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LOCAL GOVERNMENT SELECT COMMITTEE
19 November 2003
TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL: NEGOTIATING MANDATES
Chairperson: Mr Mkhaliphi (ANC)
Traditional Leadership and Governance Framework Bill [B58B-03]
Negotiating Mandates (see Appendix)
Some provinces were concerned that Clause 3(2)(c(ii) may create a fourth sphere of government as it provides the possibility of political alignment as 40% of the representatives are elected. This may erode the principle underlying traditional leadership due to this political alignment. But the Department allayed these fears stating that Traditional Councils do not constitute another sphere of government since the Constitution is very clear that there would be only three spheres of government and referred them to Clause 4(4) which was inserted to expressly prevent this: "A traditional council and its resources may not be used to promote or prejudice the interest of any political party". Limpopo raised concern over the removal of a traditional leader noting that whether they are remunerated or not their office should be recognized for what it is. The Department reiterated that the new pay package comes with the responsibility to deliver hence the proviso that those who fail to deliver would be removed from the payroll. The Constitution in any case recognizes Traditional Leaders as public servants who must then deliver services according to their stated mandate.
The Joint Committee on the Improvement of the Status and Quality of Life of Women belatedly addressed the Committee on its position on the Bill as it believed that the gender imperatives in the Bill had not been addressed. It stated that Traditional Leadership is eminently patriarchal and has made women subordinate for a long time. The institution needs to be transformed to be in conformity with the Bill of Rights. It is important to include the provision on transformation in Chapter 2(2)(a) of the Bill to guide Premiers and MECs on the gender imperatives. The Bill of Rights supercedes custom and traditional practices that are inconsistent with constitutional principles.
The Chair asked each province to present its negotiating mandate on the Bill:
Report from the Eastern Cape
Ms Kondlo (ANC) for the Eastern Cape informed the House that the provincial legislature decided not to undertake public hearings on the Bill but consulted widely with departments of Housing, Local Government and Traditional Affairs. She noted that the province supports the principle of and substance of the bill. The province was concerned that Clause 3(2)(c(ii) may create a fourth sphere of government as it provides for inclusion of other members who are democratically elected and who must constitute 40% of the Council. This may erode the principle underlying traditional leadership as it may have political alignment. She referred to Clause 18(2) and proposed that the obligatory term "must" should be replaced with the term "may".
Mr Zam Titus, Advisor to the Minister, said that the concern raised by the province is legitimate and valid and that is why the Bill has been amended to include Clause 4(4) to supply clarity to the provision: "A traditional council and its resources may not be used to promote or prejudice the interest of any political party". He explained that Traditional Councils do not constitute another sphere of government noting that the Constitution is very clear that there would be only three spheres of government. Another constitutional principle is that traditional leaders enjoy autonomy to decide their own business without interference from the national government.
Ms Kondlo said she is satisfied with the explanation and would convey the position to her province.
Report from Mpumalanga
Mr Mkhaliphi said that the province after wide consultations and an in-depth discussion of the Bill agreed to support it without any amendments. He however proposed that the Traditional Leaders should subscribe to an oath of office that will be undertaken in public and that the Provincial House should confirm the authenticity of the custom and procedures in appointing their traditional leader of a community prior to the Premier taking a decision.
Mr Titus said that the issues raised by the province are crucial but that they all relate to the provincial legislature which would make such a determination as is appropriate for the proper functioning of the House of Traditional Leaders.
Report from the Free State
Ms Sandra Botha reported that the provincial Department of Local Government and Housing conducted public hearings on the Bill and thoroughly considered the inputs at the departmental level. She had been given authority to vote for the adoption of the Bill with a few suggested technical amendments.
Dr. Bouwer explained that Clause 2(2) makes a distinction of results that deal with recognition and that jurisdiction is not attached to the recognition of Traditional Leaders. Only the Council is mandated to deal with a particular geographical area.
Mr Titus said that Clause 3(3) covers the concern raised by the Free State. As for their proposal for Clause 4(1)(e) the Minster and the White Paper makes it clear that Traditional Leaders would influence policy both at the local, provincial and national spheres and that reference to government is deliberate in this regard.
Dr Bouwer referred to their proposal for Clause 26(2)(b) and noted that traditional affairs in some provinces are run by the Premier whilst in others it is the responsibility of the MEC. The Department did not wish to anticipate which functionary would deal with traditional affairs since it may not always be the Premier. Mr Titus said that it is a legal responsibility given by the Constitution that empowers the Premier to assign this duty to himself or any other member of the Executive Council.
