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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
26 September 2003
TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL: BRIEFING
Documents handed out:
Traditional Leadership and Governance Framework Bill [B58-2003]
White Paper on Traditional Leaders and Governance
Summary of Submissions on Traditional Leadership and Governance Framework Bill as of 26/09/2003
The Committee after hearing comments from the members of the public on the Bill, it sought clarity from the department. It was noted that the Bill attempts to reconcile the role and place of traditional leaders in our constitutional democracy. The Committee would take the concerns raised in the public hearings and the responses to be provided by the department into account when deliberating on the Bill.
The Chair requested that the Department lead the members through the Bill.
Adv S Nthai (Special Advisor to the Minister on traditional leadership) noted that the department had not had an opportunity to consult the Minister on the issues raised during the hearing which impact on policy matters. The department would only be able to give a final response once it had been give such a mandate by the Minister. It should be noted that the present Bill emanates from the provisions of Sections 211 and 212 of the Constitution. When one deals with the issue of powers and functions of traditional leaders, one should bear in mind that traditional leaders have always exercised both customary and statutory powers. The yardstick for their customary powers is the Constitution and then this Bill attempts to provide them with some statutory functions.
He referred to the naming issue when referring to a traditional leader and said that the word "paramount chief" is neither a traditional name nor was it there in terms of custom. This word was invented by the colonialists as a way to evade calling a traditional leader a "King". After investigating the matter, they had then decided that all these invented names, such as petty-chiefs, sub-headmen and the likes, should be done away with. They then decided to retain only the following three categories: Kings, Chiefs (Principal Traditional Leaders) and Headmen since they are the only ones that could be established to have a traditional background. It would depend on the people based in their provinces and their local vernacular languages how to refer to these identified categories.
Adv Nthai said that it is important to note that there are two things provided by the Constitution with regard to the establishment of traditional councils: norms and standards and frameworks. So in line with that, the Bill does provide for a framework. Hence it is important to note that in terms of this Bill there would be no traditional council with more than 30 members - of which one third should be women.
He said that the Committee would have to look at the issue of the transitional period. Even though legitimate concerns were raised about this, there is a need for a transitional period to allow for a smooth transition. An equal representation of members elected and those selected by traditional leaders within the traditional council would be encouraged. However, in order to maintain its character as a traditional leaders structure, the institution would have to be chaired by a traditional leader and not by someone nominated or elected into it. Referring to the idea that women from royal families should not be on a traditional council, he said it would be unconstitutional to prescribe that women from royal families should not form part of one third of a traditional council. If people believe that a woman, notwithstanding the fact that she is a member of a royal family, is capable of representing them due to her leadership qualities, then they would have a right to nominate her to be elected. Therefore as she would be elected to serve on the structure based on her leadership qualities then it would be unfair to discriminate against her because of her royal blood.
He noted that a district house of traditional leaders and a traditional council are totally different structures with different functions in terms of the Bill and therefore there would be no duplication in their functions. The Constitution stipulates that anybody that exercises a public function in terms of legislation should be regarded as an organ of state. Therefore the traditional council would be regarded as an organ of the state as it would be exercising powers in terms of this Bill. Thus the principles of co-operative governance would also apply to it. The traditional leaders as public servants would have to be accountable. South Africa would learn a lot from Botswana since it is one of the countries that has been able to keep a balance between a modern state and the traditional system.
Mr Carrim noted that the Committee report to Parliament should contain an explanation of the distinction between the traditional powers of a traditional leaders and those given to them through legislative processes.
Mr Komphela (ANC) had a problem with the so-called traditional gifts. Since all other public leaders are required to disclose their gifts, then traditional leaders should also be required to do the same as they are also public servants.
Mr B Solo (ANC) agreed and said that the whole process attempts to formalise the mechanisms through which traditional leaders may receive gifts from their subjects. This would ensure that there is uniformity and might curb the general perception that traditional leaders are susceptible to bribes since any gift they receive would be recorded.
