The Director-General of the Department of Traditional Affairs highlighted challenges with traditional leadership. One of these is remuneration and the varying resources available to these leaders in their respective communities. It noted the four different levels of traditional leadership as defined by law which include kings, queens, principal traditional leaders which exist only in some provinces, senior traditional leaders and headmen and women. If a kingship is disputed this must be taken to court and once the litigation has been won, the royal family itself must establish who the rightful heir is. Government may not intervene in this process. However, the nominees for the position should be submitted to government to ensure these are recognised by law. There are 829 senior traditional leaders and 7 399 headmen and headwomen as of 2018, but this number is constantly changing over time. The Municipal Structures Act specifies that each MEC for local government in a province is responsible for the regulation and participation of traditional leaders. It is the responsibility of the MEC to prescribe their role. This was not effectively implemented by MECs across the provinces. Where this has been undertaken by MECs it did not always deal with determining the role of traditional leaders in sufficient detail. The support defined is not being received. Thus a decision was made to refine the framework and convert it into a handbook. Another issue the framework does not deal with is funeral benefits for traditional leaders. The challenge experienced by female traditional leaders in relation to gender equality and the dominance of patriarchal structures within traditional councils needed to be considered and acted upon. The current law does not empower traditional leaders enough and the Constitution needs to be altered in this respect.
The Chairperson of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Commission) said that simply describing these challenges will end up being mere discussion if there is a lack of policy and implementation. He stated that while the model was in place, policy implementation was necessary to give optimal effect to the model. He suggested responsible drivers must be identified and monitoring mechanisms must be used to hold people to account. He said the model for restoring land needs to be changed. He suggested that CRL Commission, the traditional leadership, South African Human Rights Commission and the Gender Equality Commission establish a dialogue to issue a transformative imperative to eliminate harmful practices.
Committee members emphasised the importance of land and the recognition of indigenous communities.
Mr Mashwahle Diphofa, Director-General of the Department of Traditional Affairs, highlighted challenges with traditional leadership. One of these is remuneration and the varying resources available to these leaders in their respective communities. The Independent Commission for the Remuneration of Public Office Bearers must make recommendations on the remuneration of traditional leaders as the Constitution determines that traditional leaders are public office bearers.
The Traditional Leaders and Governance Framework Act is currently in place and it defines the four different levels of traditional leadership. A king or queen is the highest rank of an institution and principal traditional leaders exist only in some provinces. This is followed by senior traditional leaders and headmen and women. In disputes about kingship, litigation needs to determine if there is a kingship or not thus unity can be sought by going to court to contest the existence of a kingship. Once the litigation has been won, the next step is to establish who the rightful heir is. Government does not play a role in determining who the rightful heir should be. Once the kingship has been recognised, the royal family should be in agreement and make a submission to the President on who should be appointed. If there is a dispute about the nominees for the position, government is unable to intervene. There were 829 senior traditional leaders and 7399 headmen and headwomen as of 2018 but this number is constantly changing over time. The Traditional and Khoi-San Leadership Bill (TKLB) makes provision for the recognition of processes, structures and functions of traditional leaders.
In the meeting the previous day it was mentioned that National House of Traditional Leaders was not consulted during the processing of certain legislation. Traditional Leaders and Governance Framework Act provides for referrals of bills to the National House of Traditional Leaders for comment if these referrals pertain to customary law and the customs of traditional communities.
In Section 81, the Municipal Structures Act which deals with participation of traditional leaders in municipal councils specifies that each MEC for local government should issue a notice in the provincial gazette which regulates the participation of traditional leaders and it is also the responsibility of the MEC to prescribe their role. This was not effectively implemented by MECs across the provinces. Where this has been undertaken by MECs it did not always deal with determining the role of traditional leaders in sufficient detail. This Portfolio Committee had appealed to MECs to attended to this matter.
The TKLB will repeal the current legislation such as the Traditional Leaders and Governance Framework Act. What remains critical is making provision for the recognition of the Khoi-San leadership and communities. This was important for the Committee to pursue when it performed its oversight role. It may encounter certain chiefs from a particular community – however the law may not recognise this person as it would have been decided on by the community.
Municipalities should play a supportive and advisory role in identifying the needs of these communities, participate in the development of policy and legislation and participate in programmes on a provincial and national level.
The framework of the TKLB also refers to the role of municipalities in disaster management in the jurisdiction of traditional councils and the municipality may allocate roles to traditional leaders. However, upon assessment these provisions have not been fully implemented.
The Department of Traditional Affairs in collaboration with the National House of Traditional Leaders will select a group of government departments who are able to assign roles to traditional leaders and assess their contribution. This will be done so recommendations can be made on how these departments can become more proactive.
