National House of Traditional Leaders Bill [B56-2008] & Traditional Leadership and Governance Framework Amendment Bill [B57-2008]: Department response to submissions

Meeting report

Department of Provincial and Local Government (DPLG) response to submissions
Prof W Sobahle (Executive Manager, DPLG) introduced the delegates from the Department - Messrs Johan Meiring (Senior Manager), Nathi Mpungose (Senior Manager), Fanie Louw (Executive Manager) and Litha Twaku (Senior Manager).

Mr Mpungose and Mr Louw briefed the Committee on the Department’s response to the comments received during the public hearings held on 29^th and 30^th July 2008 on the National House of Traditional Leaders Bill (“the NHTL Bill”) and the Traditional Leadership and Governance Framework Amendment Bill (“the Framework Bill”).

The presentation included a summary of the comments and suggestions made on the provisions of the Bills and the Department’s corresponding responses.  Where applicable, the Department submitted proposed amendments to the provisions of the Bills (see attached documents).

In respect of the NHTL Bill, the Department accepted the comments and suggestions made on the Long Title and clauses 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 18, 22 and 24.  Comments and suggestions regarding clauses 3, 5 and 6 of the Framework Bill were accepted.  Amendments to the affected clauses in the Bills were submitted for consideration by the Committee.

During the public hearings on the Bills, issues were raised that required further discussion.  Matters requiring further debate and resolution included the quorum for meetings and voting in the National House of Traditional Leaders, the autonomy, status and administration of the House and the terminology used to describe the various types of traditional leaders.  The findings and recommendations of the Commission on Traditional Leadership Disputes and Claims (also known as the Nhlapo Commission) were awaited as matters regarding the recognition of kingships and the secession of communities from kingships were affected.

Discussion on the National House of Traditional Leaders Bill
Mr M Nonkonyana (ANC) was concerned that the history of the establishment of the House would be lost if the repealed Acts were not mentioned in the long title of the Bill.  He requested clarity on the omission of the reference to the powers of the House from the long title.

The Chairperson remarked that clause 18 dealt with the powers and functions of the House and suggested that the provisions of the amended clause were taken into consideration as well.

Mr Nonkonyana requested clarity on the suggested amendment to clause 3 that made provision for membership of headmen.

The Chairperson understood that membership of the House was not restricted to senior traditional leaders only and that headmen may be allowed membership if there were insufficient numbers of senior traditional leaders available or where there were other good grounds.

Mr Nonkonyana asked what was meant by the phrase “consensus” under clause 8.  He asked if a 100% agreement by all members of the House was required before a decision can be taken by the House or if a simple majority vote would suffice.

Mr Nonkonyana asked if the suggestion that all members of the House be appointed on a full-time basis was not supported by the Department because of the financial implications for the fiscus.  He asked if the House would be able to function properly if officials serving in it were not remunerated or if it was inadequately resourced.  He asked what the motivation was for Government involvement in the appointment of members.

With regard to clause 12, Mr Nonkonyana asked what progress had been made in considering the issue of the autonomy of the House and the suggestion that the House became a juristic person.

The Chairperson asked why no mention was made of the new Department that would be responsible for traditional leaders.  He asked what the implications were on the budgets of local authorities if there was no alignment of the terms of the Houses with local and provincial government structures.

With regard to clause 4, the Chairperson said that there were protocols in place to ensure that the three levels of government worked together and to avoid possible conflicts from arising.

Mr N Gogotya (ANC) noted that clause 10 made provision for the full-time appointment of the chairperson and deputy chairperson of the House.  The Bill made mention of the secretary and a speaker and he asked if the secretary or speaker would be appointed on a full-time basis as well.  He recalled that the Mpumalanga provincial House suggested that the election of members of the House was aligned with national and local government elections.

The Chairperson said that the Department accepted the suggestion made by the Congress of Traditional Leaders of South Africa (Contralesa) that there should be no alignment at all.

Mr W Doman (DA) agreed that it was not necessary to define the speaker as the provisions under clause 11 were clear.  With regard to the number of members envisaged under clause 3, he understood that the position of traditional leader was hereditary and he queried the presumption that provision needed to be made in the event that there were insufficient numbers of senior traditional leaders to be members of the House.

Mr Doman agreed with Mr Nonkonyana on the need to define “consensus”.  He agreed with the suggestions made by the FW de Klerk Foundation on the matter of a quorum of two thirds but wanted to know if such a provision meant that the House could be held to ransom by one third of the members.  He agreed that the code of conduct be formulated by regulation but cautioned against a too cumbersome process of ministerial consultation that could impede effective government.

