Implementation of recommendations in the State of Local Government report (August 2021); Implementation of Traditional and Khoi-San Leadership Act; with Deputy Minister

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Cooperative Governance and Traditional Affairs

08 June 2022
Chairperson: Mr F Xasa (ANC)
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Meeting Summary

In a virtual meeting, the Department of Cooperative Governance and Traditional Affairs met with the Portfolio Committee for a briefing on the progress of the implementation of recommendations in the State of Local Government report of August 2021. Members expressed the need for a formal report on the details of progress made to fully understand both the challenges and progress being made.

Members raised various issues relating to the state of local government such as financial recovery plans, relationship between the Department and treasuries, municipalities under intervention, establishment of the ward committees, service delivery, land invasions and the organograms of municipalities.

Members were concerned about political interference – they said “80% of challenges in municipalities were due to political obstacles” and councils do not understand their roles. 

The Department of Traditional Affairs briefed the Committee on the implementation of the Traditional and Khoi-San Leadership Act. Members expressed concern about measures taken by the Department to manage and address challenges, financial implications, and disputes during the implementation process. 

Members asked about disputes, representation of the Khoi-San, a schedule for the implementation of the Traditional Khoi-San Leadership Act and challenges experienced by the Department so far. 

Meeting report

The Chairperson welcomed all. He asked the Committee Secretary for any apologies received.

The Committee Secretary, Ms Shereen Cassiem, thanked all for attending. She expressed apologies on behalf of Minister Nkosazana Dlamini Zuma (ANC) who was attending Cabinet, and on behalf of Deputy Minister, Mr Obed Bapela (ANC) who could only join the meeting late.

The Chairperson outlined the meeting agenda to Members. The meeting agenda was adopted.

The Chairperson invited the Department to brief the Committee and invited the Director-General to speak.

The Director-General, Ms Avril Williamson, greeted all. She asked the acting DDG present.

Briefing by the Department of Cooperative Governance (DCoG) 
The DDG official greeted Members and opened the presentation to the Committee. The presentation detailed the implementation of the recommendations in the State of Local Government.

The State of Local Government Report was presented to Cabinet on 30 June 2022 and the following resolutions were taken:
-That COGTA and NT should lead the process of the development of the municipal support plans in collaboration with sector departments, SALGA, provinces and municipalities;  and
-That COGTA and NT in collaboration with the provinces identify candidates for interventions and propose the relevant mode of intervention that should be applied.

The State of Local Government Report, amongst other matters, confirmed the correlation between failures in governance and political oversight as the primary causes underpinning the increase in the number of dysfunctional municipalities.

(Please see presentation document for further details)

Mr C Brink (DA) said there is one big gap in our law, which is legislation dealing with inter-governmental support, monitoring, and intervention. The Constitution, in S(8)(139), says that national legislation can or should be passed that puts meat on the bones of the intervention, in S139 and in S104 for provinces. The delay in bringing that legislation to Parliament is now a decade or longer. We do need a clear indication of the progress with that legislation. When will the Committee receive it? The form of intervention, in terms of the Constitution, that does have some legislative detail, is financial intervention. In other words, section 139 (5) read with section (139) of the Municipal Finance Management Act. That is if a municipality is in financial distress and cannot pay its bills. A Financial Recovery Plan (FRP) must be put in place. That is what we have in our law; the most detailed form of intervention. The problem is that it takes very long for these financial recovery plans to be put together in cooperation with provincial and National Treasury, for the Council to adopt these financial recovery plans and for them to be implemented. One example of this enormous delay is Mangaung, which is now under national government administration, and was meant to have a financial recovery plan three years ago. A plan was produced in 2019 but was never implemented. Something is missing in the whole process of getting these recovery plans in place. He asked the Department: to what extent do you cooperate with National and Provincial Treasury in section 139 (5) financial interventions? He was concerned that they do not talk to each other. He is also concerned when departments and provincial departments, together with Treasury implement these Financial Recovery Plans, opposition leaders and councillors of opposition parties are not involved in communications processes. It is important to get the buy-in of the entire council when going to dysfunctional municipalities. It is important to get council on the side of the financial recovery plan, even if the Mayor might not be the biggest supporter of the financial recovery plan. At least the Council as a whole, with the opposition party, can become champions of that recovery plan. They can assist in holding the Mayor and the municipal administration accountable. He asked what the level of interaction is with Treasury (provincial and national). Can opposition parties be brought on board to assist with these recovery plans?

