Customary Initiation Bill & Municipal Structures Amendment Bill: briefings

Meeting report

The Chairperson said the Committee should focus on improving itself from the previous years and ensure accountability of all the entities that were governed by it. There needed to be improvements in the provision of water and sanitation to ensure better lives for the people of South Africa.

He submitted apologies on behalf of the Minister and Deputy Minister, informing the Committee that the Minister had gone to a conference in Addis Ababa, Ethiopia.

Mr G Michalakis (DA, Free State) interjected, stating that the Minister and the two Deputy Ministers had not been responding the countless emails he had sent them and requested the Chairperson to ask them to respond him.

Customary Initiation Bill

Mr Mashwahle Diphofa, the Director General of the Department of Traditional Affairs, said that ineffective regulations at initiation schools had resulted in deaths, injuries and amputations of the initiates in some cases. The Customary Initiation Bill (CIB) was thus aimed at regulating the practices associated with initiation schools to minimise death and injuries to initiates at the schools.

The policy for customary initiation was approved in April 2016, after which the policy and bill had been published in June 2017 and later presented to Parliament. The bill was based on prior research conducted by the Department. As a result, there were individuals who would not be allowed be role players -- such as sex offenders, for example -- in order to ensure safe proceeding of initiation rites.

A national initiation oversight committee would be the overseer of the affairs of the initiation schools, and would have a chairperson and a deputy. It would work hand in hand with the Provincial House of Traditional Leaders, except in the case were the province did not have a National House, as was the case with the Gauteng Province 

The appointed committee would oversee the registration of all initiates and the initiation process, working with the appointed medical practitioners to mitigate deaths and minimise injuries during the initiation process. The committee would also ensure that the South African Police Service (SAPS) got involved where necessary to provide safety to initiates and minimise abductions.

Traditional leaders would oversee the whole initiation process, guided by the national initiation oversight committee. The principal of the initiation school would also work with the local traditional leaders to ensure a smooth running of the initiation. All potential initiates would have to undergo medical screening prior to the initiation and receive a medical certificate that declared them fit for initiation school. The parent/guardian of the initiate would have to provide consent before the initiate could attend the school.

Although the initiation process was critically a voluntary process, the season for initiation schools was not allowed to interfere with normal school terms. The bill required consent from the guardian and the initiate, should the initiate be between the ages of 16 and 18. For an initiate who was over 18 years of age, only consent from the initiate would be required.

Mr Diphofa said that the laws and practices of the initiation school may not contravene the Children’s Act, so no consent for initiation may contravene the provisions of the Children’s Act. An initiate who was under 16 years of age may not register at an initiation school, even after consent had been given, for this would be contravening the Children’s Act.

Forgery of consent counted as a criminal offence, and an initiate could be initiated only at a registered school, where the principal of the school was bound by the bill to ensure safety and the provision of water and sanitation to initiates.

In the case of male circumcision, the traditional surgeon would have to be supervised by a qualified medical practitioner when administering the circumcision, unless the surgeon himself was a qualified medical practitioner. There had been opposition from the community on that point, but the bill maintained that the supervision by a qualified professional remained mandatory.

Discussion

Ms S Shaikh (ANC, Limpopo) asked what monitoring systems had been set in place to prevent incidents from occurring at the initiation schools, specifically inquiring what the Provincial Initiation Coordinating Committee (PICC) was doing to assist in this regard.

Mr I Sileku (DA, Western Cape) asked how the CIB ensured that the signatures for consent from the guardian of the initiate were not forged by the initiate himself, acting under the pressure of peers who wanted to go to the initiation school. He said some potential initiates lived with elderly guardians such as their grandparents, some of whom could not read and hence might sign for consent without knowing what it was that they were signing for.

He asked if the medical practitioner overseeing the circumcision of the initiate would be of the same gender as the initiates in respect for the culture of initiation where, by tradition, only an initiated man would be allowed to oversee the initiation of another. How was the Department of Traditional Affairs (DTA) going to deal with the fact that only initiated persons were traditionally allowed access into an initiation school, given that some professionals who were required to work with initiation schools might not be initiates themselves?

Mr K Motsamai (EFF, Gauteng) said he was happy with the bill, but in the light of medical practitioners being granted access to initiation schools, he would be delighted if traditional healers (sangomas) were also given access to hospitals to provide help to those who sought help of such a nature.

