Traditional Leadership and Governance Framework Bill: deliberations

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Cooperative Governance and Traditional Affairs

08 October 2003
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Meeting report

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

Chairperson: Y Carrim (ANC)

Relevant Documents:
Traditional Leadership and Governance Framework Bill [B58-2003]
Traditional Leadership and Governance Framework Bill: Proposed Amendments

Summary
The deliberations on the Traditional Leadership and Governance Framework Bill continued. The proposed amendments to the Bill were discussed. The Department of Provincial and Local Government and the South African Local Government Association attended the meeting. Differences between the Bill and the White Paper for Traditional Leadership and Governance were also discussed.

MINUTES
The Department of Provincial and Local Government was represented by Mr Titus (Minister Mufamadi's advisor), Dr Bouwer, and Mr Meyer. The South African Local Government Association (SALGA) attended the meeting. Differences between the Bill and the White Paper for Traditional Leadership and Governance were also discussed.

Please refer to attached Proposed Amendments.

Clause 5 -Partnerships between Municipalites and traditional councils
5(3)
The department proposed two options as amendments for 5(3). The one option would specify the relevant act and the second option would be to omit 5(3).

Mr Titus said that it was always wise not to repeat what was in another law, since it would be stating the obvious and would lead to misinterpretations. The Chairperson said they might want to communicate something politically. If the first option was not going to lead to misinterpretation, they should leave it, unless the department felt strongly about it. Mr Titus said that they did not feel strongly about it. The Chairperson said that they should leave it for the moment.

Clause 6 - Support to traditional Councils
The Chairperson asked if a provision of financial and human resources and infrastructure was really needed. He said it seemed a bit strong. Mr Sithole said the only thing they put across was the insistence that there must be commitment, and that a lot had been done. The Chairperson said the clause should just be left, be he did feel a bit uneasy about it. Mr Titus said it was not prescriptive, but fairly pliable and flexible.

Rev Goosen (ANC) said that one submission on clause 5 said traditional leaders should be held accountable to service delivery. He asked how this could be done. The Chairperson said that the authority still remained with the municipal council; the municipal council handed over service delivery, they must be sure that traditional leaders c fulfil this.

Mr Komphela(ANC) alerted members of the committee of problems that could arise from this situation. Mr Sithole said that Mr Komphela overemphasised the need to clause 8.

Clause 7 - Withdrawal of recognition of traditional communities
The Chairperson inquired about the words "under whose authority." Mr Bouwer answered that it was the consistent use of the concept. The Chairperson asked if all traditional leaders fell under a king and if the word "authority" was correctly used. Dr Bouwer replied that the words "if applicable" provides a classification. The Chairperson enquired what the norm was in this regard. Mr Meyer said that the areas of each paramount chief were defined, and that the people in that area were under the authority of the king/queen. Mr Titus said the wording was fine. Mr Komphela said the issue is very important. One would assume all traditional leaders fell under a king. The words "where applicable" is placed correctly, since not everybody is indeed under a king.

7(1)(a)
The Chairperson asked the department to explain why there are six different ways whereby a withdrawal could be affected. Mr Titus said that it is about processes. Dr Bouwer said that framework legislation must leave some leeway to provinces. There are some differences among the provinces and the department could not anticipate everything. Therefore they must provide a framework. Dr Bouwer said that they could not make the legislation tighter.

Mr Komphela asked if they could qualify 7(1)(a) with reference to 7(2)(a, b and d). He suggested they manipulate the words to make a hidden reference to 7(2)(a, b and d). Mr Bouwer compared it with clause 2. Discretion is given to the premier. He asked if the Committee wanted to limit the grounds for withdrawal as in 7(2), or if they only want to give procedures to provinces, or give them some leeway.

Inkosi Nonkonyana asked for some clarity on 7(2). He asked who must consider the withdrawal. He enquired what system was going to determine the will of the people. He said that it seems 7(2) was setting up national standards for withdrawal, but 7(2)(c) referred to a merger. Mr Titus said the answer lies in subsection 4; it is a provincial matter. Previous recognition was implicit when communities merge. Mr Skosana (SALGA) said the legislation needed to be more simplified. Mr Titus said it was an issue of putting in implicit words.

7(2)(b)
The Chairperson asked about other divides than racial divides, like internal conflicts. Was the legislation sufficient to deal with these divides. Mr Meyer acknowledged that there also were other reasons that communities were divided, and that they need to change the Bill to make provision for this. Mr Titus suggested that they talk about legislation made before 1994. He proposed to leave this issue to the department, who would bring in another category. Dr Bouwer said that this flies in the face of the Committee's earlier decision on reasons for withdrawals if provinces could decide on these. The Bill intended to redress instances where traditional leaders were manipulated in the past for political means. The Chairperson said that there seemed to be an acceptance that people were divided in natural ways, but the department restricted itself to the political. Mr Sithole (ANC) said the committee had to focus on what they wanted to achieve. Mr Solo said they must go for an extension. The Chairperson deferred the issue.

