Traditional Leadership and Governance Framework Bill: briefing

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Meeting report

LOCAL GOVERNMENT SELECT COMMITTEE

LOCAL GOVERNMENT SELECT COMMITTEE
12 November 2003
TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL: BRIEFING

Chairperson:
Mr BJ Mkhaliphi (ANC)[Mpumalanga]

Documents handed out:
Traditional Leadership and Governance Framework Bill [B58B-03]
Traditional Leadership and Governance Framework Bill: A Summary

Department's Delegation: Adv Zam Titus, Special Advisor to the Minister; Dr Petro Bouwer, Director of Legal Services and Mr Monde Nkasa, Director on Traditional Affairs

SUMMARY
The Department of Provincial and Local Government briefed the Committee on the purpose and background to this Bill. It was noted that this is a very important piece of legislation deriving its origin from the provisions of the Interim Constitution and which now also form part of the final Constitution. It regulates the institution of traditional leadership and how this should be accommodated in SA's political and constitutional democracy. The Committee were then briefed on the Bill clause by clause.

MINUTES
Overview on the Bill
Adv Z Titus, Special Advisor to the Minister, noted that this Bill was founded on the principles laid down in the Constitution, such as those in Ss 44, 104, 146, Chapter 12, Schedule 4 in so far as it relates to indigenous law and customary law and Schedule 5.

However it should be noted that the institution of traditional leaders does not constitute another sphere of government although in terms of the Constitution it is required that this institution be given some meaningful role so as to ensure that it links as far as possible with other broader structures of government. Everything that the Constitution says belongs to the national, provincial and local sphere of government belongs to those spheres alone unless it also provides for the delegation of such powers to other structures.

Research had been conducted in order to determine the factual situation around the institution of traditional leaders. Based on that research they established that although initially there were only six provinces which had a legal basis for recognition of traditional leaders institutions. However now even those provinces which initially did not have such formal traditional structures are also having an interest in this matter particularly because, amongst other things, of the advent of the cross bounding municipalities and the migration of subjects of one area to another. Further noted that it should be borne in minds that the Bill which the department presents to the Committee is the second draft of the original Bill emanating from the deliberations and amendments effected by the Portfolio Committee on Provincial and Local Government. He noted on the importance of the Preamble and said that this is where the background leading to the Bill and the goals intended to be achieved through it are outlined together with the policies and principles underpinning the Bill. It should be noted that the Preamble clearly states that this is simply a framework piece of legislation. This therefore means that this Bill does not necessarily deal with the details around the establishment of the institute but rather tries to provide a framework as a guideline to the provinces. Further said that it should be noted that those terms which have tended to be associated with traditional leadership structure and which now do not appear in the definition clause should be taken as fallen out of use as outlined in Clause 28. This is due to the fact that those terms are perceived to be derogatory and thus not necessarily belonging to the tradition institute of traditional leadership but just terms which were invented by the old structures of apartheid government. Lastly he noted that it is important that all the traditional leadership structures should derive their existence from the custom and nothing else. Thus should a structure in existence be perceived as not being of customary origin then a Commission, which is created in terms of the provisions of this Bill, would investigate that matter amongst other functions which is charged with. He thereafter noted that it is important for the Committee to have a look at the report of the Portfolio Committee published on the 29 October 2003 as it captures some of the important principles regarding this Bill.

Discussion
The Chair asked Adv Titus to clarify the position regarding the issues document and that with surround the elected traditional leaders.

Adv Titus noted that the issues document is about what the Constitution requires the provincial legislations to contain in this regard. He therefore said that the department would thus present to MINMEC on the 28 February 2004 a draft Provincial Bill on Traditional Leadership and Governance embodying the principles contained in the Constitution and in this Bill. On the question regarding elected traditional leaders, he noted that the department initially was of the view that once a traditional leader is elected to a political position then s/he would have to choose between his/her birth right or political career since one should not be allowed to hold both positions simultaneously. However after considerable discussions, both at departmental and political levels, it was then decided that traditional leaders should be allow for now, subject to the provisions of Clause 15, to participate in a politics realising that there are lot of constitutional issues involved in this matter. Therefore the future position in this regard is accurately captured in the report of the Portfolio Committee where it is said that South Africa should aim for traditional leaders who are apolitical unless one is prepared to forsake his/her birth right as such.

