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PROVINCIAL AND LOCAL GOVERNANCE PORTFOLIO COMMITTEE
16 October 2003
TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL: DELIBERATIONS
Chairperson: Y Carrim (ANC)
Documents Handed out:
Traditional Leadership and Governance Framework Bill [B58-2003]
Traditional Leadership and Governance Framework Bill: Proposed Amendments
Code of Conduct: Draft Provisions (Appendix)
The Committee discussed the proposed amendments to the Traditional Leadership and Governance Framework Bill, which included two new clauses, as well as a draft code of conduct.
Mr Titus, Dr Bouwer and Adv Nthai represented the Department of Provincial and Local government.
Issues deferred in the previous meeting were discussed.
Clause 9 Recognition of Kings and Queens
The Chairperson said the first issue for discussion for the meeting would be regarding informing the house of traditional leaders of a decision made by the president. There was a strong feeling that the president should be responsible to set a framework for regulations on regard to informing the house of traditional leaders. The Chairperson said that he thought this would be too arduous for the president, and there were recommendations that the Minister should be responsible for setting the regulations. Adv Nthai said that if the minister were responsible for recognising traditional leaders, the minister would be the competent authority to issue regulations. But, if the president recognised kings, it should be the president issuing regulations. In practice the regulations would be formulated by the responsible department, for the president to sign.
The Chairperson said that he thought the recommendations made by the department regarding clause 9(5), in the previous meeting, were reasonable. There was a suggestion made during the briefings that the president should issue regulations after consultation with the National House of Traditional Leaders. Adv Nthai said that the original Bill did not have such a provision. The department looked at it again. It was the prerogative of the president to consider consultation. Some of the functions defined in the regulations was functions that would be discarded to provinces. The Department's proposal was that it was not necessary to qualify it in the Bill. It was in the constitution, and repetition was unnecessary.
Adv Nthai also said that they have not defined the functions of kings and queens in the Bill. This would be done after the enactment of the Bill, and it had to be expedited.
The Chairperson said that this seemed reasonable. He said that the regulations should be made known to parliament.
The Chairperson said they decided to drop the words, as suggested in the proposed amendments, but pointed out that it would lack clarity. He suggested that they use the words "give evidence," or other appropriate words rather than leaving it out. Mr Titus said they decided to use the words "give written confirmation." The rest of the subclause will remain the same, and it will be retained.
The Chairperson asked the Department to explain why they want 9(2)(b) to be removed. Adv Nthai said their motivation was the fact that in reality the royal family made appointments; the president recognised these appointments. There were traditional ways of informing the traditional communities of appointments, like a ceremony with all stakeholders presents. The recognition of kings did not impact on the national government, but on provincial governments. The president must inform them of appointments of kings. It would also not be fair to single out the national house of traditional leaders to be informed. Therefore, the department wanted 9(2)(b) removed.
The Chairperson drew attention to the text the Department was working on, which dealt with the provision for all bills dealing with customs being referred to the National House of Traditional Leaders. He said it was no major policy issue, he just wanted to get the protocol right. Mr Komphela (ANC) said he did not want anybody to have the impression a protocol affecting the president to inform the national house of traditional leaders meant that they were more important than the provincial houses. Mr Komphela said all the houses were equal.
Clause 7(1) Withdrawal of recognition of traditional communities
The Chairperson said the wording of 7(1) should be simplified. He and Mr Komphela would craft the wording.
Clause 3 Establishment and recognition of traditional councils
The Chairperson said that it was the view of the Committee to make some provision to see to it that 3(2)(c)(i) and (ii) took into account women's representation. He asked for a new subclause 3(2)(d), to do this. Dr Bouwer said it could be done, but its cumulative effect would undermine the principle in 3(2)(b). Mr Titus said that Dr Bouwer was quite right. He also asked who would ensure that these things happened. He said they must still deal with the oversight function. The Chairperson said he would sort the wording out with the drafters outside of the meeting.
Clause 13 Deputy traditional leaders
Mr Komphela inquired about 13(2)(d). Mr Titus said that it was the result of what had been discussed in the Committee. He thought the matter was resolved. Dr Bouwer referred the Committee to the proposed, new clause 13. Mr Titus said if the earlier words are deleted, the same would be applicable. The Chairperson enquired exactly what 13(2)(d) was going to say. He asked if provision for the provincial houses of traditional leaders would remain. Adv Nthai said it was not a problem, it must be reworded to exclude the recognition of kings and queens. The Chairperson said it was a matter of consistency. Where the president was involved, he did not have to notify the national house of traditional leaders, but where the provinces were involved, the provincial houses had to be informed.
The Committee moved on to issues that were not discussed at the previous meeting.
Clause 15 Houses of traditional leaders in Republic
The Chairperson said the majority party's view was that they would prefer a third of women in the houses of traditional leaders. The Bill said nothing about a third currently but it was hoped that this would be implemented as far as possible.
