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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
30 September 2003
TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL: DELIBERATIONS
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 30/09/2003
The Committee began deliberations on the Bill considering the comments and proposals submitted by the public on the Preamble and Clauses 2, 3 and 4. The Committee plans to pass the Bill on 17 October 2003 and debate it in the National Assembly on 21 October 2003.
The Chair said that taking into account the sensitivity around the issue of tradition and custom and how that relates to South Africa's constitutional democracy, the Committee is compelled to find consensus on all submissions presented before it by various stakeholders.
Mr A Lyle (ANC) noted that traditional custom has to a great extent played a big role in the suppression of women and therefore it is vital that this issue should also be addressed by the Bill, especially with regard to representation of women in the council.
Nkosi M Hlengwa (IFP) appealed to members that they should move away from the notion of individualising this matter since not all traditional leaders are to be blamed in this regard. He thus requested that members should focus on the institution itself.
Ms R Southgate (ACDP) said it would be important if the Committee could also look at the issue of intestate succession and decide how it is going to form part of the whole process, taking into account the Intestate Succession Act and the Black Administration Act.
The Chair noted that the Constitutional Court has already struck down one of the provisions of the Black Administration Act relating to intestate succession as unconstitutional.
Adv Z Titus (Special Advisor to the Minister) noted that although this court case dealt with issues of succession, it did not deal with succession relating to leadership position. The South African Law Reform Commission has drawn a line between succession concerning goods and leadership positions. It would be appropriate if the Committee could be given a briefing on the impact of this Constitutional Court decision on the present Bill before it.
The Chair said that the Committee has noted the concerns and thereafter requested the Department to lead the members through the Bill, clause by clause, while looking at the Summary of Submissions on the Bill.
Mr Titus noted that the Preamble is based on the vision set out in Chapter 2 of the White Paper on Traditional Leaders and Governance and is in line with the provisions of the Constitution, such as Chapter 12, Sections 44, 104 and 146 and Schedule 4.
Since the Bill attempts to restore the nature and character of the traditional leadership institution, it has to be founded on the principles of customary law and practices. While the Bill acknowledges the diversity of the people of South Africa, it also maintains that there should be only one uniform legal framework governing the people of the country. He apologised that the Preamble states that the Constitution recognises a traditional community that observes a system of customary law as this is erroneous since the Constitution recognises only that there are cultural communities in South Africa and thus recognises the observation of the customary law system.
He said that it is important for the Committee to check if the provisions of the Bill are wholly in consistency with the statements noted in the Preamble during their deliberations. It would be important for the traditional leadership institution to always promote the principles of co-operative governance in its interaction with government. However by this they do not say that the traditional leadership institution should be recognised as a sphere of government.
The Chair noted the National Khoisan Council (NKC) submission which has legitimate concerns, however their proposals give this Bill a wider content. It would be important that the outstanding policy matters first be addressed by the Ministry, the Department and the NKC before these concerns could be considered. The Committee would establish a subcommittee that would meet with the NKC so as to address these issues.
Nkosi Hlengwa said that although the Bill states that the traditional leadership council would be established in all the different Houses but at the moment there are only six Houses having such, as there are none in Gauteng, Western Cape and Northern Cape.
Mr Titus noted that the Constitution is very much open-ended about the establishment of the Houses and hence there is nothing preventing any province establishing such. However these three provinces decided on their own accord not to establish these Houses since they do not really have traditional leaders in their provinces. On the other hand the National Khoisan Council is neither a provincial organ nor a statutory body but a voluntary association established for a particular purpose. Therefore once that purpose has been fully addressed and the reasons and objectives that led to its establishment have been fulfilled, then it would be replaced by a different body. This Council is the result of an agreement between Minister Moosa and Khoisan people and thus consists of people from the Northern Cape, Eastern Cape, Western Cape and Free State.
Rev A Goosen (ANC) expressed concern at the use of the term 'co-operative governance' in the Preamble as this could create the impression that traditional leaders are now part of the system as a separate entity with similar powers to those of local government.
Mr S Mshudulu (ANC) disagreed and said that the Committee should rely more on legal advice in relation to the interpretation of this Preamble. The Constitution is very clear and it would not be proper for the Committee to be seen as trying to rewrite its constitutional provisions. The Chair agreed with Mr Mshudulu and said that the provisions of this Preamble are very clear and unambiguous.