Mr P Ngcobo (ANC)[KZN Special Delegate] asked what is the current official position of KwaZulu-Natal on this Bill.

Adv Titus noted that according to the letter received by the Portfolio Committee from KZN House of Traditional Leaders it was clear that they do not support the Bill alleging a number things, amongst others, the formation of the Commission.

Mr Gwala (IFP)[KZN Special Delegate] asked about the status of those structures which are not mentioned in the Bill but nonetheless exist on the provincial level, such as Iziphakanyiswa which is widely accepted by the KZN community as being a legitimate traditional structure.

Adv Titus noted that it is imperative that when a recognition or withdrawal of such is to be done to any particular structure or position, which was previously recognised as a traditional structure or position under the old laws, a certain sets of criteria based on customs have to be adopted. Therefore since they are not guided by labels or titles attached or given to specific structures or position but by whether such structures or positions really qualify in terms of the customary law as such, taking into account the provisions of this Bill, then titles means very little to them.

The Chair while he acknowledged the reasoning behind the position adopted nonetheless asked whether is there any position or structure in this Bill which can be said to be equivalent to that of Iziphakanyiswa.

Adv Titus said that based on his knowledge of the structure in question and taking into account the difficulty surrounding the institution of traditional leaders he is of the view that while some of Iziphakanyiswa would qualify as headmen other will qualify as senior traditional leaders.

Mr Gwala contended that the question here is not about the labels or title used which were used under the old regime but concerned Iziphakanyiswa as a structure which is widely known to exist and of which even the late Chief Albert Luthuli, a former President of the ANC, was also a member of after being appointed to it by the people. He then reiterated his question asking whether would this structure now be extinguished under this new law although it is still in existence and widely accepted as a structure.

Adv Titus acknowledged the contention made by Mr Gwala but however appealed that since he is not in the position to decide on this matter it should rather be left to the discretion of the Commission since it would be able to determine whether labels attached to different structures or positions should stick or not.

Prince B Zulu (ANC)[KZN] noted that he was of the view that the Commission's responsibility would be to deal with disputes and with the resolved matter which is not widely in dispute such as the structure of Iziphakanyiswa. He then asked, pending the decision of the Commission, what status should thus be given to Iziphakanyiswa in the meantime since their position is widely accepted and still remains exercising some authority in KZN.

Adv Titus said that just like any other structure which was widely accepted as a traditional structure in the old laws the Iziphakanyiswa would also be the subject of the review and the Commission would thereafter decide whether to retained or to discard of it after hearing some empirical evidence of its customary origin.

Kgoshi M Mokoena (ANC)[Limpopo] expressed his dissatisfaction with this Bill and thus noted that it would have been proper if people who understand the rural communities and its structure where in charge of the process. Nonetheless he thereafter asked whether those Provincial Bills, which the department would present to MINMEC, would be entrenched on the provinces or else the provinces would be at liberty to formulate their own legislations.

The Chair said that it should be borne in minds that the national task team in the performance of its role would be working closely with the provincial co-ordinating committees. Thus although such provincial Bills would be presented by the national task team to the MINMEC, however the real ground work would have been done on the provinces by provincial legislatures. In addition Adv Titus noted that it should also be remembered that since the executive of MINMEC consists of both the national and provincial representatives MINMEC is therefore capable of looking on provincial Bills, without usurping the powers of the provincial legislatures.

Mr P Matthee (NNP)[KZN] noted that there is no one representing the official opposition party in the meeting and thus wanted to know the DA's position regarding the Bill.

Adv Titus noted that it should be borne in minds that he is not the official speaker of either the official opposition party or that of the IFP, however notwithstanding that both parties have indicated on the 11 November 2003 that they are not going to support this Bill. Further noted that based on their observation as the department the only parties which have been constructively participating throughout the processes were the ANC, NNP and to some extent the ACDP.

Mr Matthee then proposed that since the Portfolio Committee held public hearings on this Bill it would thus be proper if the department were submit to the Committee those issues which proved to be contentious during those hearings. He said that this is the only way in which the Committee could be able identify and appreciate the feelings of public members towards this Bill and thereafter try in an amicable manner to reconcile these differences.

