National House of Traditional Leaders Bill [B56-2008] & Traditional Leadership and Governance Framework Amendment Bill [B57-2008]: deliberations

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Cooperative Governance and Traditional Affairs

05 August 2008
Chairperson: Mr S Tsenoli (ANC)
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Meeting Summary

Members of the Committee presented input from the ANC, DA and NADECO party caucuses on the National House of Traditional Leaders Bill and the Traditional Leadership and Governance Framework Amendment Bill.

The ANC agreed to the provisions and proposed amendments to clauses 4, 5, 6, 7, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24 and 25 of the National House of Traditional Leaders Bill.  Further amendments to the Long Title and clauses 2, 3, 8, 9, 11 and 18 were requested.  Issues still under discussion included the autonomy of the House, the full-time membership of the House, the jurisdiction of the House and pensions for traditional leaders.  Clauses 8, 10, 12 and 19 were affected by these issues.  The DA requested amendments to clauses 8, 9, 18 and 20 and agreed to the remainder of the clauses.  The DA requested that details of the financial implications of the Bill were provided.  NADECO requested clarity on the accountability of the House as provided for in clause 17.

With regard to the Traditional leadership Governance and Framework Amendment Bill, the ANC agreed to clauses 1, 2, 3, 4, 6, 7, 8, and 9 to 16.  Amendments to clause 5 were requested.  The DA agreed to all the clauses of the Bill.  NADECO requested clarity on the requirement in clause 5 that the Premier was consulted if a kingship council wanted to hold more than the required six meetings per annum.

The Department of Provincial and Local Government agreed to submit updated versions of the Bills for consideration by the Committee.

Meeting report

National House of Traditional Leaders Bill
Mr M Nonkonyana (ANC) presented the input from the ANC caucus.  The party supported the Bill and suggested that the Department of Provincial and Local Government (DPLG) drafted a preamble that included reference to the legislation that established the National House of Traditional Leaders (NHTL).

The ANC requested that the phrase “powers” was retained in the Long Title of the Bill.  The proposed amendments to the definitions under clause 1 were agreed to.

In response to opposition to the alignment of the term of office of the House to that of government structures, the Department proposed that reference to the alignment of the term of office was omitted from the Bill.  The ANC requested that the term of office of the NHTL was specified in the Bill to be five years.

In principle, the ANC agreed with the provision in clause 3 that allowed headmen to be members of the NHTL, provided that there were good grounds for the membership of junior traditional leaders.  Members should be predominantly senior traditional leaders.  The submission from Gauteng pointed out that there were two traditional leaders in that province who should be granted membership of the NHTL although there was no provincial House.  A similar situation existed in the Northern Cape Province.  Provision was made in the Bill for three members from each province to be represented on the NHTL.  The ANC suggested that the clause was re-phrased to allow for less than three members per province in the NHTL.

The ANC agreed with the proposed provisions and amendments to clauses 4, 5, 6 and 7.

The party felt that the issue of autonomy of the House was still under discussion and affected the proposed provisions under clause 8.  The ANC suggested that the principle of majority agreement was applied to the meaning of “consensus” as it was not always practical to achieve 100% agreement.  A “quorum” was considered to be 50% plus one.

The ANC requested that the provisions under clause 9 (10) and 9 (1) were brought in line, whereby both sub-clauses referred to “the President or any person designated by the President” presiding over the meeting of the House to elect a chairperson and a deputy chairperson.

The ANC agreed to the amendments proposed by the DPLG to clause 10 but pointed out that the issue of full-time membership of the House was still under discussion.

The ANC requested that the heading and wording of clause 11 was changed to read “powers and functions of the House” instead of “roles and functions of the House”.

The ANC agreed to clause 12 but pointed out that the issue of the jurisdiction of the House was still under discussion.

The ANC agreed to the provisions under clauses 13, 14, 15, 16 and 17.

The DPLG proposed an amendment to Clause 18, whereby the phrase “by law” was omitted.  Clarity on the phrase “powers, privileges and immunities” of the House to regulate its own internal affairs was requested.  The ANC suggested that the clause was re-phrased to provide clarity on the immunity afforded to members during deliberations of the House.

Mr S Louw (Executive Manager, DPLG) explained that clause 24 made provision for the Minister to consult with the House and to prescribe additional privileges by regulation.

Prof W Sobahle (Executive Manager, DPLG) requested confirmation that the proposed amendment to clause 18 was acceptable.

Mr W Doman (DA) requested clarity on the extent of “immunity”.

Mr N Mpungose (Senior Manager, DPLG) understood that the ANC had requested that the clause was re-phrased to clarify that Members enjoyed immunity from prosecution resulting from comments made during sessions of the House.

Mr Nonkonyana resumed with input from the ANC on clause 19.  The party agreed to the provisions but pointed out that the matter of pensions for traditional leaders was a contentious issue that required further discussion.

The Chairperson asked if remuneration included pensions.

Mr Mpungose suggested that the heading of the clause was changed to read “remuneration, benefits and allowances” as pension and medical aid were benefits.

Mr N Gogotya (ANC) asked if pension benefits applied to kings and queens or only to members of the House.

Mr Mpungose explained that the clause applied to members of the House.  There was a request that all traditional leaders received pensions as part of their remuneration packages.

Mr Louw pointed out that this Bill could not deal with the remuneration benefits of traditional leaders.  Changes to the remuneration of traditional leaders must be done by amending the Remuneration of Public Office Bearers Act.

The Chairperson asked why the Act of 2003 specified that the President determined the pensions of members of the House.

Mr Louw replied that provision was made in the Remuneration Act.

Mr Nonkonyana resumed with the ANC input on the Bill.  Clauses 20 and 21 were agreed to.  The ANC suggested that clause 22 was amended to read “before the Chief Justice or a judge designated by the Chief Justice”.

