The Committee was briefed about the legal uncertainty surrounding the status of tribal authorities that were supposed to have been reconstituted as Traditional Councils. The challenge that had arisen in this particular year was that all structures had to be aligned, and their terms of office had to be aligned to the National House of Traditional Leaders (NHTL). However, the term of the NHTL had expired in August this year. Because of the legal uncertainty about the current status, and the fact that the Department believed that the legislative enabling provision in terms of which Traditional Councils could be reconstituted had lapsed, there was now a big challenge as to what legal instrument could be used to reconstitute and align the term of office to that of the NHTL. The Department expressed their wish to amend the current law to make sure that the councils could be reconstituted so that there was legal certainty about their status, and so that they could continue to function in terms of the national law, as well as provincial legislation.
On 16 September 2017, the Committee had received two submissions from community groups asking for public participation. Both the submissions had expressed the concern that following the meeting between the Committee and the Department of Cooperative Government and Traditional Affairs (COGTA), they were requesting the Committee to consider the option of public hearings to ensure public participation in the legislative process.
Some Members were displeased with the fact that the article and advertisement had appeared in the Sunday Times on a Sunday, and the deadline for submissions was on the Monday -- 24 hours later. This was an injustice to the provinces and generally to the people in the country. The DA had written to the Speaker, highlighting their concerns. Members also felt that many of the traditional councils, kingships and queenships were illegal; and expressed concern about the financial implications of funding these councils. The single refrain from the Department was that ‘this was just a technical amendment of an extension; it did not deal with substantive issues’.
The Committee also questioned the urgency of the Department to have the Traditional Leadership and Governance Framework Amendment (TLGFA) Bill passed. Members stressed the importance of the bill to their traditional leaders, and proposed proper consultation with the people who were directly affected, like the communities in KwaZulu-Natal, the Western Cape, North West and Limpopo, who were also governed by traditional leaders. Gauteng was planning two public hearings next week, and then one would probably be able to see what the source of the delay was. Members emphasised that the focus should be more on what was actually delaying implementation, rather than the time frames. It was evident from the participation of the provinces, especially those which were most affected by the system, that they had not complied with the regulations. All Members advised that time be given for proper public participation to find out where the challenges were, and how best to overcome them.
The Committee agreed that based on the submissions that had been received, in terms of the provision of Section 72 of the Constitution, the NCOP had an obligation to also ensure that public participation was embarked upon. It decided to embark on a programme to encourage public participation regarding the Bill in all the provinces.
The Chairperson proceeded to the continuation of the briefing, and recalled that after the briefing by the Department Cooperative Governance and Traditional Affairs (COGTA) on the Traditional and Leadership Governance Framework Amendment (TLGFA) Bill [B23-2017], it was deemed fit to extend an invitation to the Chairs’ of Committees from various provinces to ensure a common understanding and a common approach. In the meeting on 12 October, there was also agreement that submissions would be solicited from different stakeholders and this would provide indications to the House, and based on that the Committee would deliberate on the way forward.
Dr Muzamani Nwaila, Director-General: Department of Cooperative Governance and Traditional Affairs (COGTA) called upon Dr Rinaldi Bester, Chief Director: Policy and Legislation, Department of Traditional Affairs to make the briefing.
Dr Bester said that in terms of the existing Traditional Leadership and Governance Framework Act, certain things had to be done within specific time frames. The existing tribal authorities had to be reconstituted within a specific time frame, community authorities had to be disestablished, and then kingship and queenship councils had to be established within specific time frames. He assumed that Members had read the Objects Memorandum of the Bill and seen that it explained in detail and in very easy terms why these time frames had not been adhered to.
The reality was that with regard to traditional councils, the initial one year time frame had never been adhered to, and then the time frame was extended in 2009 with an amendment Act for a further seven years. However, the problem with that amendment was that the seven years was to be calculated from the date of commencement of the original Act, and not from the date of the commencement of the 2009 Amendment Act. The result was that that time frame actually lapsed in 2011 and therefore traditional councils had not been re-instituted in time. It was not that nothing was done about the old tribal authorities; in fact provinces did attempt to reconstitute. One should remember that implementation in terms of the Framework Act lay with the provinces, and most provinces except for the Western Cape did have legislation dealing with traditional leadership. The Western Cape does not have recognised traditional leaders -- in other words, the current Framework Act and also this particular Amendment Bill does not apply in the Western Cape, because there are no recognised traditional leaders.
