Traditional Khoisan Leadership Bill: Department response to negotiating mandates

NCOP Cooperative Governance & Traditional Affairs, Water and Sanitation and Human Settlements

11 September 2018
Chairperson: Mr J Mthethwa (ANC; KZN) (Acting)
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Meeting Summary

The Committee heard written responses from the Department of Traditional Affairs (DTA) on provincial negotiating mandates as part of the ongoing process of guiding the Bill towards final adoption into law. The responses were made following an earlier request by the Committee.

The DTA rejected the overwhelming number of proposed amendments made by provinces on various aspects of the Bill. Not unexpectedly, Provincial representatives were quite unhappy about this and voiced their opinion strongly.

The main areas of contention were as follows:
-The name of the Bill: why was it only focused on the Khoisan? What about other groups?
-Was it fair and equal to deny Kingship and Queenship status to the Khoisan while other groups had this recognition?
-Between the Department and the people, who had the final say regarding what was allowed or not allowed into the final draft of the law?
-Why not try amending already existing legislation governing traditional leadership,
instead of proceeding with a divisive Bill?

Before adjourning the meeting, the Chairperson proposed the following as a way forward:
- the Department must prepare a “C list” and include the views of speakers at the meeting, including the Chairperson
- the Department must table the list the following day
- the Committee should call a meeting to adopt the list
- all information, including the minutes, to be sent back to provincial legislatures
 

Meeting report

Briefing by the Department of Traditional Affairs (DTA)
Dr Rinaldi Bester, Chief Director; Policy and Legislation, DTA ,said out of nine provinces, three had supported the Bill without amendments; five had supported the bill with amendments, and one had rejected it. He then proceeded to read out some of the proposed amendments and the DTA’s responses (see attached document).

The DTA turned down all of the proposed amendments, except two from Gauteng which were of a largely semantic nature. The Department also made two amendment proposals of its own. The one was in connection with clause 63(4) of the Bill, while the other centred on the introductory part of clause 24(3) and paragraph (c) of the sub-clause.

Discussion
Ms Alexandra Beukes (ANC), Chairperson of the Portfolio Committee on Cooperative Government, Human Settlements and Traditional Affairs (COGHTA) in the Northern Cape, expressed her confusion regarding the absence of the Northern Cape’s commentary in the document on which Dr Bester’s presentation was based. Right in front of her, she said, was the document containing said commentary, and a “lot of it” at that. This was a big problem because should Dr Bester’s document reach the Northern Cape, it would cause the impression that her Committee had failed in its duty to represent the views of the province.

Mr Mninawa Nyusile (ANC), Chairperson of the Portfolio Committee on Cooperative Governance and Traditional Affairs (COGTA) in the Eastern Cape, sought clarity on who was “the final arbiter” - between communities on the one side and the Department on the other - regarding what was incorporated (or not) into the Bill. He charged that the Department was being political and was only highlighting “technical matters” to block the will of the people. The dominant view on the ground was that people were not happy with the Bill being separated from the rest of legislation dealing with traditional leadership.

Mr Nyusile said government was setting a bad precedent. What would happen when the Nama and other ‘tribes’ demanded their own Bill? Would government start all over again to accommodate them too?

Mr Masizole Mnqasela (DA), Chairperson: Standing Committee on Local Government, Western Cape, said while his Committee was solidly behind the basic rationale of the Bill, which was to end a long history of denigrating Khoisan traditional leadership, there were still issues of concern. One of those was the inconsistent treatment of traditional leaders by the state. To illustrate, he cited Section 7 (sub-sections 1 and 2} of the Bill which stated that Kingship and Queenship amongst the Khoisan was not recognised. Yet this was raised and put up as a negotiating mandate by stakeholders, and for Dr Bester to reject it, as he had during his presentation, was unacceptable.

Mr Mnqasela therefore followed the previous speakers in arguing that the Department seemed to “want to have its cake and eat it” (the nearest linguistic analogy to the IsiXhosa phrase: “baxhel’eyabo baphinde bayitye ngokwabo”) and whatever communities felt about these matters the Department could safely dismiss with technicalities.

