National House of Traditional Leaders Bill [B56-2008], Traditional Leadership & Governance Framework Amendment Bill [B57-2008]: deliberations; briefing by Commission on Traditional Leadership Disputes & Claims

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Cooperative Governance and Traditional Affairs

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

The Acting Chairperson and Commissioner from the Commission on Traditional Leadership Disputes and Claims briefed the Committee on the history and activities of the Commission since it was established in 2004.  In terms of its mandate, the Commission concentrated on investigating the legitimacy of the twelve paramount chieftainships and released the report on its decisions in April 2008.  The Commission decided that six of the twelve paramountcies were considered to be legitimate kingships.  To date, the Commission had received a total of 927 traditional leadership disputes and claims.  The term of the Commission will expire in 2009 and will have to be extended by the President to allow the Commission to resolve the outstanding disputes and claims.  The Commission was concerned over the impact of the amendments contained in the Traditional Leadership Governance and Framework Amendment Bill.  The major concern centered on the criteria for the recognition of kingships in clause 2 of the Bill.  The Commission claimed that the provisions in the Bill negated the work already done as different criteria applied for kingships recognised in accordance with the existing Act (no. 51 of 2003).  The Commission was concerned that the Bill made provision for concepts that were foreign in terms of customary law, customs and traditions.

The Committee agreed to allow the Commission to confer with the Department of Provincial and Local Government on the areas of concern in the Bill.  Any further amendments had to be finalised before the Committee met on 13 August 2008 to vote on the Bills.

The Committee was concerned over the position of the six paramount chiefs whose paramountcies were not recognised by the Commission as legitimate kingships.  The Commission was unable to provide clarity on the issue as any recommendations and the implementation of the decisions made by the Commission fell outside the mandate of the Commission.  Members asked questions about the succession to kingships and paramountcies, the position of hereditary and appointed headmen and uniformity in the application of traditional leadership.

Meeting report

Briefing from the Commission on Traditional Leadership Disputes and Claims
Adv M Moleleki (Acting Chairperson, Commission on Traditional Leadership Disputes and Claims) introduced the delegates from the Commission: Mr M Mokake (Secretary) and Adv S Poswa-Lerotholi (Commissioner).

In its letter of invitation, the Committee had requested to be briefed on the next step to be taken by the Commission, what would happen to the paramount chieftainships that were no longer recognised, when the Commission expected to have completed its work, the number of claims and disputes received by the Commission and the Commission’s comment on the Bills.

The Commission was established in terms of section 22 (1) of the Traditional Leadership and Governance Framework Act (Act No. 51 of 2003), which took effect on 24 September 2004.  Commissioners were appointed by the President with effect from 1 November 2004.

In terms of section 25 (2) of the Act, the Commission was mandated to investigate claims and disputes related to the establishment of traditional leaderships, the right of the incumbent to occupy a position of traditional leadership, the recognition of a traditional community and disputes over the boundaries of a traditional community.

Section 28 (7) required the Commission to investigate the legitimacy of paramountcies and paramount chiefs in the first instance.  Section 25 (1) made provision for the Commission to operate nationally and granted the right to investigate and decide on claims in any province.  Section 25 (4) made provision for the Commission to investigate claims and disputes dating from 1 September 1927 or earlier if there were good grounds.

Section 25 (3) required the Commission to take customary law and the customs of the affected traditional community into consideration during its investigations.  The Commission was guided by the reference made in the preamble to the Act to the constitutional provision for the restoration of the integrity and legitimacy of traditional institutions in line with customary laws and practices.

In terms of section 25 (5), the Commission was required to complete its mandate within a period of five years.  Provision was made for the President to extend the term of the Commission.  The current term of the Commission would therefore end on 23 September 2009 and the term of office of the Commissioners on 31 October 2009.

The Commission released its findings on the investigation into the legitimacy of the twelve paramount chieftainships on 29 and 30 April 2008.  Six of the twelve paramountcies were found to be legitimate kingships.  The Commission was currently engaged in further investigations to determine who the rightful incumbents of the paramountcies that were acknowledged as kingships were.  The position of the incumbents of the paramountcies that were found not to be kingships was also under investigation.

