ATC160518: Report of the Select Committee on Petitions and Executive Undertakings on the Hearing of the Provincial House of Traditional Leaders Petition held at Parliament, on 18 May 2016
Report of the Select Committee on Petitions and Executive Undertakings on the Hearing of the Provincial House of Traditional Leaders Petition held at Parliament, on 18 May 2016
The Provincial House of Traditional Leaders petition (petition) was submitted to the National Council of Provinces (NCOP), on behalf of the Provincial House of Traditional Leaders in the Western Cape Province (Province), by Mr Christo Frantz (hereinafter referred to as Mr Frantz or the petitioner) in two separate instances.
The first petition submitted by Mr Frantz is dated 13 November 2014 and was referred to the Select Committee of Petitions and Executive Undertakings (Committee) on 20 November 2014. Two years later in 2016, Mr Frantz submitted a second petition and the petition is dated 20 April 2016. It is important to note that the petitions pertained to a similar subject matter, namely, the failure by the Western Cape Provincial Government to establish and recognise a Provincial House of Traditional Leaders in the Western Cape. It also pertinent to point out that Mr Frantz signed both petitions as the Chairperson of the Provincial House of Traditional Leaders, Western Cape Province.
- Content of the 2014 Petition
In the first petition submitted by Mr Frantz to the NCOP, he describes the Provincial House of Traditional Leaders (PHTL) as a “Chapter 12 institution” .i.e. an institution which, in terms of section 212 of the Constitution of the Republic of South Africa (Act 108 of 1996) (Constitution), provides for the role of traditional leadership at a local level on matters affecting local communities. The petition further specifies that, in terms of the section 212 of the Constitution, the PHTL is mandated to deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law.
The petition further maintains that, by virtue of Chapter 12 and section 212 of the Constitution, the PHTL, in dealing with traditional matters, has a right to be advised and consulted by the Province in relation to Bills that have a bearing or impact on traditional matters. However, this does not happen in the Province as Premier Helen Zille (Premier Zille), does not advise and consult the PHTL, Western Cape (PHTL-WC) in relation to Bills that have a bearing or impact on traditional matters. And this has the potential to render such Bills procedurally and constitutionally unfair. It is on this basis that the petition requests the intervention of the NCOP in facilitating a meeting between the PHTL-WC and Premier Zille which is aimed at ensuring the PHTL is advised and consulted on Bills pertaining to traditional matters and other related matters.
1.2 Content of the 2016 Petition
In the 2016 petition submitted to the NCOP, Mr Frantz adds two more complaints to the 2014 petition and both complaints are levelled towards the MEC for Local Government and Development Planning in the Province, MEC Anton Bredell (MEC Bredell).
The first complaint relates to the alleged refusal by the MEC Bredell to identify traditional leaders with the various Municipal Managers in terms of in terms of Part 6, section 81 of the Municipal Structures Act (Act 117 of 1998). In this regard, the petition contends that the PHTL-WC has identified a list of traditional leaders and forwarded the list of traditional leaders to MEC Bredell in order for him to identify the identified traditional authorities with the respective Municipal Managers of the Municipal Structures Act. However, MEC Bredell refused to carry out his function, in this respect, and identify the identified traditional authorities with the relevant Municipal Managers.
The second complaint levelled against MEC Bredell, is in relation to his interference with the High Court decision discussed below. The petition alleges that MEC Bredell refused to identify the identified traditional authorities with the relevant Municipal Managers as he is of the opinion that an act must be passed in order for the traditional authorities to be recognised. And this is indicative of the fact that MEC Bredell does not recognise the PHTL-WC’s Mission Station Institution and the status and role of its traditional leadership.
As regards the relief sought, the 2016 petition submitted by Frantz requests the intervention of the NCOP in ensuring the following:
1.2.1 That MEC Bredell identifies the identified traditional leaders with their respective Municipal Managers in accordance with Part 6, Section 81 of the Municipal Structures Act;
1.2.2 That legislation enabling the recognition of Khoi-San traditional leadership in the Western Cape be enacted;
1.2.3 That National House of Traditional Leaders (NHTL) accept the three names that the PHTL-WC identified to represent it in the NHTL; and
1.2.4 That Government consults indigenous Khoi-San communities, through the PHTL-WC and their respective traditional councils, traditional houses and tribal authorities, on the Traditional and Khoi-San Leadership Bill of 2015 (Khoi-San Bill).