On KwaZulu-Natal, he said if one looked at all the provinces where intervention is happening, most of them include financial intervention. But if you look at KZN, there is not a single place where financial recovery is being implemented. An example of a province where a recovery plan is very much needed is the capital city of KZN. What is happening in KZN? Why the reticence about invoking financial intervention in that province?

Lastly, he asked if there was any support for the idea that municipalities in financial distress should perhaps be exempted from some of the national legislation that applies to procurement? The effect of the Preferential Procurement Policy Framework Act, for example, the regulations issued under that Act recently struck down by the Constitutional Court, is to shrink the market of goods and services available to municipalities, especially the smaller municipalities. Should we not consider exempting some of these municipalities from those provisions, so that they have more freedom to buy goods and services on a bigger scale, more competition, hence lower prices, and more reliable contracts – so they do not end up in litigation or failure? This is an issue where the Department has to liaise with the National Treasury, so that many of the laws that are bearing on what municipalities can and cannot do come from the Finance Minister, and not the Minister of COGTA. Should we also look at dropping some of the conditions on intergovernmental transfers? This is so that municipalities in distress can use the money as needed, instead of having to uphold a number of conditions. In the bigger scheme of things, if you are falling apart as an institution, it does not help to put these finer conditions in place. It will help to give the municipalities money to keep afloat.

Ms E Spies (DA), on the expedition of the intervention, said that many of these councils and municipalities have a culture of no accountability, no consequence management, and no compliance. While the intervention process is underway, the same issues continue. In particular, in Kannaland Municipality, there has been intervention since October 2021, but in the few months that have passed since then, things have gotten worse. One would think that perhaps there should be more urgent intervention. She said she has seen the list, but that Kannaland was not on it. As an example of how bad the situation was, they have just approved an unfunded budget of R28 million. They have a salary bill of 70% that was increased by 20% in the last three months. People on the ground, that is, the residents of that municipality, were not receiving any services. It is, of course, due to the political instability there. Whatever has been done to improve the situation is not working. There must be a much deeper intervention in that municipality to resolve the situation.

On the issue of the establishment of the ward committees, she said it was good to hear that it was 90%, but it would be better if it were 100%. What are the challenges that prevent the 10% from establishing their ward committee nine months after the local elections? That is an important channel for the public. If it is not established, the public would be left out. What exactly are the problems they are experiencing?

Ms H Mkhaliphi (EFF) asked when the Committee could get the report. They had not received the report that was presented to Cabinet. As a Portfolio Committee of Parliament, they also have a duty to hold Cabinet accountable. The report would help the Committee get a proper understanding of what was happening. She said that 80% of challenges in municipalities were due to political obstacles. For example, in one of the municipalities, they only elected their political leaders last week, despite having their elections in November 2021. However, there is no stability because of political leadership. If they do not address the issues of politics and apply any interventions, they would not get it right. She asked how many of the dysfunctional municipalities have been improved. What do the numbers look like at present?

On political interference, she noted the example of Moses Kotane Local Municipality She said things were not looking good. There was only one political party that was fighting in Moses Kotane. Meetings were held but many people were unaware that meetings were taking place. They do not know where meetings are being held. There is no accountability. The meetings become wasteful expenditure. If the Department report says that there was intervention, it is not a true reflection of progress. Things are not working in that municipality; this is just one example. She asked what the role was of the Department in dealing with the issue of political interference in municipalities when it came to intervention in terms of the law. If there is no political will to resolve the issues, things would simply not be solved.

Mr A Matumba (EFF) said that Ms Mkhaliphi summarised the issues very well. We are having a serious governance problem. there are members of Council who do not know their roles. Councils must have researchers. Political organisations must have researchers. The same way we have researchers in Parliament. Council receives reports from the management term; we need to review and understand reports. How are we going to know if we have value for money when doing oversight?