Nkosi TT Zibi (Hlubi Traditional Community) acknowledged the concerns raised. However he noted that it is important that the role of the traditional leaders should not be confused with that of other public servants, such as politicians. The traditional way of living differs completely from the Western system and thus it is acceptable from a traditional perceptive for traditional leaders to receive gifts from their subjects such as a horse or a car as a means of transport. Therefore it is important to distinguish between gifts which a traditional leader receives from subjects and bribery, since all gifts received are made known to the whole community.
Mr S Mshudulu (ANC) was of the view that this would need some further deliberation. The issue of declaration has to be understood in two different contexts. Firstly in terms of African tradition as stated by Nkosi Zibi, traditional gifts should be taken as the means of ensuring the sustainability of the community as is the case with people's contributions to churches or family unity. This is so because what the traditional leader receives is not necessarily his/hers but belongs to the community since the traditional leader would use that contribution to service the community. However since traditional leaders would also be involved in local development - then only in that context should they be required to declare any kickbacks that they might have received in relation to the role they have played.
Mr Komphela acknowledged Mr Mshudulu's concerns. It would thus be important for the Committee to come up with mechanisms to deal with the issue of conflict of interest since traditional leaders would also be involved in issues of local development.
Ad Nthai noted that it is very important that this issue of traditional gifts be clearly understood. It should be understood that traditional gifts used to be given as the means of ensuring the survival of a traditional leader. However since nowadays they receive salaries, then there is totally no need for communities to contribute to their survival as they could easily do so through their own salaries. But this should not be seen as an interference in those matters which are purely of traditional nature such as the contribution of the community during ceremonies.
Mr Mlisana (Eastern Cape: Legal Services) said that in dealing with a declaration by the traditional leaders, a test should be put in place. This test should take into account that the institution of traditional leadership is an organ of state, as defined in the Constitution. Further, the issue of accountability of an organ of the state that possesses public funds should also be taken into account. Therefore if the institution of traditional leadership meets these criteria, then the traditional leaders should be required to declare their gifts.
Mr Solo asked that the department explain where it got the concept of sub-headmen since even in old traditional societies, such a concept was never in place. He also commented that to remove a traditional leader due to his behaviour, is not an easy process. It is evident from the book by Prof T Soga called "Ingqumbo Yeminyanya" that this was also the case in olden days.
Mr M Ngubeni (ANC) noted that 'chief' is a generic term and thus asked why it has been removed from the Bill. He asked if the department had made any cross-reference between the Royalties Bill and the present Bill. He also noted that there are chiefs who lead larger communities than others, so how does the department envisage distributing benefits amongst the traditional leaders?
Dr P Bouwer (Department legal drafter) replied that it is important to bear in mind that the guidelines for the principles of appointment and remuneration of traditional leaders are totally different issues. As far as the principles of remuneration are concerned, that is being dealt with by the Commission on the Remuneration of Public Office Bearers, which took into account the issues of equal work for equal pay.
Mr B Nobunga (ANC) said that it is important that an institution of traditional leadership becomes dynamic to enable it to adapt to the current changes taking place in South Africa. The traditional leadership institution should look carefully at the issue of whether traditional leaders should be allowed to play a positive role in political parties. This is an important issue to be considered since it involves the image of the institution itself and the role entrusted to a traditional leader by the nation.
Nkosi Zibi acknowledged these concerns but pointed out that being a traditional leader is a birthright since the powers bestowed upon such person emanates from his/her royalty. The fact that we are now living in a modern and dynamic society should permit a traditional leader, just like everyone else, to engage in other activities. In such a case another person would be appointed to act on his/her behalf. To do so is not an abandonment of one's responsibilities, but rather it is being a responsible leader who does not advocate poverty and laziness.
Rev A Goosen (ANC) said that it is important that the guidelines in place should allow the provinces to come up with their own legislation which would be necessary to ensure that the character of the institution is retained and maintained as far as it is necessary.
The Chair said that the Committee would allow the department to formulate its formal response on the concerns raised by the hearings and the Committee. It would be important if a consensus between traditional leaders and other stake holders such SALGA, could be reached. He thus called on the provincial governments to play an active role in this regard. He also noted that a balance with gender and women's rights should be formulated. He asked members to consider whether it would be relevant to refer all legislation that impacts on traditional authority to the Provincial and National Houses of Parliament and the Houses be given a certain period to consider them.
The meeting was adjourned.
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