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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
6 June 2000
TRADITIONAL LEADERSHIP & INSTITUTIONS: WORKSHOP & HEARINGS
Documents handed out:
Presentation by the Department of Provincial & Local Government
Presentation by the Department of Agriculture & Land Affairs
Presentation by the Department of Minerals & Energy Affairs
Presentation by the Department of Justice & Constitutional Affairs
Discussion document towards a White Paper on Traditional Leadership and Institutions, 26 April 2000
Briefings were made to the committee by the Ministers of Provincial and Local Government, Agriculture and Land Affairs and Mineral and Energy Affairs as well as by a representative of the Department of Justice. Discussion then ensued which centred around the issue of land tenure and the separation of the roles and functions of traditional leaders and local government structures. Discussion of the draft discussion document on a point-by-point basis.
The chairperson, Mr Y Carrim (ANC), in his opening remarks said that this process, begun many years ago, should culminate in a White Paper in the second half of 2000.
Provincial and Local Government Ministry
Minister Mufamadi said that the discussion document represented an opportunity to redesign the way in which the country was governed. This process did not concern the question of whether or not traditional leaders should feature, but rather how they should feature. It should be remembered that traditional leaders were not councillors and councillors were not traditional leaders. Two imperatives had to be balanced in finding the appropriate role for traditional leaders, the first of these being the traditional role of preserving traditional culture and identity and the second, the need to promote socio-economic development. It was a constant struggle to balance these imperatives. It was important that parochial ambitions had to be put on the back burner and people's aspirations given absolute priority.
People were wallowing in absolute poverty in rural areas. Of South Africa's population of 40.56m people, 13.23m people were located in traditional areas. The employment rate for the whole of South Africa was 66% but for traditional areas, it was only 42%. For the whole of South Africa, 246 out of 1000 people had telephones, while in traditional areas, only 34 out of 1000 had telephones. Similarly, for access to electricity and water, the levels in traditional areas were way below the national average.
Some people have characterised the situation with respect to municipal and traditional leaders as "two bulls in one kraal" or in other words two sets of leadership which could not work together. This was an unfortunate characterisation since what was needed, was the pooling and deployment of all available leadership resources as was laid out in the Constitution. The discussion document therefore represented one of the avenues for moving forward. The Minister indicated that he was glad that traditional leaders from all six of the provinces which had houses of traditional leadership, had decided to take part in the process.
Agriculture and Land Affairs Ministry
Ms Thoko Didiza said that this was an important forum. This was not to say that the previous five years were not important, but these had mostly been spent formulating ideas and testing theories. Land reform was an integral part of the transformation from Apartheid, but the issue of land ownership was still skewed by the domination in land ownership of the majority of the land by just a few. The process of land reform had been ongoing since 1994 and the department had adopted a policy of support for those who were living off the land and of the empowerment of farmers who had benefited from land redistribution. Land reform was a challenging and problematic issue, because it involved political and legal questions.
As a background to the issue, Apartheid had denied land ownership to black people. What was needed therefore, was to provide tenure security to the many whose tenure rights had never been secured.
There was little infrastructure in rural areas and as a result, land values were perceived as very low, although it was arguable that this was not really the case. Land ownership by traditional leaders had to be closely looked at, and African communities who received land, had to be given statutory rights. Gender equity was also an important issue that had to be considered.
It was necessary to firstly consider the homelands and traditional areas. In these areas, the state was the nominal owner of lands and the state therefore needed to hand over lands to those who had previously been denied them. The Land Tenure Act had to be upgraded and the concern had to be raised that land ownership in these areas was not handled strictly according to Western forms of land tenure. A co-existence of different forms of land tenure was therefore needed but at the same time, the position of traditional community land ownership or collective tenure rights had to be spelled out for commercial reasons. Previously the state had been put down as the legal owner of lands, which had belonged to various communities.
There had to be a separation of roles in the issue of co-operation between local governments and traditional leaders. On the one hand, local government structures had to be removed from the issue of land ownership, but on the other hand, traditional leaders had to be involved in the use and disposal of land.
