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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
1 October 2003
TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL: DELIBERATIONS
Chairperson: Mr Y Carrim (ANC)
Traditional Leadership and Governance Framework Bill [B58-2003]
Summary of Submissions on Traditional Leadership and Governance Framework Bill as of 30/09/2003
The Committee considered Chapter 2 of the Bill, particularly Clauses 4 to 10, in the light of the comments and proposals made during public hearings. Among other issues, discussion centred around national versus provincial Codes of Conduct; the legal liability of Traditional Councils; political transfers of power between municipalities and Traditional Councils; withdrawal of community recognition of authority; Presidential recognition of Kings and Queens, and the inclusion of Sub-headmen in the traditional hierarchy.
Clause 4(2): Functions of Traditional Councils
The Chairperson referred to the comments on clause 4(2) that proposed that "may" should be replaced by "must" to oblige provincial legislation to regulate the performance of the Traditional Councils. He then proposed that the issue be deferred for later deliberation.
Dr Bouwer (Department) proposed that clause 4(2) be redrafted as follows: "Applicable provincial framework must regulate the performance of functions by a Traditional Council by at least requiring a Traditional Council...".
The Chairperson referred to 4(2)(d) and asked why the Department opted for Provincial Codes of Conduct instead of a National Code of Conduct that would apply to all Traditional Councils and within which, Provincial Codes could be developed.
Mr Sithole (ANC) concurred and pointed out that there was a need for a National Code of Conduct that would be consistently applied and that would set broad parameters for the application of the provincial codes.
Dr Bouwer (Department) explained that the issue of provincial codes was covered under clause 17, and was concerned that the aforementioned proposals would complicate the procedure for people who challenged the decisions of the Traditional Council.
The Chairperson proposed that the issues raised be deferred.
Mr Titus (Department) noted that the Department would apply its mind to clause 4(2) and would come back to the Committee.
Clause 5: Partnerships between Municipalities and Traditional Councils
Mr Titus (Department) pointed out that clause 5 was imposing a duty upon the National Government to ensure partnerships between municipalities and Traditional Councils.
Subclause 5(2) gave guidance on how these partnerships could be achieved, and subclause 5(3) provided for service delivery agreements between municipalities and Traditional Councils so that service delivery was not skewed in traditional authority areas. However, subclause 5(3) had to be read together with the provisions of the Municipal Systems Act.
Mr Ngubeni (ANC) asked how the Municipal Systems Act was regulating partnerships between the municipalities and Traditional Councils to prevent a municipality opting for a service delivery agreement that would undermine its core functions.
Mr Louw (ANC) was concerned that subclause 5(3) would render the Traditional Councils as juristic persons and therefore they could be sued. He asked whether it was necessary to elevate Councils to statutory body status so that they could be hold liable.
Mr Titus (Department) explained that the existing laws on tribal authorities contained provisions that dealt with court actions. By virtue of being statutory bodies, these bodies could not escape from liability.
Dr Bouwer (Department) referred to clause 76 (b) of the Municipal Systems Act and pointed out that it allowed for external measures to be used by a municipality for the purposes of facilitating service delivery. The Municipal Systems Amendment Bill was trying to deal with some of the concerns raised by members.
Mr Ngubeni (ANC) asked what would happen if a political party took a conscious decision to transfer the powers and functions of a municipality through a service delivery agreement into the functions of the Traditional Council. He was concerned that clause 76 of the Municipal Systems Act was not tight enough to prevent the transfer of powers of a municipality into a Traditional Council.
The Chairperson referred to subclause (5)(2) and pointed out that there was no possible legal transfer of the powers of a municipality to a Traditional Council, because notwithstanding the service delivery agreement, authority would still remain with the municipality. Subclause 5(2) was merely repeating what the Municipal Systems Act already provided. However, the situation Mr Ngubeni had eluded to could happen, and hence there was a need to tighten clause 76 of the Municipal Systems Act.
