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PROVINCIAL AND LOCAL GOVERNANCE PORTFOLIO COMMITTEE
21 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
The Committee raised concerns about some possible inconsistency between the traditional leadership Bill and the Communal Land Rights Bill. It was decided that since the Communal Land Rights Bill was at the draft stage members should peruse the Bill to determine whether its passage would significantly impact the current process. The Committee also revisited the issue of gender parity in the Bill with some members suggesting some gentle communication urging traditional leadership to transform. Other members were of the view that a prescriptive formulation would present difficulties at the enforcement level.
The Chair informed the Committee that in spite of the diligent work that had been accomplished on the Bill there were some pertinent issues that were still outstanding. He added that it was unlikely that a vote would be taken in the current meeting as earlier planned. He explained that some people had raised some serious concerns about the impact of the Communal Land Rights Bill that was in the pipeline. He suggested that the Committee take time to afford some thoughts around the possibility of inconsistency between this Bill and the Communal Land Rights Bill.
Mr. Durand (NNP) objected to the postponement of the vote noting that he would not be able to come back to Cape Town until 23 October 2003 when deliberations on the Property Rates Bill commenced.
The Chair made the point that the only outstanding business was the Property Rates Bill after which the House would take the next session from 10 November 2003.
Mr Mbongeni (ANC) agreed with the Chair that the vote on the Bill should be deferred to give members ample time to assess the likely implication of the up and coming Community Land Rights Bill.
Mr. Durand observed that the impression he formed after reading newspaper reports was that the Communal Land Rights Bill would not impact on the spirit of the Traditional Leadership Bill.
Mr. Komphela (ANC) agreed with the Chair that voting should be deferred noting that it was not only expedient but that it was necessary to tighten up the current Bill before a vote could be taken.
Mr. Solo (ANC) concurred with the Chair that some provisions in the Communal Land Rights Bill did in fact directly touch on the provisions of the Traditional Leadership Bill. He vouched for a deferment on voting noting that there was need to ensure that the two Bills complement rather that conflict with each other.
Mr. Zama (Department) made the point that the Communal Land Rights Bill had been amended and to a large extent incorporating provisions of the Traditional Leadership Bill. He added that this particular area posed a challenge especially when dealing with issues of how to define the institution of Traditional Councils.
The Chair suggested that members first peruse the gazette version of the Bill so as to facilitate a meaningful engagement with the matter.
Mr. Durand said that from what the Chair had said it would not be practical for the Committee to take the vote on 22 October 2003 as earlier proposed.
The Chair ruled that the matter should be put in abeyance to give the House time to run through the Bill before making a determination as to whether to consider the matter or not.
Mr. Hlengwa (IFP) wondered how the Communal Lands Rights Bill which he understood still to be in draft form would be useful to the debate around the current Bill.
The Chair said he would find time to peruse the Communal Land Rights Bill to determine if it was necessary for the Committee to expend time on its implications. He then asked Dr. Bouwer to take the House through the newly tabled proposed amendments.
Dr. Bouwer made the point that the Long Title of the amendments had been refined to bring it in line with the previous amendments so far. He added that the other amendments were either of typographical nature.
Mr. Mbongeni sought clarity on the situation where a community who had migrated to the urban centre decided to elect one of their own as a leader, whether such a person would be recognised as a traditional leader.
Mr. Zama expressed doubts that people who had migrated from their ancestral land would be accorded recognition as a traditional community in terms of the Bill.
Mr. Durand asked what the position would be where the migrant communities sought recognition as a traditional community under the terms of the Bill.
Mr. Hlengwa expressed concurrence with Mr. Zama's position that the area of jurisdiction was the deciding factor in terms of recognition and that once people had migrated then recognition would not be accorded.
Mr. Zama explained that the scheme of the Bill was to do away with community authorities that had moved away from their roots and that all these factors have been dealt with in Clause 2 - Recognition of Traditional Communities.
The Chair revisited the question of gender parity and noted that although this was a policy issue there was need to look at a provision that was not unduly prescriptive but one that was suggestive of the direction for the future.
Mr Durand cautioned that care should be taken not to break traditional structures that had been in place for many years. He suggested instead that a long term plan to point to the way forward was preferred.
Mr. Mbongeni acknowledged the fact that the question of gender parity was a very sensitive matter and one that called for the cautious approach. He cautioned against promulgating hasty measures that would be difficult to enforce.
Mr. Komphela observed that the House had been avoiding the volatile question of gender parity in the traditional leadership structures which was unhelpful. He challenged members to confront this issue in order to state clearly that there was no room for the maintenance of the present status quo.
Mr. Sithole (ANC) made the point that as a matter of principle it should be clear how to enforce compliance with gender representativity. He expressed fear that were the matter to be left open it was unlikely that it would be implemented any time in the near future.
Mr. Solo expressed the view that the spirit of the Bill was very clear in suggesting the move toward gender parity. He cautioned against a rigid order that might be difficult to enforce in the long run.
Mr. Hlengwa asked members to bear in mind that they were dealing with an institution that had a long history and that any sudden inflexible regulations and rules would be viewed as unsavoury by traditional authorities.
Mr. Mbongeni sought clarity on how legally acceptable it was to make provision in the Bill against discrimination on grounds of gender when electing a traditional leader.
Mr. Zama replied that although the Constitution prohibited discrimination on the basis of gender it stopped short of prescribing a line of succession in traditional leadership. He proposed to tighten the preamble in a manner that would clearly communicate where we were coming from and the direction for the future. This would alert the traditional leadership on the urgency of transforming their institutions with time.
Dr. Bouwer agreed with Mr. Zama's suggestion and added that the preamble should be expanded to introduce the centrality of the question of gender representativity.
The Chair agreed with the proposed adjustments to the preamble but suggested that the matter should be deferred until the next session to allow members time to ponder over whether it was necessary to incorporate a gentle influence on gender representation.
Mr. Zama was of the view that the matter should be left where it stands until the Constitutional court was approached to adjudicate on the same.
The Chair referred to subsection 9(1)(a)(ii)(aa) and made the point that where a King or Queen is recognised the President and the Premier are informed. He suggested that the very same procedure should also apply to the scenario at subsection 10(2)(a) where such recognition is withdrawn.
Mr. Mbongeni noted that there were numerous inconsistencies in the Bill and suggested that the drafting team be allowed to thoroughly peruse the Bill with a view to clean it up before the Committee could take the vote.
The Chair concurred with Mr. Mbongeni and asked the subcommittee of the Committee to hold a brief session in the afternoon to sort out some outstanding issues.
The meeting adjourned at this juncture.