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LOCAL GOVERNMENT AND ADMINISTRATION; PROVINCIAL & LOCAL GOVERNMENT PORTFOLIO COMMITTEE: JOINT COMMITTEE
23 September 2003
TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL: BRIEFING
Documents handed out
Power Point presentation
Chairperson: Mr B J Mkhaliphi (ANC)
The Special Adviser to the Minister stated that the institution of traditional leadership has a critical role to play and holds a vital position in the country's democracy. Further this institution has the potential to contribute enormously towards the restoration of the moral fibre of the South African society and it has a central role in the reconstruction and development of the country. The Committee expressed concerned about the titles given to traditional leaders in the Bill as they were alien terms not known to the traditional leadership institution. They asked the Department to revisit this issue. The Committee also appealed to the Department to thoroughly investigate the constitutional implications of the creation of this vital institution.
The Chair said that the Bill was vital in that it will set the national standard for giving due recognition to the institution of traditional leaders. He called on members to thoroughly examine the Bill so that they would be fully prepared in order to sensitise their provincial constituencies to the issues of the Bill. He noted the presence of the Portfolio Committee.
Ms Southgate (ANC) sought clarity from the chair as to the urgency and therefore the priority rating of the Bill.
The Chair acknowledged the time constraint that attends the finalisation of the Bill but pointed out that up until now he was not clear about the program around the Bill. He explained that this session was an informal one to sensitise provinces during the upcoming provincial week that the Bill is in the pipeline. Formal deliberations on the Bill are scheduled to take place between the 6 and 10 November and that the NCOP would require a minimum of four weeks to finalise the Bill which program he feared was too tight for the allocated time.
Briefing on the Bill by Mr Zam Titus: Special Adviser to the Minister
Mr Titus said that the institution of traditional leadership has a critical role to play and to that extent holds a vital position in the country's democracy. He noted that the institution has the potential to transform and to contribute enormously towards the restoration of the moral fibre of South African society. He added that the institution has a central role in the reconstruction and development of the country.
Mr Titus outlined the policy process, which led 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. He reported that with the endorsement of the final White Paper, government drafted this Bill to give legislative effect to the policy framework.
Mr Titus then outlined the policy process that led to the White Paper and the legal framework as contained in the Bill. He explained that the 1996 Constitution laid the basis for defining the place and role of the institution in the new system of governance. He continued that between 1997 and 1999 the Department had conducted extensive research and an audit of the institution of traditional leadership and noted a number of issues that called for further discussions.
Mr Titus said that 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 aligns it with the constitutional principles of democracy and equality. He noted that the White Paper incorporated comparative analysis drawn from monarchical rule elsewhere in the world. He 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.
Mr Titus then briefly took members through the chapter layout of the Bill and noted that the Bill is divided in seven parts:
It deals with definitions and administration of the Act.
It outlines the process to be followed regarding the recognition of traditional communities and partnerships between municipalities and traditional councils.
It provides for the recognition of various traditional leadership positions and regents.
It provides for the establishment and restructuring of the different Houses of Traditional Leaders.
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.
It provides for the establishment of a Commission on Traditional Leadership Disputes and Claims. 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.
It contains the general provisions and transitional arrangements.
Mr Mshudulu (ANC) advised the Department to take another look at the use of the terms 'may' and 'must' to ensure that powers, which the communities have vested in the institution of the traditional leaders, are not fettered in any way.
Mr Titus explained that the term 'may' and 'must' are used in relation to a power or function that would be exercised by the traditional leader noting that while 'may' confers a discretion, 'must' in effect takes away such a discretion. He gave an undertaking to thoroughly check the usage in order to ensure that the institution of the traditional leaders is not exposed to ridicule or put in an embarrassing position.
Mr Mshudulu referred to Clause 14 and asked what happens when a traditional leader is removed and his certificate is consequently withdrawn.
Mr Titus said as these leaders are entitled to a salary, certain goals would be set in order to be accountable. Where one does not fulfil the set goals, the certificate of recognition would be withdrawn. He noted that it would not be in the public interest to pay people for doing nothing.
Rev Goosen (ANC) sought to know the difference between a deputy and acting traditional leader noting that the former connotes a permanent office whilst the later is temporary. He also asked whether a deputy could take over when the principal dies.
Mr Titus said that the deputy is not a permanent office and the deputy would leave once the principal resumes his full official duties as a traditional leader after service elsewhere. The term 'deputy' is not used in the conventional sense as the necessity for a deputy only arises where the particular traditional leader is away from his station for a prolonged period of time.
Rev Goosen noted that reference is made to the role and functions of traditional leaders and yet there is no power for them to exercise these functions. Such power vests in statutory bodies. These leaders do not have powers to fulfil such functions but would work with the provincial administration. However, if they were to be given powers, such a move would bring them into conflict with the elected leaders. He however recognised the vital role traditional leaders play in particular with regard to the recently introduced integrated rural development plan where these leaders would facilitate the transformation process.
Dr. Bouwer (Department legal drafter) explained that traditional leaders already have inherent powers to perform certain functions and that additional powers were not on the table. It was not necessary to explicitly spell out the inherent powers in the Bill.
