Traditional Leadership and Governance Framework Bill: deliberations

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Cooperative Governance and Traditional Affairs

14 October 2003
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Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
15 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

SUMMARY
The Committee continued with its deliberations on the Traditional Leadership Bill. It was revealed that at policy level the majority party was unhappy with the position of deputy traditional leader. It was noted that the institution of a traditional leader is incompatible with partisan party politics. It was however considered that for the present it was expedient to make room for this dispensation due mainly to existing structures of traditional leadership. The Committee undertook to apply its mind to the question of a cooling off period in its study groups and see if something concrete could come out of that engagement.

MINUTES
The Chair informed the Committee that the Co-Chair Mr. Komphela and himself had earlier met to consider the proposed amendments but assured the opposition benches that no policy decision had been taken so far. He encouraged members to hasten deliberations on the Bill so that all amendments were made. by 16 October 2003 whereupon the House would meet on 21 October 2003 to take the vote. The Chair invited Dr. Bouwer to take members through the proposed amendments.

Dr. Bouwer tabled the document on the proposed amendments and explained that all amendments to the existing text of the Bill was shaded (Please refer to proposed amendments). He explained further that the first round insertions are only shaded whilst first round deletions are crossed out. He added that second round insertions are in Italics whereas second round deletions are crossed out double. He made the point that whenever the term "Principal" appears in the Bill it has been replaced by the "Senior" to reflect the changes made by the House.

Clause 1:Definitions and Applications
The Chair sought to motivate the reason for the change from "Principal" to "Senior" and made the point that it was common cause that the term "Chief" was reminiscent of colonial overtones. It was therefore decided that the term "Senior" would be the most appropriate for present purposes.

Mr. Komphela (ANC) endorsed the Chair's explanation and added that members of the public had been seized with this matter in public hearings and even traditional leaders themselves could not come up with a title that could stand scrutiny and hence the decision to settle for "Senior".

Rev. Goosen (ANC) and Mr. Grobler (DP) said that they were comfortable with the proposed title.

Clause 2 - Recognition of Traditional Communities
Mr. Grobler (DP) referred to Clause 2 subsection 2(2)(b)(i) and made the point that there was no need for mechanisms since the process was already there.

The Chair registered his concurrence with Mr. Grobler and asked Dr. Bouwer to remove the term "mechanism" from the subsection.

The Chair referred to Clause 2 subsection 2(2)(b)(ii) and asked whether a similar provision resonates throughout the Bill to ensure consistency.

Mr. Zama - Senior advisor to the Minister - explained that provision for a fixed period within which an administrative authority must make a particular determination is not normally made unless circumstances demand so. He noted that the provision at Clause 2 subsection 2(2)(b)(ii) is unique to that situation and that it can not apply universally throughout the Bill.

Mr. Mbongeni (ANC) asked what happened when a particular Royal Family was divided on the question of recognition of a community.

Dr. Bouwer cautioned that care should be taken not to cloud issues noting that it was expedient that a final decision was taken on the matter more so in view of the fact that such a determination had financial implications. He ruled out the possibility of an appeal process and pointed out that government was desirous not to meddle with matters of traditional royalty.

Mr. Mbongeni insisted that the situation on the ground called for some thought into the possibility of such a disagreement noting that it was likely that a given Royal Family could fail to agree on the question of recognition purely on political grounds.

Mr Zama agreed that the matter Mr. Mbongeni was raising was of great concern to everybody. He however reiterated Dr. Bouwer's explanation that somebody had to make a determination to bring the matter to a close and that the Bill had designated the Premier as the final arbiter in this case. There was a possibility that some people would be unhappy with the Premier's decision. The Constitution had structured systems in such a way that the aggrieved party could only seek recourse from a court of law.

Clause 3 - Establishment and Recognition of Traditional Councils
The Chair referred to Clause 3 subsection 2(c) (i) and (ii) and wondered why the question of gender was not addressed here.

Dr. Bouwer explained that he had given the issue some thought but found it difficult to build in the gender requirement since to do so would undermine the requirement at 2(d).

The Chair proposed that the creation of a subsection 2(d)(i) to cater for the gender imperative.

Mr. Mbongeni agreed with the Chair and asked for the expansion of 2(d) to address the gender disparity that is apparent in subsection 2(c) (i) and (ii).

Dr. Bouwer insisted that there was already a general provision in the Bill for overall gender transformation in the traditional leadership hierarchy.

The Chair ruled that the subsection should be differed to make room for further consultation.

