Customary Initiation Deaths; Independent Municipal Authority Demarcation Bill: briefing

Meeting report

The Chairperson welcomed everyone to the first meeting of the year, and made reference to the President's State of the Nation Address which was praised for its progressiveness, covering economic growth and job creation, and emphasizing inclusive growth. Importantly, the President in his speech highlighted the importance of municipalities in the economic strategy and connecting cities to address rural and township aspirations.

Emphasis was placed on the need to expedite the review of the Local Government White Paper, which includes funding for municipalities. The Select Committee will continue to oversee this matter, review the Independent Municipal Demarcation Authority Bill, and ensure public participation in this legislative process. Provinces will have eight weeks for public consultations, and a meeting on the Bill is scheduled for 20 February 2025 in the Eastern Cape.

The Chairperson noted the Select Committee programme. It is set to finalise its post-legislative impact assessment of the Customary Initiation Act on 24 March 2025. There will be engagement with various stakeholders to address the challenges related to initiation practices. The Select Committee will oversee the functionality and funding of municipalities, focusing on identifying and supporting dysfunctional municipalities through engagements and oversight visits, starting with Western Cape and Free State. It will also review the impact of Section 139 interventions and support provided under Section 154 of the Constitution on service delivery and municipality performance.

Independent Municipal Demarcation Authority Bill [B14 - 2022]: briefing
Mr Kevin Naidoo, COGTA Deputy Director-General (DDG): Institutional Development, said the draft Bill was published in June 2020 for public comments after a series of engagements and workshops with stakeholders. A stakeholder workshop was later held to review the public comments. As a result of numerous amendments from the consultation process, the entire Act of 1998 was repealed and replaced with new legislation. Significantly, the 1998 Act originated from the 1998 White Paper on Local Government. Cabinet approved the Bill in in March 2022 for introduction to Parliament. Public hearings were conducted by the COGTA Portfolio Committee from July to September 2023 and various amendments were made to the Bill before adoption by the National Assembly. The Bill was then referred to the Select Committee and provincial legislatures for public hearings and submission of negotiating mandates to the National Council of Provinces. Additionally, engagements were conducted with provincial legislatures to provide technical clarity on the Bill's provisions.

Mr Naidoo said the Independent Municipal Demarcation Authority Bill aligns to section 155(3)(b) of the Constitution, which requires that national legislation must “establish criteria and procedures for the determination of municipal boundaries by an independent authority.”

The Portfolio Committee made amendments and Mr Naidoo noted these points:
Long Title: Adapted to include capacity assistance for municipalities and an appeals authority, necessitating new definitions.

Authority Composition: The authority now consists of a Board and administration, unlike the previous legislation.

Functions of the Authority: Expanded to include municipal capacity assessments, aligning with the Municipal Structures Act.

Clause 7: Emphasizes regional diversity to reflect South African society, incorporating input from engagements with the portfolio committee.

Board Member Qualifications: Added requirement for a qualification in information technology; full-time state employees cannot be Board members.

Clause 11: Board members serve for five years and cannot exceed two consecutive terms. A single Board oversees both outer boundaries and ward delimitation.

Clause 16: Names of committee members must be published on the authority's website for transparency.

Clause 17: Board may delegate powers but cannot delegate the final decision on municipal boundaries.

Clause 19: The head of administration is now referred to as the chief executive officer, with employment conditions derived from the Public Administration Management Act.

Clause 23: Aligned with local government objectives and SPLUMA, considering community views.

Clause 25: Sections from the Municipal Structures Act have been integrated into the Bill.

Clause 26: Major redeterminations occur every 10 years, and no changes after the minister publishes the councillor formula.

Clauses 27-30: Processes for public participation, objections, and final determinations are outlined, involving multiple stakeholders.

Clause 33 onwards: Timetable for delimitation is published in the Government Gazette following the minister's publication of the councillor formula.

Clause 38 emphasizes the establishment and constitution of the appeals authority, suggesting specific timelines and continuous updates for handling appeals.

