National House of Traditional Leaders Bill; Traditional Leadership & Governance Framework Amd Bill: briefing by Provincial & Local Government

Meeting report

The Chairperson welcomed representatives from the Gauteng, KwaZulu Natal and Northern Cape provincial legislatures.  He regretted the absence of the Minister of Provincial and Local Government to present the political point of view on the Bills.

Briefing by Department of Provincial and Local Government (DPLG)
Prof W Sobahle (Executive Manager, DPLG) briefed the Committee on the background to and the legislative process of the National House of Traditional Leaders Bill and the Traditional Leadership and Governance Framework Amendment Bill (see attached document).

The National House of Traditional Leaders Bill replaced the National House of Traditional Leaders Act, (Act no. 20 of 2000), which was repealed.  Key provisions included a preamble capturing the legislative history of the House, membership of the House, the powers and duties of the House, the relationship between the House and kings and queens, the relationship between the House and Government, the relationship between the House and provincial houses, the administration of the House, the responsibilities of the House, the support to the House of Government, the status of members of the House and other general issues.

Mr N Mpungose (Director, DPLG) briefed the Committee on the provisions of the Traditional Leadership and Governance Framework Amendment Bill.  Amendments included provisions related to kingship or queenship councils, traditional councils, traditional sub-councils, the appointment of regents in the event of the death of a king or queen, recognition of kingships or queenships, transformation of traditional authorities in line with the Act, alignment of terms of office of traditional leadership structures and provincial legislation providing for the relationship between kings and queens and provincial houses.  A table detailing the rationale and corresponding amendments was included in the presentation.

Discussion
The Chairperson remarked that the Bills were vague on the financial implications and requested that the cost of implementation of the legislation was determined by the Department.

Mr A Manyosi (ANC, Eastern Cape) complimented the Department on the clarity of the presentation.  He requested details of the provision made for the representation of traditional communities situated in provinces that did not have a provincial house.  He noted that the President appointed full-time members of the National House but pointed out that provincial houses usually made recommendations to the Premier on who should be appointed to the provincial house.

Mr Manyosi noted that the Commission on Traditional Leadership Disputes and Claims (previously known as the Nhlapo Commission) was still finalising the investigation into which paramountcies should be recognised as kingships.  He wanted to know if the criteria for the recognition of kingships conflicted with the findings of the Commission or the expectations of those paramount chiefs who were not found to be kings by the Commission.

Mr Manyosi said that the bulk of the work of traditional councils was carried out by headmen, who were not of royal blood.  The headmen were not paid for doing the work and he wanted to know how this issue was addressed.

The Chairperson cited the example of a dispute between two claimants to the Pondo kingship.

Mr N Mack (ANC, Western Cape) asked how the traditional leaders of the San and Khoi communities could be identified.  He asked what criteria were applicable and said that disputes amongst the claimants were expected.  He requested details of the costs involved in the payment of salaries to traditional leaders and anticipated that more self-proclaimed traditional leaders would emerge.  He requested clarity on the establishment of sub-councils in view of the migration of traditional communities from the Eastern Cape to townships in Cape Town.  He wanted to know if traditional councils were restricted to specific geographical areas or if sub-councils needed to be established in the Western Cape to provide representation for migrant communities from the Eastern Cape.

Mr A Moseki (ANC, North West) referred to Xhosa communities in the North West, who refused to recognise the designated traditional leaders until the leadership was approved by the Eastern Cape.  He asked how the Bill dealt with such a situation.  He agreed that the Bills helped to streamline traditional leadership structures but an indication of the cost of establishing the structures was essential.  He said that traditional leaders collected revenues, which were not reported on and which caused friction amongst communities.  He asked if regulations would be passed for the reporting of revenues collected by traditional leaders.  He commended the role played by traditional leadership structures in socio-economic development programs.  He asked if the responsibilities of the traditional structures in this regard will be regulated.  He asked if traditional leaders understood the legislation and if efforts will be made to provide education.

The Chairperson said that provision was made for the payment of members of kingship councils and therefore there were clearly financial implications for the implementation of the Framework Amendment Bill.  He said that members of ward committees and kingship councils resided in the same communities and it can be expected that there will be conflict if the members of the traditional councils were paid from the fiscus.