2. COURT RULINGS
2.1 High Court Ruling
It is also important to mention that in addition to submitting the two petitions to Parliament, the petitioner lodged an application, in the High Court of South Africa, Western Cape Division for leave to appeal against a judgment handed down, on 11 June 2015, by Rodgers J. In the court a quo through judgment handed down by Rodgers J, refused to accept that the petitioner’s members be accepted as members of the PHTL-WC as the Province had no PHTL and even where one assumed assuming it did exist, Rodgers J found that the petitioner had failed to establish on what basis it’s members should be recognised as traditional leaders.
On appeal, the petitioner argued that the interpretation and interrelationship between section 16 of the Traditional Leadership and Governance Framework Act (Act 41 of 2003) and section 212(2)(a) brings into existence a PHTL in the Province. The Court held it “does not see that there is any reasonable prospect of another court finding that a [PHTL] for the Western Cape exists… [and] such a body can only be created by legislation and…this has not yet happened.”
Again on appeal, the petitioner further challenged the Court’s jurisdiction and argued that the matter involved two organs of state, namely the PHTL-WC and the Provincial Legislature or the Premier and as such, the matter is one that only the Constitutional Court can decide upon. In this regard, Rodgers J held the matter is not one that only the Constitutional Court can decide as a PHTL does not exist in the Province and if it does not exist, it cannot be party to a dispute between organs of State.
During the appeal hearing the petitioner also contended there is no role for traditional leaders in the Province. And in response to this contention, Rodgers J acknowledged that the role of traditional leaders in accordance with customary law is recognised by the Constitution but added that for this role to be exercised through a PHTL as contemplated in section 212 of the Constitution, enabling legislation will have to be enacted by the National or Provincial legislature. Rodgers J also added that the Court cannot fill the gap left by the absence of the legislation and bring into existence by judicial decree a PHTL as a PHTL can only be established or brought into existence by legislation.
2.2 Supreme Court of Appeal Ruling
Subsequent to the dismissal of the application for leave to appeal in the Western Cape Division of the High Court, the petitioner applied for leave to appeal in the Supreme Court of Appeal (SCA). The SCA dismissed the application by the petitioner and ordered the applicant pay costs on the grounds that there is no reasonable prospect of success to appeal and there is no compelling reason why the appeal should be heard.
3. PURPOSE OF THE HEARING
Following the referral of the petition to the Committee, the Committee convened a hearing on the petition on 18 May 2016. The purpose of the hearing was to afford, the petitioner and the relevant stakeholders, the opportunity to make oral submissions to the Committee on the petitions submitted to Parliament.
4. COMMITTEE MEMBERS AND OFFICIALS
The hearing on the petition was attended by the following Committee Members:
4.1 Hon S G Thobejane, ANC, Limpopo (Chairperson of the Committee);
4.2 Hon J M Mthethwa, ANC, Kwa-Zulu Natal;
4.3 Hon G M Manopole, ANC, Northern Cape;
4.4 Hon B A Engelbrecht, DA, Gauteng;
4.5 Hon G Michalakis, DA, Free State;
4.6 Hon D L Ximbi, ANC, Western Cape; and
4.7 Hon T Wana, ANC, Eastern Cape.
The Members attending the hearing on the petition were supported by the following officials:
