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DTA/ AND NHTL QUESTIONS RAISED BY MEMBERS OF THE PORTFOLIO COMMITTEE ON CORPORATIVE GOVERNANCE AND TRADITIONAL AFFAIRS IN THE PC MEETING OF 13 MARCH 2012
No	QUESTIONS
	RESPONSES 	
1.		What is COGTA’s role in facilitating issues of state owned land invasion question through traditional administration of justice system?	BACKGROUND
It has become common practice that people invade state owned land for various reasons. This is mostly in areas where these invaders end up erecting shacks. The challenge that government and society have is that once they have built these structures they become protected through the Prevention of Illegal Eviction from Unlawful Occupation of Land Act of 1998.

This Act makes it difficult to evict the illegal invaders and requires that an alternative settlement must be sought before they can be removed. The issue of land invasion is most prevalent in urban areas and areas under traditional leadership.

The intervention of traditional leaders in the administration of justice in this regard is compromised due to legislative constraints. 

DETAILED RESPONSE
The administration of justice in traditional communities is predominantly carried out by traditional leaders. One of the responsibilities of traditional leaders is to settle disputes in these communities. Although legislation exists to govern the incorporation of traditional leaders into the new democratic South Africa, intense debate on the issue of the involvement of traditional leaders on various critical areas including spatial planning and land use management continues. Their involvement is currently limited.

Guided by the constitutional principles of cooperative governance, DTA continues to facilitate interaction between the Department of Rural Development and Land Reform and Department of Justice and  Constitutional Development and ensures that traditional leaders through their governance structures such as; the National and Provincial Houses of Traditional Leaders participate in land use management and administration of traditional justice processes.	

			
2	Traditional authorities (institutions) in villages are almost dysfunctional due to lack of clear demarcation of the scope of operation of traditional leaders versus scope of work of councilors. What is DTA doing in ensuring that there is clear separation of responsibilities between Traditional Leaders and Councilors 	BACKGROUND
In terms of section 28(4) of the Traditional Leadership and Governance Framework Act, tribal authorities are deemed to be traditional councils but had to be reconstituted in accordance with the provisions of the Act. 

Provinces are currently reconstituting the Traditional Councils and ensure that the terms of office of these councils are aligned to that of the National House.
DETAILED RESPONSE
Currently, some traditional councils are not functioning effectively. Provinces are in the process of reconstitution of these councils and this will be followed by an induction process.
As far as roles and functions are concerned, there are clear distinctions between the roles of traditional leaders and municipal councils. Section 4 of the Traditional Leadership and Governance Framework Act, 2003 spells out the functions and roles of the traditional councils and how they must interface with municipalities on the issues affecting the development of their communities. 

For the current members whose term is to expire in May 2012, DTA has conducted workshops for them on legislation impacting on traditional leaders with the view of empowering the said leaders on the different roles that are to be played by different structures in the area of development and service delivery.	
3	In most cases where people have done something illegal/criminal the police are called and not Traditional leaders.	BACKGROUND
Although legislation exists to govern the incorporation of traditional leaders into the new democratic South Africa, intense debate on the issue continues. Traditional leaders contribute to several spheres of governance, but their role in crime prevention and administration of justice is more pronounced. The key question should not be whether traditional leaders should perform such functions, but how they can participate in the delivery of local safety. 
This issue is being dealt with by the Department of Justice and Constitutional Development through the Traditional Courts Bill.

DETAILED RESPONSE
The Traditional Courts Bill proposes that traditional leaders will be appointed presiding officers of the traditional courts with the powers to decide on both civil and criminal matters involving members of traditional communities.	
4	What is DTA doing about Traditional Councils not being remunerated?	BACKGROUND

The Independent Commission on the Remuneration of Public Office Bearers makes recommendations to the President in respect of salaries, allowances and benefits of office bearers. The President then has to make a final determination.

DETAILED RESPONSE
The Independent Commission for the Remuneration of Public Office Bearers Act does not provide for members of local houses, and non-traditional leader members of kingships/queenships councils, principal traditional leadership councils and traditional councils. As a result of this shortcoming of the Remuneration Act, the Seriti Commission has made no recommendations for the remuneration of the aforementioned members. 

