Traditional Leadership and Governance Framework Bill: deliberations

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Cooperative Governance and Traditional Affairs

01 October 2003
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Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
2 October 2003
TRADITIONAL LEADERS AND GOVERNANCE FRAMEWORK BILL: DELIBERATIONS

Chairperson:
Mr Y Carrim (ANC)

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

SUMMARY
Suggestions made by stakeholders during the hearings on the Bill were discussed for Chapters 3 to 7. There was lengthy discussion on the issue of headmen and deputies.

MINUTES
Mr Zam Titus, Special advisor to Minister Mufamadi, represented the Department of Local and Provincial government. He was accompanied by Dr Petra Bouwer and Mr Johan Meiring.

Chapter 3 Leadership positions
Clause 9 Recognition of kings and queens
The Chair said some of the responsibilities given to the President are unnecessary, and the Committee must "clean up" this clause.

Mr Solo (ANC) asked if the procedures stipulated by Clause 9(3)(a) and 9(3)(b) would happen simultaneously.

Mr Titus answered that (b) would precede (a), but that there is a reason that they put (a) before (b) in the Bill, since (b) is more about the situation when the President would need consultation from the National House of Traditional Leaders.

The Chair asked why the phrase "extended royal family" is used in 9(4).

Mr Titus answered that the extended royal family comes into question when the royal family cannot resolve an issue. The reference to "royal family" is also used as a matter of consistency in the Bill, and this is another reason why "extended royal family" is used.

Dr Bouwer also mentioned consistency. They have a definition of royal family in the legislation, and they have it built into the definition to only use one term. The definition could be changed. Mr Sithole agreed with Dr Bouwer. In the African culture the extended family is included in the definition of family. Mr Titus added that the term 'royal family' will be redefined to avoid repetition in the legislation.

In answer to the Chair asking what would happen if the Royal House cannot resolve an issue, in terms of 9(4), Mr Titus said that the President would assume the role of final arbiter, and the any matter will therefore be resolved. The complainants also have the right to go to the courts of law if they are not satisfied by the decision.

The committee turned to the suggestions made by the stakeholders during the hearings regarding this clause.

The Chair said that the Human Rights Commission's suggestion regarding 9(1)(a) is quite correct. A kingship cannot be duplicated in South Africa if a king or queen, of the particular tribe, already exists in a neighbouring country. This situation will be taken care off in the provisions. He asked if there were, for instance, a king in Lesotho, then the Free State would have principal leaders. Would there not be a paramount chief functioning as a king?

Mr Titus replied that among the people one of the chiefs would be recognised as more senior, but they would be equal in rank.

On the issue of trans-national tribes, Mr Sithole (ANC) reminded the committee to be mindful of the migratory system, and how it contributed to the existence of trans-national tribes, as well as the hostel system for mineworkers.

Mr Titus said that these issues are dealt with in the White Paper. He wanted to know from the Committee if there is a need for legislation, since he does not see a need for it.

The Chair replied it would be interesting to see if companies still employ people along tribal lines. Mr Sithole mentioned that the migratory system had a bad influence. The Chair added that little can be done regarding people who cross boundaries.

The Chair asked why the words "clan or tribe" are not inserted in 9(1)(a), as suggested by the Coalition / National House of Traditional Leaders. However Mr Titus rejected the idea.

The Chair said that they must put in regulations for records of traditional leaders in the Bill. There is no need to do it, but it would be good for the government's image. He also wanted to know what the new clause 9(1)(c), meant [see Summary of submissions].

Mr Titus replied that it recognises the reality, and that it also refers to the issue of paramount chiefs, which are going to disappear.

Clause 10 Recognition of other traditional leaders
Mr Ngubeni (ANC) noted that 10(1)(b) states that provincial legislation may also provide for term of office for headmen or headwoman, if headmen and headwomen are elected.

The Chair said that the Committee would come back to this matter later.