Mr Nhlamulo Mathye, COGTA Acting Director, noted the proposed amendments in the negotiating mandates from the provinces and which of them had been accepted by COGTA. These included the importance of including traditional and Khoisan leaders; to ensure fair representation for individuals with disabilities, the Free Sate suggested that a percentage of the Board should be designated for people with disabilities and the selection panel should consider this during their decision-making. The proposal that advertisements for Board nominations must be made accessible to those without mainstream media access is already catered for in the Bill. There was a proposal that individuals appointed to the Board must undergo a screening and vetting process to avoid misrepresentation of qualifications. Clause 24 states that the determination process should consider geographic, economic, and social factors, which has been included in the clause.

Mr Naidoo said that the presentation notes the COGTA responses provided to the negotiating mandates from eight provincial legislatures. The Bill has been translated into seven languages: IsiZulu, Sepedi, IsiNdebele, Sotho, Setswana, Siswati, and efforts are ongoing to translate it into Tsitsonga, Isixhosa, and Tshivenda.

Discussion
Dr Scheurkogel (DA, Free State) asked when the remaining translations will be completed, as this might have impacted the inclusion of certain communities. He asked about the timeline for the start and end of public participation, noting that notices had already been sent to the provinces. He asked about COGTA’s proactive measures to ensure effective public participation, especially in remote areas like the Northern Cape, and how it plans to involve community members and not just politicians during the demarcation process. He emphasized the need to make public participation more inclusive, as it is a key intent of the GNU.

Ms T Breedt (FF+ Free State) sought clarity on clauses 30, 31, and 38 to 46 about public participation and the IMDB decision-making process. She asked if it is the same process with the additional option of going to court to query the Board's decision. She mentioned cases in the Free State where the community opposed the Municipal Demarcation Board's decisions but were overruled. She inquired why the Western Cape’s procedural comments were left out of the COGTA response, stressing their importance. She questioned why the negotiating mandates from the previous Parliament were included in the decision, referencing prior minutes and legal advice that suggested allowing enough time for public participation and reopening the Bill for comment. She asked if COGTA views public participation as unnecessary, which contradicts the Committee's decision and legal opinion.

Mr D Bryant (DA) said that he is concerned about the public participation aspect, noting that the Western Cape Parliament has not been notified of any public participation process, suggesting it has not begun. He requested information on when the public participation process will start, emphasizing the importance of including all constituents.

Mr Bryant noted a letter from the Western Cape Speaker, Mr Daylin Mitchell, sent to the previous NCOP Chairperson, Mr Masondo, on 15 February last year. The letter raised concerns about the public participation process and timelines, which were deemed inadequate. He asked if the letter had been considered. He sought clarity on the public participation process going forward so as to communicate it to Western Cape residents.

Mr R Badenhorst (DA, Western Cape) noted that the 15 February 2024 letter highlighted the omission of the procedural concerns of the Western Cape negotiating mandate and questioned why this omission continues in this briefing to the Seventh Parliament. He recalled the 11 October 2024 Committee meeting where legal advice was deemed necessary but was unavailable. Legal advice is critical for the Bill's resumption, guided by section 217 of the NCOP Rules. The Bill's flawed public participation process and the mandates received will cause legal issues. He stressed the need for new negotiating mandates if the Bill goes back to provinces for proper public participation, in line with the Bill's importance.

Mr M Peter (UDM, Eastern Cape) asked what informs the Board when demarcating municipal boundaries; what criteria does the Board use when demarcating wards and why is it necessary for the Board to demarcate a municipal boundary when the election is just around the corner?

Ms M Makesini (EFF, Free State) sought clarity if the briefings to the provincial legislatures such as to the Eastern Cape last week, represents a continuation of previous work or a new process agreed on in the last committee meeting. She requested the dates for the briefings for the other provinces.

Ms Makesini inquired about the qualifications required for IMDB board members. She agreed they should have IT qualifications. She asked for clarity on clause 27 on public notification for determination of municipal boundary which included the need for consultation with the MEC, SALGA, the magistrate, and traditional and Khoi-San leadership to accommodate everyone in the communities.

Mr K Ceza (EFF, Mpumalanga) said that he has concerns about the IMDB's process and lack of resources, particularly on its decentralization and how it addresses disputes in rural areas. He asked about the provision for Braille documents by the IMDB, noting that 170,000 people in South Africa rely on them for public hearings. He asked about including marginalized languages beyond the 11 official languages. He highlighted past problems with public participation in the Western Cape, where resources were wasted due to low attendance at public meetings. He asked how public participation efforts will be conducted differently this time to avoid similar issues and if the delays are due to public or political factors.

