White Paper Process on Traditional Leadership

Documents handed out:
White Paper Process on Traditional Leadership (attached below)

MINUTES
Mr K Sizani Deputy Director General in the Department of Constitutional Development made the presentation to the Committee (see appendix 1). A member representing the National House of Traditional Leaders also addressed the Committee. Mr Sizani said Chapter 12 of the Constitution does not clarify the role played by traditional leaders but only provides the framework. "So in May 1998 the decision was made to embark on policy."

Mr Sibuka, from the National House of Traditional Leaders, said research about the Khoisan people has been conducted and is still continuing. He said the most organised of the indigenous people are the Griqua. The feeling amongst these people is that they are not recognised as other population groups are. He said there is a need to empower these groups.

Mr Sibuka said for them to manage their goals there has to be regular meetings with Parliament. The status of the House whether it is temporary or permanent has to be discussed. He proposed not to go into detail but to reserve further comments for the next meeting. He echoed the sentiments of the Chairperson that the issue of traditional leaders is very involved and that it can only be managed and not resolved.

Questions by members and answers by Mr Sizani:
Q Mr N Ramodike (UDM): It is good that the Department has done research into the Khoisan people. One would imagine that the Department would in the same way do research on the tribes of the former homelands. A common genealogy of traditional leaders should be made. Secondly, I do not think it is appropriate for us to look at the role of traditional leaders as institutions but we must look at them as individuals.

Culture is a sum total of knowledge, experience, beliefs, values, attitudes, meaning and objects.

Customary society which observes a customary way of living and abide by its laws

Customary law and customs is broadly defined as being made up of (a) written (including statutes) and (b) unwritten law (beliefs and practices) passed from generation to generation.

Definition to be looked up in existing law.

• Refer to Section 212 of the Constitution.

Traditional rulers or leaders are individuals occupying communal political leadership positions sanctified by cultural mores and values, and enjoying the legitimacy of particular communities to direct their affairs. Their basis of legitimacy is therefore tradition, which includes a whole range of customs and way of life; a people's history; which includes a whole range of inherited culture and way of life; a people's history; moral and social values and the traditional institutions which survive to serve hose values.

Section 239 of Constitution:

(A) any department of state or administration on the national, provincial or local sphere of government; or

(B) any other functionary or institution

(I) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer

A matrix of organisations usually existing outside of state structures which embody different interests

Chapter 12 of the Constitution provides for the recognition, status and role of the institution of traditional leadership in South Africa, subject to all the other provisions in the Constitution. Traditional authorities that observe a system of customary law are empowered to function, subject to any legislation and customs (including amendments to or repeal of such legislation and/or customs). In addition, customary law is recognised, once again subject to the Constitution.

However, notwithstanding its Constitutional recognition, the exact role that the institution of traditional leadership should play in the current democratic context remains unclear. This is partly because so far government does not have a consistent policy on traditional leadership. Government has therefore decided to launch the White Paper Process on Traditional Leadership, through which all questions regarding the role, status and future of traditional leadership will be dealt with in a comprehensive manner. This white paper process is divided into three phases.

1. PHASE ONE (June 1998 - August 1999)

The first phase saw the production of a status quo report (SOR) on traditional leadership, wherein a national audit on traditional leadership was conducted. This audit focussed on such issues as:

(a) The collection of all pieces of legislation, especially from the former homelands, by which traditional leadership institutions are established;

(b) The collection of all statistical data relating to the total number of traditional leaders in South Africa, including those that were deposed by successive apartheid and homeland regimes in the past;

(c) The collection of data concerning the relationship between traditional leadership and various levels of government;

(d) The National and Provincial Houses;

(e) Remuneration;

(f) Cross-border matters;

(g) Relationship with communities;

(h) The role of women;

(I) Dispute resolution and

(j) Role in development.