Report from the Gauteng
Ms Kgaoli (ANC) outlined the process that the provincial legislature followed in approving the Bill. The Provincial Committee was fully briefed before it deliberated and considered the principle and detail of the Bill. It noted that the Bill has no financial implications for the province. Funding would be budgeted for by the National Government. The Committee supports the principle and detail of the Bill without amendments.
Mr Titus confirmed that indeed the Bill has no financial implications for the provincial government since National Treasury has set aside a budget for this.
Report from the Northern Cape
Ms Lubidla reported that the provincial committee "notes that the Bill is a framework and does not seek to recognize a particular indigenous community or grouping. The concerns that were raised by the leadership of traditional communities in particular the aspect that all indigenous communities should be recognized without exclusion of the other". She then tendered her mandate to vote for the Bill without amendments.
Mr Titus made the point that the Khoisan community was unique and that the process of consultation was in progress to re-look at their case with a view to coming up with a more comprehensive structure that would accommodate their concerns.
The Chair said the province had failed to acknowledge the work that had already been done and is in progress around the Khoisan question.
Report from Limpopo
Mr Mokoena (ANC) reported that the provincial committee had met the Department of Local Government and Housing on the 14 November 2003. It was briefed on the principle and the provisions of the Bill. The Committee having gone through the Bill supports it with the proviso that the extensive recommendations it has suggested should be serious considered. The Committee proposed amendments to the preamble, definitions and application and that under chapter 2(3)(2)(b) at least a third of the members of a traditional council should be women. The provincial committee was concerned about the exclusion of mention of other groups such as people with disability and the youth. The provincial committee also proposed amendments at Chapter 3 on the removal of Kings and Queens noting that even if these leaders are to be paid salaries, the throne and not the person must be recognized. The provincial committee asked for amendments to Chapter 4 on the Local Houses of Traditional Leaders where it proposed that the a structure that is going to coordinate traditional leaders in given districts should be established. Further amendments were proposed for Chapters 5 and 6. On the latter the provincial committee expressed concern at the level of public participation in traditional affairs. In most cases Traditional Leaders appear not to put emphasis on the phrase "my people" so as to appear to speak on behalf of the people but instead speak as individuals rather than representing the people.
Mr Titus said that the proposal on the preamble is valid and therefore accepted. He however noted that due to time constraints and given the fact that this is not a policy matter but a technical amendment, this should be included in the Committee's report so that it is taken on board at some later date.
Mr Maloyi (ANC) asked if the Department implied that due to time constraints the Committee would not be able to effect any amendments to the Bill.
Mr Titus clarified that what he said relates only to the clause in the preamble, which is basically a technical matter that does not offend the principle of the Bill.
Mr Titus referred members to the definition section, which he said more than adequately cover concerns raised by the Limpopo. On the question of the youth and people with disability it was decided that some matters need not be specifically provided for in every piece of legislation. The question of gender was included because the Bill aims at addressing the entrenched patriarchal system, which is a mischief that the law seeks to redress. In the olden days Traditional Leaders never used to be remunerated. The new pay package, however, comes with the responsibility to deliver hence the proviso that those who fail to deliver would be removed from the payroll. The Constitution in any case recognizes Traditional Leaders as public servants who must then deliver services according to their stated mandate. In any case removal of a Traditional Leader would be based on empirical medical evidence which would establish the inability to function. In addition it is the Royal Family that would make the final determination as to whether or not a given leader should be removed.
Report from the North West
Mr Maloyi said that their report is based on the initial briefing before the Portfolio Committee deliberated and made extensive amendments to the Bill. Therefore some of their concerns have since been addressed. He lamented the fact that the NCOP is almost always given very limited time to brief the provinces and deliberate on Bills. He asked the Chair to intervene on this critical issue. The provincial committee resolved at the initial briefing that when the Bill it at the negotiating mandate stage, it would be important to conduct public hearings to solicit the views of stakeholders in the province. He expressed regret that this activity was not carried out due to the manner in which the Bill has been rushed through.
Mr Titus in reply to the query raised in the North West Report noted that Traditional Councils would discharge functions, which were formerly undertaken by the disbanded Tribal Authorities. The Bill is very clear on the distinction between the King and a Traditional Leader noting that the former is senior to the latter. Chapter 7 of the Constitution states clearly that there are three spheres of Government and that municipalities are the government's ultimate delivery arm. The Traditional Councils would support local government in its governance structures. The question of budgets is implicit in Clause 6 in that the government cannot entrust a statutory body with functions without making provision for its budget. Some disputes - depending on their nature - go to the Public Protector whilst others are taken to court and still others may be resolved through the established traditional mechanisms.