4.8 Mr N Mkhize, Committee Secretary;
4.9 Dr M Gondwe, Content Advisor;
4.10 Adv. T Sterris, Committee Researcher;
4.11 Ms A Zindlani, Committee Assistant;
4.12 Mrs N Fakier, Committee Executive;
4.13 Ms P Ngema, Legal Adviser; and
4.14 Dr B Loots, Legal Adviser.
5. STAKEHOLDERS IN ATTENDANCE
The following stakeholders attended the hearing on the petition:
5.1 Mr C Frantz, Petitioner and Chairperson of the Provincial House of Traditional leaders,
Western Cape Province;
5.2 Mr M Messelaar, Chairperson of the Congress of Traditional Leaders of South Africa (Contralesa), Western Cape Province;
5.3 Hon O Bapela, Deputy Minister of Cooperative Governance and Traditional Affairs;
5.4 Mr A Sithole, Acting Director-General, National Department of Cooperative Governance and Traditional Affairs;
5.5 Mr S Mogaladi, Executive Manager, Office of the Director-General, National Department of Cooperative Governance and Traditional Affairs;
5.6 Mr C Mogatjane, Parliamentary Officer, National Department of Cooperative Governance and Traditional Affairs;
5.7 Mr L Tekane, Parliamentary Liaison official, National Department of Cooperative Governance and Traditional Affairs;
5.8 Mr D Cruywagon, Political Correspondent, The New Age Newspaper; and
5.9 Mr K Peterson, Chairperson of the Khoisan Royal House.
Invitations to attend the hearing and make submissions on the petition, were also extended to the Premier of the Western Cape Province, Premier Helen Zille (Premier) and the MEC for Local Government, Environmental Affairs and Development Planning, MEC Anton Bredell as well as the MEC of Cultural Affairs and Sport (MEC Marais) however they failed to attend the hearing on the petition.
6. SUBMISSIONS BY THE PETITIONER
Submissions on behalf of the Provincial House of Traditional Leaders, Western Cape Province were led by the petitioner, Mr Frantz.
In his submissions to the Committee, Mr Frantz introduced himself as the head of a tribal authority and the head of the Provincial House of Traditional Leaders in the Western Cape Province. Mr Frantz further explained that the PHTL-WC is an umbrella body which represents tribal authorities, traditional councils, tribal authorities and tribal houses in various communities located mainly on mission stations, at a provincial level.
Mr Frantz, also submitted that PHTL-WC views itself as a recognised Chapter 12 institution as envisaged by Chapter 12 of the Constitution. He further submitted that it is on this basis that PHTL-WC also perceives itself as the only constituted institution in the Province that is mandated to deal with traditional matters or issues.
Mr Frantz also informed the Committee that, from 1805 until 1961, the then government recognised the predecessor body of the PHTL-WC which in 1961, was known as the “24 Landelike Gebiede Forum” and consisted of members of the traditional communities. He also informed the Committee that said Forum was recognised by government of the day.
Further in his submissions, Mr Frantz informed the Committee that since time immemorial traditional and indigenous communities within the Province have struggled (and still continue to struggle) to be respected and recognised. He added that as traditional or indigenous communities they cannot rely on the courts as the courts have become commonplace for those that can afford expensive legal advice and counsel.
He further informed the Committee that despite the Constitution recognising traditional authorities and institutions, in instances, where PHTL-WC has tried to demand and enforce the rights afforded to its members by the Constitution from the Western Cape Provincial Government (Provincial Government), it has been met with vicious and racist insults. Mr Frantz also submitted that the Provincial Government has, time and again, informed the PHTL-WC that it cannot exist because there is no legislation enabling its existence in the Province and it can only exist and function through enabling Provincial legislation. He further informed the Committee that the PHTL-WC takes the contrary view that there is law in place that enables its existence and that law is customary law. What is more, this customary law not only brings the PHTL-WC into existence but also determines who must serve on the PHTL-WC.
Mr Frantz also submitted that since there is no PHTL in the Province, traditional issues and matters are dealt with solely by the Provincial Government and the PHTL-WC has no say in issues and matters pertaining to the traditions of its members. He further submitted that section 9 of the Bill of Rights, stipulates that everyone is equal before the law and in not giving effect to and realising this particular section of the Constitution, the Provincial Government is invariably discriminating against the Khoi-San on the prohibited grounds of race, colour and ethnicity and perceiving them to be inferior to other communities, located outside the Province, which have recognised traditional leaders sitting in a PHTL.
