Traditional Leadership and Governance Framework Bill: hearing

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Cooperative Governance and Traditional Affairs

15 September 2003
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Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
16 September 2003
TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL: HEARING

Chairperson:
Mr Y Carrim (ANC)

Documents handed out
Traditional Leadership and Governance Framework Bill [B58-2003]
Address by Minister P Maduna
Presentation by the Department
House of Traditional Leaders Submission
South African Local Government Association submission
Congress of South African Traditional Leaders submission

SUMMARY
Both the Minister and the Deputy General outlined the national framework and norms and standards that would define the place and role of traditional leadership within the new system of democratic governance.

The National House of Traditional Leaders in its submission proposed that there was a need to set out the powers and functions of both the Provincial and National Houses of Traditional Leaders in the Constitution. It insisted that there was a need for a constitutional amendment to set out the powers and functions of traditional councils.

The Congress of South African Traditional Leaders submission noted the inadequate recognition accorded to traditional leaders in South Africa. It proposed amendments which would clearly stipulate the powers and functions of traditional leaders in local government and proposed that the affairs of traditional leadership be administered in the offices of the Premier and Presidency. During the discussion Members raised the issues of wall-to-wall municipalities disrupting the demarcation of traditional communities, whether traditional leaders could be removed from office for failing to deliver on their mandate and whether any country has managed to effectively harmonise traditional leadership within a democratic dispensation.

The South African Local Government Association (SALGA) proposed that the entry into service delivery partnerships must expressly be made subject to the provisions of the Municipal Systems Act. The Bill makes provision for national or provincial funding for district houses and there should be compulsory consultation with organised local government nationally or within the province when roles were allocated to traditional leaders. During the discussion Members sought clarity on SALGA's role in assisting with the public hearings held by the provincial houses of traditional leaders. It was proposed that a legislative framework be introduced to regulate the relationship between traditional leaders and local government.

MINUTES
Address by Minister of Justice
Minister P Maduna pointed out he was making the presentation to the Committee in his capacity as the acting Minister for the Department of Provincial and Local Government. He briefly outlined the policy process, which lead to the draft White Paper. He pointed out that the final White Paper - endorsed by all the stakeholders - outlines the policy framework for the transformation of the institution of traditional leadership. It addresses the relationship between traditional practices, human rights and democratic local governance and the transformation of the institution in line with a modern democratic state. With the endorsement of the final White Paper, government drafted this Bill to give legislative effect to that policy framework (see document).

Presentation by Director General of Provincial and Local Government
Ms L Msengana-Ndlela outlined the policy process that led to the White Paper and the legal framework as contained in the Bill. The 1996 Constitution laid the basis for defining the place and role of the institution in the new system of governance. Between 1997 and 1999 the Department had conducted extensive research and an audit of the institution of traditional leadership and a number of issues requiring further discussions and consultations, such as:
- prevailing disparities
- disputes and different approaches
- appointments and application of various laws
- remuneration and condition of service
- party political affiliation
- the role of the institution of Traditional Leadership
- the role of local government

This whole process led to a discussion paper, which then culminated in the draft White Paper. The White Paper outlined the vision of the institution of traditional leadership and aligned it with the constitutional principles of democracy and equality. The White Paper incorporated comparative analysis drawn from monarchical rule elsewhere in the world. It also dealt with the internal transformation of the institution, issues of succession and the role of women with regards to succession.

She noted that the issue of the Khoi-San and their relation to the institution of traditional leadership had been raised but it was still an area that needed a particular focus and further research.

She then explained the scheme of the Bill which is divided into seven parts:

Part 1
It deals with definitions and administration of the Act

Part 2

It outlines the process to be followed regarding the recognition of traditional communities and partnerships between municipalities and traditional councils

Part 3
It provides for the recognition of various traditional leadership positions and regents

Part 4
It provides for the establishment and restructuring of the different Houses of Traditional Leaders

Part 5
It sets out roles, function and guiding principles for the institution of Traditional Leadership and the chapter also contains the Code of Conduct of the institution.

Part 6

It provides for the establishment of a Commission on Traditional Leadership Disputes and Claims. She pointed out that the Commission would be an independent mechanism to deal with the legitimacy/or illegitimacy of traditional leaders and its institution. The role of the Commission will inter alia include investigating all the disputes dating as far as the year in which the Black Administration Act no.28 of 1927 was promulgated.

Part 7

It contains the general provisions and transitional arrangements.