Kgoshi L Mokoena (ANC, Limpopo) referred to the provision in the National House of Traditional Leaders Bill that allowed the membership of headmen.  He said that only senior traditional leaders should be allowed to be members of the House and the appointment of headmen would dilute the value of the institution.  He suggested that the clause was removed from the Bill.  He anticipated that further powers and duties will be added to the legislation.

Kgoshi Mokoena referred to the provision made for bi-annual briefings of kings and queens by the National House.  He suggested that all traditional leaders were briefed by the House on a regular basis.  He remarked that many discussions on the full-time appointment of traditional leaders to the houses were held in KwaZulu Natal, where the matter was a major issue.

Kgoshi Mokoena said that the concept of the disqualification of a traditional leader did not exist in the black culture.  He agreed that provision needed to be made for the dissolution of a house but suggested that another term was found for the disqualification of a traditional leader from membership of a house.

Kgoshi Mokoena referred to the challenges experienced during elections of members of traditional councils, for example too few voting stations situated too far apart and no provision made for transporting voters to voting stations.  He said that the problems were an indication of a lack of support for traditional councils.

The Chairperson observed that the concerns raised by the Members of the Committee may result in further amendments to the Bills.

Mr Z Ntuli (ANC, KwaZulu Natal) asked if a traditional leader relinquished his responsibilities at the tribal level if he became a full-time member of the House.  He asked if queens enjoyed the same status as kings.  He wanted to know if a queen lost her membership of the House after her claim for recognition as queen was approved.  He asked if the appointed representatives of traditional leaders were eligible for membership of the House and if representatives were paid a salary.

The Chairperson understood that one person can not be paid two salaries.  For example, a person can not be paid the salary for a traditional leader in addition to the salary for a Member of Parliament.

Mr Mbuso Kubheka (Chairperson: Portfolio Committee on Local Government and Traditional Affairs, KwaZulu Natal Legislature) remarked that the lack of provision for the remuneration of ward councilors was a problem.  He welcomed the provision made for the remuneration of members of traditional councils but expected conflict between members of ward councils and traditional councils.  He welcomed the provisions for interaction between the National, provincial and local Houses.  He asked if provincial legislation governing traditional leadership required amendment to align it with the national legislation, for example the prohibition of joint membership of ward and traditional councils.

With regard to the retrospective extension of the period allowed for the constitution of traditional authorities, Mr Kubheka asked if the traditional authorities had to be re-constituted and if the earlier actions taken by the authorities would be affected.

Inkosi M Madlala (Member of the Provincial Legislature, KwaZulu Natal Province) asked if there was a restriction on the time that a headman will be allowed to serve in the National House.  He remarked that conceivably, a headman may advance to occupy the position of Chairperson of the House, which would result in him occupying a position of leadership over senior traditional leaders.  He requested further details of the provisions for interaction between provincial and local houses.  He asked what the reasons were for preventing a member of a local council to serve on a traditional council as such a person could contribute valuable skills to both entities.

Inkosi Madlala welcomed the provision that allowed traditional leaders to occupy ex-officio positions.  Although the provision for remuneration of traditional council members was welcomed, he said that not all leaders occupied posts in traditional councils and expected conflict to arise between those traditional leaders who were remunerated and those who were not.

Inkosi Madlala agreed with earlier comments concerning the education of traditional leaders on the legislation affecting them.  He said that officials were not available to brief traditional leaders on legislative issues.  He urged that the issue of full-time membership of traditional structures was handled by consultation and in a constructive manner.

Ms F Nyanda (ANC, Mpumalanga) requested clarity on the payment of headmen and members of the ward committees.  She said that money was paid to traditional leaders when people wanted to live in the traditional area.  She was concerned that this revenue was not paid over to the House and used to remunerate headmen.  She said that it was unfair that headmen were not paid for the work done by them while other traditional leaders received salaries but did not do any work.

The Chairperson commented on the differences between Western and African value systems concerning gifts to leaders.  The African practice of giving monetary gifts to traditional leaders in return for permission to occupy land was considered to be corrupt by Western standards.  The issue needed to be dealt with in the code of conduct.