The problem with the attempt to reconstitute traditional councils was that in some instances, the tribal authorities were just not reconstituted at all. In other instances where they were reconstituted, it had taken place after the expiry of the time frames provided for in terms of the law. In some instances, provinces had not complied with their own legislation.
Members who were familiar with traditional leadership would know that the current law required a formula to be issued which dealt with the number of members of Traditional Councils and how they were constituted. The majority of provinces did not issue such a formula. Furthermore, this formula was supposed to be issued in accordance with guidelines that the Minister issued in 2011, which had since been replaced to address some shortcomings. The formulas that were issued were not in compliance with those guidelines.
All of this had resulted in legal uncertainty as to the status of tribal authorities that were supposed to have been reconstituted as Traditional Councils. The challenge that had come in in this particular year was that all structures had to be aligned -- the terms of office had to be aligned to the National House of Traditional Leaders (NHTL). However, the term of the NHTL expired in August this year. Therefore, because of the legal uncertainty about the current status and the fact that the Department believed that the legislative enabling provision in terms of which Traditional Councils could be reconstituted had lapsed, there was now a big challenge as to what legal instrument could be used to reconstitute and align the term of office to that of the National House.
All the issues raised with regard to Traditional Councils were addressed in the Traditional Khoisan Leadership Bill, which was currently before Parliament. It was introduced in Parliament in September 2015. It was still with the Portfolio Committee and they were at the very last stages of that Bill, as they had done a very thorough exercise. Because it was known that it would go through a very thorough process when it reached the NCOP, an immediate urgent interim measure was needed to deal with the reconstitution of these councils. Therefore, the Department wished to amend the current law just to make sure that the councils could be reconstituted so that there was legal certainty about their status, and so that they could continue to function in terms of the national law as well as provincial legislation.
The same kind of problem existed with regard to kingship and queenship councils. Here the law stipulated that within one year after the recognition of a kingship or a queenship, the council had to be established. The President had recognised kingships in 2010, and that time frame had lapsed in 2011, and none of those kingship councils had been established. One of the reasons for this was that the law required that a formula be issued to determine the number of members of kingship and queenship councils, but also required that the kingships had to be consulted -- and this was easier said than done. This was not easy and there were many challenges to get the kingships together. The Department had in the last few years actually done the consultations. A new queenship had been added in 2016, the Balubedu Queenship, better known as the Modjadji Queenship. Even in the case of this queenship, which was quite new, the one-year time frame had also lapsed. So the kingship and queenship councils could not be established unless the timeframe was officially extended.
As far as community authorities were concerned, there was a different kind of a challenge. They were supposed to be disestablished. The national law in the Framework Act said that they should be disestablished in terms of provincial legislation, and there was a specific timeframe of five years. The provinces, except for the North West, had not made provision for such disestablishment in the provincial laws. Therefore the provinces had not met that particular requirement and timeframe.
The Amendment Bill presently in front of the House intended to extend the timeframes referred to so that government -- and more specifically the provinces -- would be in a position to be able to reconstitute traditional councils so that kingship and queenship councils could be established.
As far as community authorities were concerned, the Bill brought in a procedure that could be used by provinces for the disestablishment of community authorities. So where provinces did not have a procedure for disestablishment, this Bill provided such a procedure that could be used for that purpose.
As far as the formula was concerned that was referred to, it was noticed that in provinces where a formula was issued to determine the number of members of traditional councils, the formula was basically exactly the same as the guidelines issued by the Minister. So a provision was brought in here that basically said that in cases where a formula had not been issued, the guidelines that the Minister issued recently could be used as if they were the formula.
Obviously the amendments were quite urgent, and the Department regarded them as such. The timeframe of the National House term of office had expired in August, and a new National House was currently being established. Provinces were busy establishing their provincial houses to elect members to the National House. This also meant that there were other structures that needed to be established as quickly as was possible, and therefore the Department needed this interim measure by amending the current law that extended the timeframes.
