Traditional and Khoi-San Leadership Bill final draft: Western Cape public hearings

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Cooperative Governance and Traditional Affairs

30 November 2016
Chairperson: Mr M Mdakane (ANC)
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Meeting Summary

The Traditional and Khoi-San Leadership Bill, 2015 had been drafted but before getting a final version of the Bill from the drafters, Parliament wished to hear public hearings that would give input into the draft. Members of the public who were present to make comments included paramount chiefs, headmen and women and members of Khoi-San councils and organisations.

The Committee's Content Advisor presented the Memorandum on the Objects and the Bill itself, describing how it is divided into five chapters. Chapter 2 of the Bill, which deals with the recognition of traditional leaders and councils, is divided into three; the first part dealing with the recognition of traditional leaders in municipal councils, the second with the the powers of the Premier in bestowing recognition upon the traditional leaders, and the third with the establishment of Khoi-San communities.

There were mixed views with some of the submissions expressing cautious support for the Bill, which was seen by some as a step in the right direction, although others were totally and vehemently opposed to it.  Views included a lot of unhappiness that the Khoi-San were being regarded as black, objections to trying to deal with all tribes in one Bill, perceived lack of recognition of their unique position, status, culture and language. The point was made that they could only be liberated if they were given first-nation status that recognises that they were the first inhabitants of Southern Africa. Many felt that the public hearings were unconstitutional and that Bill seemed to give the Nguni chiefs more power than it did to the Khoi-San leaders, whilst other s felt that the Bill was an attempt by government to divide the Nguni and Khoi-San traditional leaders. A large number of the organisations were against the substantial amount of power that is given to Provincial Premiers in recognising traditional leaders.

The Khoi-San people also made submissions regarding their dissatisfaction of being referred to as “coloureds”, instead of their native name. However, some speakers felt that the public should not blame the present government for the mistakes that were made by the apartheid government. They were also dissatisfied with the work being done by the National Khoi-San Council. The meeting did degenerate at one point into substantial input from the floor whilst the AmaXesibe clan were putting their viewpoint but the Chairperson emphasised that everyone at the meeting should respect the others' views. There was also a perception that Xhosa and traditional leaders had been invited to lunch with the Committee, whilst representatives from the Khoi and San were not accorded similar status. 

Meeting report

Traditional and Khoi-San Leadership Bill final draft: Western Cape Public Hearings
The Chairperson said the meeting had been called to give the public and interested parties the opportunity to make inputs towards the final draft of the Bill. The submissions will help the Committee with its final submission, which will be sent to Parliament. Public hearings will, in the next few weeks, also be taking place in the Eastern Cape, and next year the hearings will take place in KwaZulu-Natal, Free State, Mpumalanga, North West, Gauteng and Limpopo. The Committee will make sure that all members of the communities are reached so that by the time the Bill is tabled in Parliament the Committee would have received everyone’s inputs. The input heard today would be taken into account by the drafters of the Bill, so he asked that the Chiefs, traditional leaders and leaders of the Griqua, Nama and San indigenous community should ensure that their inputs speak directly to the clauses of the Bill that was specifically drafted for them.

The Chairperson noted that the Content Advisor to the Committee would go through the Memorandum on the Objects of the Bill, and outline the important structures of the Bill. The public will then be given an opportunity to make their inputs, but there would not be any discussion after that because the purpose of this meeting was simply to gain input.

Memorandum of the objectives of the Traditional and Khoi-San Leadership Bill, 2015: Content Advisor's briefing
Mr Dikgape Makobe, Content Advisor to the Committee, reported that his presentation will focus on the objectives and content of the Bill, as well as the important clauses. The main objective of the Bill is to consolidate, and then in consequence to repeal the National House of Traditional Leaders Act of 2009 and the Traditional Leadership and Governance Framework Act of 2003, in order to ensure that there will be one piece legislation that will deal with all matters relating to the initiation of tradition leaders in the country. Further objectives of the Bill are to address the limitations that were found in the previous two Acts, to effect the consequential amendments of the legislation, and to recognise the Khoi and San community and leaders.