In dealing with this matter, the Minister is currently engaging the Seriti Commission to ensure that these issues are resolved.	
5	How are Traditional Councils consulted in the development of IDPs	BACKGROUND

The Municipal Systems Act provides for the participation of traditional leaders in IDP processes. However this participation varies from province to province and municipality to municipality.
 
DETAILED RESPONSE
COGTA is considering amending the Municipal Systems Act to ensure effective involvement of traditional leaders in the IDP processes.

COGTA is amending section 81 of the Local Government Municipal Structures Act through the National Traditional Affairs Bill to involve members of Local Houses to participate in municipal councils instead of the current situation where individual traditional leaders participate.	
6	What is DTA doing to ensure that Traditional Leaders and Councilors are complementing each other and working together? 

There is a need for DTA to develop a guiding framework on the role of traditional leaders versus elected councillors, and come up with programmes for the transformation of the traditional leadership  institutions	BACKGROUND
Section 4 of the Traditional Leadership and Governance Framework Act, 2003 spells out the functions and roles of the traditional councils and how they must interface with municipal elected councilors and municipalities on issues affecting the development of their communities.

DETAILED RESPONSE

COGTA is amending section 81 of the Local Government Municipal Structures Act through the National Traditional Affairs Bill to ensure that members of Local Houses participate effectively in municipal councils instead of the current situation where individual traditional leaders participate and are also accorded observer status.

DTA has conducted workshops on legislation impacting on traditional leaders with the view of empowering the said leaders on the different roles that are to be played by elected councilors and traditional leaders in development and service delivery.	
7	Why targets in the DTA APP appear to be a cut and paste work?  E.g. “Report on the implementation of capacity building”. The targets 	BACKGROUND
On page 98 of the 2012-13 APP, the quarterly targets are stated as   “report on the capacity building implementation plan”.

DETAILED RESPONSE
The details of deliverables that must be reported on quarterly are reflected in the capacity building implementation plan and they include among others, the following activities:
-	Conduct skills audit
-	Induction of NHTL, PHTL, Local Houses members
-	Coordinate training interventions in targeted provinces
-	Identification and prioritization of training needs.	
8	Why DTA’s and NHTL annual targets do not have time frames? 	BACKGROUND
NHTL APP is included in the COGTA APP (page 100 of the COGTA APP) . The targets are accounted for quarterly. It is required by legislation that an accounting officer reports quarterly to the Executive Authority, Treasury, the Presidency, the Auditor General, Audit Committee and Portfolio Committee on progress for targets achieved, partially achieved or not achieved. 

DETAILED RESPONSE
DTA and NHTL annual targets have been broken down into quarterly deliverables as required by the National Treasury Framework for Strategic Plans and Annual Performance Plans and therefore the timeframes for all the targets are in the Annual Performance Plan.	
9	DTA budget is small compared to other COGTA programmes. For the Department to deal with real issues confronting traditional leadership it must have adequate budget to implement programmes that will enhance governance and capacity of  the institutions	BACKGROUND
The DTA was proclaimed in December 2009 and it started being functional in January 2011 after the appointment of the DG, DDGs and a small complement of staff. It started with two branches, the Institutional Support and Coordination as well as Research, Policy and Legislation. The budget was allocated in relation to the first phase of DTA establishment. It will be increased as the department grows in the second phase.

DETAILED RESPONSE
In its inception during the first phase of its establishment, the Department did not focus on other elements of traditional affairs which consist of:
-	traditions, culture, value systems etc.
-	broader South African Cultural, religious and linguistic communities
-	Development and service delivery
-	Indigenous knowledge systems
-	Good governance
-	Corporate services

The Department prioritised traditional leadership and indigenous communities as the fulcrum of traditional affairs which formed the first phase of its establishment. 
In the second phase, the Department will in addition to traditional leadership and indigenous communities focus on other elements of traditional affairs. Hence the structure is in the process of being reviewed in 2012-2013 financial year to include all the elements of traditional affairs and strengthen its support to the entities (NHTL, CRL Rights Commission and CTLDC). The budget will then be informed by the broader mandate and not only traditional leadership and indigenous communities.	
10	What is going to happen with regards to kings that have taken the Department to court?	BACKGROUND
Government started the process of addressing disputes and claims on traditional leadership, with the appointment of Judge Nhlapo in 2004, to lead the Commission commonly known as the “Nhlapo Commission”.

The Mandate of the Commission included the following:

-	Listening to disputes and claims on traditional leadership.
-	Investigating the claims.
-	Making determinations.