(a) A survey of customary law norms pertaining the institution, status and role of traditional leadership

(b) A survey of legislation pertaining to the institution, status and role of traditional leadership

(c) A survey of court decisions pertaining to the institution, status and role of traditional leadership

(d) An empirical survey of the de facto position and practices pertaining to the institution, status and role of traditional leadership

(e) A review of South African and international literature

(f) Consultations with stakeholder in all three spheres of government (national, provincial and local

(g) An audit of information contained in government files,

(h) Consultations with a number of communities and other stakeholders e.g. traditional leaders, relevant NGO's, CBO's, etc.

(i) Commissioned papers on topics such as:

The role of women

Relations with local government

Trusteeship

2. PHASE TWO

2.1 Time Frames

Discussion Document October 1999 to February 2000

Green Paper March to May 2000

White Paper June 2000

The Discussion Document stage of this phase is currently being written and is due to be launched for public debate by the end of October. A range of issues, most of which have emerged from the SOR, are being dealt with in terms of posing leading strategic questions which stakeholders must respond to. The following are examples of the issues being dealt with in this phase:

2.2 The structure of traditional leadership

1. Categories of Traditional Leaders

The SQR has identified three broad categories of traditional leadership, namely Kings/Paramount Chiefs, 'Chiefs' and headmen.

There are a total of eleven Kings/Paramount Chiefs in South Africa.

Eastern Cape 6

1. There is a total of 775 traditional leaders in South Africa

KwaZulu-Natal 280

Northern Province 193

North West 68

Mpumalanga 48

Eastern Cape 173

Free State 13

(b) Traditional leaders exist mainly in the six provinces as represented at MINMEC on Traditional Affairs, e.g. Mpumalanga, Eastern Cape, North West, Northern Province, Free State, and KwaZulu-Natal

The following is a generic set of functions as set out in the various pieces of legislation, and in terms of customary law, and as such are not specific to any category of traditional leadership. The list is not exhaustive.

(a) Acting as head of the traditional authority, and as such exercising limited legislative powers and certain executive and administrative powers,

(b) Presiding over customary law courts and maintaining law and order,

(c) Consulting with traditional communities through imbizo/lekgotla,

(d) Assisting members of the community in their dealings with the state,

(e) Advising government on traditional affairs through the Houses of Traditional Leaders,

(f) Convening meetings with communities on needs and priorities and providing information,

(g) Protecting cultural values and providing a sense of community in their areas through a communal social frame of reference,

(h) Being the spokespersons generally of their communities,

(I) Being symbols of unity in the community,

(j) Being custodians and protectors of the community"; customs and general welfare,

(k) Making recommendations on land allocation and the settling of land disputes,

(I) Lobbying government and other agencies for the development of their areas,

(m) Ensuring that the traditional community participates in decisions on development and contributes to development costs,

(n) Considering and making recommendations to authorities on trading licenses in their areas in accordance with law.

The multiple application of the different laws and procedures of appointments of traditional leaders at all levels has resulted in a number of problems that have led to a need for policy in this area. For example after 1994 the Mpumalanga the Provincial Government issued new letters of appointments to all categories of traditional leaders in terms of the Black Administration Act of 1927. This was against the provisions of the Interim-Constitution, which provided for the assignment of the former homeland legislation, i.e. former KwaNdebele and Bophuthatswana legislation and the pre-1994 RSA legislation. Critical here are the roles of kings, the royal family, government, (national and provincial), The Houses of Traditional Leaders, etc.

(a) Given the provincial and customary differences, to what extent is the position of Paramount Chiefs or Kings of equal or unequal status?

(b) To what extent are the existing categories of traditional leaders the same? (For example headmen in KwaZulu-Natal are viewed differently from headmen in other provinces such as Eastern Cape or a number of parts in the Northern Province)

(c) Which level of government will be most appropriate to deal with the appointment of traditional leaders in each level?

(d) What role and at what level can the Provincial Houses of Traditional Leadership play in any with regard to the appointments of traditional leaders?