The Chairperson requested a response from the Department on the issues raised in the submission from the National House of Traditional Leaders (NHTL), for example the language used in legislation and the authority of Parliament to legislate on traditional leadership.  He clarified the legislative role of the Committee and Parliament during the public hearings.  The KwaZulu Natal provincial House and Contralesa suggested that the provisions of the interim Constitution with regard to traditional leadership were reinstated and he wanted to know what the Department’s view was on amendments to the Constitution.

Mr Gogotya remarked that the submissions highlighted the requirement that traditions should not be tampered with.  The Department was perceived to be commoners and by tradition was not entitled to prescribe to a king.

In response to Mr Doman’s question, Mr Mpungose advised that the provisions dealing with the formulation of regulations arose out of the concerns raised by the State Law Adviser and other parties that the Minister may pass regulations without sufficient consultation with the affected parties.

Mr Mpungose said that the issue of whether the quorum should be two thirds or a 50% plus one majority was still under debate.  The FW de Klerk Foundation recommended two thirds but the Department was unsure whether the presence of such a large percentage of members was necessary at a meeting of the House.  The decision was left to the Committee.

With regard to the definition of “consensus”, Mr Mpungose advised that the Department decided to remove the qualifying phrase “sufficient”.  The issue of defining what was meant by consensus in the matter of voting in the House required further debate.

Mr Mpungose advised that reference to the Speaker of Parliament was made only once in the Bill.  He proposed that all reference to the Speaker was removed from the Bill and that mention was only made of the secretary.

Mr Mpungose said that the preamble to the Framework Bill captured the history and Government’s vision regarding traditional leadership.  The Department was willing to consider including a similar preamble to the NHTL Bill.

Mr Mpungose said that the powers of the House was limited to regulating its own business but the phrase “powers” may be left in the long title.

The Chairperson explained that the phrase “powers and functions” was in general legal use but did not necessarily equate to actual powers described in legislation.

Mr Nonkonyana recalled that the issue on whether the House should be granted the power to veto or delay legislation passed by the National Assembly or the National Council of Provinces (NCOP) was debated in 1993.  The decision was taken not to allow the House the power to veto or delay legislation.  The House made subsequent requests to be allowed to advise the President and for the Minister to address the House on legislation affecting traditional leaders.

Mr Mpungose advised that the House will have powers related to the cases tried in customary courts but such powers will be described in the Bill on customary courts and not in the NHTL Bill.

Mr Mpungose replied that the Department decided to allow the membership of headmen “on good grounds” in addition to the situation where there were insufficient numbers of senior traditional leaders.  The phrase was however subject to different interpretations and its inclusion in the clause was a matter for further debate.

Mr Mpungose agreed that the full-time membership of the House will have financial implications.  It was necessary to also consider the nature of the work done by the House and the costs associated with accommodating members at one central seat of the House.  The issue of the autonomy of the House was still under debate.  The matter was first raised when the Bills were presented to the Committee.  The Department had arranged a workshop for the provincial departments and Houses to discuss the matter under the leadership of Mr Themba Fosi (Deputy Director-General, DPLG) on 6 August 2008.  He was unable to provide a definite date when the process was expected to be completed.

The Chairperson advised that the issue of autonomy of the House arose out of the last state of the nation address made by the President.  The DPLG was the responsible Department for achieving Government’s strategic objectives.  Both the NHTL and Contralesa requested involvement in the drafting of legislation and the issue of the quality and adequacy of consultation were frequently raised.  The Committee was accountable for ensuring that adequate consultation had taken place in the formulation of the Bills.

Mr Mpungose replied that the Department contacted the House before the Bill was drafted and were given the go-ahead to proceed.  Meetings were then held with the NHTL secretariat, the chairperson and deputy chairperson of the NHTL, the executive and a full sitting of the house.  All parties were given the opportunity to respond before the first draft of the Bill was published.  Feedback received was incorporated in the documents and subsequent requests for inclusion in the draft Bill were considered.  Two weeks before the Bills were published, the Department called on all officials in the provincial departments and houses to submit comment.  The NHTL indicated that sufficient consultation had taken place at the national level and that the DPLG may proceed with obtaining input at the provincial level.  The NHTL was represented at all meetings held with the provincial Houses.  The Department considered that sufficient consultation had taken place and was unsure what motivated the comments on the adequacy of consultation on the Bills.  A Ministerial Committee was formed and its report resulted in the Bills.  The issues raised during the submissions to the Portfolio Committee were covered in the Ministerial Committee’s report as well.  The process started in 2006, public hearings were held during the previous week and the NHTL still had further opportunity to comment on the Bills before they were passed.