Mr Titus said that the White Paper outlines that government is committed to ensuring that the traditional leadership institution would be supported and capacitated. What remains is for the Committee to ensure that such commitment is transformed into reality and may thus state such in the Preamble.
Mr M Ngubeni (ANC) referred to the vision underscoring the institution of traditional leadership as contained in Chapter 2 of the White Paper and the Preamble, and asked if its council members would be allowed to participate in party politics taking into account that they have a mission to fulfil such as promoting nation building, harmony and peace.
The Chair replied that this is a very important question which has also been raised by Mr B Solo (ANC) and Mr B Nobunga (ANC) in previous meetings. The King of the Zulus, King Zwelithini, has repeatedly stated categorically that he would not involve himself in any party politics since he does not oversee only one party but all the people living in his province are his subjects. One way of resolving this issue might be to put a provision in the Preamble setting out clearly the role of a traditional leader as not being political.
Mr Titus said that to put such a provision in the Preamble would be premature since the provision "promote nation building and harmony and peace amongst people" says what is the role of a traditional leader in a very subtle way.
Chapter 2: Traditional Communities and Traditional Councils
Mr Titus pointed out that this Chapter is linked closely to twelve different sets of laws which at some stage will have to be repealed at a provincial level since the White Paper spells out very clearly that there should be uniformity in this regard.
Clause 2: Recognition of traditional communities
Mr Titus noted that the Department felt that it is necessary that tribes should continue to be recognised. However, it was realised that the term "tribe" is actually rather offensive and thus not acceptable. Therefore, after having looked at the laws of countries such as Lesotho and Namibia, they had opted for the term "traditional communities". Realising that this term might confuse people, they then set out two requirements, in Clause 2(1)(a) and (b), that should first be fulfilled before a community could be recognised as a "traditional community".
The Chair said that since the Constitution does not recognises traditional communities but traditional authorities then this should be amended accordingly. He asked what about people who, although speaking the same language and thus coming from the same linguistic community, choose not to be identified with such traditional community. The Department should have due regard to one's right of disassociation.
Mr Titus said that the Department would come up with appropriate wording, taking into account the fact that the Constitution does not only recognises traditional authorities but also linguistic communities, in S30 and S31 of the Constitution.
Rev Goosen asked for clarity on the difference between customary law and customary rules as used in Clause 2.
Mr Titus replied that one appreciates the difference between the two when one analyses the provisions of Chapter 12 of the Constitution, which only refers to customary law and customs and not to customary practices. Therefore it is important to understand that a custom is basically a practice which graduates, through the passage of time, into being law. Thus if a particular community adopts a certain practice and such a practice becomes generally applicable within the whole community, then through passage of time such practice might graduate into the status of a law within that community. The Department has agreed that, in order for this Bill to be in line with the provisions of Chapter 12, the word "customs" must be used in place of "customary practices".
Dr Bouwer added that it would be difficult to give a definition of what a customary law entails as it differs from community to community. Therefore what they are trying to do through this Bill is to reflect on all the encompassing notion of the Constitution and thus determine what prevails in each community.
The Chair requested comments on the proposed amendments to Clause 2(1) as reflected in the Summary of Submissions.
Mr Ngubeni was opposed to the proposal made by the SA Human Rights Commission that the Bill should address who is a member of a traditional community. This would not be necessary since if an individual does not identify him/herself with a particular community then he/she would still be protected in terms of the Constitution.
The Chair asked what Contralesa meant when it proposed that recognition of a traditional community should be done in consultation with the relevant traditional council or house of traditional leaders.
Mr Mshudulu said that if there are contradictions between a certain culture and/or a tradition the only people who would be able to interpret such contradictions are the custodians of that particular culture and tradition. The role of the community chief would be to oversee the process but the real interpretation would be done by the elderly people of the community.
The Chair said that what Mr Mshudulu had just explained is exactly what the Department and the Ministry have been advocating throughout - that one cannot prescribe at a national level what should be done, taking into account the complexities of different cultures and traditions.
Dr Bouwer noted that Chapter 12 of the Constitution does not envisage the creation of a whole new system of traditional leadership, totally unknown to our country or to the whole of Africa. It is therefore imperative that objective rules be applicable when it comes to the provisions of Clause 2. These objectives rules should entail asking these questions:
- is there a system of traditional leadership in accordance with the community's own customs
- does that community observe a system of customary law.
