Traditional and Khoi-San Leadership Bill: deliberations; Committee programme

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Cooperative Governance and Traditional Affairs

15 August 2017
Chairperson: Mr M Mdakane (ANC)
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Meeting Summary

The Committee’s agenda for the meeting was originally for the Committee to deliberate on the Traditional and Khoi-San Leadership Bill clause by clause. However the DA objected on the basis that public hearings on the Bill were not yet complete, and that the Committee could face a Constitutional Court challenge if deliberations went ahead. The rules of Parliament stated that deliberations on a bill could commence only once public hearings on it were complete. Another issue was that the Committee had initially lacked a quorum at proceedings. However, later on in the meeting, a quorum of Members was achieved.

Having a quorum allowed the Committee to adopt unamended its draft Committee programme for the third term of 2017. The DA also insisted that the Committee summon the Minister of Co-operative Governance and Traditional Affairs to address the issue of Trillion Capital Holdings. The Committee took the decision not to go ahead with deliberations until such time that the public hearings process on the Bill had been completed.

The Committee decided to allow the Department of Co-operative Governance and Traditional Affairs (DCOGTA) to brief the Committee on the proposed amendments which it had drafted on the Bill. The DCOGTA proposed amendments to Clauses 4, 16, 17, 18, 27, 28, 29, 31, 38, 49, 50, 56, 70, 73, as well as to Schedules 1 and 3, and to the memorandum on the objects of the Bill. Most of the proposed amendments were of a technical nature.

Given the multitude of issues around traditional leadership, the Chairperson suggested that perhaps a workshop would be a step in the right direction. A clause by clause deliberation on the Bill would be carried out when the final public hearings had been conducted.

Meeting report

Traditional and Khoi-San Leadership Bill: Committee comments

The Chairperson said that public hearings had been carried out extensively on the Bill. Further hearings had to still take place only at Vredenburg in the Western Cape. They had contributed greatly towards the final product of the Bill. Many issues had been raised during the hearings. Critical and positive comments had been made. The Khoi-San was being elevated to the level of other traditional leaders. The issue was also about what the role of traditional leaders were in a democratic state like SA. Views on whether traditional leaders were needed in a democratic state differed. Everyone had their own views. Non-governmental organisations (NGOs) had also made useful contributions. The debate over the quality of public hearings would always be there. The Committee had tried its best to accommodate communities during the hearings. In the present meeting, the Committee intended to go through the Bill clause by clause, and also to deal with its draft Committee programme for the third term of 2017.

Mr K Mileham (DA) pointed out that the public hearings on the Bill were not yet complete. Hearings were still scheduled to take place in Vredenburg. He felt that if the Committee deliberated on the Bill before the hearings were complete, then it might have to face a Constitutional Court challenge. The hearings had first to be completed before deliberations on the Bill should take place. He noted that Rule 162(2) provided that each time a Committee dealt with a bill clause by clause, then the Committee was taking a decision on the clause, either amending the clause or to accept or reject it. To make matters worse, the Committee did not even quorate. This meant that the Committee could not even deal with its draft programme. He asked the Chairperson to make a ruling on the issues that he had raised.

The Chairperson said that Mr Mileham was correct that the Committee did not quorate. However, Members from the ANC were on their way to ensure that the Committee had a quorum. It was sufficient for any Members of Parliament to fill in for members of a particular committee when such a committee needed a quorum.

The Committee had been scheduled to attend public hearings in Vredenburg some weeks before, but unfortunately Members had not been available. The point made by Mr Mileham was nevertheless a valid one. All provinces had been covered during public hearings on the Bill, and a great deal of discussion had taken place. The public hearings at Vredenburg had been rescheduled and the Committee intended to attend them, but he felt that nothing new would come out of the public hearings at Vredenburg.

Mr Mileham pointed out that the planned trip to Vredenburg which had not taken place had not even been scheduled, and neither had arrangements been made.

The Chairperson responded that the trip could not be scheduled as Members had not been available. A trip could not be scheduled when Members were not available. The Committee was, however, scheduled to attend the public hearings at Vredenburg on 21 August.

Mr Mileham insisted that the objection of the DA be recorded against continuing deliberations on the Bill whilst the public hearings process was not complete.

