Traditional and Khoi-San Leadership Bill [B23-2015]: deliberations

Meeting report

Committee Report on the Bill 
The Chairperson reminded those attending the meeting about one of the purposes of the Bill saying that it is meant to protect the indigenous communities of the Khoi and San. The Department has noted all the comments made by the communities during the public hearings and these were taken into consideration whilst drafting the Bill. Although South Africa is a democratic state it should also accommodate traditional leaders and their communities. He said the Committee has invited the State Law Advisors as well as the Constitutional and Legal Services Office of Parliament to advise the Committee on legal terms and if the Bill has any loopholes that could cause legal action. 

Mr E Mthethwa (ANC) said the Committee members have had ample time to read and comment on the Committee Report on the Bill. He proposed that the Committee moves to adopting the Report. He moved for the adoption of the report.

Mr C Matsepe (DA) said he agrees that the Report can be adopted, however the Committee should read and amend some provisions of the Bill. He second the adoption of the Report.

The Committee adopted the Committee Report on the Bill. 

Traditional and Khoi-San Leadership Bill: deliberations
Clause 5
The Chairperson explained that Khoi-San communities exist in most provinces, however each Khoi-San branch or community is expected to submit a list of its members and location for it to be recognised.

Mr Matsepe asked if the traditional leaders were required to submit lists of their community members though the Advisory Committee.

The Chairperson replied that since the Khoi and San communities do not have a geographical area they will have to identify themselves by submitting a list of its community members as well as the geographical area in which they are located. Unlike other cultures in South Africa, the Khoi and San are located in at least five provinces, thus is it difficult to allocate their exact location and area they occupy. 

Dr Charles Nwaila, Director-General: Department of Traditional Affairs, said it is important that one constitutes the difference between African traditional leaders and the Khoi-San. The 1996 Constitution recognised only the structures of African traditional leaders, however the structures of the Khoi-San were not recognised and were destroyed as early as the 1800s. The intent of the Advisory Committee is to recognise the structures and geographical areas occupied by the Khoi-San to try and resolve the structures of the Khoi-San. 

Mr K Mileham (DA) said the requirements of the Khoi-San for recognition is different from those of African traditional leaders, and also somewhat impractical as the list would change on a daily basis. He stressed that the requirement is unfair to Khoi-San leaders because other traditional leaders are not expected to provide a list of its members. There cannot be a mismatch of two different systems; the Committee must decide on one system to be used for recognition.

Dr Nwaila replied that the purpose of the clause is for Khoi-San communities to identify themselves. Also, it was intended for the Department to track where the different Khoi-San groups are located.

Mr Mileham said the provision is subjecting people to belong to a particular community. He added that if an area is said to belong to a particular traditional leader, or community, the people living in the same area that do not share the same culture as those around them must automatically assume the traditions of that area because it has been recognised as a geographical area belonging to a culture. The Committee was previously warned that clause 5 is perpetuating apartheid geographical areas; also the Committee, nor the Department, has done nothing to calm the tension between the Tsonga and Venda people in Vhuwani, Malamulela. 

Ms B Maluleke (ANC) said the difference is that African traditional leaders have geographical areas with their own structures, and the Khoi-San communities do not have these. The list will help the Nhlapho Commission to identify communities/areas occupied by the Khoi-San.

Mr Mileham said there are Venda people living in Soweto but still continue to assume the traditions of their traditional community in Limpopo. There is not much of a difference between a Chocoqua or Griqua who does not live in the geographical area assumed by their Khoi-San leader.

Mr Johan Meiring, Senior Manager: COGTA, said clause 5 is trying to protect the geographical areas assumed by Khoi-San communities. The clause also has some stipulations attached to it; the Bill will not recognise a community that only has five or 10 members.

Dr Nwaila said the concern about boundaries has been brought to the Department numerous times. In terms of Chapter 7 of the Constitution, the Municipal Demarcation Board (MDB) was established to reverse the injustices of the past. The MDB also takes into account the apartheid geographical areas.