Mr Mokoena (ANC) observed that while some provinces like KZN are far ahead in the integration and development of the institution of traditional leaders, many other provinces have not reached that standard. How would one ensure that the provincial structures are fully implementing the ethos espoused in this legislation?
Mr Titus said that Mr Mokoena's concerns are captured in the Minister's concluding remarks in the White Paper. He explained that the Department has held several meetings with the Provincial Chief Directors who he said would drive the process.
Mr Mokoena referred to Clause 7 which provides for the withdrawal of recognition for the traditional leader by his subjects and asked what would be the reason for such withdrawal.
Mr Titus noted that Clause 7 details circumstances in which the community may withdraw recognition. He added that it is possible that subsequent legislation may in effect remove such recognition.
Mr Mokoena (ANC, NCOP) referred to Clause 18 of the Bill and claimed that the proposed allocation of roles is another subtle way of manufacturing traditional leaders. He advised that this trend is unacceptable and one that should be discouraged at all costs.
Mr Titus pointed out that there were clear criterion for the allocation of roles and noted that the Department did not foresee a problem with implementation.
Mr Mokoena referred to Chapter 3 of the Bill and expressed sympathy with the Department that stakeholders were indeed not forthcoming with proper definitions for the titles noting that there is nothing like a "principal" traditional leader in African custom in this country.
Mr Komphela (ANC) agreed with the views expressed by Mr Mokoena especially in the area of titles. Many people are not comfortable with the naming system / definitions. He appealed to the Department to take another look at this obvious area of concern.
Mr Titus said that the Department was looking at the experience in Lesotho and Mr Mokoena was correct in assuming that these titles were settled for as a measure of last resort. He gave an undertaking to go back and see if a more acceptable definition could be found.
Mr Mokoena referred to Clause 14 of the Bill and submitted that removal of a traditional leader was not customary even in extreme cases where such a leader was mentally deranged. This state of affairs is deliberate in that communities recognise the office of the traditional leader and not the individual - hence the creation of a council of elders that advise and run the affairs of that office in cases where the head is indisposed.
Mr Komphela agreed with Mr Mokoena. Even where a traditional leader is mentally impaired, this event does not remove the royal blood from his/her vein to warrant removal from the office.
Mr Titus explained that Clause 14 is a safety valve which should not be limited to incapacity noting that other criteria like non-performance should be cause for removal of a leader from office.
Mr Komphela disputed the Department's claim that the Bill is informed by international experience noting that the institution which the Bill seeks to create cannot be found anywhere else in the world. He pointed out that South Africa is moving in a unique direction when it gives full recognition to the house of traditional leaders.
Mr Titus agreed with Mr Komphela that indeed the house of traditional leaders in South Africa is a unique one but maintained that the situation as regards the system of traditional leadership is not dissimilar to that found elsewhere in Africa. However in drawing this comparison, the Department did not seek to implant ideas from outside the country as a home grown solution is preferred.
Mr Komphela asked the Department to investigate and determine what bearing Chapter 12 of the Constitution would have on the Bill in view of the recognition that is being given to the house of traditional leaders.
Mr Mshudulu agreed with Mr Komphela and referring to Clause 6, he urged the Department to ensure that it moves in the spirit of the constitutional framework in view of the dual jurisdiction the new institution is creating.
Mr Titus gave an undertaking to further delve into the constitutional implications of the creation of the traditional leaders' institution and to take corrective measures where constitutional principles are flouted.
Ms Lubidla (ANC, NCOP) sought clarity as to why one would require a certificate to be recognised as a traditional leader.
Mr Titus explained that a certificate is an acknowledgement that a person holds the office of a traditional leader for record and accountability purposes. He added that in order to ensure conformity to laws and regulations there must be a record detailing the traditional leaders' activities.
Ms Gondo sought clarity as if the proposed electoral colleges would seek views from the community or would be an authoritarian organ.
Mr Titus noted that research has shown that the traditional leadership has its own formation and way of handling electoral matters with which the Department was not keen to tamper. It would be advisable to retain the essential elements of these institutions. He added that the role of communities is encouraged where budgetary issues are concerned and that the Bill has no intention of barring the participation of communities in governance issues.
Rev Goosen (ANC) referred to Clause 2 and noted that all rural communities have traditional institutions and wondered why they need recognition in the first place.
Mr Komphela clarified that not all rural communities have traditional leadership structures noting that some communities do not have a traditional leader as such.
Dr Bouwer interjected to explain that the act of recognition is to trigger an inter-governmental relationship in terms of the implications that would flow from government policy to the traditional leadership.
Mr Hlengwa (IFP) referred to Clause 12(1)(b) and said that there was no reference to the word 'hereditary' in the Bill. The only term used was succession yet in certain communities traditional leadership is hereditary.
Mr Titus promised to look into this concern and report back on the findings.
Mr Hlengwa sought clarity on the rationale for the removal of the phrase 'traditional authority' and replacing it with the term 'traditional councils'.
Mr Titus explained that the phrase 'traditional authority' is used in many pieces of legislation and that it was thought prudent to refer to 'traditional councils' in order to signify the creation of an entirely new institution.