The Committee deliberated on Clauses 25 to 37 of the Traditional and Khoi-San Leadership Bill working draft inclusive of proposed amendments. Members proposed further amendments to certain clauses. Some of the clauses that Members had concerns about were Clauses 25, 28, 33(1)(b) and 34(1).
In Clause 25, departments were responsible for the capacity building of a traditional council if it had difficulties implementing the function allocated to it by that department. Members were not too convinced about capacity building as traditional councils had challenges.
Clause 28 noted the increase in the number of members in the National House of Traditional Leaders. Members felt that this increase could have cost implications. The Department of Traditional Affairs was asked to provide the Committee with costing information.
Members had divergent views about Clause 33(1)(b) which made it obligatory for the President of South Africa to address the annual opening of the National House of Traditional Leaders. Some members said that it should remain obligatory as a sign of respect to the National House whilst others said that it should be the prerogative of the President to decide whether to address the National House. It was pointed out that the clause allowed the President to delegate someone else to address the National House. The DA asked that its objection to Clause 33(1)(b) be noted.
In Clause 34(1) Members once again questioned why the President should preside over the election of the chairperson and deputy chairperson of the National House. Members felt it better suited for the Chief Justice or the Minister to do so.
Traditional and Khoi-San Leadership Bill: clause by clause deliberations
The Committee continued with deliberations on Clause 25 on page 89 of the Bill.
Assisting the Committee was the Department of Traditional Affairs delegation which included Ms Reshoketswe Mogaledi, Chief Director: Office of the Director General, Mr Johan Meiring, Senior Manager, and Mr Abram Sithole, Acting Director General: Research, Policy and Legislation.
Clause 25: Allocation of roles to kingship or queenship council, principal traditional council, traditional council, Khoi-San council, traditional sub-council and traditional and Khoi-San leaders
Mr Abram Sithole, Acting Director General: Research, Policy and Legislation, said Clause 25(1) was about how best to take charge of roles that had been allocated.
Mr K Mileham (DA) proposed that Clause 25(1)(a) needed a sub-clause stating where any role had been allocated to a council or leader, that such functional role had to be communicated to the Department of Traditional Affairs and be recorded. Any withdrawal should also be communicated. He suggested that the Department of Traditional Affairs come up with the appropriate wording. There was a need for an updated record of delegations to traditional leaders.
Ms Phumelele Ngema Parliamentary Legal Adviser, stated that section 20 of the Traditional Leadership and Governance Framework Act covered the issue raised by Mr Mileham.
Mr C Matsepe (DA) referring to Clause 25(4) asked if resources to traditional councils could simply be withdrawn by the department concerned.
Mr Sithole replied that resources would simply not be withdrawn but that assistance on capacity would first be provided. Perhaps it was an omission on the part of the Department of Traditional Affairs not to have put into the clause a provision that assistance on capacity and so on would be provided.
Mr Meiring added that Clause 25(3) provided for monitoring of the traditional council in the execution of its roles by a department. He felt that Clause 25(3) covered Mr Matsepe’s concern.
Mr Mileham suggested that departments should take appropriate measures to ensure proper execution of roles or for the withdrawal of roles. There should not only be capacitating.
Mr N Masondo (ANC) asked for caution to be exercised as people had during public hearings been concerned about the allocation and withdrawal of roles. The issue was about control. Proposals made should be in terms of the law and the Constitution.
Mr Mileham understood Mr Masondo’s concern. He pointed out that the delegation of power by a department was merely an administrative function. Essentially a department was a giving traditional council a job to do and therefore it could also take it away if need be. There were no constitutional issues at play. It was an execution of an administrative function such as the Department of Home Affairs allowing traditional councils to register births. Powers of traditional councils were not being taken away. It was more a delegated power.
The Chairperson noted that Mr Masondo was merely highlighting concerns that had come out of the public hearings.
Mr E Mthethwa (ANC) referring to Clause 25 asked if departments had the capacity to train and assist traditional councils.
Mr Sithole replied that the relevant department had to ensure that the council was capacitated to assist communities. The Department of Traditional Affairs had to be informed by departments about what functions they had allocated to traditional councils.
Mr J Dube (ANC) was not too convinced about the capacity building to be done as traditional councils had challenges.
The Chairperson stated that some of the concerns raised by members were covered in Chapter 3 of the Bill. The Traditional Leadership and Governance Framework Act also covered them. The only change was the inclusion of the Khoi and the San.
Clause 28: Composition of National House
Mr Mileham was concerned about what was being proposed in Clause 28. He pointed out that the membership of the National House of Traditional Leaders was increasing. This increase in number would have cost implications. Had the cost implications been calculated? The Department was asked if the costing had gone through the Financial and Fiscal Commission (FFC). There was essentially a 25% increase in costs given that the number of members had increased from 28 to 36.
Mr Meiring responded that 36 members was the maximum number for the traditional council. He did not think it would reach that number. Cost implications had been considered and it was referred to the FFC.
