A summary of this committee meeting is not yet available.
LOCAL AND PROVINCIAL GOVERNMENT PORTFOLIO COMMITTEE
17 September 2003
TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL: PUBLIC HEARING
Chairperson: Mr Carrim (ANC)
Documents handed out
Traditional Leadership and Governance Framework Bill [B58-2003]
Khoisan Council submission
Madikwe Council submission (Appendix 1)
Sekhukhuneland Organisation submission (Appendix 2)
Landless Peoples Movement submission
National Land Committee submission
Bataung Council submission
South Africa National Civic Organisation submission (Appendix 3)
Commission on Gender Equality submission
Legal Resources Centre submission
Municipal Demarcation Board submission [documents awaited]
Organisation of Traditional Leaders of South Africa submission (Appendix 4)
The submissions continued, and it was a common cause among the presenters that clause 25(3) was perpetuating old apartheid laws. Accordingly, they all submitted that clause 25(3) be left out of the Bill and all the old apartheid laws like the Black Administrative Act and Black Authorities Act be repealed by the proposed legislation.
The Committee addressed a broad range of issues, with participants of the Public Hearings often taking opposing views. The question of regulating tradition was acknowledged as a complex balance between South African law and Constitution and the acknowledgement of traditional values and governance. The Commission on Gender Equality urged the committee to ensure equitable treatment of women especially in leadership opportunities and succession.
Traditional leaders urged parliament to strongly consider the impact of municipal boundaries on the unity and integrity of Traditional communities.
Khoisan Council submission
Chief Joseph (National Chairperson) proposed that there was a need for the recognition of traditional-indigenous communities. Also the envisaged provincial legislation should make provision for the capacity building of all traditional leaders in its province so that the institution of traditional leadership would not be drawn into disrepute. Further the proposed Commission should only commence to exercise its powers and functions after the roles, powers and functions of the traditional leaders who were recognised and accredited by the President post 1994, become effective.
Madikwe Council submission
Mr Molwantwa representing the people falling within the Council of Madikwe, outlined their key areas of concern and these include Clauses 25, 2, and 3(b)(i) and (ii) of the Bill:
- Clause 25(3) was perpetuating the Colonial Apartheid and Bantustan laws.
- Clause 3(b)(i) and (ii) was not transforming and democratising the institution of traditional leadership in line with the statement of the Preamble.
Sekukhuneland Council submission
The Council was in support of the general framework underlying the Bill except they were concerned that the Bill was treating traditional leaders as an additional tier of government. They were of the view that they should rather have a supporting role. Although apartheid legislation had been assigned to the provinces, the national government had to ensure that that legislation was repealed.
Landless People's Movement submission
The movement had two concerns:
- the representation of women on traditional councils
- the Bill entrenched custom and customary law, which was discriminatory against women
They proposed that the Bill had to specify that women in the community had the right to choose their representatives on the royal council, and that they were eligible to form part of the royal council.
National Land Committee submission
Mr Mngxitama said that they welcomed the objectives of the Bill except their concern was that the Bill has not been subjected to any meaningful discussion and debate by communities living under the system of traditional leadership. The National Land Committee proposed that the House of Traditional Leaders had to consider a more intense process of community consultation facilitated by government department and civil society. It also raised concern that Clause 25(3) was seeking to perpetuate and exempt the existing tribal authorities established in terms of the old apartheid legislation like the Black Administration Act of 1927 and the Black Authorities Act. It was proposed that Clause 25(3) be left out of the Bill and that once the Bill becomes law, all Tribal Councils be subjected to the democratic provisions obtained in the new law with immediate effect.
The Chair noted that there was a need to create cooperation between the Khoisan Council and the National House of Traditional Leaders so that in the long term there could be one common house. He also proposed that the issue of Khoisan be deferred until it is given its own proper attention.
Nkosi Nonkonyana (ANC) asked Chief Joseph whether the definition "indigenous group" would only be applicable to the Khoisan and not to the people under traditional leadership.