Mr K Mmoiemang (ANC, Northern Cape) appreciated the presentation and asked the reason for aligning the IMDB's term with that of the municipal councils, expressing concern that it might compromise long-term planning. He pointed to the removal of the integrated development objective for determining or redetermining boundaries, emphasizing the importance of integration for social cohesion and the new developmental local government.

Mr Mmoiemang addressed the procedural aspect, noting that only one province had a challenge with the negotiating mandate. The Select Committee follows statutory rules and should proceed from where the previous administration left off, allowing legislatures to deliberate on the final mandate. He acknowledged that Mr Bryant's point made sense.

Adv Mkhuseli Mbebe, NCOP Procedural Officer, said that the Office of the Chairperson received requests from the Western Cape and other provinces on the public participation process. The Chairperson noted these concerns, and legal advice was provided to ensure public participation to avoid crucial problems The court has emphasized that provincial and SOP processes are intertwined, meaning failures in provincial public participation will affect the SOP process in finalizing the Bill. Therefore, legal advice was provided. The speaker mentioned that according to the rule, the process would start where it ended. However, given the numerous requests received from provinces, including Limpopo, the chairperson proposed allowing provinces, especially those with inadequate public participation, to conduct the process consciously and legally to avoid challenges.

The Chairperson said that the legal advice suggested reopening the process for provinces that felt the public hearings were inadequate, rather than nullifying them. COGTA addressed some points raised in the provincial negotiating mandates that were already covered in the Bill. The process would start from where the previous Parliaqment left off, allowing provinces to revise and update their mandates. This approach ensures continuity without nullifying previous efforts, as the process was inadequate but not illegal. Provinces will review previous proposals and add their own inputs. He emphasized that the government operates by law and rules.

Department's response
Mr Kevin Naidoo responded based on the issues raised by Honourable Members. He first clarified that public participation involves both the National Council of Provinces (NCOP) and the provincial legislatures. The NCOP leads the public participation process for the Bills in Parliament, while provincial legislatures handle public participation at their level. Mr Naidoo highlighted two aspects of public participation: the parliamentary process and the Municipal Demarcation Board (MDB) process. In the MDB process, the community engagements are initiated, and an investigating committee is deployed to develop a report, which is then tabled before the Board. The follow-up process involves presenting the report to the affected communities. This process ensures maximum public participation in boundary determinations, COGTA for outer or inner boundaries. The Bill currently under discussion includes provisions for both outer and inner boundary determinations, requiring all components such as community engagement and public notice in the Gazette to be fulfilled for inner boundary determinations as well. This ensures concentrated efforts in public participation for both outer and inner boundaries. Moreover, Mr Kevin Naidoo responded by clarifying the issue around public participation.

Mr Naidoo replied that COGTA's presentation to the Select Committee was comprehensive, including information on the negotiating mandates from the Sixth Parliament. He noted that the Eastern Cape legislature had not previously undertaken a public hearing but has scheduled one for 20 February. This timing appears to be a mismatch with the process commencing towards the end of March, as indicated by the Chair.

Mr Naidoo explained outer and inner boundary changes. The law requires that when wards are delimited, the number of registered voters in a neighbouring ward should not deviate by more than 15%. For example, in a city with 270 councillors, 50% would translate to 135 wards. The technical exercise for inner boundary delimitation means each ward in a municipality must not deviate by more than 15% of the average number of registered voters. In exceptional circumstances, this deviation can be increased to 30% to avoid splitting communities within high-rise buildings, hostels, or settlements. This ensures compliance with legal provisions, especially with elections approaching.

On the IMDB provincialisation and decentralisation, the Board has been engaging with the National Treasury for years, but due to the country's general lack of resources, progress has been slow. Mr Naidoo expressed hope for better outcomes with renewed engagement to highlight the benefits of decentralisation and increased awareness around the Board. Additionally, he mentioned that the matter of official languages, raised by Honourable spherical, had not been fully addressed yet. Mr Kevin Naidoo added that this is probably the first time a Bill has been translated into all official languages, including Braille, emphasizing the importance of the legislation.