New Clause (Please refer to attached Traditional Leadership and Governance Bill: Proposed Amendments - Page 20)
The Chairperson asked the department to change the term "draft legislation" to "Bill." He asked if they were saying what they had done was constitutionally tenable. He asked for clarity on what affect traditional communities. Adv Nthai said they must look at traditional communities. The Chairperson said he was a bit worried, they had to be clear on what was affecting traditional leaders. Dr Bouwer said he looked at the interim constitution for guidance, but he changed the terms to fit with the current Bill. He also said the words "pertaining to" was a strong qualifier. It was not the same as "affecting". It was very specific. Adv Nthai said it was not the word that was a problem, but traditional leaders were the problem. The Chairperson suggested that "traditional communities" be removed.
Mr Ngubeni (ANC) suggested that was of the view that "traditional communities" should be dropped from the clause. Mr Komphela said that he was not convinced that "traditional communities" should be removed.
The Chairperson said that a Bill affected traditional communities, it could be argued that everything affected traditional communities, which would mean every Bill would have to be referred to the house of traditional leaders. The Chairperson only wanted the Bills dealing with customs, customary law, and tradition referred to them. Adv Nthai said the interim constitution never talked of "traditional communities," but it used the term "customs of traditional communities". He suggested that they use the latter. Dr Bouwer said that he had to point out that they were dealing with the interim constitution. So, they had to change the terms. He enquired why they wanted to delete "traditional leaders." The Chairperson said an issue affecting could be anything. He said the department should try to sort it out outside the meeting. Clarification was needed. He asked them to focus on what the Committee wanted.
Adv Nthai remarked that when they were dealing with this, they were dealing with the institution of traditional leaders, not individuals. The Chairperson agreed.
Mr Komphela asked where the clause's origin lies. He did not think they could just throw it in. The Chairperson explained that they discussed the issue when Mr Komphela was absent from the Committee, and that the Committee asked for it. The Chairperson concluded the matter stating that the term "institution of traditional leaders" should be considered more carefully.
Clause 18 - Allocation of roles, functions and guiding principles
Mr Titus explained that they changed the clustering of functions to be more appropriate in paragraphs (a) to (j). The Chairperson consented.
Clause 24 - Decisions of Commission
The Chairperson asked the department to explain clause 24(2). Dr Bouwer said it made provision for an information role. Adv Nthai said a commission would be established with the enactment of the Bill, which would be appointed by the president. This clause made provision for the commission reporting back to president. The Chairperson said it was a matter of protocol.
Clause 25 - Transitional Arrangement
Regarding 25(3) the Chairperson remarked that they agreed to use the term "tribe" even though they did not like the term. Dr Bouwer said this was a transitional measure. Dr Bouwer asked, regarding 25(3)(b), where paramount chiefs fit in. He said the first thing the commission should do was to look at the situation around paramount chiefs.
New Clause (on page 26 in Traditional Leadership and Governance Bill: Proposed Amendments)
Mr Titus explained that this clause addressed issues consequential in nature. Firstly, it effected a definition for traditional leaders different from that of Act 20 of 1998. Secondly it addresses the remuneration of traditional leaders.
Dr Bouwer also said clause 26 is a consequential act. The Remuneration Act does not refer to local houses of traditional leaders. Members of these houses will be paid. The clause also provides a definition for traditional leaders. Mr Grobbelaar (DA) asked why the salary increases were tied to inflation increases. Dr Bouwer said that this was already in the Act. They only put in that members of local houses of traditional leaders should also receive payment. Mr Titus said this was nothing unheard of.
Code of Conduct
Please refer to Appendix.
Mr Titus explained that the code of conduct had two parts. First, the code is incorporated into the main part of the Bill. The second is the code of conduct itself. Dr Bouwer said that clause 27(2)(a, b, and c) is already in clause 17, but will be deleted if the code of conduct is accepted.
Mr Komphela asked why they did not put in a provision for nation-building. He said it was mentioned in the White Paper on Traditional Leadership and Government. Mr Komphela proposed that they put in a mention of nation-building. Dr Bouwer said that nation-building is given as a function of kings and queens. Mr Titus said that he would like an opportunity to put it in the code of conduct.
Mr Lyle (ANC) said 1(d) of the code of conduct, the provision for the promotion of unity among traditional leaders, is redundant. Mr Komphela reminded him that it will still be changed.
The Chairperson asked the department to leave out the word "may" in 1(d).
The Chairperson said that he wants something said about disclosure. He asked the Committee for guidance.
The Chairperson asked if the code of conduct is allowing for provincial codes of conduct. Dr Bouwer said that they could not be as specific as in the code of conduct, and leave much discretion to the provinces. The chairperson enquired what was wrong with a code applying to all traditional leaders. He understood that from the department that some aspects would be left to the provinces. He asked if there would be one national code or six provincial codes.
