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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
7 June 2000
TRADITIONAL LEADERSHIP AND INSTITUTIONS: WORKSHOP AND HEARINGS
South African Human Rights Commission
Commission on Gender Equality
South African Law Commission
Human Science Research Council
Environmental & Development Agency (EDA) Trust
Discussion document towards a White Paper on Traditional Leadership and Institutions, 26 April 2000
A number of different organisations made presentations to the committee and the two main themes that were discussed were, firstly the role of traditional leaders in local government and secondly, the role of women and their rights in traditional leadership structures.
South African Human Rights Commission (SAHRC)
Ms Shirley Mabusela, SAHRC Deputy Chairperson, said that the traditional leaders because of their role at the centre of colonial wars, had been subjugated by colonising powers. The people of South Africa had only attained their freedom in 1994. The current question was how the position of traditional leaders could be promoted. In this respect the SAHRC welcomed the draft discussion document.
Reference should be made in Point 4.2 (International Human Rights and Traditional Leadership), to the relevant international bodies and international conventions on indigenous peoples, for example the UN Draft Declaration on the Rights of Indigenous Peoples. Drawing from these conventions, the institutions and structures of traditional leaders should be allowed to exist as structures separate from all other democratic structures.
Institutions should not apply unfair gender discrimination in the appointment of traditional leaders. Woman should be allowed to become traditional leaders and this view was indeed supported by the UN Convention. Albie Sachs had said that it was unfortunate that equality and custom should be seen by some as clashing. These were not static concepts and it was believed that woman should be allowed to play a full role in traditional leadership structures. The government had a responsibility to promote this through the necessary legislation.
Point 10 (Status of youth/minors in traditional communities) was unclear on the age of succession as well as the specific definition of youth. Mechanisms to ensure a minor attained full status as a traditional leader had to be clarified. Where necessary, dispute resolution structures should be used.
The government's responsibility to the dependants of deceased leaders should continue. The International Labour Organisation Convention (Section 169) and the UN Draft Declaration on the Rights of Indigenous Peoples stated that the rights of people, separated by the arbitrary demarcation of provincial and national borders, should be respected by governments. Above all, the provisions in the Constitution needed to be real and meaningful.
Commission on Gender Equality
Commissioner Pinkie Mbowane said that within tribal authority, succession seemed to be the cornerstone of discrimination (see document for full presentation). Commissioner Zubeida Barmania added that she was very pleased with the presentation by the SAHRC.
South African Law Commission
Prof Nhlapo said that the discussion document was only a starting point. Some of the frameworks in the document needed to be extended.
The Law Commission had taken a document dealing with Customary Courts around the six provinces which had houses of traditional leadership. There was widespread support for a new system for traditional courts and for a single set of laws governing such courts rather than the current piecemeal system. The Commission on Gender Equality had included the Law Commission in meetings with women's groups so that these views could be considered too. At the moment the draft Customary Court's Bill was being fine-tuned. It aimed to be the vehicle for the recognition of traditional leadership judicial jurisdiction and what exactly this jurisdiction would be. The Law Commission believed that traditional courts should be considered as courts of law, not informal dispute resolution tribunals, as some had argued. There was also a provision which stated that woman should have the right to litigate in traditional courts which was very significant.
Environmental and Development Agency Trust
Mr Dlamini read their presentation (see document). In closing he expressed the need to redefine communities versus tribes.
A chief expressed his concern about the succession of women as traditional leaders. What was being suggested in place of succession from father to son? He felt that to do it any other way than what was tradition was out of order.
Ms Mabusela replied that their input into this discussion was to make people think critically about the way they viewed their traditions. Historically, African traditions had been seriously undermined and now, since South Africa had a Constitution, the principles of equality contained therein could not be ignored. Some of the proposals made here would make some people unhappy and uncomfortable, but what was needed was for people to challenge themselves. For instance, the chief who had asked what happens to the daughters of chiefs, must accept that this is just the start of the discussion. They did not claim to have all the answers here, they were just saying that there should be an open discussion and a dialogue on this.
Ms Mbowane added that what when a chief was a woman and got married, changing her surname did not mean that her tribe just disappeared. They were proposing that such issues should be discussed together and a solution found. A number of possible solutions had already been put forward and these had to be considered. There had to be provision made for girls to have a opportunity of an inheritance.
Chief Patekile Holomisa then asked what were the implications of an eldest daughter being made a chief? Also, with respect to the Mudjadjis, did that custom not discriminate against men? Had there been any research to see whether the conditions of woman in that tribe were any better than in other communities? Ms Mbowane said that with respect to the Mudjadjis, there was discrimination there, but it was acknowledged that change needed to take place there too.
An ANC member said that he did not think it was fair to relegate these submissions to dealing only with the issue of women ascending the throne. Other structures such as traditional courts and traditional councils were also inherently sexist in their treatment of women. What was needed was innovative ways of addressing this issue as a whole.
Mr Carrim commented on Chief Holomisa’s assumption that there was some inherent difference to the Mudjadjis - he did not believe that they should be considered any different from any other tribe. Mr Carrim asked in what way were customary courts different from what the law made provision for at present?
Prof Nhlapo of the Law Commission said that some of the provisions of the draft bill aimed to keep attributes of customary courts as they were (for example, anyone could stand up and speak). However, there needed to be the assurance that women should be present on the panel that was used to deliberate on traditional courts. Presently, traditional leadership structures do have an element of democracy because different councillors had different constituencies. The accused should have rights of appeal, but what was up for discussion was whether that appeal should be to a magistrate or to a traditional structure of appeal. What the committee was discussing in this meeting, was strictly local indigenous customary law.
A member noted that the EDA had said that all issues on planning and development had to go through a public participation process although chiefs should also be subjected to "popular control". What was meant by this?
