National House of Traditional Leaders Bill: public hearings

Meeting report

Briefing by Department of Provincial and Local Government (DPLG)
Prof W Sobahle (Executive Manager, DPLG) briefed the Committee on the history of and the background to the proposed National House of Traditional Leaders Bill (the NHTL Bill).
 
The Council of Traditional Leaders Act was originally passed in 1994, in line with the 1993 interim Constitution.  This Act was repealed in 1997 and replaced by the Council of Traditional Leaders Act of 1997.  Subsequently, the Act was amended in 1998 and replaced by the National House of Traditional Leaders Act of 2000 (the NHTL Act).  Government's vision regarding traditional leaders was contained in the White Paper on Traditional Leadership and Governance, adopted in July 2003.  The NHTL Act therefore preceded the White Paper.  The NHTL Bill endeavoured to bring the provisions of the NHTL Act in line with the White Paper, the Constitution and with the Traditional Leadership and Governance Framework Act.
 
The amendments contained in the NHTL Bill were intended to address the issues regarding the alignment of the term of office of the National House of Traditional Leaders (the House) with provincial and local government, the powers and functions of the House, Government support for the House, the status of members of the House, the relationship between the national and provincial Houses, the relationship between the House and the kings and queens, the relationship between the House and Government and the responsibility and accountability of the House.
 
Subsequent to the principal Act, provincial legislation was passed.  However, gaps and challenges in implementation of the legislation were identified and needed to be addressed.  The amendments contained in the Traditional Leadership and Governance Framework Bill (the TLGF Bill) were intended to address the weaknesses concerning recognition of kingships, kingship councils, the functions of kingship councils, the interim appointment of kings and queens in the event of the death of a king or queen, the recognition of tribal communities where no area of jurisdiction was defined, communities headed by headmen instead of the senior traditional leader specified in the Act and the provision of a standing period within which authorities were required to transform in line with the Act.

Mpumalanga Provincial Department of Traditional and Local Government Submission
Ikosi S Mahlangu (Chairperson of the Mpumalanga Provincial House of Traditional Leaders) briefed the Committee on the submission from the Mpumalanga Provincial Department of Traditional and Local Government on the NHTL Bill (see attached document).
 
The submission included comments and suggestions under sections 1, 2, 3, 4, 6, 7, 8, 9, 10, 12, 28 and 24 and the Code of Conduct contained in the Bill.
 
Discussion
Mr M Nonkonyana (ANC) referred to the suggested rephrasing of Section 10 of the Bill that "The House may recommend to the President that certain members be full-time members of the House".  He asked what was meant by "certain members".  With regard to Section 12, he requested further details of the comment that "administration of the House be left to the Chairperson and the Executive".
 
The Chairperson suggested that the reply to Mr Nonkonyana's question on the administration of the House included an alternative.
 
Mr R Sonto (ANC) asked what the motivation was for the suggestion that the term of office of the House ran concurrently with that of Parliament.  He noted the suggestions contained in the conclusion regarding the harmonisation of the three Houses and asked what would happen if there were disputes between the Houses.
 
Mr W Doman (DA) asked if the powers listed in the conclusion were detailed in the Bill or were in addition to the powers specified in the Bill.  The filling of vacancies was mentioned but clarity was required regarding any other specific powers.
 
Ikosi Mahlangu replied that the Houses wished to recommend to the President which members should be appointed.  The position was that all members of the Houses should be appointed on a full-time basis.
 
Ikosi Mahlangu explained that only the Chief Executive Officer (CEO) of the NHTL was appointed by the House but the rest of the staff was appointed by the relevant department.  Consequently, the allegiance of the staff was with the department.  The Ministers, Premiers and Heads of Departments therefore had too much power with regard to how the House operated.
 
Ikosi Mahlangu said that the suggestion that the term of the House was concurrent with that of Parliament or the National Council of Provinces (NCOP) was motivated by the need to regard the NHTL as having equivalent status to that of Parliament or the NCOP.
 
In response to Mr Doman's question, Ikosi Mahlangu replied that the various powers of authorities were included in the submission.  The Houses wished to appoint their own staff to fill vacancies as staff appointed by another department resulted in divided loyalties.  Some Houses were not operational because vacancies were not filled or appointed staff did not understand the operations of the House.
 
The Chairperson noted that the conclusion suggested that "some of the powers of the Minister should be given to the Chairperson of the NHTL".  He asked for clarity on the specific powers involved.  With regard to the alignment of the term of office with Parliament and the NCOP, he wanted to know what advantages and disadvantages there were other that for the sake of appearance and status.
 