Clause 7 - Withdrawal of recognition of traditional communities
Dr. Bouwer explained that the new Clause at page 7 of the proposed amendment on withdrawal of recognition was necessitated by the need to ensure that the Premier consults accordingly before withdrawing recognition as is the case with the conferment of the same.

Mr. Hlengwa (IFP) expressed frustration at being unable to participate fully in the deliberations due to the position his party had taken on the Bill. He lamented that he was in the circumstances unable to meet his study group for this purpose.

The Chair noted his sympathy and understanding for the position Mr. Hlengwa's found himself in but asked him to make a personal input so that the Committee could benefit from his unique expertise in the difficult task of institutionalising the Traditional Leadership.

Chapter 3 - Leadership Positions within Institution of Traditonal Leadership, Part 2 - Kings and Queens
The Chair referred to Part 2 of Chapter 3 subsection 9 (b) and queried why the President should take this scenario into account.

Dr. Bouwer explained that the President was brought into the picture because presidential recognition was the qualifying point.

The Chair asked whether there was such a scenario where the status of the King was higher than that of the queen.

Dr. Bouwer gave an example of King Zwelithini who was the King of his tribe and the King of the entire Zulu-speaking people as well.

Mr. Zama said that the Minister had requested for the difference of subsection 9(2)(b) of the proposed amendments to await a proper motivation by the Chief legal adviser in the Department.

The Chair consented to the request but directed that the said legal adviser should first be fully briefed on the obtaining position before he could tender his thoughts on the subsection.

Mr. Mbongeni asked about the criteria for conferring recognition to a person as King or Queen.

Dr. Bouwer clarified that such recognition was not pegged on one's wealth or the size of the community he/she led but that the decisive factor was the position such a person held in the country.

Mr. Komphela agreed that in fact one's remuneration would not diminish his or her standing in the community as a King or Queen.

Mr. Mbongeni begged to disagree with Mr. Komphela's position noting that remuneration must be commensurate with one's responsibility.

Mr. Zama said the Stein Commission sought to review and come up with a uniform remuneration package for all public servants including traditional leaders. He made the point that this issue was too big to be resolved without the involvement of other major players.

The Chair concurred with Mr. Zama that indeed the matter of remuneration was too complex and one that could not be resolved in such a meeting but that the Committee would make the point of noting it in its report to Parliament.

Mr. Grobler wondered how the budget of R60 million for traditional leadership's remuneration package was arrived at if status was immaterial.

The Chair asked Mr. Grobler to wait until the Committee comes to the relevant provision then the Department would explain how the figure came about.

The Chair referred to subsection 3 of the proposed amendments and wondered why there was need for referrals.

Dr. Bouwer explained that such a necessity would arise where the President is unable to issue the requisite certificate of recognition.

Mr. Zama assured the Committee that subsection 3 would be redrafted to supply more clarity to its substance.

The Chair referred to section 10 on 'Removal of Kings or queens' and sought to know whether a recommendation by a traditional healer that a particular leader is unfit would be sufficient to remove such a leader.

Dr. Bouwer replied that where indeed conventional medical protocol acknowledged the expertise of a traditional healer such a healer's findings would suffice to make a determination for the removal the leader under examination.

Mr Yohan Durand raised concern on the need for safeguards to guide the process where the Royal Family was divided on the removal of a traditional leader.

Mr. Mbongeni said that there were many checks and balances to ensure that such removal was not done capriciously and on unfounded allegations. He pointed to the requirement for publication in the gazette notice and informing the President as some of the checks that had been put in place to ensure transparency in the process.

Mr. Zama reiterated that the Government was informed by the principle that it was not keen to regulate the Royal Family but only to give it support to function properly.

The Chair cautioned members not to delve into issues that had been exhausted so as to allow progress on the Bill. He appealed to the opposition members who were absent to confer with their respective researchers on the progress so far.

Mr. Hlengwa enquired if the medical evidence would be oral or in writing.

Dr. Bouwer said that it was not important in what form the evidence was as it conveyed but the substance thereof.

Mr. Mbongeni referred to subsection 3 on page 17 and wondered whether there were any transitional mechanisms in place where a traditional leader seeks to assume his office after service elsewhere.

Mr. Komphela replied that no policy decision had been taken on the matter as yet but noted that he had always advocated for a cooling off period before one could reclaim his seat.

The Chair expressed the view that at policy level the majority party was unhappy with the position of deputy traditional leader. He noted that the institution of a traditional leader was incompatible with partisan politics but that for the present it had been decided to make room for this dispensation due mainly to existing traditional leadership structures. He appealed to various study groups to discuss the question of the cooling off period and see if something concrete could come out of that engagement.

The meeting was adjourned.

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