Traditional Khoisan & Leadership Amendment Bill: Department response to submissions; Traditional Leadership & Governance Framework Amendment Bill: adoption

NCOP Cooperative Governance & Traditional Affairs

30 October 2018
Chairperson: Mr J Mthethwa (ANC; KZN)
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Meeting Summary

The Committee report on the Traditional Leadership and Governance Framework Amendment Bill stated that the Bill had been passed with proposed amendments to clauses 1, 3, and 4. The report was presented to the Committee for adoption, and adopted.

The legal opinion on the Traditional Leadership and Khoisan Amendment Bill noted a submission from the KZN Ministry of Cooperative Governance and Traditional Affairs that it was not correct for the Khoisan to be grouped under one umbrella with the existing traditional authority, because of language issues. However, the legal adviser opined that chapter 12 of the Constitution encompassed all indigenous customs, and the Khoisan could be accommodated in terms of it, even though it might do things separately and differently. As to tagging, the Bill was to be tagged as a section 76 Bill, even though it spoke to the National House of Traditional Leaders, as the National House was only there by virtue of its being a traditional house.

The opinion of the Department of Cooperative Governance and Traditional Affairs noted a submission that insisted that the Auditor-General had to be responsible for auditing of the traditional authority, but it was mentioned that the AG had stated during the Portfolio Committee process that it lacked capacity, and hence it had to be possible for the AG to outsource to registered auditors. There was a submission that claimed that the Bill granted decision making powers to the traditional authority, but that was incorrect. The submission also claimed that the Bill did not require community consent for partnership, which was correct as it pertained to the B version of the Bill, but it had been changed in the C version of the Bill to a decision required from the community. Another submission claimed that traditional authorities were defined as public entities, but that was not the case.

In discussion, several Members insisted that the Auditor-General had to accept responsibility for auditing of traditional structures. Members saw the incorporation of Khoisan as an evolutionary process that could be amended over time, but there was some concern about additional costs implied. There was concern about matters like double dipping by traditional leaders who were employed full-time by government, and salaries paid to ghost izinDunas, and traditional leaders who were paid by a province they did not reside in. There were questions about criteria for recognition and whether traditional leaders were allowed to generate revenue.

Meeting report

Mr J Mthethwa (ANC; KZN) was nominated as Acting Chairperson in the absence of the Chairperson, Mr M Mohapi (ANC; Free State).

The Committee Secretary explained that the report could not be adopted previously. For the present meeting, a draft report to be published was made available for members to consider and adopt.

Adoption of the Committee report on the Traditional Leadership and Governance Framework Amendment Bill

The Chairperson presented the Committee report on the Traditional Leadership and Governance Framework Amendment Bill for adoption. The report stated that the Select Committee had passed the Bill with proposed amendments to sections 1, 3, and 4.

Mr S Mthimunye, (ANC; Mpumalanga) asked if there were any comments from the Department and legal services.

Dr Rinaldi Bester, Chief Director: Policy and Legislation, COGTA, noted that the Department had worked through the C and D versions of the Bill to make sure that proposed amendments were correctly included in the D version. The Department was satisfied that what the Committee had agreed to was correctly reflected.

Ms T Wana (ANC; Eastern Cape) moved for adoption and Dr H Mateme (ANC, Limpopo) seconded.

The report was adopted.

Ms Phumelele Ngema, Parliamentary Legal Adviser, confirmed that all the changes suggested by Members appeared in the report.

Legal opinion on written submissions on the Traditional Leadership and Khoisan Amendment Bill

