Traditional and Khoi-San Leadership Bill [B23-2015]: public hearings Day 2

Meeting report

Traditional and Khoi-San Leadership Bill B 23 - 2015A
Chairperson's opening remarks
The Chairperson said the Traditional and Khoi-San Leadership Bill was quite comprehensive and a lot of research had been done already done. Prof Ben Cousins had been doing work on traditional leadership for the past thirty years. The Committee would hear views from the public and then formulate its views, and the NA and NCOP committees would hold joint public hearings and try to finalise the Bill as soon as possible. The kings and queens must account. On 16 February, the Committee would have another discussion with professors who had done research on traditional leadership.

Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL or the Commission) submission
Professor David Mosoma, Deputy Chairperson, CRL Commission, presented the submission. In relation to the level of recognition, he noted that clause 3(3)(a) of the Bill talks of the President recognising leaders of the community, but clause 5(1)(a) noted that recognition of the Khoi-San leaders was done by Premiers, which created a scenario of inferior and superior leadership. The Bill was silent on the role of traditional leaders as custodians of religion and language, as it only emphasised on culture. Wherever “culture” was reflected in the Bill, he suggested that a reference to religion and language should be inserted.

In relation to clause 36(1) (vii), he suggested that that a new subclause (dd) be inserted, reading “promoting and protecting the rights of cultural, religious and linguistic communities”. Emphasis should be given to cultural, linguistic and religious rights. While the Bill was inclusive in terms of the title, it did however  emphasise the Khoi-San community, so it was necessary to be vigilant to ensure that it was based on equality rather than exclusivity. The title of the Bill could create a perception of setting the two groups apart, which may have unintended consequences, and be a threat to unity and social cohesion. The attempts of the Bill to recognise the Khoi-San community were critical. However, it had to take into account that the Khoi-San community has been displaced, uprooted and dispersed from their cultural environment for a very long time. To give effect to this Bill, the Khoi-San community should be rebuilt and restored in line with the requirements of the Constitution. This brings to the fore the issue of diminished and diminishing heritage of communities and the urgent need to restore and promote, particularly for the Khoi-San community.

SALGA submission
The representative from SALGA commented only upon Schedule 3 of the Bill and in particular the proposed amended section 82 of the Local Government Municipal Structures Act (1998) (LGSMA). In regard to the definitions, SALGA suggested that the function presently assigned to the MEC for Local Government should be assigned to “the MEC responsible for local government functions”. This was because SALGA was aware of that the MEC for Local Government in North West was not responsible for traditional leaders. As currently worded,  section 81(2) of the LGMSA would mean the MEC responsible for local government would need to liaise with traditional councils and Khoi-San councils for the nomination of traditional and Khoi-San leaders to participate in municipal councils. In relation to amendments proposed for section 81(2) (g) of the LGMSA, it was important that the term of office for traditional leaders and municipal councils must coincide, to ensure traditional leaders can be inducted in the municipal council and municipal affairs simultaneously with newly elected councillors. Speaking to the amendments for section 81(4)(b),(d),(f), SALGA suggested the insertion of “any ruling of the Speaker of the municipal council/relevant municipality” to provide a discretion to the municipal Speaker on the structuring of meetings, and so that traditional leaders would have to abide by any ruling made by the municipal Speaker.

SALGA welcomed the defining roles of traditional leaders with additions such as traditional leaders to inform the relevant municipality of land allocations done in order for the municipality to be able to determine liability for rates and taxes for traditional areas, and that the traditional leaders were to cooperate with a municipality in the implementation of the Spatial Planning and Land Use Management Act as well as Spatial Development Framework. It was also appreciative that the actions, resolutions and plans of the municipality cannot be invalidated because of lack of participation of traditional leaders, provided the municipality took reasonable steps to ensure such participation.

Ntinga Ntaba Ka Ndoda submission
Mr Jara Mazibuko, Executive Director, Ntinga Ntaba Ka Ndoda (Ntinga), said that the preliminary submission drew the Committee’s attention to certain issue, concerns and proposals. The demands of the Khoi and San as the first people of the territory now known today as South Africa were legitimate, just and rational. The Bill's mere recognition of Khoi and San communities was,however, simply an inadequate response to their demands. Ntinga rather argued for an alternative law and other measures to fully address the social, political, cultural, heritage, spiritual and economic reparations of the first peoples of this country. The resolution of the demands of the first peoples of this country needs urgent attention and must be addressed in an inclusive way. By imposing chieftains' rule in the former bantustans and extending significant powers to these tribal leaders, the Bill was, in Mr Mazibuko's view, retribalising the country, which was at odds with both the Constitution and the ever evolving customary practices, practices and demands of the majority of rural dwellers across the country. The Bill must be substantially amended to create a new dispensation that fundamentally departs from the oppressive, tribalising, discriminatory and unconstitutional legacy of imposed tribal chiefs, structures and systems inherited from apartheid and colonialism. It would have to create a new post-apartheid dispensation of rural democracy in line with the Constitution of the country and the living, ever evolving customary practices of the overwhelming majority of rural dwellers of our country.

