Traditional and Khoi-San Leadership Bill: response to Auditor-General comments & deliberations

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Cooperative Governance and Traditional Affairs

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

The Parliamentary Law Adviser briefed the Committee on its response to comments made by the Auditor-General South Africa (AGSA) on the Traditional and Khoi-San Leadership Bill. As expected the comments were of a technical legal nature and in some instances called for greater discussion.

The DA on Clause 39(1)(a) asked whether it was constitutional for the Bill to require that Parliament refer any legislation affecting traditional leaders to the National House of Traditional Leaders. Was it constitutional in terms of sections 75, 76 and 77 of the Constitution? The concern was that the clause seemed to be imposing a legislative process. The DA asked whether the Committee should not approach the Constitutional Court on whether it was good legislation. Perhaps a declaratory order could be obtained. The point made by the DA was noted by the Committee and it was agreed that the issue would be looked into when the Committee deliberated on the Bill clause by clause.

The Committee engaged in informal deliberations on the Bill clause by clause. Lengthy debate ensued over Clause 2(2)(a) of the Bill. The DA wished for factionalism within political parties to be captured in the sub-clause in order to prevent abuse of resources of traditional councils in the support of a particular candidate. The ANC felt that the clause covered all aspects including factionalism within parties and that the clause should remain as is. The ANC agreed with the DA that there should not be an abuse of resources. The DA asked that legal advice on the issue be obtained. The Parliamentary Law Adviser and the Department of Traditional Affairs was in agreement that the clause was drafted in such a manner to be a “catch all” clause and as a result all bases were covered. Clause 2(2)(a) covered everything relating to a political party. The DA wished for their objection to Clause 2(2)(a) to be noted. Huge debate also took place in response to the DA’s comment that the Bill was perpetuating the boundaries that had been set up by the 1951 Black Authorities Act. The ANC disagreed wholeheartedly and pointed out that the old Bantustan states had been abolished when SA had become a democracy. It argued that the Bill was trying to change Apartheid created structures.

Meeting report

The Department of Traditional Affairs had incorporated proposed amendments into the Traditional and Khoi-San Leadership Bill. The amended Traditional and Khoi-San Leadership Bill inclusive of proposed amendments was handed out to the Committee.

Parliamentary Law Adviser response to Auditor-General comments on the Bill
Ms Phumelele Ngema, Parliamentary Legal Adviser, apologised to the Committee for not being able to attend the meeting the previous day as she had been caught up in a meeting of the Portfolio Committee on Agriculture. She had tried to keep abreast of what had transpired in the meeting the day before. She did point out that she had not yet had the opportunity to look at the Department of Traditional Affairs’ Bill which captured the proposed amendments. Her briefing spoke to issues arising from the Auditor-General SA comments.
- On areas of jurisdiction of councils and traditional communities, Members had asked that the defining of areas of jurisdiction had to be done more practically. The Demarcation Board needed to be more involved. The areas of jurisdiction of the Bill needed to be known.
- AGSA had raised unfunded mandates as covered in section 35 of the Public Finance Management Act. The Memorandum on Objects of the Bill stated that projections were impossible to make especially in relation to Khoi-San recognition and the resultant financial implications. The Parliamentary Law Advisers believed that the manner in which the Memorandum on Objects explained matters sufficed.
- Clauses 19, 20 and 23 placed obligations on traditional councils to provide financial statements and it was not placing an obligation on AGSA to perform the auditing function. Perhaps the wording in the clauses created confusion.       
- The Bill seemed to be silent on a sanction where there was non compliance by traditional leaders on being audited. It was a valid comment and would be looked into. How could the Committee take the issue on board?
- The policy implications of specifically stating that financial statements “must” be prepared had to be looked at. What would be its purpose or what would be achieved?
- The mandatory “must” in Clause 23 did not make it mandatory on AGSA but rather that it be ensured that financial statements should be prepared and audited. Who would audit traditional councils other than AGSA? It should be expressed in the Bill so that there was clarity and legal certainty. If another structure was to perform the audit at whose expense would it be? Would the Department of Traditional Affairs or the traditional council have to foot the bill?
- Clause 23(3)(b) spoke about the Premier appointing an officer to assist with an account. Could it not be an official who was a qualified auditor who could perform all the functions specified, including the preparation of audited financial statements? It would assist given the capacity constraints that AGSA was facing.
- Clause 39(1)(a) of the Bill which had incorporated proposed amendments spoke about the referral of bills to the National House of Traditional Leaders. To assist drafters and to ensure proper compliance when tagging took place, the Parliamentary Law Advisers suggested that “may affect” be removed. The discretion that was brought in by “may affect” could create problems. Legal certainty was needed. Determining the criteria for Bills would create havoc if “may affect” remained.
- What became of section 20 of the Traditional Leadership and Governance Framework Act? The guiding principles contained in section 20 were useful in guiding the involvement of traditional leaders. The Bill intended to repeal the Traditional Leadership and Governance Framework Act. Was the provisions of section 20 captured in this Bill?
- The Parliamentary Law Advisers felt that perhaps AGSA had a slight misunderstanding of Clauses 12 and 14 of the Bill.  Clause 12 dealt with the recognition of regents and Clause 14 dealt with the recognition of deputy traditional and Khoi-San leaders. The issue was under what circumstances a deputy traditional leader would be appointed. Should there be a deputy traditional leader appointed and how would the deputy and the regent function?
- Under Schedule 1, Clause 3(b) dealt with attendance of meetings of council members and stated that a member must attend meetings except when that member was required in terms of this code of conduct to withdraw from a meeting. What was the meaning of the provision and what did it seek to achieve? An explanation was needed to place the provision in context.
- On the Traditional Framework Act amendment in section 3A the Department of Traditional Affairs had asked that “one year” be changed to “two years”. This change was not carried through to the present Bill. Why not? The Bill still provided for “one year”.
The Parliamentary Law Advisers were together with the State Law Advisers working on a proper A-list for the Bill. 