This Bill had been well consulted with the implementers – the provinces and houses of traditional leaders -- of the legislation. The National Assembly (NA) had passed this bill on 22 August, and it was now in the hands of the National Council of Provinces (NCOP). It was hoped that it would be passed soon so that the legislative enabling provision would then be available to do all the reconstitutions.
The Chairperson asked if this session could be coupled with the issue of submissions, so that an informed decision could be made on the way forward.
Mr Moses Manele, Committee Secretary, said that on 12 September 2017, the Department had briefed the Committee on the objects of the Bill. On 16 September, the Committee had received two submissions from community groups asking for public participation. Both the submissions had expressed the concern that following the meeting between the Committee and the Department, they were requesting the Committee to consider the option of public hearings to ensure public participation in the legislative process.
The Chairperson said that the submissions had been circulated.
Mr M Chetty (DA, KwaZulu Natal) said he first wanted to deal with the advertisement that had been placed in the Sunday Times. The decision to place the advertisement was taken three weeks ago. He wanted to place on record the DA’s disappointment and objection to the fact that the article and advertisement had appeared in the Sunday Times on the Sunday, and the deadline for submissions was on the Monday. One could not expect the people of this country to take Parliament seriously if Parliament itself did not take them seriously. One could not give people 24hours to respond to an issue that had serious consequences and concerns that they had already raised. In the interim, the DA had written to the Speaker highlighting their concerns, and they wanted it noted here. This was an injustice to the provinces. There was also a concern about how people could prepare presentations if they had only 24 hours to do so. It seemed that in the Department’s haste to want to regulate certain irregularities, they now wanted to legitimise those councils that were not reconstituted via this process.
Ms B Engelbrecht (DA, Gauteng) said that it seemed that according to the law, many of the traditional councils, kingships and queenships were therefore illegal. Her question related to the financial implications of these councils, kingships and queenships. If they were illegal in terms of the law, what was happening to the financial contribution that the country was paying towards these councils, kingships and queenships, because then surely this was also illegal?
Dr Nwaila said that the Department had the Traditional and Khoisan Leadership Bill, which dealt with substantive issues. This was just a technical amendment of an extension, and did not deal with substantive issues. Kingship councils had not been established as yet, so there were no financial implications at play here. Furthermore, if traditional councils were not constituted, they remained traditional authorities. The finance used was from tribal authorities who had been around from time immemorial - they were not just new structures.
Dr Bester said that in the Memorandum of Objects, it was stated very clearly that there was legal uncertainty with regard to their status. There could be arguments in some instances to say that some of the tribal authorities were legally reconstituted, but they might not have met all the requirements, and with all the requirements being referred to it was actually requirements in terms of provincial legislation that they may not have met. The Department therefore wanted to make sure that there was legal certainty as to their status.
Ms Engelbrecht said that she could not understand the urgency of the Department to have this Bill passed. It had been seven years, and the Traditional Councils had not been disestablished, it had been seven years that the kingships and queenships had not been correctly established, and there had been no apparent or concerted effort from them to fall within the legislation. With this urgency, it appeared that public participation and proper consultation with communities was not taking place. What was making this Department want to rush through this Bill, as she could not see that extending it by a year was going to make any difference to the legality of the Traditional Councils or kingships and queenships?
Dr Bester said that with regard to the ‘urgency’ that some Members had spoken about, processes had been put in place to make sure that these councils were established and reconstituted where necessary. This was because the Department wanted to make sure that there was legal certainty as to their status so that they could perform their functions and roles, not only in terms of National Law, but also the provincial legislature. It wanted to make sure that people who were implementing this, namely the provinces, who could do nothing at the moment as far as reconstitution was concerned, could be enabled to implement the legislation. It should be noticed that in this Bill, only the time frame issue was being dealt with – not even the other challenges that the Department was well aware of.
Dr Nwaila said this was just a technical amendment that spoke to the extension of time frames. As was indicated in September 2011, some provinces had not complied with the legislation.
Mr J Mthethwa (ANC, KwaZulu-Natal) said that the TLGFA bill was a very important issue in their traditional leadership, and could not be rushed without proper consultation with the people who were directly affected by this bill. He therefore proposed that a proper consultation in some of the provinces like KwaZulu-Natal, the Western Cape, North West and Limpopo -- who were also governed by traditional leaders -- should be made.