Chapter 3 - Leadership Positions within Institution of Traditional Leadership
Dr Bouwer explained that the existing Chapter 3 was rejected because of a proposal to rearrange its sections. It was divided into different parts. The Chairperson said the rationale for this was so that you could deal with kings on the same level as other traditional leaders. This was what the Committee wanted.

Clause 9 - Recognition of Kings and Queens
9(1)(b)
Dr Bouwer explained that a new 9(b) was crafted to reflect the principles that the president must take into consideration in the recognition of kings and queens.

9(2)(ii)(aa)
The Chairperson remarked that not all kings had authority. Dr Bouwer said that the test for recognition of kingship was if there was a substantial area of principle. The Chairperson asked know if all kings had this.

Mr Solo enquired about whether there were communities that did not fall under a king. Mr Titus said this was linked to customs.

The Chairperson asked why there is a new 9(2)(ii)(bb). Dr Bouwer explained that a king was a chief, but a king was also more than just a chief. Indication was needed that the person must have been recognised as of a higher status than a chief.

7(1)(b)(ii)(cc)
Dr Bouwer explained that they tried to capture the criteria for finding out if there was a kingship.

The Chairperson asked if it was constitutional for the president to recognise kings. Dr Bouwer said that it was the case.

The Chairperson said that if you look at the original Bill, the amendments are much broader. Dr Bouwer said that they conflated everything.

Mr Skosana asked what the role organised local government would be and how the would be affected by the clause. The Chairperson said that kings and queens are handled by the national government. They have made provision for consultation with SALGA, but in this case there is no real role for SALGA. Mr Titus said that the Chairperson is correct, there is no real role for municipalities.

Clause 10 - Recognition of other traditional healers
This clause is reflecting the old clause 14.

The Chairperson asked why the department had left out the words "royal family concerned." Dr Bouwer said these words would be inserted.

Clause 11 -Recognition of Regent
11(2)(a)
Dr Bouwer said the Committee decided to do away with the word "candidate" and therefore the word "person" was inserted. The Bill also only dealt with term of office when there was an election.

The Chairperson asked why they took out the term of office. Mr Titus said some headmen were elected. They cannot provide for headmen appointed with a term of office according to custom. The Chairperson agreed that in this case there was no need for a term of office.

11(3)
The Chairperson asked if there is no information flowing between the provincial houses of Traditional Leaders. Mr Titus said they must make provision for providing information to provincial houses. The Chairperson said they must put in such a provision where they deem appropriate.

Clause 12 - Person acting as traditional leader
The Chairperson said that no one is happy with the term "principal traditional leader" , and they must look for a new term.

Clause 13 Deputy traditional leaders

13(1)(a)
Mr Solo asked if a minor could be regarded as a headman/headwoman. The Chairperson asked if they have regents for headmen and headwomen. Mr Meyer said it is the case when it is hereditary. The Chairperson remarked that the Bill treats a regent like other traditional leaders. He asked if regents should not be appointed by the president, rather than the premiers. Dr Bouwer replied that the regent was not really the position of a king and that they do not want to give the president unnecessary functions. It would lead to administrative problems, but information would be given to the president.

13(1)(b)
The Chairperson asked if 13(1)(b) was referring to mechanisms. Dr Bouwer said yes, it was relating to procedures.

13(4)(a)
Dr Bouwer said that 13(4)(a) was not provided for in the old clause.
Mr Komphela asked if the president was not given the power to delegate the role of appointing a regent to the premiers. Dr Bouwer said this would not be appropriate. The Chairperson said it was not a big issue, it should be left as it is.

Clause 14 - Removal of a traditional leader
Dr Bouwer said the sequence of a,b and c where rearranged as requested by the Committee.

Clause 15 - Houses of traditional leaders in Republic
Mr Komphela asked Mr Titus to look into the issue of the assets of traditional leaders, since the assets were not the personal property of the leaders, and could therefore not be attached to another organisation. Dr Bouwer suggested that all property be loaned to the traditional leaders.

Clause 16 - District Houses of Traditional Leaders
Dr Bouwer said all references of "district houses" had been changed to "local houses." The Chairperson said that there were some complications and that "regional" seems a better option. Rev Goosen proposed the use of the term "area council" instead. Dr Bouwer said that "local" is not a reference to local municipalities, but local sphere of government. Mr Sithole said they have to refer to "level" in that case. Dr Bouwer said that regional houses are regarded as former regional authorities, which has a bad connotation. Mr Titus said they should also look at capacity building, the people must be educated to get out of the mould of thinking it replaces regional authorities. The Chairperson said they should accept the word "local" until they come up with a better term.

