Municipal Structures Amendment Bill; Customary Initiation Bill: negotiating mandates & department response; with Deputy Minister

Meeting report

Political overview
Deputy Minister of Cooperative Governance and Traditional Affairs (COGTA), Mr Obed Bapela, said the Municipal Structures Act has been in public dialogue for over five years. It was targeted as a Section 75 Bill, then it went to court and the court turned it into a Section 76 Bill.

There were consultations which went through to provinces and the National Council of Provinces (NCOP). The Department is now compliant with the court order.

The clauses, which deal with the issue of municipal officials in office, are tabled. It will be important to see what provinces suggest around that Bill.

Members discussed various clauses and considered when the Traditional and Khoi-San Leadership (TKLB) Bill becomes law, section 81 of TKLB will replace section 81 of the Municipal Structures Bill.

The Customary Initiation Bill deals with the African value system. African communities continue to practice initiation. These values must be protected according to the Constitution. Colonialism affected some of the culture of African communities. This is also to certify to all those cultures, it is part of the new South Africa being built. Safety is an issue, children are dying in initiation schools, the culture is being hijacked, and there is commercialisation of culture. These are some of the matters the Department wants to address in this Bill. Children must be able to go through the process of boyhood to manhood without dying. The Bill also deals with wrongdoing which is happening.

Provincial Negotiating Mandates: Local Government: Municipal Structures Amendment Bill
The Eastern Cape voted in favour of the Bill within certain parameters.

The Free State voted in favour of the Bill with amendments.

KwaZulu-Natal voted in favour of the Bill and had no amendments.

Limpopo voted in favour of the Bill with certain amendments.

Mpumalanga, Northern Cape and North West supported the Bill with no amendments.

The Western Cape supported the Bill with amendments.

Local Government: Municipal Structures Amendment Bill [B19-2018]  Consolidated comments & Department response
Dr Kevin Naidoo, Executive Manager: Municipal Governance, COGTA, took the Members through the a consolidated report on the proposed amendments from the provinces on the Bill.

Mr Granville Abrahams, Senior Manager, Electoral Matters, Independent Electoral Commission (IEC), shared in presenting the document.

[please see attached document for the consolidated list of proposed amendments from the provinces]

Ms Fatima Ebrahim, Parliamentary Legal Advisor, was provided with an opportunity to provide her views on the consolidated amendments from the provinces. She agreed with the Department but felt there should be further consequential amendments on the definition on the code of conduct to complete the transition

Discussion
The Chairperson said Parliament is going to have another deliberation to consider a “C list” from the Department before it adopts the Bill.

Ms S Shaikh (ANC, Limpopo) observed there was a lot of clarification on various comments made. She is comfortable with the explanation given by the Department on the various comments regarding the Bill.

She asked about clause seven, which deals with the determination of the number of Councillors. She asked for the Committee’s comment on this.

The Deputy Minister said the mandate comes from the provinces. He was specifically referring to clause 17, and section 18. This section is number three on the mandates proposal, for the role of traditional leaders. The provinces wish to strengthen this.

The proposal is not supported as when the Traditional and Khoi-San Leadership (TKLB) Bill becomes law, section 81 of the TKLB will replace section 81 of the Municipal Structures Bill. This section will be sufficient to give meaningful space to provinces, to address its issues regarding lack of participation, or no participation. It will allow traditional leaders to be more embroiled.

Provincial Negotiating Mandates: Customary Initiation Bill [B7-2018]
The Eastern Cape voted in favour of the Bill.
 
The Free State voted in favour of the Bill with amendments.

The Gauteng province voted in favour of the Bill subject to its recommendations being considered.

KwaZulu-Natal voted in favour of the Bill with amendments.

Limpopo voted in favour of the Bill.

Mpumalanga voted in favour of the Bill with proposed amendments, and also consider the views of the community members, as contained in the Committee report.

Northern Cape voted in favour of the Bill and did not have any recommendations.

North West votes in favour of the Bill.