The Chairperson explained that consultation was a crucial element in the process of Bills.  He requested a written report from the Department on the consultation processes followed by the DPLG, for inclusion in the Committee’s report on the Bills.  The Committee needed to be satisfied that adequate consultation had taken place and that consensus had been reached with the affected parties on the contents of the Bills.  The Committee needed to be clear that where differences of opinion existed, it was as a result of different points of view and not as a result of insufficient consultation.

In response to the questions on corporate governance and protocol, Mr Mpungose advised that the Bill made provision for the Minister to consult with the Premier when elections needed to be held.  Further provision was made for the NHTL to include the provincial Houses when dealing with matters involving Houses at the local level.

The Chairperson noted that the NHTL had expressed some frustration over its lack of authority over matters that occurred at the provincial level.  He asked if the Bills made some provision for the NHTL to have a degree of authority over the provincial Houses.

Mr Nonkonyana said that the reality was that the provincial Houses had a dim view of the NHTL and felt that its members advocated their own interests.  Three members per province sat in the NHTL and therefore provincial interests were adequately represented.  Problems with the manner in which the NHTL articulated the reports on its activities were identified.

The Chairperson remarked that representative democracy can be problematic in the way mandates and feedback was communicated.  Houses of traditional leaders were not traditional concepts and were not subject to traditional customs and practices.  The Houses should therefore not be judged within the boundaries of traditions.  He asked whether remedies to address the deficient culture of reporting back can be introduced.

Mr Meiring pointed out that the provisions under clause 15 attempted to enhance and improve the relationship between the Houses.

Prof Sobahle said that there was a difference between traditional structures and a modern structure created in terms of the Constitution.  The NHTL did not operate in a vacuum and was subject to the vision of the ruling party.  A transformation roadmap required the institution to transform in line with the requirements of the Constitution and the Bill of Rights.  The argument that a headman may not lead a modern structure such as the House was difficult for Government to accept.  The position of traditional leader was hereditary and the leaders were not elected.  He explained that “consensus” meant that the will of the majority applied and did not mean that the institution can be held ransom by one dissenter.

Mr Nonkonyana asked what percentage or number of votes would constitute consensus.

Prof Sobahle replied that an overwhelming majority was required.

Mr Gogotya remarked that, by its nature, traditional customs tended to have an element of stagnation.

Prof Sobahle responded that cultures also tended to be dynamic.  Government’s transformation vision was contained in the White Paper, which required all Government structures to be in line with the new order.  Traditional leadership was included in the structures of Government.  The transformation requirement was a recurring theme and appeared in the preamble to the Framework Act as well.  The argument that tradition must not be tampered with was therefore a non-starter.

Prof Sobahle said that the new Department for traditional leaders had to decide on the issue of full-time membership of the House.  The matter had been under discussion since 1996.  Government’s position was that traditional leaders had to be seen to be interacting with their own communities.  There was a need to review the issues of autonomy, full-time membership and membership of headmen of the House.  The White Paper was five years old and should also be subjected to a holistic review as times had changed.

Mr Nonkonyana asked for a reply to the Chairperson’s earlier question on the new Department.

Prof Sobahle replied that the DPLG had appointed a service provider to undertake the work involved in establishing the new Department.  A Director-General was to be appointed before the end of the year and the new Department was expected to be operational by April 2009.

Prof Sobahle explained that clauses 13, 14 and 15 dealt with the issue of corporate governance and the relationship between the House and kings and queens and provincial Houses.  Although the NHTL had expressed frustration over its lack of influence over provincial Houses, it must be borne in mind that the province was the domain of the Premier and that the Minister must consult with the Premier on matters affecting the province.  It would be unlawful to allow a national government structure to interfere in provincial matters without consulting the Premier.

The Chairperson pointed out that the reason for the comment was the perceived lack of status and image of traditional leaders.  For example, the Free State MEC of Transport had less status than the Minister of Transport.  The MEC would not be able to resolve the problem with cross-border transport with the government of Lesotho because of his perceived lack of status.  He said that the issue of the image and status of traditional leaders needed to be taken into consideration and a way needed to be found to accommodate their concerns.