(e) What role should the Kings who reside in neighboring countries such as Swaziland, Botswana and Lesotho play in the appointment of traditional leaders and at what level?

(f) In cases where there are disagreements within the Royal family or the Kings or Paramount Chiefs Council, what structure should intervene in order to assist in resolving the dispute?

2. Headmen / iziphakanyiswa / Izibonda

In addition to formally appointed traditional leaders (who are in possession of letters of appointment issued by a functionary in terms of a statutory provision), there are also headmen who exist in the lower rungs of the institution of traditional leadership in many regions in South Africa. There is no uniformity of approach as regards the basis for their functioning (appointment, election, succession), official recognition and remuneration. Their functions include:

(a) Assisting traditional leaders in the execution of their duties and the performance of their functions.

(b) Being responsible, at village level, for the administration of community affairs.

(c) Acting as the representative of the traditional leader in the performance of his or her duties and the execution of his or her functions.

(d) In the case of the independent headmen (where there is no formally appointed traditional leader) the headman in actual fact acts as traditional leader.

The functions of headmen also vary in some respects from region to region. In all provinces, except KwaZulu-Natal, existing legislation makes provision for the official appointment and remuneration of headmen:

Issue

The issue therefore is that there are different approaches between the provinces, and that there are even differences between regions within particular provinces. Apart from the legislation, which differs from region to region, the existing legislation is also not always applied in all instances by the provincial governments.

In addition it is disputed whether or not headmen are part of the institution of traditional leadership, because in other provinces they are elected, while in others they are appointed.

Strategic questions

The following are some of the questions therefore that require clarity in this respect:

(a) Whether or not headmen are part of traditional leadership.

(b) Whether they should be entitled to any form of state recognition, and the kind of implications this has for government.

(c) The nature and extent of government's obligations towards them.

3. Deposed Traditional Leaders

A number of traditional leaders were deposed by successive apartheid regimes, and replaced by those traditional leaders who were viewed as positively receptive to the policies of past colonial and apartheid regimes. During the production of the SQR, a number of presentations on this issue were received from various stakeholders, including traditional leaders. Also some of them were deposed for committing serious crimes.

Issue

With the introduction of democracy in South Africa, the 'legitimate' traditional leaders have come forward claiming their original positions since they were deposed for political reasons. This has a potential of destabilising communities, particularly where the current incumbent traditional leader who was imposed or installed at the expense of the legitimate one, is seen to have looked after the interests of the communities under her/him well.

Strategic Questions

(a) To what extent is it practical or even desirable to remove those traditional leaders who were 'imposed' and replace them with the 'legitimate' ones?

(b) If stability and legitimacy are competing, which concept should be preferred?

(c) If government should intervene given that it was a different government that gave rise to the problem, what level of government should intervene?

(d) What role should the Provincial and National Houses of Traditional Leaders play, if any?

(e) What should the role of the affected communities be?

(f) If deposed for common law crimes is this forever, and does it affect children?

2.5 Remuneration of Traditional Leaders

The issue regarding the payment of traditional leaders has been handled separately by the Steyn Commission. Recommendations made by this commission are reflected in terms of the salary levels contained in Proclamation No.19901, which the Remuneration of Public Office Bearers Act No.20 of 1998 provides for.

However the payment of pension and medical aid benefits to traditional leaders remains an outstanding matter. An intergovernmental committee was established to look into and formulate appropriate recommendations, and has since made its recommendations, which will soon serve before Cabinet in a memorandum.

2.6 Formal Structures of Traditional Leadership and Institutions

These are structures established in terms of legislation, and they include, Traditional Authorities, Regional Authorities, Chiefs' Councils, Community Authorities, etc. At the meeting of MINMEC on 5 October 1998, provinces tabled reports, which, among other things, indicated the financial problems, which many of these structures are experiencing, which included staffing and infrastructure problems. These reports indicated the levels of government's financial support to Traditional Authorities in terms of grants and subsidies.