The Chairperson explained that the number of members had been increased due to the Khoi and San coming into the fold. The Department was asked to look into the matter and to advise the Committee.
Mr Mthethwa asked what the criteria were for the current 28 for number of members.
Mr Sithole explained that the National House of Traditional Leaders relied on the seven of the eight provincial houses to send three members each which came to twenty one members. Gauteng Province sent two members which made the total 23. He confirmed that the 36 was the maximum number of members allowed.
Mr Mileham pointed out that the reality was that nobody knew how many Khoi-San leaders were going to be recognised in Gauteng Province. There could for argument's sake be 15 Khoi-San leaders from Gauteng Province. In the Western Cape the figure sat at four. It was inevitable that the numbers in the National House were going to expand. The maximum was increased from 28 to 36. He felt that there were cost implications to consider. The FFC was yet to give the Committee its thoughts on this. He felt that the numbers had to remain as they were so that there would not be cost implications. He was yet to be convinced about the cost implications not being huge.
Mr Masondo suggested that the Committee note Mr Mileham’s concern and that the Department provide the Committee with the costing information.
The Committee agreed.
Mr Mileham asked what happened when a person was not recognised as a traditional leader.
Mr Meiring said that Clause 7(9) covered persons not recognised.
Clause 29: Election and designation of members to National House
Mr Mileham said that the term of office for the National House of Traditional Leaders and that of provincial houses were not in sync. The Department was asked to provide the Committee with a diagram of all the different terms of office for the National House and provincial houses.
Mr Meiring said there was a knock on effect from the National House to provincial houses for terms of office.
The Chairperson agreed that a diagram would be useful.
Mr Mileham on Clause 29(5) asked how designations were done. He suggested that the word “elect” be used instead of the word “designate”.
Mr Meiring explained that when members were elected then a leader of the delegation was also elected.
The Chairperson said that the word “designate” had the same meaning as “elect”.
The State Law Adviser said that “designate” was more about to appoint.
Mr X Ngwezi (IFP) felt that “designate” could cause problems. He was in favour of “elect”.
The Chairperson said that things would be balanced.
Clause 30: Disqualification for membership of National House
Mr Ngwezi on Clause 30(a) asked what happened if a Member of Parliament was elected to a provincial house.
Mr Z Xalisa (EFF) pointed out that both Mr Bantu Holomisa and Mr Mandla Mandela who were Members of Parliament belonged to the Congress of Traditional Leaders (Contralesa).
The Chairperson said that when a Member of Parliament was elected to the National House or provincial house then a choice had to be made about which office to hold and from which one to resign. He noted that both Mr Holomisa and Mr Mandela belonged to the organisation, Contralesa, but were not members of the National House of Traditional Leaders.
Mr Mileham pointed out that Mr Ngwezi was covered by Clause 31. Only one office could be held at a time, not both.
Mr Ngwezi wished for the Bill to be implemented as soon as possible as he knew of an induna of a village who was also a sitting municipal councillor.
Mr Mileham stated that there seemed to be a discrepancy between Clause 30(b) and Clause 31(e). Alignment was needed between the two clauses.
Mr Xalisa felt that Clause 30(c) was too harsh. He pointed out that even President Zuma had the problem to which the clause referred. Persons were being disqualified from serving in the National House for being unrehabilitated insolvents.
The Chairperson said that unrehabilitated insolvents were also disqualified to serve as Members of Parliament. It was done to safeguard the integrity of institutions.
Mr Ngwezi felt that something needed to be inserted into the Independent Electoral Commission (IEC) Regulations.
The Chairperson said that legal drafters would capture what Members had discussed.
Clause 33: Seat and meetings of National House
Mr Mileham on Clause 33(1)(a) felt that a timeframe needed to be inserted into the clause. He suggested a provision along the lines of “within 90 days of the term of office commencement, a meeting must be held”. He asked why in Clause 33(1)(b) the President “must” address the annual official opening of the National House.
The Chairperson agreed that the use of “must” in Clause 33(1)(b) was misplaced. He felt that “may” was a better option.
Mr Sithole explained that currently the President did address the National House. The Department of Traditional Affairs had just formalised it. The clause allowed the President to designate someone else to address the National House. The use of “must” placed a guarantee on an annual address.
The Chairperson noted that the President was elected by the National Assembly and not by the National House of Traditional Leaders. What if the President did not wish to address the National House? The President was only accountable to the National Assembly. He felt that the use of “must” was unacceptable and that the use of “may” was more acceptable.
Mr Mileham agreed that the President was not accountable to the National House. It was the President’s prerogative to address the National House or not. The President could not be forced to address the National House. It was not part of the President’s official duties. There needed to be caution about placing an obligation on the President that was unnecessary. The clause was saying that the President was accountable to the National House.
Mr Mthethwa disagreed with the Chairperson and Mr Mileham. He felt that the use of “must” was appropriate or else the status of the National House would be reduced. The National House should get the dignity that it deserved.
