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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
25 September 2003
TRADITIONAL LEADERSHIP & GOVERNANCE FRAMEWORK BILL: PUBLIC HEARINGS
Documents handed out:
Women's Legal Centre Submission
Hlubi Community Submission
Chairperson: Mr Y Carrim (ANC)
Cosatu believe that not any constitutional amendment is necessary to secure the functions and powers of traditional leaders. The trade union movement instead reasserted its trust in and support for the principles of cooperative government as enshrined in the Constitution. The Women Legal Centre said that most customary laws do not conform to constitutional principles especially with regard to gender and called on the provinces to repeal all the relevant customary laws that do not pass constitutional muster. The AmaHlubi tribe acknowledged the enormity of the task of aligning customary practices with the Constitution noting that this dilemma did not apply to traditional leaders alone but to all institutions in the country. They argued that alignment in this case is beyond the legal framework and that the law must first take seriously what is on the ground before putting procedures "in place to adapt the constitutional principles to the customary practices".
Mr Elroy Paulus stated that Cosatu is of the opinion that a constitutional amendment is not necessary to secure the functions and powers of traditional leaders. They were satisfied that the Bill, in comparison to the White Paper, has been amended substantially to deal with many of the issues that Cosatu perceived as shortcomings. However, concern was expressed that the current proposals assign too much discretion and power to the Premier. Cosatu would be comfortable with a scenario where the Premier in conjunction with the MEC of Local Government exercises these powers and functions. Cosatu repeated its proposal that the national government must undertake overall oversight to ensure that traditional leadership and governance functions are properly and consistently carried out across the country.
Women Legal Centre (WLC) submission
Ms Sibongile Ndashe noted that WLC is a public interest law centre started by women to enable them to use the law to advance and achieve their rights to equality. She noted that people who live under traditional authorities often rely upon such traditional authorities for the enforcement and protection of their rights. However, many customary laws do not conform to constitutional principles especially with regard to gender. Law reform processes were dealing with customary marriages and the South African Law Reform Commission (SALRC) is currently involved in the reform of the customary law of succession. The WLC proposes that this legislation should repeal all the relevant customary laws that do not pass constitutional muster. Alternatively, this legislation needs to provide for time frames within which the provinces have to repeal laws concerning traditional leadership that are inconsistent with the Constitution. She added that there was need for an audit within a period of one year of passing this legislation when provinces should report to Parliament concerning the steps taken within 18 months of the Bill's promulgation.
amaHlubi tribe submission
Mr M J Radebe informed the Committee that the Amalubi tribe has a proud history that predates the colonial era and includes their having resisted attempts by colonial and apartheid masters to undermine the legitimate institution of traditional leadership. He acknowledged the enormity of the task of aligning customary practices with the Constitution - noting that this dilemma did not apply to traditional leaders alone but to all institutions in the country. He argued that alignment in this case is beyond the legal framework and that the law must first take seriously what is on the ground before putting procedures in place "to adapt the constitutional principles to the customary practices". He expressed the view that the amakhosi should be a father and unifying figure for their traditional communities and their active participation in the party politics compromises this important role.
Mr Sithole (ANC) asked at what level, if at all, Cosatu and the Women Legal Centre had engaged with traditional leaders.
Ms Ndashe replied that the WLC's level of engagement with traditional leaders is when her organisation runs workshop in areas managed by such leaders.
Mr Nonkonyana (ANC) sought clarity on Cosatu's position regarding the establishment of the House of Traditional Leaders and whether this differed from that of the ANC. He asked what law the Women legal Centre practised and whether their field of expertise included African customary law.
Ms Ndashe reported that her organisation practises all fields of law including the African customary law.
Mr Nonkonyana noted the WLC's position on gender equality but asked if they are also calling for the opening up of traditional institutions that have from yore been the proclivity of the women. He cited the recent coronation of the queen of rain as an example.
On the issue of gender discrimination, Ms Ndashe noted that the Constitution guarantees equality among all people and that where a person feels that he or she is being discriminated against, such a person is free to challenge such an action. This legal provision is not limited to women alone and even men are free to enforce their rights where such have been abrogated.
Touching on the question of gender equality, Mr Radebe noted that most traditional institutions have made remarkable strides in transforming their institutions and would support every effort directed to this end.
Mr Nonkonyana asked whether the Women Legal Centre represented a particular constituency and if so which one.
Ms Ndashe said that the WLC has no constituency of its own but that its work is based on the testimony of clients in the workshops it runs in different parts of the country.
Rev. Goosen (ANC) asked why Cosatu is concerned that a strong House of Traditional leaders would weaken Local Government. In his view a strong House of Traditional Leaders would have more influence on communities.