Discussion
Mr K Mileham (DA) asked whether it was being suggested that municipal boundaries had to be amended to comply with traditional community jurisdictions or was the other way around being suggested. He felt that the Committee did not have a mandate to amend municipal boundaries. He noted that Clause 39(1)(a) of the amended Bill  proposed that Parliament had to refer any legislation that affected traditional leaders to the National House of Traditional Leaders. Was it constitutional in terms of section 75, 76 and 77 of the Constitution?  He could not find anything that allowed for the amendment of legislative processes. He pointed out that Clause 23(3)(b) was not referring to the auditing of an account but rather managing of an account. What was being called for in Clause 23(3)(b) and in Clauses 19 and 20 were totally different. He also asked at whose expense audits were to take place. No matter who carried out the audit there was a cost to the body to be audited.

Dr Rinaldi Bester, Chief Director Policy and Legislation, COGTA, replied that areas of jurisdiction in the Bill did not refer to municipal boundaries. The Bill only spoke to areas of jurisdiction. Areas of jurisdictions had mostly been done prior to 1994 by way of proclamations. The proposed amendments in the Bill were now calling for areas of jurisdiction to be mapped. It had nothing to do with municipal boundaries. He stated that traditional councils depended on support staff like officials to assist them with the management of accounts. Mr Mileham was correct that Clause 23(3)(b) had nothing to do with auditing. AGSA had concerns about it being obligated to audit traditional councils. This was not the case as section 4(3) of the Public Audit Act would automatically apply. Clarifying issues for the Parliamentary Law Advisers, he explained that regents only came into play when the successor to the throne was a minor. However a deputy traditional leader could take charge, for instance where a traditional leader had been elected as a Member of Parliament. The deputy would thus lead the community in the meantime.

The Chairperson pointed out that the problem sometimes was that regents refused to step down. Issues like these had to be covered in the Bill or in its regulations.

Dr Bester responded that provision was made in the Bill that a regent had to step down when a minor became an adult. He pointed out that Clause 25 in the amended Bill spoke to roles and responsibilities of traditional and Khoi-San leaders. He added that provision was made in the amended Bill that any bills affecting traditional leaders “must” be referred to the National House of Traditional Leaders.

Ms Ngema observed that it seemed that guiding principles had fallen through the cracks. Was Clause 25 really speaking to guiding principles? Had consultation with Premiers and Members of Executive Committees (MECs) on the guiding principles taken place? On the referral of bills affecting traditional leaders to the National House of Traditional Leaders, all she was saying was that the “may” could create problems and that it should be removed. Clause 39(1)(a) was fine without the “may”.

The Chairperson stated that when the President referred legislation to the National House of Traditional Leaders it was only for consultation purposes.

Mr Mileham felt that Clause 39(1)(a) was imposing a legislative process. It was yet to be tested. He asked whether the Committee had the right to propose additional legislative processes that were not catered for in the Constitution. He did understand the need for consultation with traditional leaders on matters that affected them. He was not sure about the Department of Traditional Affairs insertion of “must”.

