The National House of Traditional Leaders submitted two amendments to the Committee. The first amendment was a change from a one year to a two year time frame for the reconstitution of the traditional councils, and removing “community” and replacing it with “council”. The second amendment was related to Section 3(b), which the Committee had heard of for the first time. The National House of Traditional Leaders also mentioned that 40% of the traditional leaders would be elected for the kingships/queenship, and 60% would be appointed.
Some Committee Members were opposed to the amendment of “community” and replacing it with “council”, believing that that amendment took away the communities’ powers to elect their own traditional leaders to serve on the kingships and queenships. The Committee also sought legal advice on the appointment and selection of traditional councils, as well as the new amendment for Section 3(b).
The Committee concluded that the processes would be done simultaneously. The new amendment of Section 3(b) would be tabled to the National Assembly for approval, and the Committee would proceed with the adoption of the Amendment Bill.
Ms Shereen Cassiem, Committee Secretary, read the motion of desirability of the Bill:
“Motion of desirability on the Traditional Leadership and Governance Framework Amendment Bill, B8-2017: It is the opinion of the Committee that legislation is desirable to amend the Traditional Leadership and Governance Framework Act of 2003, so as to make provision for the extension of timeframes within which kingship or queenship councils and traditional councils must be established; to provide the timeframes within which community authorities have to be disestablished; to align the term of office of tribal authorities, traditional councils and kingship or queenship councils within the term of the National House of Traditional Leaders; and to provide for matters connected therewith and that the body refers to the Committee be taken as a basis.”
Ms B Maluleke (ANC) said the African National Congress (ANC) was satisfied with the motion of desirability.
Mr K Mileham (DA) said the Democratic Alliance (DA) did not support the desirability of the Bill, and many other stakeholders had also expressed their dissatisfaction with the motion.
The Chairperson suggested that they go through the Bill, clause by clause, and at the end decide whether the Committee adopts the Bill or not.
Discussion of the Amendment Bill
Mr Abram Sithole, Secretary: National House of Traditional Leaders (NHTL), said the NHTL proposed that in Clause 1 a substitution be made, with a proposal of amendment to Section 3A of Act 41 of 2003, as inserted by Section 5 of Act 23 of 2003, thereby changing from one year to two years of the recognition, establishing a kingship or queenship.
Another related amendment, which had been confirmed by the Commission in accordance with this Act prior to its amendment, required that a kingship must within two years from the commencement of the Traditional Leadership and Governance Framework Amendment (TLGFA), establish a kingship or queenship council which included the 40% of democratically elected members of the traditional council, as contemplated in paragraph (d). In paragraph (c), they proposed removing “community,” and replacing it with ‘council,’ because kings presided over different traditional leaders who had traditional councils that were composed of a 60% appointed/40% elected membership. Each traditional council falling within the areas of jurisdiction of the kingship or queenship concerned must elect one person from the elected members of that council to serve on the kingship or queenship.
Mr Mileham said the NHTL had previously made a different proposal -- that 40% of the traditional councils should be appointed, and 60% should be elected. This new amendment was not democratic because it did not allow the communities to elect who should be elected to the kingship or queenship. It would not be democratic if the traditional councils were to elect among themselves.
Inkosi Themba Mavundla said he would like to remind the Committee that customary law was different from common law.
Ms B Maluleke (ANC) said those that were elected to serve on the kingship or queenship would be elected from the traditional councils that were elected by the communities.
Mr C Matsepe (DA) said it would be undemocratic if traditional leaders took the communities’ powers away.
Inkosi Sipho Mahlangu, Deputy Chairperson: NHTL, said the Bill must not be diluted to a point where traditional leaders did not exist.
Dr Rinaldi Bester, Chief Director: COGTA, said the 40% of the traditional councils who would be elected for the kingship or queenship would be taken from the traditional councils which had already been elected by the communities. The additional clauses were mainly for practical reasons only.
Mr Matsepe said the new amendment that was being put forward by the NHTL was undemocratic. He said that the DA would challenge the new amendment if the Committee decided to move forward with the Bill.
Mr Mileham said he found it suspicious that a new amendment was being proposed right after the public hearings had ended. The replacement of “communities” with “council” was undemocratic.