The Chair referred to CONTRALESA's suggestion, on 10(1)(a), that, in line with custom, the traditional council or community must give its endorsement prior to the recognition of new principal traditional leaders or headmen. He wanted to know if this suggestion had any merit and why it was not considered.

Mr Titus replied that it should be left to provinces since traditional customs would differ, and it is not necessary at national level.

The Chair said it must be put into the Bill that provincial legislation may provide for this.

Dr Bouwer warned the Committee not to lose track of framework legislation. They must only provide the essentials, and must be careful not to over-regulate. The approach of the Bill is to put in the bare essentials.

The Chair disagreed. He said that framework legislation does not mean minimal legislation, but uniform legislation.

Mr Titus said that there is a need to understand the role of the District House. They are there to deal with service delivery. They should not be too involved in traditions and culture.

Mr Titus said that there is some merit in the XHF's suggestion regarding 10(1)(a), but that they do not have to legislate on this.

Regarding 10(2)(b), the Chairperson asked what the term "term of office" means.

Mr Meiring answered that certain headmen are elected, and in other areas headmen inherit their position.

Mr Ngubeni expressed his confusion when it is said that some headmen are appointed.

Dr Bouwer said these elections are according to custom.

At this stage Mr Sithole took over as Chairperson.

Mr Bouwer said that in order to avoid confusion, provincial legislation needs to be provided.

Mr Solo (ANC) expressed his need for clarification. He said there is a strong feeling that the institution be democratised and that it must be moved to a situation where headmen are properly elected.

Mt Ngubeni expressed his confusion once again and asked where headmen are elected.

Mr Meiring replied that it is done in a number of areas, like North West and Qua-Qua.

The Chair asked if there is any way in which headmen are defined, since elected and hereditary headmen could mean two different things.

Dr Bouwer replied that it is not necessary in this case, since the provincial legislation will reflect these differences.

Mr Ngubeni said that he understood the explanations, but that he does not agree, since the word 'headman' means different things at different places. It must be defined properly.

The Chair said that it is clear that there are suggestions needed regarding the issue of headmen.

Mr Titus asked if he could move away from the Bill and report on the status quo. He said there are three categories of headmen: hereditary (who receive their positions from custom), those elected through custom, and those elected by other means than custom. After the law has been passed there will only be provision for two categories of headmen: those who receive their positions through custom, that is, those who inherit their positions or those who are elected through customary procedures. Clause 10(2)(b) only applies to the second category, and that there is nothing sinister about category three falling away. Looking at the future, those areas where there was leader from the third category will not be leaderless, because the chief will be the leader. There has to be a clause to ensure uniformity across the country. There must also be provincial legislation, as a control mechanism.

The Chair asked if Mr Titus could also provide a definition for headman. Mr Titus said that they have defined headman and that the definition is clear. They will provide more information regarding the issue to the Committee on the following week.

Mr Lyle (ANC) expressed his concern, since he is not sure what Mr Ngubeni's problem with the headman issue is.

The Chair asked that the issue be left for further discussion at a later meeting.

[Mr Carrim returned as Chairperson.]

Clause 11 Recognition of regent
The Chair wanted to know why there is not provision for referring the recognition of regents back to the royal family, as in 9(4).

Dr Bouwer said that provision is made for other leaders in provincial legislation, and that the section on kings (Clause 9) comprehensively provides for everything. Mr Titus said that Clause 9 is national legislation. A provision as suggested by the chairperson could be put into the legislation. He also said that they are drafting amendments on a daily basis.

The Chair wanted to know what would constitute a minor in these communities, since customary law might be different from statutory law.

Mr Titus replied that they are not talking about statutory law, but customary law. Thus minors are not recognised as in legislation, but according to the rituals of the different communities.

Regarding the suggestions of the CGE, that the spouse inherits the royal position if the heir is still a minor, Dr Bouwer said that this is wrong, since there are no constitutional grounds for the inheritance for spouse.

On 11(3), Rev Goosen (ANC) asked if the allegation must first be investigated and if there would be a time lapse.