Mr M Mhlanga (ANC, Mpumalanga) said that the challenge seemed to be that time frames which would probably not be met, were being extended. The engagement should be on the regulatory approach, addressing what the stumbling blocks were for the law to be implemented, rather than just extending the dates only. Gauteng was planning two public hearings next week, and then one would probably be able to see what the source of the delay was. The focus should not be more on the time frames than on what was actually delaying the implementation.
Dr Nwaila replied that the Department was definitely looking at the stumbling blocks. One of the issues was that provincial houses had just been constituted, and several pieces of legislation in different provinces were not aligned to the National Framework Act, so the main bill that dealt with substantive issues was dealing with those issues of alignment so that all the houses could be aligned to the National House. Community authorities had been established through the British law called the South Africa Act of 1909, where the hierarchies had been introduced for the first time. Community authorities had been created from that time, so disestablishment therefore involved transforming those old structures that had been established in the past.
Mr D Ximbi (ANC, Western Cape) asked if it was the provincial legislature that wanted public participation or if it was the people of the Western Cape, because he knew that there was no traditional council in the Western Cape. He asked because he was part of the traditional leaders of this province. They had tried to talk to the premier, and today he had said he wanted a briefing on the Traditional Bill.
The Chairperson confirmed that the Western Cape had expressed an interest in holding public hearings.
On the Western Cape, Dr Bester said that there were about 840 recognised senior traditional leaders in the country and there were 12 kingships and one queenship. In the Western Cape, there were no recognised senior traditional leaders. This meant that in practice– even though this particular Framework Act applied to the whole country – the Western Cape therefore had no concerns about implementing it because there were no traditional councils here. In the future, they would probably have responsibility towards the Khoisan when that Bill became law in the future.
Ms T Mokwele (EFF, North West) said that initially the request was to involve communities or relevant stakeholders on time. One could not be rushed into implementing the Bill. It was evident from the participation of the provinces, especially those which were mostly affected by the system, that they had not complied in terms of the regulations. She suggested that time be given for proper public participation to find out where challenges were and how best to overcome them.
The Chairperson said that it was the provincial department that had requested the Department to take the process forward.
The Chairperson said that based on the submissions that had been received, in terms of the provision of Section 72 of the Constitution, the NCOP had an obligation to also ensure that public participation was embarked upon. A request had been posed to this Committee that said that as much as it would be dealing with an issue of a Bill, it should humbly request consideration of public participation on this particular Bill.
Dr Nwaila said that on consultation, there were two documents here (the two submissions). One looked at those communities that were not traditional communities, and the other document was talking about land issues. However, because this had to do with time frames, consultations had to do with substantive issues which had no bearing on the extension of time frames. With regard to the Traditional Leaders and Khoisan Bil,l consultations had been done extensively on substantive issues.
The Chairperson interjected, and asked if the DG was aware of the LAMOSA (Land Access Movement of South Africa and Others) judgment. He apologised for interjecting, and said that regardless of what was happening in the NA (National Assembly), it was not automatic that it endorsed or rubber stamped anything. The NCOP (National Council of Provinces) was a house on its own, hence the LAMOSA judgment was explicitly clear in saying that as much as there had been public participation from the NA, it did not mean that the NCOP would automatically overlook public participation.
Dr Nwaila continued, and said that the Portfolio Committee processes were concluded. It was then that it would be referred, and would deal with the consultative processes on the substantive issues. This matter was about the extension of time frames, which was not looking at substantive issues.
Ms Mokwele said that she heard what the DG was saying -- trying to corner the Committee into allowing the process to be concluded without following proper procedures. It then meant that as institutions - being the Department and NCOP or Parliament - they somehow left a gap for other things. That was why, when the Committee had to deal with bills that were technical, it was legislatively required to do public participation. When one went to ordinary people, they would not even understand the substance of the Bill. It appeared that the submissions did not seem to be addressing what was happening here. For her, this meant that there was something that the Committee was not doing -- institutions that needed to educate the communities. She requested that proper procedures and processes be followed. She requested the Chairperson to be the mouthpiece of the Committee, and maybe to have some media statement outlining the importance of having this Bill passed, so that then the public would have an idea as to what was being dealt with.