Mr Paulus said that under the jurisdiction of each Local Government structure there are different communities with their own unique norms and standards. Cosatu's position was that the House of Traditional Leaders has been given due recognition under the law and that therefore it was incumbent upon them to serve their respective communities diligently without making demands and conditionalities.
Rev. Goosen asked the Women Legal Centre to point out the exact constitutional provision which they want amended.
Ms Ndashe pointed out that her organisation has highlighted in its submission, areas that call for constitutional conformity.
On the need for constitutional concurrence, Adv Seth Nthai (Advisor to the Minister on traditional leadership) noted that it is a general principle that every law must comply with the Constitution and that it was not necessary to explicitly spell out this obvious fact in every clause of the Bill.
The Chair said that it is possible to find a middle ground on the issue of aligning the law with the Constitution and asked the Department to study the WLC submission to see where certain provisions could be strengthened to capture the Constitutional spirit.
Mr Hlengwa (IFP) asked if Cosatu has data to show how many of its members were from the rural areas.
Mr Paulus said that Cosatu does recognise the institution of traditional leaders while at the same time appreciating the constitutional principles upon which different spheres of government operate. He noted that the working class was invariably migrant worker but that Cosatu has affiliate offices spread out in different rural areas.
The Chair sought clarity from Cosatu on the issue of provincial tenders and the alleged corrupt practices.
Mr Paulus replied that it is common knowledge that many provincial leaders have corrupted the tendering system to enrich themselves and that with the establishment of the House of Traditional Leaders another opportunity has been created to tempt people into such practices.
On the question of tenders, Adv. Nthai clarified that every state organ is bound by and must comply with the relevant legislation when awarding tenders noting that it was a matter of law and not personal whim.
The Chair asked Cosatu to clarify their concerns around the powers and functions exercised by the Premier's Office.
Mr Paulus clarified that the discretion that has been accorded to the Premier is all consuming and therefore too cumbersome for that Office to function efficiently.
Adv. Nthai clarified that the premier's role is merely to appoint and give recognition to the traditional leader who would have been anointed by the royal family. He noted that the premier would in this regard work with the executive council and there would be a host of experts that would assist him to determine whether such an appointment is legitimate or not.
The Chair asked what forum Cosatu refers to in their submission and what their exact query was.
Mr Paulus replied that the establishment of a district House of Traditional Leaders is an attempt by the government to bent over backwards yet it would cost the taxpayer a fortune to run and maintain this structure.
Adv. Nthai said that at the moment traditional leaders are participating in municipalities which was not the best forum for them to articulate issues of concern to their constituents. The environment in the provincial legislature is for the most part politically charged. There was a need to create a neutral venue where traditional leaders can debate issues of local concern without having to navigate the minefield of party politics.
Mr Ngubeni (ANC) referred to the amaHlubi submission where they state that people should be allowed to make choices about the system of governance they want. He asked what would happen where people say that they do not want the traditional leadership system.
Mr Radebe protested at the allegation that some rural people are not supportive of the creation of the House of Traditional Leaders. He pointed out that as far as he understands rural life most people hold the institution of traditional leadership in the highest esteem.
The Chair noted that the South African Law Reform Commission is looking at the whole issue of succession and asked if the Department had made use of this work in progress.
Dr. Bouwer (DPLG) clarified that what the SALC was looking at was the law of succession as it relates to property inheritance and not traditional leadership succession as such.
Adv. Nthai noted that the Department did indeed consult with the Law Commission when drafting the Bill and that it learned valuable lessons, which it incorporated into the Bill.
The Chair agreed with the WLC that customs are dynamic but noted that these customs have their own dynamism, which does not lend itself to prescriptive measures. He pointed out that the legislation was the first phase of an ongoing process.
Ms Ndashe agreed with the Chair that indeed it is not proper to prescribe transformation in customs but insisted that in clear cases of systematic discrimination the law must move to declare such instances unconstitutional. She added that the law did not only prohibit discrimination but that it must put in place necessary measures to transform the institution of traditional leaders which must be forced to take cognisance of women experiences in their interface with the law.
Adv. Nthai said that the task of repealing the existing customary laws had been assigned to the provinces and that an audit of these laws has already been undertaken.
The Chair referred to Cosatu's concern on land rights and clarified that the Committee has nothing to do with the assignment of land rights. He noted that there is another Portfolio Committee that deals with land issues.
The Chair noted that many of the amaHlubi's remarks dwell on the Commission, which would come into existence as prescribed by the legislation. He added that the Committee would forward the submissions by the amaHlubi to the provincial legislature for consideration.
The meeting was adjourned at this juncture.