He was of the view that the issue of Khoisan ought to be dealt with separately and differently.
Ms Seaton (ACDP) asked the department when the Bill dealing with the Khoisan will come before Parliament.
Chief Joseph (Khoisan Council) responded that the term 'indigenous' was referring to those who were retaining their traditional languages, institutions and life style, which distinguished them from the dominant society.
Ms Msengana-Ndlela (Director General) explained that the issue of Khoisan was not within the scope of the proposed Bill; hence it would need a different mechanism.
On the repeal of the Black Administration Act, she pointed out that the Act had been submitted to the South African Law Commission because it also dealt with civil principles of customary law like inheritance and divorce. The South African Law Commission would determine which sections needed to be repealed.
Municipal Demarcation Board
Mr Kosi Ramovha (Member of the Board) pointed out that the Demarcation Board was in support of the proposed Bill as it will strengthen the system of governance for service delivery and sustainable development. However from the Demarcation Board's perspective the question of traditional boundaries and municipal boundaries, was a matter of concern especially if a traditional area was situated in more than one local municipality and more than one district municipality, or even in different provinces. The Demarcation Board made specific proposals in an attempt to improve the quality of the Bill and these include:
- the need for a provision clarifying the relationship between the different traditional structures and their roles and responsibilities in relation to democratically elected structures
- the need to review the definition of royal family to include core customary structures consisting of close relatives of the ruling family within a traditional community
- the need for the Bill to clarify the areas of jurisdiction, and the powers and functions of king/queen
- the need to review Clause 3(3) so as to make clear who has the powers to define the area of traditional community
Legal Resources Centre
The LRC said that the Bill espoused uniform standards for eliminating unfair gender discrimination. They expressed reservations on the feasibility of Traditional Councils entering into service delivery agreements with municipalities for the provision of services to rural communities.
Dr P Bouwer, Director Legislation Services, Department Provincial And Local Government, said there were three ways that laws had evolved - through changing customary practices, the introduction of new legislation and, lastly through different legal interpretations. He encouraged traditional authorities to enter into partnerships with any municipalities they desired.
Chief Joseph (National Chairperson) Khoisan Council said South Africa should set an example for Africa with regards to the rights of indigenous peoples.
Commission on Gender Equality
The Commission urged Parliament to ensure that democracy prevailed, whilst transforming and regulating the institutions of traditional leadership. Constitutional and international obligations required the equitable treatment of women and men in all spheres - and in this context, especially with respect to leadership succession and access to justice.
Mr Y Carrim (ANC) said there was a limit to the efficacy of prescribing custom and tradition. He asked if the Commission would accept that initially a third of customary leadership representation would be reserved for women. He pointed out that in the past a suggestion that at least 50% of the candidate lists of political parties in the local government election be women, was rejected as unconstitutional.
Mr Carrim said Municipal Governance participation was a universal right in South Africa, the Bill was only outlining this right of Traditional Councils. The entering of partnerships was also currently universally encouraged as active community involvement in local government was espoused.
Ms S Williams (Parliamentary Liaison Officer: Commission on Gender Equality) expressed concern that Traditional Councils should be treated the same as any other civil society organ, participating in municipal structures. She was concerned that specially outlining this right only for traditional councils allowed them special dispensation.
Mr Carrim agreed that the Commission's request that a 50 percent quota be established for women participants in traditional authority structures was a good thing. However he pointed out that all political parties were not managing to adhere to the 30 percent figure suggested for political parties.
Ms J Seroke (Chairperson: Commission on Gender Equality) encouraged all political parties to advocate for greater political participation amongst women.
Mr Carrim said the reason why South Africa was ranked only sixth in the world for women participation in government was not attributable to the majority party. Poor representation of women in the smaller political parties negatively affected the proportion of women in government.