Section 8 of the Act made provision for the positions of kings and queens, senior traditional leaders and headmen.  The Commission found that not all paramount chiefs occupied the position of that of a king.  The Act made no provision for the position of a paramount chief, which was considered to be of higher rank than that of a senior traditional leader.  Section 28 (1) of the Act made provision for transitional arrangements with regard to the position of paramount chieftainships.

Section 26 of the Act made provision for the Commission to make decisions on claims and disputes and to inform the President of the decisions.  The mandate of the Commission did not extend to the implementation of its decisions.

The Commission was a new initiative and no precedent existed.  The Commission had determined its operational structure, set up an office, appointed staff, laid down rules and procedures and commenced with investigations by June 2005.  The pace at which the Commission carried out its mandate was curtailed by the irregular availability of commissioners, who were appointed on a part-time basis and who were only available for and average of two weeks per month.  Hearings took longer than anticipated and the decisions made by the Commission were recently challenged in court.

The Commission’s method of conducting hearings in two stages resulted in further delays.  During the first stage of public hearings, the Commission heard evidence and gathered information.  Submissions were made under oath and parties were allowed legal representation.  Any member of the public was allowed to submit comment.  The second stage of hearings was held after the Commission had conducted its own research.  As a quasi-judicial body, the attendance of the full complement of commissioners at the second hearing was a legal requirement that was difficult to achieve.

To date, a total of 927 disputes and claims were received by the Commission.  In addition to the investigation into the twelve existing paramountcies, the Commission had received 10 claims and disputes related to the recognition of kingships, 64 claims of new kingships, 698 claims and disputes over senior traditional leaderships, 69 claims and disputes over headmen, 20 claims from communities for recognition as traditional communities and 54 boundary disputes.  The Commission expected to receive additional claims and disputes in future.

The Commission expected to have investigated and to have made determinations on approximately 160 disputes and claims by the end of October 2009.  It was clear that the term of the Commission would have to be extended to allow for the resolution of more claims and disputes.  Excluding investigations and determinations related to the twelve paramountcies, the Commission expected to complete 500 claims and disputes by 2013.  Procedures had been streamlined and the Commission did not expect the remaining disputes and claims to require elaborate investigations and hearings.  Section 21 (1) made provision for disputes between traditional communities to be resolved internally, without recourse to the Commission.

The Commission was doubtful that all claims and disputes over traditional leadership would be resolved but felt it was able to make a meaningful contribution to the establishment of a sustainable dispute resolution mechanism.  The Commission was however considered to be the best mechanism to handle traditional leadership disputes and claims.  Because of the volume of work involved, the Commission recommended that its term was extended to the end of the 2012/2013 financial year.

Adv Poswa-Lerotholi conveyed the hesitancy of the Commission to comment on the legislation that allowed it to be established.  The Commission felt that it was not qualified to comment on the National House of Traditional Leaders Bill.  The Commission’s comments were limited to the impact of the Traditional Leadership Governance and Framework Amendment Bill on its activities.

Clause 2 of the Traditional Leadership Governance and Framework Amendment Bill made provision for the criteria for the recognition of kingships.  The Commission was not clear on whether all the criteria had to be met or if the meeting of a single criterion would suffice.  Furthermore, the specified criteria appeared to be a departure from the historical path that determined how a kingship emerged and became established.  An analysis of the factors that established kingships was included in the Commission’s report in March 2008.  The central concept was the unification of diverse linguistic and cultural affinities under a single principal traditional leader.  The Commission felt that the provisions of the Bill went against the grain and historical establishment of kingships and would lead to electioneering and canvassing by traditional leaders of higher status.  The meaning of “higher status” was unclear.

The Commission warned against undesirable consequences of the Bill as there was a difference between kingships recognised in terms of the Act of 2003 and those recognised in the Bill.  The Commission was uncertain over which recognised kingship would prevail.  The Commission felt that secession would be encouraged and anticipated the submission of more disputes and claims.

The Commission strongly supported the observation of customary law and the customs of traditional communities.  The concepts of submitting an application and making an appointment were not traditional and traditional communities must be allowed to stake their claim without having to submit an application.