The Chairperson said that the differing view of the DA would be captured by the Committee Secretary. The Committee had entered into discussions with the Department of Co-operative Governance and Traditional Affairs (DCOGTA) over the Bill. The DCOGTA had as a result had come up with proposed amendments to the Bill.

Proceedings were stopped for a while until two members of the ANC arrived to ensure that a quorum of members was observed. 

The Chairperson then proceeded to take the Committee through its draft programme for the third term of 2017.

The Committee adopted it unamended.

Mr Mileham reiterated his objection against the Committee continuing with deliberations on the Bill while the public hearings process was not yet complete. He felt that deliberations on the Bill should be postponed until after the public hearings process had been completed. He also suggested that the Committee summon the Minister of Co-operative Governance and Traditional Affairs, Mr David van Rooyen, to speak to the issue of Trillion Capital Holdings. He had written a letter to the Chairperson over the Trillion Capital Holdings issue.

The Chairperson noted that the issue raised by Mr Mileham on Trillion Capital Holdings was one referring to the Gupta family. He was responding to the letter that Mr Mileham had written to him, and the response would be received by Mr Mileham shortly.

He said that the Committee would accommodate Mr Mileham over the issue of not continuing with deliberations on the Bill while the public hearings process was not complete. The Committee would not deliberate on the Bill clause by clause as it had originally planned to do. Alternatively, the DCOGTA would present its proposed amendments on the Bill to the Committee. The proposed amendments had been sent to Members electronically, as they had been concluded only recently. There had not been time to furnish Members with hard copies as yet.

DCOGTA briefing on proposed amendments to Traditional and Khoi-San Leadership Bill

Dr Rinaldi Bester, Chief Director: Policy and Legislation, DCOGTA, presented the proposed amendments. He explained that they had come out of the discussions which the DCOGTA had engaged in with the Committee, as well as on issues raised during the public hearings. Most of the proposed amendments were of a technical nature, but there were one or two that were changes on content. The proposed amendments had also come about due to challenges identified around the reconstitution process.

Clause 4 - Withdrawal of recognition of kingship or queenship, principal traditional community, traditional community, headmanship or womanship

The intention of the proposed amendment was to bring the Clause into line with other Clauses in the Bill.  

• On page 9, in line 10, after “by,” insert “a resolution of each traditional council of such traditional communities and..”.

Clause 16 - Establishment of kingship or queenship council, principal traditional council or traditional council

The Bill contained Clauses which spoke to terms of office. These terms of offices would expire in 2017. The Bill had a staggered approach when it came to when the terms expired. The proposed amendment suggested that the 2017 dates be changed to 2022. Many of the amendments related to dates. The issue was about the reconstitution of terms.

• On page 26, from line 17, to omit paragraph (a) and to substitute:

(i) The term of office of the members of a traditional council, excluding the senior traditional leader, is not more than five years and must be aligned to the term of office of the National House: Provided that, notwithstanding anything to the contrary contained in any law, the term of any traditional council that was established and constituted prior to the commencement of this Act, will expire on 31 March 2022: Provided further that any term of office of any such council constituted or established after the commencement of this Act, shall expire every five years on 31 March, calculated from 31 March 2022.

(ii) The term of office of the members of a kingship or queenship council or a principal traditional council, excluding the king or queen or principal traditional leader, is not more than five years and must be aligned to the term of office of the National House: Provided that, notwithstanding anything to the contrary contained in any law, the term of any kingship or queenship council or principal traditional council that was established and constituted prior to the commencement of this Act, will expire on 30 April 2022: Provided further that any term of office of any such council constituted or established after the commencement of this Act, shall expire every five years on 30 April, calculated from 30 April  2022.

• On page 26, in line 35, after “jurisdiction,” to insert “indicating the portions of land forming part of such area of jurisdiction, and..”

• On page 26, after line 42, to add the following paragraph:

(c) The area of jurisdiction contemplated in paragraph (a) must be mapped and such map must be published under the notice referred to in paragraph (a).

Clause 17 - Establishment of traditional sub-council

The DCOGTA had come to the realisation that terms of office were specified in the Bill, but no terms of office were specified for traditional sub-councils. Terms of office ended after five years.