In certain communities all of these functions had been unjustly merged together due to historical factors and this had to be addressed. Communal land would be subject to other laws including national, provincial and local laws. Local government would be responsible for development and service provision but land use planning had to involve traditional leadership structures too. Above all, service provision should not trample on land ownership issues and to resolve this, much discussion was needed. In this regard, there was also a need for clarification of land ownership where public facilities had been built on traditional lands. It was possible to have a co-administration between local government and traditional leadership structures and land ownership issues had to be generally democratised. Land allotment had to take place in a fair way but tenure rights had to still allow for development in the affected areas. In answering the question of how it was possible to have a co-existence of communal and individual land ownership rights, the example of some areas of South America had to be considered. In these areas individualisation in terms of land alienation had to occur with the concurrence of the entire community. Resolving all these issues would help the acceleration of transformation.
Department of Justice
Mr Louw, Deputy Director General in the Department of Justice, spoke on traditional leaders and customary law.
The election of a chief was determined by tradition and customary law but only once a chief had been chosen by a community, did customary laws apply. Historically, black customary law was not recognised but some laws dating as far back as the 1800s did make provision for certain chiefs and headmen to administer justice. Today, traditional leaders were recognised by Section 211 of the Constitution. Also, customary law had to be applied where it was applicable. The Minister of Constitutional Affairs could confer civil and criminal jurisdiction on traditional leaders. Previously, the Minister of Justice had put an embargo on this, but it had since been lifted. The South African Law Commission had prepared a report on traditional courts. The Constitution made provision for these courts and they were deemed desirable due to their accessibility to people and their ability to quickly and simply resolve disputes.
Discussions and workshops had taken place from September to November, 1999, wherein the primary concern that was expressed, was that rural women were prejudiced by traditional leadership structures. The report from these workshops was due to be concluded in the next six weeks and it would then be submitted to the House of Traditional Leaders and thereafter to women's groups.
Mr P Smith (IFP) said that he was struck by the need for a healthy balance between effective governance and land ownership and that he was dismayed by the notion that one could separate municipal land use functions and issues of land ownership. Was there no overlap here? Ms G Borman (DP) similarly, asked for further clarification of the two imperatives identified by Minister Mufamadi. Could these be separated out more clearly?
Minister Mufamadi referred them to the book, "The Lexus and the Olive Tree" by Thomas Friedman. The first imperative was the need to preserve tradition, culture and custom and the second imperative was the need to embrace modernity. These two were not exclusive to one another though.
Minister Didiza added that there would have to be an accommodation of traditional leaders in local government structures. There would first need to be consultation on land use planning and development with traditional leaders and their communities. In practice there an overlap between the two structures insofar as communities participated in rural local government structures through their traditional leaders. It would need consultation and continuous debate to work out how all these functions were accommodated into a legal framework?
An opposition member said that he did not like the terminology, "black customary law" that had been used in the previous presentation. Since there was no such thing as white customary law, it should instead be referred to as African customary law. He said he was impressed by the presentation of Minister Thoko Didiza but he did not agree with her comment that land in rural areas was not cheap. Surely, due to underdevelopment in these areas, it was actually cheap?
A participant at the meeting commented that the committee should acknowledge that this was the beginning of the discussion process. It had been considered by some that the African social system was previously "outside of civilisation", and with respect to the process of democratisation, it was still being determined what was expected of those participating in this process without undermining the process of transformation. Questions alluded to in these discussions should be addressed with objective rather than subjective criteria as has been done in the past.
Minister Mufamadi said that the role of traditional leaders was sanctified by culture and history. Growing up, he had been told that if his people were attacked, then this was the institution that would lead the struggle against their enemies. What was the enemy today? It was poverty, hunger and unemployment. The struggle against these continued but the context was different from the pre-colonial and other evolutionary contexts. This institution has not outlived its usefulness, even in the current context. People vote for a better life and continued democracy but that does not mean that they turn their backs on traditional leadership. Government had allocated resources for alleviating poverty through local economic development. Rural areas, a large proportion of which were traditional areas, would take priority in the alleviation of poverty.
The chairperson said that the first issue under consideration was the role of traditional leaders. The second issue was that of balancing individual and collective rights. There was still a need for an explanation of how this would work in practice. Would a person for instance, have some rights living on communal land and other rights on individual land?
Minister Mufamadi said that the issue of land was a serious question, not just a theoretical one. Land had to become an asset to enable development. Traditional leaders would not claim to own land, but rather hold it in trusteeship for their people. How should traditional leaders co-operate with local authorities? There would be difficulties in resolving this question but it was essential to find a formula that would work. It must not be decided to choose the easiest way out, that is to abort the process, but rather ways must be found for the two institutions to work together. These two institutions could not wish each other away and it would be irresponsible to ask people to choose between these two institutions. They simply had to work together.