The Commission regretted that the published Bill did not take cognisance of its earlier report and excluded the amendments that were proposed.  The Commission had requested amendments that made provision for it to determine its own procedures and to appoint a chairperson and a deputy chairperson.

The Commission raised concerns over the transparency and validity of the proposed process of determining kingships.  The Commission felt that the recognition of kingships would be left in the hands of a select few.  The proposed processes and procedures conflicted with customs and traditions and those that were followed by the Commission.

The provision for the withdrawal of a kingship was another foreign concept and amounted to tampering with the sociological make-up and traditional leadership of a community.  The removal of an individual from the position of king was understood but the withdrawal of a kingship was considered to be punitive to the community concerned.

Adv Moleleki quoted the provisions for withdrawal of kingships in Section 2 of the Act.  He said that the withdrawal of a kingship was unheard of.

In conclusion, Adv Moleleki said that the Commission merely expressed its view on the impact of the proposed amendments on its work and did not seek to direct decisions on legislation.  The Commission felt that the amendments in the Bill would negate the work that had already been done and would result in legal challenges to decisions that had been made in accordance with the provisions of the Act.

Discussion
The Chairperson explained the reasons for the Committee’s invitation to the Commission.  Submissions from interested parties were welcomed and the Commission had raised several important points.  He asked for further clarity on the position of former paramount chiefs whose paramountcies were not recognised as kingships.

Mr M Nonkonyana (ANC) thanked the Commission for the presentation and requested that a written report of the submission was submitted to the Committee.  He recalled that two paramount chiefs from the Mpumalanga and Limpopo provinces had died during the course of the Commission’s investigations.  He asked if the Commission had considered the matter of succession to the paramountcies concerned.  He requested a copy of the submission on the Bills that was mentioned by the Commission in the briefing.

Mr W Doman (DA) remarked that the legislation before the Committee attempted to provide the Commission with a legal basis for its work.  He understood that the Commission submitted their recommendations to the President but played no further role in the implementation thereof.  The Commission feared that disputes ended up in court.  He asked who the Commission suggested was held responsible for the decision on whether a kingship was recognised or not.  He asked how the Commission had handled the withdrawal of kingships as it was faced with the same issue whilst carrying out its mandate.

Mr R Sonto (ANC) requested further details of the practical experience of the Commission in dealing with the withdrawal of recognition of paramountcies as there was a correlation to the withdrawal of kingships.

The Chairperson added that the work done by the Commission had resulted in the withdrawal of recognition of paramountcies.  He asked if the Commission could suggest alternatives to the process of withdrawal of recognition of kingships contained in the Bill.

Adv Moleleki explained that in terms of section 28 (7), the Commission was instructed to deal with the matter of paramountcies and paramount chiefs in the first instance and in accordance with the provisions under section 25 (2).

The Chairperson remarked that the function of the Commission was therefore to investigate claims to traditional leadership positions and to report the decision made to the President.  The Commission had no mandate to implement its decisions.

Adv Moleleki confirmed that the Commission reached a decision in terms of section 26 and that the implementation of the decision fell outside the scope of the Act.  The final decision on the fate of paramount chiefs whose paramountcies were not accepted was in the hands of the legislature.  The Commission may conduct further investigations to determine the status of affected paramount chiefs in terms of customary law.  In addition to kings and queens, the Act only made provision for the positions of senior traditional leaders and headmen.

Adv Moleleki said that the announcement of the decision on which paramountcies were recognised or not was a traumatic experience for both Commissioners and paramount chiefs alike.  The Act made no provision for the “soft landing” of a chief whose paramount chieftainship was no longer recognised.  In the event of the death of a paramount chief before the conclusion of the Commission’s investigations, the Commission was guided by the transitional arrangements under section 28 (1).  Provision was made for the successor to be deemed to be recognised until such time as the Commission decided otherwise.

Adv Moleleki explained that the Commission had the authority to make decisions and did not make recommendations.  If a paramountcy was not found to be legitimate, a kingship did not exist and therefore the recognition of the kingship can not be withdrawn.  The Commission can only investigate and decide whether a kingship should exist or not.  The provisions in the Bill would impact on the manner in which the Commission operated.