The Western Cape voted in favour of the Bill with amendments.

Customary Initiation Bill [B7-2018] Consolidated comments & Department response

Dr Rinaldi Bester, Chief Director: Policy and Legislation, Department of Traditional Affairs (DTA), took the Members through the consolidated report on the proposed amendments from the provinces on the Bill.

[please see attached document for the consolidated list of proposed amendments from the provinces]

Ms Phumelele Ngema, Parliamentary Legal Advisor, said there was no objection raised regarding any of the points made.

After the C list there will be amendments to clauses one through to five, clauses 15, 21, 22, 24, 28, 30, 31, 32 and 33. Most are inconsequential amendments which means the Committee will adhere to what is already proposed in the TBLK Bill, and has not been put into implementation by giving a commencement date. It is prudent those amendments be made, considering there is legislation to this effect.

There must be quality controls to ensure everything is properly referenced.

Discussion
Co-chairperson Shaikh asked for Members views regarding the ban on alcohol in initiation schools.

Section 10 of the Liquor Act provides a guardian or anyone responsible for a minor, may at a certain time supply a certain amount of liquor for a specific traditional purpose, under supervision of the guardian. It is a matter the Department was asked for guidance on.

Ms M Aphiri (ANC, Limpopo Legislature) noted a problem with initiation schools being put anywhere, because it is a private ceremony. It needs to be amended to ensure it is not in the backrooms. It is too broad and opens room for many interpretations.

Ms Shaikh raised an issue regarding section 87.

Mr K Motsamai (EFF, Gauteng) spoke in Sotho and no translation was provided

Mr I Sileku (DA, Western Cape) raised the issue of face interaction with doctors who perform the procedure in initiation schools, but which was not fulfilled because of COVID-19. The issue of alcohol can be dealt with when the Committee is given an opportunity to engage, when alcohol is involved. He asked why it is needed. Alcohol cannot be banned totally because it deals with certain culture which requires certain things to be done involving alcohol. It would have been beneficial to have the view of the people who are involved in the process of initiation to give input on the Bill. However, due to COVID-19 this process could not happen.

He asked for clarity on the issue regarding Grade 12, specifically if Grade 12 is a requirement for young people to go to initiation school, because it assumes all initiates are school going. The Children’s Act allows for a child 16 and above to go to initiation school. He asked where Grade 12 fits in.

Ms B Bartlett (ANC, Northern Cape) asked for clarity on giving a fine, but not imprisonment

Mr Mashwahle Diphofa, Director-General, DTA, answered the Mr Motsamai’s question about making land available for the purposes of initiation. The Bill does not deal with this. This is an issue which happens in areas under the jurisdiction of traditional leaders. It becomes tricky in township areas which fall under municipalities. There are arguments around the rights of those in townships to have the opportunity and rights to a space where this ritual can be performed. Perhaps the Committee has specific proposals regarding this.

Co-chairperson Shaikh asked for a view on TLKB. It has not commenced and the date for its commencement has not been announced, yet the amendments being made align to this legislation.

Dr Bester said the Department drafted the amendments to the definitions in a way it will apply when the TLKB commences.

Ms Ngema said clause 26 and clause 15 deal with registration, and all the requirements necessary in case of further restrictions. It will be a contradiction to the Constitution which grants the rights to exercise culture.

Clause 26 and 15 sufficiently addresses the issues of areas where initiations can happen, and it aligns with the constitutional values.

Dr Bester said the Department believes the rights of those who use alcohol as a religious or cultural segment should not be infringed, and the rights are protected. The Bill is clear there should be no abuse of alcohol. The Department believes the Bill is sufficient as is.

Deputy Minister Bapela touched on the issues facing the LGBTI community with regard to initiation school. The Bill does not discriminate or oust anyone based on sexuality. Traditional leaders also need to play a role in ensuring there is awareness around LGBTI.

Co-Chairperson Shaikh said the Committee would arrange another meeting to consider the C-List versions of the Bills.

The meeting was adjourned.