Municipal Demarcation Board & Contralesa on Traditional Institutions

Meeting report

PROVINCIAL & LOCAL GOVERNMENT PORTFOLIO COMMITTEE
6 June 2000
TRADITIONAL LEADERSHIP AND INSTITUTIONS DISCUSSION DOCUMENT: HEARINGS

Submissions handed out
CONTRALESA
Municipal Demarcation Board
Khoi-San Forum

SUMMARY
The Demarcation Board said it has included areas of traditional authority in municipalities to make the traditional authority areas more economically viable and to encourage development. The Board said areas of traditional authority amount to 6% of land in South Africa and are characterised by poverty and underdevelopment. These areas account for the bulk of backlogs in provision of services such as water, electricity, telephones and sanitation. The Board believes traditional authorities cannot be District Management Areas nor can they be made Category B municipalities on their own because this would mean accepting colonial boundaries as accurate. Also this would not be possible because of developmental challenges and a need for redistribution and sharing of resources.

CONTRALESA said it is not satisfied with the 10% representation accorded it in the municipalities. It said all traditional heads should have automatic representation in all municipalities over which they have traditional authority. CONTRALESA said according to custom, a woman cannot succeed into a position of traditional leadership except only to be a regent for a minor son. They pointed out that the Constitution requires that its interpretation should not be such that cultural interests are undermined.

The Khoi-San Forum noted that Western jurisprudence will always be in conflict with indigenous law and people's cultural heritage rights. The Khoi-San is in a process of development so as to adapt and the institution of traditional leadership as expressed in their vision statement The Khoi-Khoi have placed women in the role of Chiefnesses. The question of youth succession should be left up to the decision of the tribal Council serving a particular community. Youth should hold observer status in the Council meetings.

MINUTES
Municipal Demarcation Board (MDB)
Dr M Sutcliffe, Chairperson of the Board, said the Municipal Demarcation Act requires the Board to cover the whole of SA with municipalities and consider a range of factors and objectives regarding social and economic functionality, viability and ability to deliver services. In addition the Board also has to take cognisance of areas of traditional rural communities.

Dr Sutcliffe said there are four critical development challenges in areas of traditional rural communities. These are:
- The extent of backlogs in water, electricity, telephone and sanitation provision in traditional rural communities. These are as follows:
Eastern Cape - between 50 - 60%;
KwaZulu Natal - between 60 - 80%;
Northern Province - between 70 - 90%;
Mpumalanga - between 40 - 60%;
North-West - between 40 - 60%;
Free State - between 20 - 30%.

- The land question
Areas covered by traditional authorities amount to 68 944 km² which is 6% of the total land in South Africa.
Areas covered by MDB municipalities which have traditional authorities amount to 355 551 km² which is 29% of the land.
Areas not covered by traditional authorities amount to 864 042 km² 71% of the total land).

- Population and density
Areas covered by traditional authorities have 13.22 million people; this means there are 199 persons per square km living in traditional authority areas. These are high-density population areas characterised by poverty. Areas covered by MDB municipalities which have traditional authorities have 24.2 million people (68 persons per square kilometres), while areas covered by no traditional authorities have 16.36 million people (that is 19 persons per square kilometre).

- Human resource capacity
In traditional authority areas there are 17 professionals/technical/managers per thousand persons while in non-traditional authority areas there are about 67 professionals /technical/managers per thousand persons.

The MDB approach has been to try to ensure that outer boundaries of municipalities do not to divide areas of traditional authority. The Board has met with problems of topography, inadequate legal descriptions and de facto versus de jure authority. In some areas the Board has been forced to divide areas of traditional authority because of high poverty. The approach has been to incorporate "urban" areas into traditional areas. The approach has been more difficult to apply to ward boundaries.

Municipal rationalisation
The MDB model means the influence of traditional communities has been significantly broadened into the bases of economic and political power.

The rationalisation has been such that municipalities in the provinces have traditional authorities within their boundaries as follows -
Eastern Cape: 22 municipalities (another 17 with none)
KwaZulu-Natal: 44 municipalities (another 8 with none)
Northern Province: 27 municipalities (another 8 with none)
Mpumalanga: 5 municipalities (another 12 with none)
Free-State: 2 municipalities (another 18 with none)
North-West: 14 municipalities (another 10 with none)
In the whole of South Africa 114 municipalities will have traditional authorities within their boundaries and 118 would have none.

The Board believes traditional authorities cannot be District Management Areas because these would take control away from traditional communities. Secondly it would lead to dysfunctional Category B municipalities and it would be impossible to have integrated development planning.

The MDB believes making traditional authority areas Category B municipalities would make no sense because:
i) this would mean the colonial apartheid boundaries of traditional communities are accepted as correctly describing areas of traditional communities,
ii) there are developmental challenges found in these areas;
iii) there is a need for redistribution and sharing of resources;
iv) there are difficulties in legally defining these areas.

Overlaps between municipal and traditional authorities' powers are similar in many respects to those between the state, municipalities and large-scale private land owners; this must require effective dispute resolution. The MDB's view is that these issues can be resolved through ensuring co-operative governance.