Dr Bouwer replied a due process is understood, since the premier must be in a position to give reasons. This is already provided for in other legislation.

Clause 12 Person acting as traditional leader
Mr Titus said that there are a number of laws dealing with the situation where the leader is not available; therefore there is no uniformity in South Africa. Only in the Eastern Cape is provision made for appointing deputies. Clause 18 will provide for the appointment of deputies. Clause 12 recognises the role of the Royal family with regard to what the royal family should do when a traditional leader is not available. It covers all traditional leaders. It deals with four scenarios: appointments, regents, acting appointments and deputies. They are thinking about involving the President when the last three scenarios involve kings. Acting appointments will receive payment, since they assume full authority. Clause 12 is a generic clause meant to cover everything. The White Paper did not recognise deputies, but the traditional leaders made a very strong case for deputies to be recognised.

12(1)(a)
Mr Ngubeni said the question of salaries is confusing the situation even more. Dr Bouwer answered that some headmen are paid and others are not. The payment is explained in the explanatory memorandum.

12(2)
Rev Goosen suggested that the order of subclauses (a), (b), and (c) be changed, with the current subclause (b) becoming (a), the current (c) becoming (b), and the current (a) becoming (c). Mr Titus agreed.

12(2)(b)
The Chair wanted to know what they mean with "appropriate authority." Dr Bouwer said this means that the premier can delegate when necessary.

12(3)(c)
The Chair said that the word "powers" is confusing, and suggested that they find another word.

Clause 13
13(1)(e)
Mr Lyle (ANC) said that the full time conditions are very confined, and he wanted to know what would happen if traditional leaders were ambassadors. Mr Titus said that there would be a different process to deal with such a situation. Mr Sithole agreed.

Mr Titus and his team agreed to drop the word "powers" in (3).

The Chair said that there is limit to the time for a deputy to deputise, and asked if the person deputised for will not become estranged from the community.

Mr Titus relied that the mechanism does allow one to kick out deputies; it is flexible.

The Chair said that if traditional leaders used deputies, they would rotate them so that they do not become more popular than the traditional leaders.

Clause 14
Mr Titus said that this clause stipulates the grounds for removing traditional leaders from office. He said that 14(1)(a) do not say that these people will be removed, but that it lies with the royal family to take the matter to the premier. They also have considered 14(1)(b) to be fair, and the rest is procedural. Regarding 14(3)(a), the withdrawal of the certificate is important, since it is proof of position, and determines that the person are paid, and 14(3)(b) ensures that the community is informed formally of the removal of the traditional leader.

Dr Bouwer asked the Committee to provide guidelines for the penalty of non-compliance with code of conduct. Mr Titus said that they must first draw up the code.

Mr Lyle (ANC) asked if Clause 14 will only kick in if the community decides to do so.

Mr Titus said that this is correct.

Mr Lyle wondered if it could be correct if a terrible rapist, or murderer is not removed from his position.

The Chair queried what would happen when the community wants the removal of a traditional leader and the royal family does not.

Mr Sithole took over as chairperson.

Clause 15
Mr Titus said that this clause recognises what the Constitution says about national and district houses. The Committee agreed that there are no problems with Clause 15 and that it is clear.

Clause 16
Mr Titus said that this clause describes the functions of district houses

16(2)(a)
The Chair wanted to know more about when there are more traditional communities than stipulated in the clause. Mr Meiring answered that, in the past, regional authorities have had a similar situation. The traditional leaders will elect the correct number among themselves to reach ten members. The Chair wanted examples. Mr Meiring said that they will provide a document at the next meeting which indicates the numbers of traditional leaders.

16(2)(b)
The Chair wanted clarity regarding the electoral college. Mr Titus said there must be mechanisms to facilitate appointments; an electoral college constitutes this mechanism. It is left to the kings/queens, etc, since it is their own body.

16(4)
The Chair wanted clarity on the difference between district houses and traditional councils. Dr Bouwer said a small number of traditional leaders do not warrant a district house; they do not want to replicate jobs for the same people. The Chair wanted to know in what way it constituted a threat. Dr Bouwer said it is not a threat, but the reality.