Mr Mileham said equating municipal boundaries, which is a governance matter, to the objectives of clause 5 of the Bill is incorrect. He said a geographical area should not be allocated to a traditional leader. The Khoi-San has an oral history; perhaps the government should try and construct the history of the Khoi-San. A community is not about a piece of land it is about the people, and they make the community.

Dr Rinaldi Bester, Chief Director; Policy and Legislation: COGTA, said it should be recognised that there is a huge difference between the African traditional leaders and Khoi-San leaders. The clause tries to avoid having people join certain communities for the purpose of inflating the numbers in that community. In addition, the Khoi-San leaders have been consulted and have indicated that they do not have a problem with submitting the lists of the names of their community members.

The State Law Advisor said the Bill will deal with the recognition of Khoi-San communities within the first two years of the Bill, as set out in clause 64. Thereafter, the applications for recognition will be lodged with the Premier’s Office for approval. 

Mr Mileham said clause 64 does not deal with the recognition of Khoi-San communities, it deals with the applications from the Khoi-San communities. He stressed that during the public hearings the communities did not agree with the terms of clause 64. According to clause 5(1)(b) Khoi-San leaders are expected to submit names of the people in their community every year. He said this provision is not legally fair, nor is it legally compliant. He disagreed that the communities accepted the provision and adopting the Bill with the inclusion of the provision would be disingenuous. 

Mr Mthethwa said Mr Mileham did not attend the public hearings, and therefore should not speak about what happened during the public hearings.

The Chairperson said he agrees with Mr Mileham that it would be unfair to ask the Khoi-San leaders to submit names every year for recognition.

Mr Mileham said the communities did not agree to the provision. The communities asked that the Khoi-San and traditional leaders be treated equally and that the recognition of Khoi-San leaders and communities to be recognised by the Premier and President. He asked what the purpose of paragraph (d) on page 26 is, and how this clause will affect the updating of the lists.

Dr Bester replied paragraph (d) makes provision for communities to update the lists of communities; including the names of members who have passed and those that are born.

Mr Mileham asked if the same principle applies to African traditional leaders?

Dr Bester said African traditional leaders do not have to comply with this provision because they already have a geographical area.

Mr Mileham argued that if Khoi-San leaders are expected to provide lists of their community members every year then the same should be applied to African traditional leaders.

Mr Mthethwa asked Dr Nwaila is he foresees clause 5 being part of the Bill.

Dr Nwaila replied that clause 5 will only be relevant for the first stages of the implementation of the Bill when Khoi-San communities are still being considered for recognition. 

Mr Mthethwa asked to which community does the 10% refer.

Dr Bester replied that the paragraph refers to the main community under which the different branches. For example, if a main community consists of 1000 people then a branch, which is established outside of the main community, must consist at least 10% of the 1000 people. 

The Chairperson said communities asked that they be given flexibility on the number of people who can form a branch. In most provinces the Premier is tasked with the recognition of African traditional leaders, whilst others are to be recognised by the President. He asked that one system be used for the recognition of traditional leaders. 

Dr Bester replied that all applications for recognition will be submitted to the Advisory Committee. The Advisory Committee is tasked with conducting investigations and recommending the applications to the Minister. It is only the Minister that has the authority to recognise. All applications will be dealt with at a national level. The Committee should bear in mind that the Advisory Committee has a life span. When the Advisory Committee has disbanded, the applications and authority for recognition will be given to the Premiers and the Minister will only recognise kingships and queenships.

The Chairperson said the Bill should also include a provision for an appeal in the event of an application for recognition not being approved. 

Clause 6
Mr Mileham said clause 3 says the Premier may cause an investigation to be conducted to establish whether the communities were consulted for the request for withdrawal of the recognition of a Khoi-San community or a branch. However, clause 4(a) makes it imperative on the Premier to recognise a merged branch, whether the communities were consulted or not. There is no discretion for the Premier to conduct an investigation. He proposed that clause 4(a) should be amended to, “The Premier concerned must publish in the government gazette any decision to recognise or withdraw recognition”. The imperative must be placed on the publication and not on the recognition.

Dr Bester replied that when the clause is read in its totality one will see that it does make provision for publications in the gazette. Where communities have requested to be merged, without any objections or investigations conducted, then the merge must be recognised and the individual recognition of those communities must be withdrawn. He believes clause 4(a) should remain as it is.

