PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
Workshop on Public Hearings On Traditional Leadership and Institutions
Let it be clear to all that Contralesa subscribes to the principles embodied in the chapter dealing with the fundamental human rights of our people in the Constitution, provided that they are not interpreted to undermine the African values and systems which are the bedrock of our societies.
Accordingly, we respond as follows to the strategic questions posed in the Draft Document.
Paragaph 5
Should the role of Traditional Leaders at Local Level be redefined?
The role of traditional leaders at local level should be defined both in the Constitution and in legislation dealing with local government as is the case with the role of local councillors.
Traditional authorities should continue to carry out the responsibilities entrusted to them by current legislation and as outlined on page eleven (11) of the Draft Document. To enable them to do their work with due regard to accountability and efficiency, the traditional authorities must be constituted of democratically elected councillors in addition to the traditional leaders and councillors. In other words traditional authorities must be recognised as the primary tier of rural local government.
We reject the limited role and representation accorded traditional leaders by the Municipal Structures Act. Heads of traditional authorities must be full and automatic members of local councils which have jurisdiction over their areas of rule. We thus propose that District or Regional Municipal Councils must be established and be constituted of representatives from the town councils and the democratically constituted traditional authorities.
The relationship between municipalities and traditional authorities must be one of co-operative governance as outlined in the constitution.
Paragraph 6
Structures of Traditional Leadership
We welcome the current policy of government in terms of which traditional leaders of the same rank are treated the same in terms of status, role, remuneration, benefit, allowances and responsibilities.
The determination of rank is a matter to be dealt with in terms of the customs and cultural history of the particular national group. There are in general the following levels in the hierarchy of the institution of traditional leadership:-
The King (iKumkani iSilo, iNgwenyama, Kgoshigulu, Morena emoholo, etc.)
The Chief (iNkosi, Kgosi, Kgoshi, Khosi, Hosi, Morena, iKosi)
The Headman (iNkosana, Kgorana, Vhamusanda, Litona, iKosana, iNduna)}
The sub headman (isibonda somsenge, induna yesigodi, Xamunganga, Vhakoma Bonakgoro)
The holders of the lowest rung in the ladder are basically civic leaders who have never been considered for remuneration in the past. They are generally responsible for small areas and communities who are usually members of the same clan. They nonetheless constitute a vital link between their people and the immediate superior. Consideration should be given to the idea of them being given travelling allowances and being paid out of pocket expenses from traditional authority funds.
The level of headmanship is indeed the most problematic in terms of lack of uniformity with regard to their manner of recognition, appointment and remuneration. In some areas they are hereditary leaders, in others they are appointed by the chief or the King; yet in others they are democratically elected. They all, however, perform more or less the same kind of work, though some preside over very small numbers of people and territories equal to those of sub-headmen in other areas. The government should continue to pay those who are of royalty and succeed according to heredity; the same should apply to those who in terms of custom are elected. With respect to those who are appointed, consideration should be given to the size of the community and territory for which each is responsible before payment is made. This might take care of the problem of huge numbers in their ranks.
Chiefs should continue to be paid equal salaries, benefits and allowances throughout the country.
In terms of our cultural history there are no paramount chiefs. Our Kings were labelled as such to degrade their status for colonial and apartheid purposes. National groups which in terms of their history never had kings before should continue to stay without any, to do otherwise could amount to creating illegitimate leaders. Normally a king is someone to whom allegiance and loyalty are owed by various clans and tribes who have their own chiefs. Regional and traditional authorities, as well as council of chiefs, should be constituted of traditional leaders and elected representatives. Regional authorities and councils of chiefs will continue to co-ordinate the operations of traditional authorities. Their relationship with local government structures should be one of co-operative governance.
The concept of a landless chief is anathema to African culture. If such traditional leaders and their communities were dispossessed of their land the government should facilitate that they be given their historical lands or alternative land.
Culturally there is no such a concept as an independent headman. These are in fact traditional leaders who were denied recognition as chiefs by previous regimes. Their cultural status ought to be restored. A community authority headed by a so-called independent headman must be reconstituted as a traditional authority with such headman recognised as a chief.
