Traditional and Khoi-San Leadership Bill: COGTA briefing, with Deputy Minister; SALGA Annual Performance Plan

NCOP Cooperative Governance & Traditional Affairs

14 November 2017
Chairperson: Mr M Mohapi (ANC)
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Meeting Summary

In his opening remarks, the Deputy Minister said the main crux of the Traditional and Khoi-San Leadership Bill is the recognition of the Khoi-San because the Constitution presently recognises nine indigenous communities. The Khoi-San took up the matter with government until they were left with no option but to approach the United Nations. The UN took a decision to appeal to SA to recognise the Khoi-San. That the Khoi-San were not recognised and were just lumped into the group of coloureds until the case was formidably raised and presented by the Khoi-Sans and DNA tests confirmed that they truly do exist within the community of coloureds. This bill seeks to give expression to that recognition, and when that is done the Constitution will have to be amended to give effect to this recognition. 

The Department of Co-operative Governance and Traditional Affairs stated that the objectives of the bill are: to make provision for the recognition of the Khoi-San, to consolidate (subsequently to repeal) the National House of Traditional Leaders Act, 2009, and the Traditional Leadership and Governance Framework Act. 2003, to ensure an integrated and uniform approach in dealing with all matters relating to traditional leadership, to address the limitations of the two laws that are to be repealed, and to effect consequential amendments to other laws.

Members asked why submissions for constitutional amendments were not submitted first before introducing the bill knowing that this bill will require an amendment to the constitution, and that to refer to traditional leaders as office bearers will cause confusion with political office bearers; why not use the term traditional office bearers? Others asked the Department to explain why the Khoi and the San are lumped together when they are two different people; even they are dissatisfied that they are grouped as one people.

SALGA presented its Annual Performance and Financial report. Its presentation comprised of achievements in the second quarter but some of those achievements are cumulative because it started in the first quarter of the previous year. SALGA’s mandate is to transform local government to enable it to fulfil its developmental mandate.  Its strategic goals are: sustainable, inclusive economic growth and Spatial Transformation;
Good Governance & Resilient Municipal Institutions; and Financial Sustainability of Local Government & Greater Fiscal Equity.

SALGA maintained Municipal debt was profiled in collaboration with the  Finance and Fiscal Commission and proposals on how to deal with the historical debt owed to municipalities was presented at the Presidential Coordinating Committee held on 29 August 2017.

In terms of performance, SALGA’s quarter two performance percentage as per the 61 targets as follows: 82 % are on track; 7% is lagging behind while; 11% is not applicable.

SALGA obtained an unqualified Audit Opinion with no findings (clean) in 2016/17 financial year and subsequently for five years running.

Members asked in terms of councillor development, has SALGA any relationship with the Skills Education and Training Authorities? Attention has to be paid to this sector not only for councillor development but for economic development as well at municipal level because at post-tenure these young councillors have to be economically active in one sector or the other. Using young people as councillors as opposed to the retired persons opens the room for corruption. Why not use retired teachers, nurses and a host of retirees?  Others wanted to have a list of government departments indebted to the municipalities and how much they owed.

Meeting report

The Chairperson welcomed the Deputy Minister, Mr Obed Bapela, and political heads and officials that came from the provinces. The standard practice of the Committee was to not be addressed solely by officials and technocrats from departments alone in its deliberations. SALGA should take note of this, and he sought clarity on why SALGA’s report/presentation was not sent to the Committee earlier.  He lamented how the Committee was crowded with bills just two weeks to recess. Today when the Khoi-San bill is being presented, the chairs from the provincial portfolio committees were invited and all requested extensions except Mpumalanga and Free State, who had complied with their provincial mandate. There was a failure of coordination because a legislative programme was not developed from the beginning of the term, and this would be addressed in future to prevent creating an impression that the NCOP structure is a failure.

Deputy Minister’s Opening Remarks
Deputy Minister Bapela said the Department would present a bill already adopted by National Assembly on 7 November. This bill was introduced in Parliament in 2015 and the delay in arriving to NCOP now is a matter of Parliament to sort out because that process is in the hands of Parliament.
The bill is known as the Traditional and Khoi-San Leadership Bill 2015 (TKLB). It is part of SA’s democratisation which recognised traditional structures since the dawn of democracy though it precedes colonialism. The Khoi-San were conquered and used for the purposes of the advancement of the administration of colonialism and apartheid. Those that survived were dispersed and removed from their thrones. Since 1994, government has tried to rework, research and resettle traditional leadership systems. All post-colonial systems in Africa post 1957 have adopted a republican system of government that embraced traditional leadership. Before then just kingdoms existed before Ghana gained independence. The SA Constitution has a dedicated chapter (12) and three sections dealing with the traditional leaderships. If this bill goes through, it will replace the Traditional Leadership and Government Framework Act 41 of 2003.