On water and the incapacity of district municipalities to provide it, he asked who owed the municipality money and how much. This raises problems for local municipalities. Perhaps some municipalities should be given water service authority to provide water themselves. Can the Committee first be given the report and thereafter the presentation? The presentation and the report are two different documents. The presentation only gives a small overview. The Committee would like to see the bigger picture, that is, a full and clear report. The biggest problem in municipalities is the government. Comrades are doing absolutely nothing to assist municipalities. What is Council doing to intervene? The report must also include what Council is doing about all these instances of dysfunction. There must be consequences when municipalities are not meeting expectations. The problems remain the same. They are not being solved. Where nothing has been done, something must be done to address the situation.

On land invasions, he said it was a heart-breaking issue. He said municipalities are demolishing big houses for the purpose of formalising building space. Is there no alternative method? Is it not a heartless thing to do? Is there no alternative agreement that can be made?

Mr G Mpumza (ANC) said he welcomed the presentation. When the Department conducted the assessment on the functionality and viability of municipalities to perform their functions, is it benchmarked against the objectives of the local government? Is the architecture of the organisational structures of municipalities resonating with the key functions outlined in the Constitution? Some of the municipalities were not carrying out key functions as assigned. Their organogram is not in line with constitutional requirements, he said. In response to municipal support and mandatory intervention recovery plans, he said these plans respond to dysfunctionality. He asked to what extent they were assisting the financial recovery of municipalities.

On land invasions and other constraints, he asked when the Department would facilitate the resolution of the dispute (whether perceived or real) of traditional leaders that were constraining municipalities to secure land? Traditional leaders are of the view that they were not sufficiently consulted. Issues of land constraints must be resolved. When is the Department going to engage with traditional leaders? Municipalities need to roll out the spatial planning and land use management to set aside land for housing and development. The buck stops with the Department in resolving this problem.

On the capacitation of ward committees, he said they were six months down the line with the new term of local government. The issue of ward committees is critical for communities and residents to participate in community development and in community affairs. The issue of ward committees is an urgent matter and should be addressed immediately once the term of office kicks in. He said that during the transition period, a number of issues were taken care of to facilitate a smooth transition. These include the operation of the Municipal Systems Act and the Structures Act. These are key legislative instruments to enable a municipality to run smoothly. This is another urgent matter for the Department to consider, he said.

The Department must be commended for intervening and assisting through MISA. In response to the boreholes that have been set up in a number of municipalities, he said that was a good start. What is the yield of such boreholes? How sustainable is that yield? For how long will those communities receive functional water services and clean drinking water? Is the technology of a borehole very sustainable?

In response to the Operation Clean Audit – he said that in their engagement with State Security Agency, they told the Committee that when people should be charged, officials jump ship and in other cases, some of the matters were not attended to by municipalities. They must then look at other remedial measures when a municipality is not acting on recommendations. What is the role of provincial and national CoGTA Departments on this matter to ensure that people are brought to book for the cases they have created?

Ms S Buthelezi (IFP) asked why there was no consultation with the traditional leaders of the Eastern Cape? Has the Department conducted any other form of consultation with traditional leaders? The Department monitors the implementation of the national schedule for the Constitution of Traditional Councils on a quarterly basis. Can the Department please provide more details on the measures that it undertakes to monitor the implementation? Is there a set list of targets that the Department uses?

On ward committees, Ms Mkhaliphi asked for more clarity from the Department on the disciplinary committees that were established in terms of the municipalities.

The Chairperson asked the Director-General to respond to issues raised in the discussion.

Response by the Department of Cooperative Governance
The Acting DDG expressed apologies for a correction in the presentation which indicates that the report was presented in 2022. She said it should state 2021.

In response to Mr Brink, she said they have received certification. They concluded the interaction with the State Law Advisors. They have also concluded the socio-economic impact assessment. They are now able to proceed to conclude with Cabinet and thereafter the Bill will be introduced to Parliament.