Organisation of Traditional Leaders of South Africa
Chief Z Kekana said traditional leaders were not civil servants in the employ of government and Traditional Institutions were part of the cultural heritage of South Africa and not democratically spawned organs. He cautioned that the Bill created the opportunity for state interference in Traditional Institutions.
It was noted that the demarcation of municipal boundaries created challenges for traditional groups, who at times found themselves dissected by these boundaries.
A Demarcation Board representative said due sensitivity was accorded in order not to divide communities, however historical continuity was only one of the criteria applicable to the Demarcation Board. Notwithstanding the challenges of defining historical boundaries, the Board would consider amending boundary demarcations if both the MEC and the municipalities concerned agreed to the changes.
The Council praised the establishment of the House of Traditional Leaders in the Free State province while expressing their disappointment at the lack of consultation with the Basotho in this regard. The Council urged a review of this process to ensure the Free State House of Traditional Leaders was representative of all the people of the Free State province.
A comment was made that the Demarcation Board and Provincial Governments should cooperate closely when redefining traditional boundaries.
Dr Bouwer noted that the Bill posed a challenge to Traditional Councils to effectively engage in partnerships with various institutions, they would have only themselves to blame for not grasping the opportunities availed to them by this legislation
Mr Carrim said many of the powers and functions of traditional leaders were accumulated during the colonial period and this raised the question of the true origin of the powers of traditional leaders.
Mr T Thipanyane, Head: Research and Documentation, South African Human Rights Commission, asked if traditional leaders who received state funding, saw themselves as exercising powers akin to public institutions. He expressed concern about the tone of many submissions made during the Public Hearings.
South African National Civic Organisation
SANCO said this Bill would create the long-awaited certainty required in institutions of traditional leadership. Secular law should remain superior to traditional law and therefore should be consulted when applying traditional customary law. They urged traditional leaders to be accountable representatives of their constituents.
Mr Zondi, Centre for Public Participation, said the Committee should ensure dispute mediation mechanisms were in place and fully utilised.
Mr Thipanyane wondered, as a note of caution, whether dispute resolution mentioned in some of the submissions as a possible traditional authority function, would result in the establishment traditional courts.
Mr Carrim said for a period of two and a half years there had been exhaustive negotiations concerning this Bill. He acknowledged that the range of groups consulted, could have been more diverse. He reiterated that state regulation of tradition and religion was a complex question.
The meeting was adjourned
Mr T Z MoIwantwa
Madikwe is an area in the North-west Province that forms part of Moses Kotane Municipality. There are communities in this area who are affected and suffering because of the Black Administration and/or Tribal Authorities Acts of 38 of 1927, No 68 of 195 1, and No 23 of 1978), which clubbed them together under one tribal authority, whereas historically and traditionally they do not belong to one tribe or one tribal leader. The following is the list of communities affected: Davidskatnagel, Hartebeesdorin, Debrak, Mankaipaa, Nooitgedacht, Silkaatskop and Ramothlhabye.
Seeing challenges and problems with regard to tribal authority, these communities organised themselves and met to discuss the Communal Land Rights Bill with the assistance of ngo's to understand their rights within the Dill with the hope that it will alleviate their never-ending problems. They made submissions on the CLRB to the Deputy Minister of Land Affairs, who promised that the Bill now before us will actually repeal the Black Tribal Authority Acts mentioned above. To our dismay when we went through this Bill the areas of our concern hat caused all the problems are still not adequately addressed by the Bill before us.
This submission will focus only on the three sections of the Bill viz:
- Section 25: Transitional arrangements Section
- Recognition of traditional communities
3 Section 3(b)(i) and (ii): Establishment and recognition of traditional councils
THE DRAFT BILL
THE DRAFT BILL
While the Bill aims at transforming the present tribal authorities as indicated in the Preamble of the Bill, communities directly affected were not consulted at all in this area. It must be made clear that inviting the chiefs to consultative meetings does not mean the communitv was cons tilted.
