The Committee met to hear the petition by the Provincial House of Traditional Leaders - Western Cape (PHTL-WC) on the Petition on the alleged failure by the Western Cape Government to recognize a House of Traditional Leaders in the Western Cape Province. The PHTL-WC, presenting its petition, noted that it was the umbrella body representing the traditional authorities, traditional councils and traditional houses in their various communities, mainly in mission stations. It claimed to be established under customary law, and to be an organ of state in terms of the Constitution and the Cape Mission Stations and Communal Reserves (Amendment) Act No. 12 of 1929; Municipal Structures Act 117 of 1998 and Traditional Leadership and Governance Framework Act 2003. Claiming to be a Chapter 12 institution, it thus claimed to be the only institution entitled to deal with traditional matters in terms of section 212(2) of the SA Constitution. It was asking the Committee to “protect it against racist and vicious insults of lawyers” and representatives of the Provincial Government that were not recognising it. Although it had requested the Court for recognition, the Court had ruled that there was no enabling legislation for its existence at this point. The petitioners were claiming that national or provincial government “could” provide that a provincial house be formally established in a province, and this was what it essentially was requesting this Committee to arrange. The PHTL-WC held that the Premier or the WCPG could not address matters of tradition either at provincial or local level, because that was a function assigned to traditional authorities. There had been no consultation with the PHTL-WC on any legislation or other matters that had an impact on traditional communities of the WC.
Although the Western Cape Provincial Government (WCPG) was not present at the meeting, having indicated that the Premier and MECs for Cooperative Governance and Arts and Culture did not intend to make a presentation, it had attempted to make some representations, which the Committee could not consider because at this stage they were not presented formally. However, its contention was that the PHTL-WC, not having been formally established through legislation in the province, because there were no recognised traditional leaders as yet in the province, did not have a valid claim.
Contralesa gave its input on the petition. Contralesa had tried repeatedly to engage with the current Premier in the Western Cape but this province did not have a provincial Department of Traditional Leadership. It was concerned that there were recognised royal families, but the Khoi and San were still being marginalized.
The Deputy Minister of Cooperative Governance and Traditional Affairs briefed the Committee on the provisions of Chapter 12 of the Constitution and set out the history and background to traditional leadership challenges. He highlighted the Traditional Leadership and Governance Framework Act and regulations. Chapter 2 recognised traditional leadership under certain conditions, including established systems of traditional leadership and recognition by kings or ruling parties. The Nhlapo Commission had been established precisely to consider contestations for leadership. He highlighted that there were clear provisions in the Act as to how traditional leadership was established and described the hierarchy and requirements. There had been 29 claims in the Western Cape, but none from the Khoi or San. The Commission ruled that none of those claims were valid for various reasons that were outlined. That being the case, the Western Cape did not have the minimum number of traditional communities that would enable a provincial House to be formed. The situation in Gauteng was similar but there, because traditional leaders had been able to be recognised, but were too few in number to justify the setting up of a House, they served instead in the National House of Traditional Leadership. The introduction of the Traditional and Khoi San Leadership Bill of 2015 was intended to assist the situation,but it had not yet been passed.
Members asked for clarity on cultural practices in the Western Cape and which cultural communities claimed to own those, whether there was any participation in municipal councils, why the law to recognise Khoi and San communities had been so long in preparation, why there was apparent discrepancy in the way the different groups were treated, and whether the Commission had investigated whether communities recognised those who claimed to be traditional leaders. They cited parallels with union leadership which did not recognise provincial divisions, but the Minister emphasised that the law was clear on recognition by royal houses and this had not been established. Members asked how the PHTLs could have a CEO and structures if they did not have any legal basis, and why it was continuing to use a logo of the provincial government although it had been asked not to.
The Parliamentary Legal Advisors gave a short presentation emphasising that nothing could be done by any legislature unless it had been properly constituted with empowering legislation. Chapter 12 of the Constitution covered the issues addressed in the petition, and it was not correct to say that there was a vacuum in recognising traditional leadership in the Western Cape. She highlighted that the petition seemed to have conflated and confused the issue of recognition by the communities, and administrative recognition as dealt with by the Nhlapo Commission, which had rejected the claims. The Traditional and Khoi San Leadership Bill was attempting to resolve issue raised within the petition and should clarify misinterpretations in the existing legal framework, including whether a traditional leadership grouping could be recognised in more than one province.