Adv Titus said that although the department would submit to the Committee a list to this regard however in the nutshell the following issues proved to be much very contentious, amongst others, the one surrounding the constitutional amendments, women as traditional leaders, the non-usage of the term powers in the Bill and other political questions, such as the cooling off period. Therefore it is evident that while others sees this Bill as the progressive legislation in entrenching of our political democracy principles other sees it as the step backwards and thus the abortion of our democracy.

Dr P Bouwer, Director of Legal Services, acknowledged that the use of terminology sometimes tends to create confusion and thus noted that it should be borne in minds that this Bill only deals with the issue of equality in so far as it relates to the recognition of a traditional leadership structure and removal of such recognition. Thus it does not deal with the issue of equality in terms of succession as this is dealt under the principles governing the law on intestate succession.

Briefing on the Bill: Clause by Clause
Dr Bouwer went through the Bill clause by clause and highlighted some of the major amendments effected to the original Bill tabled to Parliament on the 4 September 2003 by the Portfolio Committee on Provincial and Local Government.

Preamble
Prince Zulu noted that the preamble stipulates that the institution must promote freedom, human dignity and the achievement of equality and non-sexism. He then asked whether does this then mean that if a King and a Queen have a daughter as a firstborn while their son is a second born, then the daughter's right over the throne would be more than those of the son.

Adv Titus appealed to the Committee that since the issue of accession to the throne is dealt with in the Bill under Clauses 2(3), 3(2)(b), 16(3) and 17(2)(c) then this matter should be put in abeyance and only be dealt with when the Committee considers those clauses.

Chapter 1: Interpretation and application
Clause 1: Definition and application
Kgoshi Mokoena felt that since the Bill provide for a definition of a "royal family" then it is equally necessary that the definition of a "royal council" also be provided since the latter is one of the most important institutions that is charged with the most imminent responsibilities of the royal family.

Prince Zulu in concurring with the preposition also noted that it should be borne in minds that the royal council, unlike the royal family which includes all the members of a royal family, is a presiding structure within the royal family which deals with most crucial functions and thus administer the wishes and will of the King or a Queen. It is also of importance to note that members of the royal council need not necessarily be members of the royal family.

Dr Bouwer noted that the structure of a royal council is something that is catered for in terms of the customary law. Thus if the technical experts are of the view that a particular structure created by the royal family is actually a royal council in terms of the applicable customary law, also taking into account the fact that custom differs from community to community, then it would be regarded as such as provided in the provisions of Clause 9(1).

Kgoshi Mokoena although he acknowledged the argument presented by the department, however he was not convinced and thus reiterated the necessity of having this structure being defined in the Bill, itself, as it is the case with others. He said that this is due to the important and key position held by member of this structure within the royal family as they are the special advisors to the King or Queen and thus take crucial decisions on behalf of the royal family.

Prince Zulu asked what is meant by the term "senior traditional leader" since in terms of his culture there are no traditional leaders who are senior more than others. He said that the only exception to this customary rule is only when a King as someone having an absolute authority over all traditional leaders under his nation appoints one of them as a traditional prime minister. Thus only then that the traditional prime minister as someone charged with the responsibility of running the affairs of the nation would have the such power and authority over other traditional leaders in that nation.

Adv Titus noted that the explanation given by Prince Zulu is exactly what is intended under this Bill although however there is nothing precluding the kingship in terms of Clause 1(3) from appointing any of his traditional leaders in accordance with the custom as seniors but that would be recognisable only amongst themselves. +

Chapter 2: Traditional Communities and traditional councils
Clause 2: Recognition of traditional communities
Dr Bouwer noted that its should be borne in minds that the use of the term tribes has fallen in disuse and would thus be substituted by the term traditional communities. Therefore where the term tribe appear in the Bill it should be noted that it is only used for historical reasons.

Kgoshi Mokoena raised concerned with the wording used in subclause (3)(c). He noted that the employment of the terminology such as "seeking to progressively advance" seems to imply that the structure which is being dealt with here is a very hostile one.

Dr Bouwer explained that these terms were choice specifically to diminish the aggressive realisation of this requirement taking into account the fact that no one can have a full compliance of gender equality overnight, bearing in mind that it is one of the principles of transformation process. Thus in order to adequately realise the principles embodied in this subclause it is necessarily that this process be done gradually over a period of time.