Mr Dlamini said that in a particular local government plan, they found that they could not proceed unless they had the concurrence of local chiefs because of the issue of land ownership. The Department of Land Affairs therefore needed to be involved here. On the issue of decision making, some chiefs did not allow any decisions to be made without their own involvement. Ms Mabusela added that in many communities, there were different factions, therefore problems were encountered when considering the implementation of development plans, because they were perceived to be associated with one particular faction. Therefore chiefs would need to have a full mandate, or else development would be hampered.
Chief Holomisa asked how this issue was going to be addressed by the Commission on Gender Equality? He added that it could not be said that the issue of woman in traditional leadership structures was non-negotiable, since they were at present negotiating that very issue! Chief Little also asked why all the members of the Gender Commission were women? Neither of these questions received a response.
Human Sciences Research Council
Dr Gregory Houston said that the HSRC was a research organisation but his contributions were in his personal capacity. He said that traditional leaders needed to embrace democracy and he was pleased to hear that CONTRALESA would allow councillors to be elected, but could this be enforced? It had to be remembered that customs were not cast in stone. Issues of accountability needed to be addressed. The ultimate convergence of traditional leadership structures and democracy, was if traditional leaders were elected to local government structures. However, due to the fact that party politics would manipulate such traditional leaders, they should stand as independents. Traditional leaders should not be emaciated, but roles for the youth and for women, needed to be found. Traditional leaders and local government structures should jointly carry out legislative, executive and administrative functions, and joint structures should be set up in order to accomplish this. The issue of remuneration needed to be resolved by tribal leaders themselves.
South African National Civics Organisation
Mr Welcome Zindzile, of SANCO, said that the position of women should be revisited and they should not be restricted in the ownership of land. With respect to the participation of traditional leaders in local government structures, the entire process had been misconstrued and politicised. Traditional leaders should not be given political powers unnecessarily. All decisions on traditional leadership structures should be informed by the view that poverty had to be eradicated.
South African Local Government Association
Mr BJ Buthelezi of SALGA said that the co-operative model of rural local government should begin to be shaped in accordance with the Constitution. The most crucial point was that in the same way that traditional leadership was part of the reality of the South African situation, local government was also here to stay. For this reason there was an overwhelming imperative that a co-existence be found between local government and traditional leaders.
Chief Moletsane, Bataung People
Chief Moletsane, representing the Bataung people in the Free State, said that his tribe had always been one of the senior tribes of the Basutu peoples, but they had never been admitted to the House of Traditional Leaders in the Free State. They had been negotiating with the government since 1948, even with Verwoerd. In 1967, that administration had embarked on the Bantustan policy and had established Qwa-Qwa, ignoring their status. They were therefore pleading with the committee to recognise their status. A Commission had been established by Mr Lekota on their position, but he had left before they could benefit from any outcome of that Commission. There was also a Commission on whether or not the Bataung, were part of tribal structures in Lesotho, but there was no resolution on that either.
He said that his people were unhappy about this state of affairs and pleaded with the committee to help his people. If his pleas were not answered, they would be forced to take the bull by the horns. They had followed all available channels under both the apartheid government and the democratically elected government, all in vain. His tribe was an integral part of the Basutu people, and therefore deserved its place in the House of Traditional Leaders. They were told in 1997 that a Commission of Inquiry would investigate their position but they still did not know what the result of that Commission was. He once again asked the committee to listen to his plea since it was a serious one.
Mr Carrim told Chief Moletsane that the committee was not in a position to address his grievances. All they could do was to write to the minister, which was what they would do.
Mr Carrim put questions to the different presenters:
- Mr Houston of HRSC was asked if there was not a contradiction between stating that the nature of the institution was contrary to democracy yet stating that all people should be given equal voting rights in the traditional councils?
- Was SANCO's position not to ensure that traditional leaders worked together with local government structures?
- If SALGA was saying that local government and traditional leaders should work together, should they not have a programme in place already to ensure this?
Mr Houston replied that the nature of the institution of traditional leaders as it stood at the moment, was incompatible with democracy. Insofar as this institution could be democratised - and important in this process was the democratisation of traditional councils which would be the starting point - traditional leaders would be considered true representatives of the people. In the process, their executive and administrative functions would be legitimised. He said that he had not been advocating the election of traditional leaders themselves, but only the election of traditional leaders into local councils.
Mr Zindzile of SANCO said that traditional leaders had been the only structures which could address land issues for a long time. Things had since changed significantly with political structures and community-based organisations such as SANCO delivering legitimate leaders. These elected leaders were, and still are, seen as a threat by traditional leaders. From 1994 onwards, it had become more and more clear to members of the community that they had a right to make representations to all levels of government. Traditional leaders had therefore began to say that their terrain was being trampled on. This was not the case.
A representative from the EDA asked whether SANCO was opposed to the land tenure system as a whole? Should traditional leaders be the ones to resolve land disputes in their view?
Mr Zindzile said that SANCO did believe that there should be one structure of local government. Therefore, the issue of land redistribution could not be divorced from this issue.
A committee member asked the SALGA representative if he understood his point to mean that there should be co-operation between traditional leaders as individuals and local government? What about co-operative governance between the two structures on that level?
Mr Buthelezi answered that he was not advocating that co-operation should be individualised but rather that it should be at the level of structures.
Mr P Smith (IFP) said that the discussion document acknowledged an overlap and also that positions needed to be clarified. This could mean a number of different things. SALGA said that the roles and functions of traditional leaders should be redefined, but what about the issue of possibly redefining the role of local government structures?
Mr Buthelezi replied that each and every structure of government was continually being redefined. What they were advocating with the need for redefinition of traditional leadership structures, was that they needed to know more about what these structures were doing to develop communities.