National House of Traditional Leaders Bill, Traditional Leadership & Governance Framework Amendment Bill: deliberations

Meeting report

National House of Traditional Leaders Bill (NTHL Bill) & the Traditional Leadership and Governance Framework Amendment Bill (TLGF Bill): Report back on negotiating mandates
Kgoshi L Mokoena reported that he would, due to the recent appointment of Mr S Shiceka as Minister of Defence, be acting as the interim Chairperson until an official replacement was appointed.

The Chairperson asked the provincial delegates whether they had managed to brief their provinces.

Mr Worth, Mr Moseki, Mr Ntuli and Ms Nyanda responded that their negotiating mandates were ready for presentation.

The Chairperson asked if there was any information from Gauteng and the North-West.

Mr D Worth (DA; Free State) remarked that the public hearings on the bills had raised many issues, but they had passed two of the three bills under discussion unanimously.

Mr M Gogo, ANC Member of Eastern Cape Provincial Legislature stated that the mandate of the Eastern Cape was also ready.

Prof Wellington Sobahle, Executive Manager, Department of Provincial and Local Government,  introduced the team representing the Department of Provincial and Local Government (DPLG). The delegation consisted of himself, Mr N Mpungose, Director, DPLG, and Mr Johan Meiring, Senior Manager, DPLG.

Inkosi W T Mavundla, Chairperson of the Constitutional Development Committee, Kgosi Fhumulani P Kutama, Chairperson, and Adv S Maifadi, Manager: Legal Services were present as the delegation from the National House of Traditional Leaders (NHTL)

National House of Traditional Leaders Bill: National House of Traditional Leaders comment
Kgosi Fhumalani Kutama, Chairperson: National House of Traditional Leaders (NHTL), said it was an honour for the NHTL to be able to make this submission. He wanted to re-emphasise the position previously tabled before the Portfolio Committee on Provincial and Local Government. The NHTL had noted from the current bill that most of the issues presented to Parliament were not considered, and this opportunity was important for all Africans to reflect on the issues. The issues included the use of languages, particularly certain terminology used in the Bill and the previous Acts. The matters to be presented should be taken on board for the poor people in the rural areas, as they would identify with issues that were very close to their hearts.

Kgosi Kutama noted that in regard to the National House of Traditional Leaders Bill, there were three areas that were very close to their hearts and if the NCOP did not take these things on board they would be doing away with culture, languages and customs, all of which  were Constitutionality protected.

He spoke to the use of the European term, “headman”. He pointed out that this person was not a person born into the leadership positions. He would be the appointees of the Amakosi or chiefs, who were senior traditional leaders. He suggested that there was a need to amend some of the terminology.

Kgosi Kutama then asked whom the Bill was intended to address when it spoke of the members of the NHTL– and questioned if these would be kings, headmen or senior traditional leaders. He believed that the NHTL would be constituted of Amakosi, who should represent the kings. Those members should then report to the kings. There should be no reason for a king to be present in the National House of Traditional Leaders.

Kgosi Kutama posed the question whether, if a headman became an elected Chairperson in the NHTL, he would then lead the House. If this were allowed to continue, it would be doing an injustice to the institution of the National House of Traditional Leaders.

The questions of terminology were based on the fact that all the languages had their own ways of describing these positions. It was important to note that perpetuating Eurocentric terms would cripple the institution. The NHTL was against headmen being part of the House as representatives of the Kings. All senior traditional leaders reported to the kings, and they did not need another person as a representative.

The issue of the autonomy of the House was also a matter that needed to be looked at. The NHTL wanted this House to be independent so that they could be free of outside influence. If not, they would be deprived of the right to do things that would benefit the communities they represented. The proposal to this end was that the House be a Constitution Chapter 9 institution. This would allow them to be audited by the Auditor-General. The matter of the annual report was still very sketchy, and corruption would be picked up if an audit were done. This would also teach traditional leaders to be responsible with the resources of the State. He suggested that in fact this should be the case with the National House, the provincial houses and all the traditional councils. The NHTL furthermore would want its own staff and did not want to ask permission to appoint staff. The Members wanted to be autonomous, accountable and be responsible to set up their own functions properly.

In respect of clause 21(b), he said that the question must be asked why the House was dissolving itself. He did not understand the reason for this sub-clause and would want it to be removed. Clause 21(a) would suffice.

