National House of Traditional Leaders briefing, in presence of Deputy Minister

Meeting report

Opening remarks

Mr Obed Bapela, Deputy Minister of Co-operative Governance and Traditional Affairs thanked the Committee for the invitation and welcomed the traditional leaders present at the meeting. The legislation that enabled the establishment of the National House of Traditional Leaders (NHTL) was passed and assented to in 2003. He commented that the country was celebrating 21 years of democracy, Local Government was celebrating 15 years of democracy, and the NHTL was only celebrating 12 years since its establishment.

Kgoshi Pontso Maubane, Chairperson, NHTL introduced the Chiefs representing their respective provinces in the NHTL who were present at the meeting. The NHTL was an institution which was committed to providing efficient leadership and delivery of services to all traditional leadership structures.

National House of Traditional Leaders (NHTL) briefing

Mr Abram Sithole, Secretary/ Chief Executive Officer, NHTL indicated that the outline of the presentation would focus on the role of the NHTL in promoting socio-economic development in traditional leaders areas, capacity of the House to deliver on its mandate in terms of the Act, interface between traditional leadership and municipalities and the readiness of traditional leadership for the 2016 local government elections. He provided a background of the NHLT. The NHLT was made up of 23 members, 20 members were elected by their provincial houses and two were chairpersons of Traditional Councils.

The NHTL derived its mandate from sections 11, 13, 14 and 15 of the National House of Traditional Leaders Act, No 22 of 2009 (the Act). The Act required the House, amongst others, to cooperate with Provincial Houses on a variety of issues such as land development, rural economic development and promotion of culture, traditions and customs, and to engage the kings at least twice a year to discuss issues of development within the institution, promote unity between kings and their communities and rural community development. The mandate of the NHTL required it to:

•Advise government on policies and legislation impacting on traditional leadership

•Complement and support the work of government at national level and support provincial houses to advance the community needs through Traditional Councils

•Hold quarterly meetings with the Provincial Houses to give account on its work

•Engage with the Provincial Houses to discuss progress on matters relating to the general interest and welfare of traditional communities

•Promote social well-being and welfare of traditional communities

•Participate in nation building, transformation and adaptation of customary law and custom so as to comply with the provisions of the Bill of Rights.

He indicated that the only province which was not represented in the NHTL was the Western Cape. The KhoiSan were not represented yet because the Traditional and KhoiSan Leaders Bill was still in process. He indicated that traditional leaders were involved in various developmental programmes as part of the social well-being of their communities, these included participation and promotion of; stock farming, soil utilisation, capacity building for traditional leaders, tourism, hospitality development projects, mining, farming and industrial development, youth debates as part of the promotion of heritage and tradition.

The NHTL was also committed to the development of youth, women and people with disabilities so as to curb the spread of HIV and AIDS, joblessness and general participation in improvement of governance in rural areas. The NHTL, in partnership with the Department of Agriculture, Forestry and Fisheries (DAFF), was promoting food security and revival of agricultural cooperatives in rural communities of Mpumalanga and Limpopo provinces. The DAFF also provided seedlings and garden tools, fertilisers and citrus trees to some communities.

The main challenge was that the NHTL was not adequately capacitated. The Department of Traditional Affairs (DTA) was also incapacitated and the budget allocated to the DTA did not meet the targets for the actual work of the House. With regards to the interface between traditional leaders and municipalities he indicated that the Minister had established two task teams which were headed by the Deputy Minister - these were the Task Team on Support and the Task Team on Transformation of the Institution of traditional leadership. Section 81 of the Municipal Structures Act (MSA) provided for the participation of amaKhosi in Municipalities. This participation, however, did not add the required value as most discussions took place in communities where traditional leaders were not represented. Municipalities should therefore delegate some functions to traditional councils, taking into consideration the customs of the various communities. Participation of traditional leaders needed to be from a community level rather than plenary only.