Discussion
Mr Solo (ANC) asked if the Director General could assure the Committee that there had been support for the final White Paper by all the stakeholders. Secondly, whether the new structures envisaged by the Bill were going to be indigenous in nature.

Ms Xingwana (Joint Monitoring Committee for the Status of Women) asked for clarity on the issue of succession under the new policy framework and whether the Constitution would be taken into account on issues of succession. She also asked about the role of women in the Traditional Leadership institutions.

Ms Seaton (ACDP) asked if it would be possible to pass the Bill this term and what would be the costs implications in implementing the Bill.

Mr Ngubeni (ANC) asked whether the audit conducted by the Department in 1997 and 1999 was exhaustive of all the issues, as he was concerned that there were traditional leaders who had been deposed by the apartheid government. He asked about the role of the Commission in that regard.

The Chair responded that the Department had conducted a thorough consultative process. The Committee aimed to adopt the Bill by 17 October 2003. On the question of cost implications, he conceded that there were many Bills that were not implemented because of the lack of capacity and financial resources. However the Committee would engage the Department on issues of practical implementation as they deliberate on the Bill.

In her response, the Director General pointed out that there had been a qualitative process of consultation with all the key stakeholders on the drafting of the White Paper.

On the issue of gender, she pointed out that proposed Bill was focusing on issues of gender because they were trying to align the Bill with the principles of the Constitution.

On the costs implications of the Bill, she acknowledged that there would be financial implications and that would require a commitment by government to capacitate the institutions of traditional leaders. Hence even though resources were limited, there was a commitment by government towards the Bill.

Adv. Seth Nthai (Head of Ministerial Team on Traditional Leadership Bill), responding to the question of whether the proposed traditional structures were going to be indigenous, pointed out that in the light of the new constitutional democracy, it would be impossible to restore those structures to their form before colonial intervention, but the Department would try to retain some key elements of those structures.

On succession and the role of women, he pointed out that the Bill was gender neutral and the Bill required the institution to be transformed in line with the Bill of Rights.

He further noted that the Commission would investigate cases where people were illegitimately deposed from their thrones but those found to have acquired their positions by wrongful means and not through customs, would have to relinquish their positions.

Mr Goosen (ANC) asked what would be the status of the National Khoi-San Council and whether it would be recognised under the Act.

Ms Msengana-Ndlela pointed out that the Bill was touching on number of issues such as self determination, indigenous knowledge and cultural heritage. The Department was trying to deal with all these issues broadly and in detail. Hence the proposed framework through the Bill would only focus on the traditional leadership institution. Hence the Department deal with issues pertaining to the Khoisan separately. The National Khoisan Council was not a statutory body but a consultative forum and the Department was engaging the Khoisan through that forum.

Mr Solo (ANC) asked how the Department was seeking to strike a balance between the political role of traditional leaders and their developmental role as custodians of customs.

Ms Ntombela (ANC) asked how the Bill was going to operate in the light of the apartheid laws like the Black Administrative Act. She asked whether the proposed Bill would repeal such laws.

Ms Msengana-Ndlela replied that the Department had just finalised an audit of the old legislation.

Mr Zondi (Public Participation forum in Durban) was of the view that he would like to see more being done on the issue of dispute resolution and the need for the establishment of mediation mechanisms.

Ms Msengana-Ndlela replied that the Department was looking for a mechanism with elements of mediation that would assist the traditional leaders before resorting to the courts.

Nkosi Holomisa (Contralesa) asked what informed the Department to choose 1927 as the cut-off date for the Commission to investigate disputes, and how would the Commission deal with matter of succession, which had nothing to do with the apartheid government. Secondly, was there a deliberate intention on the part of the legislative drafters not to use the word "power" under the functions and role accorded to the traditional structures.

Adv. Nthayi added that the envisaged Commission would have a final decision on disputes, however it will not deal with unmeritorious issues. Disputes that would be dealt with under the Act were those that would arise out of the implementation of the Act such as succession and the institution's powers and functions.

He noted that 1927 was chosen as the cut-off date for investigation of disputes because it was a point at which there was direct interference by colonial forces on the institutions of traditional leadership. On the non-use of the word "power" in the Bill, he pointed out that the word "power" could easily be misconstrued with legislative powers meaning that traditional leaders could pass by-laws. Traditional Councils did not have legislative powers but only the power to initiate legislation.

The Chair commented that there was a need for the Committee to look at to what extent the Bill was consistent with the White Paper. Also to what extent could Parliament legislate on issues of customs and traditions? And to what extent should it take on board all the views of the relevant stakeholders?