In concluding his submissions, Mr Frantz further submitted that the PHTL-WC is disenchanted that the Provincial Government prefers to use courts and not the Constitution to resolve the issues raised in the petition. He added that the courts that have handed down judgements on issues raised in the petition without even applying or taking cognisance of customary law and this is contrary to section 212 (3) of the Constitution which requires the courts to apply customary law where customary law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. He also lamented the fact that he had no legal representation in the High Court judgment handed down by Rogers J and, in in his opinion, this rendered the court hearing unfair in terms of the common law doctrine of the right to a fair hearing.
6.1 Position of the PHTL-WC
Further in concluding his submissions, Mr Frantz, summarised the position of PHTL-WC as follows:
6.1.1 There is customary law that determines who will serve on the PHTL-WC, how long they will serve on the PHTL-WC and the function they will perform on the PHTL-WC.
6.1.2 The PHTL-WC and its traditional authorities perform a function and exercise a power in terms of Chapter 12 of the Constitution or the Municipal Structures Act and Traditional Leadership and Governance Framework Act (Act 41 of 2003) (TLGF Act). Furthermore, the PHTL-WC is an organ of state in terms of section 239 and section 167(4)(a) of the Constitution stipulates that only the Constitutional Court (and not the Provincial Government) may decide on disputes between organ of states in the national or provincial spheres in relation to the constitutional status, powers or functions of any of the organs of state.
6.1.3 There was a constitutional obligation on the Provincial Government to establish a PHTL-WC in terms of section 187 of the Interim Constitution of the Republic of South Africa (Act 200 of 1993) (Interim Constitution) and a similar obligation is contained in the Final Constitution and the Provincial Government has failed to fulfil its obligations in terms of the both the Interim and Final Constitution.
6.1.4 The Provincial Government and its departments are dealing with issues and matters related to traditional affairs and this is contrary to section 41(f) of the Constitution which states that all spheres of Government and all organs of state within each sphere must not assume any power or function except those conferred on them in terms of the Constitution.
6.1.5 The common law doctrine of the right to a fair hearing states that if an applicant or respondent is not represented by counsel in a court action then the judgment or order handed down following the court action is null and void and of no consequence.
6.1.6 The Provincial Government is discriminating against members of the PHTL-WC on the basis of the prohibited grounds of culture, religion, race and colour by refusing to recognise the existence of the PHTL-WC in the absence of legislation establishing it and also in denying the PHTL-WC to deal with traditional matters or issues at a provincial and local level.
6.2 Relief Sought
With respect to the relief sought by PHTL-WC, Mr Frantz submitted that the PHTL-WC seeks the following relief:
6.2.1 The National Government or Provincial Government should establish a PHTL-WC in the Province to deal with traditional matters or issues;
6.2.2 The Provincial Government should consult members of PHTL-W before enacting legislation establishing a PHTL in the WC; and
6.2.3 The role of PHTL-WC and its traditional authorities, in the Province, should be recognised.
7. SUBMISSIONS BY THE CHAIPERSON OF THE CONGRESS OF TRADITIONAL LEADERS OF SOUTH AFRICA, WESTERN CAPE PROVINCE
Mr M Messelaar (Mr Messelaar), Chairperson of the Congress of Traditional Leasers of South Africa (Contralesa), Western Cape Province made brief submissions on behalf of Contralesa.
In his brief submissions to the Committee, Mr Messelaar, submitted that because the Provincial Government has not established a Department of Traditional Affairs in the Province, all traditional issues or matters are referred to and dealt with by the Provincial Department of Cultural Affairs and Sport. Mr Messelaar further submitted that although previous Premiers were keen to engage Contralesa on traditional matters or issues, the current Premier refuses to engage with Contralesa in this regard. He also informed the Committee that, as far back as 2009, Contralesa, has made numerous attempts to meet with Premier Zille with a view to engaging on and interacting with traditional issues or matters but she has consistently refused to meet and engage with Contralesa in relation to traditional matters or issues.
Further according to Mr Messelaar, although the Provincial Government acknowledges there are cultural communities in the Province and that these communities practise their culture, it refuses to recognise that these cultural communities are also custodians of their respective culture.