Ms M Gumede (ANC) asked if the position of headman was hereditary in terms of customary law or if provision was made for headmen to be appointed or elected as well.  She asked how many headmen per municipal ward were allowed in cases where more than one village had been consolidated into one ward.

Mr Nonkonyana understood that the incumbents of paramountcies that were no longer recognised had considered themselves to have been kings.  He asked if the Commission continued to investigate the position of successors to deceased paramount chiefs.  He asked if the Commission intended to make recommendations on the status of previous paramount chiefs if their position fell outside the three hierarchies currently provided for in the Act.  He asked if such positions would be hereditary.

Adv Moleleki explained that section 11 of the Act provided for the royal family concerned to fill vacancies in traditional leaderships in accordance with customary law.  The Commission acknowledged that the application of customary law was not uniform across all communities.  The point of departure for the investigation into paramountcies was that all twelve paramountcies might have been kingships.  The determination of whether a paramountcy qualified as a kingship was based on certain criteria.  The position of a previous paramount chief was not automatically considered to be that of a senior traditional leader.  The Commission needed to take into account how the paramountcy was established and whether the incumbent had a rightful claim to the position.  The Commission found that certain headmen occupied hereditary positions and others were appointed.

In the case of the king of the AmaZulu, the Commission found that the position was that of a paramount chief and was referred to as the “head of the AmaZulu kingdom”.  The Commission had informed the incumbent that the position was not that of a king, that he had not been confirmed as the chief and that his claim to the throne was subject to further investigation to determine if he was the rightful incumbent.

Adv Moleleki replied that the interim measures were applied in the case of successors to deceased kings.  He pointed out that any challengers where subjected to the same scrutiny as the incumbent.

Adv Moleleki said that the Commission made decisions and could therefore be taken to court.  The Commission was held accountable and must operate within the law.  The decision of the Commission was conveyed to the President and recommendations were not made.

Adv Moleleki said that the Commission had found that the issue of succession was fraught with irregularities.  In the past, kings were deposed by violent means.  Such an overthrow of a king was acceptable in terms of customary law.  The accession of the new king was considered to be legitimate even if it was achieved by violent means.

Adv Poswa-Lerotholi said that the Commission recognised the three hierarchies of traditional leaders and did not intend to create a fourth tier to accommodate previous paramount chiefs.

Mr Sonto asked what was meant by the term “traditional community”.

Mr Nonkonyana explained that headmen had an area of jurisdiction.  In cases where the areas of jurisdiction of more than one headman fell under one municipal ward, it was necessary for consultation to take place to determine which of the headmen would be the leader in the ward.  The area of jurisdiction of tribal authorities included traditional communities but there were examples of landless traditional leaders as well.  A traditional community included people who belonged to the same tribe, occupied a particular area, owed allegiance to a particular leader and shared the same language and customs.

Ms Gumede remarked that there appeared to be no uniformity in the manner in which the wrongs of the past was addressed.  She asked if the criteria for hereditary headmen can be specified.  She said that in one case, there were three paramount chiefs in one area.  She wanted to know if anyone can lodge a claim or a dispute.

Adv Moleleki replied that in terms of section 25 (2) (b) of the Act, any person may lodge a dispute or a claim.

Adv Poswa-Lerotholi replied that the Commission was mandated to pursue uniformity in the application of traditional leadership as a whole.  She conceded that there were no clear criteria for the appointment of headmen.  The Commission had received 69 claims and disputes concerning headmen and endeavoured to deal with the disputes in a uniform manner.

The Chairperson agreed that historically, traditional leadership lacked uniformity.  He thanked the Commission for its input and requested that a written report was submitted to the Committee for further consideration.  He noted the issues that were raised with regard to the extension of the term of the Commission and the part-time appointment of commissioners.  He suggested that the meeting was adjourned for two and a half hours to allow the Commission time to consult with the representatives of the Department of Provincial and Local Government (DPLG) on further amendments to the Bill.