Mr Sithole outlined the readiness of traditional leadership for the 2016 local government elections. Traditional leaders had always encouraged people to register to vote. However, some challenges that faced the NHTL such as those pertaining to funding, non-approval of the Traditional Courts Bill by Parliament and the non-transformation of Traditional Councils may have a negative impact on the upcoming elections. He indicated that the training and induction of municipal councillors needed to take place in the same room with traditional leaders, so that the myth that there was fighting over turf and responsibilities between the two bodies could be addressed. Municipalities also needed to provide capacity building to traditional leaders and councillors, so that they operated with the same understanding and knowledge.

The NHTL believed that it was on the right track to fulfilling its mandate. However, this Committee could assist it by talking to National Treasury regarding the allocation of resources to the House.

Discussion

Mr B Bhanga (DA) welcomed the royal leaders present and said people recognised and respected the role played by traditional leaders. He said that they were also recognised by the Constitution. Some difficult questions may be put as part of the oversight role, but such questions should not be seen as a criticism of the institution, nor an indication that anyone might not want the NHTL to exist. He said the NHTL should be pushing government to start urgent dialogue on the role of traditional leaders in relation to governance. The country needed to engage in such dialogue very quickly, to deal with the unnecessary misunderstanding between the Constitution and those who monitored the implementation of the Constitution and the NHTL. South Africans had for a very long time avoided such discussions, and had "patronised traditional leadership" for a very long time.

Secondly, Mr Bhanga believed that there needed to be discussions around the funding framework for traditional leaders nationally. He indicated that the King of the amaXhosa raised a very important point when he indicated that the level of funding for traditional leaders varied; one kingdom had an allocated budget from government while others did not. Some kings were funded differently from others. For example, the Zulu King received the most money in comparison to other kings and the NHTL had not been vocal about this disparity.

Mr Bhanga asked if the NHTL had looked at global case studies on how other countries were dealing with issues such as patriarchy and funding models? He indicated that the issue of traditional leaders could be traced back to the times of evolution; therefore issues around traditional leadership were not new. How should the country approach traditional leadership being involved in business and how did these affect local community members who also wanted to take part in community business initiatives? What plan did the House have for dealing with fraud and corruption? He said the King of amaXhosa took an oath to the Constitution and this indicated that the King respected the Constitution and accepted that he was not above it. No South African was above the Constitution. Were all Kings required to take an oath to the Constitution when assuming their positions? Also he said it was important that traditional leaders understand that they did not serve political parties; it was problematic that some traditional leaders were taking political sides.

Mr M Matlhoko (EFF) agreed with Mr Bhanga that as long as there was no equality in the budgets of traditional leaders there would remain problems. Government should stop being tribalistic, and government needed to stop taking sides. Kings and Chiefs were not being treated equality, and there were no clear policies from government to give direction on the matter. The issue of land was also a challenge. Resources provided by government needed to be diversified.

Mr Matlhoko noted that the Khoisan were the indigenous people of South Africa and they should not be treated like outsiders. The Khoisan were a tribe in their own right and they needed to be given this due status, and this process should not be confined to Bills and legislation in their own country.

Mr K Mileham (DA) thanked the NHTL for a comprehensive presentation which was very well structured. He referred to the NHTL’s mandate, which spoke to investigating matters referred to the House by landless traditional leaders. He asked what qualified a person to become a traditional leader - was it because of land ownership, or because of representing a community? Was there a direct link between being a traditional leader and owning land?

Mr Mileham asked about the Constitutional Court cases between Community Property Associations and traditional leaders, and said this was a concern which needed to be addressed. He was also worried that traditional leaders seemed to be taking on executive functions which were not theirs to take on. Traditional leaders had a heritage function stipulated in the mandate. He was pleased to see the partnership between the NHTL and the Department of Agriculture, Forestry and Fisheries, which would promote food security through seedlings and tools, but asked where did the monitoring and evaluation function of these projects take place?