When remarks are made about certain kings being remunerated at a higher rate than others, this statement is incorrect. In terms of actual salary, it is the same for all kings. However, it might be that the nature of support is higher in one instance compared to another. Information on the salary level of a king is accessible to the public. The Independent Commission for the Remuneration of Public Office Bearers must make recommendations on the level of remuneration to be given and this is ultimately decided by the President. When a certain amount is designated for support, this amount is then constantly deducted from the allocated budget.
The support defined in the TKLB framework is not being received thus a decision was made to refine the framework and convert it into a handbook. A draft handbook is ready and the Department is currently in the process of consultations. There are also other issues which the framework does not deal with such as funeral benefits for traditional leaders.
The challenges experienced by female traditional leaders would also be considered in order to embark on the appropriate action. For example, in situations where female leaders become widows and subsequently encounter men who feel entitled to make decisions about their personal welfare and that of their offspring.
The current law does not empower traditional leaders enough and the Constitution needs to be altered in this respect. They are consulting about this and the relevant research has been done to formulate a discussion document which is now being considered. Harmonisation of the relationship between traditional leaders and government must be given priority.
The District Model is seen as bringing new opportunities for traditional leadership.
CRL Commission comments
Prof Luka Mosoma, Chairperson of the Commission for Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities, stated that policy determination and implementation is vital in resolving the challenges raised. Simply describing these challenges will end up being mere discussion if there is a lack of policy and implementation. He stated that while the model was in place, policy implementation was necessary to give optimal effect to the model.
Prof Mosoma suggested that what needs to be done is a distillation of key items into an operational plan. Strategy for implementation must be developed as this is where many people fail. Responsible drivers must be identified and monitoring mechanisms must be used to hold people to account. The role of traditional leaders must be redefined. Custodianship and stewardship of land must be considered. The plunder of land and mineral resources by foreign sources continues when these resources should be directed to our own people.
In terms of land restoration to traditional communities, it must be assessed how communities have and continue to benefit from this and where possible an appropriate model must be developed to ensure that the quality of life of our people is improved, for example in relation to hunger. It must also be considered whether communities are benefitting from mines. He added that the model of restoring land needs to be changed.
Prof Mosoma stated that the challenge faced by women as rightful heirs to the throne is due in part to the relentless dominance of patriarchy. This type of succession has impoverished women. There is an absence in the provision of succession for women to play a role in some communities. If the system of traditional leadership is not obliged to comply with gender equality, we need to look at creating alternatives.
Prof Mosoma suggested that the CRL Commission coordinate a broad engagement with the traditional leadership, the Human Rights Commission and the Gender Rights Commission to establish dialogue and issue a transformative imperative to eliminate harmful practices. The aim would be to develop norms aligned to the Constitution to address human dignity, equality and freedom. This will also address inequality and patriarchal dominance. There is a need to enforce gender representation.
Prof Mosoma also recommended establishing an Ubuntu programme. This should be initiated between the CRL and traditional leaders in order to popularise the diminishing heritage of people.
The Chairperson commented that she looked forward to this collaboration that Prof Mosoma spoke about and welcomed the model for implementation.
Mr K Ceza (EFF) referred to capitalist and neo-liberal sectors of society who were resisting change in the restoration of dignity to black people. He said if land ownership was always looked at in terms of title deeds there would always be disagreement.
Ms G Opperman (DA) asked about the Land Restitution Act of 1994 which does not make provision for land which communities lost before 1913 and therefore was of little benefit to the Khoi-San community who were dispossessed prior to 1913 as they were not included in the Native Land Act. She wanted to know the status of this.
Ms D Direko (ANC) commented that traditional leaders must participate in the local municipalities in which they reside as it may cause tension if they participated in other regions. She thought it was high time that it was considered how the project currently in place can be used to uplift the lives of the community and combat poverty and unemployment. She suggested benchmarking best practice into other areas to get favourable results.
The Chairperson commented that the Committee would be meeting with traditional leaders on a quarterly basis to monitor progress. The Committee would only be able to assist them if they occupied their rightful space.
A Committee member noted that the presentation indicated that law requires MECs to determine the role and responsibilities of traditional leaders in councils. The municipalities must determine the language used in that particular council. Language is the embodiment of culture and is very important. We find that these provisions are not acted upon by MECs and municipalities. What was COGTA doing to ensure that MECs towed the line so that it did not have a persistent problem of traditional leaders complaining that they are undermined in these institutions. There is a provision in law for them to actively participate. What is government doing to ensure that this impasse ends? He had visited a friend in Port St Johns and was taken to a nearby village where most residents were white. Someone told him the traditional chief had allocated the land to the white communities for R7000. There was much unhappiness about this as many were hoping to utilise the land for economic development purposes.