The Chair noted that his office has already communicated to Parliament its displeasure with the time constraints the NCOP is subjected to during consideration of Bills.
Ms Kgaoli said she supports the concerns that have been raised around time constraints and that it is critical that these matters are addressed as a matter of urgency.
Report from the Western Cape
There was no delegate for the Western Cape but the Chair tabled its report, which essentially supports the Bill without amendments.
The Chair noted that there was no report from Kwazulu-Natal province and sought the views of the delegate from that province.
Mr Mathee (NNP) said he had been informed by the KZN office that there is no mandate from that province and that the matter had been discussed but no agreement was reached.
The Chair said it would have been better if that position were to be communicated in writing.
Ms Kgaoli agreed with the Chair and said that the delegate from the province should have made an appearance since they have been making submissions to the Portfolio Committee on this matter.
The Chair said the matter would be highlighted in the Committee's report to Parliament.
Mr Mokoena said that although the view of KZN on the matter of the Traditional Leadership Bill is well known it would have been better to get its written report.
The Chair said the Committee would meet on 26 November to receive the final mandate and asked delegates to transmit their feedback to provinces in time for them to prepare final mandates.
Joint Monitoring Committee on Improvement of Status and Quality of Life of Women input on the Bill
The Chair recognized the presence of the Chairpersons of the Joint Monitoring Committee on the improvement of the Status and Quality of Life of Women, Ms L Xingwana and Ms M Themba. He said the two Chairpersons are of course aware of the elaborate process of public participation that was undertaken at both the National and Provincial legislatures which process has since been concluded.
Ms Themba (ANC) said her Committee is ware of the lapsed timeframe for public submissions but as a committee of the House they still have a right to raise matters that had not been addressed. Traditional Leadership is eminently patriarchal and one that has made women subordinate for a long time. The institution needs to be transformed to be in conformity with the Bill of Rights. It is important to include the provision on transformation in Chapter 2(2)(a) of the Bill to guide Premiers and MECs on the gender imperatives. The Bill of Rights supercedes custom and traditional practices that are inconsistent with constitutional principles. The proposed one-third quota for women representation on the Leadership structures is inadequate since women have leadership rights and represent more than 60% of the rural population. This input should be brought to the attention of the provinces when members file their reports for the final mandate so that they can make their views on this specific issue known.
The Chair promised to consider the input from the Joint Committee on Women and Children on the basis of the rules of the House. He expressed doubt that the two Chairs would have been granted audience if they were not from a committee of the House. He regretted that the Joint Monitoring Committee had missed an "important train" by not appearing before the negotiating mandate process as the NCOP delegates could have communicated their concerns to the provinces.
Ms Xingwana (ANC) said her Committee has already raised this matter with the Portfolio Committee and the Deputy Minister.
Mr Mokoena proposed that the inputs from the Joint Monitoring Committee should be taken to the study groups for consideration before communicating the matter to the provinces.
Mr Maloyi undertook to take the matter to his study group and brief the provincial legislature according.
Mr Titus asked the Joint Monitoring Committee to tighten up its proposals in a manner that would specifically deal with areas they want to be included in the Bill. He asked them to separate concrete proposals from recommendations so that the Department is clear on the nature of their proposals. The Bill address gender issues in four sections and that it is therefore important to pinpoint which area the Committee is displeased with.
Mr Mattee reported that he has consulted the Chief Whip and been informed that KZN legislature has scheduled a meeting to get the final mandate.
The Chair noted the report from KZN and said the Committee looked forward to the promised final mandate.
The meeting adjourned.
Gauteng, Northern Cape and Western Cape all support the Bill without amendment
NORTH WEST PROVINCIAL LEGISLATURE
a. Chapter 1 provides for interpretation and administration of the Act. There is no differentiation between tribal authorities and traditional councils. There is no distinct clarification between a chief and a king.
b. Chapter 2 sub-section 4(1a) provides for the functions of traditional councils. It is not mentioned whether there will be a clear distinction between developments to be carried by traditional councils versus developments by local government and whether funds will be made available for this.
c. Chapter 2 on the partnership between traditional Councils and municipalities it is not mentioned whether traditional councils will be given budget to enable them to can carry out development in their areas as municipalities.
d. There are no legal mechanisms in place, to refer to when there are disputes between municipalities and traditional council.
e. The Act seems to be contradicting the constitution because the Act talks about traditional councils whereas the Constitution refers to tribal authorities.
f In chapter 6 the act does not indicate whether traditional leaders will be represented in the Commission on Traditional Leadership Disputed and Claims.
g. A concern was raised about terminology that has being used throughout the Bill, which has contradictory meaning
The Committees and the Executive of the House of Traditional Leaders raised the above concerns, which must be taken into considerations in the final stages of this Bill.