The Bill is divided into five chapters. Chapter 1 contains interpretations, applications and principles of the Bill. Chapter 2 is divided into three; the first part relates to the recognition of traditional and Khoi-San communities, the second sets out the recognition of the leaders of these communities and the third part recognises the councils of both traditional and Khoi-San traditional leaders. Chapter 3 talks about the establishment of the Traditional House of Khoi-San leaders in all three spheres of government. Chapter 4 talks about the establishment of an Advisory Committee on Khoi-San matters. Chapter 5talks about the general provisions, such as oaths that the Khoi-San leaders will have to take, the amendments to other legislation and repeals.

He noted that the first part of Chapter 2 makes provision for the recognition of traditional leaders, which will include women chiefs and male chiefs and Khoi-San leaders. It further makes provision for the withdrawal of such recognition from chiefs and traditional leaders and the circumstances under which such recognition can be withdrawn.

Clause 5 of the Bill makes provision for the recognition of Khoi-San communities and branches. The community must have a history of self-identification by members of the community as belonging to a unique community distinct from all other communities. The relevant community must also occupy a specific geographical area or various geographical areas together with other non-community members. The Bill moves onto the recognition of traditional leaders and their communities. The following traditional leadership positions are provided for in clause 7(1) of the Bill: king or queen, principal traditional leader, senior traditional leader, headman or headwoman. The clause also makes provision for senior Khoi-San leader and branch head. 

Chapter 3 of the Bill makes provision for the establishment of a traditional house in all three spheres of government, national, provincial and local government. Chapter 4 deals with the proposal to set up two advisory commissions. The first commission will deal with disputes relating to traditional leadership and the second commission will be an advisory committee on Khoi-San matters. Recognition of the traditional communities will be something to be done by the advisory committee. Members of the Advisory Committee must have knowledge in areas of anthropology and Khoi-San issues, and they will be nominated by the communities, but the Minister will make the final appointments. Chapter 5 will make provision for Khoi-San leaders to form part of the municipal councils. A further explanation of how the communities can nominate persons to sit on the advisory committee is contained in the memorandum that has been handed out to the members of the public.

The Chairperson asked for the members of the public to make inputs. He asked again that the presenters should speak directly to the content of the Bill.

S A National Action Committee (SANAC) submission
Rev Gregg Fich, South African National Action Committee (SANAC), World Heredity Council, said that, firstly the Employment Equity Act of 1998 does not make provision for the Khoi-Khoi and San people in the workplace, and that should be considered as discriminatory. Secondly, the government has refused to constitutionally recognise the Khoi-San people as the first inhabitants of the Southern Africa, and continue to refer to them as “coloureds”. Owing to these discriminatory issues, the SANAC rejects the Bill in its entirety. He added that the Bill cannot be approved without the government firstly giving the Khoi-San people their rightful land back and recognising the Nama language as one of the official languages of the country.

The Khoi-San people have the right to self-determination.

Section 25(7) of the Restitution of Land Rights provides for restoration of rights in land to persons or communities who were forcefully removed, but he said  the government is refusing to give the Khoi-San their land back. He added that the public hearings were unconstitutional and they do not satisfy Chapter 2 of the Constitution. The government had postponed the public hearings several times and the public was not given the proper administrative support to make inputs into the Bill. During the drafting of the Bill, the government had not consulted the Khoi-San communities. He said that effectively he saw this as “an apartheid Bill” that has been drafted in a democratic country. The Bill goes against the Freedom Charter, it intends to create divisions between the former Bantustans and Khoi-San leaders and the contents of the Bill speak only to the status of traditional leaders, and not the Khoi-San people.

Head Chief of the Griqua clan, under the Western Cape Legislative Khoi-San Council, had previously made the point that the African National Congress (ANC) had refused to recognise the Khoi-San people as the first indigenous inhabitants of the country. It has excluded them from claiming any land back from which they were forcefully removed. He believed that the current Bill cannot be used as a tool to formally recognise the Khoi-San people, without including their recognition in the Constitution. The Bill does not make provision for the existence of the Khoi-San people, it limits the Khoi-San people to acting as an advisory committee only and not in a legislative role, and this was very similar to what pertained under the colonial and apartheid system.