The main crux of the bill is the recognition of the Khoi-San because the Constitution presently recognises nine indigenous communities. The Khoi-San took up the matter with government until they were left with no option but to approach the United Nations (UN). The UN took a decision to appeal to SA to recognise the Khoi-San. That the Khoi-San were not recognised was not a deliberate act by SA but because in 1994 the other communities were recognised and existing and no information about the Khoi-San was in any of the statutes. They were just lumped into the group of coloureds until the case was formidably raised and presented by the Khoi-Sans and DNA tests confirmed that they truly do exist within the community of coloureds. This bill seeks to give expression to that recognition, and when that is done the constitution will have to be amended to give effect to this recognition. Many Khoi-Sans have argued that they be accorded the first nation status but the then Organisation of African Unity (OAU) had decided that all Africans are indeed indigenous to the continent. Perhaps where this first nation status might be applied is in places where a foreign group came in and took over like the Aborigines in Australia, where the majority in that country’s population is now whites, and Latin America; the Indians.

Department briefing
Dr Charles Nwaila, DG: COGTA, stated that the objectives of the bill were:

- to make provision for the recognition of the Khoi-San

- to consolidate (subsequently to repeal) the National House of Traditional Leaders (NHTL) Act, 2009, and the Traditional Leadership and Governance Framework (TLGF) Act. 2003, to ensure an integrated and uniform approach in dealing with all matters relating to traditional leadership

- to address the limitations of the two laws that are to be repealed, and

-To effect consequential amendments to other laws.

 

The main objectives and principles of the TLGF Act and the NHTL Act are retained in the Bill.

Some of the limitations of the Bill include: there are inadequate provisions relating to accountability of the House in relation to planning and reporting; current provisions relating to the content of the Annual Report are vague; the limitations of the Local Government Municipal Act. 1998 includes that section 81 of the Municipal Structures Act does not contain details on the roles of traditional leaders when participating in municipal councils; and limitation in relation to Remuneration of Public Office Bearers Act. 1998 and the Independent Commission for Remuneration of Public Office- Bearers Act. 1998 are that the definitions of ‘office bearer’ in these acts exclude certain traditional leadership positions.

 

Leadership

Clause 6 makes provision for the withdrawal of the recognition of a Khoi-San community

Clause 7 states that there are the following traditional leadership positions:

King of Queen
Principal traditional leader (subject to the definition in clause 1)
Senior traditional leader
Headman or Headwomen

And the Khoi-San leadership positions:
Senior Khoi-San leadership positions

Branch head - certain Khoi-San communities have a main community where the leader of that community resides, as well as one or more smaller communities that are situated in other areas away from the main community. These smaller communities are known as branches and their leaders are referred to as branch heads. Clause 7 also sets out the criteria for leadership positions.

 

General provisions
Clause 59 deals with disputes and makes provision for a procedure to be followed in respect of disputes that were not dealt with by the Commission on Traditional Leadership Disputes and Claims (CTLDC)

Clause 60 makes provision for regulations and contains details on consultations to be conducted in respect of draft regulations. 
Clause 61 makes provision for delegations. 
Clause 62 authorises the national Department of Traditional Affairs to monitor the implementation of the Bill once it becomes law.
Clause 63 contains all transitional provisions. Note should be taken of the following: clause 63(1) requires of the provinces to investigate whether any headmanship or headwomanship, or any headman or headwoman established or recognised prior to or since the commencement of the Framework Act, meets the criteria for recognition as contained in the Bill. This is necessary to address allegations that some headman and headwoman may have been recognised without meeting any criteria.

 

Financial implications
The proposed amendments to section 81 of the Local Government: Municipal Structures Act. 1998, will ensure a more streamlined system where a lesser number of recognised leaders are to participate in municipal councils. This should result in a cost saving.

The Khoi-San leadership positions and structures will have additional financial implications. While it is not possible to predict how many leaders will eventually be recognised in accordance with the criteria for recognition provided for in the Bill, the salaries and allowances to be paid to recognised Khoi-San leaders will be determined once the Remuneration Commission has made a recommendation in that regard.

The Khoi-San councils will have to receive support similar to the support provided to traditional councils.

The Bill also makes provision for the Commission on Khoi-San Matters with a limited lifespan. This Commission will function at national level and the Department will therefore have to budget for it.