In response to RFPs taking too long to be adopted and implemented, she said that the nature of interventions itself leads to some councils being resistant. If councils have not adopted their FRP then it is not implemented. We have now developed a collaboration framework to help engage with each other. They are also finalising an MOU with National Treasury on how to better work together. The adoption and implementation process poses many challenges. When the FRPs are presented, they have now engaged with all councillors in roadshows; they call it induction. Councillors from all political parties are engaged. The roadshows are assisting them to ensure that all councillors are briefed and on the same page. They also invite the provincial CoGTA and provincial treasury to these engagements. In terms of legislation, both entities must ensure that RFPs are implemented.

They will provide feedback on developments in Mszunduzi. She said the Municipal Infrastructure Support Agency (MISA) is doing some work there.

In response to municipalities that are financially distressed, and to being exempt from some legislative issues, she said it is an inter-governmental issue. There needs to be more discussion between the Department and the National Treasury. Discussions need to be made on how those municipalities can be assisted within the current law.

In response to Ms Spies, she said that on slide 25 of the presentation about Kannaland that there had been a team dispersed to assist this municipality to ensure that service delivery continues.

In response to Ms Mkhaliphi, the report was being compiled and once completed it will go to Cabinet and it will be shared with the Portfolio Committee around September. The Department is doing a 21 year review of local government. The Department wants to synchronise these processes so that when the Department presents to the Committee, they can also present solutions based on the 21 year review led by the Minister. This will help to deal with the political and governance challenges. It will also help address the gaps in legislation.

On the observation in terms of the MMs, she said they have a capacity building unit to make sure all MMs are aware of the grants the Department is responsible for.

In response to Mr Matumba, she said the South African Local Government Association (SALGA) is continuously engaging with councillors to inform them about their roles and responsibilities. She agreed with his suggestion about having researchers assist with reading and reviewing reports that are presented.

In response to land invasion, she said this was a challenging issue in all municipalities. There are two sides to the issue. One was that communities will invade land owned either by municipalities or owned privately. Most of the time, the landowner goes to court. The municipality is then instructed by court to remove people. This is an issue that needs to be looked at to address how municipalities will move with speed when people start to invade land and prevent escalation of land issues.

In response to Mr Mpumza, she said they were in the process of collaborating with National Treasury. We have established reporting reforms. This looks at all institutional requirements of municipalities. It looks at legislation governing local government. We have already started to develop indicators to ensure that they measure everything in the Constitution and in legislation that pertain to local government. They have decided to streamline all reporting. This will help to not burden local government. This is the first time that National Treasury collaborated so much to develop a set of national indicators.

Dr Kevin Naidoo, Deputy Director-General: Institutional Development, said that in his view the relationship between National Treasury and the Department is at its best. This is based on two reasons. First, National Treasury, SALGA and the Department worked together for the first time. This indicates to stakeholders that we can come together as a collective to speak with one voice. Second, the relationship at a political level, where the two Deputy Ministers engage municipalities that are in distress and work together as a team to support and assist vulnerable municipalities.

On the exemption of smaller municipalities from preferential procurement regulations, it is a conversation that is needed with the National Treasury to assess if this is possible.

In response to governance interventions and to Mr Mpumza, he said that in terms of the regulations issued in 2014, there was requirement that municipalities should provide the blacklisted persons database to the Department. When screening and recruitment take place at a municipal level, we receive a flood of requests from municipalities to undertake that screening. In the system amendments introduced in November 2021, the establishment of the Office of the Whip, a dedicated section for impacts, and are trying to deal with the separation of the executive and the legislative authority by providing more functions around the speaker, was provided for. At present, they are now developing a draft of regulations – this has started just after elections. It was informed by the lacuna created during the migration of the code of conduct from the Systems Act to the Structures Act. One of the prescriptions in the code of conduct is that a councillor must declare gifts received in a financial year. With the migration of the Code, that regulation fell away. They found it opportune to deal with the prescription around gifts, but also to deal with the matter of “walk outs,” that is, walking out of meetings when matters become controversial.

