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

Meeting report

The Chairperson said that Committees experienced difficulties when required to vote on Bills that had not been finalised.  He requested the advice of the Office of the State Law Adviser on the process that had to be followed.

Ms F Omar (State Law Adviser) explained that the State Law Advisers recorded the amendments that were agreed by the Committee during its deliberations on the Bill.  The amendments to the published Bill were included in a document (referred to as the “A list”) that was forwarded to the Committee secretary.  The secretary arranged for the printing of the B version of the Bill.

The Committee secretary added that an updated version of the Bill was printed after Members had agreed to all the amendments.  The proofs received from the printer were checked against the A list and signed off by the secretary if correct.  The final version of the Bill was then published.

Mr W Doman (DA) thanked the Department for providing the documentation that allowed the Committee to proceed with the Bills.  He asked if further input on the Bills was received from the Commission on Traditional Leadership Disputes and Claims.

Prof W Sobahle (Executive Manager, DPLG) advised that no input had been received from the Commission.

The Chairperson regretted that the Commission had missed the deadline for the Committee to consider its views on the Bills.  As a Section 76 Bill, the Bill would be referred to the National Council of Provinces (NCOP).  The Committee had received a belated request to comment on the Bills from a farmers’ association in the Bafokeng area near Rustenburg.  He advised that both parties will be informed of the opportunity to present submissions to the NCOP.

The Chairperson advised that the Bills were scheduled for debate in the National Assembly on 20^th August 2008.

National House of Traditional Leaders Bill
The Chairperson read the motion of desirability of the Bill.

Mr M Nonkonyana (ANC) commented that the motion created the impression that the House was being established for the first time.

Mr N Mpungose (Senior Manager, DPLG) said that the history of the establishment of the House was included in the proposed preamble to the Bill.

Mr S Louw (Executive Manager, DPLG) pointed out that the motion of desirability paraphrased the long title of the Bill.  He suggested that the phrase “to provide for the re-establishment of the National House” was used.

Mr Mpungose suggested that the phrase “to provide for the continued existence of the National House” was used.

The Chairperson proposed that the motion of desirability was amended to read “to provide for the review of the National House”.

At a later stage in the proceedings, Ms Omar pointed out that the legislation was meant to make provision for the continued existence of the House and not for the review of the House.

Ms X Mdludlu (State Law Adviser) explained that the Act was repealed and the Bill needed to make provision for the existence of the House.

Prof Sobahle added that the Bill served to align the legislation with Government policy as contained in the White Paper on traditional leadership.

Mr Mpungose advised that the Bill did not provide for the House to be de-established.  The House continued to exist and there was no need to provide for its re-establishment.

The Chairperson proposed that the motion of desirability was amended to include the phrase “to provide for the continued existence of the National House”.

The Committee agreed to the Chairperson’s proposal and accepted the amended motion of desirability.

The Chairperson thanked the Department for drafting the preamble to the Bill and for the report on the consultation process that was followed and the reasons for the urgency of the Bills.  He invited comment on the proposed preamble to the Bill.

Mr Nonkonyana suggested that the second paragraph of the preamble was omitted as the reference to local government was appropriate to the Framework Bill.

Mr Louw proposed corrections to the sixth paragraph of the preamble (see page 2 of the proposed amendments document).  The word “adopted” replaced “adapted” and “district municipal level” replaced “district municipality”.

The Committee agreed to the corrections and the omission of the second paragraph.  The preamble was accepted, as amended.

The Committee agreed to clauses 1, 2 and 3, as amended.

The Chairperson proposed that clause 4 (3) was amended to read “the election proceedings must be conducted by the Premier or a person designated by the Premier of the province concerned”.

The Committee agreed to the Chairperson’s proposal and agreed to clause 4, as amended.

The Committee agreed to clauses 5, 8, 9 and 10, as amended.

Mr Nonkonyana pointed out that succession was determined by customary law and the issue was subject to continued debate.  He was unsure about the provision in clause 11 (viii) (cc) “seeking to progressively advance gender representation in the succession to traditional leadership positions” (see page 9 of the proposed amendments).

The issue was debated by Members and representatives of the Department.  The Committee accepted the proposed wording of the clause.

The Committee agreed to clauses 11, 12, 18, 19, 20, 22, 24, 25 and the long title, as amended.