Paragraph 7
Appointment/Recognition of Traditional Leaders
Hereditary traditional leaders are not appointed but are borne into their positions. The customs of the particular tribe determine who should be a traditional leader. The royal family informs the royal clan, which in turn informs the traditional authority, which informs the tribe or national group; where after the King/Regional Authority is informed of the person who is to assume the position. The Regional Authority then informs the relevant government minister of the selection of the new leader in terms of the tribe's customs. Now that Houses of Traditional Leaders are in place we propose that the Provincial House must be informed, which in turn will inform the National house. The lodgement of these records in these various offices will help facilitate the resolution of disputes when they arise.
In this regard the involvement of government is limited to endorsing the selection of the traditional leader by issuing a certificate when satisfied that the relevant procedures have been followed.
The above position applies to the accession of a person to headmanship. Government must issue a certificate when the customary procedures have been followed.
The concept of a supreme chief is rejected out of hand. It is an affront to the indigenous people of this land and their cultures.
With regard to the identification of traditional leaders the government should get involved only when there is evidence of deviation from procedures laid down by custom. When such deviation has occurred the matter must be referred back for correction by the structure which failed to comply with custom.
The identification of traditional leaders is the responsibility of the following structures in that order:-
The Royal Family
The Royal Clan/Council
The Traditional Authority
The Tribe/ National Group
The Regional Authority
Premier Provincial House of Traditional Leaders
National House of Traditional Leaders
The Houses of Traditional Leaders should be considered as forums of appeal
where disputes between contenders for the throne cannot be resolved at the other levels.
Abdication by a legitimate successor should be considered a serious direliction of duty which must not be readily condoned. Such a person, however, should be called upon to reduce to writing his disavowal of his position so as to avoid future disputes.
His legitimate heir should, however, not be punished for his father's deeds and should thus be considered eligible to succeed when the appropriate moment arrives.
Government should provide the necessary financial and logistical assistance for the ceremonial installation of traditional leaders.
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Removal of Traditional Leaders from Office
The government's involvement in the removal of a traditional leader should arise only when all the other structures entrusted with the identification and selection of a legitimate successor have done their work and have concluded that the only appropriate and acceptable measure of discipline is his removal. In other-words government should not be involved save to withdraw the certificate and to issue a new one for the new leader when the latter is presented to the Premier.
The Houses of Traditional Leaders should act as forums of appeal or review when a complaint has been laid against a traditional leader.
Paragraph 16
Traditional Communities, National Borders and Transnational Implications.
The territorial integrity of the South African state should be protected at all times. Resources of the State must be used for the benefit of the people of South Africa.
However, Cultural relations between our people and neighbours should be treated differently. Communities whose senior traditional leaders are citizens of other states should be allowed to interact with their relatives and such traditional leaders on a cultural basis. Such a leader should be allowed to perform cultural rituals and ceremonies either personally or through a South African representative.
For our purposes the Southern African Development Community should have a structure which deals with issues of cultural relations so as to promote interaction and reduce areas of conflict.
As far as local governance and development issues are concerned these are responsibilities of individual countries.
Courts of Traditional Leaders.
The government should expedite the process of the recognition of courts of traditional leaders in order to remove constitutionality or otherwise of their status.
Criticisms levelled at these courts are largely based on ignorance and the inability of people to interpret their manner of operation as being consonant with fundamental human rights.
The courts are conducted democratically, in an open and transparent manner. The trial is conducted by the peers of the litigants because everyone is free to examine and cross-examine the witnesses. Even lawyers are free to participate as long as they do so as members of the public and in accordance with the procedures of the court.
These courts should be equipped with modern resources to facilitate the recording of the proceedings and evidence. The presiding officers and councillors must be given training so as to sensitize them to the provisions of the constitution, the Bill of Rights and other laws. In this regard the original Schools for the Sons of Chiefs and Headmen should be revived and be used also as in service training centers for traditional leaders and councillors.
Naturally the councillors must be composed of men and women democratically elected to work with the traditional leaders.
Land
The communal land under occupation by traditional leaders and communities is part of the 13% of South Africa's land mass and is the remainder of land which was successfully defended by our fore-bears in the colonial wars of dispossession. It is thus a prized asset for traditional communities. This land is owned collectively by the tribe and may not be alienated to outsiders. Its owners have no means to acquire land elsewhere because they are poor. They do, however, want to use the land for their own development and to attract foreign investment. They do not want such development to take place at the expense of their ownership of the land through alienation to developers, financial institutions and those who have money.