Adv Titus also noted that the Committee cannot remove this subclause from this Bill since it is an integral part of the Equality Clause, also enshrined in our Constitution. Ms P Mopeti (SALGA) also supported this subclause and assured the members that there are no sinister intentions underlying this clause but only to ensure that the transformation process does take place within the traditional leadership institute.

Kgoshi Mokoena while accepting the explanation given to the Committee, he noted that he hopes that the traditional leaders structures would be at liberty in applying this principle based on custom.

Clause 3: Establishment and recognition of traditional councils
Dr Bouwer said that it should be noted that once a community has been recognised in terms of Clause 2 then it would be required to establish its traditional council and this council is would be a statutory body as it is created under the provision of this Bill.

Clause 4: Functions of traditional council
Dr Bouwer said that it should be noted that the council required in terms of subclause (4) to be apolitical in nature and further noted that it is important that this clause be read in conjunction with Clause 20.

Mr Gwala noted that since the definition of a kingship has been provided for then it becomes necessary that the definition of a kingdom also be provided for in the Bill since there exist no King or Queen without a kingdom.

Adv Titus responded that it is not necessary in this Bill that a definition for kingdom be provided and as the result of the provisions of S143(1)(b) of the Constitution they felt that the provinces, if so wish, could thus create the provision for a monarchy in their own individual Bills.

Clause 6: Support to the traditional councils
Prince Zulu noted that taking into account the provisions of Clause 4(2)(a) and (b), which requires the provincial legislations to regulate the performance of the functions by the traditional council, especially with regard to the keeping of proper records and auditing of financial statements. Therefore based on that he then asked whether would the support to be given by the government to the traditional council also includes the allocation of funds.

Adv Titus responded that it should be borne in minds that the issues around budget are normally dealt with through the legislation but through the normal budgetary process. However item 4 of the explanation memorandum to this Bill does addresses this matter and thus outline the financial implications which the State would bore as the result of the creation of the traditional leadership institution. Further noted that one would appreciate the commitment of the State in the development of this institution since currently the tribal authorities are funded by the State through provinces and that commitment has also been noted in the Preamble.

Mr Ngcobo said that since the traditional leaders would now be paid remuneration it is thus important that they should be held accountable for all other moneys that they might receive from people in their communities and therefore state what they have done with those moneys.

Adv Titus drew the members' attention to the provisions of Clause 4(3)(b) in this regard and noted that it is explicitly in this provision that the council is required to meet its traditional community at least once a year so as to give account of its activities and functions and also the levies received by it during the course of that financial year.

Mr Gwala noted that it is important that a traditional gifts made by the people to their traditional leaders should be differentiated from a normal gift given to a politician and therefore the Bill should clearly differentiate between these two since likewise a gift given to a church by the congregation is not a gift in a strict sense.

Dr Bouwer said that the importance of the code of conduct noted in Clause 27 and Schedule 1 then becomes prevalent in such situations. However understanding that there are different practices from community to community and province to province then there is a need that what is regulated in the national code of conduct should also be further regulated in each provincial code of conduct. Therefore a final specialised code of conduct would definitely come from the provinces themselves to regulate these matters.

Chapter 3: Leadership positions within institution of traditional leadership
Dr Bouwer noted that this Chapter was reworked by the Portfolio Committee and its provisions were clustered into four different Parts.

Part 1: Introduction
Clause 8: Recognition of traditional leadership positions
Dr Bouwer said that it should be noted that in terms of this Bill there are only three traditional leadership positions that would be recognised by law and these positions are all required to derive their existence from customary law.

Part 2: Kings and Queens
Clause 9: Recognition of Kings and Queens
Dr Bouwer said that it is important to note that the structure to which the Kings and Queens belong to is not provided by the statute but it is something that should be done in terms of the customary law or practices.

Prince Zulu asked since the President would be the one responsible to ensure that the King or Queen is recognised then who would be responsible to perform coronation of that King or Queen.

Adv Titus said that it should be noted that although coronation is a customary event, which should be done in terms of the customs and thus nothing prescribing on the President to do it. But, however due to the seniority of the positions held by Kings or Queens and based on the practicality of him doing the coronation he would do it himself and in the event of him not being able to do it himself then he delegate someone to do it on his behalf.

The meeting was adjourned.


