Customary Initiation Bill; Recognition of Customary Marriages Amendment Bill: public hearings

Police Oversight, Community Safety and Cultural Affairs (WCPP)

22 September 2020
Chairperson: Mr R Allen (DA)
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Meeting Summary


Recognition of Customary Marriages Amendment Bill
Customary Initiation Bill

In its virtual public hearing on the Customary Initiation Bill [B7B-2018], the Committee heard from the Western Cape Government  that it had 11 concerns about the Customary Initiation Bill. Not all the challenges identified in the 2015 draft policy had been addressed. The Bill referred to single use of surgical instruments only for children and not for adults. The Bill is contradictory about the age of initiates. Obtaining the consent of the mentally handicapped is not addressed nor the confidentiality of the medical certificate for the pre-initiation screening. The Bill does not detail what constitutes genital mutilation and virginity testing. The Bill does not address the remoteness of initiation schools as an obstacle for emergency medical services. The Bill does not consider differences in initiation practices such as that of the Khoi-san. The Bill needs to be aligned with the Children’s Act. The Bill did not explicitly provide for better cooperation between provinces.

Chief Nokwaza, Principal Traditional Leader of the Nguni People in the Western Cape Province, said that traditional leaders were not recognised in the Western Cape and the Bill should be amended to allow for communities practicing initiation to be part of decision-making on a provincial level. While there is no opposition to representation being at a national level only, the dynamics of the province would not be understood. He pointed out that initiations in the Western Cape are successful with no traumatic experiences leading to death. The experience and expertise gained by these communities could be lost if there is no participation in the relevant structures.

The National Department of Traditional Affairs was present but said it could not comment at this stage as it might lead to undue influence in the legislative process. The Western Cape Department of Local Government was not present to comment on progress in the recognition of Western Cape traditional leaders.

Members asked for clarity on the Bill’s alignment with the Children’s Act and about the non-recognition of traditional leaders in the province. The Chairperson said he would attempt to gain clarity on the recognition of Western Cape traditional leaders before the Committee met to consider its Negotiating Mandate.

There were no submissions on the Recognition of Customary Marriages Amendment Bill. The deadline for written and voice note submissions on both Bills is 28 September. The Committee’s meeting on its negotiating mandates is set for 30 September.

Meeting report

Chairperson introductory remarks
The Chairperson thanked Members for taking time during their busy constituency period to attend the meeting. He looked forward to a productive virtual public hearing. Under the current circumstances it is still vital to communicate to the public about the Bills before the Committee. To solicit public participation, as resolved by the Committee, the meeting was advertised in print news, through extensive outreach, correspondence to stakeholders within the relevant sectors of the Western Cape, the WCPP social media platforms, the WCPP website, and media alerts. As discussed, the advertisement was sent to certain municipalities, to sub-council level as well as ward committee level to have meaningful public participation.

The Committee’s permanent NCOP delegate has tendered an apology.

Customary Initiation Bill: public hearings
The Chairperson said he was delighted to have the National Department of Traditional Affairs that dealt with the Customary Initiation Bill present. The Committee had received a briefing from the Department of Traditional Affairs on 15 July. The Department was present to consider questions of clarity by Members or by any guests on the platform.

The Chairperson said that submissions would be heard from the Western Cape Government and Chief Nokwaza. He enquired if anyone else on the platform would be making oral submissions as several members of the public had reached out to the Procedural Officer. It was established that no further oral submissions were to be made.

Mr Waseem Matthews, Committee Procedural Officer, said that the deadline for written submissions extends beyond this public hearing to 28 September.

Western Cape Government submission on Customary Initiation Bill [B7B-2018]
Ms Clara Williams, State Law Advisor: Legislation at Legal Services, Department of the Premier, accompanied by Department of Cultural Affairs and Sport representatives – Ms Jane Maluleki Director for Art, Culture and Language Services: Department of Cultural Affairs and Sport, presented the Western Cape Government’s concerns with the Bill.

In 2015 the Department of Traditional Affairs Draft Policy on the Customary Practice of Initiation in South Africa identified challenges which have not been dealt with in the Bill. This includes the single-use of surgical instruments for children yet some initiates are adults; the remoteness and inaccessibility of initiation schools are an obstacle for emergency services and there are insufficient provisions for obtaining consent from mentally handicapped initiates unable to legally consent to attend an initiation school. The policy had stated that initiation school principals should refuse a child to undergo initiation if it was their view that the child was not yet physically or mentally ready for initiation or was unwilling to consent to initiation. Initiates with disabilities were not sufficiently covered by the Bill.

The Bill refers to the Traditional Leadership and Governance Framework Act which has been repealed by the Traditional and Khoi-san Leadership Act which has not yet commenced but is imminent.

The briefing by the Department of Traditional Affairs referenced amendments but these have not been provided. It is unclear if such amendments will consider the recognition of Khoi-san leaders and communities. Some Khoi-san communities in the Western Cape attend traditional customary initiation schools. Khoi-san specific cultural initiations differ from traditional customary initiations and the Bill should state that it does not apply to those.

