Traditional and Khoi San Leadership Act implementation; with Deputy Minister

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Cooperative Governance and Traditional Affairs

08 April 2021
Chairperson: Ms F Muthambi (ANC)
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Meeting Summary

Video: Portfolio Committee on Cooperative Governance and Traditional Affairs, 08 April 2021
Traditional and Khoi San Leadership Act

The Committee received a briefing from the Department of Traditional Affairs in a virtual meeting on the implementation of the Traditional and Khoi San Leadership Act, as well as progress on the implementation of the resolutions of the 2017 Traditional Indaba. The Act had received opposition from some civil society organisations, who questioned the legality of the processes and were concerned over who benefited from business partnerships.

The Traditional and Khoi-San Leadership Act came into force on April 1 after the President signed the Bill into law. It provided for the recognition of Khoisan traditional leaders and their integration into existing traditional leadership structures. It empowered the Minister of Cooperative Governance and Traditional Affairs to intervene at the provincial level if a premier failed to resolve leadership disputes. The Act also tinkered with the traditional leadership's representation in government.

Members did not mince their words as they expressed their displeasure with the Department for not finalising the national plan. They castigated the Department and called for improved service and relations between it and the traditional authorities.

The traditional leaders who attended the meeting expressed their disappointment with the manner in which the Department treated traditional leaders. They also charged that it had not consulted them on the presentation to the Committee.

Meeting report

Chairperson's opening remarks

The Chairperson said that the Traditional and Khoi-San Leadership Act (TKLA) had finally come into effect on 1 April, after it was announced by the President on 24 March at the opening of the National House of Traditional Leaders. She said the Khoisan community had waited long for recognition and that the Committee had also continuously raised their concerns about the continued delays. 

Some "things" still had to be sorted out, such as remuneration in terms of the remuneration policies.

She also recalled that a new provision allowed the Minister to intervene in leadership disputes below the level of kings and queens at the provincial level, in consultation with the relevant premier.

The Committee had been concerned with the amount of disputes, where government or the Department seemed to be at the centre of the confusion. She called on the Department to take responsibility for their decisions.

The Chairperson also noted the unsatisfactory implementation of the 2017 Indigenous and Traditional Leadership indaba. The Department was supposed to have provided an action plan on the 2017 resolutions, yet this had not happened. As the relevant competent authority on traditional affairs, it had to take the lead and coordinate the inputs of the other government Departments. 

She informed the Department that they had created the impression that they liked to shift responsibility. She noted that the Department had required clarity, and therefore called on the Deputy Minister to render opening remarks.

Deputy Minister's opening remarks

Mr Obed Bapela, Deputy Minister of Cooperative Governance and Traditional Affairs (COGTA), said the Department had come to account on the Traditional and Khoi-San Leadership Act that had been in the pipeline for more than five years. 

He said the Department had to the best of their ability collated information on the 2017 Programme of Action, and expressed his surprise that the programme had not yet been distributed to Members, as he had thought that this had already been done. He said the Director-General (DG) would have to provide an answer to that question.

The indaba had been a landmark event that had brought traditional leaders together with other role-players from business, civil society and Chapter 9 institutions, to name but a few. It had generated very diverse discussions and out of these, four thematic areas had been identified. These four thematic areas had then been constituted into four commissions that had eventually led to 17 resolutions. The indaba had been a reference point of what should happen in the traditional affairs sector, and served as the national development plan for traditional leadership in the country.

The Act had taken almost six years to process through the parliamentary system, and had also faced several legal threats. Several civil society organisations had written to the President to express their opposition to some provisions in the Bill, and this had led to the President instructing his lawyers to review the Bill. After these consultations, the Department had advised the President to sign the Bill into law, which he had eventually done.

To date, no one had gone to court, and this had led to the assumption that the civil society organisations seemed to have been satisfied. He blamed elements in the media for the negative portrayal of the Act, as well as traditional leadership in general. He had issued an instruction to the communications team within the Department to address these falsehoods.

He emphasised that the sector should enjoy its role within the democratic space.

Director-General's inputs

Mr Mashwahle Diphofa, Director-General, Department of Traditional Affairs, said that the Department was appearing  before the Committee to present on the implementation of the 2017 Indigenous and Traditional Leadership indaba resolutions, as well as the Traditional and Khoi-San Leadership Act.

He commented that the Act had finally been enforced since 1 April.

On the 2017 Indigenous and Traditional Leadership indaba resolutions, he said that the action plan remained a living document which required coordination or inputs from various role players. The four thematic areas that had been identified, such as land, the economy, social cohesion and legislation, required inputs from other Departments.

He added that the document would be updated with all of the latest developments.

National House of Traditional Leaders' inputs

Inkhosi Sipho Mahlangu, Chairperson: National House of Traditional Leaders, said that the House would follow more or less the same process as the Department had. The House had been excited about the recognition of its Khoisan colleagues, and that the Act had finally been promulgated on 1 April. He expressed his surprise that some provinces had already implemented the Act, whereas another -- KwaZulu-Natal (KZN) -- had already tried to amend section 81 of the Act.