After the Chairperson opened the meeting, Mr G Michalakis (DA, Free State) said that he had spoken to the Chairperson previously about the early time at which meetings were scheduled, and asked that the Committee have some time to discuss certain legal elements of the petition before it was presented.
The Chairperson agreed indeed that it was unfortunate that some Members had not arrived yet, but noted that there should not be challenges in hearing the petition.
Mr Michalakis interjected that that was exactly the reason he was asking for a short Committee caucus; he wanted to know what the Chairperson had covered in his own assessment as he wanted to be on the same page as the Chairperson in giving the petitioners a fair hearing.
The Chairperson reiterated that he had prepared as best as possible, and he did not recall that the Committee had on any previous occasion, prior to hearing a petition, had a full discussion on its content and he did not agree that this would be appropriate now.
Mr Michalakis interjected that he was objecting to the Chairperson’s view that no prior discussion was needed, because the Committee's task was to give relief to the petitioners. If there was still a Bill before Parliament that possibly could offer some relief for the petitioners, or court judgments that might compromise the proceedings, it would be the Committee’s duty to inform the petitioners. He would not like to hear the petitioners now, only to discover later that the Committee might end up having to tell them that the Committee could not help because of other extraneous circumstances and he would like that aspect discussed to avoid this.
The Chairperson said it was unfortunate but the Committee could not pre-empt the outcome of the hearing and therefore it had to proceed. Mr Michalakis knew that the procedure was that a hearing should happen, for the Committee to ask any questions of clarity and only then for the Committee to deliberate on its own, without the petitioners being present.
The Chairperson briefly introduced the procedure to the petitioners and cautioned them to present all the facts accurately.
Provincial House of Traditional Leaders- Western Cape (PHTL-WC) petition
Mr Christo Frantz, Chief Executive Officer, Provincial House of Traditional Leaders, asked guidance on how to proceed the Chairperson wished him to proceed.
The Chairperson said that Mr Frantz now had the opportunity to present his petition, so that the Committee could ask clarity-seeking questions if there were any. If there were any questions for provincial and national government then the petitioner could present those as part of his petition.
Mr Frantz said that the PHTL-WC was honoured to be presenting its case to the Committee. The PHTL-WC was the umbrella body representing the traditional authorities, traditional councils and traditional houses in their various communities, mainly in mission stations. The PHTL-WC was a chapter 12 institution, which was the only constituted institution that could deal with traditional matters or issues related to traditional matters at provincial level, in this case in the WC, in terms of article 212(2) of the SA Constitution.
Since time immemorial the PHTL-WC had suffered under the racist insults of that regime, and this persisted to date. It could never rely on the courts as they had become places for the rich that could afford expensive lawyers. The PHTL-WC was pleading with the Committee to protect it against the racist and vicious insults of the lawyers or representatives and demanded the respect afforded the PHTL-WC by the constitutional democracy in South Africa (SA). It was also asking that the Committee should protect its rights as entrenched in the Constitution.
It was asking for the PHTL-WC traditional authorities and provincial traditional houses of the WC to be recognised and able to function properly, and this related to the institution itself, its status and role for traditional leaders. It was asking that the courts apply customary law when hearing their cases as guaranteed by section 211 (1) in Chapter 12 of the Constitution. The point of the argument was that there should be a proper establishment and recognition of a Provincial House of Traditional leadership in the Western Cape.
Mr Frantz indicated that the Western Cape Provincial Government (WCPG) was contending that the PHTL-WC did not exist, because there needed to be legislation before recognition of existence. That legislation should be an Act that would determine who could serve on the PHTL-WC, for how long and what their functions would be.
The PHTL-WC took a different view. It believed that there was customary common law that determined who could serve on the PHTL-WC, for how long, and their functions, and believed that in fact the local traditional authorities could make those determinations.
The matter had been taken to court, which decided that before formal recognition, there should be a law passed. The PHTL-WC believed that there was a law already. They pointed out that the PHTL-WC and its traditional authorities performed a function in terms of Chapter 12 of the Constitution. In addition, it pointed to the Cape Mission Stations and Communal Reserves (Amendment) Act No. 12 of 1929; Municipal Structures Act 117 of 1998 and Traditional Leadership and Governance Framework Act 2003. All of these indicated that the PHTL-WC was an organ of state, in terms of the definition of organ of state in Article 239, Chapter 14 of the General Provisions of the Constitution.
