Traditional Leadership & Governance Framework Amendment Bill [B57-2008]: public hearings & Department response to submissions

Meeting report

Mpumalanga Provincial House of Traditional Leaders submission
Ikosi S Mahlangu (Chairperson, Mpumalanga Provincial House of Traditional Leaders) presented the submission on the Traditional Leadership and Governance Framework Amendment Bill (see attached document).

It was suggested that the proviso in Section 2A (Recognition of kingships) to the effect that kingships be recognised by other communities, was omitted.  It was suggested that the phrase “ex-officio” in Section 3 (Establishment and recognition of traditional councils) was rephrased.  Section 3A (Establishment and recognition of kingship councils) excluded members of the inner royal family.  Under Section 4A (Functions of kingship councils), it was suggested that the kingship council addressed breaches of the code of conduct by a member of a kingship and that the King rather than the Premier informed the President of disciplinary action taken.

Discussion
The Chairperson explained that the relationship between the three tiers of government was described in the Constitution as “interrelated, interdependent yet distinct”.  Interference by any one of the parties with the other may not be unreasonable.  The language used in legislation was carefully chosen to avoid any negative regard or indicate any superiority of one level over the other.  The areas of kings or queens do not straddle more than one province and the objective of the legislation was to allow the various structures to effectively work together, without demeaning the status of kings or queens.

Mr N Gogotya (ANC) said that an ex-officio position had limitations on what a person in such a position can do or cannot do.  If an ex-officio member was replaced by an automatic member of a House, the member will have the rights and privileges associated with his membership that went beyond the limitation on an ex-officio member.

Mr M Swathe (DA) referred to the comment that embers of the inner royal family were excluded from membership of the kingship councils.  He asked if members of the royal family were regarded as traditional leaders or as members of the king’s family.  Referring to the suggestion that disciplinary action taken be referred to the President by the king, he asked if that would mean that the Premier was excluded.

Mr M Nonkonyana (ANC) referred to the comment that the recognition of kingships had the potential to create disputes.  He asked if the potential for disputes would be removed if the kingships were listed in the legislation.

The Chairperson said that attempts to undo the wrongs of the past had the results highlighted in the submission by the Mpumalanga House.  He asked what alternative mechanism was suggested for the recognition of kingships.

Mr Nonkonyana referred to the comments on membership of kingship councils.  He asked how it can be ensured that all traditional leaders in a kingship had a voice on the kingship council.  He said that both the Framework Act and the White Paper made provision for the role of the royal family and asked for further clarity on what was meant by the “inner royal family” mentioned in the submission.

Khosi F Kutama (Chairperson, National House of Traditional Leaders) explained that culturally, the chieftain or traditional leader had first, second and third houses.  The “inner circle” referred to was the house (or family) that decided on accession and informed the community of the decision on who will succeed.

The Chairperson asked if provision needed to be made in the legislation for this house and how such provision should be made.

Khosi Kutama conceded that it will be difficult to legislate.  He said that the concept of an inner circle may not apply to other communities and should not be enforced on them.  He suggested that provinces considered the issues pertinent to them and legislated accordingly.  Regarding the 60% membership of kingship councils, he agreed that some traditional leaders will be excluded but all provinces must be represented on the National House.  Senior traditional leaders must be represented in the kingship councils.

Ikosi Mahlangu said that within Mpumalanga province, there were disagreements on who were members of the inner royal family.  A committee had been tasked to define who were considered to be members of the inner royal family.  Immediate family members cannot be excluded.  The members of the royal family had defined roles to play and protocols were applicable.  A way needed to be found to ensure that all members of the family were accommodated and that disputes were avoided.

Mr Gogotya understood that the kinship included several houses but ascendancy was determined by one house.  The inner circle included all the houses of the king and may include members of the wider family and would appear to be a contradiction.

The Chairperson explained that there were many different traditions that were not necessarily a contradiction.

Mr Nonkonyana was aware of the differences and dynamics within families but wanted to know why the concept of family should be different in Africa.

The Chairperson explained that tradition and custom were dynamic.  Who wielded power shifted constantly and cannot be frozen in legislation.  He suggested that traditional leaders defined and appropriated platforms.

Mr Nonkonyana said that government policy and the law gave certain powers to the royal family.  If powers were allowed to be in a state of flux, problems will be created when the law was implemented.  The royal family had the power to appoint and remove a leader but if it was granted the power to change the basis of ascendancy (e.g. by changing from a matriarchal to a patriarchal society), unforeseen problems may be created.

Mr Gogotya suggested that an explanation of what was considered to be an “outer” royal family may assist with the understanding of the “inner” royal family.

