Traditional Leadership and Governance Framework Bill: deliberations

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Cooperative Governance and Traditional Affairs

07 October 2003
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Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
8 October 2003
TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL: DELIBERATIONS

Chairperson:
Mr Y Carrim (ANC)

Documents handed out:
Traditional Leadership and Governance Framework Bill [B58-2003]
Traditional Leadership and Governance Framework Bill: Proposed Amendments
The White Paper for Traditional Leadership and Governance compared with the Traditional Leadership and Governance Framework Bill

SUMMARY
The Committee continued its deliberations on the Traditional Leadership and Governance Framework Bill.
Department of Provincial and Local Government and the South African Local Government Association attended the meeting. The proposed amendments for the preamble and clauses 2 on Recognition of Traditional Communities, clause 3 on Establishment and Recognition of Traditional Councils, and clause 4 on Functions of Traditional Councils, were discussed.

MINUTES
Mr Zam Titus and Dr Bouwer and Mr Meyer represented the Department. Ms Dube, a representative of the South African Local Government Association (SALGA), was also present to represent SALGA's views on the Bill.

Please refer to attached document 'Traditional Leadership and Governance Framework Bill: Proposed Amendments'.

Preamble
The Chairperson said that the bill should show the government's seriousness about traditional leaders.

Mr Titus accepted all the comments of the Committee. Only two issues needed further discussion: the role of traditional leaders in politics, and whether or not to accept the status quo where a community accepted a traditional leader, even if the leader was not authentic. Some of the issues were only tentatively dealt with by the Committee, and these issues were not covered in the proposed amendments to the Bill. Regarding the issues he raised on behalf of the Department that the Committee responded to, he considered these views to be accepted.

The chairperson enquired if the amendment to the preamble, the insertion of the sentence "The State recognised the need to provide support and capacity building to the institution of traditional leadership where public functions are allocated to it." The words "support and capacity building" could create obligations. Mr Titus said it could be left out. The Chairperson also asked if the preamble could be used to take the State to court. Dr Bouwer said the preamble is meant to assist interpretation and would therefore not be used to take the state to court. The Chairperson enquired to what extent the government must regulate customs. Mr Lyle (ANC) warned that if the Committee did not have the preamble as it was there, it could be possible that the preamble would not protect the state from being obliged to intervene. The Chairperson said that this would not be the case.

Mr Komphela (ANC) said he would be worried if the sentence was removed from the preamble and something similar hidden in the Bill, since that would create a problem of clarity. Mr Titus said the use of the term "support and capacity building" was problematic, but there were no better alternatives. They had to be general when speaking about traditional leaders, but when they were speaking about support and capacity building they needed to be specific. They would have to build a 'safety vault' in the Bill. The Chairperson left the matter in the Department's hands.


Inkosi Hlengwa (IFP) questioned public functions. He said traditional leaders were responsible for their communities. He asked if these communities were not part of the public. The Chairperson said that this was not the issue, but that the issue was the functions allocated to the state. Inkosi Hlengwa asked how the legislation would be implemented. The Chairperson said the Bill stipulated the implementation.

Mr Titus said he thought the Committee agreed to remove the words that the 'state recognises the need to provide support and capacity building to the institution of traditional leadership where public functions are allocated to it'. Inkosi Hlengwa asked what the problem with the words was. Mr Titus replied that the government should be able to provide support, but if they included those words, only support and capacity building could be supplied. The words were thus limiting, and without the words it would broaden the scope of the preamble. The Chairperson again expressed his fear that a court case could arise and deferred this matter. He said the department should remove the words, but that those who did not want it removed must give comprehensive reasons..

The Chairperson referred to the political role of traditional leaders. He said they should be above party politics. This differed from the reality, since many traditional leaders were currently involved in party politics. At the moment they added value to politics, but that this would not be the case in
the long run. He deferred this matter to the study groups.

Clause 2 - Recognition of Traditional Communities
Dr Bouwer said that there were various issues raised regarding this clause. In 2(a) they provided for consultation with the applicable king/queen and Provincial Houses in the recognition of a traditional community. In 2(b) a fixed period was brought in for the premier of a province to reach a decision regarding the recognition of a traditional community.