He said that the House had been worried about the lack of reconstituted traditional councils. 

The Act would help with this matter. The Framework Act had been devised to address this matter, but it had been promulgated on the same day as the TKLA.

He expressed his disappointment over the slow pace that legislation which affected traditional leaders had been subjected to. He also lamented the Department's budget, which had not seen an increase in years. The House had raised its concerns with the implementation of the Framework Act, but at least it had been informed that this Act had been costed.

He urged Parliament to stop entertaining detractors, who always seemed to produce the same concerns.

Discussion

Mr G Mpumza (ANC) said he understood that a certain number of civil society organisations had expressed their intention to challenge the TKLA. A specific organisation that he was referring to was affiliated to the University of Cape Town, which had indicated its intention to challenge the legality or constitutionality of the Act. In view of this fact, had any contingency plans been devised by the Department to mitigate any legal challenges that might arise?

Mr K Ceza (EFF) recalled that in the presentation of the National House of Traditional Leaders (NHTL), it had been noted that a committee had been established with the stated aim of women's empowerment in the sector. Given the deprivation that marginalised groups, such as women and the LGBTI suffered in communities, how would this Committee facilitate respect, especially in relation to traditional government systems and the Framework Act?

On land redistribution, he noted that the most fundamental issue for him had been that the State should be the custodian of the land, as with the country's mineral resources. This in essence meant the end of the failed land redistribution programme, which entrenched white minority landownership dominance over the black landless majority. He wanted to know what clear roles had been defined in the recognition of questionable leadership versus land redistribution. 

He said some South Africans who had received parcels of land as part of the land redistribution programme had in some instances used the land as surety to obtain loans from banks. When these land owners defaulted on these loans, the land had been taken by the banks.

He added that land had preceded all of humanity, and that the land should be preserved for future generations under the protection of future kings and queens. Even if people had no money, they would still own an asset in the form of a leasehold under the custodian system.

On the leadership disputes, he had been made aware of a dispute in the Mangweni community, where the Department had appointed the wrong person as Inkhosi.

He called for the expeditious resolution of succession disputes, as communities invested money, resources, education, wisdom and emotion into their royal leaders, only to have that recognition rescinded. He lamented the irreparable harm that this had caused.

He asked what formula the Department used to determine who the rightful heir was to a throne. He asserted that in the Collins Chabane District Municipality, another illegitimate person had been installed as an Inkhosi on 22 September 2011. Since that illegal enthronement, the person had continued to receive a salary from national government. The Department had been willful and deliberate, and had ignored the plight of the community. He wanted the Department to explain this. What did it intend to do to conclude this matter, and how would it ensure respect towards rural communities?

He also requested clarity on the shortlisting of the panel that had been announced in the presentation, and expressed his concern with the lack of transparency.  The Department could at least have informed the Committee of the names on the shortlist. His comment was made in light of the tendency for corrupt activities to infiltrate such practices.

Mr G Hendricks (Al Jama-ah) thanked the Chairperson for her leadership of the Committee, as well as for the implementation of the Traditional and Khoi-San Leadership Act. 

Al Jama-ah had focused on the KLTA for quite some time, and the party had already appointed a Khoisan princess as a parliamentary constituency officer. She had taken Parliament to the Khoisan people and had brought the Khoisan to the constituency office.

Many of his constituents had links with the Khoisan, and the party would provide a platform for engagement with the various Khoisan Houses across the country. The party also intended taking Parliament to these excluded and marginalised people.

He observed that the One Marriage Bill that government had formalised in conjunction with the South African Law Reform Commission had brought all marriages under one Act. Khoisan leaders would be able to perform or conduct marriages and register these marriages with the Department of Home Affairs. 

He added that Parliament should not allow colonial institutions to dictate the terms of legislation.

Ms H Mkhaliphi (EFF) said she would like to get an understanding from traditional leaders about the role of women, as mentioned in the structure. She recalled that at the last meeting, the Committee had discussed initiations, and she wanted to know what the role of the gender committee had been in this process.

She recalled that with the implementation of the Act, a provision had also been incorporated into the new Act that empowered the Minister to intervene at the provincial level, where a premier had failed to make a determination. She wanted to know whether the Department had been of the view the provisions would mitigate or be effective in dispute resolution.

She said that people had been killed over succession disputes and that in the area of Stanger, a certain councillor had not respected traditional authority. What role had been identified in the case of a dispute between a councillor and a traditional leader? She informed the Committee that this unresolved dispute had now led to the murder of a traditional leader.

She wanted to know how this Act would resolve disputes between traditional authorities and European descendants. 

Ms Mkhaliphi also recalled the threat by the University of Cape Town to take the Act on legal review.