Mr Mileham asked for more detail on the comment that the traditional leaders and Department were not fully capacitated to deliver on the mandate. He said the budget allocated to the NHTL did not meet the targets according to the presentation, but wanted to know where exactly was the NHTL underfunded, and how much it needed, and what programmes were underfunded?

Mr Mileham had a lot of concerns on the interface between traditional leadership and municipalities. He used to be a Councillor at Buffalo City, which had 100 Councillors and 18 traditional leaders sitting on Council. Traditional leaders sitting on a Council did not have a vote, and he felt they should never have a vote. The Constitution indicated that decisions were made by an elected Council, and traditional leaders were not elected Councillors, but served as an advisory or consultative body only. With regard to municipal governance, he said there was no one-size-fits-all system for municipalities; there were various models of municipalities, and various categories of municipalities, such as district, metro and local municipalities. It was therefore important that culture and heritage be taken into account, but the systems of governance should not be changed to accommodate traditional leaders. Traditional leaders could not be the executive of government because this was not what was stipulated in the Constitution. He thus disagreed with the sentiments in the presentation which stated that municipalities needed to delegate some of their functions to traditional leaders. Traditional leaders could not be tasked with building roads and running local clinics, these functions were the responsibility of the municipalities. He agreed that there was an attitudinal problem between Councillors and traditional leaders.

Mr Mileham also questioned the statement that some of the challenges faced by the NHTL could be a hindrance to the upcoming local elections, asking why would this be the case. With regards to the training and induction of municipal councilors with traditional leaders, he wanted to know if this did include all traditional leaders in a community or was this limited to those traditional leaders who served on the Council, and whether this was something that would happen every five years. He agreed that training on how these two bodies should work together should be facilitated.

Mr C Matsepe (DA) said that ,for traditional leaders to be respected by political leaders and by their subjects they needed to agents who upheld the Constitution and the Bill of Rights themselves, instead of trying to act against the new order. Some people had lost respect for traditional leaders because they aligned themselves with certain political parties and in some cases perceived themselves to be above the Constitution. Traditional leaders needed to respect their subjects. He pointed out that land belonged to a whole community and not to the traditional leaders, and the community needed to be consulted in whatever developments were to take place on the people’s land. What oversight role was the NHTL conducting over the work of traditional leaders in their communities? In addition some traditional leaders were being held to ransom by their own communities who were seeking to protect their own interests, especially on matters relating to customary law.

Mr N Masondo (ANC) said the Committee had been eager to meet with traditional leaders and was appreciative of this meeting. It was disheartening to hear that there were programmes on which the NHTL could not embark, due to insufficient funds. With regard to development, he welcomed the work which the House was doing around mining and farming, which ultimately improved the lives of ordinary people. Traditional leaders assisted government in leveraging resources for local community development, especially when it came to reaching rural communities that government still could not reach. He said some of the work being done by the NHTL, such as facilitating debates among young people on traditions and cultural practices, may seem intangible to those who resided in urban areas, but such engagements reinforced good cultural values. With regards to the upcoming local government elections, he said the Independent Electoral Commission (IEC) needed to be assisted in doing its preparatory work for the 2016 elections.

Mr A Mudau (ANC) thanked the NHTL for the presentation. He asked what kind of support could the Committee provide?

Mr E Mthethwa (ANC) asked that the NHTL explain the allegations which were always being made against King Zwelithini that he was "above the Constitution" and  "a law unto himself" and "is getting more funding than any of the other kings". These statements needed to be challenged. There was another perception that King Zwelithini initiated the xenophobic violence which took place throughout the country a while ago. He asked who were the main drivers of these local community projects? He said it would be interesting for the Committee to conduct some oversight on some of these projects to see how the local people were benefitting. He commended the NHTL for the work and collaboration the House was doing with the youth in the respective communities. He said the KhoiSan should not be left outside the NHTL and its processes, and that while the legislative process was underway the KhoiSan could be given an observer status.