Another intervention being looked at in terms of Section 92 of the Structures Act, he said Committees are a vital tool in providing oversight for municipalities. This set of regulations and guidelines will deal with all committees of council. The next intervention being put into place is to help with receiving reliable information from municipalities. They will now go directly to the source. They will be using web-based platforms for all 257 municipalities to track the functionality of impacts, portfolio committees, and ward committees in compliance with the code of conduct. They are close to finalising this in the Eastern Cape and in KZN, and are monitoring it on a quarterly basis. 

He informed the Committee that they received certification from the state law advisor on the Demarcation Bill. The Bill is formerly now on its way to Parliament.  

Ms Boitumelo Diale, Chief Director: Citizen Engagement, said that in response to delays in the finalisation of the establishment of ward committees, the process is still underway. Out of the 4 468 wards across local and metropolitan municipalities, they are sitting at 4 170 ward committees that have been established. She said she wanted to emphasise that as a Department they take the matter very seriously. They have been pursuing provinces and municipalities to ensure that there is compliance. There was a lot of traction and speed in terms of establishing provisions. They are also attending to matters of disputes raised by community members. The amended Act provides for speakers of municipalities to officially request for an extension if they cannot meet the deadline. Their biggest challenge is in the City of Tshwane which constitutes a total of 107 wards which have not been established. At present they are gazetting the bylaws. Nelson Mandela Bay is another big concern. The process has also not begun. They will keep the Committee informed about the updated developments. They are trying hard to ensure that progress is being made. They are supporting the municipalities that have complied and completed their establishment processes as newly elected ward members.

In response to Ms Mkhalipi on disciplinary committees, she said that it was a matter they were still engaging in. They will update the Committee accordingly.

Follow-up Discussion
The Chairperson invited members for a round of follow-up comments.

One of the delegates from the Department responded to the question by Mr Mpumza on boreholes: He said that it can last a very long time. The design is for a lifespan of 30 plus years. When drilling boreholes, they test the hydrological status to check the water quality. Sometimes they drill a few boreholes before they are satisfied that there is enough yield. The water quality tests determine if the water is drinkable and if it needs treatment.

Another departmental delegate, in response to the organisational structures of the municipalities, said that the Department had conducted a mandate and a list of all municipality categories. They further subdivided those municipalities into smaller categories. This ensures that their mandates are provided for in terms of the legislation. They focus on municipal planning, energy, water, sanitation, waste and refuse management, human settlement and housing, community services, governance and administration and operational support functions. Based on the study they have conducted, they also looked legislatively at the regulations used by the Minister. They also build into those regulations, organisational design norms and metrics. It also provides for the span of control. The study found that many municipalities were bloated in support services at the expense of core functions. The regulations provide for a ratio that the municipalities need to comply with; this is usually a 70:30 ratio: 70 going to the core function and 30 going to the support function. Regulations are linked to the determination made in terms of the Municipal Finance Management Act and in relation to employee costs. Compensation on municipal employees should be between 25% and 40% of the total operating budget.

Mr Mpumza asked how long will Section 163 of the Water Services Act take? When will it be reviewed? What is the proposed timeframe? Will it be a permanent feature in the municipalities? On the improvement of asset management in the provision of services to the communities, he asked if this measure would be extended to all municipalities. It is an important measure. One of the key factors of dysfunction in municipalities is the failure to manage their assets.

Ms Buthulezi  said her questions were not responded to.

Mr Mathumba expressed concern on the increase in salaries. He said the Auditor-General is always complaining about financial statements. The critical question that needs to be asked is: do we have enough staff? SALGA is saving more than 50% on salaries in their budget. Can they share their organogram so that the Committee can understand who is paid to do what?

The Chairperson asked the Director-General to respond.

Ms Williamson asked her colleague to respond to Ms Buthelezi.

Mr Allan Zimbwa, Deputy Director-General: Technical Support Services, said in response to the question on Section 163 that it was difficult to determine the timeframe. They will need to consult with their colleagues about water and sanitation. For now, they can indicate that the intervention is done until the objectives are met by the Minister of water and sanitation.