Mr Messelaar concluded his submissions by requesting the Committee to assist, the PHTL-WC, in ensuring that a PHTL is established in the Western Cape as well as a Department of Traditional Affairs as they are traditional leaders in the Province. He added that in establishing a PHTL in the Province other members of other royal families living within the Province that are recognised by Government will need to be consulted and engaged. In concluding his submissions, Mr Messelaar conceded that Khoi-San traditional leadership is not recognised in terms of the current legislative framework, particularly in terms of TLGF Act.
8. SUBMISSIONS BY THE NATIONAL DEPARTMENT OF COOPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS
Submissions by the National Department of Cooperative Governance and Traditional Affairs (Department) were led by the Deputy Minister, Hon Obed Bapela (Hon Bapela) and later supplemented by Mr A Sithole (Mr Sithole), the Acting Director-General in the Department.
Hon Bapela commenced his submissions by emphasising that Chapter 12 of the Constitution recognises the institution, status and role of traditional leadership and the recognition of traditional leadership in this regard is bolstered by the TLGF Act. Chapter 2, section 2 of the TLGF Act recognises traditional communities provided they have in place a system of traditional leadership and observe a system of customary law.
Hon Bapela also submitted that the Western Cape Province is the only Province in the country where there are no recognised traditional leaders at any level. He added that even though there are persons in the Western Cape Province who refer to themselves as traditional leaders, these persons have not been recognised as traditional leaders since they do not meet the criteria for recognition as set out in the TLGF Act. He also observed that the Western Cape Province and Gauteng Province were the only two Provinces in the country which had not established PHTLs.
In his submissions to the Committee Mr A Sithole (Mr Sithole), the Acting Director-General of the Department submitted that all traditional leadership disputes and claims were subjected to investigations conducted by the Commission on Traditional Leadership Disputes and Claims (Commission). He also submitted that the term of office of the Commission (which replaced the Nhlapo Commission) came to an end last year and has since been extended.
Mr Sithole further explained that to qualify for recognition in terms of the TLGF Act traditional leaders must amongst others, belong to a community that is subject to a system of traditional leadership and observe a system of customary law. Also in his submissions, Mr Sithole, informed the Committee that in the case of the Western Cape, the Commission received 29 claims for the recognition of certain individuals as traditional leaders and out of the 29 claims received, two were for recognition as kinships, one was for recognition as a headman and the rest were for recognition as senior traditional leaders. He further informed the Committee that all 29 claims for traditional leadership, received from the Province, were declined and the report of the Commission in this regard was forwarded to the Premier of the Western Cape who accepted and communicated it to all claimants. Mr Sithole also observed that most of the claims emanated from Africans and none were of the claims emanated from the Khoi-San.
Further in his submissions, Mr Sithole provided the Committee with a summary of the report of the Commission on the Western Cape claims for traditional leadership. In this regard he informed the Committee that the Commission established that resolving disputes in the community and running initiation did not qualify one to be recognised as a traditional leader. Mr Sithole also submitted that the Commission further established that some of the claimants are not recognised traditional communities but are, instead, communities made up of former migrant workers who have settled in the Western Cape from other Provinces and have organised themselves into groups which practice customs and cultures.
In addition, Mr Sithole submitted that the formation of Contralesa in the Province and its recruitment processes also created an expectation that all those who are its members may be recognised as traditional leaders. The Commission also pointed out that the usage of the term “Chief” by members of Contralesa to refer to a senior traditional leader was a further source of confusion and resulted in non-royal family members lodging claims for traditional leadership. Further according to Mr Sithole, after listening to the claimants and studying all documentation they supplied to substantiate their claims, the Commission, ultimately, concluded that the claimants and their relatives did not at any stage in the history of the Province occupy or hold a position of traditional leadership.