Mr Nonkonyana presided over the remainder of the meeting as Acting Chairperson, in the absence of Mr Tsenoli.  The representatives from the Commission did not attend the meeting after it was reconvened.

Mr Nonkonyana asked for feedback on the consultation between the representatives of the Commission and the DPLG.

Prof W Sobahle (Executive Manager, DPLG) reported that it was agreed that the Commission submitted written proposals on the amendments to the Department by no later than the following morning.

Mr Nonkonyana said that a draft proposal needed to be available to the Committee before the meeting scheduled for the following day.

Prof Sobahle advised that the representatives from the Commission insisted on consulting with the other members of the Commission before any suggestions on the amendments were made.  The Department had no choice but to agree to the request.

Mr Sonto pointed out that the Committee had to vote on the Bills on the following day.  He suggested that the Committee proceeded with the current version of the Bills if no proposals were received from the Commission.  He suggested that the Department and the Commission exchanged notes overnight and prepared a new version of the Bill for the Committee to consider.

Mr S Louw (Executive Manager, DPLG) said that the Department explained the time constraints to the Commission.  A full meeting of the Commission was scheduled for the following day and the representatives had given the undertaking to provide a final proposal by 9.00 a.m. the following morning.

Mr Nonkonyana was under the impression that the submission was made on behalf of the Commission and expressed the views of the Commission rather than those of the individual presenters.  He requested that consideration was given to whether the Bill adequately addressed the fears expressed by the Commission and if it can be improved on.  The passage of the Bill can not be delayed while a response from the Commission was awaited.

Mr N Mpungose (Senior Manager, DPLG) said that the Commission was invited to submit representations during the consultation process followed by the Department prior to the publication of the Bill.  No comments were received from the Commission.  The Commission was represented during subsequent meetings with stakeholders but again made no representation.  No submission was received from the Commission at the public hearings on the Bill.  This meeting provided an additional opportunity for the Commission to submit their comments.  During the discussion, the Department had requested that the particular clauses that the Commission objected to were pointed out.  The Commission referred to issues that were already adequately covered in the Bill and was unable to provide details of the clauses it was concerned about.  The Department was advised that the meeting of the Commission was scheduled for 9.00 a.m. the following morning and that comments on the Bill can be expected between 11.00 and 12.00.  The Department had indicated a response at that time was unacceptable.

Prof Sobahle said that the Department gained the impression that the Commission had little understanding of the whole Act.  The Department welcomed the presentation to the Committee.  The concerns raised by the Commission were addressed by the provisions of the Bill and the Committee can decide whether further amendments were required.

Mr L Twaku (Senior Manager, DPLG) remarked that the Chairperson had made it clear to the Commission that further amendments to the Bill had to be finalised before the Committee meeting scheduled for 10.00 a.m. the following day.

Mr Sonto noted that the brief in the invitation letter to the Commission invited comment on the Bill.  It was not made clear to the Committee that the input on the Bill did not represent the formal view of the Commission.  It was unfortunate that the Commission was unable to provide details of the amendments it required during the consultation period allowed.  The necessity to consult with the full Commission before input can be made was not acceptable.  The Committee had to proceed with voting on the Bill on the following day and it was unfortunate if the Commission missed the opportunity to submit its proposals.

Mr Doman said that Members of the Committee had asked questions to clarify the position of the Commission.  No suggestions were received that would have improved the Bill.  Issues related to customary law were pointed out.  He suggested that the Committee proceeded with voting on the Bills unless suggestions were received from the Commission.

Mr Nonkonyana remarked that the Committee was obliged to consider submissions but was not required to accept submissions.  The major concern of the Commission appeared to have been the clause that specified the criteria for recognition of kingships that adversely affected the work done by the Commission.  The Committee made allowance for the Commission to consult with the DPLG and relied on the Department to provide guidance.  The Committee was unwilling to delay the Bills if the Commission failed to meet the deadline of 10.00 a.m. the following day.

Prof Sobahle asked if the Committee intended to proceed with the National House of Traditional Leaders Bill as the Commission’s concerns only affected the Framework Bill.

Mr Nonkonyana replied that both Bills will be dealt with by the Committee on the following day.

The meeting was adjourned.

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