Dr Bester said that section 212 of the Constitution did not provide a great deal of detail. If it was expressly stated in legislation as it was in Clause 39(1)(a) then it brought in a consultation process.

Ms Ngema noted that government policy stated that traditional leaders had an advisory role on customary law issues. Clause 39(1)(a) brought in a legislative requirement. In terms of legislative processes, she felt it not to be unconstitutional. It was in alignment with standing government policy.

Mr Mileham responded that government policy was not law. Because it was policy did not make the provision constitutional. Section 212 of the Constitution spoke about legislation at local level and not about national level. Was the Committee not doing something that was not catered for in the Constitution? He asked whether the Committee should not approach the Constitutional Court on whether it was good legislation. Perhaps a declaratory order could be obtained.

The Chairperson said that the Committee noted Mr Mileham’s point. The clause would be dealt with when the Committee deliberated on the Bill clause by clause. He asked Members to hold back on asking questions of clarification on clauses. When the Committee went through the Bill clause by clause, issues could be clarified.

Mr Mileham pointed out that the Committee could only go through the Bill clause by clause if the Committee had adopted its report on public participation.

The Chairperson said that the point raised by Mr Mileham was correct. He noted that the report was being finalised as there were some concerns which communities had raised. The idea was not to delay the bill. The 40/60 issue was an important one. The Committee would deal with these.

Traditional and Khoi-San Leadership Bill: clause by clause deliberation on proposed amendments
The Chairperson proceeded to take Members through the Bill clause by clause and asked them to raise issues where they deemed it necessary.

Ms B Maluleke (ANC) pointed out that the Khoi-San had felt that the title of the Bill had been discriminatory towards them.

Dr Bester explained that over the years there had been many proposals on the title of the Bill. The original Bill had been titled the Traditional Affairs Bill. The Khoi-San had said that the Bill was about Traditional leaders and Khoi-San leaders.  After extensive discussions even at Cabinet level, it was agreed that the current title was the best.

Mr Mileham, on page 14 of the amended Bill, referring to subsection (4) said that he did not have a problem with the principle of the clause. However there was nothing in the Bill that said that there should be consultation with traditional or Khoi-San councils.

Dr Bester agreed to look into it.

Mr Mileham referred to Clause 2(2)(a) which spoke about traditional leaders not using the resources of a community, council etc to promote or prejudice the interest of any political party. He suggested the addition of “faction of a political party or to promote any candidate whether internal or external” to the sub-clause.

Mr X Ngwezi (IFP) agreed with the suggestion by Mr Mileham. It would prevent abuse.

Mr E Mthethwa (ANC) disagreed with Mr Mileham and felt that Clause 2(2)(a) covered everything. He suggested that it be left as is. 

Mr Mileham was concerned about factionalism within political parties and that resources would be used to support a particular candidate. Resources should not be used for political parties or elements of political parties.

Mr N Masondo (ANC) cautioned about the rights of persons being infringed. The Bill of Rights could be breached.

Mr C Matsepe (DA) stated that members should not pretend that factionalism was not happening in reality. He noted that in the Limpopo Province a traditional leader who was a Member of Parliament had sent persons to disrupt meetings of other political parties. It was good to cater for anomalies that might arise.

Ms Maluleke felt that Clause 2(2)(a) as it stood covered the fears of Mr Mileham.

Mr J Dube (ANC) said that any South African had the right to stand for election. Could the children of traditional leaders not stand for elections? He felt that the clause should remain as is.

Mr Mthethwa suggested that in Clause 2(2)(a) “may” be replaced with “must”.

Mr Mileham felt that there was a fundamental misreading of his suggestion by ANC members. He was saying that resources could not be used to promote a candidate of a political party or a faction of a political party. There had to be control over how resources were used by traditional leaders.

Mr Masondo said that the ANC agreed that there should not be an abuse of resources. One should just be careful not to infringe on the constitutional rights of individuals.

The Chairperson said that the intention of Clause 2(2)(a) was very clear. Members should sleep on it and they could back to it later. As it was stated, the clause covered abuse. He noted that it was difficult to include factionalism into law as factionalism was transitional. The Committee agreed in principle on the issue. The issue was about how best to word it.

Mr Matsepe disagreed that Members should not sleep on it. It should be dealt with. He felt that Mr Mileham’s suggestion was relevant.

The Chairperson reiterated that factionalism was transitional. It could not be written into law.