Mr Masondo felt that the clause should be left as it was.
The Chairperson placed it before the Committee to decide on what the best option was. Was “must” or “may” the correct option?
Mr Masondo said that the Bill was building on established practice. The President did presently address the National House. He proposed that it be kept as it was.
The Chairperson said that “must” was unacceptable as it was making it obligatory for the President to address the National House. The President was not accountable to the National House but was accountable to Parliament. Everyone respected the Amakhosi and it would be strange if the President did not address the National House.
Mr Matsepe suggested that it be left open ended.
Mr Mileham stated that if it was to remain as “must” then he wished for the objection of the DA to be noted.
Mr Ngwezi also did not support the use of “must”. He felt the use of “may” to be more appropriate.
Mr Masondo noted that traditional leaders generally felt neglected. Traditional leaders wished to be part of processes. The Committee needed to make traditional leaders feel appreciated.
The Chairperson stressed that such a practice could however not be enforced.
Mr Sithole replied that he respected the Committee’s view of wishing to change “must” to “may”. He pointed out that even premiers addressed the National House. The provision was included in the National House of Traditional Leaders Act as well. Ultimately the President could address the National House or appoint someone to do it.
The Chairperson suggested that it be left as it was.
Mr Mileham on Clause 33(7) said that a two thirds majority vote was an unnecessarily high standard for a decision to be taken in a National House meeting. He suggested that a simple majority was good enough.
The Chairperson agreed that a simple majority by 50% plus one was good enough.
Mr Sithole accepted the suggestion. He explained that the two thirds majority was provided for because of instability in the National House around its chairmanship some years back.
The Chairperson stated that the Department could not legislate on items which should be managed. The two thirds majority made it difficult to make decisions.
Clause 34: Chairperson and Deputy Chairperson of National House
Mr Mileham on Clause 34(1) asked why the President should preside over the election of the chairperson and deputy chairperson of the National House.
Mr Sithole responded that this was how it was provided for in the principal legislation.
Mr Mileham proposed that instead of the President, the Chief Justice of the Constitutional Court or a person designated by him be brought in. He preferred it if the Judiciary was brought in instead of the Executive.
The Chairperson felt that a Minister could also suffice.
Mr Mthethwa asked if the Chief Justice had a role in the National House.
Mr Sithole replied that the Chief Justice swore in the members of the National House.
The Chairperson suggested that either the Chief Justice or a Minister would suffice.
Mr Mileham insisted that the Chief Justice was the better option. He asked for consistency and that Clause 34(11) also be amended to include Chief Justice as opposed to Minister as currently provided for there.
The Committee agreed.
Ms Ngema however pointed out that Clauses 34(1) and 34(11) spoke to two different instances. She felt that the Chief Justice could not be inserted into Clause 34(11) as the National House elected members. Clause 34(1) spoke to the election of the chairperson.
Mr Mileham disagreed with Ms Ngema and said that the Clauses 34(1) and 34(11) spoke to exactly the same situation.
The Chairperson noted that Ms Ngema was saying the same thing as Mr Mileham.
Mr Mileham replied that Ms Ngema was not saying what he was saying.
Ms Ngema conceded to the point made by Mr Mileham.
Clause 36: Duties of National House
Mr Matsepe on Clause 36(1)(a)(vi) asked how the National House and its provincial houses were going to assist with socio economic development and service delivery.
Mr Sithole pointed out that some traditional councils like the Royal Bafokeng were well off financially and were doing well on service delivery. The National House had to oversee such things.
The Chairperson pointed out that government was responsible for service delivery.
Mr Mileham added that the National House had no oversight role on service delivery. The National House simply did not have that authority.
The Chairperson agreed that it was not written anywhere in law that the National House would do oversight.
Mr Mthethwa on Clause 36(1)(g) stated that the partnerships spoken about in the clause should be in line with that of government. It should not run parallel with government initiatives.
Mr Masondo said that a way needed to be found to express traditional practices that have been around for a long time.
The Chairperson stated that better wording should be found. He also wished Ubuntu to be mentioned in the Bill. Addressing Mr Mthethwa he said that there would be no parallelism.
Mr Sithole replied that the Department would address the matter.
Clause 37: Administration of National House
Mr Mileham said that Clause 37(1) was far too open-ended. How many people could be seconded? The number could range between 200 and 500.
The Chairperson stated that it would be difficult to insert a number into the Clause.
Mr Masondo agreed that a figure could not be inserted. He suggested that “as many” be deleted from the clause.
Ms Mogaledi responded that the strategic plan of the National House spoke to the number of officials to be seconded from the Department.
The Chairperson noted that there could not be a limiting clause.
Mr Mileham repeated that it was too open-ended. A limitation was needed to ensure that it was financially and logistically realistic.
Mr Sithole stated that a needs analysis would be done. The National House and the Department of Traditional Affairs would work closely together. Proper planning was done.
The meeting was adjourned.