The Committee met briefly to discuss the Traditional Leadership and Governance Framework Amendment Bill.
The Department of Cooperative Governance and Traditional Affairs (COGTA) reported that an extension of the Amendment Bill was needed in order to reconstitute the traditional councils, and to standardise the timeframes between the terms of office for the traditional councils and the National House of Traditional Leaders. The Amendment Bill also introduced new principles that were not a part of the original Framework Act. These principles included tribal authorities being regarded as traditional councils. Owing to the challenges, the Department reported that there was uncertainty about the status of tribal authorities.
The Amendment Bill would also seek to solve the establishment of Kingship and Queenship councils, using the determined formula prescribed by the Premiers and the guidelines issued by the Minister. The Department reiterated that the extensions for the Amendment Bill were of a technical and operational nature to help standardise formulae.
The Committee asked about the contrasting policies between the provinces and the national government; whether the Department had foreseen these challenges; how the traditional council would complement the Provincial Growth Development Strategy (PGDS); the number of kings that were recognised in South Africa; and whether the South African Local Government Association (SALGA) was being consulted.
The Chairperson reminded the Committee that they had limited time with the Department, and should therefore try to be precise with their questions. The Committee would arrange a formal meeting with the Department for a further deliberation on the Bill.
Mr Obed Bapela, Deputy Minister: COGTA, said the Department was seeking an extension of one to two years for technical amendments. The extension would assist the Department to ensure that provinces complied with the reconstitution process for traditional councils. The Department was aware that the matter should have been resolved before the amendments, but the Act introduced a new system, which required a 60% and 40% representation of traditional leaders in the traditional councils. 60% of the traditional council would comprise of traditional leaders elected by the Kingship or Queenship, and 40% of the traditional council would comprise of traditional leaders elected by their communities. The only provinces that had not yet complied with the new regulation were Limpopo and Mpumalanga, which had approximately 200 and 53 traditional leaders, respectively.
The extension would ensure the reconstitution of traditional councils, which would in turn ensure uniformity and a standardised system amongst all nine provinces. In addition, the extension would also ensure the establishment of the Kingship/Queenship councils, which had never existed before.
Traditional Leadership Governance Framework: COGTA briefing
Dr Rinaldi Bester, Chief Director: Policy and Legislation, COGTA, reported that the Traditional Leadership and Governance Framework Act, 2003, had been amended so that tribal authorities had to be reconstituted as traditional councils within a certain timeframe; kingship and queenship councils also had to be established within a certain timeframe and community authorities had to be disestablished within a certain timeframe. However, the timeframes had not been met, which meant that the enabling provisions could no longer be used to achieve the established or disestablishment of the various structures. When the Department became aware of these challenges, it had sought to include these provisions in the Traditional and Khoi-San Leadership Bill, which had since been tabled in Parliament. The Bill had not yet been enacted and these challenges required urgent and appropriate amendments to the existing Act.
In terms of the Act, tribal authorities would be regarded as traditional councils, however with the proviso that they had to meet the requirements contained in Section 3(2) of the Act, and this had to be done within one year from the commencement of the Act. The timeframe of one year was not met and the Act was amended in 2009 to allow for an extension of seven years. However, the seven years was to be calculated from the time of commencement of the original Act, and therefore lapsed on the 23 September 2011.
The 2009 Amendment Act also introduced two new principles relating to the composition of traditional councils -- that the number of members in the traditional council should be determined by using a formula issued by the Premiers, and that was to be used in accordance with guidelines issued by the Minister. The provinces had identified some challenges relating to tribal authorities not being reconstituted; the reconstitution taking place after the expiry of the timeframe; no use of the formula, and where the formula was used it had not aligned with the Minister’s guidelines; and the non-compliance of the relevant provincial legislations.
There was a legal uncertainty with regard to the status of tribal authorities that were not reconstituted, as well as those which were reconstituted but did not meet all the statutory requirements. Another challenge was that the terms of office for the traditional councils must be aligned to the term of office of the National House of Traditional Leaders (NHTL). The term of office of the NHTL expired in August 2017, which meant that all tribal authorities and traditional councils must be reconstituted in 2017.
The Act made provision for Kingship and Queenship councils to be established within one year from the date of recognition. A number of the kingships/queenships were recognised on 5 November 2010 and therefore this meant that their councils had to be established on 4 November 2011, but this had not been done. Section 3A(2)(a) of the Act required a formula that must be used in respect of the members of such councils, and that kingships/queenships must be consulted before the formula was issued. The development of the formula proved to be more complicated and time-consuming than expected. The consultations also proved to be challenging in the sense that the recognition of some of the kingships was disputed.