4. The Role of Civil Society (NGOs, CBOs, Women, the Youth, etc.)

The Constitution makes provision for the participation of citizens in matters of governance. The policy process will need to explore the application of such constitutional provisions to the institution of traditional leadership and the participation of organs of civil society in such structures. This includes the role and participation of women and the youth.

The institution of traditional leadership and the elected structures of local government operate at the same level in all provinces. Given the overlaps in responsibilities and the tensions that have resulted from such overlaps, the relationship between the two structures is a conflictual one instead of being the one of mutual co-existence.

This tensions between the traditional leadership and elected structures, has in some areas led to violent clashes, and has hampered service deliver'. This has also destabilised various communities in all the provinces. In other words much as there are areas where there is cooperation between the institution of traditional leadership and elected structures in one province, within the same province, there are other areas, which are experiencing, tension.

The ex-officio status of traditional leaders in rural local government structures, in terms of the Interim Constitution and in terms of the Local Government Transition Act, has been applied differently within and between provinces. In other words in one province some rural local government has representation for traditional leaders, while in others such representation does not exist. In some cases such as in some parts of North West, traditional leaders are reluctant to participate in such structures and in other cases such as in some parts of Northern Province, they are not welcomed. The concept ex officio is also understood differently by different role players. Some interpret it to mean participation without voting powers, and others interpret it to mean participation with voting powers.

The Department of Justice is responsible for the application of all the old order national and homeland legislation pertaining to the administration justice. Justice matters are not a Schedule 4 concurrent (national and provincial) issue, and have thus not been assigned to the provinces.

Legislation dealing with the amendment of the customary law of succession was passed by Parliament in 1998. This act now regulates intestate succession, and has by and large abolished the customary law of succession.

In terms of the 1996 Constitution traditional courts (the courts of chiefs and headmen (established in terms of the Black Administration Act 3 of 1927 or the particular homeland legislation concerned) are recognised as part of the court system of South Africa.

The Department of Justice is also responsible for the conferment of civil and criminal jurisdiction on traditional leaders. Since 27 April 1994 this has only taken place in a very few instances. The South African Law Commission has recently published a Discussion Paper on customary courts, which provides for the continuation of these courts. It however proposes the democratisation thereof in the sense that women should also be represented on the courts, and that all councillors should henceforth be elected by the community concerned, (and no longer be the senior male advisors of the traditional leader).

Another issue that needs to be addressed, is whether the civil and criminal jurisdiction should be bestowed on the traditional leader him/herself (as is the case in the most parts of South Africa) or on the traditional authority (as is the case in the'. former Bophuthatswana areas). The position of the so-called landless chiefs (traditional leaders with a community, but without a specified jurisdictional area), who have only civil jurisdiction, needs also to be investigated.

The Department of Home Affairs is responsible for policy formulation and the administration of legislation pertaining to marriages. Such matters are not a Schedule 4 concurrent (national and provincial) issue, and have thus not been assigned to the provinces. This Department submitted legislation in respect of customary marriages to Parliament in 1998. The new Customary Marriages Act now regulates all customary marriages, and has by and large replaced the customary law of marriage.

The Department of Minerals and Energy is responsible for policy formulation and the administration of legislation pertaining to mineral rights. Mineral matters are not a Schedule 4 concurrent (national and provincial) issue, and have thus not been assigned to the provinces. The Department has recently published a White Paper on Minerals which provides for the short term continuation of the existing vesting of mineral rights (but with a much stronger role for government as regards the allocation of prospecting permits and mining authorisations), and in the long term, their vesting in the state. As regards land occupied by traditional communities, the status quo in terms of which nearly all-mineral rights vest in the State (in a very few instances the mineral rights vest in the individual communities) is retained. The White Paper also provides for the principle of benefits from prospecting and mining activities to benefit also the local communities.