The WCPG had disputed the PHTL-WC status, power and function. It had failed, under both the Interim and the Final Constitution, to fulfil its constitutional obligation in that regard. Mr Frantz said that if there was a dispute between organs of state at provincial level; only the Constitution could be used in resolving that dispute. The WCPG had to resolve that dispute in terms of section 167 (4), set out in Chapter 8 of the Constitution. However, it had to date used magistrates and other courts to avoid going to the Constitutional Court where the issue of recognition of the PHTL-WC could be resolved.
He reminded Members that the Premier of each province was obliged to establish a provincial house of traditional leadership in terms of section 183 of the Provincial House of Traditional Leaders Act, within six months appointment, but the WCPG had failed to do this.
The PHTL-WC was particularly concerned that the Premier and/or the WCPG could not address matters of tradition, either at provincial or local level, as that was a function assigned to traditional authorities. Moreover there had been no consultation with the PHTL-WC on any legislation or other matters that had an impact on traditional communities of the WC.
Mr Frantz asserted that common law provided that if an applicant or respondent had not been represented at the High Court, whatever judgment had been handed down could be deemed null and void, or of no consequence, because of the “fair hearing” doctrine. The Premier's stance of undermining the authority of traditional leadership by horizontally applying the Bill of Rights was deemed as discrimination. Other members of other traditional houses had been accepted and established as legislated, so that the fact that the members of the PHTL-WC were not accepted was discriminatory. He noted that the WCPG had to consult the PHTL-WC, as provided for, in a similar manner as other provincial houses had been consulted and accepted prior to the establishing Act coming into force.
The Bill of Rights accorded equal rights and protection to every citizen. It was clear to the PHTL-WC that the WCPG was planning to disseminate the idea that the Khoi and San black communities in the WC were inferior to other ethnic groups with their traditional houses in other provinces of SA.
Contralesa presentation on the petition on the alleged failure by the Western Cape Government to recognize a House of Traditional Leaders in the Western Cape Province
Mr Aaron Messelaar, Chairperson, Contralesa-WC, said that this organisation had two concerns about the WCPG and its Premier. He had tried repeatedly to engage the Premier on various occasions. Previous premiers of the WC had engaged with Contralesa-WC and other stakeholders regarding traditional leadership affairs in WC. The Western Cape was the only province without a Department of Traditional Affairs (DTA), since all traditional affairs were referred to the provincial Department of Arts and Culture (DAC). From 2009 to 2014, Contralesa had tried repeatedly, with no result, to engage with premier Patricia De Lille to get clarity on some issues. These included questions on what was to happen in regard to traditional affairs in the province.
Contralesa believed that the establishment of a PHTL in the WC would enable engagement with other royal families as well, since there were recognized royal families, but with the Khoi and San being marginalized. For example there was Prince Serau and some of the Zulu royal families were living in WC. Whilst the Khoi and San had engaged with other stakeholders, Contralesa felt strongly that there had to be a Department of Traditional Affairs (DTA) established in WC first.
The Chairperson cautioned Members that they should not at this stage be deliberating on the petition and allowed only questions seeking clarity to be put to the petitioner and other stakeholders.
Mr D Ximbi (ANC: Western Cape) asked whether, during the PHTL-WC engagements with the WCPG, it had ever enquired as to the ownership of the cultural practices observed by the various groups of cultural communities in the province. If there had been no traditional leadership in the province, from its establishment as a colony in the early 1800s, then he wanted more information on whether such practices and affairs had been managed by provincial Government or local government and municipalities.
Mr Frantz replied that he had been informed by the traditional leadership, in the person of the Paramount Chief of the Khoi and San, that the PHTL-WC had engaged the WCPG in 1981 and in 1993. The province had said in its response that there were no Khoi and San traditions in the WC. There had been no traditional communities in the province and the WCPG would only engage the PHTL-WC on the basis of culture. It was suggested that the Khoi and San had to establish a cultural council instead of a traditional house. The non-recognition by the WCPG also affected the PHTL-WC land claims, where there was a desire to hold the land in trust. The WCPG had told the PHTL-WC that it would not transfer the land to the Traditional House unless it formed a Community Property Association (CPA).