• On page 28, from line 13, to omit subsection (2) and to substitute:

(2) The Premier concerned must, subject to the provisions of section 16(5), (17) and (19), by notice in the relevant provincial Gazette, recognise a traditional sub-council as part of the main traditional council and define its area of jurisdiction, indicating the portions of land forming part of such area of jurisdiction, which area must be mapped and such map must be published under such notice.

• On page 28, from line 34, to omit subsection (7) and to substitute:

(7) The term of office of members of a traditional sub-council is not more than five years and must be aligned with the term of office of the relevant traditional council: Provided that, notwithstanding anything to the contrary contained in any law, the term of any traditional sub-council that was established and constituted prior to the commencement of this Act, will expire on 30 April 2022: Provided further that any term of office of any such sub-council constituted or established after the commencement of this Act, shall expire every five years on 30 April, calculated from 30 April 2022.           

Mr Mileham referred to sub-Clause 17 (7) in the Bill, which stated that the term of office of members of a traditional sub-council must be aligned to the term of office of the members of the main traditional council. If this was to be so, he asked why it was necessary to define the term of office of the sub-council. 

Dr Bester said it was best to define the term of office of the sub-council in order to ensure legal certainty.

Clause 18 - Establishment of Khoi-San council

• On page 29, in line 39, to omit “(4)”.

• On page 29, after line 52, to add the following subsection:

(8) The term of office of the members of a Khoi-San council, excluding the senior Khoi-San leader, is, subject to section 70(19), not more than five years and must be aligned to the term of office of the National House: Provided that any term of office of any such council established after the commencement of this Act, shall expire every five years on 31 March, calculated from 31 March 2027.

Clause 27 - Establishment and term of office of National House

The DCOGTA once again suggested a change of dates.

• On page 34, in line 37, to omit “31 May 2017” and to substitute “30 June 2022”.

• On page 34, in line 39, to omit “31 May, calculated from 31 May 2017” and to substitute “30 June, calculated from 30 June 2022”.

Clause 28 - Composition of National House

Dr Bester explained that the current legislation stated that the National House consisted of three representatives from each province. There were, however, two exceptions of provinces that did not fulfil this requirement of three representatives -- Gauteng and the Western Cape. After extensive discussion, the DCOGTA had come to the conclusion that the limit was unfair to the traditional leadership. For example, in KwaZulu-Natal there were over 300 traditional leaders. The Bill did provide that if there was a Khoi-San leader in a provincial house, then such individual should be elected to the National House. Khoi-San leaders were covered by the amendment proposed, even if there was no provincial house.

• On page 34, from line 41, to omit subsection (1) and to substitute:

(a) The National House consists of senior traditional and senior Khoi-San leaders:

(i) elected by each provincial house in accordance with the provisions of paragraph (b) and section 29; and

(ii) where relevant, of persons contemplated in subsection (2).

(b) In a province where a provincial house has been established and there are:

(i) only senior traditional leaders, the provincial house must elect three senior traditional leaders as members of the National House; or

(ii) only senior Khoi-San leaders, the provincial house must elect three senior Khoi-San leaders as members of the National House; or

(iii) more senior traditional leaders than senior Khoi-San leaders, the provincial house must elect three senior traditional leaders and one senior Khoi-San leader as members of the National House; or

(iv) more senior Khoi-San leaders than senior traditional leaders, the provincial house must elect three senior Khoi-San leaders and one senior traditional leader as members of the National House; or

(v) an equal number of senior traditional leaders and senior Khoi-San leaders, the provincial house must elect two senior traditional leaders and two senior Khoi-San leaders as members of the National House; or

(vi) two, or less than two, of either or of both senior traditional leaders and senior Khoi-San leaders, such leaders are ex officio members of the National House.

• On page 34, from line 48, to omit subsection (2) and to substitute:

(2) In a province where a provincial house has not been established:

(a) the senior traditional leaders or the senior Khoi-San leaders or the senior traditional leaders and the senior Khoi-San leaders, as the case may be in the particular province, must elect from amongst themselves representatives to the National House in accordance with the representation numbers as contemplated in subsection (1)(b)(i) to (v); or

(b) where there are two, or less than two, of either or of both senior traditional leaders and senior Khoi-San leaders in such province, such leaders are ex officio members of the National House.

