recognition of kings and queens, only of chiefs and headmen which were in any case colonial titles. The Bill did not make provision for the Khoisan to get land which meant that there was no real authority as the Khoisan had no land or resources. They had made recommendations but no one was forced to accept these recommendations.

The Bill was not acceptable to the Khoisan people and he could not say anything good about the Bill. He said they might be politically free but they were not economically free. Government should not do things for them but rather with them.

Mr Mdakane said it appeared that the question of land was being reopened.

The meeting was adjourned.