Ikosi Mahlangu replied that the Bill contained details of the specific powers but the concern with the filling of vacancies was the issue that affected the Houses the most.
 
Mr Sonto asked what will change if the term of the Houses were aligned with the NCOP and Parliament.  He said that the Bill took into account that traditional leadership was closer to matters of local government than other governmental structures.
 
Ikosi Mahlangu acknowledged that there would be little change as the Houses would continue to advise Government on issues of customs and traditions.  The issues expressed by members of the Houses centered around the status of the Houses.  The Houses would be seen to have equivalent status to the national and provincial governments if the terms were aligned.
 
National House of Traditional Leaders (NHTL) Submission
Inkosi W Mavundla (Member, NHTL) presented the submission from the NHTL on the NHTL Bill (see pages 1 to 4 of the attached document).
 
In addition to the background of the NHTL and an introduction, the submission included comment and suggestions on the Long Title, Sections 3(4), 4(2), 4(4), 7(1), 7(2), 8, 8(6), 10(1), 12, 15, 20, 21, 22, 23 and 24.
 
The NHTL considered that the two Bills failed to give due recognition to African values and norms and objected to the language and terminology used in the phrasing of the Bills.
 
Discussion
Mr M Swathe (DA) referred to the comment under Section 24 that the regulatory powers of the Minister was "too wide and open handed".  He asked for further clarity on the comment and who should be given regulatory powers.
 
Mr Nonkonyana asked if a Code of Conduct had been drafted for consideration by the Committee.  He requested suggestions from the NHTL regarding the provisions in Section 21 dealing with the dissolution of the House.  He asked if employees' conditions of employment would be subject to labour laws or not.  He noted that the CEO would also be the accounting officer and would therefore be accountable to both the House and the Auditor-General.  He asked if the NHTL agreed with the views expressed by earlier submissions that all members of the House should be appointed on a full-time basis as the NHTL's submission only mentioned the Chairperson and the Deputy Chairperson as full-time members.  He asked if the NHTL accepted the remainder of the provisions under Section 8.  He requested further clarity on the suggestion regarding the remuneration of members as remuneration was determined by an independent commission.  He requested clarity on the proposal under Section 4(2) that the Premier submitted names of members to the Minister as earlier submissions suggested that members were proposed by the Houses.
 
The Chairperson requested clarity on the statement that "the Bills failed to give due recognition to African values and norms".  He asked what the rationale was for the rejection of the Minister's regulatory powers as "too wide and open".
 
Mr A Sithole (Chief Executive Officer, NHTL) agreed that the Minister must make the regulations but this should be done in consultation with and in agreement with the NHTL.  A Code of Conduct based on customary law and customs can be drafted by the NHTL for consideration.  He said that the NHTL suggested that Section 21 was deleted as a situation could be created that the House was dissolved every two years and would result in instability.
 
Mr Nonkonyana said that Section 21 made provision for dissolution of the House at the end of its term.  There may be unforeseen reasons why a two-thirds majority may find it necessary to dissolve the House and the legislation made provision for such a future need.
 
Mr Sithole said that Section 21(a) was acceptable but the suggestion was to delete Section 21(b).
 
Mr Sithole replied that the labour and other applicable laws will apply to the appointment of and conditions of employment of employees.  As the head of administration, the CEO was accountable to the House, the Auditor-General, the Select Committee on Public Accounts (SCOPA) and other relevant bodies on the use made of resources.  The NHTL did not disagree with Mpumalanga on the full-time appointment of members but requested that the Chairperson and Deputy Chairperson's full-time appointment was not omitted from the Bill.
 
Mr Nonkonyana remarked that the President will be guided by the House on the appointment of members in any event and requested that the NHTL provided further clarity on the issue.
 
The Chairperson said that the implication was that the role of the President in appointing full time members of the House was removed.
 
Mr Sithole agreed that members must be appointed on a full-time basis and said that the houses cannot operate efficiently unless the Chairperson and members were available all the time.
 
The Chairperson suggested that responses included the advantages and disadvantages as well as the implications on other issues related to the status and position of traditional leaders.
 
Mr Sithole replied that provision was made in the Framework Act for the appointment of a deputy if a traditional leader was engaged elsewhere.  Appropriate provision needed to be made in budgets for the remuneration of deputies.
 