Mr M Mapulane (ANC) also welcomed the opportunity to engage with the NHTL. He said during the next meeting the strategic plan of the NHTL needed to be presented to the Committee, together with the Annual Performance Plan. The Committee needed to track the performance of the NHTL in relation to its plans and targets. The institution of the NHTL was a product of the decisions made by government during the interim Constitution, solidified in the 1996 Constitution. The country accepted that the institution of traditional leadership was part of the South African society, because the government acknowledged the contributions of traditional leaders in the liberation of this country, yet their existence continued to be contested by some. Traditional leaders, whilst contesting a continued position in society, must bear in mind the phenomenon of urbanisation, which could be a threat to the institution. Research indicated that in the past 10 years 60% of the country’s population was residing in rural areas, but currently this had dropped to 40% and the National Development Plan (NDP) and the projections by Statistics South Africa suggested that by 2030, 70% of the country’s population would be living in the urban space. This would challenge the institution and the relevance of traditional leadership. Society was continuously modernising.

He noted that the issue of land had not really been addressed in the presentation. He believed that the 1913 Native Land Act should have been discussed in the presentation because the NHTL needed to be at the forefront in championing the changing of such colonial legislation.

With regards to the KhoiSan, Mr Mapulane said these people were the indigenous people of this country and more needed to be done for them. Their existence should have been long recognised, and he agreed that there should be some interim measures in place while the legislation was being finalised so they could also participate in the NHTL. In relation  to the interface between traditional leaders and municipalities, he said the issue of traditional leaders participating in the contestation of elections was a controversial matter, and advised the NHTL to reconsider. 

The Chairperson thanked Members for their engagements and said there would still be many interactions between the NHTL and the Committee. Traditional leaders were "not going anywhere", despite the challenges of urbanisation. He said some of the points which Members were raising would need to be continued in further discussion. Not every question raised would be exhaustively answered in this meeting. He suggested that the Department of Traditional Affairs host a workshop to continue some of these discussions.

Kgosi Maubane responded to the concerns raised around the urban phenomenon. He said the NHTL bridged the gap between urban and rural areas by taking amenities to rural communities. He agreed that people were attracted to the cities, especially by job opportunities; but by improving on the available resources in rural areas, especially around agriculture and industrialisation, there could be a major impact in curbing urbanisation. On the concerns raised around the KhoiSan he said the NHTL was working with the KhoiSan and the facilitation of KhoiSan participation was currently under way. With regard to the work of the IEC he said the IEC was not applying uniform ways of treating amakhosi; there were serious disparities. Certain kings received more funding and support from the IEC than others; this was a matter which the Committee could investigate.

With regard to the relationship between traditional leaders and municipalities, he said the country needed to move away from viewing a traditional leader as an individual because the King worked within the traditional council. Therefore it was expected that there must be a relationship between the traditional council and the municipal council, in an attempt to harmonize the two bodies. Efforts were being made to look at the amendments of Section 80 of the Municipal Structures Act, to give powers to traditional leaders for participation. This amendment would improve this relationship. He said a municipality in a rural area could not operate the same way as a municipality in an urban area, and whatever model was adopted by government thus needed to take into consideration the traditions, customs and values of that particular community. He was grateful for the contribution of Deputy Minister Bapela who had done a great deal in transforming the institution and moving it forward. The Traditional Courts Bills was one which the NHTL would love to discuss with the Committee.

Inkosi Mahlangu responded to the questions around the interface between traditional leaders and municipalities. He said political parties that were elected at local government level would have to work very closely with traditional leaders in delivering services to people. He reiterated the fact that traditional leaders should be viewed within the structure of a traditional council; they were part of the country’s dynamics and should therefore not be treated as outsiders. With regard to the NDP he said as much as there were issues with which the NHTL agreed, there were also some matters which the NDP had not looked at, including the fact that many people were slowly going back to the rural areas. Some people were living between urban and rural areas; working in urban areas but building homes in rural areas, and these people needed to be catered for when they went back to their rural communities. The NHTL was committed to making itself even more relevant.