The Acting DDG said, in response to Mr Mpumza on Section 163, that the Department will have extracted the Act verbatim. It still includes the Minister of Constitutional Development. They will engage with the Department that is responsible for its administration.

The Acting DDG asked Ms Buthelezi to repeat her question so she could respond accordingly.

Ms Buthelezi said the Department held an induction programme on TKLA for traditional leaders in provinces, except the Eastern Cape. Why was there no consultation with traditional leaders in the Eastern Cape? Has the Department conducted any other form of consultation with them? The Department says it monitors the implementation of the national schedule for the constitution of traditional councils on a quarterly basis, can the Department provide more detail on the measures undertaken to monitor the implementation? Is there a set list of targets that the Department uses for this?

The Chairperson thanked Ms Buthelezi. He said it will be addressed in the next presentation on the meeting agenda.

Ms Mkhaliphi, in response to receiving the report in September, said it will be too late. It is unfair for the Committee to engage with a document they have not seen. This will not be appropriate. In response to the issue of disciplinary committees in Rustenburg, she asked for a timeline and to be updated about the developments in Rustenburg as soon as possible. She said she was still waiting for the Deputy Ministers response about political challenges faced by municipalities.

The Chairperson asked Ms Williamson to respond.

Ms Williamson said in response to Ms Mkhaliphi that they would revert to the Committee in about two weeks, possibly even before. In response to the report that would have been submitted to Cabinet in July 2021, they do not yet have a full report on the state of local government. They have formulated their presentation to Cabinet based on the categorisation of functions within every municipality. Thereafter they completed an analysis indicating which ones were most dysfunctional. There is no actual written report as of yet.

The Chairperson recognised the Deputy Minister of COGTA, Ms Thembi Nkadimeng.

Deputy Minister’s Overview
Deputy Minister Nkadimeng thanked the Chairperson. In response to intervention within the political context in assisting municipalities, she said that she wanted to emphasise two facts. The coordination of all information, the early warning teams, rapid response team and joint circulars working in a harmonious balance, assisted them to move a step further to identify key problem areas, financial issues, and deal with overall municipal dysfunctionality. It also assisted the National Treasury with its MFMA mandate.

She expressed that it was important to note that intervention without the support of all the key stakeholders still puts the sphere under the direct authority of councils. It becomes difficult for the province to intervene or withdraw powers. When things are not running as they should, intervention should employ the best possible ways to assist municipalities. Provinces do report to National Treasury, but the reluctance of provinces to implement mandatory intervention adds to this problem. By law, power remains with the council. This is also the case with advising; advice is sometimes not accepted by council. It also becomes difficult for provincial and national CoGTA to turn the situation around.

On adherence to public participation, she said that in response to election and status of ward committees, what power do they have if there is perpetual postponement? What powers do the national and provincial departments have to ensure that extensions do not go beyond six months or what is deemed advisable? It is crucial that municipalities engage with communities. They must understand the day-to-day problems of citizens. The Department is currently compiling the 21 year review. They are being as honest and as objective as possible. She said she is also pleading for appreciation and support from all. The entire system of local government, all stakeholders, academics, and civil society for input on challenges and experiences faced in local government is part of this 21 year review. She hopes this will enhance and redevelop government processes and spheres of practice for the better.

In response to Ms Mkhaliphi, she said that on a political level, the Act does not assist the Department with deliberately engaging with political parties. The Minister wrote to all MECs to direct and assist processes of running municipalities. She said that some have not even responded to the call of cooperative governance to assist the Minister. We need collaboration more than anything. She is raising this to Members, from different political parties, to indicate that they also need to assist on this matter.

The Chairperson thanked the Deputy Minister for her comments. He said the report is intended to give the Committee an understanding of issues on a more formal basis. In addition to problems identified, the Committee also wants to see progress for the beneficiaries. He understands that there are unavoidable challenges and issues in different spheres of government, but it is important to remember that they all need to uphold the rights of citizens. They must be on the side of the people. They must not allow technicalities or governance issues to override this responsibility. This is a conversation that needs to continue.

He requested that they move to the second part of the agenda.  He invited The Department of Traditional Affairs (DTA) to brief the Committee.