Ms R Letwaba (Chairperson, Portfolio Committee on Local Government, Gauteng Province) pointed out that there were two traditional leaders in Gauteng but there was no provincial house of traditional leaders.  She requested clarity on the provision made for membership of the National House in the absence of a provincial house.  She requested further details of the advisory role envisaged for the House.  She asked if there were any dispute mechanisms in place for disagreements between the House and Government on matters related to the implementation and interpretation of policy.  She asked if the secretary of the House was the accounting officer or the responsible officer.

The Chairperson remarked that traditional councils had been formed in hostels and informal settlements in Gauteng to provide traditional leadership to the communities living there.

Mr C Smith (Chairperson, Portfolio Committee on Local Government and Housing, Northern Cape Province) welcomed the provision for the establishment of kingship councils and said that the legislation will assist the province to address the problems experienced by the province.  He advised that the province was in the process of establishing a provincial house of traditional leaders.  During public hearings on the provincial Bill, the Griekwa and Nama communities raised concerns over pending legislation pertaining to the Khoisan people.  The province was concerned that the legislation could result in undesirable racial tension between the communities.

The Chairperson remarked that an argument promoting the establishment of a dedicated department to handle traditional matters existed.  Issues may be referred to Prof Sobahle.

Dr F van Heerden (FF, Free State) affirmed the respect of the Freedom Front for traditional leadership.  He asked if some uniformity between provincial legislation on the recognition of traditional communities was envisaged.  He asked if the source of revenue for the houses and councils was the provincial or national fiscus.  He asked if provision was made for dispute resolution mechanisms to handle conflicts of interest between Government and traditional institutions.

Mr A Worth (DA, Mpumalanga) expected that the costs of implementation of the Bills can be determined.  He noted that certain kings had several palaces and wives and that a disparity in the budgets to maintain the different kingships can be expected.  He asked who was responsible for budgeting and for providing the necessary funding to support the proposed structures.

Mr J le Roux (DA, Eastern Cape) required further details of dispute resolution mechanisms.

Mr Moseki asked when the report from the Commission on Traditional Leadership Disputes and Claims will be released.

Responding to questions on dispute resolution, Mr Mpungose advised that the Commission was dealing with matters related to the boundaries of traditional communities, leadership claims and the recognition of traditional communities.

Mr Mpungose admitted that the Department omitted the determination of the financial implications of the Bills.  He pointed out that the National House was already financially supported by Government.  The Department seconded personnel to the House and provided vehicles and premises.  No major additional costs were anticipated.  Additional funding was required to support the kingship councils, to pay members of the councils a sitting allowance and to refund them for out-of-pocket expenses.  The Department did not anticipate that the kingship councils will need to hold many meetings.  The Department would determine the estimated costs involved prior to the next meeting with the Committee.

Mr Mpungose did not envisage the need for provincial legislation to be changed with regard to kingship councils.  Kings and queens were recognised by the President and the provincial Premiers were required to recognise the kingship councils established in the provinces.  The Department expected issues regarding the practical implementation to be dealt with at the provincial level.

With regard to the Khoisan, Mr Mpungose advised that the Department was currently engaged in formulating a policy and drafting legislation to govern matters related to the Khoisan.  Meetings were held in May 2008 with the Khoisan Council.  The Department was working closely with all the stakeholders and was confident that a mutually acceptable solution would be found.

Mr Mpungose explained that the position of the secretary of the House was equivalent to the position of a CEO.  The secretary was the responsible officer and was accountable for the administration of the House and submitted the required reports to Parliament.  The finances of the House were controlled by the Department and the secretary was therefore not an accounting officer.

Mr Mpungose explained that the House played an advisory role and its mandate did not extend to preventing Government from carrying out its functions.  For example, the Bills before the Committee were referred to the House for comment.  The comments received were accommodated in the Bill where possible.  He said that disagreements between the House and Government were previously resolved through discussion between the House and the President and the Minister.

Gauteng was the only province without a provincial house of traditional leaders.  The Bill made provision for the automatic membership of the National House for the two traditional leaders concerned.