Mr Louw pointed out that the wording of clause 22 was in line with the Constitution.

Mr Nonkonyana agreed to the proposed amendment to clause 22.

The ANC agreed to the provisions and proposed amendments of clauses 23, 24, 25 and the Short Title of the Bill.

Mr R Sonto (ANC) referred to the comment made in submissions that the Bill lacked input from community organisations.  Concerns were raised over the lack of service delivery and the development of traditional communities.  He asked if the Department was satisfied that the provisions of clause 14 would address the issue of interaction between traditional leaders and the community.

Mr Louw said that a technical amendment to clause 25 was required as reference was made to the term of local government.

Mr Mpungose remarked that clause 3 made provision for three or less members from a province in an attempt to accommodate the concerns raised by the Gauteng and Northern Cape Provinces.  A provincial House was recently established in the Northern Cape.

Mr Doman understood that, under clause 25, the term of office of the present House will continue for a further five years before a new House was established.

Mr Doman presented the input from the DA caucus.  The party was unable to comment on the suggested preamble as no text was submitted for consideration.

The DA agreed to the provisions of and proposed amendments to clauses 1, 2, 3 (subject to gender recognition of headwomen), 4, 5, 6 and 7.

The DA agreed to the suggested quorum percentages proposed by the ANC under clause 8.

The DA agreed to the ANC’s proposal for the amendment to clause 9.

The DA agreed to the proposed amendments to clauses 10, 11, 12 and 13.  Amendments to clause 14 were awaited from the DPLG.

Clauses 15, 16 and 17 were agreed to.

The amendments to clause 18 to clarify the matter of immunity of members from prosecution were awaited.  Clause 19 was agreed to.

The DA queried the provision under clause 20 (2) (a) that “there must be a standing executive committee”.  The party felt that this provision was prescriptive when the House was generally allowed to conduct its own affairs.  The DA suggested that clause 20 (2) (b) was omitted.

Mr Nonkonyana explained that clause 20 (2) (b) made provision for the representation of all provinces on the executive committee.

Mr Mpungose asked if the wording of the clause will be acceptable if the word “may” replaced “must”.

The Chairperson replied that the issue was the number of members of the executive committee and had a bearing on the matter of the number of full-time members as well.

Mr Doman suggested that the number of members of the executive committee was not prescribed in the legislation.

The DA agreed to the provisions and proposed amendments to clauses 21, 22, 23, 24 and 25.

The DA noted that the DPLG had stated that additional funding would be required.  The DA expected a more specific indication of the financial implications of the Bill.

Ms M Mdlalose (NADECO) reported no problems with the provisions of the Bill.  She requested clarity on the accountability of the House (clause 17) and the provision for remuneration (clause 19.

Mr Mpungose explained that the NHTL was accountable to Parliament.  The provisions of clause 17 made provision for the NHTL to submit an annual report on its activities to Parliament.  The House may also be summoned to appear before Parliament at any time.

Traditional Leadership and Governance Framework Amendment Bill
Mr Nonkonyana presented the input from the ANC caucus.  The party requested that the wording used in the Bill was gender- sensitive.

The ANC agreed to the provisions and proposed amendments to the Long Title and clauses 1, 2, 3 and 4.

The ANC was not convinced by the argument to limit the number of members of the kingship councils to 30 and requested the DPLG to conduct further research on the principle and to submit options for further consideration.  The party was sensitive to the objections raised against the alignment of the term of office of the kingship council to that of local government and wanted to give the matter further consideration.  The provision was in line with the constitutional requirement of corporate governance and was reasonable.  The quorum requirement of 50% plus one was agreed to.  The reference to “traditional council” clause 5 3A (10) was confusing.

Mr Louw referred to the Department’s proposed amendments to clause 5, which addressed the concerns raised by the ANC.

Mr Nonkonyana asked why the term of office of kingship councils were aligned with that of the national House when the councils operated at local government level.

Mr Mpungose replied that consideration had to be given to the need to establish relationships between the kingship councils and municipalities.

Mr Nonkonyana reported that the ANC was not convinced that membership of kingship councils was prohibited if the traditional leader was also a member of any other government structure.  Further deliberations over the provisions of clause 5 3A (14) were necessary.

The ANC agreed to the provisions under clauses 6 and 7.  Clause 8 was acceptable but the matter of traditional councils in urban areas required further discussion and debate.

The ANC agreed to clauses 9 to16 and the Short Title of the Bill.

Mr Doman reported that the DA caucus had no problems with the provisions and proposed amendments to the Bill.

With regard to the provisions of clause 5 3A (14), the DA felt that there could be a conflict of interest if a member of a kingship council was also a member of a municipal council.  He asked how the changes to accommodate the requirement that the wording of the Bill was gender-sensitive would be made.

The Chairperson explained that the correction would be consequential throughout the Bill.

Ms Mdalose reported on the input from the NADECO caucus.  She requested clarity of the provision under clause 5 3A (8) that made allowance for the kingship councils to meet every two months but required consultation with the Premier to call a special meeting.

Mr Meiring explained that provision was made for at least six meetings per annum to be held but the Premier must be consulted if more meetings were to be held.

The Chairperson asked if the number of meetings was limited because of cost implications.

Prof Sobahle agreed that there were costs involved in holding the meetings and the need to hold additional meetings must be justified.

Mr Mpungose explained that some Houses only met once a year.  The Department tried to build in the functionality of the kingship councils.  He said that no adverse comments were received on the provision.

The Chairperson requested that the DPLG submitted updated versions of the Bills by the following week.

Mr Nonkonyana said that the Committee needed to hear the report from the Commission on Traditional Leadership Disputes and Claims before the Bills can be finalised.

The meeting was adjourned.

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