Mr E Mthethwa (ANC) said changing the reconstitution period from one year to two years would not make a difference or help with the reconstitution. Instead, in order to speed the reconstitution period up, the Department should ask the Minister and Premiers to intervene.
Ms Maluleke said that customary law was recognised in the Constitution. The new amendment would not take away the communities’ powers.
Inkosi Mavundla said that kingships and the institution of traditional leadership were based on customary laws, which were not in conflict with the Constitution. The Principle Act stated that 60% of traditional councils should be elected, and 40% should be appointed – this section was part of the Principle Act, which had been passed by Parliament. Some traditional councils were not able to be established because some leaders still had legal cases pending. The estimated time that these cases would take to be resolved was two years, so the NHTL had requested an amendment of one year to two years.
Dr Bester said the first traditional councils had been recognised in 2010, and then in 2016 the queenships had been recognised for the first time. During this time, the Department had realised that the one year period for reconstitution was not enough for the process to be done efficiently.
Mr Mileham said he did not have an issue with amending the one year to two years, but what he did have an issue with was swapping the percentages for the appointment and election for the kingships or queenships. The other issue that he had an issue with was who the amendment proposed as having the powers to appoint and elect traditional councils for the kingships and queenships. The election of the kingships would not be a democratic process if it was not done by the communities.
Mr Matsepe said the problem was that traditional leaders did not report to their communities on the decisions that were taken in Parliament. The traditional leaders present in the meeting today were not representing their communities.
Ms Phumelele Ngema, Parliament Legal Advisor, said the traditional leaders and Committee Members were talking about different pieces of legislation. Currently, there were two different councils -- the traditional councils and the kingships/queenships councils. Currently, the traditional councils and kingship and queenship council members were both elected by communities. The NHTL was proposing that the traditional leaders who sat on the traditional council should elect amongst themselves the traditional leaders to sit on the kingships and queenship councils.
Ms Veounia Grootboom, State Law Advisor, said they did not have a problem with the amendment being proposed by the NHTL. However, they still needed to give an explanation for the amendment.
Dr Bester said the NHTL also proposed an amendment to Section 28 of the Principle Act, which dealt with the transitional provision of tribal authorities and traditional councils who had to be reconstituted as traditional councils, and the reasons why this may not have happened. The extension for reconstitution period was also to allow provinces who had not yet issued the formulas for the establishment of traditional councils, so that reconstitution could happen.
Paragraph (b) dealt with “community authorities” – in terms of the existing legislation, Cabinet made the decision that community authorities should be disestablished, but this had to be done in accordance with provincial legislation. Unfortunately, there were some provinces which had not established legislation for community authorities to be disestablished. Before provinces could disestablish community authorities, they first needed to determine what would happen with assets belonging to the community authorities and office bearers who had been appointed to the community authority.
Ms Ngema said they realised that this new amendment from the Department relating to 3(b) was not included in the Department’s original submission to the Committee. She advised the Committee that it could not approve this new proposal for the Amendment Bill. The new amendment must first be tabled to the National Assembly (NA) for approval.
Mr Mileham said he was concerned, because Clause 2 addressed both Sections 5 and 6 in their entirety. The deletion of sub-sections 5 and 6 should be mentioned in the Amendment Bill, because they dealt with different areas.
Dr Bester replied that sub-section 6 would not be deleted, but it would deal with other issues such as the transfer of assets, and sub-section 5 would deal with the responsibility of communities.
Mr Mileham suggested that the adoption of the Bill should be done after the Committee had tabled the new amendment of Section 3(b) to the National Assembly.
Mr Mthethwa suggested that while the Committee tabled the new amendment of Section 3(b), it should also move forward with the adoption of the Bill.
Ms Ngema said the Committee had the legal right to do things in parallel – it could table the amendment to the NA and at the same time adopt the Bill. As far as she was concerned, the National Assembly had never disagreed with the parallel process.
Mr Mileham suggested that while the final Bill was being drafted, the new Section (b) amendment should be tabled to the National Assembly for approval. He said that the Committee should proceed with adopting, or not adopting, the Bill on Tuesday, 20 June.
The Acting-Chairperson concluded that the final draft would be adopted next week on Tuesday, and in the meantime the amendment of Section 3(b) must be tabled to the NA for approval.
The meeting was adjourned.
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