Mr Sithole further informed the Committee that the legislative framework for the establishment of the houses of traditional leaders is to be found in the Constitution and the TLGF Act. More specifically in section 212(2)(a) of the Constitution which provides that national or provincial legislation may provide for the establishment of houses of traditional leaders and the use of the word may does not make it compulsory, in terms of the Constitution, to establish such Houses. He also informed the Committee that notwithstanding this there is a National House of Traditional Leaders (NHTL) and PHTLs have been established in all the country’s provinces with the exception of Gauteng (where there are only 2 recognised traditional leaders) and Western Cape (where there are no recognised traditional leaders).
Mr Sithole further clarified that in instances where there are recognised leaders who qualify to form a PHTL but there is no PHTL, it is possible for these traditional leaders to be co-opted into the NHTL by virtue of them operating as a Local House of Traditional Leaders.
In concluding his submissions, Mr Sithole submitted that since only recognised leaders can be members of Houses of Traditional Leaders there is no justification for the establishment of such a house in the Province. He also restated that the criteria for recognition in terms of the TLGF Act is that in order for one to be recognised as a traditional leader he or she must emanate from a particular community that practices traditions unique to that community and that community must, further, have history of observing certain practices.
Further in concluding his submissions, Mr Sithole informed the Committee that if the processes following the introduction of the Khoi-San Bill can be expedited, it will influence the Province to promulgate for the recognition of Khoi-San traditional leadership.
Hon Bapela concluded the overall submissions of the Department. In concluding the submissions, on behalf of the Department, Hon Bapela stated that once the Advisory Committee on Khoi-San matters provided for in terms of Part 2, section 59 of the Khoi-San Bill, is established, it will accord Khoi-San traditional leadership the necessary recognition.
Also in his submissions, Hon Bapela drew attention to the fact that although the Khoi-San are the original inhabitants of the Province, none of them had come forward during the investigations by the Commission to claim recognition as traditional leader. And this was unfortunate because the aim of the Commission was to assist established and de-established traditional leaders in attaining the necessary recognition. He also informed the Committee that the Commission received claims from Khoi-San claimants (belonging to the Griqua and Nama) based in Free State Province however there were no claims received from Khoi-San in the Western Cape Province.
Hon Bapela concluded the submissions on behalf of the Department by emphasising that the Department had submitted the Khoi-San Bill to Parliament within a year of its conception and drafting. He added that the Khoi-San Bill is currently still in National Assembly (NA) and from the NA, the Bill will head to the NCOP and from NCOP it will be taken to the Provinces. He further added that he is of the firm belief that the Khoi-San Bill will resolve, some if not all of issues raised petition because once the Khoi-San Bill is enacted, it is possible that recognised Khoi and San traditional leaders, in the Province, will become members of Houses of Traditional Leaders.
9. SUBMISSIONS BY THE OFFICE OF THE PREMIER, WESTERN CAPE PROVINCE
Even though the Office of the Premier for the Province (Office of the Premier) was invited by the Committee to attend the hearing on the petition and make submissions, it failed to attend the hearing on the petition. That being said, prior to the hearing on the petition, the Committee received two letters from the Office of the Premier in relation to the issues raised in the petition.
9.1 First Letter from the Office of the Premier
The first letter the Committee received is dated 4 May 2016 and signed by Premier Zille. In the letter Premier Zille, informs the Committee that given the unreasonably short notice period neither she nor the relevant Minister (.i.e. MEC Bredell) will be able to attend the hearing.
In the letter Premier Zille further submits that in so much as the TLGF Act recognises traditional leaders in terms of the recognition criteria set out in the Act, the Act does not provide for the recognition of Khoi-San leaders. And it is on the basis of this limitation, in the TLGF Act, that no traditional leaders, traditional communities, traditional councils, Khoi-San leaders, Khoi-San communities or Khoi-San councils are legally recognised in the Province.
Further on in the letter, Premier Zille stresses that traditional leadership is a national competency and until such a time as the enabling legislation i.e. Khoi- San Bill, which was introduced to Parliament by the Minister of Cooperative Governance and Traditional Affairs, Minister Des Van Rooyen (Minister Van Rooyen) is enacted by Parliament, the Province cannot legally entertain the request by Mr Frantz and others who consider themselves to be traditional leaders.