Mr Carrim came back as chairperson.

The Chair asked if they should not have district and metropolitan houses. Dr Bouwer said they opted for the term district house. This does not coincide with municipal areas. They have to consider the regional house. The Chair said that they would discuss this matter in the study group, since they do not want two categories.

Mr Titus said that they would look seriously at changing it.

The Chair asked where the funding of the house described in this clause will be dealt with. Mr Titus replied that the White Paper deals with it.

16(2)
The Chair remarked that there is no provision for gender representation. Mr Bouwer said that traditional leaders that succeed are normally male, and that it would not be practical to use gender quotas. The Chair also deferred this issue to the study group, since there were not enough members present to make a decisive decision. At that stage a number of members felt that what is in the white paper must be put into the Bill, but it must be practical. The Chair suggested the Bill should say "the house must seek to employ 30% females." It would be meaningless, but it would communicate the committee's intentions.

Clause 17
17(1)
The Chair inquired about an institution to lodge complaints with.

Mr Titus said it would be dealt with in the code of conduct. They cannot compel them to work with women, there is nothing to be done.

17(2)(b)(i)
The Chair remarked that there are different notions of values of disclosures in different communities.

Clause 18
The Chair asked the Mr Titus and his team to review the heading of this clause.

18(1)(c)
The Chair asked if there should not be a disaster management plan. Dr Bouwer answered that the amendment would make provision for this. Mr Titus said they never intended to allocate role.

The Chair remarked that an amendment must be made to include SALGA's suggestion requiring compulsory consultation with organised local government nationally or within the province.

The Chair remarked that the Bill has no scope for the Minister to make regulations. Dr Bouwer said that in terms of the Constitution, they must meet certain requirements, and they therefore cannot provide subordinate legislation.

18(2)(e)
The Chair said that the Committee needed technical advice regarding this matter.

The Chair asked what would be the problem with deleting the words "strive to". Mr Titus said there would be no problem; it will be deleted.

18(2)(c)
Mr Titus said this ensures that traditional leaders do not abuse their authority. He is concerned that the government must monitor the traditional leaders to ensure that they fulfil their functions as required. The government would be held accountable if things go wrong.

Afternoon session
Chapter 6: Dispute Resolution and Commission on Traditional Leadership Disputes and Claims
Clause 19: Dispute resolution
The Chair stated that the Municipal Demarcation Board's (MDB) preoccupation is that it did not have sufficient funds to bolster the municipality. This was a legitimate concern, but not for this Bill. The Chair asked the Department to respond to CONTRALESA's proposal.

Adv Titus responded that the district houses were created specifically to deal with service delivery related issues, as well as the customary issues to be dealt with by district municipalities. The role of the district houses cannot be extended, because this would disturb the Department's reasoning behind establishing the district houses in the first place. He stated that it must be made very clear that the provision does not create a hierarchy between the district, provincial and national houses. This was definitely not the case, and was not part of the Department's thinking at any stage.

The Chair asked the Department to respond to the MDB's proposal.

Adv Titus replied that this proposal was problematic. He stated that the national house of traditional leaders was not the Supreme Court of Appeal. The national house was currently composed of representatives from the provinces as well, and to grant the national house jurisdiction over the entire country would create problems. These powers should only be granted to the local authority.

The Chair noted that the Coalition/National House of Traditional Leaders (NHTL) proposal could not be entertained, because the final determination would be made by the Commission itself. He asked the Department to respond to the Human Rights Commission (HRC) proposal.

Dr Bouwer responded that Sub clause 2(b) was the final word on the matter, and it provided that the provincial house has to resolve the dispute after certain consultation.

The Chair agreed. He stated that the Commission on Gender Equality (CGE) proposal must be considered seriously, because there did appear to be some merit in it.