Mr Ngubeni (ANC) concurred but reiterated his caution that political parties could take conscious decisions to transfer the powers and functions of a municipality to a Traditional Council. He then called on the Department to tighten up clause 76 of the Municipal Systems Act to ensure that clause 5(3) of the Bill was not subject to abuse.
Mr Titus (Department) agreed but noted that subclause 5(3) should not be misconstrued as a means of transferring powers vested with a municipality to a Traditional Council.
With regards to issue of possible liability for Traditional Councils, he pointed out that since 1994, South African case law had precluded exemptions for statutory bodies. As institutions exercising public functions, they could not escape being sued.
Dr Bouwer (ANC) added that Courts had accepted the principle of state liability and therefore statutory bodies could be held liable.
Mr Ngubeni (ANC) asked for clarity on the part on legislative measures in subclause 5(1). He asked what was envisaged by the legislation.
Mr Titus (Department) proposed that the word "and" be replaced by the word "or" so that clause could read as following: "the national government and all provincial governments must promote partnerships between municipalities and Traditional Councils through legislative or other measures".
After the tea break, Mr Sithole (ANC) stood in as Chairperson as Mr Carrim was indisposed
One of the Department's spokespersons said that the Bill required clause 5. In 5(1) the word 'and' should be replaced by 'or', and 5(3) wa a reference to the Municipal Systems Act. That power would not be transferred to the traditional leaders. There would still be accountability but the legislation had to be tightened.
Mr Lyle (ANC) said that due to the nature of certain provinces, the functions set out in clause 5 would be delegated to traditional leaders.
The Department stated that it did not accept the recommendations in regard to clause 5 by Sekhukhune, the NLC, LRC, CGE, and COSATU.
The Department stated that the issues of clause 6 were dealt with in the previous day's discussion of the Preamble. Measures for capacity building and infrastructure were also needed. The Committee could be guided by the suggestions of the Municipal Demarcation Board (MDB) and include the capitalisation of traditional leadership as an institution in its entirety. The Department had included this in the White Paper. In the previous meeting, the Chairperson and Department had agreed that the White Paper should be translated into the Bill. The Bill would be amended and legal advisors were working on it. The clause was about providing support to traditional leaders to fulfil their functions. The Department asked the Chair for confirmation.
The Chairperson asked the Committee for confirmation that a legal team could compose the amendment. The Department said that they would work on it overnight and have an amendment in the morning.
The Department explained that clause 7 focussed on the future role and continued recognition of traditional leaders. If the recognition of traditional leaders was possible, the withdrawal of this was also possible.
Clause 7(1) stipulated that the withdrawal of recognition of a traditional community should be done within the applicable provincial legislation. It was also important that once the recognition of a traditional community was withdrawn, the Traditional Council also had to be disbanded.
The Department was aware of a question about as to why 7(2)(a) only made provision for the review of a community's position if it were divided or merged by racially discriminatory measures prior to 1994. The question surrounded why the Bill could also not make provision for other similar circumstances. The Department would review this matter.
Also regarding 7(1)(a), the Department would not amend the Bill to read that the community or a member of the community concerned should be able to request the withdrawal of the recognition as a traditional community. They would amend it to allow a sizeable part of a community to make this request. Therefore, the suggestions of the CGE were discarded.
The Department explained that 7(4) prevented a community from taking a matter to the provincial government without consulting the Council. It was also stated that the community included the Traditional Council, and therefore Contralesa's suggestion that provision should be made for consultation with the Traditional Council in 7(4), fell away.
The comment of the National Khoisan Council (NKC) on clause 7, also fell away.
Mr Ngubeni (ANC) mentioned that the Bill made no mention of a King in terms of the recognition or withdrawal of a traditional community. He asked if a Premier could recognise or withdraw a traditional community without a King. The Chair said that this would not be the case because a Traditional House would have the opportunity to make a decision in this regard before it came to the Premier.
Mr Solo (ANC) agreed with the Department's proposed amendments to 7(2)(a), since it would prevent a warlord from applying for recognition. It should be a substantial part of the community applying for recognition.
Rev Goosen (ANC) agreed and said it might be wise to provide for a majority of a community to apply for withdrawal or recognition.