Mr Mileham raised concern that two of the most populated provinces -- Gauteng and the Western Cape -- would have fewer representatives to the National House than the other provinces. For example, the Northern Cape Province would have four plus one, Gauteng would have two, and the Western Cape would have three. He felt it would be problematic from a representative democracy perspective and would not pass constitutional muster. He suggested that each province have three representatives in the National House

Dr Bester responded that in reality, Gauteng had only two recognised traditional leaders. In KwaZulu-Natal, there were over 300. The issue had been considered at length, and the National House supported the proposed amendment.  The total number of representatives in the National House stood at 23, with the maximum number being 27. Gauteng had two representatives and the Western Cape had none. The Western Cape had no recognised traditional leaders. The proposed amendment would increase the number to 33 or 34.

The Chairperson said that if the National House was in agreement with the proposed amendment, then the Committee did not foresee a problem.

Dr Bester reiterated that the National House agreed with the proposed amendment. The DCOGTA had met with the National House as recently as just before the present meeting had commenced.

The Chairperson asked whether the DCOGTA had met with the National Khoisan Council.

Dr Bester answered that the DCOGTA had not yet met with the National Khoisan Council. The issue would be discussed. The Bill did not prescribe how provincial houses would look. The DCOGTA had also taken financial implications into consideration. All those members would be part of provincial houses. National Treasury was in charge of the budget of the National House. Only the Chairperson and Deputy Chairperson received salaries. Other members from provinces received only sitting allowances. There would be an addition of only eight or nine members. He explained that Clause 28 (2) dealt with the scenario where a province did not have a provincial house. A procedure was needed to manage election processes. It was the premier of a province that would call for elections.

Mr Mileham pointed out that Gauteng and the Western Cape did not have provincial houses and legislation. He asked who would be doing the overseeing.

Dr Bester said that something would be drafted.

The Chairperson noted that Mr Mileham was raising an important point.

Clause 29 - Election and designation of members to National House

• On page 35, in line 17, to omit “28(1)(a)” and to substitute “28(1)(a)(i) and (b)”.

Clause 31 - Vacation of seats

• On page 36, in line 11, to omit “28(1)(a)” and to substitute “28(1)(a)(i) and (b)”.

• On page 36, in line 13, to omit “28(1)(b)” and to substitute “28(1)(a)(ii).      

Clause 38 - Responsibilities of National House

Dr Bester explained that the amendment involved a technical omission.

• On page 39, from line 13, to omit subsection (3) and to substitute:

(3)The National House must, where applicable:

(a) determine the reasons why the one-third requirement for female representation on a provincial house is not met; and

(b) in collaboration with the relevant provincial house, determine the reasons why such requirement is not met by a local house, kingship or queenship council, principal traditional council, traditional council, traditional sub-council or Khoi-San council, and make recommendations to the Minister and the Premier, house and council concerned on how female representation on such house or council can be advanced to ensure that the one-third requirement is met.

Clause 49 - Provincial houses of traditional and Khoi-San leaders

Dr Bester said that the aim of the amendment was for the alignment of dates.

• On page 42, in line 2, to omit “30 April 2017” and to substitute “31 May 2022”.

• On page 42, in line 4, to omit “30 April, calculated from 30 April 2017” and to substitute “31 May, calculated from 31 May 2022”.

• On page 42, in line 8, to omit “28(1)(a)” and to substitute “28(1)(a)(i) and (b)”.

• On page 42, from line 17, to omit subsection (3) and to substitute:

(3) (a) The membership contemplated in subsection (2)(c) must be composed in such a way that both senior traditional leaders and senior Khoi-San leaders are represented in the provincial house concerned:

(i) in the same proportion that they are represented in the local houses concerned; or

(ii) if local houses have not been established, in the same proportion that they would have been represented in such local houses had such houses been established: Provided that if only one senior Khoi-San leader is a member of a local house as contemplated in subparagraph (i) or would have been such a member as contemplated in subparagraph (ii), such senior Khoi-San leader must be a member of the provincial house concerned.

Clause 50 - Local houses of traditional and Khoi-San leaders

Dr Bester stated that the amendment was of a technical nature, changing dates.