Briefing by the Department of Traditional Affairs
Mr Mashwahle Diphofa, Director-General, Department of Traditional Affairs (DTA), thanked the Chairperson. He greeted all present and asked Ms Reshoketswe Mogaladi, Deputy Director-General (DDG) to open the presentation.

Ms Mogaladi began the presentation on the implementation of the traditional and Khoi-San leadership Act which pertained to the establishment of the commission on Khoi-San matters and recognition of their leadership.

The presentation outlined the following key points:

• Traditional and Khoi-San Leadership Act (TKLA) Implementation Priorities for the 2021/22 financial year
• Progress report on the workshops for the National Khoi-San Council and Provincial Officials
• Capacity building of traditional leaders and traditional leadership structures on the TKLA
• Progress report on the establishment of the Commission on Khoi-San Matters (CKSM)
• Progress report on the work of the CKSM
• Progress report on the legal constitution of traditional councils
• Progress report on the formula for determining the number of members of kingship/queenship and principal traditional councils
• Progress report on the formula for determining the number of members of Khoi-San councils
• Progress report on the legal constitution of the 2022-2027 local and provincial houses of traditional and Khoi-San Leaders
• Progress report on the TKLA Regulations on the Identification, Recognition and Withdrawal of Traditional and Khoi-San Leaders and Communities (Disputes and Claims)

The Traditional and Khoi-San Leadership Act, 2019 (Act No. 3 of 2019) was enacted in November 2019 and commenced on 01 April 2021.

After the commencement of the Act, on 8 April 2021, the Department presented a state of readiness report on implementation of the TKLA to the COGTA Portfolio Committee.

This was followed by another presentation to the COGTA Portfolio Committee on 18 August 2021, where the Department presented the 2021/22 priorities in respect of the implementation of the TKLA. In the same presentation, the Department provided progress to the Portfolio Committee on the implementation of those priorities as at 31 July 2021.

After the meeting of the Portfolio Committee, the Department in consultation with provinces developed the TKLA Five Year (2021 to 2025) Implementation Schedule, which included these priorities.

As required in terms of section 62 of the Act, the Department monitors the implementation of and compliance with the Act by provinces in respect of the priorities identified in the TKLA Five Year (2021 to 2025) Implementation Schedule.

This presentation provides a progress report on the implementation of the 2021/22 TKLA priorities in the TKLA Five Year (2021-2025) Schedule which were presented to the COGTA Portfolio Committee on 18 August from 01 August 2021 to 31 May 2022.

(Please see presentation for further details)

Mr Brink asked if there was an early indication of any significant disputes. If so, what contingency measures have been put in place? Has some calculation been done on financial implications for provinces because of this legislation? If it has been done, can the details be shared with the Committee? This would require provinces to provide budgetary provision for remuneration for a whole new class of traditional leaders.

Ms Spies asked who would be representing the Khoi-San communities in the interim while the process for leadership identification was taking place. The commission on the Khoi-San matters must advertise their public participation processes to all stakeholders. Which database are they using? How do they ensure that all organisations are invited?

In response to the commission’s budget constraints, she suggested that the council or the province where the meetings would take place should assist with venues and refreshments. People travel far in their provinces to attend these meetings. There is always a concern that the real Khoi-San descendants are representing the Khoi-San community. This calls for deeper discussion but it is always a question that comes up. Individuals representing Khoi-San communities must have the knowledge of customary law of the Khoi-San and its people.

Ms Mkhaliphi said that in the previous progress report (August 2021) the Department indicated that it developed a schedule for the implementation of the Traditional Khoi-San Leadership Act (TKLA) starting from the 2020/2022 financial year to 2024/2025. Is a copy of this schedule available to the Committee? This will help the Committee to assess if the reported implementation progress is consistent with the recommendations made in the implementation schedule. In response to the gazetted date for Khoi-San communities and leaders to lodge applications for recognition (30 March 2022), she asked how many meet the criteria for recognition out of the 15 applications received. How will the Department deal with applications that are received after 29 March 2024? Will the Commission not accept applications after the closing date despite valid reasons for late application? Does the Department know how many of the Municipal Councils have amended their standing roles?