Mr S Mfayela (IFP, North West) said that the Bill concerned issues that affected the traditional leaders, and asked if the leaders were being involved in the whole process as it unfolded. He was happy that the bill was helping restore the culture and tradition of initiation, but asked for clarity on the issue of the traditional surgeon having to be supervised by a medical practitioner.

Mr S Zandamela (EFF, Mpumalanga) said his concerns had been raised by the previous speakers.

Ms Z Ncitha (ANC, Eastern Cape) asked for clarity on the role of the medical practitioner with relation to the traditional surgeon in the initiation school. How was the DTA planning to maintain the cultural practices while integrating them with modern medical practices?

Ms M Mmola (ANC, Mpumalanga) asked how the bill was going to tackle the issue of abductions and kidnappings related to the initiation schools.

Ms C Visser (DA, North West) asked how the bill was going to address the issue of infections that could arise from operating in a non-sterile environment.

Mr Thabo Mdukiswa, Provincial Chairperson: Cooperative Governance and Traditional Affairs (COGTA), Eastern Cape, asked whether or not the bill provided a minimum age for the traditional surgeon, as by tradition a man younger than 50 years of age was not allowed to circumcise the initiates. He asked how the bill would address the issue of overcrowding at initiation schools, as this was a potential health risk.

What criteria were being used to determine whether a practitioner running an initiation school was operating legally? He gave an example of one of the practitioners in the Eastern Cape region who was facing arrest by the SAPS, but who was protected by community members who said they knew and trusted him. He asked what action the PICC would take against a traditional surgeon if he was found not to possess a legal document for being a traditional surgeon,. 

Mr Mdukiswa asked how the bill would address the issue of overcrowding at the initiation schools. He said that at one initiation school in the Eastern Cape, there had been about 96 initiates in one hut.
He emphasised that some traditional surgeons were making close to R1 million in a year by simply overcrowding their initiation schools, and this was causing a health hazard for the initiates.
 
He asked what the bill would do in cases where someone was being transferred from the initiation school and died on the road, stressing that the bill had to provide a way of providing protection to the committee, because in some instances a person being transferred due to injuries, infection and so on, might have been in a critical condition only to die in the hands of those appointed by the DTA.

Mr Aaron Motswana, Chairperson: COGTA, North West Province, emphasised that the police should form part of the initiation school’s support team, because SAPS usually did not act immediately. The police should be included at the starting point. He also requested clarity as to whether a parent or guardian would be provided access to the initiation school, should their initiate fall ill during the initiation process. He highlighted that this might cause a disturbance in traditional culture as women, for example, were not allowed to enter the initiation schools of men. How was the bill going to work around that?

Ms Magesvari Govender, representative of the Chairperson: COGTA, in KwaZulu-Natal, asked if the bill provided a way of regulating the fees that were paid to the initiation school.
 
CIB’s response

Mr Abram Sithole, Chief Director: DTA, referred to the question on consent, and said that there was very little chance that a potential initiate would go to an initiation school unnoticed by the community, giving the example that in the Ndebele community, a boy wears a certain headband for a considerable length of time before going to an initiation school. By the time he went there, everyone one in the community would already know, including his guardians.

As far as qualification for going to an initiation school was concerned, the potential initiate would have to undergo a rigorous medical examination before being declared fit to go to it. Once this was complete and satisfactory, the initiate may go to the school and would be circumcised by the traditional surgeon, under the supervision of a medical practitioner who himself had undergone initiation previously.

Concerned guardians would have to visit the initiates from their family by accessing the camp through a separate camp that was linked to the specific initiation school where the child was being initiated. In order to gain access to the initiate at the school (not at the separate camp), only the male family members (such as uncles) would be allow into the initiation school, given that they had undergone the same type of initiation in the past, in accordance with the tribal law.

He said the principal of an initiation school would have to be at least 40 years of age, have at least three years of experience within an initiation school, learning and mastering the art. The DTA was working with the SAPS to ensure that there was safety at the initiation camps to deal with immediate issues arising, and to specifically prevent abductions and the kidnapping of initiates. Gauteng, Mpumalanga and Limpopo were experiencing a high rate of kidnapping, and for this reason initiation schools needed to have a specific SAPS unit assigned to them. The one issue affecting legal proceedings at the schools was that victims of incidents such as kidnappings, or other offences, would later refuse to testify against the perpetrators, resulting in the cases having to be dropped.