Mr Mpungose said that the issue of gifts to traditional leaders was dealt with in the code of conduct.  All gifts must be declared even though the legislation did not prescribe the mechanism to control such sources of revenue.  Provision was made for the proper management of finances provided by both the national and provincial Departments.  The provincial Departments needed to introduce mechanisms to account for revenue collected and ensure that such funds were deposited into trust accounts.  Annual reports on revenue and expenditure were required.

Mr Mpungose was aware that the issue of ward committees was under discussion by the Department but was unable to provide details of progress made.

Mr Mpungose agreed that traditional leaders needed to understand all the legislation that pertained to them.  He advised that the Department planned to run workshops nationally that included the provincial Government and traditional leadership structures.  He said that the Bills were presented to the provincial houses of traditional leaders and that comments received were incorporated into the Bills.

Mr Mpungose explained that section 15 of the Framework Act already excluded traditional leaders who were elected as Members of Parliament, provincial or local Government from membership of traditional councils.  Provision was made for the appointment of deputies to carry out the responsibility of the traditional leader for that reason.

Mr Mpungose noted the concerns raised with regard to the membership of headmen in the provincial and National Houses.  He said that national legislation needed to be cascaded down to the provincial level.  There was a need for provincial legislation to be amended in line with the national legislation, particularly with regard to the Framework Act.

Mr Mpungose confirmed that the retrospective extension of the period allowed for the re-constitution of community and traditional authorities applied to both types of authorities.  The authorities had to be disestablished before they could be re-constituted.  This created a legal vacuum as not all provinces were able to formulate the necessary legislation, regulations and guidelines in time.  Most provinces failed to meet the deadlines and the extension was necessary to address the resulting legal vacuum.

Mr Mpungose confirmed that the queens referred to in the legislation were queens who enjoyed the same status as a king.  The provisions did not apply to a queen who was the wife of a king.  The legislation made provision for three levels of traditional leaders – kings and queens, senior traditional leaders and headmen.  The Chairperson and Deputy Chairperson of the House were full-time members of the House and were required to appoint deputies to carry out their duties to their communities.

Mr Mpungose declined to comment on the issue of elections for traditional structures but conceded that solutions to the problems needed to be found.

Mr Mpungose said that the issue of the relationship between the House and kings and queens was debated at length.  Suggestions that involved kings or queens to be subjected to voting were rejected on the basis of the adverse effects of election processes on the dignity of kings and queens.  Rather than creating another formal structure to provide interaction between the houses and kings and queens, the decision was made to make provision for a formal relationship instead.

The issue of migration from traditional areas to urban areas was an old issue.  Traditional structures were originally formed to cater for migrant labourers accommodated in hostels and townships.  Historic reasons for communities settled in different geographic areas had to exist for such communities to be recognised as part of a particular traditional community.  Residents of townships and hostels did not fall into this category although recognition was given to certain communities that occupied territories in different provinces.

Mr J Meiring (Senior Manager, DPLG) advised that the Framework Act did not apply to the Khoisan.  A separate process was underway to deal with matters related to the Khoisan community.  A discussion document was in the process of being finalised for submission to Cabinet.  Depending on the outcome, further amendments to the Framework Act may be required.

Mr Meiring confirmed that deputies appointed by traditional leaders were not remunerated by Government.  The traditional leader concerned must arrange for payment with the deputy appointed by him.  Acting traditional leaders and regents qualified for appointment to posts in traditional leadership structures.

Prof Sobahle explained that the Commission for Traditional Leadership Disputes and Claims was also known as the Nhlapo Commission, after the previous Chairperson Prof Nhalpo.  Advocate Moleleki was the current Acting Chairperson of the Commission.

Prof Sobahle said that issues relating to the position of the secretary of the House and the autonomy of the House were under consideration by the Department.  He expected further clarity to emerge as discussions progressed.  He pointed out that the matter of traditional leadership was constantly evolving and new challenges arose frequently that required a response from Government.

With regard to the issue of payments made to traditional leaders, Prof Sobahle said that the White Paper was very clear in this regard.  With the advent of the Framework Act, the practice was discouraged but it appeared that not all provinces adhered to the requirement that the payment of levies to traditional leaders was refrained from.  Complaints were received by the Department from people who were forced to pay the levies.  He said that practices must be uniform across all the provinces.

