The National House of Traditional Leaders said they were requesting an extension of the enactment of the Traditional Leadership and Governance Framework Amendment (TLGFA) Bill, in order to extend the time frames for the reconstitution of the Traditional Councils and those to be elected and appointed to the Kingships and Queenships.
The Land and Accountability Resource Centre (LARC) said the TLGFA was important because it made provisions for transformative mechanisms. Section 3(2) of the Act also described the composition requirements for the Traditional Councils, but the Department had failed to meet these requirements. The problem was that the Disputes Commission had been downgraded to only making recommendations, and this had left a huge backlog of claims and disputes. As such, there was uncertainty of the status of Tribal Authorities because the provinces had failed to reconstitute in accordance with Section 3(2).
While tribal authorities were still waiting to be reconstituted, some had taken it upon themselves to continue negotiating with mining companies on behalf of their communities. The Bill did not mention how it would address these transactions. Also, the Bill proposed no solution for how it would deal with transformation. Instead, it had served to undermine indigenous accountability mechanisms. On the other hand, the TLGFA had failed to make customary law and customary processes of governance a focal point, and had also failed to understand the complexities of pre-colonial societies. The Act had also failed to include mechanisms for holding tribal authorities accountable or the means for people to participate democratically.
The Committee agreed that reconstitution of the tribal councils was important, but Members disagreed on the timeframes for the reconstitution. It asked how many tribal leaders still needed to be reconstituted, what legal implications there were for tribal leaders who negotiated with mining companies without reconstitution, whether the Department would meet the new deadline if an extension was granted, and said that the role of the tribal leaders first needed to be defined to ensure the sustainability of the institution of traditional leaders.
The Chairperson said the Committee had received an oral submission from the Land and Accountability Resource Centre (LARC). He requested that the LARC make its presentation first before the Department responded to the submissions made, and what it proposed going forward.
Mr Abram Sithole, Secretary: National House of Traditional Leaders (NHTL), said that the Department had put forward a proposal for timeframes for the establishment of the Traditional Councils, as well as the enactment of the Bill, to be extended. This was to allow it to re-constitutionalise the new Traditional Councils, along with the Kingships and Queenships when their term ended on 16 August 2017. Currently, there were Traditional Councils which had not been reconstituted, yet they were performing their Council duties, as per legislation.
Land and Accountability Resource Centre (LARC)
Ms Aninka Claassens, Director: LARC, said the LARC was concerned with the power relations and laws that threatened rural democracy. Its aim was to propose alternatives consistent with living law. Traditional leaders had a constitutional mandate, as the Constitution recognised customary law as a system of law equal to common law. The legislature’s focus from 1999 until the present suggested that traditional leaders sourced their mandate from, and were accountable to, government rather than to communities. This had led to the retraction of the recognition of traditional leaders ‘according to customary law’.
The Traditional Leaders Governance Framework Act (TLGFA) preserved the traditional authority jurisdiction created in terms of the Bantu Authorities Act of 1951, which locked people into a specific authority by virtue of geographical residence and therefore denied them the consensual character of customary law. Traditional Councils derived their status and jurisdiction from statute and discredited apartheid boundaries, not from the customary principle of voluntary affiliation. The TLGFA was essential for its transformative mechanisms to mitigate risks of entrenching past distortion. Section 3(2) of the TLGFA stated the composition requirements for Traditional Councils, which initially was one year to reconstitute, yet the Department had not met this requirement. The 2009 Amendment Act further extended the timeframes, and the deadline had still not been met.
The Disputes Commission, formerly known as the Nhlapo Commission, had been downgraded by the 2009 amendments to make recommendations. This had left a massive backlog of claims and disputes, and premiers had refused to release reports until they were forced to by the courts. The institution of traditional leadership had failed significantly in implementing transformative mechanisms, especially in relation to provincial attempts at reconstitution, where the election processes in the Eastern Cape, KwaZulu-Natal and North West had been flawed. There was an uncertainty on the status of Tribal Authorities and Traditional Councils, as the provinces had failed to reconstitute in accordance with Section 3(2) of the TLGFA. Tribal authorities were operating outside the law – they were still transacting on behalf of traditional communities, and were negotiating deals with mining companies without consultation. The Bill did not address how the above transactions would be affected, and how it planned on dealing with future transactions if the structures still failed to transform.
Mr K Mileham (DA) said it had been unfair of the Chairperson to request the presenter to shorten her presentation, because every member of the public had the right to make submissions to the Committee. He reminded the Committee that Parliament had previously been taken to court because the Committee had refused to give the public a platform to make recommendations and submissions.
The Chairperson replied that the LARC’s presentation was not formally part of the Committee’s agenda, so it had been requested that the presenter only presents her main points, and not the whole presentation.
Mr Mileham said the Chairperson had to follow the legal processes concerning public hearings, and cutting presenters off during their presentations was not part of public hearings’ procedures.
Mr E Mthethwa (ANC) said the main points of the presentation were not included in the document that the LARC had handed to the Committee. He asked that a copy of the presenter’s power-point presentation to be sent to the Committee for further deliberation.