SECTION 25: TRANSITIONAL ARRANGMENTS
This section especially 25(3) perpetuates the Colonial Apartheid and Bantustan laws, as tribal
authorities existing are a result of these laws. This is surprising in that these laws especially Black Authorities Act of 1951 were vehemently resisted all over, which led to violence in certain areas. Why are these Acts not repealed once and for all, because their aim was evil? As it gave chiefs powers to annex areas and communities that historically and traditionally never belonged to their jurisdiction, this is something that the communities resisted and are still resisting viz: Ramotlhabye and Silkaatskop are communities that bought their land and do not belong to the chief's tribe, but because of the Black Tribal Authorities Act they are forced to pay certain levies to the tribal authority, which does not give any support to these communities.
Nooitgedacht and Mankaipaa communities stay on state and do not belong to the chief's tribe but have been annexed and have to pay levies and are controlled by the tribal authority which does not give any support to them.
There was hope that this Bill would repeal tribal authorities as they exist presently, but section 25(3) entrenches them and thus these communities' problems and tensions that exist will never be addressed.
SECTION 2: RECOGNITION OF TRADITIONAL COMMUNITIES
SECTION 2: RECOGNITION OF TRADITIONAL COMMUNITIES
What will happen to the communities who have been annexed by the tribal authority?
Section 2(2) states that consultation will be from the Premier, the provincial house of traditional leaders and the community concerned. In this case we have a cluster of communities under one tribal authority and now which will be the community to be consulted? Wilt the annexed communities be afforded the opportunity to decide whether they want to be traditional communities or not?
Perhaps to clarify this situation of annexed communities let me paint the scenario. The main group with a chief is the Barokologadi. The other groups were brought under the jurisdiction of the Barokologadi tribal authority using the Black Authorities Act of 1951 and the Bophuthatswana Traditional Authorities Act No 23 of 1978.
These groups do not belong to the main group historically and traditionally, viz Baphalane of
Nooitgedacht trace their traditional leadership to Witkleigat in the Zeerust area. The
Ramotlhabye and Silkaatskop groups are families and/or individuals who bought farms on their
The clubbing together of these communities under the Barokotogadi tribal authority brought about serious problems and continued tensions, eg the closing of Debrak schools around 1960 for five years. The Baphalane of Nooitgedacht also resisted their incorporation, and this tension still exists to date. The Bafarutshe of Mankaipaa also resisted their incorporation to date and the tensions still exist, and they are struggling to free themselves. The Barokologadi at Makeng under the tribal leadership of Batlokwa of Chief Mathopeng are also struggling to free themselves and to re-join their group of Barokologadi.
Given the above scenarios will these groups be allowed to decide their lot in line with section 2(l)(a) and (b)?
SECTIONS: ESTABLISHMENT AND RECOGNITION OF TRADITIONAL COUNCILS\
SECTIONS: ESTABLISHMENT AND RECOGNITION OF TRADITIONAL COUNCILS\
The provisions of section 3(b)(i) anti (ii) do not transform and democratise this institution in line with the statement of the preamble, as 75% will be persons selected by the principal traditional leader concerned and only 25% elected democratically. Basically decisions taken will depend on the wishes of the 750/0. It is a known fact that the principal traditional leader will surround himself with his admirers and supporters. Another point is that while 25% is elected democratically the 75% is simply selected, and it suggests that such people will always be there even where they are unpopular with the community, simply because they are the chief's choice. If this was the other way around
It is hoped that this submission will contribute and be an additional voice among voices to deal with this Bill sensitively.
SEKHUKHUNE AD HOC COMMITTEE
We the communities of the Sekhukhune in the Limpopo Province are acutely aware that in many respects, the colonial conquest and dispossession of the indigenous people of South Africa went hand in hand with a carefully planned attack on the traditional structures and institutions of indigenous cultures. In the quest for implementation of the apartheid system, government passed many legislations to ensure that the system was practised in the whole country. For example the Black Authorities Act 68 of 1951 caused many deaths of our forefathers, who resisted the sad legislation.