Prof Sobahle said that the appointment of additional full-time members of the National House was a matter for discussion between the President and the House.  Similarly, the appointment of members of the provincial houses must be discussed between the Premiers and the houses concerned.

The prohibition against joint membership of councils and Government structures was a contentious issue.  The Department proposed that only senior traditional leaders should be eligible for membership of the houses but counter-arguments from the traditional leadership held that headmen could make a meaningful contribution by virtue of their skills and experience.  The Department took all points of view under consideration.

The matter of remuneration of sub-headmen was a problem for Government as only three levels of traditional leadership was recognised.  The Department recognised that the issue was still evolving and there may be a future need to re-visit the position taken.

Prof Sobahle said that migration from traditional communities to urban areas was an ongoing process that required an appropriate response from Government as challenges arose.

Mr Smith appreciated the information provided on the issue of the Nama and Griekwa communities.  He understood that the process was underway but the concerns raised by the province required an urgent intervention from the Committee.

The Chairperson agreed that an intervention was necessary.

Mr Kubheka cited examples of traditional leaders in KwaZulu Natal, who were also elected members of the provincial Government.  He said that there was no prohibition in current legislation preventing a person from occupying both positions.  He requested confirmation that there was a need to amend provincial legislation in line with the provisions of the Framework Bill.

Mr Mpungose was aware that the matter was already the subject of a dispute in KwaZulu Natal.  He quoted section 15 of the current Framework Act, whereby a traditional leader who was elected to a Government structure was considered to be an elected official and not a traditional leader for the duration of his term of office.  The presumption was made that such a person would appoint a deputy to carry out his responsibilities in the tribal area.  The Act was clear that a person can not occupy both positions at the same time but he conceded that there were differences in the manner in which the provinces dealt with the matter.  He agreed that the issue was subject to contention.

The Chairperson said that it care must be taken that provincial legislation was in line with national legislation.  The national and provincial legislatures were responsible for the implementation of the law and the Department can not be expected to carry all responsibility.  He wanted to know what the reasons were for the urgency of the Bills.  He said that traditional leaders were lobbying for the extension of the powers provided for in the Constitution.  If successful, further amendments to the legislation may be necessary.  He said that laws should not be changed lightly.

Mr Mpungose summarised the reasons for the urgent finalization of the Bills.  Even with the retrospective extension of the period allowed for the transformation of traditional authorities, only one year remained to effect the legal position of the entities concerned.  Currently the Act recognised individuals as kings and queens, who were assigned specific duties and responsibilities.  However, the Act made no provision for the recognition of kingship councils to assist the king.  Traditional councils were collapsing because members were not remunerated.  It was not acceptable that traditional structures were allowed to fail for lack of funding.  For this reason, the North West province started to pay members of the councils and the problem was inherited when the communities were incorporated in the Gauteng and Northern Cape provinces.  There was no legal mechanism to allow for the recognition of kingships, with the result that successors to the kings who had died in Mpumalanga and the Eastern Cape could not be recognised.  It was essential that the National House of Traditional leaders Act was aligned with the Constitution and with the White Paper on Traditional leadership.  The current Act established the House in terms of the interim Constitution.  The terms of office of the National House and the provincial houses must be aligned to enhance the effectiveness and efficiency of the House.

Prof Sobahle added that the Commission had found that certain paramountcies were invalid but there was no mechanism in place to effect the decision of the Commission.  In the cases where the paramount chiefs had passed away, there was no mechanism to affirm the appointment of a successor by the royal families concerned.  Likewise, there was no mechanism to allow for the recognition of a new kingship.  He said that the non-alignment of the terms of office of the provincial and National Houses created difficulties for both the House and for Government.  Traditional authorities who had not been re-constituted continued to function.  Decisions were taken by the authorities, which risk legal challenges because the authorities did not conform to the legal requirements.

In conclusion, the Chairperson warned that confusion, discord and disagreements will arise if members of traditional councils were remunerated but ward councilors were not.  He said that Government had to promote peace and unity in communities and must not act in a manner that will cause conflict and further division.  The issues concerning the Khoisan in the Northern Cape required urgent attention.  He thanked the Members and representatives for attending the meeting.

The meeting was adjourned.