He said the fundamental weakness of the Bill lies in the title of the Bill, which suggests that legal arrangements around traditional and regional communities are to be conflated under one Bill. He asked the Committee why only a few Khoi-San tribes, like the Griqua, Nama and the San, have been recognised in the Bill but other tribes belonging to the Hessequa, Gouriqua and Goringhaicona are not recognised. The recognition that the black people had received in the Constitution enabled them to garner financial support for their councils. He asked that the same be done for the Khoi-San people and councils.

Aubrey Hector submission
Mr Aubrey Hector, Principal Leader, San people, said that the San people did approve of the Bill on the basis that it gives recognition to the customary law of the Khoi and San community. However they would like to assist with the formation of the Bill to ensure that it includes elements of human rights, particularly those which pertain to the Khoi-San people. He then made suggestions on improvements to the Bill.

Firstly, the criteria for recognition of Khoi-San communities, under clause  5, should have an historical approach. The central concern of his people around that clause is that the criteria do not recognise that the communities should have self-determination, and the right to determine who their legitimate leader of the community is. If this were to be incorporated, then clauses 5(1) and (2) would fall away. Secondly, the community was not in favour of giving powers to the Premier to recognise the Khoi-San communities and asked that these powers be given to the National Minister instead.

Gorachouqua Commission submission
Mr Jonathan Muller, Gorachouqua Commission, said that the Khoi-San people are not looking for recognition, but for acknowledgement. He was of the view that the Bill’s title should have read as: “Traditional and Indigenous Leadership Bill”, instead of “Traditional and Khoi-San Leadership Bill”. The Khoi-San people do not want to be classified as being black. This was not to suggest that they thought that they are better than black people, but they are saying that they are different and should not operate under the same Bill. Before the colonialists entered the country the Khoi-San owned the whole country and not only just a piece of it. He was not convinced that the Khoi-San people would be given fair treatment in an advisory committee where they would be the minority. For that reason, the option of co-opting them with the black traditional leaders will not work. He reminded the Committee that the first people who were called the ‘K-word’ (kaffir) were the indigenous people, and the first people who were forced to carry passports in their own country were the indigenous people. He asked the Chairperson why the Committee did not consist of people of Khoi-San descent. The Gorachouqua rejects the Bill because it does not make provision for self-determination.

Khoi Muslim South Africa submission
Mr Sahied Safala, member of Khoi Muslim South Africa, presented a submission that briefly set out that this organisation accepts the Bill but requests that a few changes be made to it. More details on the objections will be submitted to the Committee Secretary in writing.

Chief Bikitsha submission
Chief Mandule Bikitsha said the Bill’s preamble talks about the consolidation of the traditional leaders and Khoi-San administrative matters. However, there are two concepts which need to be considered before the consolidation can take place: the status of the leadership and the powers given to those in leadership positions. He asked that the Committee amends Chapter 2 of the Bill to ensure that chiefs and traditional leaders are given substantial powers within the municipal councils.

Kei/Korana submission
Chief Melvin Arendse, Provincial Leader of Kei/Korana, said that his community supported the Bill in principle. The Khoi-San people have suffered for the last 200 years; having to watch how their houses were being damaged by the colonial government. When the Korana and the Xhosa speaking people were fighting the apartheid government, there was no talk of the exclusion of one tribe from the other. The Advisory Committee should be careful not to create divisions between the Khoi-San and the Xhosa speaking people in the Western Cape. The Kei/Korana will submit a formal submission relating to the time-frames mentioned in Chapter 4. It is unfortunate that the Western Cape does not have a Premier who understands traditional leader ship matters, nor does she know who the Khoi and San people are. It is dangerous for the Premiers, in such circumstances, to have such substantial powers to determine to whom traditional powers should be given. 

