Traditional and Khoi-San Leadership Bill: deliberations

Meeting report

The delegation from the Department of Cooperative Governance and Traditional Affairs included Prof Muzamani Nwaila Director General: Department of Traditional Affairs; Ms Reshoketswe Mogaledi Chief Director: Office of the Director General; Ms Trisha Ramsumair Director: Legislation; Mr Johan Meiring Senior Manager and Mr Abram Sithole Acting Director: Research, Policy and Legislation.

Committee clause by clause deliberations on the Traditional and Khoi-San Leadership Bill
The Chairperson took the Committee through the Bill clause by clause. Members were encouraged to make comments on clauses where they deemed it necessary. Deliberations kicked off on page 63 of the Bill.

Clause 16
Mr K Mileham (DA) referred to clause 16(1) on page 63 and pointed out that a period of one year was mentioned whereas in the Traditional Governance Framework Amendment Act the period was two years.

Ms Ramsumair conceded that it was an omission on the part of the Department and that the period would be changed to two years.

Mr C Matsepe (DA) referred to clause 16(2) and asked who set up the forum mentioned in the clause.

Mr Meiring explained that consultation on the formula needed to take place. The forum would consist of the king, royal family members and twenty senior traditional leaders.

Ms Ramsumair added that the Department of Traditional Affairs needed to detail who had to be consulted.

Mr Matsepe asked what the composition of the forum was.

Mr Meiring explained that the forum was for the constitution of the kingship. The forum was not within a traditional authority.

Mr Mileham asked why in clause 16(2)(a)(ii) was there a need for the Minister to consult with all premiers

Ms Ramsumair responded that there had to be one formula for consultation with premiers.

Mr Matsepe asked for clarity on clause 16(2)(e).

Mr Meiring replied that in traditional councils, 60% of members were selected and 40% were elected. The Minister of Cooperative Governance and Traditional Affairs had set guidelines for the members that were selected. The guidelines provided for different options that could be opted for. When a traditional council was constituted, 70% was made up of community members whilst 30% was made up of traditional leaders. The Department of Traditional Affairs needed to unpack the guidelines. He felt that given that 70% of traditional councils constituted of community members, an element of democracy was brought in.

Prof Nwaila stated that the Department of Traditional Affairs had a breakdown at its disposal of how things were at present. It would be made available to the Committee in due course.

Ms Ramsumair said that the reason the names of the selected members needed to be made public was so that they did not form part of those who were elected.

The Chairperson said that specifics were needed on how the members were selected.

Ms B Maluleke (ANC) clarified that the composition of the forum related to kingships and queenships. It was for royal traditional leaders. Community members came in on traditional councils.

Mr Meiring added that traditional councils were for the community. 60% of members were selected and 40% of members were elected. Premiers needed to have their formula in line with the guidelines of the Minister. Selection would be done by royal family members.

Mr Mileham asked where it said what percentage had to be community members.

Mr Meiring said that the Minister had set out guidelines.

Ms Ramsumair pointed out that guidelines had been published under the Traditional Governance Framework Amendment Act. The guidelines would apply to this Bill as well.

Mr Mileham said that a guideline was exactly that. It did not make it compulsory. There was no “must” provided for.

Mr Meiring stated that the formula was binding.

Mr Mileham pointed out that nothing in the Bill said that the formula had to be consistent with the Minister’s guidelines.

Prof Nwaila assured the Committee that it would be provided for in the Bill.

Mr N Khubisa (NFP) asked that the Committee be provided with the guidelines.

The Chairperson said that the way it was structured, it would seem as if the community would be dominant. The way things were reflected in the Bill seemed to put members on the same page over the 60%-40% matter. He asked the Department to tighten things up.

Prof Nwaila agreed to provide the guidelines to the Committee.

Mr Mileham referred to clause 16(3)(a) on page 66 and asked why was another forum was being set up. Could the forum mentioned in clause 16(2) not be used?

The Chairperson responded that sometimes areas were huge.

Mr Mileham said that the forum in clause 16(2) should cover entire areas. Why not use the same forum?
He noted that clause 16(3)(c) dealt with concurrency. The names nominated were a closed list. Could the premier select a traditional leader who was not nominated?

Prof Nwaila replied that a premier needed to follow due process. There were guidelines that the premiers had to follow.
 
Mr Mileham reiterated concerns about clause 16(4)(a)(i) that he had raised in previous meetings. He said that if the Bill was dealt with in haste then it could lead to traditional councils having long terms of office.