The Chairperson said she appreciated that the Committee was discussing this matter in a relaxed mood. She felt that an effort was being made by all parties involved to understand one another for the sake of representing communities to alleviate poverty, to further the cause of the agrarian revolution and move towards job creation. Food production and hunger is being considered. She said that the 1913 land issue is what was being considered and that what needed to be looked at instead was the Khoi-San. They were faced with a challenge which has been caused by politicians canvassing in some areas. She then spoke in her vernacular language.
She noted the moral decay which should be prevented. She raised initiation and said the Committee was interested in what takes place during initiation and the results of this cultural practice. While children going to initiation schools need to be supported, we first need to consider the health implications and human rights. She also said the Committee is extremely concerned about the land issue and is trying by all means to address it with whomever is able to assist.
A Committee member said that there should be uniformity in and support for the participation of traditional leaders in municipal councils which is a Section 81 matter. If we are going to leave the determination of the rules for traditional leader participation in municipal councils to the provinces, this will create inconsistencies across provinces.
She stated that the Chairperson raised whether traditional leaders were representing themselves as they may not request others to participate in the proceedings of a municipal council on their behalf. The Traditional and Khoi-San Leadership Bill (TKLB) when promulgated will automatically amend Section 81 of the Municipal Structures Act. A participating traditional leader must report to the traditional council about relevant matters discussed in the municipal council. As the DG indicated during the presentation, the Remuneration Commission recommends the amount for salaries and the President will determine these salaries based on those recommendations. When one looks at the Remuneration Act it is evident that there is a gap on who should determine the tools of trade. Hence we have referred to the framework for the tools of trade as this cannot be enforced. The handbook is also a form of policy, but again this cannot be enforced. The TKLB says that the Minister should determine the tools of trade. She also pointed out that now the TKLB affords COGTA a monitoring role over the provinces which it previously did not have.
A Committee member commented that what the Committee needed to hear is how some of the concerns contained in the presentation can be distilled into an operational plan with timelines for delivery so the concerns can be resolved.
Ms Opperman indicated that she wanted to speak about some of the challenges that the Khoi-San as a people were experiencing. In 2017 the Namas had said the Traditional and Khoi-San Leadership Bill had no impact on the Khoi-San as it did not mention their indigenous status and their ancestral law rights. In 2012 a provision made for the recognition of indigenous communities and last year during the hunger strike, President Ramaphosa met with the Khoi-San people. While amendments were handed in, there has been no action to date. The Land Restitution Act of 1994 does not make mention of Khoi-San land confiscation, therefore the legitimisation of land claims prior to 1913 are of the utmost importance.
Another challenge is the emergence of Khoi-San groups with self-appointed leaders, factional fighting and a lack of unity. Self-classification is emerging so how will the challenge of Khoi-San identity be resolved taking into consideration that there are five clans and groups namely the Griqua; Korana, Nama, Hasequa, Cape Malay and Cape Coloured. Ms Opperman emphasised that it was not just the Khoi and the San or a mixture of former hottentots and bushmen. She pointed out that amongst the Korana and Hasequa there was coloured rejectionalism.
Ms Opperman continued that the remains of Khoi-San ancestors from abroad have not all been returned. In 2002 Sarah Baartman was returned, but no action has been taken on this issue. The Khoi-San language is not recognised as an official language hence there is no obligation on the state to provide services in these languages.
A Committee member said that the challenges faced now is what is being faced by various cultures. She pointed out that there are many disputes within these cultures and that it was particularly challenging to hold meetings in these areas. The communities in question need to identify their leaders themselves as the politicians are not going to do this.
Another Committee member stated that he agreed with the issues raised by Ms Opperman and Prof Mosoma about working with the CRL Commission. Everyone needed to collaborate to resolve the challenges currently being faced. He referred to the matter of providing support to traditional leaders over and above their salaries. What guided this process was the framework on the rules of trade and that it is simply a framework.Thus when a particular province says that it does not have the resources to implement what is stipulated in the framework, not much can be done. The Committee would be able to establish what the various provinces would contribute by way of resources in the new year.
On Khoi and San matters, what will unlock this process is the Bill itself as once this is signed into law a commission can be established. Determining who the leaders are should be a process guided by the commission and research also needs to conducted. They are trying to address some of these in the interim.
The Chairperson emphasised that the Committee would deliberate on the land issue and cultural initiation and work to resolve all issues. She offered assurance that the Committee has noted the concerns.
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