Hlubi people submission
Chief Dalixobo of the AmaXesibe tribe, Chief of the Hlubi people,  said he understands the purpose of public hearings, but does not think the Bill should have gone through the process of the long consultation process with the public. The Bill should have been approved after it had been drafted. His reasons for saying that was that it had been more than 20 years since the democratic dispensation but black people still struggle to gain access to land, or get their land back. In order to deal with this matter, the process of approving the Bill should be fast-tracked as I,t will make provision for the identification of traditional communities and give them opportunity for self-determination.

South African Khoi San Kingdom submission
Mr Shawn Lategan, South African Khoi-San Kingdom, recited the Bible, saying that Chapters 2, 3 and 5 of the Bill go against the scriptures of the Bible. As such, he would be inclined to reject the Bill because it is an anti-Christ document. The Bill tries to divide the Nguni and Khoi-San people, and it also tried to divide the Khoi-San tribes. There are 18 tribes under the Khoi-San nation, but the Bill recognises only five Khoi-San tribes, which they call the ‘Big-five’.

Royal House of Khoi-San Nation submission
King Kuba Cornelius III, Royal House of the Khoi-San Nation of South Africa, said the Royal House rejects the Bill in its entirety, and this decision comes after having consulted with international experts and the indigenous Bill of Rights. The Bill is seen as a racist document. The Bill treats the Khoi-San people in a manner that ensures continuing inequality by indirectly expropriating the economic patrimony of the nation. It destroys leadership and creates confusion because the Bill has no knowledge of the way in which traditional leaders are established under the Khoi-San customs. The Deputy Minister and the Director-General have no knowledge of the Khoi-San matters, and it is suggested that they should go back to first principles about the history of the indigenous people and the claiming of a first-nation status. The Deputy Minister and Director-General have further made xenophobic comments against the Khoi-San people, which is seen as another indicator that they have  no knowledge of indigenous people and their fundamental rights that were drafted by the United Nations.
Aboriginal Restoration King Coalition Political Party submission
Mr Fred Meyer, President of the Aboriginal Restoration King Coalition Political Party, said his party rejected the Bill. Firstly, he made the point that the Khoi-San people and their language are not recognised as a South African official language. Secondly their indigenous cultures are not being restored and are also not being recognised. Thirdly, the Constitution is based on Roman-Dutch laws, and it should be amended to make provision for the Khoi-San people. Fourthly, the Bill does not advance the principles of a constitutional democracy, especially the entrenchment of the rights of women and traditional councils. Lastly, the appeals process should be strengthened to ensure that members can appeal against the traditional council or court.

A member of the audience interjected at this point, asking why the Khoi-San people were left to sit on the floor during their lunch break, while eating with plastic spoons, while the Xhosa chiefs and traditional leaders were invited to the dining hall to eat with silver spoons.

The Chairperson responded saying that it was unfortunate that Parliament was not able to provide tables for everyone in the dining hall. The members of the public were asked to remain and be seated  in the Old Assembly Chamber, because there were no tables and chairs outside. The catering company had provided the plastic forks and knives, and not Parliament. He said that when people were next invited to make submissions, Parliament would try to accommodate everyone together.

Nqaman clan
Mr Martinius Fredericks, of the Nqama clan, said the Bill proposes that traditional leaders will be responsible for the people, while the Khoi leaders will be responsible for the jurisdiction areas. This portion of the Bill cannot be accepted because traditional leaders are not able to take on the responsibility of the Khoi people by themselves. The problem with the Bill is that it has no Preamble and he suggested that the history of the Khoi-San should have been written there. The Memorandum on the Objectives of the Bill continued to make a distinction between the Nguni (traditional leaders) and the Khoi-San, and it makes a distinction between the different Khoi and San tribes.