Mr Messelaar added that the previous Premier had engaged with Contralesa, although the current premier had refused to do this since 2009, and this refusal related also to the land claims. The WCPG recognized cultural practices and their communities in the province, but did not want to recognise the custodians of these cultures.
Mr Michalakis asked whether Mr Frantz had received a letter on 26 March 2015 from the Member of the Executive Council (MEC) for Local Government, Environmental Affairs and Development Planning, Mr Anton Bredell. He wanted to refer the petitioner to SA's living constitution and wanted him to explain how he understood the provisions. He pointed out that national legislation could provide for a role for traditional leadership ,as an institution for local Government, on matters affecting local communities. He wondered what Mr Frantz understood by the provision calling for national legislation to be in place.
He asked also whether it had been explained to the PHTL-WC that the WCPG could not do anything unless there was enabling national legislation and, if so, what the response of the PHTL-WC had been.
Mr Frantz concurred that national legislation would enable a province to establish a traditional house, but there was also nothing in the Constitution that precluded a provincial government from establishing a traditional House. It had to be understood that all the current provincial traditional houses had been established by provisions in the interim Constitution. He started to say that the provision that read “could”....
The Chairperson interjected and asked Mr Frantz to be more precise as his repeated attempts to contextualise were making the Committee ask questions around the same issues.
Mr Frantz said that he had received a letter on 26 March 2015. The Court case between PHTL-WC and the WCPG had concluded that there did indeed need to be an enabling law. The case was not heard with the provisions of the common law doctrine, and that had been the basis of the approach by the PHTL-WC.
Mr Michalakis said Mr Frantz had explained matters. He was still not convinced that the PHTL-WC understood that there had to be an enabling national legislation, and so Parliament would have to take that first step to enable recognition by the WCPG.
Mr Frantz replied that he had been asked by the presiding judge during the court case why the PHTL-WC was charging the WCPG-WC, and not the National Government. He had replied that during the earlier engagements of 1981 and 1993 he had not been a Senior Traditional Leader (STL). However, whatever the judge said in his judgment, whatever Mr Frantz said in his defence, there remained the fact that the Constitution said that National or provincial Government “could” provide for the establishment of the traditional house. Therefore it was the Premier's choice to establish or not. The PHTL-WC wanted to know why it was treated differently to other ethnic groups of SA.
Mr Ximbi asked whether Contralesa or the PHTL-WC had mobilised after being denied recognition, to show the WCPG that indeed there was Khoi and San traditional leadership in the province? If the WCPG recognised the need for traditional leadership participation in municipal councils, then he wondered who would be the traditional leaders that would participate at those levels of local Government?
Mr Messelaar emphasised that the Premier of the WCPG was so unwilling to engage the PHTL-WC and Contralesa that she had referred the stakeholders in 2013 to Mr Ivan Meyer, who was the former MEC for Cultural Affairs and Sport. Recently she had referred the stakeholders to Ms Nomafrench Mbombo, who was the current MEC for Cultural Affairs and Sport. He repeated that sections 211 and 212 of the SA Constitution gave a clear indication and direction for the Premier to recognise institutions and traditional leaders in the province, which she had failed to do.
Ms T Wana (ANC: Eastern Cape) asked whether Mr Messelaar had taken that challenge to Contralesa nationally; and if so, what been the response from that institution.
Mr Messelaar said that the Contralesa National Executive Committee (NEC) had already deliberated on the matter in 2011 and 2012, but the WCPG governed the province according to its own rules, which only recognised cultural institutions and no traditional leadership.
Mr Michalakis said he would comment in passing....
The Chairperson interjected requesting Mr Michalakis to not comment, as Members were being asked only to put questions seeking clarity.
Mr Michalakis said he was rising on a point of order. He made the point that the Committee, petitioners and even departments should only interpret the Constitution holistically and in context, not take selected parts only.
The Chairperson asked for clarity on how Mr Frantz was said to be the CEO of an institution that Mr Frantz himself had said did not exist.
Mr Frantz said that the PHTL-WC existed in terms of customary law. The Premier maintained that the PHTL-WC did not exist in the Roman-Dutch legal system, as there was no enabling legislation for its existence.
The Chairperson repeated that the question was how Mr Frantz had become a CEO of a non-existent institution.
Mr Frantz replied that other people were disputing the PHTL-WC’s constitutional existence, powers and function whereas the PHTL-WC did not dispute its own existence.
The Chairperson surmised that Mr Frantz was seemingly saying that the PHTL-WC existed outside of the law.