• On page 43, in line 44, to omit “31 March 2017” and to substitute “30 April 2022”.

• On page 43, in line 46, to omit “31 March, calculated from 31 March 2017” and to substitute “30 April, calculated from 30 April 2022”.

Clause 56 - Functions of Commission

Dr Bester said that the amendment inserted timeframes and deadlines.

• On page 46, in line 55, after “dispute” to add “within 60 days from the date of designation of the investigative committee”.

 • On page 46, from line 60, to omit paragraph (b) and to substitute the following paragraphs:

(b) The President or the relevant Premier, as the case may be, may refer any dispute, including any report, recommendations and comments contemplated in paragraph (a), to the Minister for written comments and advice which must be submitted to the President or Premier, as the case may be, within 60 days from the date of such referral.

(c) After having considered the report and recommendations of the investigative committee, the comments of the royal family or traditional council and, where applicable, the comments and advice of the Minister, the President or relevant Premier, as the case may be, must take a decision on the matter in dispute and inform the parties to the dispute in writing of his or her decision.

Clause 70 - Transitional arrangements

Dr Bester noted that the amendment brought in a change of dates.

• On page 54, in line 31, to omit “31 May 2017” and to substitute “30 June 2022”.

• On page 54, in line 39, to omit “30 April 2017” and to substitute “31 May 2022”.

• On page 54, in line 44, to omit “31 March 2017” and to substitute “30 April 2022”.

• On page 54, after line 53, to add the following subsections:

 (17) Notwithstanding the provisions of section 16 and 17, as the case may be, the members of a kingship or queenship council, a principal traditional council or a traditional sub-council who, on the date of commencement of this Act were members of such a council established and constituted in terms of applicable national or provincial legislation, remain members of the council concerned, until 30 April 2022, and any subsequent reconstitution of such a council must comply with the provisions of section 16 or 17, as the case may be.

(18) Notwithstanding the provisions of section 16, the members of a traditional council who, on the date of commencement of this Act were members of such a council established and constituted in terms of applicable national or provincial legislation, remain members of the council concerned, until 31 March 2022, and any subsequent reconstitution of such a council must comply with the provisions of section 16.

(19) Notwithstanding the provisions of section 18, the members of a Khoi-San council that was established in terms of this Act prior to 31 March 2022, remain members of the council concerned until 31 March 2027, and any subsequent reconstitution of such a council must comply with the provisions of section 18.

 (20) (a) Notwithstanding any other provision of this Act, recognised senior Khoi-San leaders will become members of the National House, provincial houses and local houses with effect from the dates referred to in sections 27(2), 49(2)(b) and 50(8) respectively and subject to the provisions relating to the constitution of such houses as contemplated in sections 28, 29, 49 and 50.

(b) Notwithstanding the provisions of paragraph (a), any senior Khoi-San leader who has been recognised prior to the dates referred to in sections 49(2)(b) and 50(8) respectively, may, upon a decision of the relevant provincial or local house, become a co-opted member of such house with observer status for the term of office of such house ending in 2022.

(c) A recognised senior Khoi-San leader who becomes a co-opted member of a provincial or local house as contemplated in paragraph (b), may be reimbursed for his or her travel and accommodation expenditure for the purpose of attending meetings of such house, in accordance with the travel and subsistence policy of the provincial department responsible for providing administrative and financial support to such house.

(21)  In any instance where the area of jurisdiction of a traditional council or traditional sub-council has been defined in terms of national or provincial legislation prior to the commencement of this Act, a Premier must, within three years of the commencement of this Act, or such further period as the Minister may determine, have such areas of jurisdiction mapped and publish such maps by notice in the relevant Provincial Gazette.

Dr Bester said that the amendment also added sub-clauses which related to the aforementioned date changes. This had been done to bring about legal certainty. He said that below (17) spoke to councils, (18) spoke to traditional councils and (19) to Khoi-San councils. However Khoi-San councils did not yet exist and hence no expiry date for them had been specified. The DCOGTA believed that Khoi-San councils would come into being around 2021/2022.

Mr Mileham was concerned about (19). What if the Northern Cape Khoi-San councils got their act together within the next six months? It would then mean that they would have a term of around nine or ten years. He felt that a limitation clause was needed, stating that elections should perhaps be held within 18 months. He had similar concerns over (17).