The long title changes discussed were also still outstanding in this version of the Bill.

Inkosi W T Mavundla, Chairperson of the Constitutional Development Committee: NHTL, referred to Clause 3(1)(a) and stated that the proviso had to be deleted. The House would be formed by senior traditional leaders, and allowing headmen or induna to form part of the House was “opening a can of worms”.

He took issue with Clause 3(4), saying that the proviso on the ratio of women who must be represented in the House was against the democratic process, and in his view Parliament could not insist upon a woman being elected.

Clause 5(1)(a) seemed to suggest that the NHTL was a part-time institution. The House had a problem with the provision that members of the NHTL could not also be members of municipal council,  or a member of parliament, or a member of the provincial legislature. He did not see any reason for this.

Finally, he agreed that the House should be autonomous and needed the ability to appoint permanent staff.

Traditional Leadership and Governance Framework Amendment Bill: Deliberations
Kgosi Kutama reported that there was not much causing concern insofar as the TLGF Bill was concerned. However, he questioned use of the terminology ‘paramount chief’, saying that this was another example of Eurocentric terminology. Incorrect terms would not arise if the Bill made use of the Traditional Leaders’ own terminology

Inkosi Mavundla stated that the problem with Clauses 5(14) (a-f) was that these gave royal households a limited choice as to who could be a member of the councils.

He further noted that the particular quota of women given was a violation of the democratic process.

Discussion
Mr Z Ntuli (ANC; Kwazulu-Natal) asked how matters would stand if there was more than one king in a province.

Kgosi Kutama replied there were six kings in the Eastern Cape. These kings each controlled their own areas and there was no conflict at present. The NHTL did not have problem with that question being pursued further.

Mr Ntuli queried the comments made on gender representivity, and asked for clarity.

Kgosi Kutama responded that it was constitutionally approved that a woman be installed on the throne in the House. There were two women traditional leaders in the management Committee of the NHTL. The House welcomed the idea that the question of gender representation must be looked into. He added that the problematic issues arose if the legal provisions were not interpreted well.

Mr Ntuli remarked that an office bearer in the NHTL held his office for a fixed period only, like any other Member of Parliament. The legislation was trying to equate the terms, so that all office bearers in Parliament would serve a term of five years. Once that term expired Members were free to become members of other bodies. This provision was needed to deal with the conflict that could arise if a Member was being paid twice.

Kgosi Kutama responded that the members of the NHTL must be appointed full time and the President must decide this on. If Members became permanent, they would have to relinquish other positions. There were gaps created in the legislation, and they should learn a lesson from such provisions, which were not clear. The Traditional Leadership and Governance Framework Act (Framework Act) even conferred proxies where a Member of Parliament could appoint someone at home to be the traditional leader there, if the “permanent” leader opted to accept the position in Parliament.

Mr J Le Roux (DA; Eastern Cape) stated that the comments were very interesting and that he was comfortable with the arguments presented as they had been explained clearly. He referred to the exclusions of persons who could not be appointed to the councils and suggested that perhaps ‘may’ would be preferred to ‘must’. He asked the presenters to clarify if this would be acceptable.

Ms F Nyanda (ANC; Mpumalanga) asked what would happen in a case where the Chief might have only one child, a girl. If she was young when the Chief died, then her uncle would be appointed as the regent until she was older. Technically she should become the chieftainess when she became of age. She asked what would happen if at that stage the uncle refused to vacate the post, and garnered support from the other traditional leaders. She asked if women were not welcome to take over the chieftainship.

Kgosi Kutama responded that the NCOP should be aware of a case that was taken to the Constitutional Court. Eventually the court ruled that the person who brought the case should be accorded the throne. He noted that there were two female traditional leaders on the management committee of the NHTL. The institution welcomed the provision that gender must be looked into, but at the same time had to look into whether this was carrying forward traditional leadership. In the interests of democracy, where women were not elected, they could not force their attendance and send women to the national or provincial houses of traditional leaders.

Mr Ntuli queried the scenario where there were kings in the Provincial House of Traditional Leaders. He asked what their status would be.

Kgosi Kutama responded that the NHTL did not want to see that and was discouraging kings in the provincial houses. Senior traditional leaders were responsible to report to the kings.