The Chairperson said the Committee noted Mr Mileham’s concern. He said that the Bill must and would be implemented as the Khoi and San had pushed for the Bill.

Prof Nwaila pointed out that in total there were 814 traditional councils. He noted that just for the election of community members, the costs were high. However democratic principles had to be upheld. In the future, ways had to be found to make things more cost effective.

The Chairperson commented that democracy could be expensive.

Mr Mileham said that Parliament had just passed the Traditional Governance Framework Amendment Act. He asked if what was contained in the Bill allowed traditional councils that came into being in 2006 to have terms of office up until 2022. What the Committee was doing in the Bill was legitimising these traditional councils. He felt their terms were way too long. This was his concern.

Prof Nwaila stated that the intention was for all traditional councils to be reconstituted. There were processes in place. Once the Traditional Governance Framework Amendment Act was promulgated then traditional councils would be reconstituted.

The Chairperson said that on costing he did not think the Khoi and San would affect the budget that much. The budget would be more affected by the existing traditional councils.

Mr Mileham referred to clause 16(7) which dealt with the quorum for traditional councils and asked what if there was a vacancy on such council.

Ms Ramsumair replied that the wording in clause 16(7) could be made clearer.

Prof Nwaila referred to clause 9(b) as he was not sure whether the Committee wished to change the “may” to “must” in the clause. He felt “must” to be the best option.

The Chairperson suggested that the phrase “a year” be replaced by “at least once a year”.

The Committee agreed.

Mr Mileham was concerned about timing in clause 16(13) on page 70. He referred to clause 8(2)(a) and (b) that dealt with recognition. Clause 16(13) spoke about vacancies that arise within 30 days. He felt that consistency was needed and that the 30 days had to be changed to 90 days.

Mr Khubisa asked what if members of councils could not find time to attend meetings in clause 16(14).

Mr Mileham said that Mr Khubisa’s concern was addressed in the Bill.

Prof Nwaila said that processes of selection and election were under way. People had to know who were elected and who were selected.

Ms Ramsumair added that if a person could not deal with the responsibility of sitting on the council then they were free to resign.

Mr Mileham in clause 16(17) suggested that the phrase “two or more non geographical areas” be inserted in the third line of the clause. He was concerned about the sub-council not being separate from the main council.

Clause 17
Mr J Dube (ANC) in clause 17(1)(a) asked whether “may” or “must” should be used.

Mr Khubisa felt that the use of “may” was more appropriate.

Mr Mileham agreed with Mr Khubisa.

Mr Mileham in clause 17(5) asked why the chairperson of the sub-council should be appointed by the traditional council and not be elected by sub-council itself.

Mr Meiring responded that the chairperson of the sub-council was also a member of the traditional council. The chairperson was designated by the traditional council to ensure that the flow of information was maintained.

Mr Mileham insisted why the sub-council could not elect its own chairperson and ex officio be a member of the main council.

Mr Meiring replied that the Department would look at clause 17(5). He proposed that “in consultation with the sub-council” be inserted into the clause.

Ms Ramsumair alternatively suggested the insertion of “after consultation with the sub-council”.

Mr Matsepe said that communities needed to be assisted with the transformation of traditional councils as there were things that were not right.

The Chairperson stated that change took time.

Clause 18
Mr Mileham referring to clause 18(2) stated that traditional councils were given two years after recognition to establish themselves, however in clause 18(2) the Khoi-San was only given one year.

The Chairperson agreed with Mr Mileham. He suggested that the phrase “at least two years” be inserted into clause 18(2).

Mr E Mthethwa (ANC) pointed out that the Khoi-San were few and perhaps the establishment process could be faster than with other councils.

Clause 19
Mr Mileham stated that the Committee had made a suggestion in clause 19(3) that the Auditor General could overturn the audit finding of an outside auditor. Where was the formulation?

Ms Ramsumair replied that the Department was still waiting for the Auditor General to provide adequate wording for the formulation. As soon as the Department received the wording it would be inserted into the Bill.

Clause 20
Mr Mileham referred to clause 20(1)(f) and (g) and asked what was meant by “participating”. He felt the meaning to be loose and needed to be addressed. He also referred to clause 15(1) which spoke about the functions and resources of traditional and Khoi-San leaders and felt the clause to be very vague. The clause did not set out the roles. He felt that it was the Department’s job to set out the functions and powers of traditional leaders. As it was clause 15(1) was open ended.