The committee resolved that since this was the initial briefing, when the bill reaches a stage when mandates are needed, it would be then important to conduct public hearings to solicit the view of stakeholders regarding inputs which will be suitable for the province.
MPUMALANGA PROVINCIAL LEGISLATURE
Office of the Speaker
The Portfolio Committee on Local Government, Traffic, Housing and Land Administration ( the Committee) met for a briefing on Traditional Leadership and Governance Framework Bill [ B58B-2003] (the Bill ) by the Legal Services Unit of the Mpumalanga Provincial Legislature. Present at the meeting was Mpumalanga House of Traditional Leaders and the Department of Local Government, Traffic Housing and Land Administration .
After consideration of the Bill, the Committee supports the Bill without any amendments and attach inputs from the Mpumalanga House of Traditional Leaders
The permanent delegates representing the Province of Mpumalanga in the National Council of Provinces are conferred with authority and mandated to vote in favour of the Bill.
Mr SIPHO WILLIAM LUBISI
SPEAKER : MPUMALANGA PROVINCIAL LEGISLATURE
INPUTS TO THE TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK Bill, 2003[B58-2003]
The Mpumalanga House of Traditional Leaders hereby submit to the committee as follows:
Clause 9 is hereby amended by the substitution and addition of the following:
Recognition of Kings /Queens
Traditional leaders should subscribe to an Oath of office that will be undertaken in public
[this is not adequately covered in the code of conduct]
The Royal family must within two months and per their custom [within reasonable time] after the need arises ...( line 19 page 8 and line 30 page 9 of the Bill)
Insertion of the following in clause 9 (a)
(dd) Request the National House of Traditional Leaders to confirm the authenticity of the custom of the said community prior to him /her taking a decision.
Clause 11 should be amended to read:
The Premier of the province may request the Provincial House to confirm the authenticity of the custom and the procedures in appointing the said senior traditional headman or headwoman.[The provincial house cannot only be informed but should actively take part in ensuring that the dignity of the custom Traditional Leadership is protected this applies to both recognition and withdrawal ] line 10 page 10 , line 53 page 10 , lines 21 of page 11, line 43 of page 12
The House of Traditional Leaders are recognised accordingly but the Bill does not cover the linkages of the Houses in terms of Local Provinces and National . The addition of the following is proposed:
The provincial House shall oversee the establishment and proper functioning of the Local House of Traditional Leaders.
The inclusion of the above mentioned will make it possible for the Provincial Legislation to cover in details the functions that the House should perform in meeting their obligation . It is therefore important that Houses of Traditional Leaders should take an active role in the governance process and not only be informed of the decision taken
OFFICE OF THE SECRETARY
1.2 The committee agrees with additions in the preamble and supports them
(a) C1ause 1- DEFINITIONS AND APPLICATION
The committee supports this clause fully. However we are of the view that there is one definition that was supposed to have been included under this clause
b) Royal Council - we propose that it be defined e.g. "Royal Council" means : the core customary institutions or structure consisting of a selected immediate relatives of the ruling family...
(c) This is proposed to differentiate between the Royal family which is any person related to that traditional leader viz. Royal Council that consist of only selected members of the Royal family who performs some specific tasks on behalf of the Royal family.
4.3 Chapter 2 (3) (2) (b) states that "At least a third of the members of a traditional council should be women". The Committee was concerned about the exclusion of other groups like people with disability and the youth. It is the conviction of the Committee that these groups should also be included in traditional leadership and governance.
Clause 3- (2) (c) (ii) We support this c1aue even though we would prefer it to remain as it was initially.
(a) This '15 the only platform given to this constitution to do some work.
(b)In any community you have CDF that caters for all the requirement as stated in 3 (2) (c) (ii) .
(c) We suggest that this clause be relooked again.
(d) Our proposal is that the percentage be 70 & 30 democratically elected,
4.4 Clause 5 - This clause is fully supported . We can only encourage government to urge municipalities to implement this clause to give effective to the co-operative governance . The Bafokeng and Rustenburg municipalities is the case in point.
5. Clause 10 - REMOVAL OF KINGS AND QUEENS
(a) Clause 10 (1) (b) - We propose that this sub-clause be deleted,
(b) We cannot equate Traditional Leaders with Civil Servants.