Discussion
Mr S Mthimunye (ANC, Mpumalanga) asked why submissions for constitutional amendments were not submitted first before introducing the bill, knowing that this bill will require an amendment to the Constitution. To refer to traditional leaders as office bearers will cause confusion with political office bearers; why not use the term traditional office bearers? Can we not think of a better term? The bill is silent on the role of traditional and Khoi-San leadership as the custodians of indigenous language. What then becomes the role of traditional leaders in this space? Will this not result in a conflict between the institution of traditional leadership and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission) ?

Ms T Wana (ANC, Eastern Cape) appreciated the presentation but wanted to understand the chapter on limitations. If there were gaps on the limitations as presently written, how can it be made better? Why do we call them traditional leaders while in England they are called Dukes and Lords and they have an elevated position? In SA they are given a political position while in the UK they have a better status. We have the tendency of undermining the leaders in SA, the born leaders are converted to elected positions and this is a concern.  
What is the current status of traditional leaders in local municipalities? Will the Khoi-San be integrated into the bigger structure?
Is there any level of kingship amongst the Khoi-San? What structures is being put in place by the Department to ensure we do not have many headmen and kings?

Mr M Chetty (DA, KwaZulu-Natal) asked why there is a different recognition criterion for Khoi-San communities compared to other traditional communities; is this not discriminatory? 
Clause 24 reads that deals entered into by the Traditional councils must be beneficial to the community. But this is without consultation. Who determines what is beneficial to the community?

Ms B Engelbrecht (DA, Gauteng) asked the Department to explain why the Khoi and the San are lumped together while they are two different people; even they are dissatisfied that they are grouped as one people. The presentation speaks that the focus of the Bill is community consultation but how is this going to be regulated, the type of participation expected, and how is it going be implemented? 
4.2 speaks about when the term of the national house shall end, is this applicable to all leaders or restricted to the Khoi and the San people alone?

Ms B Oliphant (ANC, Northern Cape) suggested that Mayors and ward councillors do not understand how to treat traditional leadership, the Queens and the Kings. Is there going to be a separate Act for the municipalities? This is because the Khoi-San were not recognised before.

Dr Nwaila responded that when the Bill was introduced in 2010 the first comment received was why call it Traditional Khoi-san Bill while there is no traditional Zulu or Xhosa. As was earlier expressed by the Deputy Minister, for the sake of this bill, there are two types of leaders, which are traditional and political leaders. The separation came about when Cabinet asked the Department to research more on the subject and came out with the recommendation that the bill be incorporated and not treated separately in 2003. 
On when the Khoi-San will be included to participate in the structures, this will be when the bill becomes law; only then will they too be able to receive the benefits that other traditional leaders are getting. This bill is also coming with substantive issues, including the establishment of the King’s Council. There was a vision until 2011 for all the provinces to re-constitute, although there were challenges in 2009.

Dr Rinaldi Bester, Chief Director: Policy and Legislation, COGTA, siad that traditional office bearers being referred as leaders is in harmony with the Constitution. Section 219 of the Constitution speaks of who are public office bearers and traditional leaders are included there. So, there are two pieces of legislation, one deals with the independent commission on public office bearers and the other talks about remuneration. The DG had alluded to the fact that some of these positions existing in law have not been included in the definitions of those particular laws. Again, religious and other cultural issues are not dealt with in this Bill but in other pieces of legislation. Nothing in the bill speaks about limitations but the bill points out the gaps in the current laws. Research carried out by anthropologists for many years has not yielded any evidence of the existence of the history Khoi-San kingship and the national Khoi-San council that were part of the bill formulation has acknowledged this fact. Once this bill becomes law, all existing headmen and headwomenships that are recognised will have to be reviewed to see if they meet the requirements. 

On the issue of remuneration of traditional leadership in municipalities, the Remuneration Commission makes recommendations for salaries, benefits, allowances and also on tools of trade of traditional leaders. The President then makes a determination and then proclamation in the gazette before it becomes law. No formal determination has been made yet on traditional leaders who participate in municipal proceedings or sit in local houses.  This means that no national norms and standards have been set. 

On partnerships, amendments were made to ensure that such partnerships could only happen subject to prior consultations of the relevant communities. The term of office, at the moment the law talks about the alignment of offices and the structures, that is, the houses and the traditional leadership councils.   The fact is that a perfect alignment is not possible because the structures at the moment overlap. 

On who is a Khoi-San, we are aware there are smaller groups that will say they are not Khoi-San and some San preferred to be called Bushmen. This bill will settle who is a Khoi-San. The criterion is there and that is how it will be determined based on research and with the aid of the Khoi-San Council.