Mr Frantz maintained his earlier point that the PHTL-WC was established according to customary law and the framework of the Constitution.
The Chairperson said that there had been a high court ruling on the subject matter of the petition,so he asked what exactly was the expectation of the PHTL-WC, and whether it was expecting the Committee to set aside the ruling?
Mr Frantz said that the PHTL-WC understood the ruling, but the enabling law, over and above the customary and common law which established the PHTL-WC, was something that needed to be developed.
The Chairperson interjected that the PHTL-WC seemed to understand that the Committee could not set aside a court ruling.
Mr Frantz maintained that a ruling by the court would assist the PHTL-WC In its insistence that there should be an enabling law developed. The customary law still stood.
The Chairperson said that the petition had been directed to the WCPG and the province had been invited previously, but the Premier had requested a rescheduling because of the short notice. The meeting had been rescheduled. The WCPG had, in the letter requesting a rescheduling, “sneaked in” representations which sought to respond to the petition. The Management Committee (MANCO) had not entertained those presentations and had simply rescheduled the meeting. It had requested the WCPG to appear before the Committee on the day of the hearing.
On 16 May 2016 the WCPG had responded, in writing, that the MECs for Cooperative Governance and Traditional Affairs (COGTA) and for Arts and Culture, as well as the Premier, declined to appear before the Committee. Manco had approached Parliaments Legal Unit (PLU) to look into that matter.
Mr Michalakis said that whilst the PLU was looking into the matter of the refusal by the WCPG to attend the hearing; could it also establish as to whether in the absence of enabling national legislation the WCPG were a party to the petition.
The Chairperson said that issues regarding the reasoning of the WCPG failing to attend the hearing would be dealt with during Committee deliberations on the petition by the PHTL-WC. He then pleaded with the Committee to proceed with the hearing without deliberating the refusal.
Ms Wana said that the WCPG letter declining attendance at the hearing by the WCPG did not articulate any other grounds for not appearing, in terms of national legislation.
Department of Cooperative Governance and Traditional Affairs (COGTA) input
Mr Obed Bapela, Deputy Minister, COGTA, said that COGTA would give a background of where it was currently on the issue, but invited the Committee to call COGTA back later if it wanted more clarity.
He said that Chapter 12 of the Constitution had quite been descriptive in dealing with traditional leadership. Contrary to assertions, he said that there was in fact national legislation on traditional leadership and related matters, and that was the Traditional Leadership and Governance Framework Act (TLGFA) Act 41 of 2003. There were also regulations.
Chapter 2 of this Act dealt with traditional communities and traditional councils, and section 2 recognised traditional communities, so that if there was an established system of traditional leadership in a particular community, it could be recognised. The Department would explain why there had not been a House of Traditional Leaders in the Western Cape to date – in fact neither WC nor Gauteng had such House.
Mr Abram Sithole, Acting Director-General, Department of Traditional Affairs, noted that the TLGFA made provision for the establishment of the Commission on Traditional Leadership Disputes and Claims. The Commission (generally known as the Nhlapo Commission) had been established and on its conclusion, it was followed by another, whose term had officially ended in 2016, but which was then extended to December 2017. The purpose of the Commission was to investigate claims and disputes on traditional leadership.
The TLGFA made a clear provision of how one qualified to be recognised as a traditional leader. The definition of traditional leaders, starting from a senior headman or headwoman (STL), Principal Traditional Leader (PTL) and a King were clearly provided for. Before traditional leadership could be recognised, there had to be a recognised community led by a traditional leader. In the Western Cape, the most recent Commission on Traditional Leadership Disputes and Claims had received 29 claims of Traditional Leadership. Two claims had been of Kingship, one had been of headman and the rest had been STL. After investigating all the claims the Commission had established that the claimants had not necessarily been traditional leaders or Kings, although they did practise their customs and cultures, with some presiding over initiation schools. Others were mediators within their immediate communities, but this did not qualify those individuals to be traditional leaders in terms of the Act. The report of the Commission further indicated that most of the claimants had originally come from other provinces and ultimately settled in the WC, where they were organised into communities. However, they had not been traditional leaders in their place of origin. For this reason, the Commission had recommended that the claims be declined. The decision had been communicated to all those claimants.