Ms Ngema noted that two matters arose from the meeting of the previous week. The first was that of the final mandate requested and deliberated by the Committee. In terms of the Mandating Procedures Act, once the final mandate had been received by the Committee, in line with all the requirements of the Act, whether that related to the final or the negotiating mandate, it could be read by any Member or the Chairperson, as long as it was a valid mandate from the province. The second matter was that of additional submissions received, after the request for more submissions sent out, and the extension of the date to September. Most of the submissions were received by June, and were already deliberated on. The Ministry of Cooperative Government and Traditional affairs in KZN was not in accord with the traditional leadership and Khoisan categories being placed under one umbrella. Its argument was based on language provisions that appeared in the Constitution. In terms of section 6 of the Constitution, the languages related to the Khoisan were particular to that group, hence it should have been in line with chapter 12, which spoke of traditional leadership and the traditional authority as it was currently understood. According to the argument, traditional authority and Khoisan leadership had to be separate. The Committee had already addressed the matter previously, coming from the negotiating mandate, and all provinces spoke to it. There was an ongoing argument about the recognition of Khoisan as a traditional authority, in terms of chapter 12, where traditional authority was defined. However, recognition had to happen, regardless of whether the Khoisan authority might do things separately and differently from recognised traditional leaders, and it had to happen in express terms under the statute. Chapter 12 defined traditional leadership in broad terms, and encompassed all indigenous customs.

On the matter of tagging, she stated that on account of the Bill speaking to a National House of Traditional Leaders it should have been a section 75 Bill, not a section 76 Bill according to schedule 4 of the Constitution. But the National House only existed by virtue of being a traditional house, hence by default, and based on the understanding of the scope of the meaning of traditional leadership, the National House, in terms of statutory establishment and requirements resorted under the subject matter of schedule 4 of the Constitution. Therefore it was also a section 76 Bill, as it spoke on issues of traditional leadership. The Bill repealed existing legislation that was stand-alone legislation to establish a National House. The new legislation was inclusive, and replaced legislation that excluded the Khoisan, which was incorrect. There would henceforth be an inclusive structure that would speak to both traditional leadership and Khoisan, but still under the scope of traditional leadership.

Department of Cooperative Governance and Traditional Affairs: opinion on the Traditional Leadership and Khoisan Amendment Bill

Dr Bester commented that in 2004 the Western Cape High Court criticised the fragmentation of legislation in the Camps Bay decision. In the Camps Bay case it was stated that there were 3 000 pieces of legislation that dealt with land use management. Government was urged to consolidate legislation. The National House of Traditional Leaders consisted of provincial representatives. Provinces had an interest in the constitution of the National House. There was a submission by Ms Nellie De Harte that dealt with the history of traditional leadership in KZN, and proposed that the Auditor-General (AG) had to audit accounts of traditional councils. That responsibility was originally ascribed to the AG, but the AG stated during the Portfolio Committee process that it did not have the capacity to do so. There were 840 traditional councils and 12 or 13 kingship councils. There was currently a clause that stated that the AG could make use of a registered auditor, and could reveal the findings. The Language and Accountability Research Centre (LARC) submitted that decision making powers would be granted to traditional leaders. That was incorrect. The Bill did not grant such powers. Traditional leaders were not a sphere of government; the spheres of government being national, provincial and local. In terms of the Constitution, traditional leaders had an advisory, facilitating and participatory role, but did not qualify to have decision making powers. LARC also submitted that there was no need for consent of communities to enter into partnership. The B version of the Bill did not require consent of communities for partnership, but based on a proposal by Members, the C version of the Bill was changed to state that communities had to decide to support partnership. Ms Ngema spoke about KZN, which submitted that traditional councils were organs of State and therefore public entities, but the Department obtained legal opinion from State law advisers to the effect that the councils were not public entities. The provincial houses of traditional leaders were listed as public entities in KZN in the past, but National Treasury advised on deregistration.

 Mr Mthimunye referred to the legislation making provision for auditing of traditional leaders. He asked if it was to be the AG that would appoint the registered auditors.

Dr H Mateme (ANC; Limpopo) remarked that as long as any entity received money from the fiscus there was an obligation on government to follow the use of that money. To get money from the fiscus independently of auditing by the AG was incorrect.

Mr M Chetty (DA, KZN) commented that notwithstanding the fact that the AG stated that it did not have the capacity, the Committee wanted to make auditing by the AG compulsory. He asked how many submissions were received after the extension of the submission date, and whether the extension was validated.

Ms B Engelbrecht (DA; Gauteng) asked about the financial implications of financing 840 councils.