The Committee agreed to clauses 6, 7, 13, 14, 15, 16, 17, 21, 23 and 26 without amendments.

The Bill was accepted by the Committee, as amended.

The Chairperson read the Committee’s report on the Bill.  The Committee accepted the report.

Traditional Leadership Governance and Framework Amendment Bill
The Chairperson read the motion of desirability of the Bill.

Mr Nonkonyana suggested that the references in the motion of desirability to “kingship” were amended to “kingship or queenship”.

Mr Doman noted that “queenship” was omitted from the long title of the Bill as well.

The Committee agreed to Mr Nonkonyana’s proposal and agreed to the amended motion of desirability.

The Committee agreed to clauses 1, 2, 3, and 4, as amended.

Mr Nonkonyana referred to clause 5 3A (2) (b) that made provision for the Minister to determine the number of members of a kingship council in accordance with a formula.  He asked if the Minister was required to consult with the affected kingship before the formula was published in the Gazette.

The Chairperson, Mr Nonkonyana, Mr Louw and Mr Meiring discussed various ways of determining the formula.  Responsibility for determination of the formula rested with the Premier of the province concerned.

The Committee debated the use of the relatively clumsy phrase “kingship or queenship” in the legislation.  The Department reported that the phrase “kingdom” was regarded as being gender-neutral.  After further discussion, the Chairperson requested that an acceptable alternative was found for future use but suggested that the proposed wording in the Bills was accepted.

Mr Nonkonyana asked if the formula for the determination of the number of members of a kingship council took the size of the affected traditional community into account.

The Committee agreed to amend the clause by adding the phrase “after consultation with the kingship or queenship affected”.

The Committee agreed to clause 5, as amended.

The Committee agreed to clause 6, as amended.

A new clause 7 was inserted in the Bill.

Mr Doman asked why a distinction was drawn between “district municipalities” and “local municipalities” in the new clause 7.  No reference was made to “metro municipalities”.  He preferred that reference was made to “municipalities” only.

Mr Louw explained that the clause was phrased in accordance with the provisions of the Local Government Municipal Systems Act, which made provision for all three types of municipalities.

Mr Nonkonyana asked if a member of a kingship council was allowed to be a member of a municipal council as well.

Mr Meiring explained that members who participated in municipal councils in terms of Section 81 were not excluded from membership of a kingship council.  Full-time members of the municipal council (i.e. the chairperson or deputy chairperson) were excluded.

Mr R Sonto (ANC) asked if the relationship between municipalities and traditional councils as specified in the Bill affected the rights of other organised communities that were not defined as traditional communities.

Mr Louw explained that the Bill dealt with traditional structures and excluded other types of relationships with government structures.

Prof Sobahle conceded that relationships between the various structures continued to evolve.  The issue required further debate.

The Chairperson asked Mr Sonto for a suggestion on how the issue could be addressed.

Mr Sonto replied that future problems were anticipated.  He was unable to offer a solution and suggested that the issue was flagged for resolution at a later stage.

Mr Nonkonyana expressed concern over the use of the word “must” in the new clause 7.

The Committee agreed to the new clause 7, as amended.

Mr Louw proposed amended text for the new clause to amend section 9 of the Act.  The amendment brought the wording of the clause in line with the amendments to section 2A of the Act.

The Committee agreed to the proposed wording of the new clause.

The Committee agreed to clause 7, as amended.

Mr Louw explained that the new clause inserted into clause 8 made provision for the amendment of section 26 of the Act in line with the amendments to section 2A.

The Committee agreed to clauses 8, 10, 12, 13, 14, 15, 16 and the long title of the Bill, as amended.

The Committee agreed to clauses 9, 11 and 17, without amendment.

The Bill was accepted by the Committee, as amended.

The Chairperson read the Committee’s report on the Bill.  The Committee accepted the report.

The Chairperson remarked that issues requiring further discussion arose during the proceedings on the Bills.  The amendments to the Bills resulted form the submissions received by the Committee.  He was disappointed that most of the submissions were made by traditional leadership structures and that little input was received from other bodies.  He mentioned that the South African Local Government Association had indicated approval of the Bills.  He thanked the Members and the representatives from the Office of the State Law Adviser and the Department for their contribution.

The meeting was adjourned.