Ms P Xaba-Ntshaba (ANC) asked whether the Department had any plans to conduct audits of the traditional councils, once they had been constituted. Who would conduct these audits and what would the guidelines be?  Would there be audit committees, with external and internal audits, as these entities were not necessarily covered under the Auditor-General's (AG's) powers.

Mr F Jacobs (ANC) thanked the Chairperson for the debate and said that he appreciated that Members had passed the Act. He said that the communities on the Cape Flats and the various provinces, such as the Eastern Cape, the Northern Cape and the Western Cape, had waited for a long time for implementation of this Act, and that he looked forward to the implementation framework that would give guidance to constituents. 

The Chairperson recalled that slide 13 had referred to the audit that had been ordered by the then Minister on the current recognised headmen and women in South Africa. The provinces had been requested to indicate their readiness to conduct such an audit, but to date only the North West and KZN of the nine provinces had responded. The request had been sent out last April, and a year later the Department was still following up. She asked when it intended to conclude this, and castigated its inaction during the year that had lapsed, adding that the Committee had not taken the admission of continued follow-ups as sufficient. 

She recalled that slide 18 had referred to the implementation workshops that the Department had organised for 4 and 5 February, and that letters had been written to the various provinces on the need to attend these workshops, yet only the Western Cape and the Northern Cape had indicated their intention to attend. She asked what would happen to the other seven provinces that had not attended the workshop, and what the current situation was. 

If the Committee were to leave the matter as it was, more problems would be created, especially with how provinces decided that they would implement the "Back to Basics" guidelines. She emphasised that South Africa was not a federal republic.

The Chairperson questioned whether the Department had costed these Acts, as the presentation had not addressed the cost implications attached to the Act. She also called on the Department to finalise the Traditional Leadership and Governance Framework Act, which had been only partially implemented.

She added that the presentation had been very vague on dispute resolution, and asked how the Department aimed to address this challenge. The politicians had done their work in passing the relevant legislation, and it was now up to the bureaucrats to ensure its implementation

Department's response

Ms Shoki Mogaladi, Deputy Director-General (DDG): Research Policy and Legislation, Department of Traditional Affairs, referred to the intervention of the Minister with regard to dispute resolutions and what the Act provided for on the role played by the Department, and said that national government exercised responsibility over disputes related to kingships and queenships. Provinces assumed responsibility for dispute resolution from the level of headman down.

She said that one regulation the Department had identified over the past few years, while the others had been more complex in nature, and were related to the internal disputes. After the lessons that had been learnt, the Department had been advised of the root causes of succession challenges, and the Act had been clear on the line of succession. The Act had provisions that allowed for new regulations. The decision on who should succeed or who was an heir was solely the responsibility of the relevant royal family. Once the royal family had identified the legitimate heir to the throne, the President would recognise the king or queen, and the premier would recognise all other positions below that of king and queen. 

She lamented that some disputes had ended up in the courts -- the Department preferred that these matters be dealt with outside of the courts.

The DDG was adamant that the measure addressed the issues that had been identified. Even though the Minister had the national competency to intervene in relation to kings and queens, the Act provided for her to intervene at the provincial level, where a premier had failed to act.

On land disputes, she said that the Act that had been enacted did not address issues that pertained to land reform and disputes. The Department of Agriculture land Reform and rural development was the responsible authority, and had mechanisms in place that dealt with land redistribution as well as disputes. 

Regarding transparency in the appointment process of the Commission on Traditional Dispute Matters, she indicated that the legislation provided the Department with the mandate to place the necessary adverts in the government notices. It had called for nominations from the public of suitable candidates to serve on this Commission.

She emphasised that it had been a public invitation, and in terms of the provisions in the Act, the Minister had been empowered to constitute a selection panel, which would then make a recommendation to the Minister. Before the determination of a decision, the Minister would also consult with the relevant premier before reaching a decision.

She said that it was not necessarily a case of being first or second, as the Department continued with engagement. It would once again follow up and write letters to the provinces to draw their attention to comply. It had not been able to develop a national plan, despite the follow-ups, and two provinces could not constitute a national view in terms of a national plan.

At this juncture, the Chairperson interjected and recalled the comments made by the DDG about what had transpired in relation to the national plan. She took serious issue with the lack of initiative, and the fact that the DDG had said that the same ineffective communication method, which had proved to be insufficient, would be used.

She decried the fact that since April 2020, there had been no responses from the seven other provinces, and that now the DG had said that the Department again would be writing another letter to remind provinces.

"What if they do not respond?” she asked, pointing out that it had already taken a year. The DDG had not even been able to address the question about intervention mechanisms.

The DDG replied that unfortunately on" this one," she might be unable to give an answer, as the issue at hand pertained to the budget. The Department had requested provinces to include budgetary allocations for the implementation of the Act. Provincial budgets had to be allocated for the Act to be operationalised and implemented in the respective provinces. 