Addressing the question of overcrowding at the initiation schools, he said that there were schools that were well organised, such as the Bapedi initiation schools, where 300 initiates would be well organised into groups small enough not to allow for overcrowding in the camping huts.

Ms Trisha Ramsumair, Senior Manager: DTA, said that there must be a separate camp from the initiation school where the guardian would be able to visit the initiate without having to get access to the initiation school itself. The Minister would regulate the amount paid to the school as ‘tuition,’ in order to create a standard pricing for the initiation.

She said it was mandatory that the initiates obtain a medical examination and were declared fit by the appointed examiner at least 21 days before the initiation began. In a case where initiates in one school were being moved from one school to another, all initiates would have to again undergo a medical examination to ensure that they were still fit for transfer to another school.

She said abduction and kidnapping were offences, together with operating without a certificate, and the perpetrators would be prosecuted according to the charges laid out in the bill.

Mr Diphofa said that some provinces had indicated that specifying 16 years of age for an initiate to be allowed to attend the school was too old, and had requested that the minimum age be lowered. However, the DTA could not lower it as it was strictly in line with the children’s bill of rights. Another issue that had been raised by the traditional leaders was the question of why the traditional surgeon had to be under the supervision of a medical practitioner. Apart from that, there was a general acceptance of the bill, given the engagement of the DTA and the traditional leaders.

The Chairperson welcomed the presentation and answers provided by the DTA, and indicated that the Committee would place advertisements in newspapers for written submissions on the topic in order to know what the public’s views were on the CIB. He commented that the presentation had been lacking information, because it had made no mention of how many deaths, injuries and so on had occurred.

He said the there would be community outreach programmes set up to ensure the community was thoroughly informed on the matter, so that everybody understood the bill. It represented a major shift in terms of the laws of the past, so it was very important that the community was well educated on the bill.

Local Government: Municipal Structures Amendment Bill

Dr Kevin Naidoo, Acting Deputy Director General: Department of Cooperative Governance and Traditional Affairs (COGTA), said there had been 341 local government by-elections to date, and this had resulted in a need for more amendments to the Municipal Structures Amendment Bill.

In 2018, the Committee had worked with various stakeholders such as the South African Local Government Association (SALGA), the Municipal Demarcation Board (MDB), the Independent Electoral Commission (IEC), the Department of Justice and Constitutional Development (DoJCD), and the Department of Cooperative Governance (DoCOG). Submissions had specifically been received from COGTA in KwaZulu-Natal, the Western Cape and the Northern Cape. The bill had 32 clauses, and contained 20 changes from the bill that had been submitted to Parliament in the previous year.
The amendments were grouped into three sections.

Electoral Related Amendments
Government Amendments
Other Related Amendments

Clause 1
The minimum number of councillors had been reduced from 15 to 10.  On the date of being declared as councillors, it had been clarified that it to be the date on which the IEC published the results. The definition of “District Management Area” had become irrelevant. The clause also included the definition of ‘Whip’.

Clause 2
This clause dealt with “District Management Area,” which had now been removed.

Clauses 3,4,5
These clauses dealt with the types of municipalities. There would be no plenary type of municipality in the future if the proposed amendments were accepted.

Clause 6
This gave effect to the removal of references to district management areas.

Clause 7
This clause dealt with section 20 of the Structures Act, and dealt specifically with the determination of the number of officials in a municipality. An MEC may deviate by 10% when determining the number of councillors. This percentage could be raised to 20% in the case where the size of the municipality was greater than 20 000 square kilometres, and the number of councillors had been determined to be less than 35. 

Clause 8
There would now be a provision of a two-year year cooling off period if a councillor was removed by the Member of the Executive Committee (MEC) for breach of conduct.

Moving to Clause 11, Dr Naidoo said it dealt with by-elections, emphasising that the MEC could work on a by-election standover only in consultation with the Minister. The Code of Conduct was being migrated from the Schedule 1 of the Systems Act to the Structures Act. Only authorised persons could inform people about vacancies in the new law, because the IEC had received applications in the past only to find out that it had not advertised any vacancies.

Clause 12
The clause referred to situations where an official would request a meeting and not get a response, and stated that the MEC must intervene to organise the meeting in order to ensure the smooth running of council.

Clauses 13,14
This section also dealt with meetings as guided by the Structures Act.