The Department of Land Affairs is responsible for policy formuIation and the administration of land legislation. Land matters are not a Schedule 4 concurrent (national and provincial) issue, and have thus not been assigned to the provinces. The Department of Land Affairs has embarked on an all encompassing policy renewal processes that affects, amongst other things, tenure issues (also in respect of land occupied by traditional communities) and land administration systems and processes. The introduction of CPAs (Community Property Associations) in the rural areas (which have resulted n some instances in the traditional institutions no longer playing a role in the allocation and administration of land) has already had an impact on land administration.

One of the processes that have affected traditional Ieadership is land restitution. In a number of areas the impact of land restitution has been negative and has had a destabilising effect to various communities. For instance it has led to a creation of new chieftaincies in provinces such as KwaZulu-Natal, NorthWest, Northern Province and Eastern Cape. In the North West Province it has been used as a mechanism to resolve chieftainship disputes, and this has led to the division of traditional communities. It has compounded the problem of landlessness in provinces such as Free State, NorthWest and the Eastern Cape. It has also led to the division of existing chieftaincies, and has also led to cross provincial allegiances in provinces such as KwaZulu-Natal, NorthWest, Northern Province and Eastern Cape.

However the role of traditional leadership in land allocation and policy is being discussed. The key issue is for the four departments referred to above to co-ordinate the efforts to have an integrated policy on traditional leadership and institutions

(a) What should the role of traditional leadership be in the land restitution process, e.g. the National and Provincial Houses of Traditional Leadership?

(b) To what extent should the process of land restitution and other related elements of the Development Facilitation Act be revisited?

The National House of Traditional Leaders (previously the National Council of traditional Leaders) was established in terms of the National Council of Traditional Leaders Act of 1998, as amended. This Act provides for the establishment of the National House, whose members are to be nominees from the six provincial Houses. It is empowered to advise national government on issues regarding traditional leadership and institutions, traditional communities; customary law and customs as well as matters referred to it by government. Its members (including the chairperson) are part-time.

The National House has indicated that it wants to play a more significant role in the process of policy formulation and the finalisation of legislation.

The role of the National House of Traditional Leaders in law making, its programmes, the manner and nature of its advise to government, accountability to communities, and how it links with the Provincial Houses of Traditional Leaders, needs to be clarified in policy. It must also be considered if the Houses are necessary, and if so, what their role should be.

The provincial governments are not obliged to refer any matters to the houses of traditional leaders before making submissions to the provincial legislature. The Houses have often made it clear that they want to play a more substantial role. In most instances the Houses are not involved in the legislative processes of their respective Provinces. The Houses have often made it clear that they would want to play a more substantial role.

(a) Should the functioning of the National and Provincial Houses of Traditional Leaders, be reviewed, taking into account:

• How the National House relates to Parliament in terms of the referral of legislation,
• How the Provincial Houses relate to Provincial Legislatures,
• How these Houses are constituted,

How they account to the institution of traditional Ieadership as well as to communities in general?

The Constitution provides that every citizen be entitled to belong, stand for elections and vote for a political party of their choice. However, there is a need to consider, in view of the need to promote governance and impartiality, whether it is not counter productive for traditional leaders to overtly espouse; their party political views.

2.14 Cross Border Issues

The SQR process revealed that in a number of communities in areas bordering Lesotho, Swaziland, and Botswana, traditional Ieadership areas are straddled across provincial and even international borders. There is clearly a need for a policy on customary relationship between traditional communities and traditional leaders resident in other provinces and/or adjacent countries.

A range of additional questions will be posed in this phase, including:

• Is the Institution of Traditional Leadership an organ of state or part of civil society?
• How, and to whom does the institution of traditional leadership account?
• What happens if there is transgression, which calls for the disciplining of a traditional leader? (For instance, a civil servant can be disciplined and this includes dismissal.)

2. PHASE THREE

This phase will focus on making the new legislation, the rationalisation of old legislation and the implementation of the policy framework as approved by government.