The initiation forums which have been established as the relevant bodies to consult with should be allowed to sit on the Provincial Initiation Coordinating Committee. The Western Cape does not have recognised traditional leaders and the tasks of traditional leaders must be executed by the initiation forums or local initiation structures established in the province.

The National Health Act empowers the Minister of Health to prescribe conditions for the circumcision of a person as part of an initiation ceremony. The National Environmental Health Norms and Standards for Premises and Acceptable Monitoring Standards for Environmental Health Practitioners set out standards for initiation and circumcision schools. The Minister of the Department of Traditional Affairs should be made aware of this power of the Minister of Health and reference should be made to the National Environmental Health Norms and Standards for Premises and Acceptable Monitoring Standards for Environmental Health Practitioners.

The Bill contains conflicting provisions on the age of initiates. It is unclear if initiates must be children or if they can also be adults. It is important that the Bill is aligned to the Children’s Act in all respects where children are involved.

The briefing by the Department of Traditional Affairs indicated that an HIV test is to be conducted for a pre-screening medical certificate. This was not indicated in the Bill. Questions arise about the confidentiality of the certificate’s information – may parents/guardians see the certificate and which persons at the initiation school may see it? If an initiate tests HIV positive the Bill should indicate who will be privy to that information. Section 133 of the Children’s Act on the confidentiality of a child’s HIV status should be complied with. The Bill should indicate which tests must be conducted for the medical certificate.

The Children Act obliges any person to report if there has been abuse of a child and the Bill is not very clear about that. The Bill specifically states that there must be evidence of abuse. The onus is different from that of the Children Act. Children are protected in the Children Act where there are only allegations of abuse. Even if there is no evidence, that abuse must be reported.

The Bill should provide for better cooperation and collaboration between provinces. It is unclear if an initiate can cross provincial borders to attend an initiation school with a medical clearance certificate from another province.

The genital mutilation prohibition in the Bill is limited to the removal of genitals or parts thereof. Other harmful practices and injuries are excluded, such as the deflowering of girls with blunt tools by older women. The Bill should protect against these injuries.

The Bill does not contain a definition of virginity testing or substantive provisions dealing with it.

The Bill does not refer to types of abuse other than physical and mental abuse such as sexual abuse. The grounds of discrimination in the Bill should be set out as in the Constitution.

The Bill lacks timeframes within which the Minister must act thus making it difficult to enforce the Minister’s compliance with responsibilities within a reasonable period.

Chief Lungelo Nokwaza submission
Chief Lungelo Nokwaza, Principal Traditional Leader and Chairperson of the Nguni People Council, Western Cape Province, said the Bill in clause 11 makes provision for the establishment of Provincial Initiation Coordinating Committees which must consist of representation from the Houses of Traditional Leaders. However, the Nguni traditional leadership in the Western Cape is not covered by the legislation recognising traditional leaders nor is there a Western Cape House of Traditional Leaders.

He proposed that the Bill should include an insertion into clause 11 that recognises communities practicing cultural/customary initiation in the Western Cape. This clause should state that two members are to be appointed by the Premier in consultation with the traditional leadership of communities practicing cultural initiation. These two members must be persons that have undergone cultural initiation with unquestionable authority and clout to speak on behalf of the custodians of cultural initiation within the Western Cape.

The Western Cape Provincial Government should enact cultural initiation legislation that vests authority in the Premier of the Western Cape to determine, through consultation with the traditional and cultural leadership of communities that practice customary initiation, how they will be represented in the Provincial Initiation Coordinating Committee or a related structure that is agreed upon to serve the same purpose.

The lack of direct participation by communities practicing initiation in the Western Cape within the Provincial Coordination structure means that these communities are excluded. This is against the principles of ensuring the inclusive participation of traditional communities in whatever affects them. There is no opposition to having only representation from the National House of Traditional Leaders; however, the dynamics of the province will not be understood. Initiations in the Western Cape have been successful without any traumatic experiences leading to death. Excluding the community from participating in the Coordinating Committee could mean that the experience and expertise gained by it could be lost.

The Chairperson thanked Mr Sithole and his team from the Department of Traditional Affairs was thanked for being present. He requested their input on the concerns raised in the submissions.

Mr D Van Der Merwe, Deputy Director, National Department of Traditional Affairs, said that the legislative process excludes the Department from responding to the submissions at this stage as it would not want to be seen to influence the process. These submissions will require the Department’s input when the suggested areas in the Bill are redrafted in the Negotiating Mandate. However they would gladly receive feedback through the Committee process and deal with that as instructed to do so.

The Chairperson understood the Department’s position and asked Members for their questions.