National House of Traditional Leaders submission
Nkosi Mzimela said that the National House of Traditional Leader rejected the use of the word "Principal Traditional Leadership" instead it proposed the use of vernacular language terms. In respect of Clause 5 of the Bill, they proposed that the Constitution be amended to set out the powers of traditional councils and those of District Houses to include the powers and functions presently exercised by the Regional Authorities.

Discussion
Ms Ramupedi (National House of Traditional Leaders) was concerned that the Bill excluded "headman" as a category of traditional leaders.

Mr Mshudulu (ANC) asked how the National House of Traditional Leaders would interpret Chapter 12 of the Constitution dealing with Traditional Leaders and what would be the mandate of the provincial houses.

Nkosi Mzimela replied that the National House of Traditional Leaders appreciated of Chapter 12 which recognised traditional leaders in the new democratic dispensation. He pointed out that they were calling for an amendment of the Constitution because it had to set out the powers, functions and the role of traditional leaders at local, provincial and national level. The fact that the Constitution was finalised did not mean that it could not be amended if the need arises.

He said that the their submission had been adopted by all the entities within the National House of Traditional Leaders.

The Chair pointed out that the Constitution was human-made and the outcome of a democratic process, however on the other hand it could not be altered lightly. It might be useful for the Committee to go through the Bill and the White Paper carefully and assess if there were any issues that would lead to a constitutional amendment. He commented that there was a need for the Bill's translation into all official languages given the nature of the Bill

Afternoon session
Discussion
Mr Mbongeni (ANC) asked what the position would be if the majority of the communities in a particular area do not agree with the proposed constitutional amendment suggested by the National House of Traditional Leaders. Surely this would surely result in chaos.

Nkosi Mzimela responded that they did not believe this possible. The community would not disagree with the constitutional amendment proposed by its own traditional leaders. The traditional leaders represented the interests of the community and did not, unlike politicians, represent their own interests.

Mr Komphela reminded all present that they were attending a parliamentary hearing and they should thus respect the rules of conduct of that institution.

Adv Holomisa believed that Mr Mbongeni's question was actually referring to the wall-to-wall municipalities which would be introduced. He stated that the Congress of Traditional Leaders of South Africa (Contralesa) did not disagree with that, provided that the establishment of those municipalities did not result in the eradication of the responsibility, functions and powers of traditional authorities. This point had been indicated in the submission. Traditional communities must exist and continue to function as local authorities. There would also be a structure above traditional authorities, and Contralesa was of the view that traditional leaders must be represented on this structure as well. The Contralesa submission aimed to harmonise the traditional approach and the new proposed position.

Mr Mbongeni noted the National House of Traditional Leaders concern that it did not have sufficient time to apply its mind to this Bill. He proposed that the provincial Houses of Traditional Leaders be allowed to make submissions to Parliament as well.

The Chair replied that it was not the practice of this Committee to entertain submissions by regional branches of institutions. They preferred to hear submissions from that institution's national structure. This Committee had an understanding with its NCOP counterpart that that House would interact with the provincial structures.

Nkosi Mzimela explained that he did not mean that the provincial Houses of Traditional Leaders had insufficient time to apply their minds to the Bill. He had said that the National House of Traditional Leaders had stated in 2000 that Contralesa should be formed so that traditional leaders could speak as one voice. Thus the position of Contralesa represents the inputs made by the provinces and all other entities that constituted Contralesa.

He had failed to mention during his presentation that traditional leaders should not be used for political point-scoring, and the principle of "divide and rule" often applied by the colonialists should also no longer be applied. He disagreed with Mr Mbongeni as he was confident that the provinces would have raised any concerns they had with the Bill during their meeting with Contralesa. The provincial structures have agreed that Contralesa remained necessary, as it was a symbol of unity for traditional leadership.

CONTRALESA Submission

Adv P Holomisa, President: Congress of Traditional Leaders South Africa (Contralesa), presented the submission which outlined Contralesa's aims and objectives and the inadequate recognition accorded to traditional leaders in South Africa. The submission proposed amendments which would clearly stipulate the powers and functions of traditional leaders in local government and it also proposed that the affairs of traditional leadership be administered in the Offices of the Premiers and Presidency.

Discussion
Mr Mbongeni asked both the National House of Traditional Leaders and Contralesa to explain whether traditional leaders would also be dismissed from their political office which they would now occupy for failing to deliver on their mandate. He stated that this would be different from the current position which did not allow traditional leaders to be removed from office for such matters.