There was a potential challenge of terminology in SA's discourse as the term “chief” could be confusing, when it was used in varying situations with different meanings. It could be used by STLs referring to themselves in first person, and there was a colloquial use of the term as well.
In the provision for recognition of traditional leadership, an individual also had to belong to a royal family so that it was this institution which recognised the leader first.
Mr Sithole then spoke to the petition. There was a national HTL. Then there were provincial HTLs in seven provinces. In Gauteng there were only two recognised STLs, and because there was no Traditional House, those two STLs served in the NHTL since the National House of Traditional Leaders Act (NHTLA) No 22 of 2009 provided that in a case there was no PHTL, but there were recognised STLs who were Chairpersons of traditional councils, they were automatically deemed to be members of the NHTL.
The Western Cape did not have any recognised STLs, to the best of the knowledge of the Department, and as confirmed by the recent Commission's findings. That was why there was no legislation establishing a PHTL. However, he repeated that the NHTLA already provided that where there were not sufficient STLs in number to establish a provincial HTL, any recognised STLs could still serve in the NHTL.
COGTA had introduced the Traditional and Khoi San Leadership Bill, 2015. The Department was also pleading with Parliament to accelerate the processing of that Bill, because once it had been enacted, this could well influence the WCPG to then promulgate a legislation that would cover traditional leadership within the province.
Deputy Minister Mr Bapela said there had been very few claims from the Khoi and San during the sitting of the Commission on Traditional Leadership Disputes and Claims. The Bill was intended to close the gap around recognising Khoi and San traditional communities. Immediately after the enactment of the Traditional and Khoi and San Leadership Act, an advisory council would be established, which would then process all claims of lineage and royalty from Khoi and San communities. COGTA believed that indeed in the WC, Northern Cape (NC), Eastern Cape (EC) and the Free State (FS), more STLs would emerge from the Khoi and San communities, and perhaps also in Gauteng. If so, then this might also lead to Gauteng being able to have a PHTL. It had prescribed that the minimum number to then establish a PHTL would be five traditional councils. He concluded that in the view of COGTA, there was opportunity being presented, in the Bill, for recognition of all traditional communities in the country.
Mr Michalakis said that giving recognition to traditional communities was part of SA's participatory democracy, provided that it happened within the appropriate legal framework. He asked whether the Commission on Traditional Leadership Disputes and Claims had been provincial or national? He further sought clarity on the fact that there were no recognised traditional leaders in the Western Cape, and asked whether in those circumstances it would be possible for the WCPG to establish a PHTL.
Mr Ximbi asked whose responsibility it was to recognise a traditional leader in a particular jurisdiction. Was it a Commission, a community or a Royal House? He also then asked what was the responsibility of traditional communities in the WC, seeing that they were not recognised.
Ms B Engelbrecht (DA, Gauteng) asked if Mr Frantz had received the letter of 26 March 2015 notifying him that his use of provincial Government logos was unlawful and had to stop immediately. If so, then she queried why, one month later, Mr Frantz had sent a letter through to the Committee that still was using the WCPG logo.
The Chairperson reminded Members that they should ask questions around the COGTA presentation.
Ms G Manopole (ANC, Northern Cape) noted that the WCPG had said that those claiming traditional leadership in the province had migrated to the province from other parts of the country. She wondered why then the WCPG could not use the Gauteng process, of recognising migrant traditional leadership as a benchmark. She asked whether, during the process of the Commission, it was raised that there had been movement of traditional communities and their leadership.
Ms Wana said that it was a pity that the Committee had never been briefed about the terms of reference of the Commission on Traditional Leadership Disputes and Claims. She was struggling to reconcile the issue of migrating traditional leaders, and why they should be limited to being traditional leaders within the boundaries of their homeland. She wondered how the Commission could dispute claims to the extent to stripping an individual of recognition by the Royal House, which was a starting point. She gave the example that a union leader in one province was not precluded from being a union leader in another province where s/he was attending a conference, because s/he was a leader and would be a leader across all provincial boundaries. The term ‘Chief’ being confusing was also a non-issue, because in rural areas there were different terminologies, including “inkosi”.
The Chairperson reminded Members again please to ask questions seeking clarity, not comment.
Deputy Minister Bapela replied that indeed the word ‘chief’ in English had its own connotations, so that at one point he had suggested to traditional leaders that it may be of benefit to use their vernacular prefixes such as : Kgosi, Inkosi, Morena and others. Mr Sithole had not been belittling anyone or being sarcastic but had been explaining the difficulties that this term brought into designations of traditional leadership.