After considering the disputes and claims raised, the Nhlapo Commission finalized eighteen cases. The President made a decision and announced the recognized kings and kingships in July 2010. There were a number of aggrieved unsuccessful claimants who took government to Court.

The term of office of the Commission expired in January 2010.
DETAILED RESPONSE
Nothing will happen to the aggrieved unsuccessful claimants who have taken government to Court. 

These aggrieved people have the right to appeal if they are not satisfied with the outcome of the Commission. Currently the litigations are still being processed in courts, and government has no control on the outcome of courts’ decisions.	
11	In the DTA APP there seems to be no programme for governance and capacity building for Traditional Leaders, what is DTA going to do to address these issues?	BACKGROUND

After the appointment of the DG, DDGs and SMS members in 2011, the Department started its work by determining the state of governance within the institutions of traditional leadership. The department conducted the assessment of the state of governance in eight provinces where there are recognized traditional leaders. 

The DTA approached the assessment with the view that “good governance” is an essential precondition for sustainable development and service delivery and that poor governance stifles and hinders development. 

The areas of focus for the assessment were the elements of good governance which include capacity building are as follows:
o	Structures
o	Systems
o	Budget and Cost Drivers for Traditional Affairs units in Provinces
o	Infrastructure
o	Capacity
o	Partnerships
o	Community Engagements
o	Relations and Coordination

•	The findings of the assessment report have been analysed in line with the eight elements of good governance.
•	The outcome of the assessment shows that there is a need for capacity building.

HIGH LEVEL STRATEGIC OUTCOMES

The following are seven high level strategic outcomes emanating from the assessment that require to be addressed through an empowerment programme at national level to ensure uniformity across provinces:

•	Governance systems for effective functioning of traditional affairs institutions; 
•	Functionality of traditional affairs structures and IGR arrangements; 
•	Capacity building for traditional affairs institutions; 
•	Effective partnerships; 
•	Enhancing accountability  within the institution 
•	Development of  a common understanding of the elements of traditional affairs in provinces which will inform provincial organisational structures; and 
•	Legislative review and policy development, including affirmation of indigenous leadership structures and communities. 

The DTA has developed capacity building implementation plan for 2012-2013.	
12	It is not clear who are the Kings and Queens? Which ones are recognized and which ones are not recognized?	BACKGROUND
After considering the disputes and claims raised, the Nhlapo Commission finalized eighteen cases. The President made a decision and announced the recognized kings and kingships in July 2010. 

DETAILED RESPONSE
Twelve recognised kingships and queenships including the incumbents are as follows:

1)	AmaXhosa:          King Mpendulo Calvin Sigcau;
2)	AmaMpondo:       King Zanozuko Sigcawu (Court interdict on recognition).
3)	AbaThembu :        King Buyelekhaya Dalindyebo 
4)	AmaNdebele:        King Makhosoke Mabhena 
5)	AmaZulu:               King Zwelithini Zulu
6)	Vhavenda :             King Peter Toni Mphephu (Court interdict on recognition).
7)	Bapedi Ba Morota: King Thulare Victor Thulare  (Court interdict on recognition).
8)	AmaMpondo of Nyandeni: King Ndamase Ka Ndamase 
9)	AmaNdebele of Ndzundza: King Mbusi Mahlangu 
10)	Batlokwa Ba Mota : King Cavandish Mota 
11)	Bakwena Ba Mopeli: King Mopeli Mopeli 
12)	AmaRharabe: Late King Sandile (passed on in 2011).	
13	How are Kings and Queens determined? Are they born kings, elected, appointed because they are rich, what is the criteria for determining kings and queens?	BACKGROUND
Section 2A(1) contains the criteria with which a community must comply to be recognised as a kingship/queenship. 

DETAILED RESPONSE
The criteria for recognition of kingships include -

•	having a recognised traditional council with a defined area of jurisdiction;
•	having a senior traditional leader recognised in terms of the applicable provincial legislation;
•	the recognition of a recognised senior traditional leader, who is of higher status than the other senior traditional leaders in terms of custom and customary law, as their king or queen; 
•	recognising themselves as a distinct group of traditional communities separate from principal traditional communities and all other traditional communities; and
•	having a system of traditional leadership at a kingship or queenship level. 
•	Communities who meet the above-mentioned criteria, may apply for recognition as a kingship/queenship to the President.
•	The President makes a final decision based on a recommendation of the Minister and after consultation of the Premiers, NHTL, relevant provincial house and relevant senor traditional leaders. 
•	In terms of section 2A(4) of the Framework Act a kingship or queenship must transform and adapt customary law and customs relevant to the application of this Act so as to comply with the relevant principles contained in the Bill of Rights in the Constitution.
	