Mr Naidoo said that the delay in translation might be due to the Office of the Chief State Law Advisor not having the capability in-house. They are exploring other ways to ensure the Bill is translated into all official languages. He clarified that public participation in the Western Cape is for the Western Cape legislature to address. The reason that the IMDB term will be aligned to the term of the municipal elections is so that the IMDB can conclude out-of-boundary demarcations. The alignment of the Board's term is to ensure a single board oversees and finalizes both outer boundary determination and inner boundary delimitation. Currently, two different boards handle these processes and the proposed alignment aims to streamline this oversight. He said the present Board was appointed at the end of 2023.

The Chairperson asked for the start and end dates of the eight-week period.

Adv Mkhuseli Mbebe, NCOP Procedural Officer, responded that based on advice we gave to the committee, today marks the start of the first week. The first week of the eight week cycle starts today. However, the committee secretary cannot determine the exact program as we are still waiting for the NCOP to adopt its program on 20 February 2025. Following this adoption, the committee will be able to develop its own program. He asked for the start and end dates of the public hearings during this eight-week period.

The Chairperson gave a summary of the public hearing engagements. The advert for public inputs would be issued on 31 March and close by 17 April. A detailed eight-week program will be provided to all legislatures, starting from today's meeting. Provinces are advised to consider geographical spread and include stakeholders affected by the Bill for the public hearings. Rural areas should be included, not just bigger cities or towns, to ensure widespread consultation.

Customary initiation death statistics 2021-2024
Mr Mashwahle Diphofa, Director-General of Department of Traditional Affairs, said the presentation highlighted ongoing prevention measures, including efforts led by the Minister. There had been recent meetings with Eastern Cape traditional leaders, noting the prioritization of the Eastern Cape due to higher figures compared to other provinces

Ms Reshoketswe Mogaladi, Acting DDG: Institutional Support, presented the statistics noting that the Customary Initiation Act commenced on 1 September 2021 and established norms and standards for initiation schools and practices. The Act created the National Initiation Oversight Committee (NIOC) and Provincial Initiation Coordinating Committees (PICCs) to monitor and oversee initiation practices. The NIOC and COGTA convene monitoring sessions before and after each initiation season. These sessions assess readiness and validate reports from the provincial committees. This presentation was based on these validated reports.

The Eastern Cape experienced a total of 175 deaths, with 58 in winter and 117 in summer. In 2021, the province recorded 44 deaths. The high rate of summer deaths was attributed to hot weather conditions in some districts, although certain districts did not experience any deaths. The Free State reported a total of 46 deaths, with nine occurring in winter and 37 in summer, due to weather-related complications. Gauteng had a total of 14 deaths, equally split between the summer and winter seasons. KwaZulu-Natal experienced only one death during the entire period, occurring in the past summer season. Limpopo recorded a total of 10 deaths, all in winter, with a decreasing trend over the years.

This decrease was partly due to the suspension of initiation during the 2021 COVID-19 pandemic. Measures such as awareness campaigns, training of traditional surgeons, and criteria for registering schools contributed to lower death rates in some provinces. Compliance with the Customary Initiation Act was needed to prevent these deaths.

Ms Mogaladi presented a declining trend in initiation deaths over the years. In Mpumalanga, 25 deaths were recorded from 2021 to 2024, all during the winter season, showing a similar declining trend as in Limpopo. The North West recorded 21 deaths, with 16 in summer and five in winter, showing a decline after establishing its PICC in August 2023. The Northern Cape had a low death rate, with most deaths occurring in summer, suggesting effective compliance with the Customary Initiation Act. The Western Cape had low death rates, with nine deaths from 2021 to 2024, showing effective coordination among role players.

The causes of these deaths include dehydration, medical conditions, criminality, negligence, and illegal initiation schools. The PICC has been working with SAPS and other mechanisms to address these issues.

Ms Mogaladi noted interventions for the challenges experienced. The problem of non-disclosure or fabrication of medical conditions can be addressed through law enforcement under Section 33 of the Act. Non-compliance by principals, surgeons, and caregivers can be mitigated through intensified training, awareness campaigns, and effective monitoring. She mentioned the inadequate involvement of communities and families, particularly in the Eastern Cape, which can be addressed through joint awareness campaigns by the PICC, National Initiation Oversight Committee, government, traditional leadership, and NGOs. Additionally, there is inadequate participation of traditional leaders, which can be improved through legislative amendments, awareness campaigns, and capacity building.