The Nhlapo commission had had a claimant of the amaHlubi nation. Inkosi Langa had been arrested in KwaZulu Natal (KZN), his inheritance area, and had been sent to Robben Island. After his release, he was banished to a farm named Langa, which is where the Langa Township of Cape Town originated. Inkosi Langa had later returned to KZN. The amaHlubi nation had a recognised traditional house established in KZN but the amaHlubi then claimed to the Commission that Inkosi Langa had been a traditional leader in the WC. The Commission had dismissed the application on the basis of the already-established KZN recognised traditional house and community. Another claimant was one to the abaThembu Kingship although there was a recognised abaThembu monarch in the Eastern Cape (EC). That claim had also been dismissed, along the same rationale as that of the amaHlubi claim. The Commission had gone further to say that the people that could have had a better claim for traditional leadership in the WC were in fact the Khoi and San because it had been established that they, historically, had inhabited the province before colonisation, and before provincial boundaries. Unfortunately no proper claims had come before the Commission from the WC Khoi and San communities. For that reason, the Commission had been unable to process any recognition for them. The Commission had been nationally-based but there had been provincial commissioners appointed to assist in the fast tracking of the work.
Mr Sithole emphasized the fact that the Commission could not establish dual leadership. The terms of reference of the Commission were set out in section 25 of the TLFGA. He wanted to speak to the position of the Gauteng STLs. One, originally, had been recognised as a STL in the North West, from the amaNdebele aLebelo. When the new provincial demarcations had been done, that leader ended up in Gauteng. The other STL was Nzunza Sokhulumi, who resided around Bronkhorstspruit towards Witbank. He had been recognised in Mpumalanga, but in a similar way, during demarcation, had then fallen under Gauteng. There were quite a number of unrecognised headman and headwomen in that province as well.
He emphasised that recognition of a traditional leadership started when there was a community practising particular cultures, who had particular customs which could be historically verified. That community had to then recognise a certain household or individual as their leadership. A traditional council would need to govern the community in terms of their customs and traditions. The amaHlubi were unable to establish their claim in the Western Cape, because the Langa area had not been inhabited by that group only, but by various ethnic groups.
Mr Ximbi said he accepted the responses, but he was concerned as to whether COGTA fully understood the history of SA. He hailed from the Eastern Cape, from the amaXesibe, which was a house under amaXhosa. EmaMpondomiseni had been given traditional leadership by Inkosi uJokazi. abaThembu had the traditional leadership inheritance from KZN. He wondered if the Commission had gone to investigate whether there were traditional communities who recognised those who claimed to be traditional leaders? Was COGTA saying that by virtue of non-recognition, the traditional communities in the WC could not then participate in democracy in the province?
Ms Wana said that the Nhlapo Commission indeed had assisted in resolving traditional disputes and claims. However, that did not mean that traditional communities had then ceased to exist. For example, the Khoi and San communities had already been in the Cape when settlers arrived. She wondered whose responsibility it was then to verify whether an inhabitant really belonged to what he claimed was his fatherland. She said that this was a very emotional subject.
The Chairperson asked why the Government had waited 22 years to promulgate a law which sought to recognise Khoi and San communities. He asked why it was seemingly so difficult for the traditional communities of the WC to be treated like other traditional communities across SA? For example, the baPedi originated from Thulare but had been divided into 13 recognised traditional houses by 2016.
Mr Sithole said that the division or creation of a new traditional leadership from an existing one came in different ways. He cited a hypothetical example. Person A might become a king and person B could be from the left hand House, and the King would then appoint Person B as a STL. The STL responsibilities would be to ensure that the left hand House functioned on par with the right hand House. There would be instances where the King's junior brother would move to a separate area and establish a separate traditional community. He would then come back to the King, and ask the King to establish him as a STL of that new traditional community. With the permission and recognition of the King, division of a traditional leadership was possible. However, it could not happen that an individual became a traditional leader based on popularity and without the consent of the Senior House. During the Commission's sittings, it had been established that the claimants of existing senior traditional houses had not sought permission from the senior houses where they had originated from and so were not recognised as STLs by those senior houses.