In the same letter, Premier Zille also explains that Mr Frantz instituted legal action against the Province seeking similar relief as that sought in the petition and the matter was argued before a court of law and judgment was ultimately handed down in favour of the Province by Rodgers J. And in the judgment Rodgers J, acknowledged that the enactment of an act constituted a condition precedent to the recognition of Khoi-San traditional leadership by the Province. She also states that despite Mr Frantz seeking leave to appeal the judgment by Rodgers J from the Supreme Court of Appeal, his appeal was dismissed on the basis that it had no prospect of success.
Premier Zille concludes the letter by requesting the Committee to reconsider its decision to hear the petition in so far as it directed against the Province, given that the matter has already been adjudicated by a court of law, in favour of an approach where Minister Van Rooyen is requested to explain and account for the status of the national legislative process and provide time frames for the public participation process in relation to the Khoi- San Bill. She also concludes by stating that should the Committee decide to continue with the hearing she has no objection to requesting the relevant MEC to be in attendance at the hearing provided the Committee extends a similar request to Minster Van Rooyen to attend the hearing.
9.2 Second Letter from the Office of the Premier
In a second letter dated 13 May 2006 to the Committee, Premier Zille informed the Committee that neither she nor any members of the Cabinet will be able to attend the hearing on the petition as the date selected i.e. 18 May 2016, is the date on which the Provincial Cabinet is scheduled to meet for its fortnightly meetings. In the letter Premier Zille further informs the Committee that having considered the content of the petition and taken advice on the issues raised in the petition she finds that there is no rational basis for the Committee to continue requesting the Office of the Premier to attend the hearing on the petition. She further echoes that traditional leadership is a national competence and until such a time as there is national legislation enabling the recognition of Khoi-San leaders, no traditional leaders, traditional communities, traditional councils, Khois-San leaders, Khoi-San communities or Khoi-San councils can be legally recognised in the Province. She concludes the letter by advising the Committee to extract whatever executive undertaking it deems necessary from the Minister Van Rooyen in respect of the progress and status of the national legislative process and timeframes for public participation on the Khoi- San Bill.
10. SUBMISSIONS BY THE PROVINCIAL DEPARTMENT OF LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS AND DEVELOPMENTAL PLANNING
Similar to the Office of the Premier, the Department of Local Government, Environmental Affairs and Developmental Planning, in the Western Cape Province (Provincial Department) did not attend the hearing on the petition despite being extended an invitation by the Committee to attend the hearing and make submissions on the petition.
MEC Bredell did however respond to the Committee’s request to appear before it in a letter dated 13 May 2016. The letter pointed out that the selected date for the hearing on the petition .i.e. 18 May 2016 is the date on which the Provincial Cabinet is scheduled to meet and given that these meetings were scheduled 12 months in advance and are essential for the Provincial Cabinet to perform its function, neither he nor MEC Marais, the MEC of Cultural Affairs and Sport, or any other member of the Provincial Cabinet is available to attend the hearing on the petition.
MEC Bredell further pointed out, in the letter, that in any event his attendance at the hearing will only serve to delay him in performing his executive duties as the only contribution he can make at this stage, is to emphasise that until such a time as there is national legislation enabling the recognition of Khoi-San leaders, no traditional leaders, traditional communities, traditional councils, Khois-San leaders, Khoi-San communities or Khoi-San councils can be legally recognised in the Province. In concluding his letter MEC Bredell undertakes that when such national legislation comes into force and effect, the Provincial Executive as well as the Provincial Department will comply, to the extent provided for in the national legislation in respect of the recognition of Khosi-San leadership in law.
11. SUBMISSIONS BY THE PARLIAMENTARY LEGAL UNIT
The submissions by the Parliamentary Legal Unit were led by Ms P Ngema (Ms Ngema), a Parliamentary Legal Adviser. In her submissions to the Committee Ms Ngema briefly outlined the legal framework for the issues raised in the petition.
In this regard she stated that section 211 of the Constitution recognises traditional leadership in every form recognised and known by customary communities. She further stated that section 212(2)(a) empowers both the National and Provincial legislatures to enact legislation providing for the establishment of Houses of Traditional Leaders at a national and provincial level.