Clause 15
This clause dealt with quorums and decisions, specifying that when a quorum was being decided upon in a meeting, the number to be considered was that which was determined by the MEC in the Section 12 notice at the time of establishment of a municipality.

Clause 16
This referred to non-uniform application of the law. He emphasised that the Chairperson or Presiding Officer did not have a casting vote when it came to the passing of by-laws, approval of budgets, or raising of laws

Clause 17
This clause stated that a councillor may not hold office as Speaker or Mayor in any municipality. This had been done in order to strengthen the role of the Speaker in the municipality.

Clause 18
This clause dealt with an amendment to Section 41 of the Act, providing for a new 41a and 41b dealing with the rules of the ‘Whip’ in the municipality.

Clause 19
The section provided a uniform formula for determining the executive committees of municipalities.

Clause 20
This dealt with the function and powers of the executive committees. He stressed that the clause would ensure that reports were not stifled by Executive Mayors, since there had been previous cases where the Executive Mayors had requested that the reports should go through them first before being sent to Council.

Clause 21
This dealt with the functions and powers of the Executive Mayor

Clause 22
The Executive Committee would now be given a time frame of 120 days for municipalities to establish ward committees, after the general elections of all municipal councils.

Clause 23
This dealt with providing for a new Section 79a in the Act, by creating the establishment of an oversight committee in the municipality. The functions and powers of the committee were defined.

Clause 24
This clause affected Section 81, and proposed to include the Traditional and Khoi San Leadership Act, which was not an Act when the Structures Bill was developed

Clause 25
This was part of doing away with the reference to District Management Areas

Clause 26
He stated that this dealt with reference to the plenary type of municipality.

Clause 27
Dr Naidoo said this clause dealt with the redistribution and recalculation of seats when it came to the election of municipal councils, and also required that a vacancy be announced within 14 days, not seven. The clause also dealt with giving a two-day time frame to parties to supplement their list.

Clause 28
In this clause, if a candidate has been elected to more than two positions, the candidate would have two days to inform the IEC of their position. The clause also dealt with matters around District Management Areas.

Clause 29
This clause provided for the insertion of “Whip” into the definition of officials.

Clause 30
This dealt with the migration of the code of conduct from the Systems Act into the Structures Act.

Clauses 31,32
These sections were technical, dealing with Section 19 on notice of meetings.

Discussion

The Chairperson welcomed the presentation, and asked the IEC and Members for their comments.

Mr Masego Sheburi, Deputy Chief Executive Officer (CEO): IEC, said that the submission was clear, and he had no comments or questions.

Ms Shaikh agreed that the submission was clear, and said she thought the bill would go quite a long way.

Ms Ncitha welcomed the Bill, and was happy that it spoke of time frames, since municipalities were always changing. She suggested that the Bill be amended further to talk about what happened in the long term as the municipalities changed.

Ms Visser said she agreed with the submission since it would ensure that there were fewer interruptions within the municipality, given the use of time frames.

Mr Sileku said that the bill did not specify who the chairperson of the Municipal Public Accounts Committee (MPAC) should be, since some chairpersons of MPAC were from the ruling party. He asked how the councillors who were not educated were going to be helped with fulfilling their duties, because they needed assistance. How was the Bill was going to handle the issue around the financial implications associated with the addition of more councillors?

Mr Motsamai said he had a problem with the fact that some of the municipalities were corrupt, and the communities had poor water delivery and sanitation. He asked the Chairperson to call the municipalities to a meeting and to hold them accountable.

The Chairperson responded that the focus was on the Bill, but assured him that the corrupt municipalities would indeed be called to account.

Mr Zandamela requested clarity on the formula used to determine municipalities.

Mr Mdukiswa referred to clause 21, asking what happened to the reports that related to Section 52 and 71, since there was a requirement for the mayor to report on these sections on a quarterly basis. He asked what relationship the 20% deviation on the number of councillors had with the ward limitation by the MDB.

Ms Kgomotso Tong, from the Gauteng Provincial Legislature, asked how the IEC would track whether a person was from a ward during the by-elections, in order to avoid fraud.

Ms Govender asked if the bill made any provision for follow ups on reports, since there was a history of reports being tabled and forgotten.

Mr Motsamai also welcomed the move to deal away with the plenary municipalities, of which the North West had three. He asked what the criteria were for a municipality to have a Whip in relation to the number of councillors it had.