The Chairperson asked Dr Nwaila for some guidance on this matter. Gauteng had already said that next week they were having public hearings. He was not sure what this meant. Did it mean there were constraints in communication – it should be noted that this was a Section 76 Bill. He was wondering how it had happened, because he had thought that it would be centralised so that at the end of the day whatever the Committee came up with would have been properly communicated for it to be properly enacted. Also, the Western Cape had suggested dates. He asked for the opinion of the Department, especially because provinces were already coming on board on their own.
The DG said that they were not aware of this, because as soon as the process moved from Cabinet to Parliament, the Department did not get involved because their role was to support Parliamentary processes.
Mr Mhlanga said that given that an extension was being asked for, what surety would be given that if the time was extended, within a few months all provinces would have established traditional councils?
The DG said they were asking for an extension without any guarantee, because this time they were working with provincial officials and had also interfaced with the MINMEC (Ministers and Members of Executive Councils) meeting, of which the Chairperson was also a member. This would take it through that process, as well ensuring that there was uniformity in terms of the reconstitution of the process. There was a service provider who was helping the Department and who had gone to all the provinces, taking people through the pieces of legislation and what was expected. Hence the ground was being prepared and the process was being supported, and that process was being led from the national level. That was the assurance that it had, that at least it would be able to get the provinces to comply. There were five phases in the process. On 9 November, the National House would be constituted.
The Chairperson asked Mr Manele to clarify the issue of the discrepancy around the issue of the advertisement.
Mr Manele said that there was a serious problem with regard to the approval of financial funding. He was surprised to see that the financial application from a management point of view would take seven days to approve. However, the political application that had been submitted to the House Chairperson and the Chief Whip would take only 24 hours. He made an appeal today that a report be prepared. This report could then be tabled to the Committee
The Chairperson asked Mr Manele to speak specifically about the advertisement.
Mr Manele said that the funding application had been submitted on the 29th, and there had been a delay.
The Chairperson said that a way forward with regard to this matter had to be ascertained. There was a popular view that there should be public participation. There was a strong need for this, albeit with some concerns. Based on an attempt to address some of the concerns, Members were encouraged to go and look at what was happening in the provinces, and to be aware of things that happened which had serious implications regarding the legitimacy of structures. This would also give an opportunity to the Committee not to be seen as not doing its own oversight over the Department. The popular view was to ensure that it could be sure that at the end of the day, there was a guarantee that work was going to be done to ensure that as and when the mandate from the communities was obtained, the Committee could ensure that the Bill itself was enacted, having the full blessing of the communities.
Mr Manele was asked to outline how best to deal with this matter.
Mr Manele said that after this meeting, a programme would be crafted in consultation with the Chairperson to ensure that at tomorrow’s meeting, the Committee Members adopted the legislation programme. Secondly, it would ensure that the Chairpersons from the provinces – immediately after the programme had been adopted – sent the programme to the provinces.
The Chairperson asked if he could get an indication if all provinces would be dealt with, or if specific provinces would be targeted.
Mr Ximbi suggested that provinces should be identified that had houses of traditional leaders’ councils, like the Eastern Cape (EC), KwaZulu-Natal (KZN), Northern Cape, Limpopo, Mpumalanga, Free State, Gauteng and the North West Province.
Dr Nwaila said that the provinces suggested had many traditional communities and structures. The numbers of traditional councils/leaders for the provinces mentioned where known were: EC three, Limpopo four, Mpumalanga five and North West six, which had the most traditional leaders. The Free State and the Northern Cape had fewer numbers.
The Chairperson said there should be a common understanding of the approach to the programme so that at the meeting tomorrow, the programme could be realigned when the Committee embarked on it in order to give priority and preference to public participation processes.
He asked the Chief Whip of the Committee to thank the representatives from the various provinces.
Mr Mthethwa, on behalf of the Select Committee, thanked the Members coming from the provinces, as well as the Department and especially the Committee’s own staff, who had done a lot to ensure that each and every piece of relevant information had been received.
The meeting was adjourned.
- Letter from Mr Andre Thomas to the Committee regarding Traditional and Leadership Governance Framework Amendment Bill
- Letter from Mr Humphrey Mugakula to Committee regarding Traditional and Leadership Governance Framework Amendment Bill
- Letter from Mr James Ngubane to Committee regarding Traditional and Leadership Governance Framework Amendment Bill
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