He asked that the Committee must take note that the demands of the Khoi and San were not separate from the needs, interests and demands of all indigenous people of the continent and the country. Genocide, apartheid and colonialism stripped the Khoi, San and other indigenous Africans of their humanity, dignity and pride as a people. The post-apartheid dispensation had not yet addressed these holocausts, as people remain humiliated, oppressed and exploited. The Khoi and San were not necessarily exclusive of and separate from other indigenous people of this country, as evidenced by the fact that 30% of the beautiful click sounds found in IsiXhosa, and to a lesser extent seSotho, siSwati and IsiZulu, confirmed that the blood of the Khoi and San coursed through the veins of all other indigenous Africans of the country, and their language, culture and utterances of them as the first people still thrived. 

Discussion
Mr K Mileham (DA) asked about SALGA's experience with the incorporation of traditional leaders in municipal councils. He had served on a municipal council for three years, with 24 traditional leaders, but none of them ever opened their mouths. He asked how traditional leaders differ from religious and business leaders.

Mr Mileham commented that Ntinga;s approach seemed to suggest a new customary law by allowing communities to have or be ruled by their own civil organisations and leaders. He wondered if allowing bottom-up structures was not creating another sphere of government, and another layer of bureaucracy.

Mr M Hlengwa (IFP) agreed with CRL that emphasising the word “Khoi-San” does not do justice to what the Bill intended, and asked CRL what alternative suggestions it might propose. He asked why SALGA had emphasised that decisions of the municipality cannot be invalidated by non-participation of traditional leaders and asked if there were any incidences of this happening before.

Mr E Mthethwa (ANC) asked if there was anywhere where the Spatial Planning and Land Use Management Act was being put into practical effect. 

Mr M Mohapi (ANC) asked Ntinga what informed their suggestion of alternative laws and other measures to fully address the social, political, cultural, heritage, spiritual and economic reparations of the first peoples of this country. To SALGA, he said that the custodian of standard rules and order of a municipality was the Speaker, and asked why SALGA kept emphasising “ruling of the Speaker” in the amendments to section 81(4)(b),(d) and (f).

Mr Mazibuko replied that in several judgements, the Constitutional Court had underlined the importance of what is called “living customary law” which means that customary law exists on the ground when people were practising it and it was ever-evolving. Alternative systems will not create another sphere of government, but it will be consistent with instances when government gives powers to ordinary people to act for themselves, which was seen in communal property associations, which were recognised in law, and school governing bodies and in the current Land Tenure Bill that would set up structures for governing communal land. The danger of having any lacunae outside a framework was that there could be excesses. In instances where there were civil structures, the system will allow democratic evolution from below. While the recognition of the Khoi and San was appropriate, grievances of the Khoi and San went beyond what the current Bill was asking for. Those grievances were in line with international law on aboriginal and original people. He suggested that South Africa had a blind spot in recognising the first peoples. The majority of black people even struggled to acknowledge the first status people of the Khoi and the San, and this must be dealt with. This Bill was not the right way to address the wider issues.

Professor Mosoma said that the final version of the Bill must bear a name that was inclusive and integrated. This was a caution and not a criticism.

The Chairperson said the present name of the Bill implied that it would be dealing and establishing structures dealing with traditional leadership and the Khoi-San. Presenters on the previous day talked of opting out and in of the Bill. Some of the traditional leaders were doing a good job. Rather than doing away with traditional leadership, this Bill was trying to deal with the democratisation of traditional leadership. He asked Professor Mosoma to comment on this viewpoint.

Professor Mosoma replied that from his perspective, the Bill set the two groups apart. It presupposed that the Khoi were not traditional; for if they had been so regarded, then this Bill would have been given a name along with the lines of the Traditional Leaders Bill. CRL appreciated that the Committee was dealing with those excluded, so the Bill’s name must embody something that does not separate the two groups, strives to be inclusive and takes everybody into account.