Dr Bester responded that the intention was not for illegitimate councils being carried through to 2022. The Framework Amendment Bill addressed the issue. On the Khoi-San issue, the DCOGTA believed the Bill would not become law in 2017. The National Council of Provinces (NCOP) would deal with the Bill only in 2018. For argument’s sake, if the Bill became a law at the end of 2018, there was still the need for a public participation process for the establishment of the Advisory Committee. Realistically, a period of two years was needed for elections. The entire process would for the most part take six years and not nine or ten years. It was for this reason that the date had been changed to 2027. 

Clause 73 – Short title and commencement

Clause rejected.

New Clause

• That the following be a new clause:

Clause 73 -Short title and commencement

 (1) This Act is called the Traditional and Khoi-San Leadership Act, 2018 and comes into operation on the date to be determined by the President by proclamation in the Gazette.

(2) Different dates may be so determined in respect of different provisions of this Act.

Mr Mileham, referring to Clause 73 (2), asked what would happen if things became indefinitely postponed in the Bill. The legislation would then become irrelevant. The door could be opened to Presidential dictatorial tendencies.

Mr N Masondo (ANC) said that the Committee needed information on what was to happen by when.

Dr Bester said that if the Committee so wished, the short title could be left as it was in the Bill. Clause 73 (2) was a safety measure that had been put in place.

 Mr Masondo asked what the key issues were for the Bill to come into operation.

Mr Johan Meiring, Senior Manager, DCOGTA, responded that a key milestone was to recognise the Khoi-San Academy Committee. Thereafter it would be the establishment of leaders and councils of the Khoi-San in order for them to become part of national, provincial and local councils. While the Bill dealt with Khoi-San issues, there was also a need for proper budgeting to be done.

Prof Muzamani Nwaila, Director General, DCOGTA, emphasised the importance of capacity building of those identified out of the Advisory Committee. The DCOGTA did have a sense of how many structures there were.

The Chairperson said that the process would be a long one, as a great deal of work needed to be done.

Prof Nwaila responded that it helped when one identified potential risks and ways of mitigating them.

Schedule 1

• On page 56, in line 2, after “conduct” to add “for members of houses and councils”.

Schedule 3

• On page 63, in line 17, to omit “2015” and to substitute “2018”.

• On page 63, in line 23, to omit “2015” and to substitute “2018”.

• On page 63, in line 27, to omit “2015” and to substitute “2018”.

• On page 64, in line 10, to omit “2015” and to substitute “2018”.

• On page 64, in line 15, to omit “2015” and to substitute “2018”.

• On page 64, in line 22, to omit “2015” and to substitute “2018”.

• On page 64, in line 40, to omit “2015” and to substitute “2018”.

• On page 66, in line 35, to omit “2015” and to substitute “2018”.

• On page 68, from line 17, to omit paragraph (b) and to substitute:

(j) must attend and participate in any meeting of the municipal council and may, subject to the rules and orders of the municipal council, submit motions, make proposals and ask questions: Provided that the non-attendance or non-participation of any participating leader will have no effect on any municipal council proceedings;

• On page 69, in line 25, to omit “area,” and to substitute “area;”.

• On page 69, after line 25, to add the following paragraphs:

(l) inform the relevant municipality of any land allocations made within the municipal area by any traditional leader;

(m) support the relevant municipality with the implementation of the Spatial Planning and Land Use Management Act, 2013 (Act No. 16 of 2013), for as far as that Act makes provision for the involvement of traditional leadership or structures,

• On page 70, in line 46, to omit “2015” and to substitute “2018”.

Dr Bester commented that the amendments to the aforementioned schedules were technical in nature.

Mr Mileham referred to the amendment on page 68, line 17, in the Bill and said that failure to attend three meetings by traditional leaders could lead to their possible disqualification or removal from office. This was contemplated in section 4 of Schedule 1 which dealt with the code of conduct.  

Prof Nwaila said that dialogues with traditional leaders were taking place. At the municipal council level, there could be interaction with mayors too. He said that conflicts in royal families stemmed around money issues. Previously stipends had been received. Now the conflict was around salaries that were received. Money was the cause of contestation. The issue should be more about self-reliance.