The South African Police Service (SAPS) was important for implementing Section 33 of the Act. SAPS has issued directives and assigned officials to work with the PICCs to address criminality and support the monitoring and closing of schools. The Minister's engagements in the Eastern Cape and traditional leadership involvement are seen as crucial interventions to reduce deaths (see presentation for details).

Discussion
The Chairperson noted the statistics and said that it is very disappointing to still experience preventable deaths, but he welcomed the presentation and interventions.

Mr Badenhorst responded with disappointment, acknowledging that the statistics were terrible as these were preventable deaths of 322 young men aged 16 to 18. He asked if there was a regulatory framework in place to enforce the Act, and if not, why the existing regulations were not being enforced. He inquired about the number of cases of murder, manslaughter or assault opened in the last five years with SAPS for initiation deaths, and how many prosecutions were successful. He asked for accurate records of initiation convictions and a report on how many illegal initiation operations had been closed down. He emphasized the importance of care for young men left in the hands of older individuals by their parents, as the duty of care was clearly lacking given the high number of deaths.

Mr Ceza responded with disappointment, noting the tragic nature of the presentation and emphasizing the need to appreciate the lives lost to customary initiation practices by paying homage to their families. He highlighted the trend in Gauteng, where deaths had dropped due to the functionality of the PICC and measures put in place to reduce illegal activities. However, he criticized the Eastern Cape for its general lack of governance across all sectors. He called for the activation of the PICC in provinces with high death rates, such as the Eastern Cape, to ensure that these preventable deaths do not become routine headline news. It was important to implement consequences for those involved in these deaths. Parents have to exercise utmost vigilance. He criticized the Department of Traditional Affairs for its perceived tolerance toward non-compliance by the PICC.

Mr Peter said the statistics were shocking. Is the Department not the cause of these deaths due to its poor handling of the matter?

Ms Makesini said Eastern Cape, Free State and Mpumalanga had the highest initiation-related deaths and asked which regions in these provinces were the highest contributors. Are the PICCs active in these provinces? Considering the loss of our young boys do we have these structures operating in these provinces?

A Committee member commented that the presentation was very important. Initiation is a cultural ritual to adulthood but the initiation deaths are very painful. She asked that government speak to stakeholders to comply at all levels.

Nkosi B Mabebo (ANC) said that there should be proper consultation to senior traditional leaders and Department of Health training of traditional surgeons. COGTA and Contralesa must champion initiation schools and bogus schools must be reported to the authorities.

Director-General Diphofa referred to the regulations saying that there needed to be further regulations to address the risk of the commercialisation of customary initiation and the fees charged – there will be consultation on drafting these. The Department will share in its next presentation about prosecutions and consequence management. However, there is a concern that some cases get withdrawn along the way. The Minister’s engagements are important to ensure all stakeholders are on board and he is in the process of meeting with the kings and then the senior traditional leaders and then the headmen, as well as the Commission on Gender Equality and the Cultural, Religious and Linguistic (CRL) Rights Commission. The Department will give a breakdown per district in future engagements. For example, OR Tambo District in the Eastern Cape is leading in casualties and Joe Gqabi District is low.

Deputy Minister Zolile Burns-Ncamashe said that the Ministry has taken a bold stand in mapping out a plan to ensure zero deaths. Those deaths are all avoidable and arise from negligence. He pointed to the cardinal role of families as without the support and active participation of families and communities we cannot achieve our destination. Engagement with the kings, senior traditional leaders and headmen and the dynamics at play at that level will ensure that the whole of society is engaged. We will ensure all hands are on deck and we will report back on the sharpened participation of all sectors of society listed in the legislation. There is a challenge as this is also the function of the Justice, Crime Prevention and Security Cluster. However, our engagement with police and the National Prosecuting Authority has been structured in such a way that when we start the winter and summer seasons of 2025 we will ensure all schools are tightened so we can achieve convictions when there are arrests.

The Chairperson expressed the Committee’s heartfelt condolences to all those families who lost their young ones. The Committee pledged to hold oversight over the executive to stop this scourge. We encourage that stakeholder engagement, especially with communities, should be elevated, including constituency offices, to play their role in raising awareness

The meeting was adjourned.