Deputy Minister Bapela, in his summation, quoted the preamble to the Constitution, which says that SA belongs to all who live in it united in their diversities and that should be the guiding principle when dealing with this bill and to deliver social justice within the indigenous African community.

The Chairperson said that the Committee would embark on an internal process of preparations for public hearings, stakeholder engagements, and other miscellaneous engagements. Interpretation services will be taken into consideration as well.  The traditional leadership is the authentic voice of our people and must be treated with respect.


Briefing by SALGA on their Annual Performance and Financial Report

The Chairperson noted that this interaction was long overdue, the Committee would engage when the Committee has heard how they intend dealing with their Annual Performance Plans (APP).

 

Mr Sebenzile Ngangelizwe, Deputy President, SALGA, said SALGA has tried to work with traditional leaders in terms of coordinating the working relations with its councillors, and even guidelines were developed. 
The limitations of the Khoi-San bill have been discussed with COGTA and it was agreed that they would use SALGA’s template in coordinating activities and engage communities. One of the key issues raised by traditional leaders is the lack of respect for our leaders, especially traditional leaders.  He hoped the Select Committee would assist SALGA in closing these gaps.  
SALGA agreed to connect with the Committee in terms of capacity building. The welfare of councillors should be a priority because SA is not like Germany. Ward councillors in Germany are retired judges, unlike in SA where young people are recruited. No support is given to them from national government and this frustrates the young councillors. Relevant people have to be recruited to operate in this sphere of government and he urged the Committee to assist.

 

Mr Seana Nkhahle, Executive Manager: Business Planning and Organisational Performance, SALGA, briefed the Committee. The presentation was comprised of achievements in the second quarter, but some of those achievements are cumulative because it started in the first quarter of the previous year.  

Goal 1: Strategic goals are sustainable, inclusive economic growth and Spatial Transformation
SALGA Launched Small Town Regeneration (STR) Project in Mangaung (2015) followed by the geographic specific intervention in the form of the Karoo STR Progress reported at the Karoo STR Conference inclusive:


- Eastern Cape Premier announced in his Budget speech, an infrastructure budget allocation targeted at STR nodes such as Enoch Mgijima municipality.

- The Premier of Northern Cape (NC) has also committed to use STR to inform provincial investment in NC

- A regional STR has been initiated in Bojanala.  Consultations began with all municipalities on 27 July 2017. Engagements also include municipalities in Gauteng where the region extends to

Challenges
Some challenges include: Challenges relating to IGR across provincial boundaries which SALGA has engaged CoGTA through the IUDF programme to address.

Legislation hindering inter-municipal cooperation
A synopsis of legislation hindering inter-municipal cooperation and planning has been concluded and recommendations made.

 Key to the recommendations is proposals for policy reforms in order to create a more enabling environment for cross-boundary planning and inter-municipal cooperation.

 Key stakeholders were engaged with a view of obtaining consensus around the findings, and to further enrich the work done with additional or alternative views. 

COGTA was consulted on the Intergovernmental Relations Framework Act (IRFA) and how it could be applied in the context of a cross-boundary region.

National Treasury consultation aimed at ascertaining the possibility of having a dedicated grant for a cross boundary region using the equitable share framework.

Electricity and Energy Policies 
- Identified Electricity and Energy policies that are an impediment to the delivery of Electricity and Energy services and these were also tabled at the Inter-Ministerial Task Team (IMTT). Amongst those are the regulations for small scale embedded generation.

Electricity 
-Developed a Legal Framework and Costing study to initiate consultation and lobbying on fiscal policy position and enabling fiscal regime for Electricity and Energy.

- The outcome of the study was also presented and discussed at the Department of Energy strategic planning session.

- An engagement was also held with DoE on outcomes of the study.

GOAL 2Good Governance & Resilient Municipal Institutions

Support provided on governance matters
- Provide hands-on support to municipalities as per SALGA Governance Hands-on Support
Strategy Provide ongoing advice on councillor welfare and support as and when requested.

 - Participated in and facilitate engagement with the Executive and the Legislature 
Taking Parliament to the people and continuous lobbying and engagement on the legislation negatively impacting on LG 

- Submitted to the NCOP Provide support to municipalities as per SALGA Municipal Support and Intervention 
Framework

Promote good governance and anti-corruption in municipalities.

Councillor Induction 
SALGA implemented portfolio based inductions with a total of 1000 delegates trained as follows:

 MIS implemented portfolio induction in KZN, MP & EC and a total of 59 delegates were inducted.

 IGR implemented portfolio based inductions in LP, NC, EC, KZN, GP and a total of 417 delegates were inducted.

MF conducted induction in NW, MP, NC, LP, FS, EC & GP and a total of 412 delegates were trained.