Dr Bouwer replied that it was his understanding that it was not the Department's intention to limit the ambit of the provision in the manner highlighted by the CGE. He stated that the intention was to create a dispute resolution section, and not to limit this particular aspect only to the purposes of this Act pertaining to traditional leadership.

Adv Titus added that since 1994 the South African courts have stated that the ouster clauses which provided that courts of law had no jurisdiction over matters of this nature, would no longer be valid. Provisions of this nature could not be interpret as taking away the rights of courts, and they could thus be interpreted by the courts as being supplementary in nature. They did not replace those provisions pertaining to the role of the courts, including traditional courts.

Dr Bouwer agreed with Adv Titus and stated that it was for this very reason that the phrase "must seek to resolve the dispute in accordance with its internal rules and procedures" was included at the end of Sub clause 2(a). This mirrored the provision in the Constitution, which requires intergovernmental disputes to be resolved amongst the parties themselves. The parties could also seek legal recourse, and the jurisdiction of the courts cannot be ousted. He stated that it was for this very reason that the words "seek to" were included at the end of Sub clause 2(a).

The Chair stated that he would have liked this provision for be worded slightly clearer. He asked the Department to respond to the concern raised by the Human Rights Commission (HRC).

Dr Bouwer responded that he did not understand the concern being raised, because the Commission has to settle the dispute if it was an existing dispute. He reminded Members that Clause 9 allows the President to refer any problems dealing with the recognition of a king or queen back to the royal family to resolve the matter. Dr Bouwer stated that the HRC would thus not really be appropriate, in that instance.

The Chair requested the Department to respond to the MDB's proposal in Sub clause 2(b).

Dr Bouwer replied that Adv Titus has already responded to this concern.

The Chair agreed.

Clause 21: Appointment of members of Commission
The Chair requested the Department to respond to the Coalition/NHTL proposal.

Adv Titus responded that the Department had opted for the current formulation because it was advisable that the President should have the powers to appoint members of the Commission. The decision was taken the traditional leaders should not be involved in this process, as expressed in the age-old principle that one cannot be a judge in one's own cause. He stated that, should a dispute arise in this matter, the regulations would provide that adequate consultation must take place with the relevant communities and traditional leaders. The decision would thus be left to the President, but the Bill would craft and identify the criteria that have to be used. He stated that the persons that would be appointed to the Commission would have to be knowledgeable in customary law and its related issues, and broadly with the institution of traditional leadership.

The Chair noted that both the Coalition/NHTL and Organisation of Traditional Leaders of South Africa (OTLSA) proposals could not be effected, as explained by Adv Titus. He requested the Department to respond to COSATU's proposal.

Adv Titus replied that a clause similar to this clause was contained in the Municipal Demarcation Board Act.

The Chair stated that it could be included, although the President would in any event take this into account when making the appointments.

Dr Bouwer suggested that it would be too onerous on the President.

The Chair agreed that the provision must remain as it currently reads.

Clause 23: Functions of Commission
The Chair requested the Department to respond to MDB and Centre for Applied Legal Studies (CALS) proposal.

Dr Bouwer responded that the same problem was being experienced with the transitional arrangements. He stated that the fact of the matter was that the current legislative terminology refers to "traditional authority", "tribes" and "chiefs", although the term "tribe" was not defined. The "tribe" would however come into existence once it has been recognised. He stated that these were the current provisions in the Black Administration Act.

Adv Titus added that if the intention of this legislation was to address this situation then its wording would have to reflect the wording in the old order legislation, because the aim would be to rectify provisions in the old order legislation. He stated that amendments would have to be effected in this manner because it was a well-established principled in the South African law of interpretation of statutes that, if the wording in the amending legislation were to differ from the wording used in the original legislation, the intention of the amending legislation was to address something else and not the situation that was actually brought about by the original legislation. This was the problem.

The Chair asked whether it would not clarify matters if a definition of "tribe" were to be inserted I the Bill which would stipulate "as used in the Black Administration Act", or to that effect. This would make it clear that the word would have to be included in the Bill due to legal requirements.