He said traditional leaders were trying by all means to be non-partisan. However a lot of traditional leaders were being arm-wrestled by certain factions. He said the Strategic Plan and the Annual Performance Plan would be presented to the Committee at a later stage. He indicated that traditional leaders were not interested in taking over the role of municipalities; rather they were looking to work with municipalities to deliver services to local communities. He agreed that the issue of land was a very important one. He said the NHTL was currently planning a land summit where various stakeholders would be invited to debate around the issues of land. Traditional leaders were working on claiming land on behalf of their communities, traditional councils were government entities and they were constantly being audited by the Auditor-General. 

He agreed that the NHTL was calling for the standardisation of the treatment of traditional leaders. The matter of KwaZulu Natal was a problem which the country inherited, because in the homeland system traditional leaders were treated differently. However the NHTL was slowly coming up with a framework for the standardisation, which would bring respect to the institution as a whole. He indicated that the NHTL was operating with a budget of R49 million, and even if the House was to accommodate the KhoiSan, there would not be enough funds for that. The NHTL was working with the KhoiSan to come up with interim interventions to address the matter.

Chairperson Mdakane agreed and said some of these matters were discussed during the Convention for a Democratic South Africa (Codesa) 1 and Codesa 2. The country experienced some serious problems in the build up to the first democratic elections, and there were then negotiations which resulted in the current situation in KwaZulu Natal. How to reverse that was another matter, and KwaZulu Natal was working on rectifying this matter. He indicated that another area of concern was that of gender and inheritance; there was only one Queen in the country and this has been raised as a concern.

Inkosi Themba Mavundla said during Codesa 1 and Codesa 2 there were submissions made by the institution of Traditional Leadership, and some of those submissions were captured in the interim Constitution, but were left out of the final Constitution. With regard to the concerns around the Zulu King Zwelithini, he said although, in terms of the traditional protocol, he may not discuss issues about the royal household, the Committee has the right to organise a meeting with the King, the royal council and the Premier of the province to discuss such matters. He did not want to be quoted wrongly.

He said he did not believe that democracy and modernisation were intended to eradicate customs and traditions. Democracy should not wish away Africanism and ubuntu, and a democratic state also needed to respect multiculturalism.

On the question raised on unfunded mandates he agreed that this was a problem created by government, especially in relation to traditional leaders. For example, Traditional Councils were introduced by government but were never funded. It was therefore impractical for government to expect these programmes to be successful when they were not being funded.

Inkosi Mavundla explained that it was not possible to separate land and kingship; Kings have land and preside over communities.

He believed that Government needed to admit that it was not doing justice to the NHTL. After the unbanning of political parties, and during negotiations, many studies were undertaken on various countries on cooperative education, before any legislation was passed by Parliament. This, however, was an ongoing process. Ghana was one of the countries which had a good model for traditional leadership. With regard to the role of traditional leaders at a local government level he said traditional leaders could not be silent when they saw corruption and/or malpractice taking place in their communities. He agreed that municipalities were sometimes very corrupt, in some cases projects were introduced and funded but no results were seen, and there was no person evaluating the successes of these municipalities. No traditional leader should be silent when he saw corruption taking place, and this was one of the reasons why there was “fighting” between these two bodies. Traditional leaders could not be expected to be aloof when their communities were not being served.

With regard to land, he said the talks were on 25% of land in rural communities, whereas there was 75% of the land still vested in the hands of private farmers. The Community Property Associations were being established in communal land areas, and in the areas where the land used to belong to traditional leaders, that was being taken away and given to private individuals. 

Kgosi Maubane also responded to the questions around the disparities between allocations to Kings. He he said there was determination for remuneration of all Kings at a national level, however provincial competency also needed to be taken into consideration. Provinces determined the level of support they would give to a King. KwaZulu Natal province supported the King of the Zulu nation from its own budget. It was therefore up to the other provinces to support their Kings the way they deemed fit.

The Chairperson said all the Kings received the same allocation at a national level but provinces added to this, depending on their available resources. He said this was a very useful explanation. He said Members should also bear in mind that there was only one King in KwaZulu Natal, whereas other provinces had a number of Kings.