Dr Bester responded that there were two clauses in the Bill that referred to the AG. Clause 19 prescribed that a kingship or queenship council could have its financial statements audited by a registered auditor, as contemplated in the Auditing Professions Act. Audited statements had to be submitted to the Premier. If auditing could not be performed by the AG because of lack of capacity, it could be outsourced. If the AG did the auditing itself, it could be revealed in terms of the Public Auditing Act. The AG had overall responsibility. He replied about financial implications, with reference to the existing state of affairs and what lay ahead. There were 840 traditional councils and 7400 traditional leaders. Kingship and queenship had been in existence for decades, and longer in some instances, therefore there were no new financial implications, except for changes to salaries. The Remuneration Commission would decide about adjustments, as it did for all public office bearers. The Commission on Khoisan Matters would be the responsibility of the COGTA national department. The Department had budgeted together with National Treasury for some years, in anticipation. The Commission for Traditional Leadership Disputes and Claims had always had a budget. Its term ended in December 2017, but the budget could still be used for the Khoisan Commission. Khoisan leader salaries had financial implications for the provinces. Khoisan councils would be similar to those of hitherto recognised traditional councils. It was not known how many councils there would be, and how many would be applied for. Salaries would be determined by the President after the Remuneration Commission had looked into the matter. The functions of Khoisan traditional leaders had to be determined. Salaries would be similar to those of senior traditional leaders. As to the number of traditional leaders, he noted that there were 13 recognised kings and queens, five of whom would become principal traditional leaders. There were 840 senior traditional leaders, and 7 400 headmen and headwomen, who represented some 20 to 22 million people in rural areas. There had as yet been no comprehensive survey of how many Khoi communities there were. The University of Pretoria did a survey which found that there were some 35 000 Khoi in the country. The Department thought that an underestimation. The previous Department of Provincial and Local Government did a survey roundabout the year 2 000, that found that 43 Khoisan communities met the requirements. Khoi communities had become more active and visible, but the number would still be under 100, which was minimal compared to the 7 400 traditional leaders and 840 councils. Financial implications would not be massive. The Khoi and San councils were not separate from each other. It would become part of the provincial houses of traditional leaders. The provinces had to decide how the councils are to be incorporated, as the Bill did not speak to that.

Mr Chetty commented that the Committee felt that auditing by the AG was mandatory, not optional.  CoGTA and the KZN had investigated InDuna salaries. There was double dipping. 78 izinDunas received R16 million, whilst employed full-time by government. R12 million was paid to ghost izinDunas. R6 million was paid to 7 izinDunas who were not verified. KZN paid R224 million annually. It was open to abuse, which was why the MEC called for an investigation. People outside of KZN had to be paid from KZN funds. If such funding came from the fiscus it had to be audited by the AG.

The Chairperson remarked that there were leaders in the hostels in KZN who were called izinDunas and who were recognised by the King. They managed people there. It would be a problem as long as there were hostels.

Dr Mateme opined that government was engaged in an evolutionary process. Khoisan traditional leadership recognition was not an event, it was a process. One step had to be taken at a time. Further amendments could be made in future. She suggested that the Bill be finalised and enacted in law before the elections.

Mr Mthimunye asked if what was being debated was the Bill or the legal submission. To him it seemed like traditional leadership was being revolutionised. He asked why Khoisan had to be mentioned by name. It was the same as distinguishing between ethnic subdivisions like Ndebele, etc. The Public Auditing Act was referred to - legislation had to address the role of the AG, with reference to traditional leadership and accountability.

Ms Engelbrecht referred to cost to the fiscus. The Department had stated that 35 000 Khoisan were represented and 20 to 22 million were represented by traditional leaders. She asked if the total cost of traditional leadership to the fiscus could be calculated, and what the cost of Khoisan leadership would amount to.

Ms G Oliphant (ANC, Northern Cape) commented that the role of the AG had to be spelled out in the Bill. She wondered if the national term for traditional leadership would have to be changed, if Khoisan leadership was to be included.