She added that going forward, the Department would finalise the plan themselves and then call a national workshop with all the provinces. At present, the Department had not assigned dates nor had it finalised the plan, as the provinces had not yet indicated whether they had allocated the required budgets.

She conceded that this might not have been a satisfactory answer, and once again stressed that the plan would also be taken to the technical committee within the Department, as well as the provinces. This had been the situation that the Department had found itself in.

She said the workshops had gone well, without any hiccups, and recalled that the Chairperson had referred to the other seven provinces that had not attended the Departmental workshop. This could have been as a result of the legal services that the other seven provinces had at their disposal, as well as experience in the field.

The Western Cape and Northern Cape had indicated that they required a workshop be done on the Act. She highlighted that these workshops had been conducted by province, and not necessarily as a group, and were thus province specific. The Department's interpretation had been that the other seven provinces had the capacity to interpret the Act. She added that these workshops had not been compulsory.

The Act first had to commence before the Commission could be established, and the issue of the formula resided within the Department. All of these processes and consultations on the formula, as provided for in the Act, would be concluded by 31 May. Some of the work that had been undertaken, such as the handbook, had been adopted and contained the national norms and standards as provided for in the Act.

Director-General Diphofa said that the Department would follow the normal processes related to litigation, and had followed precedent with the legislative process. It had received a legal opinion from the Chief State Law Adviser, who had advised that the legislation had been consistent with the Constitution.

He informed Members that the first complaint against the Act alleged that the Department had conducted insufficient public participation in the run-up to the Act. A certain entity had taken issue with the provision that allowed traditional councils to conclude their own business partnerships. This provision had also been questioned on the grounds of who would benefit from these partnerships.

The Department had then approached senior counsel, who had advised that the Department could proceed with enacting the legislation through the Presidential signature, as the President determined when legislation had to be enforced. He added that should the Department be indicted, internal discussions would ensue, followed by engagements with the Presidency on a mandate.

On the question that had been posed on communal land tenure, he said discussions continued under the Deputy President's leadership of the Communal Land Tenure Committee.

On whether the Act had clear provisions for a dispute resolution mechanism, he commented that human relations would continue to be marred by disagreements. In his opinion, the Act did not necessarily spell the end of disputes. Traditional leadership-related disputes fell within the ambit of the Department, whereas other issues such as agriculture and land reform, fell under the Department of Agriculture, Land Reform and Rural Development.

The Committee was told that prior to the implementation of the Act, the Department had used cooperative governance guidelines to address leadership challenges, in consultation with the relevant Premier and MEC. The new provision enabled the Minister to exercise her discretionary powers in relation to the national and provincial competency.

He reiterated that South Africans had the right to exercise their legal options whenever leadership disputes arose. Experience had taught the Department that the case would first be heard in the high court, followed by an appeal to the Supreme Court of Appeals, followed by another appeal to the Constitutional Court as the final legal arbiter in the country. The Act provided for mechanisms that could possibly be used to mitigate other matters that have been highlighted and escalated.

On the specific incidences that had been raised by Ms Mkhaliphi, he commented that the Department had been aware of the current situation in that community. He decried the acts of violence that had included murder, and said the Department remained seized with this matter. Indications were that these grievances had not all been related to leadership disputes, but also included other factors connected to the community.

On a question posed Ms M Tlou (ANC) on who would audit the traditional councils, he said that according to relevant legislation, the audits had to be conducted by a registered auditor. This did not necessarily include the Auditor-General, as during previous discussions with the AG, the latter had noted a lack of capacity, given the magnitude of the sector. The Act had left the audit question open, and that ensured that proper audits would be conducted.

On the question about the national plan posed by Mr Jacobs, as well as by the Chairperson, he said the work had been done in terms of the immediate phase of implementation. Some matters could be addressed only once the Commission had been established, and after a call had gone out to the general public for applications. Once the applications had been received, the Department would conduct hearings and research, as well as a slew of other actions that would determine the legitimacy of the applicants.

Mr Diphofa added that the Department had rolled-out an awareness campaign on the Act's modalities. It had also recently communicated with provinces to assist with logistical arrangements, as well as the determination of dates. The tricky part rested on whether the provinces had the necessary budgetary allocations.

He also pointed out that there had been no indication of just exactly how many Khoisan leaders should be budgeted for. In the case of Limpopo and Mpumalanga, one might have one or two, whereas other provinces had indicated that they might not even have any Khoisan traditional leaders.

The three Cape provinces might have considerably more.

He admitted that it was highly unlikely that all applications would be concluded by 2021/22, so the Department had adopted a staggered approach. Once a leader had been recognised, it would become much easier to draft budgets. 

He added that there might be other issues that concerned the National House of Traditional Leaders.

After the DG had concluded his remarks, the Chairperson invited the Chief Executive Officer (CEO) of the NHTL to respond to some of the issues raised.

National House of Traditional Leaders' response

Mr Abram Sithole, Chief Executive Officer (CEO), National House of Traditional Leaders (NHTL), said he had cautioned the Department against faux pretenders who might seek recognition, and once again called on it to ensure that all prerequisites had been met before it conferred legitimacy.