The Chairperson stated that payment was a big issue, but could not be avoided. The sustainability of communities was what was important.

Mr Masondo said that the emphasis should be on development.

The Chairperson suggested that a workshop was perhaps needed to deal with traditional leader issues. People were being paid for being born into a certain family.

Dr Bester responded that section 81 of the Municipal Structures Act would be replaced by the Bill. Section 81 spoke about traditional leaders’ participation in municipal proceedings. There was a framework in place for participation. The framework was reflected in the Bill. The DCOGTA realised that section 81 was not good enough. He pointed out that the code of conduct of municipal councillors was covered in the Municipal Systems Act. The clause referred to by Mr Mileham stated that whether there was participation or not, a decision that was taken could not be challenged. Accountability was also brought into it. Many gaps were covered by the Clause.

Mr Mileham suggested that on page 69 in paragraph (m), the word “support” should be replaced by “assist”.

The suggestion was accepted by the Committee and the DCOGTA. 

Memorandum on the objects of the Traditional and Khoi-San Leadership Bill, 2015

• On page 72, in the heading, to omit “2015” and to substitute “2018”.

• On page 80, to omit paragraph 2.29 and to substitute:

2.29 The National House is established by clause 27 of the Bill for a term of five years. In terms of clause 28, the National House consists of persons elected by provincial houses or, in instances where a provincial house has not been established, persons elected by the relevant senior traditional and/or senior Khoi-San leaders. At least a third of the members of the National House must be women, although a lower threshold may be determined if it is not possible to reach this target.

• On page 80, to omit paragraph 2.30 and to substitute:

3.30 It should be noted that while the terms of the National House, provincial houses and local houses should be aligned, a precise alignment has been found to be impractical. For example, before the National House can be constituted, the provincial houses have to be constituted to enable them to elect the representatives to the National House. In some instances, the establishment of provincial houses is dependent on the establishment of local houses or traditional councils. The Bill therefore determines that all the houses will have terms of five years; however such terms are to end on specific dates in 2022, which dates are one month apart. This will allow sufficient time for the provincial houses to be constituted before the National House, and for local houses to be constituted before the provincial houses. From 2022 onwards, the terms of the respective houses will therefore continue to end one month apart. For this purpose, clause 27(2) determines that the term of the National House as established in terms of the National House Act, prior to the enactment of this Bill, will expire on 30 June 2022. The same principle applies to the term of kingship or queenship councils, principal traditional councils, traditional councils and Khoi-San councils [please see clauses 16(4)(a), 18(5), 49(2)(b) and 50(8)].

• On page 82, to omit paragraph 2.44 and to substitute:

2.44 Section 212(2)(a) of the Constitution determines that national or provincial legislation may provide for the establishment of houses of traditional leaders. Provincial houses are currently established in accordance with provincial legislation. Clause 49 of the Bill extends the composition of provincial houses to include both traditional and Khoi-San leaders in substantially the same proportion as they are represented in local houses. With reference to paragraph 2.30 above, clause 49(2)(b) determines that the term of a provincial house that was established and constituted prior to the enactment of this Bill, will expire on 31 May 2022.

• On page 83, to omit paragraph 2.46 and to substitute:

2.45 The term of a local house is five years. With reference to paragraph 2.30 above, clause 50(8) determines that the term of a local house that was established and constituted prior to the enactment of this Bill will expire on 30 April 2022.

• On page 85, to omit paragraph (f) and to substitute:

(f) Lastly, provision is made for:

the terms of the National House, provincial houses and local houses to expire on 30 June 2022, 31 May 2022 and 30 April 2022 respectively. Notwithstanding the repeal of the National House Act by this Bill once enacted, the National House constituted in terms of that Act will continue to exist until 30 June 2022. Similar provision is made in respect of provincial and local houses; and the continued application of any formula or guidelines determined in terms of the Framework Act prior to the repeal of that Act by this Bill.

Dr Bester said that amendments had been made to the memorandum and objects on the Bill for completeness.

The Chairperson suggested that the Committee not go through the Bill clause by clause until such time that public hearings on the Bill had been completed.

The meeting was adjourned.

 

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