Mr Mileham asked for the purpose of clause 4(b) as it seems like a contradiction to clause 1(a) and (b).

Mr N Khubisa (NFP) suggested that clause 4(b) should be kept as it is. The clause merely states that once there is a merger between two branches their individual recognition will thereafter cease to exist.

Mr Mileham said the Khoi-San communities recognise kings and queens. However the Bill has not made provision for their recognition. The Bill states that due to the small number of members within a Khoi-San community, the Bill cannot therefore recognise their king or queen.

Dr Nwaila replied that the recognition of Khoi-San kings and queens is the responsibility of the senior traditional leaders.

Mr Mileham said if the Bill itself does not make provision for their recognition how can communities lodge applications to the Premier/Minister for their king or queen to be recognised. The issue is that the Bill will once again be amended when the Department realises that there is evidence to prove kingships and queenships. The Bill needs to accommodate the possibility of a community claiming that there is evidence to prove that there is a king or queen. Provision has been made for the African traditional leaders but not for the Khoi-San leaders.

Dr Bester replied that the National Khoi-San Council (NKC) advised the Department that there will not be any need for the recognition of Khoi-San kings and queens. Also, the current Framework Act did not make provision for the recognition of kings and queens.

Mr Mileham said it was an unfair procedure to allow a traditional leader who is convicted to continue earning a salary as a traditional leader. He asked if clause 8(d) implies that the law of succession will be applied when appointing a new traditional leader in the place of the one who has resigned. Also, in the event that a traditional leader passes away, the Bill must indicate the time period by when a successor is to be appointed. The Bill cannot be vague about time periods. 

Dr Bester said while the Premier is awaiting an application for a successor, they must appoint an Acting Traditional Leader. 

Ms Maluleke said the reason the Bill does not specify a time period for a successor is due to the fact that some traditional houses, or families, take longer than others to mourn.

Mr Mileham said the term “permanently resident” is vague and should be accompanied with criteria or a definition. He suggested the time-frame for the appointment of a new traditional leader should be 60 days.

Mr Sithole suggested that it should be 90 days, instead of 60 days.

Clause 9
Dr Nwaila said he is worried that it would be difficult to determine what constitutes “bad faith” in clause 6 (b)(iii).

Mr Mileham said, with reference to clause 7, a traditional leader with a criminal record should not be recognised as a traditional leader. He proposed that a traditional leader with a criminal record should not be reinstated as a community traditional leader. On the other hand, their exclusion should not affect their heir for succession in the future.

Mr Sithole replied that he agrees with Mr Mileham that the royal bloodline cannot be excluded from succession if the senior traditional leader has a criminal record. Nonetheless, a traditional leader should be given a ‘cooling off’ period.

Mr Mileham said the recognition of a traditional leader with a criminal record can be withdrawn on the basis that the traditional leader has a criminal record. He agrees that a provision indicating that his withdrawal as a traditional leader will not affect his/her descendant’s succession.

Mr J Dube (ANC) said neither the Committee nor the Bill can dictate how a community chooses its traditional leader. It should be the family or community prerogative to reinstate a traditional leader. 

Ms Nompumelelo Ngema, Parliamentary Legal Advisor, said one should bear in mind that customary law has been given the same status as common law. Nonetheless, customary law can be repealed, or amended, if it contradicts with the Constitution.

Mr Mileham said the Committee should note the Democratic Alliance’s objection to clause 7. He added that the African National Congress (ANC) is always protecting crooks and criminals.

The Chairperson asked Mr Mileham why he is referring to traditional leaders as crooks and criminals.

Mr Mileham disagreed with the Chairperson saying that he did not refer to traditional leaders as crooks and criminals. He asked for the Chairperson to withdraw his statement.

Mr Dube responded that Mr Mileham did indeed refer to traditional leaders as crooks and criminals, and said the ANC is protecting them. He added that the ANC has been kind enough to govern SA alongside oppressors.

Mr Mileham asked Mr Dube to withdraw his statement.

Clause 10
The Chairperson asked whether there is an election process for headmen.