On women empowerment, he said that the NHTL would conduct training sessions with women traditional leaders, and that the different structures within the House would be capacitated to deal with gender-based violence (GBV) and femicide issues. The women would then go out to the villages to create awareness on these issues. 

He opined that that some of the violence directed against women had been as a result of the lack of economic freedom that existed in communities. The House wanted to capacitate women. The Gender Commission would specifically deal with the capacity needs of young men as well. The House had promoted and fostered a culture of respect, and had also imparted this message to their respective communities. The traditional leaders had also attended the Men's Parliament, and had emphasised that respect needed to be shown to all individuals .The House had also championed the ideal that every human being's inherent dignity had to be recognised, and had also embarked on several other programmes.

He also touched on discrimination against the LGBTI community, and noted that significant progress had been made to foster and nurture a relationship with the LGBTI community. The LGBTI community had been invited to conduct workshops with the House, and other engagements had continued.

Follow-up discussion 

Inkhosi R Cebekhulu (IFP) said that he welcomed the approach and the pace at which the Department had pushed for the Act to be enacted, but he wanted to raise a few concerns.

He referred to the proportional representation political system used to elect ward councillors, as well as provincial and national members of Parliament, and said that representation in the House had been determined per district. However, KZN had proposed that only two traditional leaders per district should be nominated to the House. 

He wondered why traditional leaders had been prescribed to, and scoffed at the proposal that had been made, registering his surprise at what he termed "KZN's radical idea." He asked why there should be a reduction. He proposed that the Department should amend the section in the Act that prescribed how many representatives there should be, and proposed that the House should be constituted through proportional representation, based on the total populations of the nine respective provinces. 

He called on the national Department to effect the necessary changes. His opinion was that the Department had absolutely no clear plan on how to implement and deal with the Act. The proposal that had been made should obviously be part of the national plan that the Department had been working on. He urged the national Department to draw provinces' attention to the need to provide the necessary and acceptable representation of traditional leaders in governmental decision-making structures.

The Chairperson invited the traditional leaders to present for their inputs

Traditional leaders' inputs 

Nkosikazi Mokonyane, a female Regent, said she appreciated the many questions and concerns that had been raised by the Committee. This had indicated a real interest from Members in the affairs of traditional leaders, and shown that the Committee had the sector's best interests at heart.

She said the Department had been established with the sole aim of assisting South African traditional royal families to conduct business, and that the House should be seen as an extension of the Department. In view of this, she had found herself perplexed, as she had seen the Department's presentation for the first time when it had been presented earlier. Had the Chairperson not extended an invitation to the House, the latter would not even have known about the presentation to the Committee.

Given this scenario, she had to ask herself whether the relationship between the Department and the House could be considered as sound, as the challenges that the House faced in its relationship with the Department had been "glaring."

She lamented that the Department had never responded to requests made by traditional leaders to be furnished with policies. She had requested the cell phone policy herself, and had never received an answer.

She added that the national executive operated under the ministerial handbook's purview, yet the Department had not conceptualised a handbook for traditional leaders. She expressed her confusion about whether the Department's actions bordered on disrespect or insubordination. She decried the attitude displayed towards traditional leaders and questioned whether the Department had the capacity to implement this Act.

She would leave it up to Members to see for themselves the inaction of the Department. 

In Section 62 of the Act, it stated that the Department may monitor. She questioned the motives of the Act's drafter's. She said that "may" indicated that the Department could decide whether it wanted to monitor the implementation, and that this meant that the Department could also absolve itself of any wrongdoing. This loophole had been specifically designed to protect to the Department, she charged.

On Section 81, she said she acted as Regent in the place of her university-going son. The custom had always been that females acted as regent. Only one tribe in South Africa had an implicit rule that only males could act as regents. She had reviewed the Act thoroughly and had concluded that the Act discriminated against women. She called for an amendment.

She said that the relevant section had indicated that regents should be appointed for two years, whereas traditional leaders of local houses would be appointed for four years. Much hype had been made about the Traditional Courts Bill, and how it discriminated against women. "We live in a patriarchal society with deep-rooted prejudice against women," she lamented. Regents’ women served at the behest of this patriarchal society that "want me today and tomorrow they want me gone," she added. Against this backdrop, she called on the Committee's assistance to effect the necessary amendments to the Act.

On disputes, she said that she agreed with the statement that disputes also led to instability in communities.

She also took issue with Section 59.2 (b), which dealt with the processes and procedures related to representation by traditional leaders on the panel. She asked why the Act had made allowance for only one traditional leader to be represented on the panel that would investigate and determine legitimacy. Why was it that traditional leaders were being treated like children -- were they not mature enough to handle their own affairs?

The Regent called on the Committee to effect the necessary amendments, and expressed gratitude for the opportunity to raise her concerns.