Mr M Xego (EFF) sought clarity on the concern that there is a non-recognition of traditional leaders in the province. The understanding was that the President signed the Traditional and Khoi-san Leadership Act last year which gives recognition to the Khoi-san people in the Western Cape. The submission indicated no progress for a house of traditional leaders for this province. Has Covid-19 delayed its formation?

Discussions on the cultural and traditional affairs in the province entail the involvement of recognised structures by the government and communities. Chief Nokwaza stated there is a challenge in the recognition of the Nguni people in the province. How will this be dealt with? There are Nguni people of origin in the Western Cape; what is the way forward?

Mr G Bosman (DA) asked Ms Williams to elaborate on which provisions of the Children’s Act needed to be aligned with the Bill.

Ms Williams replied that the new Traditional and Khoi-san Leadership Act has not commenced yet. At provincial level, the Western Cape Government has nothing to do with that commencement process as the President would have to proclaim the Act’s commencement date. After commencement, the Act itself would have processes that need to be followed. A Council will be established to deal with recognition for the first five years after enactment and thereafter recognition will become a provincial responsibility done by the Premier. The Western Cape Department of Local Government would be dealing with this at provincial level, but it was unfortunately not present at the meeting to provide clarity on the Traditional and Khoi-san Leadership Act.

On the alignment of the Bill with the Children’s Act, the written submission elaborates on this. To provide an example, section 133 of the Children’s Act specifically deals with the confidentiality of the HIV status of children and this should be aligned in the Bill for child initiates. This is to ensure the confidentiality of an HIV positive child initiate.

The Children’s Act also obliges anyone to report any abuse of a child while the Bill is not clear on this. The Bill has two clauses dealing with the reporting of abuse, one of which expressly states that evidence of abuse is required and not the possibility of abuse. This differs from the Children’s Act where children are protected where there are mere reported allegations of abuse and no evidence of abuse. There are other sections in the Children’s Act providing better protection to children and the Bill should be aligned to them.

The Chairperson said the Procedural Officer would make available all written submissions to the Committee. Once all submissions are received, he would develop a matrix of comments to conclude the Committee’s Negotiating Mandate on 30 September.

The Chairperson asked for further input and questions from the Committee and members of the public but there was none. The Department of Cultural Affairs and Sport (DCAS) and the WCPP Legal Unit also had no further comments.

The Chairperson thanked the Department and Chief Nokwaza for their submissions.

Recognition of Customary Marriages Amendment Bill [B12-2019]
The Chairperson noted the National Department of Justice and Constitutional Development had provided a briefing on this Bill on 16 July. The Department of Justice has indicated to the Committee that due to it being short-staffed it was unable to provide an overview of the Bill at this hearing. The Committee has already been briefed on the Bill and the Bill has been circulated to the public for comment. The Committee’s permanent NCOP delegate has tendered an apology.

The Chairperson called for submissions on the Recognition of Customary Marriages Amendment Bill.

The Committee Procedural Officer explained that there was no one present to speak and while interest had been shown, submissions have not yet been received.

The Chairperson requested a 10-minute break to allow extra time for submissions by persons who may log in late to the virtual hearing.

After reconvening from the break, it was noted that no submissions had been submitted. The Chairperson reminded everyone that written submissions are open until 28 September.

Committee programme
The Chairperson requested the Procedural Officer to detail the process for the following week.

The Procedural Officer said that the next stage would be the Negotiating Mandate. The logistics of where Members would be seated for the meeting are to be finalised as the meeting will be held both physically and virtually. The meeting will be virtual to allow openness.

All the submissions will be made available to Members dependent on further input received. The MS Teams folder would be updated for Members to access all submissions. The deadline for the submissions included a WhatsApp line for Voice Notes and the line was still active. It depended on how many Voice Notes were received. It was quite a short time between the deadline and the Negotiating Mandate meeting but he would update the MS Teams folder as quickly as possible so Members could have access to the raw submissions in the absence of him being able to summarise them immediately.

The Chairperson indicated that the Committee’s options for the following week are to support the Bill or not support the Bill and propose amendments in the Negotiating Mandate. Members were encouraged to peruse and consider submissions made thus far and any further incoming submissions.

The WCPP Legal Advisors were asked if they had any comments but they did not.

Mr Bosman asked if the Chairperson would send a press statement to inform people to make their written submissions.

The Chairperson appreciated Mr Bosman’s suggestion. The Chairperson agreed to work with Procedural Officer to arrange for a press statement requesting comment from the public either in the form of voice note submissions or written submissions.

Mr M Kama (ANC) sought clarity on Mr Xego’s question on the recognition of traditional leaders in the Western Cape considering that this influences how initiations would be coordinated moving forward. He understood the clarity provided by Ms Williams that the Act has no commencement date yet. However, he sought clarity from Western Cape Department of Local Government on how far they are in that process.

The Chairperson said that he would attempt to gain clarity and the Committee would be able to make submissions on this in the Negotiating Mandate.

The Chairperson thanked everyone and adjourned the meeting.


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