14	What is the department doing about Ukuthwala?	BACKGROUND
The issue of Ukuthwala is being addressed by the Commission on the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission).

In 2009, the CRL Rights Commission, the DTA and the Department of Social Development developed a discussion document on the customary practice of ukuthwala. 

DETAILED RESPONSE

A national workshop was held on 23 and 24 August 2011 where other stakeholders were also represented. This included the SAPS, the Department of Justice and Constitutional Development, the Department for Women, Children and People with Disabilities, the Human Rights Commission, the National Gender Commission, the National House of Traditional Leaders and provincial houses of traditional leaders. 
The draft discussion document was finalised in January 2012.
The main purpose of this document is to stimulate debate on the matter with a view to:
-	contribute to the body of knowledge on ukuthwala, 
-	provide a better understanding of ukuthwala and 
-	assist in finding answers on how to address the challenges relating to the custom.
The DTA will continue to support CRL Rights Commission on the resolving this issue of Ukuthwala	
15	Khoi-San communities are scattered all over South Africa, how does DTA intend to affirm them as scattered as they are?	BACKGROUND
There is currently no provision for the statutory recognition of Khoi-San communities, leaders and structures. 

DETAILED RESPONSES

•	The National Traditional Affairs Bill (NTAB) once enacted will make provision for  recognition of Khoi-San communities, leadership and structures. 

•	Once the Khoi-San leaders have been recognised, they will be able to participate in various existing structures. 
•	The NTAB makes provision for the participation of Khoi-San leaders in the National House of Traditional Leaders, provincial houses of traditional leaders and local houses of traditional leaders. Provision is also made for their participation in municipal councils at a district and local level.
•	In addition, provision is also made for Khoi-San councils, which councils will serve the interests of the relevant Khoi-San communities.
•	To assist the Khoi-San and other councils, the NTAB provides that the national government or a provincial government, as the case may be, may adopt such legislative or other measures as may be necessary to provide them with administrative and financial support, as well as to strengthen the capacity of kingship or queenship councils, principal traditional councils, traditional councils, Khoi-San councils and traditional sub-councils to enable them to fulfill their functions.
•	It is well-known that the members of Khoi-San communities have over the years spread throughout the country. This is acknowledged by the NTAB and therefore provision is made for the establishment of branches which may fall outside of the province in which the main community is located.  	

NATIONAL HOUSE QUESTIONS
	
16 	The Chairperson and Deputy Chairperson of the National House of Traditional Leaders (NHTL) are Office Bearers, why are they included in the DTA as officials?	Yes, the Chairperson and Deputy Chairperson of the National House of Traditional Leaders (NHTL) are Public Office Bearers. Their conditions of service are determined by the Independent Public Office Bearers Act and they are included in the DTA for remuneration purposes. 	
17.	How are we going to preserve and promote traditional leaders as our basis of democratic governance?	BACKGROUND

Chapter 12 of the Constitution of the Republic of South Africa deals with the recognition and the role of traditional leaders in a demographic governance system. Chapter 3 of the Constitution deals with cooperative governance and requires that all spheres of government and all organs of state within each sphere cooperate with one another on matters of common interest. 

DETAILED RESPONSE
To preserve and promote the work of traditional leaders as the basis of democratic governance, the institutions of traditional and indigenous leadership are being transformed to be in harmony with the Constitution and Bill of Rights to:
-	promote democratic governance and the values of an open and democratic society
-	progressively advance gender equality within the institutions of traditional and indigenous communities
-	promote freedom, human dignity and equality	
18.	Is the NHTL an appendage of the Department of Traditional Affairs because in their own understanding, the NHTL has its own core business and has to interact with Parliament. So we need clarity around its independence.  

Why is the NHTL placed as a Sub Programme of the Department in terms of structural location?	BACKGROUND
The National House is not an appendage of the DTA. It has its own functions distinct from that of the DTA, prescribed by the NHTL Act, 2009. However, these functions are complementary.