Traditional leaders have expressed dissatisfaction about "10%" representation of traditional leaders in municipalities. They are also concerned about the question of regulations that are to be drafted by MECs in terms of Section 81 of the Municipal Structures Act. The Board feels demarcation is an ongoing process that requires ongoing interaction between MDB, local communities and their leaders. The Board will continue to interact with traditional leaders and values such interaction.

Khoi-San Forum
Chief Little presented (see Appendix 1).

CONTRALESA
Nkosi Ngcinga presented (see Appendix 2).

Discussion with Municipal Demarcation Board
Mr Moketi of SANCO felt the role of traditional leaders at local government should be clearly explained.

Chief Moletsane of the Bataung asked what is the Board's view of the role of traditional leaders in local government - whether it is sufficient in terms of Municipal Structures Act and not something that could create conflict.

Dr Sutcliffe said that district councils mainly seek to bring about equity in the distribution of resources. A personal view is that there should be representation of traditional authorities. Category As are single city municipalities. A two tier system has been formed in the single sphere, namely Category B and Category C municipalities. The former are local municipalities and the latter are district municipalities. District management areas deal with electricity, water, etc. Traditional authorities are able to be represented in any municipalities they have authority over.

Mr B Solo (ANC) asked to what extent the issue of resource backlogs is taken into account in the demarcation process. He also wanted to know if traditional authorities are involved in dealing with the backlogs.

Dr Sutcliffe replied that the Board does not have a policy to include traditional authorities in addressing backlogs. The reason being that some of the traditional authorities are relatively small and they have no capacity to give effect to economic upliftment programmes. The Board's findings have been that all traditional leaders are concerned about backlogs but what they are against is non-cooperative development.

Ms W Khumalo of the Department said she notices that there is a difference in the research findings of the Board and the discussion document on areas of jurisdiction of traditional authorities, she wanted to know whether the Board could clarify its statistics.

Dr Sutcliffe replied that as one goes along the country there are questions of definition of traditional leadership. What the Board is saying is that when the White Paper comes out, the stakeholders should come up with a uniform number of traditional authority areas that are present in South Africa. Also there needs to be a single database of issues pertaining to traditional leadership.

Chief Moletsane wanted to know if the statistics of traditional authorities in Free-State take into account those chiefs without land.

Dr Sutcliffe said that landless traditional leaders are not taken into account - even this discussion document does not do that - but there might be discussion on the issue.

Discussion with CONTRALESA
Mr Moketi of SANCO said the input by CONTRALESA does not specify the percentage of representation the organisation wants in co-operative governance. Could CONTRALESA specify?

Nkosi P Holomisa said that CONTRALESA wants 100% representation; all heads of traditional authority should have automatic representation in municipalities.

Mr Moketi wanted to find out what the distinction is between Paramount Chief and King.

Mr Holomisa replied that Kingship is determined by the customs and culture of one's people. The Paramount Chief position never existed but was a designation given by Britain in a bid to demote the status of African Kings.

Mr Moketi asked to whom are traditional leaders accountable since they receive salaries. His view is that they cannot receive public money without accountability.

Mr Holomisa said he finds it odd that the question of accountability never arises when it comes to Members of Parliament. Traditional leaders are accountable to their communities and the nation who are the taxpayers.

Mr Moketi asked what is CONTRALESA's position on succession of women to traditional leadership positions.

Mr S Mshudulu (ANC) commented that in the Constitution there is a provision that human rights should not seek to undermine cultural interests.

Mr Holomisa replied that, according to customs and culture, the successor to positions of traditional authority where one bears no male issue is usually the brother of the deceased. It is true that the Constitution provides that interpretation of its provisions should not be such as to undermine cultural values. The rationale for not permitting succession of women to traditional authority (except in nations where traditions allow it such as in Northern Province) is that a nation is supposed to keep the same genealogy running through the royal family. This would not be the case where a woman would succeed because according to culture and tradition she is supposed to go and stay with her in-laws when she gets married. Even if the daughter does not become married her children would still not have a legitimate claim to the position since they are recognised as belonging to the father's clan. That is why when a traditional leader dies without a son he is said to have died without issue even though he had daughters. This argument has to do with the legitimacy of the traditional authority.

Ms Gloria Borman (DP) wanted to know how CONTRALESA views elected representatives and traditional leaders and how they would act together in municipalities.

Mr Holomisa said that where decisions are taken in the interest of people represented, CONTRALESA cannot foresee problems.

Ms Borman asked to whom do traditional leaders become accountable in the event of conflict of interest?

Mr Holomisa replied that traditional leaders have always been a link between the community and the government. CONTRALESA believes traditional leaders are more of an asset to the government. However, even though paid by the government, CONTRALESA's view is that traditional leaders are not public servants but are accountable to their constituency, that is the people they represent.

Ms Borman said in some municipalities there is often more than one traditional authority covering these. Who becomes the main authority in such instances?

Mr Holomisa replied that CONTRALESA says traditional authorities should not be subjected to domination by cities. There should be structures coming from traditional authorities as well as cities so that development can be brought about.

Mr P Smith (IFP) asked if succession of women to inkosi positions in KwaZulu-Natal is possible why in CONTRALESA's view can this not be possible elsewhere?

Mr Holomisa said his understanding is that women in positions of traditional authority in KwaZulu Natal usually take the positions as regents where their sons are still underage. Once the sons become of age they should relinquish those positions to their sons.