Inkosi Mavundla made a general comment on the process. He stated that the formulation of the laws must be a sincere exercise and that all concerned should look at the realities. There was a question about why there should be a uniform law, when there were peculiarities in the processes and across provinces. The law could end up contradicting itself in its application to the provinces. It did not augur well to try to impose Eurocentric approaches and regard these as superior to the African approaches. The African laws must take precedence.

Inkosi Mavundla added, on the question of the kings, that it was still not clear what a king was. It was not possible to have two kings in one ethnic group. He agreed with Kgosi Kutama that kings should not be in the houses, arguing with subjects. The traditional leaders in the house were there to report back to the kings.

He added that the gender issue could be addressed by going back to traditional principles. It was not stated in the tradition that leadership was only for women. However, if women took over it would carry limitations. A woman who had taken up the throne could not marry, and if she chose to marry, she would have to give up the throne.

The Chairperson asked the legal advisors to assist on the conflict of position issue.

Prof Wellington Sobahle, Executive Manager, DPLG, responded that the Department of Provincial and Local Government had attended the meeting to motivate and provide the rationale behind the current content of the Bill and did not have the mandate to argue the issues. However, the Department agreed that the NHTL must be attended by senior traditional leaders and also agreed that the comments on the use of the vernacular.

The Chairperson asked if including headmen in the NHTL would not amount to diluting the House. If the headmen were defined as traditional leaders, then he was of the opinion that they were wrong.

Prof Sobahle responded that there were three levels of Amakosi according to the Traditional Leadership and Governance Framework Act, and according to government policy, which had been set following negotiations with all stakeholders as to the place of headmen, chiefs and kings.

Prof Sobahle commented on the issue of the vernacular and asked if it was intended that all the terms in all the languages be used. This would not be problematic at provincial level this would be easy but it became more difficult at national level, when all the languages would have to be accounted for. The national level would have to be looked at, as to which legislation would be used.

Autonomy was not catered for in this legislation and it was an issue that was being investigated by government. The Department was conducting some fact finding on the views on autonomy, as Government needed to have these views if they were to take a stand.

Prof Sobahle said that Government had strong views on the dissolution question. It was of the view that the House should dissolve at the expiry date of the terms of office of Members. They would have to look into the second provision of the vote.

In regard to the matter raised around the elections, the “must” and “may” wording was perhaps a little misleading. The Bill was not meant to say that if women were not available, they must be brought in to be elected. There could be a lower threshold.

The Chairperson responded that he would welcome a new formulation.

Mr Mpungose responded that the Framework Act stipulated that if a traditional leader became a Member of parliament, provincial legislature or municipal council, the traditional leader must appoint a deputy in the area to perform the functions of a traditional leader. It was in line with this spirit that the clause was formulated in the interests of consistency.

The Chairperson noted that the various tribes did not have terms such as “kingship” and “queenship”. This was not African terminology.

Mr Mpungose responded that the Department had received many similar queries. He stated that using the English terminology would cause problems. “Queenship” was a new term, but the Department had to bear in mind the provisions of the Constitution and attempt to be gender sensitive. The terms were now foreign, but it was all government could have used.

Dr F Van Heerden (FF +; Free State) asked if there was provincial legislation in place for traditional leaders.

Inkosi Mavundla asked how the Bill of Rights could be made compatible with the traditional law. Section 31 of the Constitution protected the traditional rights and customs.

Adv Xoliswa Mdludlu, State Law Adviser, Office of the Chief State Law Advisor, referred to the Constitutional Court ruling on the Baloyi case, pointing out that it affected that tribe only and not all tribes. The State Law Advisor was of the opinion that each case should be decided on its own merits, and individual consideration must be accorded to each case. It was correct to deal with a case as pertaining to a particular tribe and the situation that arose at that particular time. She also drew attention to the provision of Section 31(2) of the Constitution, which stated that the rights in section 31(1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights. It was important to note that the Constitution was the supreme law in South Africa and anything inconsistent with it was invalid.

Mr M Mzizi (IFP; Gauteng) remarked that he could not find the previous presentations. On the topics of autonomy and dissolution, he asked if the Amakosi could present their view on the Bill. He also commented that there was no equivalent term of “traditional leader” in his languages. He agreed that 'queenship',  'paramount chief' and 'kingship' were Eurocentric terms. He asked that in future the presenters should make it quite clear as to what they wanted, as he was concerned that these issues were only coming to the fore now. He suggested also that there be greater involvement with all groups to try to minimise the problems.