Khosi Kutama explained that in his culture, the inner family was the house that deliberated amongst themselves and decided on who would succeed the traditional leader.  The decision was then communicated to the other members of the extended royal family.

Mr Nonkonyana asked how it was decided which one of the leaders’ houses was the inner family.

Khosi Kutama explained that one house only had the power to decide ascendancy.

KwaZulu Natal Provincial House of Traditional Leaders Submission
Inkosi W Mavundla (Member, NHTL) presented the submission drafted by Inkosi Mangosuthu Buthelezi (Chairperson, KwaZulu Natal Provincial House of Traditional Leaders) on the National House of Traditional Leaders Bill and the Traditional Leadership and Governance Framework Amendment Bill (see attached document).

The House expressed concern over the lack of consultation, failure to take the position taken by the House into consideration in the drafting of legislation affecting traditional leaders and the dilution of the powers of traditional leaders.  The House suggested that legislation was formulated at a provincial rather than a national level.  Objections were raised against the imposition of provisions that were foreign to culture and traditions.  No provision was made for the role of a traditional Prime Minister.  Further comments included the functions and role of the Zulu monarchy and the lack of autonomy and powers of the National House of Traditional Leaders.  The redrafting of both Bills was requested.

Discussion
The Chairperson expressed appreciation for Inkosi Buthelezi’s response to the invitation to comment on the Bills.  However, he objected to the combative nature of the language used in the submission and the questioning of the Committee’s motives and intentions.  The Committee would have appreciated it if more appropriate language was used but respected that diverse views were held.

Mr Gogotya referred to the comment in the submission that foreign ideologies and structures were not acceptable.  However, it would appear that foreign concepts such as budgets, salaries for kings, cars and airplanes were acceptable.  He requested clarity on which foreign structures were acceptable and which were not.

Mr Nonkonyana pointed out that the role of kings was not contained in the Act.  Provision was made for the President to determine the role of kings by proclamation.  He asked what the House’s view was if the provision was removed or if the legal framework for the role of kings must be allowed to continue.  He asked in what respects the Zulu monarchy differed from other monarchies.  He wanted to know what the historical position of the Zulu Prime Minister was and asked if a framework needed to be created for the position.  He asked what the House’s view was on the involvement of traditional leaders in politics.

Mr R Sonto (ANC) requested clarity on what the suggested new attitude of Parliament towards traditional leaders should be.  He wanted to know what was meant by “autonomy” of the Houses.  He asked what the functions and status of the Prime Minister would be.  He asked where it would be appropriate to pass legislation for the framework for traditional leadership.

In response to the last question, the Chairperson said that Parliament was the supreme lawmaking body.

Inkosi Mavundla agreed that laws were passed by Parliament but said that consultation with affected parties needed to take place.  In the case of the Bills, consultation with the traditional structures did not take place and the Bills did not reflect the views of traditional leaders.  Compared to other structures, traditional leaders were treated unfairly, both economically and socially.  Although kings were treated well, the living standards of other traditional leaders were low.

In response to Mr Sonto’s question on the meaning of autonomy, Inkosi Mavundla said that the activities of the National House of Traditional leaders were regulated by the Department of Provincial and Local Government (DPLG).  The DPLG dictated the budget and did not inform the house of its use, the House had no say over the administration of staff and resources, approval for travel expenditure needed to be obtained and all requests for travel had to be motivated.

Inkosi Mavundla said that the KwaZulu Natal House considered traditional leaders to have the constitutional freedom of choice to participate in politics, provided that such participation did not interfere with the operations of the House.  All members had the right to vote and politics can not be divorced from social life.

Inkosi Mavundla explained that Zulu kings had always had Prime Ministers.  Confusion could arise through the use made of English terminology.  The Zulu term was “Induna Enkulu Ka Zulu”.  The Bill only made provision for three hierarchies of traditional leaders, i.e. kings and queens, senior traditional leaders and headmen.  No provision was made for the Prime Minister.  He said that KwaZulu Natal always had kings and differed from other provinces where paramount chiefs were later elevated to kingships.

Inkosi Mavundla said that certain sections of the Constitution were too Eurocentric and laws were copied from the West, rather than those of other African states.  Traditional leaders were considered from the viewpoint of the West and deprived of their role in applying the criminal justice system, as was the case in Botswana.

Ikosi Mahlangu pointed out that other communities regarded the paramount chiefs as kings and that it was not correct to state that they were “elevated”.  He said that the position of Induna existed in other cultures as well, even though the Indunas were not recognised in the hierarchy of traditional leaders and received no payment for their services.  He commented that the tone of the submission expressed anger that stemmed from the intermingling of politics and other issues.  As a result, there was doubt about whether the submission was motivated by a political stance or not.  His view was that traditional leaders should not be involved in politics and that all political parties should be welcomed by traditional communities.