Prof Sobahle conceded that the issue of status and image required further consideration.  With regard to the language used in legislation, he doubted if consensus would ever be reached on the vernacular used.  The decision to use the appropriate terminology was left to the provinces.  He said that the use of the phrases to describe the categories of traditional leaders, i.e. “kings and queens”, “senior traditional leaders” and “headmen” were agreed after protracted discussions at a high level.

Prof Sobahle said that clarity was required on which version of customary law needed to be taken into consideration.  Different versions of customary law applied to the pre-colonial, colonial, post-colonial and post-apartheid eras.

Mr Nonkonyana recalled that reference was made to customary law in the submission from the FW de Klerk Foundation.  He asked if the Department knew which version of customary law was referred to.

Prof Sobahle replied that the matter of customary law was not considered as it was a very contentious issue.

Mr Nonkonyana requested comment on the point raised in the submission that the NHTL was an appendage of the DPLG.  He asked why the secretary of the House can not be the CEO and the accounting officer that was accountable to the Auditor-General.  He asked for comment on the House’s request that it was allowed to appoint its own staff and formulate its own budget.  He said that in certain provinces, kings and queens were either members of the House or appointed a representative and asked what the Department’s view was on the matter.  He wanted to know what role was played by the Houses in legislation as they were not legislative bodies.  He requested clarity on the matter of continued membership even after the House had dissolved.  He asked if the current House will be dissolved when the Acts were repealed and a new House formed when the new Act was passed.

Mr Mpungose replied that the relationship between the Department and the House was under review.  The House will always report to a responsible Department.  The matter of the management of the staff seconded to the House fell outside the responsibility of the Department.  The DPLG was responsible for the remuneration of the staff but the House had its own policies and systems.  The responsibilities of the secretary, CEO and accounting officer would be clarified once the proposals were received from the review that was undertaken.

The Chairperson suggested that the Department included alternative options and scenarios.

Mr Mpungose agreed to the Chairperson’s suggested.  He said that a policy decision had to be taken and that further amendments to the Act would be necessary.  The Department was keen to finalise the matter as soon as possible.

Mr Mpungose said that although some kings were members of the House, there was no objection to the clause that prevented kings and queens to be members of the NHTL in future.  The Department expected provinces to follow suit and pass their own regulations in accordance with the new Act.  Provinces were expected to resolve the issue of the relationship with the kings and queens at the provincial level.  The Zulu king was consulted on the Bills and his view was that the relationship between the provincial House and the kingship council was regulated as proposed in the Framework Bill.  The Department had difficulty in finding a legal precedent to regulate the relationship with kingship councils at the national level.

Mr Louw advised that nearest similarity was the provision in the Constitution that allowed the South African local Government Association (SALGA) to nominate representatives to the NCOP.

Mr Mpungose agreed that the NHTL had no legislative powers.  The House was consulted on legislation affecting customary issues and only played an advisory role.  He explained that members were required to remain in office after the House was dissolved to ensure that a vacuum was not created until such time when a new House could take over.

Prof Sobahle explained that Houses were intended for traditional leaders.  In practice, kings were represented in the Houses by commoners and not by traditional leaders.  This practice created a problem and defeated the objective of the Houses.

Discussion on the Traditional Leadership Governance and Framework Amendment Bill
The Chairperson asked for the Department’s response to Contralesa’s concern over the provision that hereditary traditional leaders were restricted to 60% of the membership of kingship councils.

Mr Gogotya asked what the current status was of the communities that wanted to secede from their kingship. The Chairperson suggested that the matter was discussed at a later stage.

Mr Nonkonyana asked if it was appropriate to refer to the brother of a king as a senior traditional leader as he was considered to be of a higher rank.  The outcome of the Commission on Traditional Leadership Disputes and Claims (“the Commission”) was expected to result in the abolition of certain paramount chieftainships, which had been recognised as kingships.  He asked what provision was made for the phasing out of the paramount chiefs and what position they would hold.  He requested clarity on the relationship between the kingship councils and other government structures.  He asked what the rationale was for introducing the Bills at this point in time as there were several issues still under discussion.

The Chairperson questioned whether the title of the king’s brother should be included in the legislation.  The hierarchy of traditional leaders was specified and the decision on the terminology used to describe traditional leaders was left up to the provinces.