Inkosi Themba Mavundla, Executive Committee Member: NHTL, said the NHTL had put in a request for the enactment of the Bill to be extended to allow the Traditional Councils to be legally constituted and to deal with all the other issues mentioned by the LARC.
Mr Sithole said unfortunately transformation had not taken place, but the Department was hoping that the amended Bill would help it realise better ways of ensuring that transformation took place. Also, the Bill did not make provision for the times when the Premiers should release the names of the tribal authorities who would be a part of the Traditional Councils, which was the prerogative of the Premiers.
The issues relating to levies being paid to Traditional Councils was also being heard in court, so the Department could not talk about it until they have reached a verdict on the matter. The Traditional Leaders were expected to host an Imbizo at least once a year to discuss with its communities the challenges that the communities were facing. The Imbizo also served as a platform for the communities to voice their challenges with the institution of traditional leadership. While the Bill indicated the timeframes for the establishment of Traditional Councils, a service provider had also been appointed to help the Councils deal with matters of transformation with urgency.
Mr Mthethwa suggested that the LARC complete its presentation, and then the Department could in response comment on the points made.
Ms Claassens then concluded her presentation by saying the Bill was not merely technical. It had far-reaching consequences for deal making and accountability in traditional communities. It proposed no solutions to actual practical and legal problems caused by delays in transformation, as identified by the Bill’s Memorandum. The exclusive focus on state recognition of traditional authorities had served to undermine rights arising from customary law, notably property rights to resources and accountability. It had also served to undermine indigenous accountability mechanisms and elicit opaque transactions between some traditional leaders and mining companies, to the detriment of the customary rights or ordinary people, both in relation to procedural rights and in relation to substantive rights.
The TLGFA failed to bring to the foreground living customary law and customary processes of governance, and also failed to understand the complexities of pre-colonial societies. It also failed to build on apartheid spatial geography and locked people into artificial institutions and identities, thereby breaking down social cohesion and perpetuating inequality and poverty within the former Bantustans. In addition, it failed to include mechanisms for holding traditional authorities to account, or provide means for people to participate and be consulted democratically.
The Chairperson said the NHTL was asking that the enactment of the Bill be extended, while the LARC was saying that the extension would not make a difference.
Dr Charles Nwaila, Director-General: Department of Cooperative Governance and Traditional Affairs (COGTA), said the terms of the Traditional Councils was ending on 16 August 2017, and the extension of the timeframe would allow the Department time to reconstitute of the Councils and Kingships and Queenships.
Mr C Matsepe (DA) said the Committee should try not to cause conflict between the traditional leaders and the public. The problem was that the Disputes Commission’s findings and reports had not been made available to the public who were interested in the matters concerning the institution.
Mr Sithole said although the Nhlapo Commission did not exist at present, all its findings had been released for the public to read and its recommendations have been implemented. The first Kingships had been established in 2010. 1 224 disputes had been reported to the Commission, and 900 of these cases had been finalised. The Department had repeatedly encouraged the provinces to implement the Commission’s recommendations. The Department was therefore requesting an extension so that the recommendations could first be fully implemented for reconstitution to take place.
Dr Rinaldi Bester, Chief Director: COGTA, said at the moment there was no legal basis for which the Kingships and Queenships could be established. Also, the recognition of Kingships and Queenships may take longer and the process may even go beyond 16 August 2017 when the terms of the current Traditional Councils came to an end.
Adv Phumelelo Ngema, Parliamentary Legal Advisor, said it was in the Principle Act ,where Sections 3 and 28 sought to be amended, where the timeframes would be extended to establish the Traditional Leaders. The new Bill would determine only how Traditional Leaders should conduct themselves.
Dr Bester said none of the current Bills made provision for the reconstitution period.
Mr Mileham said that the NHTL’s motivation for the amendment was for reconstitution to take place in August. He asked if it would be possible for Parliament to pass the Bill within the next two months, what the scope of the problem was, how many traditional leaders had not been constituted, what the legal implications were for traditional leaders who continued negotiating with mining companies while they were not constituted, and whether these traditional leaders were still being paid.
Ms B Maluleke (ANC) asked if the Department would be able to meet the deadline if an extension of the Bill was granted.
Dr Bester replied that traditional leaders could not be transformed into a Council if they did not meet all the requirements. The Minister and Premier did not have the power to intervene in Council matters, and until a new Council had been constituted the traditional leaders could deal with urgent matters on behalf of their communities. All traditional leaders were paid a salary, regardless of whether they were members of the Council or not. Also, the provincial departments assisted them with stipends for functional matters.
Nkosi Mavundla said Traditional Councils and Provincial Houses were not permanent structures, so the amaKhosi received only a stipend from their provinces.
Mr Mileham asked how many Traditional Councils had been constituted and how many still needed to be constituted.
Mr Sithole said the only provinces which had a problem with reconstitution were the Eastern Cape, Mpumalanga, Limpopo and North West. In total, there were 840 Traditional Councils in South Africa.
Mr Matsepe said a major problem was that the role of Traditional Councils was not well and explicitly defined, so some of the Councils tended to collapse. Their roles and responsibilities firstly needed to be defined.
The Acting-Chairperson thanked the LARC for its presentation.
The meeting was adjourned.