(c) Even if they will be paid a salary , we must recognise the Throne not the person
(d) This provision is an insult to the Institution
(e) This provision might be abused by those who are aspiring to be traditional leaders
(f) Whatever task to be performed by a traditional leader, he or she is doing that in Council
6. Clause 11-
This clause is supported because it gives the Royal family or Royal Council to identify the person who is suppose to succeed or be appointed a traditional leader in that particular tribe.
Unlike before where traditional leaders were identical and appointed by chief ministers.
7. Clause 12 - (i) (b) This clause must be deleted for the same reasons given to clause 10 (i) (b) in the same chapter
8. LOCAL HOUSES OF TRADITIONAL LEADERS
- Clause 17- We propose that a structure that is going to co-ordinate traditional leaders in a given district to be established
- After doing away with the Regional Authority , there is no co-ordinating structure for traditional leaders in that level
- We do not think it was the intention of the Legislator to leave a vacuum and not to provide an alternative structure for the smooth transition . Let this be looked at.
9 REFERRALS OF BILLS TO NATIONAL HOUSE OF TRADITIONAL LEADERS
Clause 18 - (I) (a) - in line 45 to omit - " by the secretary to Parliament" . This is procedural matter and need not be emphasised.
10 Clause 20 - (I) is fully supported and hope provinces will legislate accordingly
11. DISPUTE RESOLUTION AND COMMISSIONS ON TRADITIONAL LEADERSHIP DISPUTES AND CLAIMS
(a) Clause 21, 22, 23, 24, 25 and 26 are fully supported to deal with instances whereby many traditional leaders were removed from their throne because it was believed they were not supportive to the previous regime.
(b) It will assist in removing traditional leaders who were wrongfully elevated even though they did not qualify .
12. Clause 29 - this clause is supported because traditional leaders in the local house will also be covered by the "Remunerations of Public Office Bearers Act , 1998 ( Act No20 of 1998)"
13. The Committee was concerned about the level of public participation in the traditional affairs in certain instances , traditional leaders , appearing in public creates the impression that they speak as individuals rather than representing their people . Mostly Traditional leaders seem not to put emphasis on "Batho ba ka - My people " to show that they speak on behalf of their people.
The Committee having gone through the Bill supports the Bill with the proviso that recommendations above are given serious consideration . A mandate is therefore conferred to NCOP Permanent Delegates to support the Bill as amended
HON.VAN SCHALKWYK S.
FREE STATE LEGISLATURE
PORTFOLIO COMMITTEE ON LOCAL GOVERNMENT AND HOUSING
The Committee considered amendments to the Bill and further effected the following amendments:
Clause 2 (2)
Page 5 line 58 after '"community" to insert "within a defined area of jurisdiction"
Motivation: The definition of "area of jurisdiction" applies to both traditional communities In clause 2 as well as traditional councils in clause 3. See clause 3(3) in line 34.
Clause 4(1) (e)
Page 6 line 46 to delete "government' and to substitute "municipalities"
Motivation: The word government is wide and may cover other spheres of government that are not intended in this clause.
Page 16 line 55 to delete "provincial government' and to substitute Premier"
Motivation: If clause 26(2)(a) at national level refers to President and not national government clause 24(2)(b) should also refer to Premier and not provincial government.
The Committee recommends that:
Authority be conferred to the Free State Delegation to vote for the adoption of the Bill with aforementioned amendments-
Ms A. Buthelezi
Chairperson : Local Government and Housing Committee
Free State Legislature
EASTERN CAPE PROVINCIAL LEGISLATURE
REPORT OF THE STANDING COMMITTEE TRADITIONAL AFFAIRS
The Committee resolved that:
The following negotiating mandate is conferred:
(1) To support the principle and material substance of the Bill
(2) The Province has however an apprehension that clause 3(2) (c) (ii) may create a fourth sphere of government as it provides for the inclusion of other members who are democratically elected arid who must constitute forty (40) per Cent of the Council
This in the opinion of the Province may erode the principle underlying traditional leadership as it may have political alignment.
(3) The Province further proposes that clause 18(2) be amended to read as follows:
A provincial legislature or a municipal council (may) must adopt the same procedure referred to in subsection (1) in respect of the referral of a provincial Bill or a draft by-law to a provincial House of Traditional Leaders or a local House of Traditional Leaders as the case may be.
(4) To recommend that the Miss N Kondlo be designated as a delegate of the Province to attend the inter provincial negotiations on Wednesday presentation.
Mr A. Manyosi
Chairperson: Standing Committee On Traditional Affairs