Inkosi Mavundla urged that the content of the submission was considered rather than the person who made the comments.

Mr Nonkonyana asked who decided the role, function and status of the Prime Minister.

Mr Gogotya asked if the Prime Minister could rule against the king as there were historical precedents.

Inkosi Mavundla reserved comment as he did not have a mandate to reply to the question.

In response to earlier questions, Ikosi Mahlangu explained that the king should inform the President of the outcome of disciplinary action taken by kingship councils.  Kingships extended beyond the boundaries of provinces and the provincial Premier did not necessarily have the authority.

Mr Nonkonyana asked what would happen if the king was guilty of misconduct.

Ikosi Mahlangu replied that in such a case, there were other structures that could report to the President.

Mr Gogotya requested that the Committee was provided with guidelines on disciplinary procedures but the Chairperson suggested that such detail was not required at this point in the proceedings.

Ikosi Mahlangu said that the limitations imposed on ex-officio members were not spelled out in the legislation.

The Chairperson explained that ex-officio positions generally gave guidance but the person did not get involved in operations.

Ikosi Mahlangu said that the kingship councils were the only structures within kings could govern and it was necessary to be clear on any limitations.

Mr Sonto asked whether the comments of the traditional leaders expressed the views of the traditional community.

Ikosi Mahlangu replied that the time constraints for comment on the Bills did not allow extensive consultation with the community.  Comments were based on problems experienced when Houses dealt with officials at local government level.  The intention was not to undermine the current government structures and the need to work together was recognised.

The Chairperson asked what position was taken on the issue of dissolution of a kingship.

Ikosi Mahlangu replied that the objection was that dissolution should not be subject to the involvement of other communities.

The Chairperson asked what mechanisms were suggested if the provincial House disagreed with the provisions in the legislation.

Ikosi Mahlangu replied that senior traditional leaders within the affected communities should have the power to dissolve a kingship.

Inkosi Mavundla suggested that Houses had their own researches to conduct research and present the results of their research to the Houses.  One of the reasons for advocating autonomy was to allow Houses to have their own budgets that will allow them to gather their community to address issues.

Congress of Traditional Leaders of South Africa (CONTRALESA) Submission
Nkosi S Holomisa (President, Contralesa) presented Contralesa’s submissions on the National House of Traditional Leaders Bill and the Traditional Leadership and Governance Framework Amendment Bill (see attached documents).

Contralesa expressed concern over the adequacy of consultation between the Department and traditional leaders and the lack of opportunity afforded to leaders to consult with their communities on the proposed legislation.

With regard to the National House of Traditional Leaders Bill, Contralesa commented on the referral of legislation to the Houses, the autonomy of the Houses, the appointment of members of the Houses on a full-time basis, the rights, powers, privileges and benefits of members of the Houses, the status of monarchies, the eligibility of traditional leaders to become members of the Houses and the appointment of members to the Houses.

In respect of the Traditional Leadership and Governance Framework Amendment Bill, Contralesa commented on the different ranks within the traditional leadership hierarchy, the concept of kingships rather than kingdoms, the membership of kingship councils, remuneration of traditional leaders, the term of office of kingship councils, the power of kingship councils, the role of junior traditional leaders and the need to reconstruct traditional council establishments where leaders may gather the community together.

Discussion
Mr Gogotya asked why the submission referred to the British system rather than the roles played by the monarchs of the Netherlands or Spain.

Inkosi Mavundla said that the legal requirement of quotas of elected council members resulted in problems because only some of the traditional leaders were paid a salary.  He suggested that the issue of allowing junior traditional leaders or headmen as members of Houses was further debated by all the provinces before any provision was made in the legislation.

Mr Sonto suggested that the proposed traditional leadership structure was illustrated with an organogram to assist the Committee in comparing the structure with that of the other governmental structures.  He asked for clarity on the election or the appointment of members of councils.

Mr M Swathe (DA) asked if there would be duplication if both members and their deputies were remunerated.  He requested clarity on the proposal that the term of office of kingships were not aligned with that of other political structures.

Nkosi Holomisa replied that the British system of monarchy was more familiar but traditional leadership was in no way comparable to European monarchies.

In response to Inkosi Mavundla’s questions, Nkosi Holomisa said that the disputes and conflicts over issues of status of the junior and senior traditional leaders would have been avoided if the DPLG had consulted with the Houses.  He welcomed the suggestion of a workshop to debate the issues and promote understanding.  Local government structures needed to take the powers of traditional leaders into consideration, for example, traditional leaders had the power to allocate land for housing.