Mr Mthethwa said King Zwelithini was not a law unto himself and this needed to be addressed and challenged. It was a serious insult.

Mr Bhanga said a national framework needed to be established to guide provinces in this regard. Many Kings were raising the same issue, particularly the King of amaXhosa. The Codesa agreement also spoke to issues around the Ingonyama Trust, which was established before 1993.

The Chairperson reiterated that there was a standardised national framework for national allocations for Kings and Queens, but provinces were allowed by the law to add to these allocations based on their provincial competencies.

Inkosi Mavundla said no King was paid more than the other at a national level, but the provincial benefits varied. For example, in Limpopo, Kings were given cars when others in other provinces were not.

The Chairperson said these issues would be addressed in upcoming debates. Provinces could not be told what to do by the national government, as this was a provincial competency. Chiefs in the Eastern Cape earned more than chiefs in other provinces for example. No individual was above the Constitution, whether a King, Chief or Councillor. The Constitution had created an environment for traditional leadership to be included in the Constitution.

Deputy Minister Bapela said information on the allocations from the DTA to the NHTL, and what those funds were spent on, would be presented to the Committee at a later stage. With regards to the interface between traditional leaders and municipalities he said part of the work of the Task Team was to look at the Municipal Structures Act and the competencies of these two structures. He said he had been engaging traditional leaders, urging them to not take part in the voting, because this would make them political because the robustness which came with voting would follow them. Traditional leaders needed to remain the voice of reason within municipalities. He believed traditional leaders needed to be given more responsibilities within municipalities, but without the vote. The developmental agenda was one on which which both the traditional leaders and municipalities constantly needed to be engaging. He indicated that there were 11 Kings, but that these would still be verified when the KhoiSan were added to the House. KwaZulu Natal had one king, Eastern Cape had three (Thembu, amaXhosa and amaMpondo), Limpopo had three and there was one for the amaNdebele, the Swazi, Shangaan, Tswana and Basotho did not have any kings because their kingdoms were in neighbouring countries.

He agreed that the socio-economic issues would be discussed in another meeting. He said mining was also becoming an area of interest, as more mineral resources were being discovered in rural communities across all provinces. However, this came with new challenges. He said modernity, democracy and the Constitution could not do away with culture, and having a national identity as Africans was very important. The unity and diversity of the country also needed to be taken into consideration when such discussions took place. However, there were some cultural practices which needed to be transformed and some which needed to be done away from because they were no longer acceptable as they could not be reconciled with the Constitution and the Bill of Rights. Some were seen as abusive - and he cited examples around ukuthwala and virginity testing as some of the cultural practices which had come under the spotlight. The rights of children needed to be protected.

With regard to land, he said more land claims would be processed and this would be a big issue for the Committee. The KhoiSan were already claiming the whole of South Africa by saying that wherever there was KhoiSan art on the mountains or rocks in an area, that must be deemed to be an area where they had originally resided, especially in Mpumalanga and the North West. But this was not being done in a hostile approach. Tender rights were also another issue under concern. He agreed that the remuneration of kings and traditional leaders was the same, however the benefits varied from province to province. The DTA was part of the Task Team which was working with provinces to ensure that there was some level of standardisation between provinces. However the KwaZulu Natal government was an inherited situation. He agreed that all kings were complaining about this and the DTA was working with all Premiers to address this.

The Chairperson thanked the NHTL and the Deputy Minister for the briefing. He said there would be many engagements between these bodies and the Committee to discuss various policies. Other committees would also be invited, such as the Portfolio Committee on Rural Development and Land Reform. He repeated that not all the issues could be addressed and resolved in one meeting. He said it was a very strange thing that the KhoiSan were not part of the African structure because they were the indigenous persons of this Continent. The KhoiSan needed to participate fully in all the programmes of the NHTL. South Africa was a country with multiple identities.

The meeting was adjourned.