Minister Didiza added that individualisation did exist, since when people were allotted land it was as a household. Also, when land was thus given it was for farming and sometimes for just a limited period of time. There were however, no statutory rights to set out this state of affairs so commercial banks would not give loans to potential farmers. There was therefore the need for the registration of these rights in statutes, as they currently existed in practice.
An ANC member asked if land in traditional areas was going to be used for commercial farming and for other businesses?
Minister Didiza said that some land could be set aside for the inheritance of certain people or for use at the discretion of traditional leaders but that land could never be alienated from the collective unless everyone agreed to it. There was value in this system and that had to be retained. Where land was set aside for commercial use then there could be a lease of that land, but it could also still remain owned by traditional communities. Even for example in the case of mining, there could be a 25-year lease agreement between a traditional community and a mining company. Traditional leaders never owned land in the western sense, instead they had a role as an overlord, or a trusteeship role.
Mineral and Energy Affairs Ministry
The Minister of Mineral and Energy Affairs, Ms P Mlambo-Ncguka, said that under the current South African law, mineral rights required the ownership of land. The law currently being proposed was that land ownership and mineral rights would be separated. The owner of a piece of land, would not necessarily own the mineral rights to that land. Historically, black people had not been allowed to own land and therefore did not have access to mining rights. It was critical that black people now participated in the mining industry. It still had to be determined which strategy would allow for the achievement of this. In other countries, there were small-scale prospectors. In South Africa every step of the mining process was handled by big corporations. The status quo could not persist. The principle that would guide the department going forward, was "use it or lose it" or in other words "use it and you keep it." Elsewhere in the world, this principle was adhered to. In South Africa, companies felt they had mineral rights in perpetuity regardless of whether they were being used or not. This situation had to change.
Traditional leaders similarly, could not just take over mineral rights and keep them regardless of whether or not they were used. The same principle applied to them, however the department did want to encourage the involvement of local people in the mining of minerals in their areas. Mines similarly, had to contribute to the local areas around them. Local people should stand to benefit from mining royalties and the national government should oversee the distribution of such royalties. What the department was doing at the moment, was taking back mineral rights for mines that were still state-owned, since they could not have civil servants working in mines.
Mr Smith (IFP) said that the principle of 'use it or lose' it made sense, but did the owner of a piece of land, have any say in what type of mining was carried out there? The Minister replied that any mining project did require an environmental impact assessment study before it could proceed, but it was expected that agreement on potential mining projects could be achieved when there was likely to be no adverse impact on the community.
An ANC member said with respect to royalties, that he went along with this thinking - but what was meant by the reference to local authorities in any given area? Was it local government or traditional leaders that were being referred to here? The minister replied that whoever was the relevant legal entity, would be the ones concerned in each case. What was being dealt with here were the cases where chiefs wanted to reclaim mineral rights for their communities even though they did not have a business plan and thus could not use these mineral rights.
Chief Holomisa said that he understood that the rationale behind the government position on the ownership of mineral rights by the state instead of by traditional leaders was that they did not want "an island of wealth in a sea of poverty". What was the Minister's view of the current situation where the big mining companies actually represented such a situation in many cases? [The Minister was unable to answer this question as she had been called to attend a sitting of the house].
Presentation on Discussion Document
The Chief Director of Traditional Affairs in the Department of Provincial and Local Government, Mr T F Seboka, presented the aims and structure of the discussion document. In developing the document, all relevant data in terms of the numbers of traditional leaders and the areas concerned had been collected. Initially the deadline for the drafting of a white paper was to have been 31 May but this deadline had since been extended to the end of June. This discussion document had been sent to all relevant stakeholders and the department had consulted with them. This process would culminate in a national conference on traditional leaders on 30 June/1 July.
Other work in progress was the rationalisation of the myriad of laws concerning traditional leaders, some of which dated to colonial times. The department was also working on how best to resolve specific traditional leader disputes and in the process restore the affected traditional leaders. They were also looking at Khoisan communities, which were on the periphery. In resolving these issues, they had involved the South African Human Rights Commission.
Ms G Borman (DP) asked if during implementation of this process at the end of the year "things got rough", would this interfere with the local elections scheduled for November?
Mr Seboka said that it was not expected that there would be any significant problems in terms of bottlenecks, even considering the elections. These would not present any problem.
Mr P Smith asked why there was no green paper?