Nkosi Holomisa said that committees were formed to assist traditional leaders to carry out their duties but no financing were received from the State for this purpose.  Financing was made available for Ward Councilors and traditional leaders should be compensated for their work as well.

Nkosi Holomisa said that it was not advocated that elections were not to be held but it was suggested that any elections took place under the auspices of the Independent Electoral Commission (IEC).  Council membership was already defined but senior traditional leaders should have automatic membership of the council.  Members should also be appointed on a full-time basis and should be allowed to appoint a deputy.  Remuneration should be for a single position, to avoid duplication of remuneration to more than one person.

Nkosi Holomisa agreed that traditional leaders should be neutral and not get involved in party politics, which tended to create divisions in communities and resulted in disputes.

National House of Traditional Leaders (NHTL) Submission
Khosi Kutama presented the submission from the National House of Traditional Leaders (see attached document) and summarised the position of the House on the two Bills.

Comments included the use of terminology, means of implementing gender equality, senior traditional leaders’ membership of councils, the autonomy of Houses at national and provincial levels, control by the Houses over their own budgets, the alignment of the terms of office with governmental structures, the dissolution of Houses, provincial versus national legislation, consultation with traditional leaders on the drafting of a code of conduct, the division of communities resulting from the participation of traditional leaders in party politics, the handling of transgressions by kings, technical errors contained in the Bills and clarity on the responsibilities of the different hierarchies within traditional leadership and the protocols of the various structures.

Discussion
No questions were asked by the Members of the Committee.

Response from Department of Provincial and Local Government (DPLG)
Prof W Sobahle (Executive Manager, DPLG) summarised the Department’s comments on the submissions on the Bills.

Prof Sobahle welcomed the input made and said that the comments on the National House of Traditional Leaders Bill in particular were not a major departure from the Department’s proposals.  He said that it was not necessary to define the oath and affirmation as that was dealt with in Section 22 and Schedule B to the Bill.  Provision was made under Section 20 for the House committees and a definition of President was not necessary as the term can not be misinterpreted.  The Department conceded that the position of the Chairperson and Deputy Chairperson of the House was full-time and needed to be clearly specified in the provisions of the Bill.  However, the Department felt that the decision to extend full-time membership to other members should remain with the President, in consultation with the Minister.

The Chairperson suggested that terminology used in the Bill was gender-sensitive.

Prof Sobahle agreed and stated that gender-equality was taken seriously by the Department.  He said that the rationale for aligning the terms of office with that of local government was that service delivery was implemented at the local level.  He noted that it was stated in the submissions that the objections were motivated by the perceived lack of status of the Houses.  Traditional leadership operated in the provinces.  It was not desirable that the kings interacted with the President without the knowledge of the Premier.  The legislation dealt with the operation of the House at the national level and provincial concerns needed to be addressed at the provincial level.

Prof Sobahle agreed that the Minister must consult with the House when promulgating regulations affecting traditional leadership.  However, the Minister must be allowed to issue the regulations.  The drafting of the code of conduct must be dealt with at the provincial level.  The Department felt that unless a quota for gender equality was imposed, the issue will not be addressed.  The stipulation that at least one third of members must be female was therefore included although it was understood that it will be a challenge in certain provinces.

Prof Sobahle agreed that Section 4 will be withdrawn and re-drafted.  Dissolution of the Houses was not unconstitutional as even Parliament was dissolved until another election was held.  Unlike kingship councils, Houses were not traditional structures.  Transformation of the structures was imperative and especially the non-traditional structures needed to reflect the principles of democracy.  The suggestion that members of the Houses should not be elected was not in keeping with the principles of democracy.

Mr T Fosi (Acting Deputy Director-General, DPLG) said that the issue of autonomy was a matter of policy that needed to be addressed by Government.  It was necessary to determine what was meant by autonomy, within the context of the role played by traditional leaders.  The submissions highlighted the full-time employment of traditional leaders, employment of staff, independent budgets and financial administration and independent planning processes.  It was suggested that the leaderships were regarded as Chapter 9 institutions or public entities.  There was a need to collectively explore the implications of autonomy further and to determine the cost implications.  The Bills made no provision for autonomous Houses.  The Department understood that the request arose out of Government’s inadequacy to support the institutions of traditional leaders and supported the proposal in principle.

In conclusion, the Chairperson commented that discussions on Bills stimulated dialogue.  He gave the assurance that the Committee will deliberate on the issues that were raised during the submissions before reaching a decision on whether the objectives of the Bill were met.  He said that no conclusions were reached at this stage as there were areas of both agreement and disagreement between the Houses.  He undertook to brief the Houses on the Committee’s conclusion.

The meeting was adjourned.