Therefore we are here to make submissions to the Provincial and Local Government Portfolio Committee about the Traditional Leadership and Governance Framework Draft Bill.
We have noted with concern that the Bill was published in terms of section 152(2) of the Constitution and that it was placed on the website, and structures, mainly of traditional leaders were consulted. We are humbly appealing for an extraordinary intervention on this Bill. The communities were not consulted and we have seen this Bill for the first time when we arrived here. If the traditional leaders were consulted, it does not mean that the communities were consulted. Let the consultation be done particularly in the rural areas, the website is not enough.
SECTION 5: PARTNERSHIP BETWEEN MUNICIPALITIES AND TRADITIONAL COUNCILS
Section 155 of the Constitution makes provision for the municipality to perform certain functions including the allocation and delivery of services in general, and that section 84 of Act 118 of 1998 also delegates powers and functions to the municipalities.
The draft Communal Land Rights Bill (section 32) deals with powers and functions of the administrative committee, which include allocations of land of the community.
Section 18 of the Traditional Leadership and Governance Framework Bill also makes provision for the traditional council to perform the land administration and agriculture functions.
Chairperson, who does what? Who must allocate land? Presently some traditional leaders are selling land at a value or R800-R1000 but as communities, we don't own the land, we can not use it as security. The communal land is used to enrich the traditional leaders, because they charge as they want and that money is personal to the traditional leader. The municipalities are unable to build houses, unable to attract big businesses and to promote economic development because the traditional leaders have personalised the land and made the land their property, eg if you should attract investors for economic development like plaza, it becomes difficult because the communal land is administered by the traditional leaders.
To make matters worse, it that municipalities must enter into service agreements with these traditional structures that are undemocratic, how do we have agreements with such structures? The Bill is perpetuating the existence of the Black Authorities Act, because these structures are the brainchild of this evil apartheid legislation.
It is also emphasised that this institution will not be transformed as indicated in the preamble. Instead they will be reinforced in terms of section 25(3), as the old tribal authorities will continue to exist but they will have a new name - of traditional council. How can the bill talk about integrity and legitimacy of the institution of traditional leadership in the preamble, when it is throwing a lifeline to the old tribal authorities created under the hated Black Authorities Act, that was the Bantu Authorities act before its name was changed, like this bill will change the name of tribal authorities to traditional councils?
We are recommending that the roles of each structure be clarified and municipalities must not enter into agreements with such untransformed and undemocratic structures. The old order can not transform itself.
SECTION 18: ALLOCATION OF ROLES, FUNCTIONS AND GUIDING PRINCIPLES
SECTION 18: ALLOCATION OF ROLES, FUNCTIONS AND GUIDING PRINCIPLES
In this section, the provincial government may provide the role of the traditional councils. We view this as a way of dodging the national government's responsibility to set national norms and standards, because it mean that each province may decide in its own way, which will create problems. South Africa is a unitary state. You can't delegate the responsibility for the management of natural resources and environment and tourism to the traditional leaders. These functions are mostly the competence of the local government. Some traditional leaders are selling sand and wood to the people, and if they can then take this responsibility, chaos might arise. We wish to recommend that section 146(2)(b) of the Constitution be applied in this regard.
The investigation in terms of the capacity, the compliance (readiness) of the traditional council should be considered before allocating roles and functions (section 18(1)). We also wish to recommend that an additional clause be inserted in section 18(1), stating that an organ in the national and provincial government must give consideration to the extent of a traditional council's compliance with the criteria in section 4(2) before allocating a role or function to traditional leaders in terms of section 18(1).
The Bill must not at all have the intention of creating an impression that traditional councils should be an additional tier of government. The traditional council will have to play a supporting role in this regard. Although the apartheid legislations have been assigned to the provinces, the national government must ensure that those legislations are repealed with immediate effect.
Generally we support most of the clauses in this Bill.