Dr Bouwer said they could not put in a gender threshold for women's representation. The Chairperson asked why. Dr Bouwer said they could not predict how traditional leaders will be born. The Chairperson asked if they could not put in a loose provision, and what percentage of traditional leaders were women. Mr Meyer said less than 15% of traditional leaders were women. The Chairperson said they should seek to include a general provision for gender provision, but the ANC study group would apply their minds some more with regards to this issue.

Mr Sithole said it should stretch beyond chiefs, but to royal families. Many women were dormant because of the hierarchy. The Chairperson said that this was correct, but that they could not intervene in customs. Mr Komphela said they would get resistance, since this was a very sensitive issue. The Chairperson said the majority would agree with the principle of gender equity. They must put in clauses to be realistic and they should look at the submissions carefully. They must have credible legislation.

Clause 25 - Traditional Arrangements
Dr Bouwer said that the Bill did not provide for the continuing recognition of tribe. Clause 25(3) rectifies this.

25(6)
Dr Bouwer said this clause is not providing for paramount chiefs in new dispensation. The commission would be forced to deal with this issue. Mr Titus said if they did not deal with this matter urgently there might be consequences.

Clause 26 - Short Title and Commencement
The Chairperson asked if any Bill that came into parliament dealing with customs must go to the houses of traditional leaders for 30 days. Mr Titus said this is dealt within the White Paper. Dr Bouwer explained that this related to the legislative process and would require an amendment to the constitution, unless it was taken out of legislative process. They could not do this in this Bill. The Chairperson asked the department to ask for constitutional advice. Dr Bouwer said if they wanted to regulate executive actions, it could be done, but if it was part of the parliamentary process, the constitution must be amended. The Chairperson deferred the issue. The Chairperson asked why it was not being dealt with in the Bill if it was in the White Paper. Mr Titus said that not all of the issues in the White Paper were currently being dealt with, including constitutional issues.

The Chairperson asked why customary law was not defined. Dr Bouwer said it differed from tribe to tribe, and the constitution made it impossible.

The White Paper compared with the Bill
The Chairperson asked the parliamentary researcher to point out the gaps between the White Paper and the Bill.

The researcher said the White Paper mentioned that the institution of traditional leadership could also participate in ward councils, but this was not reflected in the Bill. Mr Titus said this was done deliberately, they recognised what they can do, legislation is not needed.

The White Paper said partnerships could also include traditional councils as information centres for government. Mr Titus said 4(1)(d) captured this indirectly.

No mention is in the Bill regarding the funds for traditional councils. Mr Titus said funds were not addressed directly, as it is a budgetary issue.

The Researcher stated that the White Paper states that there should be mechanisms devised to ensure that traditional leaders were fulfilling the functions they were paid for. Dr Bouwer said that accountability was only provided for traditional councils. The Chairperson proposed that something should be done regarding this matter, and asked if it would be reasonable that a mechanism for accountability should be done.

SALGA said they did not want any difference between councillors and traditional leaders. Traditional leaders should call for meetings to report on their activities. The Chairperson said this seems reasonable, but he questioned whether traditional leaders could be equated with councillors. He proposed that the meeting be left at once a year. Mr Solo said that he did not think that these things were comparable. They were formalising an institute, not a sphere. It might dilute traditional values. Mr Komphela said that SALGA's point was correct. He was concerned, because traditional leaders were drawing allowances from public funds and should therefore be accountable. They must meet at least twice a year, and they had an obligation to nation-building. Mr Solo said they must be very careful not to cloud this issue. There must be no element of competition. He felt very strongly that they must stay within the context of norms, values and customs.

SALGA said where traditional leaders had the community behind them, they had regular meetings, but when there were problems, there were very few meetings. When traditional leaders were using scarce resources, SALGA did not see why people were not informed of what they were doing with those resources as often as possible. Mr Komphela said the Committee must go and rethink this issue. The Chairperson said the department must sort this issue out. Dr Bouwer said the Committee might be losing sight of what they were dealing with.

Dr Bouwer said he could add a subclause to say traditional leaders must report back to their communities at least once a year. Mr Titus agreed with Dr Bouwer, and said the code of conduct would deal with individuals. The Chairperson asked the department to put into the Bill what Dr Bouwer suggested.

Overall, the White Paper gave the researcher the impression that the government would be a more active transformer than the Bill states. The White Paper did not have the same respect for customs and tradition as the Committee or the department. The Chairperson said it was true to say the White Paper set out a vision, but when it is converted to legislation, there was always a gap. The values of the White Paper were the same as that of the Committee, but they had to be practical. Mr Komphela said there must be no contradiction, and the spirit and intention of the White Paper would concur with the Bill.

The meeting was adjourned.

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