The Chairperson then called on Inkhosi Sydney Ndevu, to address the Committee.

Inkhosi Ndevu asked whether the Act had been budgeted for. He also requested the Committee's assistance to "whip" the Department into action and ensure that the Act had a budget allocation, as it would be futile to continue without implementation.

On the reconstitution of traditional councils, he said that most of these councils had lapsed and that the House risked being mocked. These structures were no longer relevant in terms of the current legal framework.

He had attended a provincial presentation on the constitution, and during this engagement traditional leaders had been informed that the process had been placed on hold, as the service provider was still busy with the mapping of "traditional boundaries." They had then asked by when the process would be concluded, and had also decried the lack of documentation on the process. Traditional leaders wanted a clear indication by when these councils would be reconstituted.

He agreed with Mr Cebekhulu's comments about the proposed non-participation by traditional leaders, as well as the 20% representation in district councils. Who would then represent traditional leaders' views?

He commented that when the current House had started in 2017, traditional leaders had raised the issue of policies. At the moment, the House operated without policies, and the handbook had not yet even been approved. It was incumbent on the Department to ensure that these policies be devised and sent to the House.

He implored the Committee to whip the Department into action. It was ridiculous that after four years, the House still had neither policies nor a handbook. 

Nkosikazi Nomandla Mhlauli, deputy chairperson of the NHTL, thanked the Chairperson for the opportunity afforded to the House to address the Committee, stating that it had not happened before. 

Her point of departure centred on women's representation in the sector. Additional structures had to be strengthened, but the pool from which to choose female traditional leaders remained small. This could be attributed largely to the hereditary traditional leadership system. As a Pedi who acted as Regent, she knew of only one other princess who had acted as a regent in her region.

She said that the House had been working closely with traditional leaders on women's empowerment, and if comparisons had to be made, it should be highlighted that at the national level, the chairperson was deputised by a women, in the Northern Cape the chairperson was a female, and in the Free State, the chairperson was a female deputised by a male.

She said that the House had structures in place to facilitate and foster women's empowerment, but these had never been popular. She advocated a clear budget for the support of women's empowerment programmes within the traditional leader sector.

Kgosi Phopolo Maubane, Chairperson, NHTL, thanked the Chairperson for the opportunity to be able to address the Committee on pertinent issues that pertained to traditional leaders in South Africa. He would like to take advantage of the opportunity and comment on the programmes and initiatives that the sector had undertaken in order to transform the sector.

He said the House had effected several changes, such as the allotment of sites. If a man had wanted a site, he first had to prove that he had a family. This of course adversely affected women, which had led to a change. The new regulations allowed for the allotment of sites to single women as well. 

It was important for women to be able to build their own houses. He added that as an Inkhosi, his wife assisted with community work, supported by several other women in the community. Women also played an important role when it came to traditional courts, and also sat in on the lekgotla. The House had taken a resolution in December that called for the provision of business opportunities for "our women."

He expressed his concern with the budget constraints that the House operated under, and cited this as one of the main reasons why some traditional councils had not yet even been constituted or met.

It seemed as if some members had also not been used to working for free, and he reiterated his earlier called for all traditional councils to be reconstituted as a matter of urgency.

He added that in the absence of any national plans with regard to traditional leadership, the Department would continue to encounter challenges with the reconstitution of traditional councils. In Mpumalanga, the traditional council had been constituted in 2008, yet the council could not meet, as the traditional boundaries had not yet been mapped. 

He was of the opinion that the Department had inadequate resources and capacity to fully attend to the reconstitution of the traditional councils. "We are doing things for compliance -- we have no resources. The Department was not being honest."

He would have been happy had the DG addressed the pertinent challenges in a forthright manner.

He did not see this Act being "implemented," and one should not talk about a budget when the commission had not yet even been constituted.

He said the Department had been supposed to implement tools of trade for traditional leaders, but these had never materialised. The previous Committee had been informed about the tools of trade, yet this had not been implemented.

He noted that the Department simply did not have the capacity to implement these Acts. 

He also decried the amendment that had been made to Section 81 of the Structures Act, and lamented the limitation that had been placed on the participation and representation of traditional leaders in local government. The amendments that had been effected had not spoken to the realities on the ground. Next year, the same issues would once again be addressed, and there remained no political will to foster and enhance the capabilities of the institution.

He added that the Department did not even have the capacity to implement the outcomes of the traditional leaders' indaba, presided over by the President. The budget of the entities had been used to pay staff, and the DG should admit his dishonesty in this regard.

The Chairperson addressed the DG and his staff, and said she viewed the issues that had been raised by the traditional leaders as serious. She asked the DG to respond only to those issues that could be handled in the meeting at present, and to park issues that pertained to future amendments until the relevant meeting.

She also advised the Department to proceed with the drafting and implementation of the regulations in relation to the Framework Act. This would compel the provinces to implement the amended Act.