Mr D Sithole (ANC) said that there is an election process; however there are two different kinds of headmen, there are those who are elected and those that are hereditary.

Mr Mileham asked if there are any branch heads that are hereditary.

Mr Meiring responded that all branch heads are generally elected, but there is a tendency where if you are a branch head and you did a good job as a father, the community cannot elect the son to be a headman. If the father passes on, the son cannot claim the position as hereditary.

The Chairperson said that if you are from the royal family, and you are the king’s brother, one can be a hereditary headman in this case because in some instances they carry out duties and responsibilities as though they are headman.

Mr Mileham said that the rules and procedures of the election seem quite vague and open-ended; therefore there should be minimum mandatory standards of how the election process can be conducted instead of leaving it open-ended.

Mr Meiring responded that there are specific rules but they differ from community to community. On an annual basis a community meeting will be convened by the headman or branch head to review the rules and procedures of the election. Normally branch heads are elected for a period of five years. It has been seen that the communities keep very good records of the rules and how the election processes are conducted.

Mr Mileham said that the committee is now prescribing by law what the five year term is (as a result of the Bill), it seems the Committee is already changing the processes and the rules - this was done a week ago. He suggested the need for minimum norms and standards of how the processes can be conducted. There must be some kind of regulatory framework that is basic, and all different communities can ascribe to when conducting the election process. This will ensure that there are not various frameworks but only one simplified framework.

The Chairperson said that regulations will be drafted to drive the elections, and those will form the norms and standards to precisely avoid a willy-nilly process.

Mr Meiring said that the Minister will issue guidelines of how the election can take place and when.

Mr Mileham suggested that clause 10(4) should be changed to insert “subject to any regulations that may be issued by the Minister”. 

The Chairperson agreed to the suggestion.

Clause 11
Mr Mileham suggested that “reasonable time” on page 48 should be 90 days, instead of 60 days. In clause 11(6)(a) there is a discrimination between traditional leaders and Khoi-San leaders, because in the section under traditional leaders, the recognition should be withdrawn from someone who has gone to jail without an option of a fine. However, this does not apply to Khoi-San leaders; instead if a Khoi-San leader goes to jail for a period of five years, their recognition is withdrawn. In addition there is no mention of their succession, and this is not fair because people are being treated differently.

Ms Ngema responded that the clause refers to the withdrawal of the council.

The Chairperson said that what happens to traditional leaders should happen to all leaders.

Mr Sithole said that it is up to the Committee to decide which direction it wishes to take with this clause, the intention is not to treat people differently. Therefore, the Committee should decide on principle which direction should be taken. 

The Chairperson emphasised his point that the principle is equality; therefore the Department and parliamentary legal team should look into this and report back to the Committee. All leaders are treated the same. If traditional leaders are entitled to a cooling-off period, surely that should also apply to Khoi-San leaders.

Mr Mileham reiterated that the clause seems to allow different treatment of traditional leaders and Khoi-San leaders as in clause 11(6)(a) for the Khoi-San leader (withdrawal of recognition) and clause 11(7)(a) for the traditional leader (withdrawal of recognition).

Dr Bester advised that the Department will look into this clause and report back to the Committee. 
 
Clause 12
Mr Mthethwa suggested that clause 12(1)(a) on the appointment of a regent should be done within 90 days of the death of a king, instead of the 60 days currently prescribed on the Bill. 

The Chairperson noted this suggestion.

Mr Matsepe said that some of the communities have overcome regency in such a way that where there are cases of a child still being a minor; the mother takes over as a regent.

The Chairperson agreed, and advised that this clause should be outlined as broadly as possible so that the royal family can deal with the election as it sees fit or according to their customs.

Mr Mileham said that under clause 12(a)(i), it omits a reference to clause 16(14)(b), which implies that the Bill is allowing someone who is under the age of 18 to be a regent.

Mr Sithole said that 16(14)(b) should be added, and the matter is closed.

Mr Mileham said that those criteria are there for a reason, and he argued that they should apply in their entirety to a regent.

Mr Mthethwa said that regents that are in an acting position should not forfeit their permanent job such as Member of Parliament or ward councillor, on the basis that they are appointed by the royal family to be regent. That acting position is a short-term position, and if the person is removed they would have lost their permanent job.