1.1 South Africa like the rest of Africa South America, North America, and Asia in fact the entire world with the exception of Europe has experienced COLONIALISM Indeed, even Europe had imperial wars of conquest Colonialism is very different to a merger or even a hostile takeover in the private sector. Colonialism is a heartless and greedy system. not unlike a parasitic virus which seeks to consume without replacing. Colonialism does not seek to learn it seeks to impose its own systems and insists, everything else is illegal. The conquests of the Roman Empire were very different, in manner the Roman conquests were 'civilised' The Romans did not seek to kill the Culture and traditions of the conquered people it sought to learn so as to improve its own system.
1.2 However slavery and colonialism sought to subjugate the traditions and norms of the local people until none existed. Unfortunately for' South Africans, our colonialism did not end with the English leaving the tip of Africa. Our home-grown colonialists, created their own brew of domestic colonialism, a neo-Nazi inspired system, called by the innocent name of separate development. The world has come to know it as apartheid.
I .3 Apartheid, was slightly more sophisticated than raw colonialism, primarily, because the protagonists and architects of apartheid, did not have a motherland to return to, Apartheid did not seek to completely eradicate the traditional culture and norms of the locals, rather the apartheid system sought to co-opt the traditions so that it could assist in implementing apartheid. it did this by trying to silence the leaders of the people and promoting the voices of those who showed support for apartheid
2.WE CAN LEARN EVEN IN THE WORST OF TIMES
2.1 However, even when something bad happens, we are able to learn something good. As any mother would tell us, birth is the most physically painful experience, but the joy you receive when your child is born, makes that physical pain of birth seem a distant memory. As a single nation as led by the liberation movement, spearheaded by the AFRICAN NATIONAL CONGRESS, we experienced the birth of democracy on April 27 'i994. As South Africans the indignity of colonialism and apartheid seem a distant memory. The pain we experienced in that South Africa, is a pain that is somehow difficult to remember. Equally though we all recognise that we must remember.
2.2 It is also true that different to the hierarchical systems the Europe which centralised power and all decision-making to a single Individual, the traditional communities in South Africa made collective decisions when it came to matters that affected the entire tribe. Therefore democracy was more pronounced in South African traditional communities than the traditional communities of Europe. However, it is also correct to recognise that these localised system were just that local, they were not national in nature or objective. The system of democracy was that which was experimented and nuances worked out during The republican revolutions in Europe. Democracy was a system that could apply to whole nation states not just to clans, tribes, and very limited geographical entities.
2.3 Today, we enjoy national democracy. Democracy that we came arrived at through our struggle against colonialism and apartheid. Jan van Riebeeck did not bring democracy whilst he was bringing small pox, we provided democracy, the chief and subject, the worker and businessperson the women and men, the student and teacher, the lawyer and nurse, the carpenter and the technician - we the people of South Africa. The African National Congress the leading organisation of Black people, ensured its own popularity by being different to any other organisation before it, by recognising that, colonialism could only be defeated if all Black people unified under one single banner and struggled against apartheid. With April 1994, the vision of the founding member of the ANC has been vindicated. Whereas the British exploited the difference between Muslim and Hindu, in the wake of their defeat in India, and divided the Indian sub continent with the agreement of the locals into two different countries, our democratic passage has shown that we can be a single nation with a multitude of traditional communities.