Follow-up discussion

A Member referred to the leadership dispute in Mangweni, and accepted that people had the right to consider their legal options when it came to leadership and succession disputes, and that such disputes could go on forever. He also accepted that measures had been incorporated into the new Act that aided dispute resolution, before matters escalated. He wondered whether the Act would be implemented, as these decisions not only affected the immediate royal family, but also led to stabilisation in communities. He proposed that the Department should engage National Treasury on the need for additional funding, before the situation escalated. He recalled that the area had already been marred by violence, and that this had been an unacceptable development.

Ms Tlou raised the matter of settlements in rural areas that continued to be constructed without proper planning.

The Chairperson interjected, and reminded Ms Tlou that that specific issue would be discussed when the traditional leaders' indaba came up for discussion. They were dealing with the Act now.

Ms Mkhaliphi said she had listened intently to the serious concerns that had been raised by the Regent, and proposed that the Committee should call a meeting to discuss the specific concerns that had been raised by the traditional leaders. The issue of women's empowerment within the traditional leader sector remained a top priority for the Committee. She thanked the deputy chairperson of the NHTL for the picture she had painted in response to some of the questions that the Committee had raised about women's empowerment within the sector. 

She said that at this juncture, the Committee did not have to listen to what the DG had to say, as she did not necessarily had enough confidence that the DG would be able to address all of its concerns at the moment. 

She recalled that during an oversight visit to KZN, the same issues had been raised, especially in relation to women's empowerment. At that time, the Committee had relied on the Department to provide answers, yet this had not transpired. 

She said that due to the nature of the Department, which included Cooperative Governance as well, the Committee had made the mistake of focusing only on the former. She called for greater oversight over Traditional Affairs.

The Chairperson said she had requested the secretariat to draft a resolution to that effect. She totally agreed with the proposal that had been made by Ms Mkhaliphi, that a meeting be held to interrogate the matters that had been raised by the traditional leaders. 

She cautioned the Department that this meeting should not be seen as just another talk shop. The Committee wanted to see concrete, tangible outcomes.

She addressed the DG directly, and said his Department had been found wanting and questioned whether the Department had the will to effect all of the necessary changes that had been legislated.

She said the Committee would also call in the various provinces to come and account. 

She asserted that no ideal functional environment existed within the Department, and accused it of napping.

The same issues would also be raised during the discussions on the outcomes of the Traditional Indaba.

The Framework Act had never been fully implemented. She accused the Department of dishonesty. The presentations to the Ministers and Members of Executive Council (MINMEC) had clearly not yielded the desired results.

Director-General's response

The DG referred to the Act, and said that perhaps they should allow the process to unfold, as to tinker with it at this moment would seriously jeopardise the work that had already been done. The Act had been subjected to strict constitutional scrutiny that had led to the Act being adopted and signed into law by the President. The amendments would invariably speak to the correctness of the Act.

The Chairperson interjected, and said that what the DG had said had informed her request to the Regent to forward her concerns to the Committee. What the Department had said would be implemented, had not been implemented. 

She added that the amendments to legislation remained the concern of Parliament. She reminded the DG that the Committee was actually constituted of legislators who had the right to legislate, even on technical amendments. The Committee would facilitate these amendments and effect the necessary changes. The DG should park the questions related to the issues that had been raised by the Regent for the appropriate meeting.

The DG replied that the Department had accepted the proposals on women, and that discussions between the role players on women's empowerment would continue.

He said that both the TKLA and the Framework Amendment Act had been passed at roughly the same time by Parliament. The Framework Amendment Act had a specific function. The amendment that the Department had proposed was linked to the reconstitution of traditional councils. 

He explained that the initial Act had a deadline by which these councils had to be constituted. The amendment had extended this deadline and given the provinces ample time to effect the necessary changes.

The DG added that at the time that the Framework Act had been approved, provinces had been informed that they needed to implement the specific piece of legislation that called for reconstituted traditional councils.

The Department had been told that enforcement of the Framework Amendment Act would create a win-win situation, as the expectation had been that the TKLA would have taken long to pass. However, the Framework Amendment Act and the TKLA had been passed at the same time. The Department had always envisaged that the Framework Amendment Act would serve as a bridging piece of legislation until the TKLA had been operationalised.

He added that the Framework Amendment Act could still be utilised by provinces to reconstitute tradition councils, but they would have to repeat the exercise under the TKLA. A number of provinces had indicated that they would wait for the enforcement of the TKLA, as they did not have the required resources to implement or reconstitute twice. The Department had had to be very open with the provinces, especially on technical matters, as the expectation had been that it would be fast, but it had taken some time.

Referring to the tools of trade, he said a decision had been taken a long time ago by the Minister, who had consulted with the MINMEC. During the interactions at MINMEC, the Minister had informed the MECs that they should not view it as a provincial COGTA issue, but as a provincial government issue.

She had advised provinces that during discussions on the Division of Revenue Bill, provinces should engage National Treasury on their additional funding needs, and they had seen movements in the provinces as they had started to reposition and prepare themselves.