The Committee agreed that 7(2)(a) must provide for a sizeable number to be involved in the recognition or withdrawal of a traditional community.
Mrs Southgate (ACDP) wanted to know what would constitute a sizeable portion, since she did not have clarity on how these communities operated.
Mr Carrim returned to his position as Chairperson. He said one could not provide statistics in such a case. On the one hand, frivolous claims had to be avoided, and on the other hand, communities - no matter how small - had to have their rights to be recognised as a traditional community respected. The Chairperson said that there is no need to deliberate too much about it, since the Department could sort it out.
Mr Jordaan (Department) said when those who requested a withdrawal of recognition could objectively be seen as a community, their numbers would not matter. Thus no changes were needed.
The Chairperson vindicated 7(4) by saying that the Premier could make the withdrawal, since the state gave resources to the traditional leaders and therefore had the right to intervene.
Mr Ngubeni inquired after the roles of Kings. The Chairperson said this was a valid question and asked if the clause applied to all Kings. Mr Ngubeni said it must be applied everywhere. Mr Sithole said that the Committee could deal with this issue when they looked at clauses 8 and 9.
The Department stated that there could be two possible scenarios. One, where Kings were consulted, and another, when Kings had to concur with proposals. The Department preferred that Kings were consulted and that the concurrence of the Kings was required.
The Department spokesperson stated that this clause recognised three levels of traditional leadership: Kingship, Principal Traditional Leadership, and Headmanship. It was the Department's view to stick to these levels, although there has been calls from Contralesa for another level, Sub-headmanship. This submission was rejected.
Mr Ngubeni inquired about independent Headmen. Mr Meyer (Department) answered that independent Headmen were only found in some communities that had been removed from original communities. The situation would be looked at.
Ms Southgate asked why Sub-headmanship was not considered. Mr Meyer answered that Sub-headmen were only found in the Eastern Cape and the Department had therefore decided not to include them in national levels of authority
Clauses 9 and 10
Clause 9 dealt with the recognition of Kings and Queens, and clause 10 with the recognition of other traditional leaders. The separation of Kings and Queens had been done because they were recognised by the President, and the others leaders by provincial Premiers. The President only needed to focus on the recognition and removal of monarchy; other executive functions were delegated to provincial Premiers. The Department emphasised that the government should not interfere too much, but only play the role of referee to ensure that all the rules were obeyed, and refer other matters back to the Royal families.
The Chairperson asked several questions regarding 9(1). He wanted to know why the word 'candidate' was used in 9(1)(a), since it implied that there could be other candidates - in other parts of the clause, the word 'person' was used. He also wanted to know why 'person' was not used in 9(1)(a). Mr Jordaan said the word 'person' could replace 'candidate'.
The Chairperson argued that there were not "customary channels" to inform the President as stated in 9(1)(a)(ii). Mr Meyer said that the idea was to prevent hereditary Headmen from making appointments but that the right customary authority did so. The Chairperson said that this was not a channel to the President. The Department and the Committee should apply their minds as the issue could be legally problematic.
Regarding 9(1)(a)(ii)(bb), the Chairperson wanted to know why the person would need to provide reasons to the President. Rev Goosen wanted to know why the Premiers and the Minister had to be informed. The Department replied that the Royal Families would give reasons why the person qualified as a Traditional Leader. This was also needed for administrative purposes since the President would have to give reasons for appointments, except in the case of political appointments like the Cabinet.
The Chairperson also questioned the use of "furnish proof" in 9(1)(a)(ii)(cc). The Department replied that the Minister and the Premier should be informed, but that they would make the requirement sound less negative.
In 9(1)(b)(ii) the Chairperson questioned the uniform guidelines, since Kings could have different numbers of subjects. The Department said that this was in line with the Remuneration Act and that there would be some differentiation.
Mr Ngubeni wanted to know why the appointments were not referred to by the Commission, or why their terms of reference had not been expanded to include appointments. Mr Sithole answered that the Commission would not be objective.
The Chairperson said that the Committee would reconvene the next day to continue deliberations.
The meeting was adjourned.