Mr Sithole explained that the NHTL was opposed to the determination of remuneration of members by external organisations.  Members were public officials and should be remunerated accordingly.  The NHTL was of the opinion that the work done by traditional leaders was not properly evaluated and was currently working with the provincial Houses to ensure that members received the proper remuneration for the weighted job performed.
 
Mr Sonto agreed that staff seconded to the House by the DPLG should be under the control of the CEO.  He asked what the concerns were regarding the staff seconded and paid by the DPLG.  He noted from the submission that the House wished to be autonomous on some matters but not on others and asked what was meant by the "autonomy" referred to in the submission.  He said that the NHTL's source of revenue was from the DPLG and asked if the intention was to draw revenue from National Treasury in future.
 
Mr Sithole agreed that salaries of seconded staff were paid by the DPLG.  The House had interviewed and appointed only one person and all other staff members were appointed by the DPLG.  The NHTL was reliant on the DPLG to make adequate provision for personnel.  However, the workload of the NHTL was increasing but additional staff can only be appointed if the DPLG had made provision for their employment.  The NHTL requested that the House controlled its own human resources in order to respond to the increased workload.
 
Mr Sithole replied that the NHTL wanted to be regarded as a public entity and a juristic person in its own right.  As a public entity, the NHTL will still obtain funding through a responsible department but will be responsible for formulating plans and motivating its own budgets.  The Houses were dependent on public funding and had no other source of revenue.
 
Adv S Maifadi (Manager: Parliamentary Services, NHTL) explained that the NHTL vision was to restore the traditional African systems.  Amakosi were also spiritual leaders and it was essential that a spiritual vacuum was not created by the regular dissolution of the Houses.  It was important that perpetual spiritual leadership remained in place.
 
Inkosi Mavundla summarised the issues raised.  With regard to the ministerial powers, the NHTL suggested that the Minister acted in consultation with the House on issues affecting traditional leaders.  If given the opportunity, the NHTL will draft a Code of Conduct based on traditional values and customs.  The NHTL requested that the responsibilities of the CEO were extended and that he was not controlled by the DPLG.  The NHTL proposed that all members were appointed on a full-time basis, in addition to the Chairperson and the Deputy Chairperson.  The NHTL took cognisance of the Constitutional requirement for gender equality but pointed out that traditional leaders were born rather than appointed to the position.  The few women involved usually stood on behalf of their children.  Regarding the dissolution of the House, he pointed out that in addition to the provisions of the principal Act, the House had its own rules and procedures that will be applied.
 
Prof Sobahle perceived a contradiction in the comments that were made by Adv Maifadi and Inkosi Mavundla with regard to the dissolution of the House.
 
The Chairperson explained that if there was a contradiction between Section 12 and the Constitution, the Constitution will prevail.  Any departure must be indicated as such, made very clear and the motivation for the departure must be given.
  
Free State Provincial House of Traditional Leaders (FSPHTL) Submission
Morena M Mopeli (Chairperson, FSPHTL) presented the submission form the Free State House on the NHTL Bill (see attached document).
 
Concerns were raised about the composition of the House (Section 3(1)(a) of the NHTL Bill).  The Bill made provision for three categories of traditional leaders, i.e. kings and queens, senior traditional leaders and headmen (or junior traditional leaders).  Provincial legislation took account of local practices.  The provincial House felt that the national House encroached on its prerogative to decide who the members of the House would be.  The king's selection of representatives was limited to the senior traditional leaders. The rationale behind the alignment of the term of office of the House with that of the national and provincial government structures was not clearly understood.
 
Discussion
Mr Swathe asked if the status of junior traditional leaders would be elevated if they became eligible for selection as representatives by the king.
 
Inkosi Mavundla pointed out that the formation of the Houses were determined prior to 1994.  A White Paper was drafted subsequent to the deliberations.  He said that the term "traditional leader" was misleading and suggested that the African terminology was used to promote clear understanding of the relevant concepts.  If headmen were allowed to become members of the House, this would elevate the status of headmen.  The dignity of the senior traditional leaders needed to be maintained.
 
Mr Nonkonyana asked if the Free State provincial House had any problems with the other provisions of the Bill.
 
The Chairperson explained that the Free State House participated in the submissions made by other presenters.
 
Mr Nonkonyama asked for clarity on the "exclusive competency of the provincial government" mentioned in the submission.
 