Dr Mateme was concerned about the call for calculation of the cost of traditional leadership. She suggested that the homework that Ms Engelbrecht had given, be parked. It was not possible to calculate the amount exactly. In her province, amounts paid to traditional leaders differed widely.

The Chairperson advised that as the Department was responsible for all nine provinces, it had to know the answers, and could return with an answer.

Dr Bester responded that there were challenges around the “recognition” of headmen and headwomen. There was a proliferation of traditional leaders. People were recognised who did not meet the criteria. Once the Bill became law, all positions would have to be investigated within the following three years, to see if criteria were met. If not, it had to be abolished upon the death of the incumbent. The Bill dealt with the matter.

The Chairperson advised that the Department had to return about the question of who set up the criteria.

Dr Bester replied that the criteria were contained in the Bill. The challenge was that the Framework Act had provided for headmen and women, but criteria were not provided for the entity as such. In terms of salaries, those of Kings, senior leaders and headmen were the same, as they were public office bearers. But the numbers varied across the provinces. In the Eastern Cape there were 300 traditional leaders, whereas in the Northern Cape there were only eight, and Gauteng had only two, hence financial implications per province would differ.  Same provinces had a thousand headmen and headwomen. COGTA was responsible for the National House of Traditional Leaders, whereas the provinces were responsible for administrative support. The Commission on Khoisan Matters was also the responsibility of the National Department. The current legislations had a gap in terms of accountability, but clause 23 of the Bill would bring Treasury on board for management of the accounts of councils.

Ms Ngema replied about the number of submissions received after the extension from June to September. Submissions were received from COGTA, KZN and the Cape Khoi Heritage and Development Council. Other submissions were from the KZN Global Environment Trust, Edblo and (inaudible). Non-profit organisations supported what Ms Nellie de Harte was saying, and focused more on historical background and matters already addressed in deliberations on the Bill. She replied with reference to traditional structures and auditing, that it was not part of government per se. It was also not public entities that could be dealt with according to the PFMA. Auditing would have to happen in line with other legislation. Views of different stakeholders had to be balanced. It was foresight on the part of the AG to claim that there were workload issues that could lead to non-compliance. The question was what other options could be considered. Traditional leadership structures were not completely state organs or public entities. All views of stakeholders had to be considered.

Ms Shoky Mogaledi, DDG: Research Policy and Legislation, COGTA, responded that auditing currently fell under a certain department, with the AG being held accountable. The AG would audit the department, including traditional structures. The National House of Traditional Leaders was the responsibility of the National Department of Traditional Affairs. The AG would audit the traditional authority and have findings on the Traditional House. It was currently happening in the provinces.

Mr Chetty remarked that it meant that traditional structures were still audited by the AG, by default.

Ms Ngema noted that the Premier of a province could conduct an investigation into matters such as payment to ghost izinDunas in terms of section 63. Remuneration had to be consistent in terms of section 44 of the Constitution.

Mr Mthimunye said he took comfort from the comment by Dr Mateme that revolutionising the traditional authority had to be a continuing process. Traditional authorities were not public entities by law, but did resemble them. The question was whether such authorities generated revenue, and if so, how that was regulated.

Dr Bester responded that the Nhlapo Commission investigated paramountcy to see if it were kingships or not. The Commission had decision making powers. It was found that seven out of the 12 met requirements, and five did not. The five would continue as kings and queens until the incumbent died, when it would change to principal traditional leaders, a position created in law in 2009. Legislation came into being in 2009. The Nhlapo Commission mandate had at first been wide, but then focused on paramountcy. On generating revenue, he said there was a case in Limpopo where traditional leaders or a council were imposing levies, which the Constitution did not allow. Only the three spheres of government were allowed to impose taxes and levies. The traditional authority was not seen as one of the three spheres of government. Accountability and account controls related to funding were being brought in.  Only voluntary contributions were allowed. The imposition of levies could be challenged in law.

The Chairperson noted that legal and departmental opinions on written submissions had been heard, and the Committee was advised about the final mandate.

The Chairperson adjourned the meeting.

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