Mr Nonkonyana replied that the concern was over the issue of transformation.  There appeared to be a conflict of interest as the leaders could use their position to protect their own interests.  There was a problem with headmen as some positions were hereditary but others were either appointed or elected.  In KwaZulu Natal there were no headmen and there was a king in Mpumalanga with no chiefs.  The Bill at least created a framework for kingship councils but in reality, structures of traditional leadership varied across the country and were quite complicated.

Mr Doman asked if sub-section A under clause 3 was superfluous.

Mr Meiring explained the different concepts of traditional leaders and the brother of the king in the Sotho, Tswana and Zulu cultures.  The legislation however only made provision for the three levels of traditional leaders.  With regard to the matter of paramount chiefs, the Commission was expected to make recommendations on the appropriate level of the affected paramount chiefs.

Mr Nonkonyana said that the Commission had already rejected certain claims of kingship but had given no explanation of the basis for the decision.

Mr Meiring explained that the assessment of the claims of kingship was conducted during the first phase of the Commission’s proceedings.  The second phase would determine the position of the claimants, whose claims to kingship had been rejected.

Mr Nonkonyana said that there were financial implications as the duration of the Commission was not intended to be longer than five years.  He suggested that the Commission was invited to report on progress made to the Committee.

Mr Meiring explained that kingship councils and local Houses had replaced the regional authorities in certain areas.  In some cases, these traditional structures were led by the king.  The Bill made provision for these customary structures to be formalised.  He said that kingship councils were customary structures and cannot be equated with local Houses of traditional leaders.

Mr Nonkonyana said that there should be a vertical integration between the national, provincial and local houses and kingship councils.

Mr Meiring said that the Bills attempted to address the gaps that had been identified in the implementation of the Act.  For example, the Act required that the provincial Houses had to be reconstituted within one year but this did not occur in some provinces.  The amendments allowed a further period of five years for the Houses to comply with the legal requirements.

Mr Meiring agreed that there were many different interpretations of the position of headmen.  Progress had been made by provinces to address the issue by making use of the vernacular in provincial legislation.

With regard to the Commission, Mr Meiring was aware that the Commission had consulted provincial Departments as well as Houses during its proceedings.

The Chairperson asked who will take over the role played by the Commission when it reached the end of its term.

Mr Meiring replied that the Bills made provision for the recognition of the Houses and the leaders.  The relationships between the three spheres of government and Houses were specified to observe the existing protocols.

Mr Mpungose explained that the Department avoided including contentious issues in the interest of speeding up the process of the Bills and only included the most essential provisions at this time.  He said that the President and the Premier were empowered to appoint commissions.  In the case of the North-West province, provision was made for the appointment of a commission to deal with traditional leadership matters.

Prof Sobahle acknowledged that there were differences in the rankings within the level of senior traditional leaders.  The sons and grandsons of kings were also considered to be senior to other senior traditional leaders.  There were examples of traditional leaders who elevated their status by marriage to the daughters of kings.  Certain traditional leaders headed districts.  The provisions of the Bill made no distinction between the various ranks within the category of senior traditional leader.

Prof Sobahle explained that the rationale for the Bill was to address the gaps identified in the implementation of the Act.  The Act made no provision for a mechanism to determine the succession of deceased kings and paramount chiefs and resulted in a number of problems.  The Commission was appointed with the objective to address the wrongs created by earlier legislation.  The Framework Bill now made provision for mechanisms to deal with issues such as the succession of kings.

Mr Nonkonyana requested clarity on the restriction imposed on the number of members of Houses and kingship councils.

Mr Mpungose replied that the number of members was a contentious issue.  It was suggested that the number of members were limited to 30 but could also be determined on a proportional representation basis.  The Department avoided the issue by not specifying the number of members and left the decision to the Committee.  He pointed out that the number of members had an effect on the effective functioning of the structure concerned.

Prof Sobahle agreed that the issue required further debate.  Mention was made in submissions that the limit of three members per province in the NHTL was unfair.

Mr Nonkonyana said that a relationship between kingship councils and municipal councils needed to exist to address issues of service delivery.  It was essential that all communities were represented at least at traditional council level and it was unfair to exclude some communities by limiting the number of members of kingship councils.

Mr Meiring said that the number of members was determined by provincial legislation.  The provision allowed for no more than 30 members but may be less as well.

The Chairperson requested that the Department clarified the reasons for the urgency of the Bills and listed the issues that were excluded from the Bills.  He suggested that the Bills were referred to the party caucuses and that further deliberations were held by the Committee on 6 August 2008.

The meeting was adjourned.