Mr Mnqasela said his other concerns revolved around the role of traditional leadership in land and its control, and the funding or remuneration of traditional leaders. He suggested a standard national conditional grant to ensure that traditional leadership across all provinces was treated and funded equally. He warned that failure to address the issue of unequal remuneration could “cause havoc” in the country.

Ms T Wana (ANC; Eastern Cape) questioned the thinking behind the Bill’s name. Why were other groups like the Nama, Griqua, Koranna, etc. not included? Also, was “Khoisan” the umbrella name for all of the above? Personally, she was doubtful that was the case, but she thought she should give the Department a chance to explain.

Dr H Mateme (ANC; Limpopo) said the divisive effect of the Bill, as already demonstrated by speakers before her, could not be avoided. To ensure that the legislation was inclusive and reflected the unitary nature of South Africa’s political system, somebody needed to “go back to the drawing board”. She suggested that the Committee consider making amendments to the already existing Act on traditional leadership instead of bringing in divisive legislation “through the back door”.

Ms G Oliphant (ANC; Northern Cape) was also strong in her objection to the name of the Bill and urged that this be changed to include those “who will wake up one day” and find themselves not part of it. She also echoed Mr Mnqasela’s point on remuneration of traditional leaders and said everyone should be treated equally, otherwise “they will be killing each other”.

Mr Mashwahle Diphofa, Director General, DTA, said it was important to clarify that the Department was only acceding to an earlier request to make comment on the negotiating mandates. Parliament, and not the Department, would ultimately decide on the matters. It was therefore regrettable if the tone of the Department’s commentary had created the wrong impression. On all aspects of the Bill, the Department would be guided by Parliament, and to give an example, he cited the input of the Western Cape on the issue of partnerships, which had identified a potential flaw in the legislation, and on which the Department had proposed its own amendment.

Dr Bester referred first to the complaint by Ms Beukes that the input of the Northern Cape legislature had not been captured in the presentation document. He said the Department had indeed read the document from the Northern Cape but since it did not indicate an objection to the Bill, the Department had omitted it in order to respond to those who had submitted objections, or proposed amendments.

On the Western Cape’s concerns around Kings and Queens, Dr Bester said the fact remained that there was no historical evidence of any kind that the Khoisan had Kings or Queens. Even the National Khoisan Council itself confirmed this. Therefore, this had nothing to do with discrimination, and everything to do with different traditional groups having different leadership structures.

Over the years, “hundreds of proposals” for the name of the Bill had been suggested, before the current one was adopted. In his view, the title correctly reflected the content of the Bill: namely traditional leadership and Khoisan leadership. He confirmed that the term Khoisan was an umbrella name which incorporated the Nama, Griqua, Koranna, San, and the Khoi (including numerous Cape Khoi sub groups). The term was the most acceptable to the majority of people being referred to.

Dr Bester said although an Act governing traditional leadership was already in place (the Traditional Leadership and Governance Framework Act), the honest truth was that from an implementation point of view, the Act had “numerous challenges”. The current Bill was not only dealing with Khoisan traditional leadership, but it was a total redrafting of all legislation dealing with traditional leadership as such, to ensure that all the challenges of the existing Act were addressed.

Dr Bester further argued that even if, as Dr Mateme suggested, the existing Act were amended, the exercise would be an extremely complicated affair. Regarding the remuneration issue raised by Mr Mnqasela, he said the law was clear that there could be no salary discrepancies between public office bearers of the same rank irrespective of where they were in the country. The salaries of traditional leaders were determined by the President of the country and not by provinces, and any deviation from this was in conflict with the law.

Mr Mnqasela again asked for comment on his suggestion of a conditional grant for the funding of traditional leadership. He also urged that the Committee should do away with the “myth” that traditional leaders were treated the same. It was a well known fact that some Kings were treated like they were the“ Kings of other Kings”.

Before adjourning the meeting, the Chairperson proposed the following as a way forward:
- the Department must prepare a “C list” and include the views of speakers at the meeting, including the Chairperson
- the Department must table the list the following day
- the Committee should call a meeting to adopt the list
- all information, including the minutes, to be sent back to provincial legislatures

The meeting was adjourned. 

 

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