The Chairperson said the plan looks good and seamless. He asked what some of the challenges that have come up along the way during the implementation process were. He invited the Department of Traditional Affairs to respond.

Response by the Department of Traditional Affairs
Mr Diphofa asked the Deputy Director-General to speak.

Ms Mogaladi thanked the DG.

In response to Ms Buthelezi on the Departments monitoring approach, she said that they came up with guidelines for 40% of traditional councils and the activities undertaken for the 60% component. All provinces submitted their project plans indicating their proposed activities with an accompanying timeframe. They monitor provinces based on their project aims. This is the monitoring approach taken. They are now asking provinces to provide progress reports so that the Department can determine any challenges and whether there is a need for intervention or not. The process of the Commission is still underway. They are drafting regulations that cover disputes and claims over Khoi-San recognition.

In response to Ms Spies, she said that they were still working with the Traditional Khoi-San Council in this regard. They welcome her proposal on catering services and will engage with provinces on doing so.

In response to Ms Mkhaliphi on sharing the schedule, she said that they would share these documents with the Committee. They do not have information on how many councils meet the criteria. The Commission is currently reviewing all applications. Once this is complete, they may be able to share this information, provided it does not compromise the work of the Commission.

On the question of late applications and extending the closing date, she said that it will be allowed if the law deems this satisfactory and another gazette is issued.

In response to the Chairperson on challenges during the implementation process, she said that there will be certain provinces that provide late information on progress. However, in most instances, provinces do submit required details on time.

The Chairperson thanked the Deputy Director-General and recognised the Director-General to speak.

Ms Diphofa said, in response to Mr Brink on financial implications following recognition of Khoi-San leaders, that at this stage they do not have a finalised cost. This was in a context where it was not known how many applications would be received and the number of leaders that would qualify. There is a process that is running with National Treasury. The agreement was to go through this process in a coordinated manner National Treasury through a technical committee on finance, lead by the inter-governmental relations branch of National Treasury. It brings together colleagues from the treasuries of different provinces. This matter is on the table for the technical committee of finance. This will help to guide one another with the provinces as the process unfolds and to provide realistic calculation on financial implications. As this information becomes concrete, it will be shared with the Committee.

In response to Ms Mkhaliphi on late applications, he said that in terms of the TKLA, there is a provision in the Act, when the need arises, to empower provincial administrations to take over responsibility, and this means that premiers are empowered to put in place mechanisms and measures to ensure that late applications will still be accepted. In response to amendments by municipal councils, he said that this was ongoing work with SALGA. Once information on this has been verified, they will update the Committee about these amendments by councils in line with new provisions of legislation.

Closing remarks
The Chairperson thanked the DG.

He said Deputy Minister Bapela was still not present in the meeting. He asked the DG to make closing remarks on his behalf.

The Chairperson expressed condolences for the passing of the AmaMpondo King. He said they were public representatives, and they cannot interact with these issues generally.

Mr Diphofa said that Deputy Minister Nkadimeng would give the closing remarks.

He said the late King, Zanozuko Sigcau, was the first king to be recognised in 2018 by President Cyril Ramaphosa. He was unfortunately not well and had to be admitted to hospital. They visited the family to begin preparations to bury his remains on Tuesday, 21 June. They are, he said, liaising with the President and his delegation to be present. They will update the Committee on further details.

Deputy Minister Nkadimeng thanked all for their presentations.

She thanked them for seeking counsel and guidance from members of Parliament on how to proceed on issues.

She expressed appreciation that they alerted Members for not putting their best foot forward in certain areas. As a commitment from both sides, she said that they would relook at some of the issues requiring thorough detail, information, submissions, and due dates. 

She also made a commitment on behalf of the Director-General and Deputy Director-General that key information on progress needs to be sent formally to the Committee for adequate review.

The Deputy Minister thanked all present and said she was looking forward to their next meeting.

The Chairperson thanked the Deputy Minister and said that was a good way to close the meeting.

The meeting was adjourned

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