Further according to Ms Ngema Part A, schedule 4 of the Constitution, which sets out the functional areas of concurrent national and provincial legislative competence, includes indigenous law and customary law subject to Chapter 12 of the Constitution. And this renders the subject of traditional leadership and the establishment of Houses of Traditional Leaders a matter that is subject to concurrent legislative competence, particularly, when read together with section 212(2) of the Constitution which stipulates that national or provincial legislation may provide for the establishment of house of traditional leaders.
Also in her submissions to the Committee Ms Ngema informed the Committee that the constitutional legal framework clearly sets out the mandate and obligations expected on the part of both the National and Provincial Legislatures to give effect to the recognition and establishment of traditional leadership institutions in the country, including that of the Khoi-San traditional leadership. She further stressed that in this sense the TLGF Act is the legislation envisaged on behalf of the national legislature in terms of section 211 and 212 of the Constitution.
Ms Ngema also expressed the view that there are two parallel recognition issues that need to be addressed with regard to the recognition of Khoi-San traditional leadership and these issues were not adequately addressed by the Commission. According to Ms Ngema, the first recognition relates to the subjects or persons that a traditional leader claims to be leading and the second recognition issue relates to that which must be done by the state administratively to give effect to section 211 and 212 of the Constitution read together with the relevant provisions of the TLGF Act.
In concluding her submissions, Ms Ngema informed the Committee that in her view the Khoi-San Bill seeks to provide for the recognition and establishment of Khoi-San traditional leadership structures and until such a time that the Khosi-San Bill is enacted, the TLGF Act will stand as the required legislation, from the National Legislature, in terms of section 211 and 212(2) (a) of the Constitution. She also submitted that other Provinces had, in line with section 212(2) (a) of the Constitution, enacted legislation for the establishment of PHTLs but the same cannot be said for the Province.
Ms Ngema concluded her submissions by repeating that the Khoi-San Bill will go a long towards providing the much needed clarity around the recognition and establishment of the Khoi-San traditional leadership structures, which clarity is either lacking or has been misinterpreted in the application and implementation of the provisions of the TLGF Act.
12. OBSERVATIONS AND FINDINGS
The Committee made the following observations and findings in relation to the hearing:
12.1 The Traditional Leadership and Governance Framework Act (Act 41 of 2003) does not provide for the recognition of Khoi-San traditional leadership hence the decision by the National Department to introduce the Khoi-San Bill in Parliament.
12.2 The Khoi-San Bill will accord Khoi-San traditional leadership and communities the necessary legal recognition required in terms of Chapter 12 of the Constitution.
12.3 The Commission on Traditional Leadership Disputes and Claims established during its investigations that there are no recognised traditional leaders in the Western Cape Province in so far as these traditional leaders have not met the recognition criteria set out in the Traditional Leadership and Governance Framework Act (Act 41 of 2003).
12.4 Given that only recognised traditional leaders can be members of Provincial Houses of Traditional Leaders and that there are no recognised leaders in the Western Cape Province there can be no justification for the establishment of a Provincial House of Traditional Leaders in the Western Cape Province.
12.5 The Western Cape Provincial Government recognises the various cultural communities as custodians of their respective cultures notwithstanding that there are no recognised traditional leaders in the Western Cape Province.
12.6 The Western Cape Province has not established a Department of Traditional Affairs and as as such all traditional matters or issues are dealt with by the Provincial Department of Cultural Affairs and Sport.
After deliberating on the submissions made during the hearing on the petition, the Committee made the following recommendations:
13.1 The National Department of Cooperative Governance and Traditional Affairs is to fast track and expedite the passing of the Traditional and Khoi-San Leadership Bill of 2015 (Khoi-San Bill), as the Khoi-San Bill aims to, inter alia, provide for the recognition of traditional and Khoi-San communities and Khoi-San traditional leadership; and
13.2 The National Department of Cooperative Governance and Traditional Affairs is to encourage and foster co-operative governance amongst Khoi-San communities and the relevant Government departments in lieu of the passing of the Khoi-San Bill.
Report to be tabled for consideration.
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