Adv Titus replied that the Department would review the current wording and reformulate it to express the fact that there was really no choice in the matter but to include that term.

The Chair noted that the MDB's dsecond proposal under this clause had already been covered. He asked whether the wording of the phrase "when the facts occurred in Sub clause 3(a) read correctly.

Adv Titus responded that he had discussed this matter with Mr Otto Kellner, State Law Advisor, and Mr Kellner disagreed with Adv Titus' proposal that the word "occurred" appear at the very end of the provision.

The Chair stated that the current wording presupposes that the facts were established before the Commission had applied its mind to the matter.

Dr Bouwer replied that this could be explained by use of the following example. A person claims to be a traditional leader because his father was supposed to have succeeded to that position, but his house was not recognised as the appropriate house. That would be the problem that gave rise to the illegitimate principal leadership position within that tribe. He stated that the facts at that initial stage would then have to be evaluated by the Commission, to ascertain whether principles were incorrectly applied which resulted in the recognition of another house. Thus the facts that existed at that stage would have to be considered to verify the present position of the person

The Chair stated that he agreed with Dr Bouwer explanation, but suggested that the actual wording of the provision reads uneasily. Perhaps the word "events" could be used instead.

Adv Titus agreed.

The Chair asked the Department to respond to the WLC proposal to Sub clause 3(a).

Dr Bouwer responded that this was a policy matter that the Committee should consider further. It would have really far-reaching applications, because it would open the gender issue with retrospective effect.

The Chair agreed that the proposal not be entertained. He stated that the proposal raised by the WLC regarding Sub clause 3(b) would also fall by the wayside, for the same reason. The Chair stated that Members were very sympathetic towards the proposal raised with Sub clause 4, and stated that this Committee was informed that nothing precluded the Commission from attending to those claims that arose pre-1927.

Dr Bouwer replied that Sub clause 4 contained the qualification that the authority to investigate would be limited, subject to Sub clause 2(a)(vi). He proposed that Sub clause 2(d) be deleted as it was superfluous, because the introductory words of Sub clause 2(a) stated the same thing.

The Chair agreed. He noted that Members agreed that the proposal to insert a new Sub clause 5 could not be entertained.

Chapter 7: General Provisions
Clause 25: Transitional arrangements
The Chair proposed that the transitional period in Sub clause 3 be reduced from four years to two years. He stated that the LRC and WLC proposal be disregarded. The Chair asked whether the reduction to one year would be completely impractical.

Dr Bouwer answered in the negative, and proposed that it be reduced to one year. He stated that he had crafted an amendment which exempted the "30% of women" requirement.

The Chair noted that Members agreed to the WLC, NLC, COSATU and Madikwe communities proposals in Sub clause 3. He asked whether the Department would be able to cope if the time limit in Sub clause 4 were changed to two years.

Dr Bouwer responded that the Bill did not provide for the continued existence of tribes that have been established. The proposed amendments inserted a new subsection before Sub clause 4.

Mr Johan Meiring, Department, reminded Members that the cases involving the independent headmen, who were the heads of the community authorities, have to go to the Commission. He proposed that a provision be inserted which stated that the outstanding cases have to be deaqlt with by the Commission.

The Chair stated that this was an understandable reason for retaining the five year time period.

Dr Bouwer questioned the need to reduce the period to two years. He stated that the entire process had to take place within five years, which was the outer limit, and it could very well be finalised within five years.

The Chair stated that the CONTRALESA proposal on Sub clause 3 could not be entertained.

Chapter 2: Traditional Communities and Traditional Councils
Clause 3: Establishment and recognition of traditional councils

The Chair stated the ANC was of the opinion that the 30% requirement be retained, and the "25%" in Sub clause 2(b)(ii) has to be changed to "40%".

Preamble
The Preamble should also clearly express the State's support for the objects of the Bill.

General amendments
He stated that two clauses should be inserted to state that traditional council infrastructure resources should not be used for party political purposes. A provision could also be included which provided accountability for those levies drawn from the community.

The meeting was adjourned.

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