3 SANCO BELIEVES TRADITIONAL LEADERSHIP AS A LEGITIMATE INSTITUTION
3.1 The South African National Civic Organisation (SANCO) believes in the inherent value of the institution of traditional leadership and traditional community. We believe that the institution of traditional leadership and community is a system. that has to barrow a phrase from consumerist industry - stood the test of time.' Our traditional system has withstood the onslaught of the frontier wars, with its aim of genocide, the infection of our traditional communities with alien diseases like small pox and measles, the dispossession of thousands with the land grab of the 17 and 1800s, the character assassination of popular heroes with the inland movement of the Afrikaner settlers, the cooption and attempted (but failed) silencing of our traditional leaders - in all of This our traditional system and our traditional leaders have survived Both the system and the leadership have survived because they play a vital role in the Iives of our communities. As SANCO we can proudly say that there are many traditional leaders who are not just traditional leaders; they are a pant of the branch leadership, and even, the regional leadership in SANCO. These are leaders who have no problems in recognising their leadership responsibility they have in a modern democracy. They are leaders who are not in competition with their fellow traditional leaders, nor are they in competition with the leaders of our democratic order. They have a loyalty to one single issue that 3 the overall improvement of the lives of the inhabitants of the traditional communal land. They believe in development, they believe in defeating poverty, they believe in the South African revolution, they are the epitome of the old gentleman who says 'Mob MhIobo wami' who still retains his traditional gusto and spirit and who embraces the new technology like he embraced his first hunt!
4, SANCO SUPPORT THIS PROPOSED BILL
4.1 The South African National Civic Organisation (SANCO) believes in the spirit, the intention, the sentiment, and the objective of the proposed bill on 'The role of Traditional Leadership in our System of Government.' We believe and recognise that the Bill intends to protect the role of our traditional leaders as the protector and custodian of our traditional values and norms, as well as ensure that our traditional leaders continue to occupy their position of pro eminence in society by being a realisable part of the overall development of South Africa, in particular our disadvantaged communities.
5. SPECIFIC ISSUES WE WANT TO BE ADDRESSED
5.1 Our traditional leaders need to be taking to task our government on why it was not spending more on developing communities not on why traditional leaders are not paid more, or why they do not have more power. Every traditional leader in our country is an asset and a value that cannot be easily quantified. However! mandate and accountability are the pillars of cur democracy, and therefore anything we say must be said because we have a rnandate, and because we have to account to our constituency. Just like democratically elected leaders are only as good as they are if they continue to respect the views of the people, so to should we recognise that traditional leadership like any other institution in Our country must continue to represent the views of the people they represent not the views of themselves, The people shall protect and all else can go to hell.
5.2 This largest community-based organisation which housed and took care of liberation heroes, who now occupy positions of power and status cannot ask for any special favours. SANCO, as an institution of civic action and respect has to be reckoned according to its function and role, not because it was there before the liberation movement was unbanned. Well, it must prove its usefulness in our democracy, not prove itself to be a burden to our democracy, a case to be taken care of. No, it must provide a useful function in the fight to overcome poverty. We, in SANCO believe in the institution of traditional Leadership, because we believe that our traditional values and norms are a real and tangible instrument to expedite our development, our traditional leaders shall ensure that all our communities fight poverty with all the spirit and intention as a lion protects its young cubs.
5.3 Tomorrow, the women of the country march in solidarity with Amina Lawall, a Nigerian victim of traditional federalism, Thankfully, South Africa has not experienced such an atrocity, other than those reckless greedy and exploitative individuals who have used seminal passage into manhood as a reason to make money. We maintain that our traditional leaders are not given enough credit for the manner in which they have already embraced the democratic dispen3atian. Therefore we need for the Bill to be more specific an the inviolability of the South African law, even when it comes to traditional norms and values. It must be recognised that South African law shall supersede any traditional norm and value that Is in conflict to South African law.
5.4 SANCO once again calls for an audit to be made of chiefs, kings and queens. A verifiable system must. be created so That we are certain that a person who is a chief is a proper chief This must be done not only for local South African royalty, but all persons who enter our country bearing a successive title, If Queen Elizabeth enters our country, we must verify that she is the Queen with the British Embassy. In terms of locally we should not encounter a problem that only when we have a problem should be raised of whether the Chief is actually a Chief,
6.1 As SANCO, we believe that this Bill could not have come any sooner. The institution of Traditional Leadership is an institution that requires certainty, This Bill goes a long way in providing that certainty. Other than ensuring that traditional leadership and rules, especially the execution of those rules recognise that secular South African law remains supreme, and therefore should be consulted when applying traditional customary law, we maintain that the Bill is appropriate. Further we recognise that the Bill in all instances attempts to locate the certainty it is providing for Traditional Leadership within a context of our developmental framework and the fight against poverty we respect and acknowledge the intention and objective of the Bill, Moreover, we maintain that any institution, specially the institution of Traditional leadership with its fortunes of practice of institutionalised loyalty, as a role and function to play in the aforementioned fight against poverty Finally we call on the Department to create a verifiable system of registration for Traditional Leaders so that we never ever question the lineage of a Traditional Leader again.