Nkosi Mzimela replied that traditional leaders were not above the law, and this was addressed in the presentation. Traditional leaders did have a Code of Conduct that had to be followed, just as Members of Parliament had to abide by their Code. Traditional leaders could thus be removed, and they could return to office if they have been fully rehabilitated. Yet this person would not be able to return to office if the community decided that that person was no longer fit and proper to serve as its traditional leader.

Adv Holomisa responded that this matter had never arisen in the minds of members of the community, because the traditional leaders would always ensure that the traditional leadership of the community was successful. The mandate of traditional leaders was inherent, just as their powers were inherent in the institution of traditional leadership. Members of the community could always inform traditional leaders that they were no longer exercising their mandate properly.

On the issue of the Bill being translated into the other official languages, Mr Komphela noted that the White Paper had been translated into isiZulu and gazetted accordingly on 10 September 2003.

Rev A Goosen (ANC) asked how the boundaries of a particular local authority would be redefined if a municipality had been demarcated in such a way that the traditional community had been separated.

Adv Holomisa responded that Contralesa proposed that when these boundaries were declared for the purposes of municipalities, rather than defining single communities, different communities should be placed within one municipal area.

Mr A Lyle (ANC) asked if there was any country which had successfully harmonised the monarchal system and the democratic dispensation, as was currently being proposed.

Adv Holomisa replied that Contralesa did not agree that it should be viewed as democracy versus traditional leadership, because that connotes that traditional leadership was not democratic. The fact was that traditional leadership was actually "more frustratingly democratic" than South Africa's current dispensation, as was indicated in the National House of Traditional Leaders submission. He stated that the issue was instead that of elected leadership and traditional leadership, and whether those leaders truly acted in the best interests of the community. This was the actual test for democracy.

He stated that he did not have a concrete comparative example, but related instead the practicality of the matter. It had always been the view of Contralesa that the role and importance of traditional leaders had to be recognised and protected. This had now been realised in the Constitution as well as the Bill. Separate houses for traditional leaders had to be established so that they could consider the affairs of their people, and to consider the draft laws and policies formulated in the elected assembly so that they could inform their people. Those houses should not simply be "toy telephones", but their input should be taken seriously.

South African Local Government Association Submission
Councilor D Masemola, Executive Mayor: Sekhukhune District Municipality, conducted the South African Local Government Association (SALGA) submission (document attached) which proposed that the entry into service delivery partnerships must expressly be made subject to the provisions of the Municipal Systems Act, the Bill makes provision for national or provincial funding for district houses and there should be compulsory consultation with organised local government nationally or within the province when roles were allocated to traditional leaders.

Discussion
Mr S Mshudulu (ANC) asked SALGA to explain its role in assisting the public hearings held by provincial houses of traditional leaders.

Nkosi Mzimela responded that he had written several letters to SALGA to request a meeting at which these matters could be discussed, but SALGA had not responded positively to date. It had not even attended one of the National House of Traditional Leaders' annual conferences. The National House of Traditional Leaders had tried its level best and had even been invited by some municipal councilors to discuss its position on a certain matter. The fact that traditional leaders did not participate in the municipal activities did not necessarily mean that they were not involved in the developmental activities that were taking place in their communities. The National House of Traditional Leaders sought to give effect to the relationship between itself and local government created in the Constitution.

Nkosi Mzimela stated that there was unnecessary competition between traditional leaders and SALGA. He asked SALGA to explain how it would consult the traditional leaders on matters that would affect traditional leaders specifically.

Kgoshi Mabalane, Deputy Chairperson: North West Province House of Traditional Leaders, stated that a legislative framework was needed to regulate and control the relationship of co-operative governance between local government and traditional leaders. The parties could not be expected to rely simply on the principle of mutual respect.

Councilor Masemola responded to these two questions by stating that Section 81 of the Municipal Structures Act provided the current legislative framework for that relationship. It must be understood that the ultimate understanding of the Bill is that a strong district house must be established, which would further enhance the relationship between the two. He stated that it would be important for the two to get together and discuss those important matters.

Morena Ramopedi, National House of Traditional Leaders, reminded SALGA that the Bill itself declared the houses of traditional leaders were to be regarded as an organ of State. Chapter 3 of the Constitution would then apply, which provided that the principles of co-operative governance would be applicable to those structures.

Councilor Masemola replied that he agreed, if houses of traditional leaders were in fact regarded as organs of State.

Mr Komphela informed Members that the Mahumani Community would not be addressing this Committee because their concerns have been included in the National House of Traditional Leaders submission.

The remainder of this meeting was not covered by PMG after 5.30pm.

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