The approved structure that is currently funded was finalised before appointment of the DG and DDGs and it has the NHTL as a sub-programme of the ISC Branch. The structure does not adequately support the mandate of the DTA and does not make provision for adequate support to all its entities including the NHTL. 

DETAILED RESPONSE
The DTA organisational structure which was approved in 2009, has located NHTL administrative support role of the Secretary of the House and the staff under the Institutional Support and Coordination Branch to ensure that the House is effectively supported by the Department.

The Minister is the Executive Authority of CoGTA Portfolio including all the entities. Therefore the NHTL is not an appendage of the DTA.

DTA provides support to the National House in the form of human resources, finances, administration and office accommodation. The law requires that the National House must interact and report to Parliament. Hence the support provided by the DTA for the National House to be able to effectively interact and report to Parliament.
The DTA organisational structure which was approved in 2009, has located NHTL administrative support role of the Secretary of the House and the staff under the Institutional Support and Coordination Branch to ensure that the House is effectively supported by the Department.

DTA provides support to the National House in the form of human resources, finances, administration and office accommodation.	
19.	The terms of offices of houses of traditional leaders are coming to an end in May, what is the NHTL doing about this? 	The Minister has written to Premiers to facilitate that the elections of Provincial Houses and Local Houses are done before mid May 2012 to allow for the reconstitution of the National House.	
20.	Does the NHTL play its oversight role on the election of traditional leaders to various structures such as the Traditional Councils and Houses?	BACKGROUND
In terms of Section 11 (1) of the National House of Traditional Leaders Act, 2009, the National House is required to cooperate with the Provincial Houses of Traditional Leaders to promote the role of traditional leadership within a democratic constitutional dispensation. 

DETAILED RESPONSE
The functions of the National House are provided for in the National House of Traditional Leaders Act, 2009. To the extent that this is so, the said law does not stipulate that the National House should play oversight role on the election of traditional leaders and councils. There is a need for the NHTL and PHTLs to play an oversight role over Traditional Councils and Local Houses.	
21	What is the election criteria used for Traditional Councils?	BACKGROUND
The NHTL Act, 2009 provides the criteria for election of Traditional Councils. 

DETAILED RESPONSE
The number of members of Traditional Councils is determined in terms of a formula to be determined by the Premier, in accordance with guidelines issued by the Minister (guidelines were issued in September 2011).	
22.	What is the status quo regarding the establishment of local houses of traditional leaders?	BACKGROUND
The Framework Act requires that Local and Provincial Houses must be established in accordance with provincial legislation.

DETAILED RESPONSE
Local houses have been established in Mpumalanga, Limpopo, North West, KwaZulu-Natal and Northern Cape except Free State and Eastern Cape. In Gauteng, each of the two traditional councils perform the functions of a local house.

The Minister has written to the Premiers of Free State and Eastern Cape to request them to finalise their Bills providing for the establishment of local houses by end of March 2012.	
23.	The NHTL presentation makes reference to a lot of meetings to be held during the coming financial year, but it is short of providing outputs to be achieved with such meetings. What is the NHTL actually prioritizing?	BACKGROUND
In terms of Section 11 (1) of the National House of Traditional Leaders Act, 2009, the National House is required to cooperate with the Provincial Houses of Traditional Leaders to promote the role of traditional leadership within a democratic constitutional dispensation. 

DETAILED RESPONSE
Priorities of the House as stipulated by the NHTL Act of 2009:
•	National House conducts these meetings to enhance cooperation between the House and the various Provincial Houses of Traditional Leaders with a view to addressing matters of mutual interest such as:
-	Role of traditional leaders in development
-	Preservation of moral fibre and culture as well as traditions of communities
•	The Act requires the House to meet on a bi-annual basis with all kings and queens to discuss programmes and activities of the House as well as matters relating to service delivery in traditional communities
•	The Act requires the House on bi-annual basis to hold meetings with Provincial Houses to discuss progress on matters relating to the welfare of traditional communities
•	It further requires the Chairperson of the House to establish a body of chairpersons of Provincial Houses to interact with the House on a regular basis on issues of mutual interest	
24	Unpack partners for collaboration referred to in the NHTL presentation 	The partners referred to are:
-	Government Departments 
-	Provincial Houses of Traditional Leaders
-	Local Houses of Traditional Leaders
-	Municipalities
-	Chapter 9 Institutions