He noted that whilst making provision for both categories, the Bill was incorrect because the Nguni and Khoi-San chiefs do not have the same practices. He added that he feels deprived because he has lost his home language (mother tongue), and that is the only thing that is a true reflection of his identity. The government has been saying for years that the Khoi people have lost their land, and this is untrue. In section 8(2) of the 1913 Land Act, crucial wording had stated that land situated in the former Cape Province was not part of the land occupied by the colonial government. This means that the land in the Western Cape still belongs to the Khoi-San people, as it was never listed under the Land Act of 1913. All legislation that refers to ‘coloured’ people needs to be repealed and instead to make provision for Khoi-San people.

Marko Olsen submission
Mr Marko Olsen said he does not understand why these public hearings are being held because the Bill cannot be accepted as it is at the moment. Firstly, the racial classification of Khoi-San people as ‘coloureds’ on their identity documents must be repealed. Secondly he made the point that the government still refuses to constitutionally recognise the Khoi-San people as indigenous people. Thirdly, the Khoi-San people should be able to determine for themselves; they cannot be recognised as traditional leaders but should be given full recognition as the indigenous people of the country.

AmaXesibe Traditional Council submission
Mr Zolile Feni, AmaXesibe Traditional Council, said the public should not blame the current government for the mistakes that were made by the apartheid government. The current government and traditional leaders should put their resources together and work towards building a united nation. One of the previous speakers said the Khoi-San were not looking to be recognised, but rather to be acknowledged because they understand who they are. It must be accepted that the power to recognise the Khoi-San people lies with the government, and that is legislation that the public must respect. The Western Cape must not only be preserved for people of a certain racial group, but it should also accommodate races from other provinces.

At this stage there was a disturbance as other members of the public expressed their disagreement with his comments.

Mr Feni continued to say that the Bill cannot be amended to accommodate only one racial group who believe that they are entitled to the land in the Western Cape.

Members of the public continued to shout and argue, saying that Mr Feni was provoking the other members with his comments.

The Chairperson said that during a public hearing everyone is given the opportunity to make comments and inputs, regardless of whether the rest of the public agrees with them. He urged the public to respect the right of all to present their comments and finalise their presentations.

AmaXesibe clan submission

Mr Peter Thethan. Deputy Chairperson, AmaXesibe clan, said the Nguni speaking people were not included in the Bill when it was first being drafted, and that there are some tribes who believe that certain ethnic groups come from other parts of Africa. There is a perception that the Nguni clans are not original descendants of South Africa, but this is wrong. He also wanted to address the events a few minutes ago and said that if any member of the public had a problem with statements being made by a speaker, they should address their remarks, at the appropriate time, to the Chairperson and should not address the speaker themselves. He said he was disappointed that when the previous speaker was making his submission, members of the public "started howling and complainingWbut when they had made claims to owning the land none of the other speakers interrupted them. He asked that the Committee consolidates the words ‘traditional leaders’ and ‘khoi-san’, so that there is no confusion about who the Bill is actually meant for.

W Cape Traditional Leaders submission
Chief Finiza Khume, Capetonians Traditional Leaders, Western Cape, noted that the Xhosa and Khoi-San are the same indigenous group. The Nzotho clan, of which he is a member, was forcefully removed from Claremont and moved to Gugulethu. There were many traditional leaders who volunteered as workers during the apartheid era and he requested that the Bill also acknowledges those who acted as volunteers during apartheid in wards 11, 14 and 17 in Gugulethu, Manenberg and Nyanga, respectively.

Goriqua-Khoi clan submission,
Mr Martinius Peter, Goriqua-Khoi clan, said that the rights of Nama people were not recognised in the 1994 Constitution, and the Khoi-San languages have not been recognised officially. However, the government is now asking the Khoi-San to approve a Bill that does still not recognise the Khoi-San. If the government wants the Bill to be approved it should firstly give the Khoi-San a first-nation status.

Kock Royal Family, Griquas
Mr Cornelius Kock, Kock Royal Family of the Griquas, said the land belonging to the Khoi-San was stolen through a war between the Europeans and Khoi-San people. If another war was required to get that land back, then “so be it” . He said that the Royal Family they reject some parts of the Bill; such as the title, and he has reservations on the drafting of the Bill. The title of the Bill is seen as racist and incorrect and he submitted that the government should have kept the first title of “ Traditional Affairs Bill”.