Appendix:
THE TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL:
A SUMMARY

1. Introduction
The Traditional Leadership and Governance Framework Bill, 2003, provides a framework and norms and standards that will inform and guide more detailed legislation to be developed by provinces with regard to traditional leadership and governance, and other relevant matters.

2. Chapter One
·
This chapter deals with definitions and applications.
· In response to calls from a variety of stakeholders the term 'chief' is substituted with the term 'senior traditional leader'.
· All vernacular nomenclature reflecting titles and forms of address will be reflected in provincial legislation, and as such will continue to be in use.

3. Chapter Two
·
This chapter establishes the process by which a traditional community may be recognised, and by which such recognition may be withdrawn.
· Consultation with communities in this regard is highlighted.
· One of the functions of a traditional community is to transform custom in line with the Constitution and the Bill of Rights.
· Once a community has been recognised as a traditional community, it must establish a traditional council, the details of which must be provided for in provincial legislation.
· Such a traditional council must consist of not more than 30 members. A third of members of a traditional council must be women.
· 40% of the members of a traditional council must be elected democratically for a term of five years.
· Functions of traditional councils are set out in section 4.
· Traditional councils must promote partnerships with municipalities based on the principles of mutual respect and the recognition of the status and roles of the respective parties.
· National and provincial government will provide such support to traditional councils as may be necessary to strengthen their capacity.

4. Chapter Three
·
Three leadership positions are established, namely kingship, senior traditional leadership and headmanship.
· The royal family is responsible for identifying a suitable person for appointment to all the leadership positions, in line with customary processes and procedures.
· The Premier of a province will formally recognise all persons appointed to the leadership positions of senior traditional leader and headman in line with provincial legislation.
· The President will formally recognise all persons appointed to the leadership position of kingships, in line with this Act.
· Processes, and conditions for removal of kings/queens, senior traditional leaders and headman are set out in sections 10 and 12.
· Processes for the recognition of regents are set out in section 13. The Premier will review the recognition of a regent every three years until the regent ceases to be a minor.
· An acting appointment will be made if a successor has not been identified by the royal family or if the traditional leader is unavailable due to illness or any other lawful purpose.

5. Chapter Four
·
Local Houses of Traditional Leaders established, in addition to the National and Provincial Houses of Traditional Leaders.
· Members of the Local House may not be less than 5 and may not be more than 10, and these will be elected by an electoral college consisting of kings/queens and senior traditional leaders residing within a district or metropolitan municipality.
· Parliamentary Bills pertaining to customary law or customs of traditional communities must be referred to the National House of Traditional Leaders for comment within a period of 30 days.
· Similar processes must followed in respect of provincial bills and by-laws.

6. Chapter Five
·
Traditional leaders will perform their functions as provided for in terms of customary law and customs of traditional communities.
· Government may allocate additional functions to traditional leaders in line with section 20 of this Act.

7. Chapter Six
·
This chapter sets out the processes for the establishment of the Commission on Disputes and Claims.
· This Commission has the authority to investigate, either on request or its own accord:
(i) a case where there is doubt as to whether a kingship, senior traditional leadership or headmanship was established in accordance with customary law and customs;
(ii) a traditional leadership position where the tittle or right of the incumbent is contested;
(iii) claims by communities to be recognised as traditional communities;
(iv) the legitimacy of the establishment or disestablishment of "tribes"; and where goods grounds exist, any other matters relevant to the matters listed in this paragraph, including the consideration of events that may have arisen before 1 September 1927.

Chapter Seven
·
This chapter contains the general provisions, which provide for a Code of Conduct (which is set out in the Schedule), transitional arrangements, amendment of the Remuneration of Public Office Bearers Act 20 of 1998, as amended by Act 21 of 2000, and short title and commencement.
· The transitional period allowing for the continued existence of erstwhile traditional leadership structures is one year for tribe authorities and two years for community authorities.
· All structures established under tribal authorities, such as regional authorities, Councils of Chiefs, Ibandla Lamakhosi, etc will be disestablished by provincial legislation within one year of the commencement of this Act.
· The Commission, referred to in Chapter Six, will, as a matter of priority, investigate the position of paramountcies and paramount chiefs that had been established and recognised, and which were still in existence and recognised, before the commencement of this Act.


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