The state, which in terms of colonial and apartheid policies and legislation, is the legal owner of this land must expedite the process of transferring legal title over communal land to communities. The title indeed should be in the name of the traditional authority suitably democratized. When such transfer has occurred it must be the community which decides how the land will be allocated, used and administered. If the community believes that it will be in its interests to issue title deeds over individual allotments, let that be its decision to make and not government or any one else. It is the Contralesa view, however, that as long as our people are poor and as long as the great bulk of the land is in the hands of a tiny racial minority, it would be foolhardy for any community to issue title deeds to its members or anyone else.
Minerals
Traditional communities whose land is endowed with minerals were arbitrarily dispossessed of rights over those minerals without any consultation or agreement with either the state or mining companies.
This whole maffer of mineral rights should be reopened and affected communities must be consulted on the manner in which those rights are to be restored to them. While it is accepted that minerals are a valuable source of income for the state, the relevant communities should be the first to benefit. No one has a moral right to hold on to minerals which reside in the land of traditional communities.
Conclusion
We do not claim to be possessed of all the answers posed with regard to ubukhosi/bogosi, but then it has never been so that traditional leaders were the exclusive repositories of wisdom. You, as Members of Parliament, are our councillors who because of your proximity to the people should be advising us of the correct path. Use this opportunity to repossess your role as such advisers by ensuring that our people are not made to choose between the received modern systems of democracy and systems of African governance as epitomized by the institution of traditional leadership. All of us have a joint responsibility to ensure that we complete the final phase of the transformation of our society for the benefit of all; that there is no room for triumphalism, where one school of thought claims victory over the other.
We propose a code of conduct be formulated to guide traditional leaders in their conduct upon assumption of office. Such code of conduct must be couched in ways which are sensitive to and respectful of the cultural norms of our people.
The right to equality as entrenched in the Bill of Rights does not feature in the question of the resolution of succession dispute.
The question of successions is a matter involving the male heirs of a departed leader except for those royal clans whose customs dictate that successors be females only. This is an aspect which should not be interfered with.
Ever since its advent the institution has always been fraught with instances of the deposition of legitimate leaders by juniors who subsequently entrenched themselves in those positions. This has been the case in pre-colonial, colonial and apartheid times.
The result is that almost each and every royal household has been at one time or another been headed by someone other than the one to whom the genealogical finger had been pointed.
The matter really lies in the hands of the royal family and tribe concerned. It depends on the intensity of feeling on the part of these groupings about the loss of the seat to the usurper. It is a can of worms for which, if it is to be opened, Contralesa proposes
the establishment of an independent commission of enquiry Terms of reference would have to be formulated with regard to the historical stage at which claims should be entertained.
Paragraph 9
In the majority of cases it is unlikely that a woman can ever succeed to the throne as of right, save for those cases such as of the Lobedu of the Rain Queen Modjadji, where the culture and custom dictate that the successor be a woman.
The legitimacy of a successor depends on him being a direct descendent in terms of the genealogical tree which is determined according to the patrilineal line.
Women should be allowed to play an active role in the customary courts, iimbizo/lekgotla, and traditional authorities. They should be elected into office like everybody else.
Paragraph 10
Status of the Youth/Minors in Traditional Communities.
The identification and selection of a minor successor should be done as soon as the father dies. He should, however, assume duty upon attainment of the age of majority, preferably, but not strictly, upon marriage.
The youth should not be compromised in their natural growth and development by being made to deal with community affairs which can best be dealt with by adults. They should, however, be encouraged to take part in activities which promote their cultural norms and values. Through their regiments or youth leagues they should have links with all traditional institutions.
When a regent is appointed to act for a minor heir the royal clan I council must prescribe the period of such regency. Such time frame must be in writing and be lodged with all the relevant bodies which ought to be informed of the identification and selection of heirs.
The regent should be required to provide care and maintenance for the minor heir and his mother. Towards this end a portion of his salary should be used for the needs of the family of the deceased.
The equality clause plays no role on the law of succession for the reasons
already outlined.
Traditional leaders should be provided with decent remuneration packages, including pension and medical aid benefits, in the same way that other public office bearers such as local councils and members of parliament are provided. Such benefits will obviate the need for government to look after the family of a deceased traditional leader. In the absence of these benefits the government should look after the welfare of such family.