Mr Meiring replied that clause 25 covered the allocation of roles of traditional councils and Khoi-San councils.

Prof Nwaila replied that cultures differed so much and that to document roles was difficult. Communities were well aware of what the roles of traditional leaders and of councils were.

Mr Mileham pointed out that the Constitution did provide for the limitation of customary law. Just as an example, if there was hypothetically speaking cannibalism being practised, it should be prescribed that it was unacceptable. Why were powers and functions of traditional councils not set out in the Bill? It could not be left to others to do. He felt it simply wrong.

Prof Nwaila noted Mr Mileham’s point. He did point out that the Department of Traditional Affairs did identify harmful practices that were unacceptable so there were limitations.

Ms Ramsumair said that clause 2 did speak to the guiding principles of the Bill. The point was taken that the clause could be vague. She did feel that clause 25 covered the matter.

Ms Maluleke referred to clause 20(2)(c) which spoke about traditional councils having to disclose the receipt of gifts to the premier concerned. She asked whether the provision was really necessary.

Prof Nwaila replied that clause 20(2)(c) could be strengthened.

The Chairperson said that perhaps gifts in value of above R500 could be disclosed. He felt that Members had to apply their minds about the issue. How would things be declared?

Mr Mthethwa suggested perhaps declarations could be made to an ethics committee or to the premier.

Mr Mileham said that gifts could be declared to the premier or to a body designated by the premier.

The Chairperson said that these suggestions were fair and asked the Department to look into it. Minimum and maximum amounts to be declared had to be set out.

Mr N Masondo (ANC) cautioned that careful thinking was needed on the issue. There were instances where overseas companies offered bribes to traditional leaders to look out for their interests.

Prof Nwaila assured the Committee that the Department of Traditional Affairs would think carefully about how best the issue could be captured. Alternatively the issue could be covered under the definition of gifts.

Clause 22
Mr Mileham referred to clauses 22(3)(a) and 22(4) and asked that “financial obligations” be inserted alongside statutory and customary obligations mentioned in the clauses. He asked if it was perhaps a good idea that the premier should provide a report to provincial and national traditional houses on the outcome of the period of administration. In clause 23(1) he was concerned about the provincial government being given an obligation to provide support to traditional councils. What if a traditional council amassed debts of R100m? Clause 23(1) made it obligatory for provincial government to support traditional councils. How could provincial governments be financially responsible for traditional councils? He suggested that “must” in clause 23(1)(a) be replaced by “may” and that in clause 23(1)(b) “must” had to be inserted.

Prof Nwaila agreed to the suggestions.

Clause 23
Mr Mileham in clause 23(2) felt that “may” ought to be replaced by “must”. As it stood the premier was given discretion. It should be obligatory upon the premier to make the determinations. Perhaps the premier was even the wrong person to make the determinations but that the Member of Executive Committee (MEC) of Cooperative Governance should be the one to make the determinations.

Mr Sithole stated that normally the premier delegated to the MEC. It was not a problem to change the “may” to “must”.

Mr Mileham in clause 23(3)(a) suggested that “Premier may” be replaced with “Premier must”. He asked what was meant by clause 23(4)(b).

The Department agreed to make changes where suggested and would look at clause 23(4)(b).

Clause 24
Mr Mileham said that the Minister had to be given the responsibility of keeping things on file in on clause 24(6)(b).

The Department agreed that it could be done.

Mr Mileham asked why in clause 24(8) the provisions of subsection 3(d) would not apply.
 
Ms Ramsumair stated that the Department would relook at the clause. Perhaps the premier did not have jurisdiction in certain sectors.

Mr Mileham felt that clause 24(8) should be deleted.

The Chairperson pointed out that the Bill needed to protect the interest of communities.

Mr Mileham said that the Committee had not put a limitation in the clause on what it applied to. There could be issues around mining and farming rights and so on. A council essentially could do things without the community having any input. Perhaps a broader participation process was needed to involve the community.

Prof Nwaila conceded that Mr Mileham made a good point.

Mr Mileham made a two pronged proposal. The first was that prior to any agreement being referred to the premier, it had to be submitted to the community for scrutiny. The second was that all current deals had to be subject to review.

The Committee agreed to adjourn and to continue the following day with clause 25 on page 89.

The meeting was adjourned.