The SALGA representative said that traditional leaders who had been capacitated and inducted made meaningful contributions and gave proper representation of the constituencies they represent. In KwaZulu Natal, traditional leaders have made meaningful participation in land use spatial patterns, to address infrastructure development. In regard to the land claims, beneficiaries were assisted by traditional leaders in some districts in KwaZulu Natal. Traditional leaders were not another sphere of government. Municipalities were created within the jurisdiction of traditional councils. Municipalities had various forms of public participation and relevant stakeholders, in line with what the municipality wants to do that affects a particular set of people. When a municipality attempted to pass a by-law, this could not be done without the consent and participation of traditional leadership, if there was a traditional council in the area. If the traditional leadership does not concede to the by law, nothing further would be done. Traditional leadership must cooperate with municipalities in spatial land use, because there were instances where a municipality wants to proclaim a township. The challenge was that most times, traditional leadership did not agree with the vision and the goals of the municipality, especially migration from being a grant-reliant municipality to a financially sustainable municipality. In regard to amendments on municipal rules and orders that guided participation in municipal affairs, there were instances where the Speaker would give a ruling after having been informed by the rules and orders, but he had noted one instance where a council had asked to go to caucus, but the Speaker ruled that this would happen only for parties that wanted it. One traditional leader objected, as he did not belong to any of the parties. The amendments emphasising “rulings of the Speaker” were necessary to safeguard the powers of the municipal council as well as the rules and standing orders of municipal councils.

Ms T Wana (ANC) said traditional leaders who were Khoi know their status and origin. In the Eastern Cape, kings only and not chief received benefits such as cars. In KwaZulu Natal, there was a king’s budget. Ntinga did not cover the history of the Bathembu. SALGA’s suggestions were silent on specific powers of traditional leadership. There was one king who was serving under the laws of 1985. Chiefs were not imposed by colonialism only, as chiefs existed before then, protecting their own land.

Mr C Mathepe (DA) said SALGA knew there was a stand-off between councils and traditional leaders. He asked how SALGA was going to resolve it, and he asked how by laws were going to be introduced.

Mr M Mapulane (ANC) said Ntinga recommended that Parliament institute an inquiry into the violation of rights by traditional leaders. He asked if existing bodies such as South African Human Rights Commission (SAHRC) should not perform this task, or whether it lacked the necessary legislative competency to undertake this task. He did not want to undermine this point, as there were indeed rights violations. Some of the puppet chiefs were put in place by colonial and apartheid masters and were responsible for untold violations to the people. The country had been through a process with the Truth and Reconciliation Commission that sought to undo some of the things done by the apartheid system. Some things were not addressed. For instance the judiciary never appeared in the TRC. Parliament must not follow a process that will open old wounds and take the country backwards. He suggested that it must focus on the current violations presented to current bodies such as the SAHRC and the judiciary.

The Chairperson said if it was correctly predicted, 70% of the population will be in urban areas by 2030 ,as people migrated daily to Cape Town, Durban and Johannesburg. Urban suburbs do not have traditional leadership. Some of the areas with chiefs would be largely abandoned, with only young pre-school or schoolgoing children, and aged persons. If the customary law was distorted again, as it had been 300 years ago with colonisation, South Africa may end up perpetuating something that in fact did not exist any more.

Mr Mazibuko replied that next to the Xhosa King, there is a community who has taken a decision to opt out from the local chief. He has met with them. Section 5 of the TLGFA said that they could apply to the Premier. The danger was that no Premier had yet accepted opting out; there were discretionary powers  given to the Premier and the House of Traditional Leaders. This was a problem as there was no clear way of opting out. The issue of distorted customary law can be resolved by giving people a framework and allowing for flexibility. It was difficult to impose customary law, as people have changed over time. The best way was to affirm it would, in his view, be through statutory law, by creating a framework that will allow for options. A formal inquiry was needed to investigate abuses by chiefs because there were fresh wounds and grievances. He named a person who was killed last year on the instruction of a chief, by a mob, after he was accused of a certain crime. A private owner of land was dispossessed of this land last year by a chief who maintained that a woman cannot own land in her own name. In Limpopo and the North West, and in KwaZulu Natal, people were denied rights to bury their loved ones because they owed levies to traditional leaders. He maintained that people did often struggle to get proof of residence certificates from traditional leaders, because they owed levies. Without such certificates they were unable to get IDs and cannot access benefits from Department of Social Development. Evictions also happened. Some of the traditional chiefs were merely ruling as they liked, because the law was in their favour. The SAHRC and Public Protector had a role to play. The Public Protector investigated a case of an imposed headman, and found in the favour of the community, but the Public Protector’s results were not implemented. He maintained that the suggestion that Parliament must review was to allow Parliament to apprise itself properly of the real issues on the ground, and then pass laws having a direct effect on people. To call this “an inquiry” might not be entirely correct, but it was rather a question of Parliament finding out the facts. There was a hidden pain that need to be revealed to the public. He conceded that other chiefs did contribute to the positive development of the community. He felt that his suggestion would not displace the role of the SAHRC or Public Protector, but Parliament was in a prime position because it passed laws.