It would only be after these have been determined that a decision on the recognition of a community may be taken.
The Chair expressed concern about the use of objective criteria in this regard, noting that customary laws and rules have been distorted by apartheid laws to such an extent that what is really a custom and what has been imposed by apartheid regime is sometimes blurred.
Mr Solo agreed with Dr Bouwer that indeed the Bill does not aim at creating new traditional communities. This Bill is rather trying to indicate the importance and the role that the traditional authority could play in our democratic society. The words "full and proper", as proposed by the National Land Committee, should be accepted as they give clarity to the provisions of this clause.
Mr Mshudulu expressed concern with the use of "full and proper" consultation since to him consultation is a very broad process.
Ms Southgate sought clarity on the timeframe within which the Premier would have to recognise the traditional community, via proclamation in the provincial Gazette. She stated that problems could be experienced with this process being drawn out, when the particular traditional community would want to be declared as a matter of urgency.
Mr Titus replied that it would not be easy to prescribe a timeframe. A controlling mechanism would have to be created which would require the Premier to table a report in the provincial legislature, should the matter not be resolved within a certain number of years. This was the solution proposed by the Committee in the Eastern Cape provincial legislature. It would be difficult to impose a time limit, but this control measure ensures that the matter would not remain with the executive for an unduly long period of time. The Premier would then have to explain the reasons for the delay to the provincial legislature.
Dr Bouwer added that it had to be remembered that this was "framework legislation", and it merely provides guidance for the provisions that must be contained in the provincial legislation. The provincial legislation must essentially address the process. He proposed that, should Members prefer a reference to a specific timeframe, the current Clause 2(2)
should be split into two paragraphs. The provision would then state "the provincial legislation referred to in paragraph (a) must provide for a decision to be taken within a reasonable time".
The Chair asked what would happen in the event of a conflict between the provincial house and the Premier.
Mr Titus responded that it would ultimately be the decision of the Premier. The Premier would have to evaluate the input of the provincial house because, in the event of a legal challenge, the court could overrule the decision taken by the Premier.
The Chair requested the Department to comments on the proposed amendments.
Mr Titus replied that the Department has used words that are generally applicable here, such as "applicable custom". It could be argued successfully that this subclause was too general, but the two qualifications proposed by the Woman's Legal Centre (WLC) would capture everything and should be included.
The Chair agreed that they be inserted.
Dr Bouwer proposed that the phrase "a traditional community must for the purposes of this Act, transform and adapt applicable customs and customary lawâ€¦", and the two proposals by the WLC should then also be included. This would have to be included, because a policy decision has to be taken as to how wide the ambit of this provision should be.
The Chair agreed with the Dr Bouwer's proposal.
Clause 3: Establishment and recognition of traditional councils
The Chair said that there were no submissions received from the public regarding Clause 3(1) and that which is number as being so in the draft Summary of submissions is actually a proposal to Clause3(2). He asked if the phrase "in line with principles set out in provincial legislation" implies that the Department envisages six different sets of principles that would operate here, one from each of the six provinces that have to date established traditional councils..
Mr Titus responded that it had to be remembered that this was framework legislation, and it did not deal with all the aspects pertaining to establishment and recognition. The legislation merely stipulates that, when a Premier has recognised a traditional community, s/he has to establish a traditional council. The Department acknowledged that there were a whole range of other issues, besides the three dealt with in this clause, that have to be addressed. It was for this reason that the phrase "in line with the principles set out in provincial legislation" was inserted, so that these additional matters could be spelt out in the provincial legislation.
The Chair asked the Department to provide Members with examples of the kinds of additional issues that would apply here.
Dr Bouwer replied that this would relate to the process by which this would be referred to the Premier, and it would also take into account the customs and customary law practised by the particular traditional community.
Mr Solo added that different provinces and traditional communities were being looked at here. It would be inevitable that there would be provincial legislation on a specific traditional community that would differ from legislation in another province. This was the case because those communities would be totally different.
The Chair requested the Department to inform Members of the precise issues at play here, because it cannot refer to processes alone.
Dr Bouwer responded that the provision did refer to principles. He reminded Members that the democratic aspect was built into the Bill. The Bill only contained the minimum and maximum levels, and within this process the provinces could then surely begin the introduction of the democratic participation of the traditional community, as one example.
The Chair asked whether it would be possible to effect the Centre for Applied Legal Studies (CALS) proposal.