The Deputy Minister said that recognition of traditional leadership was really a process. He was glad the petitioners had brought the matter to Parliament, because some questions had been answered. He hoped that by the third or fourth term, all relevant legislation would be implemented, which should go some way to resolve the matters raised in the petition. Answering the query about the length of the process, he said that the appointment of the Nhlapo Commission had been done to resolve traditional leadership claims and disputes. There were recognised traditional leaders, and others that had been de-established, who had then approached the Commission for re-establishment. There had been a lot of distortions before that Commission as the Bantustan system had divided and destroyed certain royal families and had established others. He reiterated that there had not been a single claim from the Khoi and San from WC, which was unfortunate. It was, however, pleasing that those communities had come together to form the Khoi and San Traditional Council, which included the Nama, Griqua and other nations over the previous fourteen years. The current President had, fourteen years ago, undertaken to develop a law that would give recognition to those marginalised communities. Mr Bapela, on taking the Deputy Minister's position, had also prioritised the fulfilment of that undertaking. COGTA hoped that the Traditional and Khoi and San Leadership Bill would be finalised by the end of 2016.
Finally, he assured the Members that the commissioners, during the hearings of the Commission, had indeed applied customary law when listening to all of the discussions and evidence, when trying to determine recognition of traditional leadership.
Ms Engelbrecht reiterated her earlier question about the logos of the WCPG.
Mr Frantz said the response was set out in the judgment of the court against the PHTL-WC.
Ms Manopole pleaded that the proceedings be limited to the remaining presentation.
Mr Michalakis said that the use of the SA national emblem and the United Kingdom coat of arms by petitioners had to be noted, and Parliament had to caution petitioners against that as it was illegal.
Parliamentary Legal Unit input
Ms Phumelele Ngema, Legal Advisor, Parliament Legal Unit, said that all legislatures of Government from Local to National level were creatures of statute, which meant that there was nothing that could be done without enabling legislation empowering actions.
The Constitution sought to address every challenge within SA society, but it must be borne in mind that implementation of the decisions had to be based on the core terms. The Constitution, together with the Traditional and Khoi San Leadership Bill, was seeking to address colonisation challenges that had impacted the way of life of SA citizens.
She noted that the Constitution's Chapter 12, sections 211 and 212, were quite clear, and covered the issues of the petition. Traditional leadership was recognised in every form in which it manifested itself in SA. It was not correct and not legally sound to claim that there was a vacuum in addressing recognition of traditional leadership in the WC or anywhere else in the country. The TLFGA, which stemmed from the mandate and requirements of Chapter 12 of the Constitution, is a national piece of legislation which applies everywhere in the Republic without any restriction.
The petition appeared to have conflated and confused two issues. Firstly, there was the issue of the customary recognition by the traditional, customary or indigenous people, in order to recognise leadership as “traditional” in their respective community. The court processes that the petitioners had undertaken had been aimed at addressing that issue. The Court had addressed that. It had advised that the fight for recognition should not be pursued through the court. The Committee had also just addressed that issue because the community must be the group of people who recognised a particular leader as their traditional leader. Recognition, however, had to be done administratively. The Nhlapo Commission had sought to assist recognition administratively, because the investigations which either led to recognition being granted or a claim was being dismissed had been set up precisely to enable Government to work on verifiable information. This linked in with the prescripts of the Constitution as well as the TLFGA on traditional leadership.
When dealing with these two processes, there had to be an interface and a legal understanding and proper interpretation of the existing legal framework. The Traditional and Khoi San Leadership Bill was attempting to resolve issue raised within the petition. However, it was not correct to infer that there had been a vacuum in the national law. The Bill would clarify all the misinterpretations that had emanated from the existing legal framework. The constitutional framework also guaranteed rights to SA citizens, and that extended to those that had come into the country latently, in individual cases. The petition was touching on rights of freedom of movement, and was saying that it could not be correct that a traditional leader would lose his or her identity by coming to the Western Cape.
The Chairperson said that input of the legal unit would be included into the final deliberations of the Committee.
A STL from the petitioner’s delegation interrupted the Chairperson, saying in a very emotional tone that he hoped that Parliament would take the plight of the Khoi and Bushmen people very seriously.
The Chairperson said that he had earlier indicated that there was a certain procedure when hearing a petition. Not everyone was entitled to speak as he wanted at the moment. The report of the Committee would become a public document, after adoption by the National Council of Provinces (NCOP), and the petitioners would be able to access it.
The meeting was adjourned.
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