Paragraph 11
Party Political Affiliation:
There should be clarity in the minds of the people when they deal with public office bearers as to whether they are dealing with a politician or a traditional leader.
This is so because different protocols and/or customs apply with respect to each one of these careers. Political parties thrive mostly on the perpetuation of divisions by seeking to lower the esteem of their opponents in the eyes of the voting public. On the other hand traditional leadership is considered an instrument of peace, unity and development. They are nonetheless public representatives whose goal is the development of the people.
In addition to all the other things a traditional leader stands for, he is also a politician in the sense that he is the governor of his people.
Ideally therefore, traditional leaders should not, while in office, be actively involved in partv politics. Due to the fact that their office is of governorship structures such as the Houses of Traditional Leadership and Traditional Authorities should be equipped in material and other respects so as to facilitate the participation of traditional leaders in governance matters in a way which does not compromise their status.
At the present moment, however, it would not be in the public interest for
traditional leaders to opt out of party politics because their status, role and functions are still to be finally determined by politicians, and our history informs us that politicians have never loved traditional leadership for its own sake, hence they cannot be trusted to decide the fate of traditional leaders on their own.
Traditional leaders would be able to carry out their responsibilities on an impartial basis only if they are appropriately empowered through their structures, namely, traditional authorities and the Houses. When this has been achieved it will be time to consider the advisability or otherwise of their party political affiliation.
Paragraph 12
Remuneration of Traditional Leaders
Government, as custodian of the taxes of our people, should be responsible for the remuneration of traditional leaders. The fact that government pays traditional leaders does not make them public servants, they remain accountable to their communities and the nation in the same manner that other public office bearers account to their constituencies and the nation.
Headmanship is an integral feature of the institution of traditional leadership. Headmen should accordingly be remunerated by government in a manner commensurate with their status, role and responsibilities.
As public office bearers traditional leaders are morally and constitutionally entitled to receive salaries, benefits and allowances so as to be able to carry out their responsibilities. Members of the House of Traditional Leaders should be paid standing salaries and not just sitting allowances as is the case at present; they should have constituency and motor vehicle allowances so as to be able to account properly to their fellow traditional leaders and communities. This should not be a prerogative of the President or anyone else but should be entrenched in the law.
Paragraph 13
Co-operative Governance
The provisions contained in Chapter Eleven of the Interim Constitution capture very aptly the type of relationship which should be fostered between traditional leaders and the government. There must be an obligation on the legislatures to refer relevant bills to the Houses before they are passed into law. The construction of local government structures in the manner outlined in the previous paragraphs would constitute the appropriate form of cooperative governance between the institution and government. Ministers and Members of the Executive Councils should on a regular basis, address the Houses on issues of relevance to the institution. A Ministry responsible for traditional affairs and rural development should be created at the National and provincial levels.
Paragraph 14
Role and Functions of Statutory Bodies Representing Traditional Leaders.
The entire chapter 12 of the constitution should be revisited and be replaced with the provisions of chapter 11 of the interim constitution. The size and composition of the Provincial Houses should be determined in a manner which will be representative of all the traditional regions of a province.
Provincial representatives of the National House should seek mandates from their Provincial Houses on all relevant issues before committing themselves to decisions. They should in turn report regularly to the Provincial Houses on decisions taken. The National House should establish links between itself and the regional authorities by conducting regional visits together with the Provincial Houses. The National House and the Provincial Houses should account to Parliament and the Provincial Legislatures respectively.
For purposes of rationalising and the smooth running of their affairs, traditional leaders should have a ministry responsible for traditional affairs and rural development. The great bulk of traditional communities are yet to enjoy the fruits of freedom, because there is still a glaring lack of an integrated rural development strategy. Such a ministry would ensure the development and implementation of such a strategy.
No Bills or new policies may be adopted by Parliament or Government before the views of the Houses are sought on matters which have a bearing on traditional leadership and communities.
There should be constant interaction between the Portfolio, Select and
Standing Committees of Parliament and Legislatures and the Standing
Committees of the Houses of Traditional Leaders. This will ensure that
there is a common understanding of the issues at hand.
Paragraph 15
Traditional Communities and Issues Having Trans-Provincial Implications
South Africa is one united country even though it is constituted of Provinces with noticeable peculiar characteristics. The ideal of unity and a common nation-hood should be strived for at all times.