Mr Titus replied that he did not believe that the legislation could be that prescriptive, especially if one takes into account the kinds of communities involved here. The wording proposed by CALS could be open to various interpretations.
The Chair agreed, and stated that the most the Committee could do was to include this sentiment in its Report on the Bill.
Nkosi Hlengwa expressed concern with the representation on the traditional council, because he was aware of such councils that consisted of more than 30 members. He asked the Department to explain how the reduction in the number proposed by this sub clause would affect traditional communities.
Rev A Goosen (ANC) questioned whether granting the power to the principal traditional leader to elect the 30 members would be the best method, because he could be biased and favour specific persons.
Ms Southgate expressed concern at the requirement that "at least a third" of the traditional council must be women, because the women might not want to be members or there might simply not be sufficient numbers to constitute that third. The traditional council would then be bound by this provision, despite this.
Mr Lyle asked whether the minimum level in Clause 3(2) could not be raised above one third.
The Chair raised a structural problem with this clause. He stated that Clause 3(2) required 30 council members, Clause 3(2)(b)(i) stipulated that 75% have to be selected and the remaining 25% have to be elected. It could be the case that conservative traditional communities do not appoint women to the traditional council and, even if all 25% of the elected members were women, this would still not amount to one third. He asked how this structure would ensure, practically, that at least one third would be female.
The Chair asked whether in law the Committee could prescribe more numbers for the traditional councils than those prescribed by Clause 3(2)(a).
Mr Titus responded that they have had to consider the financial implications of establishing such structures, and hence the Department would stick to the figure contained in Clause 3(2)(a).
The Chair agreed that the traditional councils had to be demarcated in such a way that they do not exceed the size prescribed by the Bill because if that was allowed, the State would have to spend more resources.
The Chair commenting on the submissions that stated that "at least a third must be women" was inadequate, asked why it would be fair to increase the percentage of women in the traditional council.
Mr Louw (ANC) argued in support of the increase of the percentage of women in the tradition councils. The percentage of women in the country was higher than that of men hence women had to have a bigger voice in the traditional councils. He proposed a minimum of 40%.
The Chair suggested they flag the provision and deal with it in detail in party study groups.
Dr Bouwer (Department) proposed that in Clause 3(2) the reference to "at least a third must be women" be deleted and the legal drafters could draft a general provision that would require reasonable standards be met.
The Chair rejected this in the light of the political mood amongst the members as that proposal would not be accepted by members.
Clause 3(3) & (4)
No comments were made in respect of these clauses.
Clause 4 Functions of Traditional Councils
Mr Titus pointed out that Clause 4 set out the functions, which would be entrusted to the traditional councils, however the clause had to be read together with the provisions of the Municipal Systems Act. Chief amongst the functions of the councils was the duty to facilitate the involvement of the community. Clause 4, more specifically Clause 4(b), was in line with Chapter 7 of the Constitution.
In terms of Clause 4(c) the traditional council could recommend appropriate interventions for governing.
Clause 4(f) sets out the traditional role of the councils. However he noted that the issue which might arise with regards to that clause was whether people were going to be subject to customs and traditions by virtue of being resident in the areas demarcated for a traditional leader.
In terms of Clause 4(2), provincial legislation may regulate the performance of functions by traditional council such as requiring the keeping of proper records, having financial statements audited and disclosing any receipt of gifts. However provinces could further legislate on issues peculiar to that province.
Mr Louw (ANC) asked if there was a clause in the Bill that would address a situation where a practised custom conflicts with a municipal by-law.
The Chair asked if it would not make sense to put 4(1)(b) as 4(a). With regard to Clause 4(c), he asked what would happen if there was a conflict between the traditional council and the provincial house of traditional leaders and whether there was a need to insert a provision that would provide for appropriate intervention.
The Chair referred to the submission made by CONTRALESA about Clause 4(1)(b) and said that that would be dealt with at the policy implementation stage. He proposed that the comment be dispensed with. He also proposed that the comments and proposals made about Clause 4(f) be dispensed with as well.
Mr Titus added that the comments on Clause 4(f) had already been covered by the Constitution under Section 211(3) and there was no need to repeat that in the principal legislation.
The Chair referred to Clause 4(k) and asked if there was any need to cross reference the Disaster Management Act as some of the issues were covered under that Act.
Mr Titus said that the Department would check on this.
The meeting was adjourned
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