The Chairperson said that people who are assisting to close a gap should not be punished, because if a royal family of the community wishes to appoint someone who is a Member of Parliament that person should not now resign from their permanent job.

Mr Mileham said his point is misunderstood; what he meant was that the elected regent should not resign as a Member of Parliament but he cannot be an MP and a regent concurrently due to the possibility of political influence. This needs to be approached with caution.

Mr Meiring replied that the position of regent must be reviewed after three years. Therefore if someone is acting in that position and is permanently occupying another job, one cannot be expected to resign from the permanent position because who is to say that after three years when the regency is reviewed, the regent will continue acting. This needs to be looked into very carefully.

The Chairperson said that the Committee notes Mr Mileham’s point, and moving forward the clause is accepted.

Dr Bester suggested a clause prohibiting a minor child under 18 years of age to be a regent.

The Committee agreed to this.

Mr Mileham said that in clause 12(1)(a)(b) there is an obligation for the royal family to appoint a regent, however in the event that it fails to do so, the Premier must appoint a regent. Now, there is no definition of a suitable person when the Premier is obligated to appoint a regent, but there is a definition of a suitable person when the appointment is done by the royal family. He proposed that the Premier must operate within the same boundaries as the royal family i.e. there must be a definition of a suitable person for the Premier as well.

The Chairperson agreed. 

Clause 13
It was noted that the cooling-off period under this clause was amended to be applicable across all leadership positions.

Mr Mileham said that legislation states that MPs, MPLs, ward councillors and other office bearers are not permitted to earn two salaries. If one is a traditional leader and one becomes a ward councillor, one cannot continue earning the traditional leader salary. This goes back to the point raised in clause 12 that regents should not be permitted to earn two salaries.

The Chairperson said that this was already dealt with. With MPs, as long as an MP declares this to the party chief whip. This is common practice; there are traditional leaders currently who are MPs.

Mr Mileham responded that when a traditional leader becomes an MP they can no longer earn the salary as a traditional leader. This also applies to regents. The only way this can be precluded is if MPs, ward councillors and MPLs are excluded from traditional leader and regency positions.

The Chairperson said that this has already been dealt with, and people cannot be disadvantaged for making themselves available to be in acting positions.

Mr Mileham asked how then does the Committee propose to get around this contradiction in law, because the legislation is very clear that an MP cannot earn a traditional leader’s salary.

The Chairperson responded that this will be looked into. This can be included in the guidelines, and the guidelines will assist in the implementation of the law. The Chairperson was not trying to find a loophole.

Mr Sithole said that just as the full time Member of the National House of Traditional Leaders does not earn a salary of a traditional leader but the salary of a deputy or chairperson; this is more of an administrative issue. It is inherent in the system.

The Chairperson agreed.

Mr Mileham advised that the objection of the DA should be noted.

The Chairperson said that this is not a principle objection.

Mr Mileham argued that it is a principle objection because the DA is clearly stating that MPs, ward councillors and other office bearers should not be regents or traditional leaders.

The Chairperson said Mr Mileham is suggesting that willing and qualifying people should be excluded then.

Mr Mileham argued that there are 55 million South Africans, about 30 million are unemployed, and the Chairperson cannot say that people are being disqualified because 400 Members of Parliament are excluded from these positions.

The Chairperson clarified that this is a matter to be decided on according to the discretion of the royal family, therefore the clause should be broad enough to not exclude certain people.

Clause 14
Mr Mileham said that clause 14(1) should be removed completely because it is inconsistent.

The Chairperson, upon consideration, resolved that the clause be re-looked at and re-worked, because a ‘deputy’ cannot be listed as a position in that clause because it assumes a permanent position.

Dr Bester assured the Committee that the Department will look into this very carefully and ascertain why the rest of the applicable sub-clauses were left out or interrogate the intention of the clause.

The Chairperson said that the Committee would have to continue clause by clause deliberations the following week.  He had hoped that it would take a shorter period of time, but he was appreciative of the fact that it is taking longer because this means the Committee is thoroughly perusing the Bill’s amendments.

The meeting was adjourned.