The Chairperson asked Dr Bouwer to explain the overall thrust of these changes. He replied that they decided there must be a role for the provincial houses and kings/queens, and the amendment responds to this. The fixed period was inserted to ensure that traditional leaders be recognised within a reasonable amount of time. Clause two also amplifies the Bill of Rights.

Mrs Dube asked for clarity on the provincial legislation. The Chairperson answered that the provincial legislation referred to in the Bill is still to come. There also are various norms and standards set throughout the Bill, and the Committee said that they must be more explicit.

Mr Ngubeni (ANC) said he thought the words "full and proper" in the proposed version of 2(a) would lead to problems in the law, since he thought this had been meant to apply to communities, and that it needed to be changed.

Mr Titus agreed with members that issues relating to consultation should focus more on communities, but he did not know how this should be done. The proposal had imposed certain meaning to the words "full and proper" There were different meaning in different contexts. They had to deal with mechanisms for consultation. They must come up with a clause to force provincial legislation to provide for mechanism for consultation. He suggested that they move away from the words "full and proper", and said that they must provide for a mechanism for consultation.

Inkosi Hlengwa (IFP) asked why the committee was saying a traditional community "must", and not a committee "may". He enquired if traditional communities were going to penalised if they do not transform. Mr Titus replied that communities as well as individuals were bound by the Bill of Rights. Gender equality must be addressed. Inkosi Hlengwa remarked that the constitution was imposing on traditional communities. Mr Komphela (ANC) stated that he had a problem with this remark, since the constitution of the country was right in imposing the Bill of Rights; it was correct and legitimate.

Mr Solo (ANC) said that the clause must be read within it own context. The clause referred to the Bill of Rights, which was a universal issue. However, communities evolved. There should be some form of guidance. Therefore, whatever changes that took place within the traditional community, must take place within the framework of the Bill of Rights. The Bill must therefore use the word "must".

Inkosi Nonkonyana (ANC) asked whether, if the clause stayed as it is, it would pave the way for men to challenge the Rain Queen. He also asked if a traditional leader would marry many women, could the other women claim that they were discriminated against. Mr Titus answered that all these things were arguable. Within all communities there was contestation. It would hinge on whether the community said the particular custom gave equal opportunities to men and women.

The Chairperson reminded the Committee that they were talking about traditional communities. The Bill of Rights applied to all of us and it would be hard to say it applied to all except traditional communities. The traditional communities' functions was set out in the fourth section of the Bill, and the issues mentioned here did not apply. Traditional communities must be increasingly held accountable to the Bill of Rights. The Committee must continue with the Bill and only then see if there should be constitutional amendments.

Clause 3 - Establishment and Recognition of Traditional Councils
The Chairperson asked for the inclusion of having to take into account that one third of representatives at traditional councils must be female. He also wanted the department to look at the wording of 3(b), since provincial legislation may loosen the exemption. Dr Bouwer replied that it provides for a mechanism. He said that it was their departure point that women would not be appointed as traditional leaders.

Mr Lyle (ANC) wanted the Bill to prescribe a one third representation of females in each of the traditional councils.

The Chairperson reminded the committee that there were things in the Bill that they might not agree with as individuals, but as politicians, they must be responsible.

Mrs Dube inquired about the figure of 30 members of a traditional council. Mr Meyer said that they tried to explain this the previous week. They had to look throughout the country at the size of the councils, and arrived at 30 for bigger councils. Mr Ngubeni said that the number of 30 is not prescribed; it is prescribed that the number of members should not exceed 30. The Chairperson said it would be better to have more elected officials, but the costs were a constraint. Mr Komphela said the key principle was to have the existence of traditional leaders. Therefore one could not have democracy diluting traditional leadership.

The Chairperson asked if municipalities would bear the financial costs and the state had the resources. Mr Titus said municipalities would not bear the costs; it was not their responsibility. He also said that the minister said that traditional leadership must be diluted, and that the minister wanted traditional leaders to participate. He also did not want traditional councils to be used for party politics.

The Chairperson said that they must think of tightening the wording of 3(b).