 CD delivered an induction session in the EC and a total 53 delegates attended.

GOAL 3: Financial Sustainability of Local Government & Greater Fiscal Equity.

Municipal finance
Municipal debt was profiled in collaboration with FFC and proposals on how to deal with the historical debt owed to municipalities was presented at the Presidential Coordinating Committee (PCC) held on 29 August 2017, at the Special MF NWG held on 21 September 2017 and BF of 22 September 2017. 

Developed business cases around the adequacy of the vertical intergovernmental transfers and the toxicity of irrecoverable debt (positions which were tabled at both the PCC and the Budget Forum on the 29th August and 22nd September 2017). 

Participated in the Grants Review platforms lobbying for municipalities being provided better hegemony over grants. 

Made comments to the first draft of the 2018 Division of Revenue Bill

Participated in the Solar PV adequate tariff development workshop 19 - 20 July 2017.

In terms of performance, SALGA’s quarter two performance percentage as per the 61 targets as follows:

82 % are on track

7% is lagging behind while

11% is not applicable.

Audit Outcomes
SALGA obtained an unqualified Audit Opinion with no findings (clean) in 2016/17 financial year and subsequently for five years running.

 

Discussion
Mr Mthimunye asked, in terms of councillor development, has SALGA any relationship with the Skills Education Training Authorities (SETAs)? Attention has to be paid to this sector not only for councillor development but for economic development as well at municipal level because at post-tenure these young councillors have to be economically active in one sector or the other. This can only be done if the development programmes of SALGA addresses the economic issues.  If for instance a councillor sits on the Portfolio Committee on Safety on Security, he could perhaps open a security company post tenure and contribute to the local economy. Lessons to be drawn from other developing countries are that the economic development of the country is based on small businesses.  SALGA can leverage on this lesson to stimulate local economic development at the local level.

Mr J Mthethwa (ANC, KZN) appreciated the presentation by SALGA and praised them for doing a great job.  Taking young people as councillors as opposed to the retired opens room for corruption; they see it as job opportunity. Why not use retired teachers, nurses and a host of retirees?  SALGA needs to influence this narrative. On the R128b owed, is it owed the municipality, by government, public sector or who?  If owed by government, any plans to recover them? The R24b that is being recovered is from whom?

Ms Wana said the Committee intervened in accordance with section 139 of the constitution, are there any investigations ongoing? If yes what is the outcome? What time frame is put in place by SALGA in terms of negotiations with workers or labour forum to get to a decision in terms of the bargaining chamber?

The Chairperson wanted to know the fourteen municipalities that are in the red and those that are indebted to Eskom; he asked for details of municipalities facing challenges and interventions that have been initiated thereof? Also, a list of government departments indebted to the municipalities and how much they owe? He requested that the Committee be forwarded the legislations mentioned that are impacting on the smooth functioning of the local government.

Mr Ngangelizwe responded that SALGA has started a training scheme for councillors and if they pass two to four modules they are taken further. In terms of the National Development Plan (NDP), it used to be seven goals but clusters are now consolidated into three that are linked to the NDP. This is precisely because the Constitution has been changed to accommodate three Deputy Presidents that have oversight functions through the working groups dealing with specific goals. SALGA knows that provinces sometimes are not assisting the municipalities and we as MEC SALGA are now appealing to provinces to share notes with them at provincial levels before they table reports to their various provincial executive councils.

On money owed, the Department of Public Works (DPW) is one of the debtors at both national and provincial levels for rates, taxes, schools, clinics etc. In the last PCC, SALGA put a proposal that debts owed to government by municipalities should be swapped for the debts municipalities owes Eskom; this idea is being discussed. 

On the issue of councillor development both on and post service, there is a learner management system that is initiated looking at where the councillors are at when they commence and then a career path is developed, which culminates to certain qualifications, depending on their chosen paths. The SETAS are working with SALGA in this regard. 

Who owes the R128b? It is broken down into different categories. The biggest in percentage terms is the communities, which constitutes over 50%. It is because of this that SALGA is advocating for the fiscal system to be reviewed because a large number of them have now become indigent because of the prevailing economic situation. There is also government component to the debts at 10%. If the government debts can be expunged, it equates to what the municipalities owe Eskom so government is compromising the ability of the municipalities to pay Eskom.  

On where the R24b is recovered from; it is not what is recovered already but is recoverable. These are debts that are less than ninety days old, though no guarantee is undertaken that it can be recovered.

The Chairperson indicated that this interaction is not a once off exercise because all questions were not comprehensively responded to. There might be another set of meetings with the relevant Department as part of the oversight

The meeting was adjourned.

 

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