Mr Titus said that it was a broad national framework. The provinces could take provincial particulars into account, but they could not subtract from it. Dr Bouwer said that the code of conduct was exhaustive, and that they could allow provinces to add to it. But, he was concerned about creating the impression with the Committee that provinces could create their own codes. He said the Bill already provided a framework to the provinces.
The Chairperson asked the department to provide a national framework. The Committee felt very strongly that there must be a national code, but in addition, provincial particularities should be allowed for. He gave the department until noon of the following day to come up with a draft national framework, otherwise he would do so himself.
Dr Bouwer said that the present clause 17 of the Bill refers to the disclosure of gifts. The Chairperson asked if it meant as determined further by provincial legislation. Dr Bouwer said replied in the affirmative.
Mr Ngubeni (ANC) asked, with clause 28 in mind, if the remuneration of traditional leaders would only be instated after the commission investigated their legitimacy. Mr Titus said it was dealing with the appointment of new headmen, it would have no retrospective effect. Legally it could not be done. Adv Nthai said there were appointments currently proceeding, according to the old legislation. The new legislation would provide for a process to deal with disputes, namely, the commission. If people were wrongly appointed in the past, they would be removed, and a new person appointed. Once that happened, that person must be paid.
Mr Komphela explained Mr Ngubeni's concern again. If the new legislation would lead to the mushrooming of new headmen, it would have financial implications. Mr Komphela asked if they would have an audit first, and then effect the remuneration. Mr Grobbelaar (DA) also stressed the financial implications.
Adv Nthai said he understood the Committee's concern. He said it could be dealt with outside the legislation. He said they had a situation where headmen were paid in some provinces and not in others. The headmen not being paid caused a lot of pressure. They also had many chiefs who were trying to create a lot of headmen under them, and this was also a serious financial concern. He was sympathetic to Mr Ngubeni's concern.
Mr Grobbelaar was concerned that this was a very serious matter, which would have major implications. Adv Nthai said it was a very serious matter, but it could be dealt with effectively outside legislation. Mr Ngubeni said he did not agree, but he would leave the matter. He remarked that they must be consistent. The Chairperson said he would mention the issue in the report to parliament. He asked the department to apply themselves regarding the practicalities of the issue. Mr Titus referred the Committee to clause 23(2)(a)(1), which gives the commission the power to investigate if there was any doubt.
Mr Komphela said the Committee must try to come back to this issue, with attention to two points: first, the remuneration of traditional leaders that is higher than the remuneration of councillors, and secondly, the large cost implication of a possible mushrooming of traditional leaders. He said they must not open the floodgates. The Chairperson said that he recognised the concern, but they must not make it a bigger problem than it is.
An outstanding issue for discussion was whether traditional councils should have input on the recognition of traditional leaders. Adv Nthai said that this could not be done. He said it could lead to problems. The Chairperson suggested that when there was a case where traditional leaders were being identified, traditional councils should be informed. Adv Nthai said it could not be done.
The Chairperson drew attention to SALGA and assured them that they were not going to be burdened with the financial obligations of the Bill.
The meeting was adjourned.
CODE OF CONDUCT; DRAFT PROVISIONS
1. On page 4, after line 11, to insert the following new definition:
"code of conduct" means the code of conduct referred to in section 28;
1 On page 6, in line 11, to omit paragraph (d) and to substitute:
(d) adhere to the code of conduct.
1. On page 10, from line 50, to delete subsection (2)
1. On page 13, after line 24, to insert the following new Clause to precede Clause??:
Code of conduct
27. (1) The code of conduct contained in the Schedule applies to every royal family,
traditional leader and traditional council.
(2) Applicable provincial legislation must at least provide for -(a) mechanisms to deal with any breach of the code of conduct; and
(b) fines that may be imposed for a breach of the code of conduct, and in respect of a traditional leader also other penalties that do not include the removal of the traditional leader; and
(c) an acting position during the period that a traditional leader is suspended for a breach of the code of conduct.
1 On page 14, after line 4, to add the following Schedule.
CODE OF CONDUCT
General conduct of traditional leader
1. A traditional leader must -
(a) perform the functions allocated to him or her in good faith, diligently, honestly and in a transparent manner
(b) act in the best interest of the traditional community or communities he or she serves;
(c) foster good relations with the organs of state with whom he or she interacts;
(d) promote unity amongst traditional communities, and may not embark on actions that would create division within or amongst traditional communities
(e) promote the principles of a democratic and open society; and
(f) give account of gifts??.
General conduct of traditional council
3. A traditional council must -
(a) perform the functions allocated to it in good faith, diligently, honestly and in a transparent manner
(b) act in the best interest of the traditional community it serves; and
(c) foster good relations with the organs of state with whom it interacts.