Mr Seboka replied that once the presentations on this document were complete, all the comments would be collected and would go straight into the first draft of the White Paper. The department was aware of the green and white paper process but it had been requested that they speed up the process. Therefore they would proceed straight to the white paper.
An ANC member referred to the first phase of the discussion document process and asked how the research on traditional leaders had been conducted and how the exact status of the chiefs had been established? She was concerned that some had claimed to be chiefs when they were just headmen.
Mr Seboka replied that there were approximately eight hundred chiefs in South Africa. There were six kings in the Eastern Cape, 1 king in Kwazulu-Natal and three in Mpumalanga and many, many headmen. With respect to qualifications and disputes on the succession of chiefs, this was a work in progress, which was being dealt with. The Director-General, Mr Zam Titus, said that one focus was on the powers of traditional leaders. The second theme was that of accountability, which would require a greater focus by the department in the future than had occurred thus far. On the issue of deposed leaders, there were cases where leaders had been illegitimately imposed 30 years ago but had since gained legitimacy and if such leaders were deposed, that would create more disputes. Discussion was needed on this.
An ANC member asked how traditional leaders were to contribute to constitutional democracy as referred to in the foreword to the discussion document? Mr Seboka replied that the focus would need to be on what the exact role of traditional leaders should be. There was a role for traditional leaders to play in encouraging a culture of democracy.
Another ANC member said that, with respect to Chapter Four, what were needed were comparative experiences in the white paper. Chapter Five was more relevant to issues surrounding traditional leaders but their actual role had to be accurately represented here.
An ANC member said that some chiefs wanted to be called kings. Could this be reconciled? What about the paramount chief in the Northwest who seemed to have been overlooked? There was no apparent response to these questions.
Mr D Smith (DP) said that Section 5.2 stated that roles still had to be clarified. Were these not already clarified under the White Paper on Local Government?
Mr Seboka replied that on the issue of the impact of the white paper process, this was where the refinements would actually be made based on what inputs had been received.
An ANC member then repeated these comments asking also what other overlaps of functions there were?
Mr Seboka replied that the principle that the department would follow with respect to overlaps was that of co-operative government. The department was doing well in the international context.
The chairperson noted that in Chapter Six there were a lot of disparities and he inquired as to whether there would still be a chance to comment on those who had claimed to be chiefs but who were not. His question was not responded to at this point.
Chief Joseph Little of the Khoisan Forum asked whether the same consideration was being given to South Africa's traditional kings today as for instance, a visiting monarch from England. The example of President Mandela who acknowledged his traditional leaders, should be looked at in this regard. There was no response to this comment.
An ANC member asked how traditional leaders were appointed in Kwazulu-Natal? Was there not a discrepancy in this?
Mr Seboka replied that there was a specific act, which dealt with all appointments in Kwazulu Natal.
Mr P Smith (IFP) said that in 1994, the relevant authority became the provincial Premier.
Mr Seboka said that the appointment of traditional leaders was a process which ended with government, but did not start with government. It started with the relevant royal family who agreed on an appointment and then it concluded with the eventual issuance of a certificate by the provincial government. This was done differently from province to province but the key point was that the government did not appoint traditional leaders, the royal families did that.
An ANC member questioned whether the removal of chiefs could be enforced and another member said that, with respect to Chapter Eight, this section was open to being manipulated. Concern was also expressed that there was a need for revisiting the section, which included the first three paragraphs, and that clarification was needed here.
An ANC member asked what was the procedure for removing headmen, and how did this relate to the removal of chiefs?
Mr Seboka replied that the key issue in this regard was how imposed leaders were removed from office. Previously the same provincial functionary who could appoint a traditional leader, had the power to remove him from office.
The chairperson commented that he was struck by how brief some of the sections were and that he expected the White Paper to go into far greater detail.
An ANC member said that the section on young people concentrated too much on discipline but did not say anything about their involvement in traditional leadership structures. It had to say more about the integration of young people into society and about the need for them to embrace learning, not just about youth as outsiders. Another ANC member criticised the section on youth as too simplified. The issue of the development of youth was important and more needed to be said on that.
Mr Seboka replied that it did not contain that much information because it dealt mostly with the status quo which was what they had received information on. The roles of young boys and girls were different but this was only a discussion document, so not everything could be included.
Chief Joseph Little asked why there was such a focus on local government in the discussion document?
A department representative said that he did not believe there was too great a focus on local government, indicating also that provincial and national government was adequately dealt with.
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