Mr Mileham proposed that the Committee obtain legal advice on it. He wished to get legal advice on whether what he had suggested infringed on the rights of individuals.

Ms Ngema explained that when it came to drafting legislation one had to take into consideration what was intended to be achieved by the provision. If one listed items, then the assumption was that the list was exhaustive. Hence “catch all” phrases were used to cover all bases.

Mr Mileham asked whether he was infringing on anyone’s rights.

The Chairperson responded that he was not infringing on anyone’s rights. It was clear that state money should not be abused for political biases.

Mr Ngwezi agreed with the suggestion that “may” be replaced with “must”.

Dr Bester said that “may” indicated that there was discretion. He noted that in drafting “may” had the same effect as what the use of “shall” had in the past. He noted that Clause 2(2)(a) covered everything relating to a political party. It included anybody of a political party.

Mr Mileham wished for the DA’s objection to Clause 2(2)(a) to be noted. He referred to Clause 56(2) which spoke to the functions of the Commission. He asked why there was no recommendation for the President to consult the Commission

Dr Bester explained that the Commission dealt with outstanding claims. An investigative committee was established to deal with issues of recognition.

Mr Mileham disagreed. He felt that the Commission had to investigate and make recommendations. Why was the President not required to consult the Commission?
 
Dr Bester reiterated that the Commission was tasked with dealing with unresolved past claims. He referred to the amended Bill which spoke about the term of office of the new Commission. The term of office of the Commission would be the unexpired portion of the term of office of the old Commission. There was no new Commission.

Mr Mileham again asked why the President did not consult the Commission when deciding on recognition matters.

Dr Bester stated that there were processes which prescribed what the Commission would do.

Mr Ngwezi said that it was the duty of the Commission to advise the President. There was no obligation on the President to consult the Commission.

The Chairperson stated that somewhere in the Bill consultation did take place.

Mr Mileham noted that the Bill was perpetuating the boundaries that had been set up by the 1951 Black Authorities Act.

Mr Masondo responded that the old Bantustan states had been abolished when SA became a democracy.

Mr Mileham continued that the Bill reinforced the boundaries of communities of the 1951 Black Authorities Act. The Committee was drawing lines in the sand based on the 1951 Black Authorities Act.   

Mr Masondo commented that Mr Mileham was saying that the ANC was supporting Apartheid legislation

The Chairperson said to Mr Mileham that he needed to make proposals in terms of what he wished the Committee to do. What the Committee was trying to do was to resolve problems created under Apartheid. The Bill was trying to change Apartheid created structures. Apartheid-created laws were being changed.

Mr Mileham referred to the top of page 18 of the amended Bill and suggested that “occupies a specific geographic area” be deleted.

The Chairperson said that the Committee would work on it.

Mr Mileham referred to Clause 3(11) on page 19 of the amended Bill and said that nothing was stated about where the Premier failed to take action. What if the Premier sat on an investigation and took no action for say five years? What then?

Dr Bester agreed to look into it.

Mr Masondo responded that sometimes government had reports on certain matters but had not taken action. This could be for a variety of reasons.

The Chairperson stated that many issues would be covered in the regulations to the Bill.

Mr Ngwezi commented that on page 20 of the amended Bill the yellowed coloured written portion inserted into the Bill seemed to be stated in a very political way.

Mr Matsepe disagreed and said that it was stated correctly.

Ms Maluleke referred to Clause 4 on page 20 which spoke about the withdrawal of recognition of kingship and queenship. She said that she did not support such provisions. She felt that such positions were hereditary. Were such provisions not contrary to culture? How could a traditional council if it did not agree with a king be able to remove the king?

The Chairperson explained that 60% of traditional councils were appointed by a chief/king and 40% of traditional councils were elected. A further requirement was that 30% of traditional councils had to be female. There had to be safeguards just in case a king was causing harm to his community. Even if such king had been appointed by his family, a traditional council should be able to remove him. A balance needed to be maintained. Communities should be able to remove persons who were causing harm.

Ms Maluleke responded that her concerns were covered on page 24 of the amended Bill as well as by the Chairperson’s comments.

Dr Bester pointed out that the clauses on kingship did not apply to the Khoi-San.

Mr Matsepe asked why they did not apply to the Khoi-San.

Dr Bester stated that the Khoi-San did not have kingdoms.

The Chairperson continued clause by clause through the Amended Bill and stopped for the day on page 24.

The meeting was adjourned.

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