Mr Mpungose responded that the “paramountcies” were an old term in the previous legislation and this was being phased out. Those who were previously called “paramount chiefs” should now be called kings. This tended not to be an issue in the provinces, as the vernacular terms were used.

He added that the Department had involved the NHTL when they started to deal with the Bills. There were consultation meetings before the Bills were even published. This matter was not an issue for discussion at this level. The House had been fully apprised in the process of consultations. The Ministry of Traditional Leadership would be a department within the Department of Provincial and Local Government. This would follow the same arrangement as currently held for the Department of Agriculture (DOA), where the Department of Land Affairs was contained in the DOA. The DPLG was not looking the possibility of parallel governance. The kings would not be a parallel government. They were only responsible for their own areas.

Mr Mzizi asked what was meant when there were two kings in one area. He asked for clarity on the autonomy requested in respect of the finances. Finally he made the comment that in a democratic state, the lawmakers must consider the broader context in order to avoid confusion for future generations.

Mr A Manyosi (ANC; Eastern Cape) queried the correctness of changing the terminology, and stated that in the Eastern Cape there were headmen that were hereditary. He noted also that in these areas the land was vast, and these were usually children born of the second wife. These headmen were not the same as the ones referred to earlier in discussions, as they had royal blood.

Mr Mpungose responded that the position of hereditary headmen was something the Department did know about. It was, yet again, useful to use the vernacular, and the Department may have to consider defining the terms at national level – to clarify both the English and the vernacular terms.

Mr Manyosi asked if women would automatically be part of the NHTL in the process of elections, and then actually go to the House.

Mr Johan Meiring, Senior Manager, DPLG, responded that the idea was to encourage women's representation but that this would be dealt with at the elections.

Mr Ntuli asked if the conflict of positions would only apply to part-time councillors and if there would be further legislation to deal with this. He pointed out that matters could be awkward if people were in between two jobs.

Mr Mpungose responded that if a person was involved somewhere else, he could not give all his focus to just one position. The rationale that was used in the consultation was that the seriousness of the position must be understood and that Members avoid dividing their attention and efforts.

Kgosi Kutama responded that the autonomy was intended to give the House status through the position of a Chapter 9 institution. This would show that they were part of government, not independent.

He said that the NHTL did not have a problem with women as traditional leaders in the House but wanted this to be done in line with the dictates of the Constitution.

He thought that the part-time classification was a serious problem. A part-time councillor was not the same as a traditional leader. Their members did not get the same benefits as the part-time councillors. After the term expired, their full-time members did not get anything, and he had thought that this was a problem that the Bills would address.

Inkosi Mavundla referred to Section 31 of the Constitution and the conferences held regarding the interpretation of certain sections, particularly the comment that the Bill of Rights superceded traditional law. He supported Mr Mzizi's sentiments and pointed out that the Bills revealed that the Amakosi were not extensively involved in the drafting, and he did not understand why they were excluded. The Bills were not addressing the imbalances of the past, and as presently framed they distorted traditional institutions. He added that the NHTL advocated for the permanence of members and felt that the institution was not treated well, as there were no benefits for members.

The Chairperson asked for the presenters' view on sub-clause 5(1)(d) of the NHTL Bill, under "Qualification for membership of House". This referred to a member being ineligible if they were found to be of unsound mind. This was not usually an issue. There was respect for the throne, not the person.

Kgosi Kutama responded that the throne did not belong to the person, it belonged to the family. The family held the power and accordingly he did not know how this sub-clause came about. Once again, he pointed out that they had not been involved in the drafting process and the Department had not checked certain matters with them.

The Chairperson replied that this might be an issue for another debate. He proposed to the DPLG that this sub-clause be removed.

Mr Meiring responded that it was correct that debate must take place. There was no particular reason to insist on inclusion of this clause, which was a standard clause, and there was no harm in removing it.

The Chairperson asked if there was any chance that headmen could lodge claims under the Equality Act, saying that they had been discriminated against, if they had been removed from membership in the House.

Adv Mdludlu responded that the drafters would have to re-check the principal Act. At present she could not comment with certainty that the headmen could simply be removed. This was a policy issue. If the Department felt it may be removed, the drafters would apply their minds to achieving that.

The meeting was adjourned.