Professor Mosoma said that he heard the comments about going back to the roots and coming up with constructive proposals which will assist in nation building and social cohesion. This Bill was radical in the sense that what needed to be done will not only reinforce the past, but create a point of departure and a better future for everyone. The CRL vision does not create communities, but ensures that their culture, religion and linguistics are developed. In so doing, it will be addressing the devastating effects of apartheid. Culture, religion and language constitute the totality of human spirituality. This Bill was dealing with diminished heritage, and CRL understands its role in restorative and developmental mandate of the spirituality of the humans. CRL was willing to contribute in whatever way possible as it had the capacity to do so. Restoration first means bringing people together to make a society.

The SALGA representative replied that he was not in a position to comment on the kings' budget or that of traditional leaders. For those traditional leaders who had been identified by the MEC concerned, who were receiving a stipend, the municipality would not pay for their participation in council. Municipalities provide services in traditional areas and by-laws covered areas where services were provided. The by-laws existed before traditional leaders were incorporated into municipalities. If a credit policy had to be implemented, by-laws would come into play, and if any traditional leaders had not been consulted on or consented to the by-law, the municipality could not collect what was due.  Any stand-off between traditional leaders and municipalities was governed by the policy of public participation of a municipality which emanates from the Municipal Systems Act.

The Chairperson said he knew that SALGA worked very well with traditional leaders and church leaders. He asked if the Legal Resources Centre (LRC) representative had any comment.

A representative from the LRC responded that there were some complex issues. One of the points was the possible distortion of customary law, and deciding upon the status of  customary law. The Constitutional Court has laid down principles on this matter which the LRC could share with the Committee.

The Chairperson said that Members had important decisions to make and their work would have to be sound. She welcomed any help that the LRC could give and suggested that documentation be forwarded to the Committee Secretary. The Speaker had appointed a body  to look at the impact of laws passed since 1994, under the leadership of the former Deputy President, and it will be interesting to see its results.

Mr Hennie van Wyk, Paramount Chief, Gora Chou Qua Tribe, said the political system of this country was a foreign concept that never existed in Africa. Indigenous people were not mists of the past and had to be respected, particularly since they had been unfortunate victims of intolerance and racism. The most potent weapon of the oppressor was the mind of the oppressor, according to Steve Biko. There must be an acknowledgment of the Khoi and Bushman. Nobody was both a Bushman and a Khoi. The Khoi were not allowed to maintain their racial identity, as they were classified as coloureds. While post 1994 dealt away with racial classifications, the Khoi and Bushman tribes were still considered Bushman, but their culture was not recognised. He understood that institutions such as CRL and SAHRC, Commission for Gender Equality and Public Protector were to strengthen the roots of democracy. The institutions had, however, become institutions that listened to the NGOs and NPOs and did not act as the voice of the customary people. Those institutions needed to remember that NGOs cannot speak on behalf of the Khoi and Bushman as indigenous. The Khoi and Bushman need a declaration as “indigenous” people and not as “traditional” people. The customary people needed to be respected. He was proud of President Zuma who was a cultural person with the greatest respect for the King of KwaZulu Natal. Members were accountable to the people. South Africa was a signatory to the UN Declaration on indigenous people and the International Labour Organisation convention and was participating on international platforms talking of public participation. He believed that what was happening in Cape Town does not reflect the vision of the Constitution, of building one nation. Instead there were commercial centres in the inner city, surrounded by white domination, and the outskirts still housing the poor people to enrich the inner city. Traditional leaders wanted to determine what the city will look in 50 years. Traditional leaders can contribute to town planning, major and minor infrastructure development. He does not agree with land reform, but land restitution. There were remains of Khoi and Bushman in museums and this was very sacred to them, and they must be removed. He believed there must be a department to deal with Khoi matters. An inter-ministerial committee needed to be set up to engage with the leadership of the Khoi, and to address any human rights violations, in order to really get participation. There was a groundswell amongst the Khoi around the country, and in time it was likely to set up a defence unit. He cautioned that if their grievances were not heard, the Khoi were prepared to go to civil war rather than continue to participate in a mere talk shop. 