He made the point that this Bill was supposed to be drafted by the Khoi-San people and given to government afterwards for approval and passing. He asked the Nguni chiefs and leaders to support this amendment as he knows that both ethnic groups want the same thing.

San Bossman submission
Mr John Daniels, San Bossman, said the leadership of the National Khoi-San Council (NKC) have failed the Khoi-San people and they are sell-outs. When the public was called in 2015 to make submissions on the Bill, the Chairperson of the NKC, Mr Cecil Le Fleur, did not utter a word, and he had been very disappointed because the NKC is supposed to represent the Khoi-San communities. He suggested that another Council should be elected to replace the NKC, and the new Council must be nominated by the public. The government cannot be given the responsibility of managing the operations of the Khoi-San people, who should determine for themselves how they want to manage their matters and land. He also asked that the Khoi-San and Nguni Traditional Leaders be given separate legislation so that they can have self-determination.

Indigenous First Nation Advocacy submission
Mr Anthony Phillip Williams, Indigenous First Nation Advocacy South Africa, said the Bill advances divisions amongst the Khoi-San people and between the Khoi-San and Nguni tribes. The Deputy Minister made comments saying “we must not get into the temptation of giving them...”. The use of the word “them” to refer to Khoi-San people is disrespectful and condescending. The country is in a crisis of trying to unite its people, but when a member of the executive uses these words to refer to a nation of people, them one should be very worried. The Department of Rural and Land Development, as well as the Department of Arts and Culture must also be brought into the fore to recognise the artistic work of the Khoi-San. The Bill should make provision for this as well.

Korana Khoi submission
Mr Ricardo Cupido, Chief of the Korana Khoi; Gorachouqua, said the Bill should not be accepted by the Khoi-San people because the government refuses to repeal the name “coloured” when referring to the Khoi-San. Before the apartheid government decided that they would allow for democratic elections to take place, they made the decision to abolish the Population Registration Act 114 of 1991, which classified the Khoi-San people as “coloureds”. The Act stated that it would “repeal the Population Registration Act of 1950 to amend or repeal certain laws that were made before the year 1950”. Therefore, under the present government the Khoi-San are still being referred to as “coloureds”, a word that consequentially repealed in 1991. This also means that the name, or word, “coloured” is actually a derogatory word used to refer to the Khoi-San people.

The Chairperson asked the members of the Committee is they wanted to ask questions or make comments regarding the submissions. He commented that he disliked references by people to “their government” and not “South Africa’s government”. The members of the Committee were democratically elected and they represent the public.


Mr A Mudau(ANC) said he has learned a lot about the Khoi-San people. He had not known that there were so many Khoi-San tribes in the country.

Mr N Masondo (ANC) said the Committee does not have all the knowledge, nor know about the Khoi-San people. The purpose of the public hearings was to educate the Committee, and he has realised that there are still many other issues that the Khoi-San face, such as land and language issues. He admitted that the Bill is not a perfect document and he realises that the public has a number of issues, not only with regards to the Bill but also with other pieces of legislation.

Mr B Bhanga (DA) said the Bill is a complex and sensitive issue. He asked that the public also recognise the urgency and time that has been given to the Committee to complete the processes of the Bill. It was also emphasised that powers of recognition should be given to the National Minister, instead of the Provinces.

A member of the Committee said common ground needs to be found. It is unfortunate that the government cannot solve all of the issues of the people of South Africa. The Europeans have taken away the people’s heritage, language and history.

The Chairperson said the comments made by the public are taken seriously by the Committee. It is important that common ground be found. He reminded everyone that they are all Africans, and he was under the impression that when the government uses the term “black” it always included the Khoi-San people. The Bill is a proposal, it has not been made into a law yet. It will be changed and amended to accommodate everyone. He said he hopes that the Bill can be finalised in the next year.

The meeting was adjourned.

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