Where it has proved to be unavoidable to locate a single traditional community within one Province, then the traditional leader of such a community must have a representative who will look after his people on the other side of the boundary. The representative should also sit, on behalf of the traditional leader, on the municipal council exercising jurisdiction over his land and people. Such people should, however, continue to be subject to the authority of the original traditional authority.
Many of the people who were victims of forced removals were members of traditional communities with traditional leaders as their rulers. It stands to reason that when their land is restored to them arrangement should be made with their original traditional leader for them to have either the same leader or someone else as their traditional leader with a traditional authority democratically constituted.
Paragraph 16
Traditional Communities, National Borders and Transnational Implications.
The territorial integrity of the South African state should be protected at all times. Resources of the State must be used for the benefit of the people of South Africa.
However, Cultural relations between our people and neighbours should be treated differently. Communities whose senior traditional leaders are citizens of other states should be allowed to interact with their relatives and such traditional leaders on a cultural basis. Such a leader should be allowed to perform cultural rituals and ceremonies either personally or through a South African representative.
For our purposes the Southern African Development Community should have a structure which deals with issues of cultural relations so as to promote interaction and reduce areas of conflict.
As far as local governance and development issues are concerned these are responsibilities of individual countries.
Courts of Traditional Leaders.
The government should expedite the process of the recognition of courts of traditional leaders in order to remove any uncertainty as to the constitutionality or otherwise of their status.
Criticisms levelled at these courts are largely based on ignorance and the inability of people to interpret their manner of operation as being consonant with fundamental human rights.
The courts are conducted democratically, in an open and transparent manner. The trial is conducted by the peers of the litigants because everyone is free to examine and cross-examine the witnesses. Even lawyers are free to participate as long as they do so as members of the public and in accordance with the procedures of the court.
These courts should be equipped with modern resources to facilitate the
recording of the proceedings and evidence. The presiding officers and councillors must be given training so as to sensitize them to the provisions of the constitution, the Bill of Rights and other laws. In this regard the original Schools for the Sons of Chiefs and Headmen should be revived and be used also as in service training centers for traditional leaders and councillors.
.
Naturally the councillors must be composed of men and women democratically elected to work with the traditional leaders.
Land
The communal land under occupation by traditional leaders and communities is part of the 13% of South Africa's land mass and is the remainder of land which was successfully defended by our fore-bears in the colonial wars of dispossession. It is thus a prized asset for traditional communities. This land is owned collectively by the tribe and may not be alienated to outsiders. Its owners have no means to acquire land elsewhere because they are poor. They do, however, want to use the land for their own development and to attract foreign investment. They do not want such development to take place at the expense of their ownership of the land through alienation to developers, financial institutions and those who have money.
The state, which in terms of colonial and apartheid policies and legislation, is the legal owner of this land must expedite the process of transferring legal title over communal land to communities. The title indeed should be in the name of the traditional authority suitably democratized. When such transfer has occurred it must be the community which decides how the land will be allocated, used and administered. If the community believes that it will be in its interests to issue title deeds over individual allotments, let that be its decision to make and not government or any one else. It is the Contralesa view, however, that as long as our people are poor and as long as the great bulk of the land is in the hands of a tiny racial minority, it would be foolhardy for any community to issue title deeds to its members or anyone else.
Minerals
Traditional communities whose land is endowed with minerals were arbitrarily dispossessed of rights over those minerals without any consultation or agreement with either the state or mining companies.
This whole matter of mineral rights should be reopened and affected communities must be consulted on the manner in which those rights are to be restored to them. While it is accepted that minerals are a valuable source of income for the state, the relevant communities should be the first to benefit. No one has a moral right to hold on to minerals which reside in the land of traditional communities.
Conclusion
We do not claim to be possessed of all the answers posed with regard to ubukhosi/bogosi, but then it has never been so that traditional leaders were the exclusive repositories of wisdom. You, as Members of Parliament, are our councillors who because of your proximity to the people should be advising us of the correct path. Use this opportunity to repossess your role as such advisers by ensuring that our people are not made to choose between the received modern systems of democracy and systems of African governance as epitomized by the institution of traditional leadership. All of us have a joint responsibility to ensure that we complete the final phase of the transformation of our society for the benefit of all; that there is no room for triumphalism, where one school of thought claims victory over the other.