Mr Cecil le Fleur, Chairperson, Griqua National Conference, said the Conference supports the adoption of the Bill, but did not want the promulgation of a Bill that will not fully the needs of the Griqua people. The Conference will continue engaging with the government on different platforms across the country that will make a real difference in the life of the Khoi and San people. He was hopeful the government would listen to the Khoi and San people, and come up with a Bill that will satisfy the needs of the San people. The Khoi and San people had been waiting to be accommodated for many years, starting in 1995 at the Parliament building and their issues had been aired at the UN meetings three times without success. In 1997, the SA government promised to recognise the Griqua people, constitutionally, at the United Nations. 21 years later, the Griqua were still not yet accommodated. The traditional leaders enjoyed privileges under an Act of Parliament, yet the Khoi and San were still knocking on the door without success. He distanced himself from entering a civil war, but understood that this utterance emanated from frustration. He urged Parliament to speed up the process on the affairs of the Khoi. The Khoi and San were not happy with the term “traditional leaders”, but wanted to be called “indigenous”. The UN Convention protected the rights of minority indigenous people and this could only be done if an Act to recognise them was in place. Historically there was a difference between Khoi and Bushman on one hand, and traditional leaders on the other hand. There must be a different Bill addressing traditional leaders and these tribes. He finally asked when the public hearings on the Bill would be held.

Ms Nomboniso Jara, Independent Researcher, said it was important for the Committee to have an inter-ministerial briefing that looks at cross cutting issues that have an impact on this Bill – for instance, how land, agriculture, culture and traditional leadership interacted. People would self-identify as Khoi and San. It was very prudent for the Committee to look on land claims beyond pre 1915. The Committee may also wish to uncouple the Bill and look to issues that deal with traditional leadership and replace the TLGFA, and then deal with the Khoi and San independently. She suggested that trying to incorporate all together was a shaky foundation. This Committee may also wish to call the Department of Rural Development to talk on exceptions in relation to land claims. The Committee needed to understand what the Bill intended to do and whether, years down the line, it will be still relevant. The Committee needs to take time to deliberate the implications of this Bill so that it does not end up entrenching what it seeks to resolve.

Mr Mapulane said South Africa is a democratic state, elected by the people, and suggested that it was wrong for Mr van Wyk to talk of a civil war in this august Parliament, and therefore asked the Chairperson to ask Mr van Wyk to withdraw his comments and apologise to the public and Parliament. He understood the frustrations, but considered it out of order to threaten a civil war.  August House. He asked the Chairperson to ask Mr van Wyk to withdraw his words even though he understand that there was a lot of frustration.

The Chairperson responded that Mr le Fleur has already condemned the statement, which seemed to have been a slip of the tongue, and the matter could be regarded as closed.

Mr Mapulane responded that if the statement was not formally withdrawn,the Committee would effectively have recorded a threat of a civil war.

The Chairperson reiterated that this was seen as a slip of the tongue. This country was not preparing for any war. It was engaging with the Bill. Emotions would run high because of the historical grievances.

Mr van Wyk said he had been part of the liberation struggle. Many people died and had committed their lives for the liberation of this country. The Khoi wanted to speak, but if the people were not willing to listen, the Khoi were ready for formal military action.

The Chairperson said that Mr van Wyk was making a mistake. He reminded him that all indigenous  people had grievances, and all South Africans could start to speak in this way. Mr van Wyk should rather come up with proposals to improve the Bill, not make remarks that were uncalled for. The Committee would regard Mr van Wyk as having withdrawn the comment.

Mr van Wyk said he was a loyal member of the ANC, not a blind one, but a critical one. The Khoi were not consulted in the writing of the Bill. Traditional leadership and Khoi must be addressed as totally separate concepts and principles. He rejects the totality of the Bill because accepting it was tantamount to selling his birthright for a few crumbs from the table.  He was prepared to stand on his feet and die rather than live in submission.

The Chairperson said the Committee must understand the frustrations and would try to address all issues raised. All communities were indigenous and the Committee would hear various views, and the Members must understand the context and not take issues out of that context. The legal team will assist in finalising the Bill. The Bill was complex one but this participation, in writing and by oral submissions, would help in finalising the Bill.

The meeting was adjourned