The Chairperson gave SALGA the opportunity to express their views regarding the Bill. Ms Dube said that they fully support the spirit of the legislation, and the role of traditional leaders complementing local government. Traditional councils should be representative of the community. She recommended that the Committee provide clarification on service delivery options. The support of traditional councils should be dealt with in the existing legislation. The Bill was very silent on where the resources were going to come from regarding the District Houses within metropolitan areas. She recommended that the Bill made provision for National and Provincial Houses' relationship with District Houses. Regarding the roles and functions of traditional leaders, she said that the Bill needed to make provision for consultation with ministers and MEC's, and also municipalities. There was also a need for the promotion of working together rather than perpetuating divisions.

Mr Ngubeni informed the Committee that SALGA said there must be co-operation with the three spheres of government, but the definition should be broader, to include other organs of state.

Rev Goosen (ANC) said that the roles and functions of traditional leaders were also broadly discussed. It would be brought to partnership with local government. The Bill will not be giving the traditional leaders powers, it will only recognise their customary powers.

The Chairperson said that the Constitution recognised traditional leadership as an institution of the state. Co-operative governance included all institutions of state. Regarding the District Houses' funding, the Chairperson said the Bill's memorandum explained this and that municipalities would not be responsible.

Ms Dube asked if traditional leadership would be regarded as the fourth sphere of government. Mr Titus said that the notion of a fourth sphere could only be realised through a constitutional amendment, not through this legislation. Regarding the funding, he said that funding for the houses would come from the national fiscus. The money would be rooted through to districts.

The Chairperson said they had no intention to amend the constitution to take away the powers of local government.

Clause 4 - Functions of Traditional Councils
4(3)
Mr Ngubeni said he believed that traditional leaders should not participate in party politics. He proposed that kings be above party politics. He said it must be recognised that there could be conflict in traditional communities when traditional leaders were in political parties other than that of the king.

The Chairperson referred the matter to the study group. It would be interesting to know if any kings were involved in party politics. He questioned whether it was appropriate to put in the Bill, because of issues relating to customs. He said that if it was felt that it should be done, it must be put in the report to parliament.

Mr Komphela took over as Chairperson.

Inkosi Hlengwa agreed with Mr Ngubeni. The Constitution said that whoever had a vote, had a right to be voted for. He wanted to know if they were taking away the right of people to vote for their representatives.

Inkosi Nonkonyana said that party politics was going to compromise traditional leaders. Traditional leaders had powers. If traditional institutions had sufficient powers, traditional leaders would not go into party politics. He doubted that it would be correct to divide kings and queens from the other traditional leaders. Traditional leaders were forced to participate at the moment, but the institution should not be politicised, in a fashion similar to the churches.

Mr Solo asked the Committee to look carefully to at the White Paper provides for, and what was needed for development in South Africa. Traditional institutions were manipulated to a large degree in the past. This matter should be looked into.

The Chairperson said this matter was not to be discussed at that time, but he allowed Inkosi Hlengwa to speak.

Inkosi Hlengwa said that traditional leaders found themselves in party politics due to circumstances. There were no other avenues for them.

The Chairperson said the question would be continued. He asked why should traditional leaders be compensated if one assumed that traditional leaders fulfil the role of traditional leaders by themselves. The matter should be put to parliament as a report. It was not to be placed on the Bill. The Chairperson stressed the urgency of the matter.

Dr Bouwer said that the functions of traditional councils made provision for accountability. There should be an obligation for provinces to provide for accountability.

Dr Bouwer also explained that the proposed amendments of the Bill included the rearrangement of the paragraphs of 4(1). It had been added to the old clause 4 that traditional councils and its resources may not be used to promote or prejudice the interests of any political party.

Mr Sithole (ANC) said that there was always a impression created that there was nothing being done by traditional leaders. He said it would be pleasing to hear from SALGA if there were problems.

Inkosi Nonkonyama asked who prescribed the code of conduct. Mr Ngubeni said that he would have liked to see a draft of the code of conduct. Mr Titus said the code of conduct was currently under consideration.

Rev Goosen said the department did a good job in rearranging clause 4.

4(1)(b)
Inkosi Hlengwa asked what was meant by the word "guiding." Mr Titus said they needed to accept that traditional leaders led communities. The clause was not taking away the position of the traditional leaders, but they had to work together with the traditional council.

The meeting was adjourned.

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