Section 28(5) of the Act determined that community authorities had to be disestablished in terms of provincial legislation and within five years from the commencement of the Act, thus no later than 23 September 2009. Not all relevant provinces had made provision for this in their legislation, and the timeframe of five years was not met. The Traditional Leadership and Governance Framework Amendment Bill seeks to address all the above mentioned challenges, and the proposed amendments were therefore of a technical and operational nature.
Mr J Mthethwa (ANC, KZN) asked if the provinces were implementing laws that were in contradiction with the national policy. If traditional leaders were being elected through the use of an incorrect law did it mean their leadership positions could be challenged, and what mechanism had the Department put in place to fast-track the balancing of the time-frames?
The Chairperson asked if the Department expected to be faced with these challenges, and how would the Department ensure that they were not faced with the same challenges in the future.
Mr M Mhlanga (ANC, Mpumalanga) asked how the House of Traditional Leaders in Mpumalanga functioned without a traditional council. He asked for clarity on how the Amendment Bill would seek to complement the Provincial Growth Development Strategy (PGDS).
Dr Bester replied that traditional leadership was a concurrent legislative competency and all the provinces, except for the Western Cape, had legislation dealing with traditional leadership. In dealing with legislation, the national legislation would always prevail if there were provincial legislations that were in contrast with national policy. With that being said, all the provincial legislations were similar to those of the National Framework Act. Unfortunately, if provinces failed to comply with national legislation, the provincial legislation did not have the ability to override the national legislation for the purpose of meeting their shortcomings, therefore provincial legislation could not extent the timeframe stipulated in the national legislation. The Framework Act made no provision for the Minister and MEC to intervene in the implementation the Framework Act, but the Amendment Bill had made provision for the Minister and MEC to intervene if the timeframes were not met. This clause would help the Department monitor any challenges which may arise in the future.
Mr Abram Sithole, Chief Executive Officer: NHTL, said the House of Traditional Leaders in Mpumalanga did not rely on traditional councils to be established, but relied solely on the local Houses, which were comprised of traditional leaders and not the members of the traditional councils. Members of the traditional councils and local Houses were not at the same level – members of the local Houses were senior traditional leaders and not headmen or members of the community. The functions of the local Houses, amongst others, were to support and promote the plans of the provincial government.
Dr Charles Nwaila, Director-General: COGTA, said the Department had predicted that it would not meet the timeframes, but when it had tabled the Bill to Parliament it was unaware that the enactment of the Bill would be lengthy. The Department had put together a task team and appointed a service provider to help with some of the challenges. The task team and the service provider had been travelling throughout the provinces giving traditional leaders guidance on how to implement and use the formulae provided, and harmonising the provincial legislation with the national legislation. Another issue causing the challenges was that the Remuneration Committee had not properly issued a standard sitting allowance for traditional leaders.
Mr Bapela added that if Parliament had passed the Khoi-San Bill on time, there would not be an issue of lapsing of time. The term of office of the NHTL had since expired, and most provinces were in the process of being reconstituted.
Mr D Ximbi (ANC, Western Cape) said he did not know that kings were not a part of the traditional council. He asked how many kings were recognised by the Nhlapo Commission.
Mr Mhlanga said provinces had previously indicated that they were experiencing budgetary constraints, but were there ways in which the Department could put pressure on provinces to allocate a budget to the structures of the traditional houses. He asked whether the South African Local Government Association (SALGA) was being consulted, or was involved as a stakeholder with the reconstitution process.
Mr Mthethwa said it was very important that traditional leaders were prioritised, especially as the house of traditional leadership had previously been ignored. He was not convinced that the Department was serious about implementing the Amendment Bill.
Mr Bapela said that the Amendment Bill had also sought to deal with matters relating to land and arts, and therefore COGTA was expected to work closely with the Department of Rural Development and Land Reform (DRDLR) and the Department of Arts and Culture (DAC). The Department had not considered any mechanism for the period until the Amendment Bill was passed.
Dr Nwaila replied that the kingship was at a different level, so they did not form part of the council. He added that there were 13 kingships was SA, these being situated in the Eastern Cape, Limpopo and KwaZulu-Natal, while the Free State had deemed kingships.
The Chairperson agreed that the Amendment Bill was indeed complex in that it sought to also address other matters like land reform. He thanked the Department for their presentation and excused them from the meeting.
He asked Members of the Committee remain behind to discuss Committee matters. He proposed that the Committee should conduct public hearings on the Amendment Bill.
Mr Mhlanga asked how many weeks the Committee had to conclude the public hearings.
Mr Moses Manele, Committee Secretary, said the timeframe for the public hearings was the Committee’s prerogative. The Committee could set its own timeframes, taking into consideration its yearly programmes.
Mr Mhlanga said the Department must report to the Committee on the issues relating to the Amendment Bill before the public hearings.
The Chairperson said the Committee would meet the following day to discuss the Committee plan to hold the public hearings.
The meeting was adjourned.
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