6.2 As SANCO we believe in the appropriateness of this here subject, of course to the amendments we propose.
Organisation for Traditional Leaders of South Africa
- The Organisation for Traditional Leaders of South Africa take note of the efforts by the government to set out a national framework that will define the place role of the new system of democratic governance and; to transform the institution in line with constitutional imperatives.
- OTLSA, however wish to point out that Traditional Institutions are a cultural customary heritage system. It is not institutions created by a democratically elected system of society and traditional Leaders are not civil servants of Government.
- Flowing from the above OTLSA is of the opinion that the proposed Bill grants Government powers to interfere with customary law and culture, in this regard we wish to point out;
- The function of Traditional Authority is to exercise the duties of a local municipality with regard to services such as bulk and link services (water, sewerage and electricity) as well as industrial development, farming, infrastructure creation and the exercise of customary justice to promote harmony within the community. The traditional Authority has a duty to liase with the elected municipal council; provincial and National government wit a view to promote the spirit of co-operative governance within the community. In our opinion the areas in which the communities under the jurisdiction of Traditional Leaders reside are getting poorer because of lack of development and funds. This situation has arisen because traditional leaders are not in a position to play a meaningful role in District municipalities Metropolitan councils and provincial and national spheres of government. The present Bill still grants traditional leaders only an advisory role with no decision-making role, powers and functions. Unless Traditional Authority are granted more definite powers (other than an advisory role) to be equal partners in the funding and decision making processes of development programmes the present untenable situation will remain the same. Adding to the aforementioned is the question of how a traditional Authority will generate income as this is of extreme importance. We are of the opinion that we should not be at the mercy of a ruling political party in this regard.
- Since the Black Land Act, Act 27 of 1913 has been repealed it is our view that the minister of land Affairs has no right to administrate and act as custodian or legal representative of the land belonging to tribal Authorities. The present drafting of the Communal land Administration bill is unnecessary where a Tribal Authority can exercise decisions relating to the such land, or is the attitude of Government that all the people serving on a Tribal Authority are incompetent to deal with these matters successfully. This is a matter that cannot be negotiated since several municipalities are currently invading the se properties without consultation with the legal owners or remuneration for such land in terms of section 25 of the constitution of South Africa. This in itself does not foster a spirit of harmonised relationships between municipal council or local governments with traditional authorities.
- OTLSA reiterates its commitment to the constitution as the supreme law of the country but the same may not be used to undermine traditional culture and practices.
- OTLSA supports the institution of National Council of Traditional Leaders as the means of providing a formal interface between democratically elected government bodies and legitimate Traditional Structures.
The customary law and culture of succession does not accommodate retirement.
From time-memorial succession it is a general practice that males play a dominant role as far as succession is concerned. Women can however be appointed as chieftainess on behalf of heir succession at al qualified age. This system varies, from tribe to tribe where a female can qualify to be a traditional leader. It is therefore not acceptable that government prescribes what the role of women should be in the process of succession. It is also not acceptable that government prescribes that a third of the members of traditional councils should be women. Traditional councils must make their own determination in this regard and by doing so take the Constitution into account.
The proposed dispute commission should consist of Traditional Leaders who in terms of culture have knowledge and common understanding about indigenous, customary law and custom.
We trust that your endeavors to implement an acceptable climate of co-operation and governance between the elected government and traditional authorities will be successful