On developments in Kwazulu-Natal, he said that discussions had taken place at a provincial government level. The province had been able to reach an agreement that had elevated the provincial budget to the next level.

Regarding budgetary allocations for the tools of trade, he said that this had been beyond the Department's control.

He said that for the first time, the Minister would be allowed to issue norms and standards. 

On the matter of a handbook for members of the House, he advised that MINMEC would have to approve it. In this instance, the Minister had to issue guidelines at the national level. The Department could not fund provincial mandates, and provinces had to ensure that they included the cost implications in their budgets.

Mr Diphofa said that the feedback that had been provided would assist in shaping the thought processes of the Department on the issues that had been highlighted by the Committee, as well as by the traditional leaders. 

From a budget perspective, some provinces had to provide a much broader budgetary allocation than other provincial counterparts, based on the composition of the specific Houses. 

Members’ feedback had been useful in providing direction to the Department on what had to be done.

Deputy Minister's comments

Deputy Minister Bapela said he would address only four pertinent questions that he had highlighted.

The first question dealt with the legislative process. This had commenced in 2013, and it had taken almost two years to conduct research and to bring the Act to fruition. 

He would also touch on enhanced traditional leaders' participation in government structures, as well as business opportunities for traditional leaders. The House intended to focus on those who took the decisions and who eventually benefited from these supposed business opportunities.

He would also address gender parity in the sector, as well as the necessary amendments that had to be made that addressed the relevant functions. 

He said that when the law came into effect, traditional leaders had celebrated this milestone. 

He explained that the draft Bill would first be discussed in Cabinet, where certain changes would be made, and from there it would proceed for public input through public hearings. After the public participation process, the necessary changes would then be effected by Parliament, who would then finally pass the Bill into an Act. As had been the custom, the relevant portfolio committee would peruse the Bill, clause by clause and section by section.

The Deputy Minister referred to the issues that had been raised by the Regent, and indicated that he viewed these as important. He vowed that they would conduct an investigation, or rather a review, to ascertain whether there had been any malicious intention. 

On the history of partnerships, he said that the Department, in conjunction with various legal representatives, had spent the last six months in heated discussions on the definition of various terms that ought to have been easy to define. He also touched on the role of the National Council of Provinces (NCOP), which could of course reject a Bill. 

He conceded that things might had fallen through the cracks, and if blame had been apportioned to the Department, all efforts would be undertaken to obtain the original Bill for submission to the Committee.

He said the Department had basically functioned without a budget, and that this concern had been raised with all of the previous political office holders at in the Department. He informed the Committee that Finance Minister Mboweni had been engaged on the need to allocate more funding to the Department. Minister Mboweni had advised Minister Dlamini- Zuma to go to the budget committee that comprised of all nine Finance MECs, and that in this engagement, she should make a case for an increased budget from the equitable share.

Mr Bapela emphasised the importance of costed plans attached to enacted legislation, and stressed that he had insisted that the Department costed the Act. He described the R200 million budget that the Department had received as wholly inappropriate.

He agreed with Inkhosi Ndevu that "we bring in transformational laws” without budgetary allocations.

The Department had not yet finalised the national plan, and the matter would be raised at the next MINMEC.

He lamented the inaction of the provinces that had not submitted the relevant documentation as requested.

He indicated that by the second week of May, he would like to see a roll out of the Act. He would undertake a road show to six provinces -- the Western Cape, Eastern Cape, Northern Cape, Free State, Kwazulu-Natal and Gauteng.  The purpose of the road show would be to engage with the Khoisan community on the Act; and what it meant in practical terms for the community.

The Department would remain seized with the formalisation and institutionalisation of the Khoisan language. On this, the Department had engaged with the Pan South African Language Board (PanSALB). Discussions were under way on the possibility to elevate the radio station in the Northern Cape from a regional to a national radio station.

He said that the Khoisan community had to realise what recognition meant to the profile of the Khoisan people, since they had not enjoyed recognition of their traditional leaders.  He would be accompanied by the respective MECs in those provinces, the PanSALB, as well as the local Houses.

He said that the Department had to engage with the International Labour Organisation (ILO) on a case that had been lodged against South Africa. 

According to the Deputy Minister, the Khoisan community had to celebrate this significant victory, and said that South Africa would continue to encourage and foster social cohesion.

He requested that the Committee allow him to address the other matters only after he had received sufficient information to respond accordingly.

Chairperson's concluding comments

The Chairperson said that Members had reached consensus that deliberations on the Indaba outcomes would be held on 22 April. These matters should not be pushed into the new month -- she preferred to finalise them. 

The procedural staff would send letters of invitation to provinces to appear before the Committee and account for their decisions.

She also requested traditional leaders to compile their respective inputs into one presentation, and called on the DG to return to the drawing board and effect the necessary changes that addressed the provincial realities.

The meeting was adjourned.

 

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