Morena Mopeli explained that provinces were better able to incorporate local peculiarities in legislation than could be done at the national level.  He said that the three categories of traditional leaders only existed in the legislation and took no account of any special qualities of a traditional leader.  It was not intended to elevate the status of anyone and the Free State provincial House envisaged a House of all traditional leaders rather than a House of senior leaders only.
  
The FW de Klerk Foundation Submission
Adv N de Havilland (Deputy Director: Centre for Constitutional Rights, The FW de Klerk Foundation) explained that the Centre for Constitutional Rights was a unit of the FW de Klerk Foundation, with the sole mandate of ensuring compliance to the Constitution.  The submission from the Foundation was made in the context of compliance to the Constitution (see attached documents).
 
The Foundation acknowledged the vital role played by traditional leaders in preserving the customs and cultural heritage of the country as well as the challenges faced by the leaders in complying with the rights enshrined in the Constitution.  The violation of the rights of women and children and certain customary practices (e.g. polygamy, sorority, women regarded as minors, lobola, women excluded from the ownership of land) were of particular concern.
 
The Foundation suggested that an additional clause was added to Section 11(1)(a) to include the transformation and adaptation of customary law to the functions of the House.  The Foundation commented on the provisions promoting the equal representation of women and the quorum requirements for meetings and voting.
 
Discussion
Mr Sonto asked which customary laws and practices were taken into account in the submission.  He asked how gender equality can be achieved as traditional leaders were born to the position and were not elected.
 
Mr Nonkonyana referred to the Foundation's concern over certain customary practices and asked if these practices were relevant to the Bill under consideration.  He said that all legislation was subject to the Constitution but the rights of traditional communities were also protected.  He asked for clarity on the suggested additional clause to Section 11.  Although some matrilineal leaders existed, most traditional leaders were patriarchal.  He asked how the Foundation's concerns over gender equality can be addressed within that context.
 
Adv De Havilland explained that although she herself was not an expert on customary law, the Foundation's comments were made in the context of the Constitution.  The Constitution must be upheld by all and legislation formulated according to its principles.  As far as customary law was concerned, men played a role in promoting gender equality.  Ongoing discussions between traditional leaders were required and issues and disputes had to be resolved through consultation.  She conceded that it was practically impossible to achieve gender equality within the traditional hierarchies but the House was best placed to attempt to achieve the gender equality required by the Constitution.  She said that the concerns regarding the rights of women and children in traditional communities were raised before and the painful role played by the House in resolving these issues was acknowledged.  She granted that the Constitution protected customary and religious rights but where such traditions violated other rights enshrined in the Constitution, such disputes needed to be addressed.
 
Ikosi Mahlangu commented that compliance with the Constitution and the Bill of Rights was a challenge given the hereditary nature of traditional leadership.  If all the children of a traditional leader had an equal right to ascend to the position, there could be challenges from the other children.
 
Inkosi Mavundla understood that the Constitution was the guiding principle and did not advocate that customs and traditions had to be changed.  He said that the customary laws were being re-written as the laws had been corrupted and distorted.  He acknowledged that legal contradictions existed.
 
The Chairperson concluded that the session had been useful and many profound issues and challenges had been raised.  He reiterated that institutions like Parliament and the Houses were answerable to the electorate and were tasked with meeting the expectations of the people who were represented.  Discussions on the Traditional Leadership and Governance Framework Amendment Bill will be held on 30 July 2008.
 
Mr Nonkonyana said that the NHTL were established by the first ANC Government and the integrity of the principal Act needed to be preserved.  His areas of concern included the alignment of the term of office of the Houses with local government, the roles played by traditional leaders on many levels and in many spheres, membership of the Houses, the definition of "sufficient consensus", the presiding of the President over the first sitting of the House, the omission of the powers of the House from the Long Title of the Bill and the required annual meeting of the House with kings and queens or their appointed representatives.
 
Prof Sobahle requested that the DPLG was given time to consider the issues raised before commenting on the submissions.
 
Mr Doman referred to the additional clause under Section 11 proposed by the FW de Klerk Foundation and asked if the provision "within a democratic constitutional dispensation" already in Section 11 was not sufficient.
 
The Chairperson said that the suggestion made by the NHTL in this regard should be taken into consideration.
 
Mr I Mogase (ANC) asked if changes to the Constitution would be necessary if the customary laws were re-written.
 
Morena Mopeli added that the Free State House proposed that a delegate to the National House had to be a member of the Provincial House.
 
The meeting was adjourned.