Traditional Leadership and Governance Framework Amendment Bill: briefing; Traditional and KhoiSan Leadership Bill: public hearings report

Meeting report

The Chairperson announced that Mr David van Rooyen, Minister of Cooperative Governance and Traditional Affairs (COGTA), Mr Andries Nel, Deputy Minister, and Mr Muthotho Sigidi, Director-General, had sent their apologies and would not be attending the meeting.

Traditional Leadership and Governance Framework Amendment Bill: Briefing COGTA

Mr Abram Sithole, Deputy Director-General: Research Policy and Legislation, said in terms of the Traditional Leadership and Governance Framework Act, 2003, tribal authorities had to be reconstituted as traditional councils within a certain timeframe. The kingship and queenship councils had to be established within a certain timeframe, and community authorities had to be disestablished within a certain timeframe. However, the challenges of the Act still remained in legislative perspectives. In terms of the tagging, the Bill dealt with matters relating to traditional leadership, and the state law advisors proposed that it be tagged as a Section 76 Bill.

With regard to the challenges to traditional councils, Section 28(4) of the Framework Act states that tribal authorities would be regarded as traditional councils as contemplated in Section 3 of the Act, but with the provision that they had to meet the requirements contained in Section 3(2) of the Act. The timeframe of one year had not been met and the Framework Act was amended in 2009 to extend the timeframe to seven years. However, the seven years had to be calculated from the date of commencement of the original Act, and therefore lapsed on 23 September 2011. Unfortunately, in many instances, the extended timeframe had also not been met. Although there were instances where provinces had attempted to reconstitute tribal authorities, various challenges had been identified, such as tribal authorities not being reconstituted at all, the reconstitution taking pace after the expiry of the timeframe, no formula being issued, and where a formula was issued, it was not aligned with the Minister’s guidelines and not all the requirements of the relevant provincial legislation were complied with.

Regarding the challenges to kingship/queenship councils, in terms of Section 3A of the Framework Act, a kingship or queenship council must be established within a year from the date of recognition of the kingship/queenship council. A number of kingships had been recognised on 5 November 2010, and therefore their councils were supposed to have been established by 4 Novemebr 2011. This was not done for various reasons, however. One of the reasons was the fact that Section 3A (2) (a) of the Framework Act required that a formula be issued in respect of the number of members of such councils, and that the kingship or queenship must be consulted before the formula was issued. The development of the formula proved to be more complicated and time-consuming than originally anticipated. The Department had developed a formula, however, and was currently in the process of consulting the kingships. The consultations had also proved to be challenging in the sense that the recognition of some of the kingships were disputed.

Regarding the the challenges to community authorities, Section 28(5) of the Framework Act determined that community authorities had to be disestablished in terms of provincial legislation and within five years from the commencement of the Framework Act, thus by no later than 23 September 2009.

The Amendment Bill addressed all the challenges mentioned above. It dealt with extending all the timeframes by determining that the calculation of such a timeframe would be from the date of commencement of the Amendment Bill. It determined how to deal with instances where the extended timeframes were not met by the provinces. It provided provinces with an alternative method to disestablish community authorities in instances where they had not yet made provision for it in provincial legislation.

Discussion

Mr K Mileham (DA) commented that the presentation was outdated, and the Department should try to send the Committee an updated version. He asked what legal consequences the lapsing of existing Acts would have on government, and what would happen to the legal status of traditional authorities if the Amendment Bill was passed. A number of provinces had already gazetted their list of traditional councils, where some of the timeframes had already expired. However, there was a list of traditional councils who were not legally recognised and had previously not been included in the old list of traditional councils, which had expired, and he asked what would happen to the names of these councils. The Department had been trying to implement the Bill since 2004 -- what guarantee did the Committee have that they had the capacity to ensure that implementation of the Bill would be done properly this time?

Mr Sithole replied that the timeframes had indeed lapsed. However, if Parliament passed the Amendment Bill, many of the traditional leadership challenges could be corrected. The challenges affecting traditional communities were mostly related to legislation matters, and not to capacity. The provinces had previously had the proper timeframes in place, but the timeframes needed proper guidance from legislation, hence there had been a lapse in the timeframes.

Mr Johan Meiring, Senior Manager, COGTA, replied that extending the timeframes would help legalise the terms of office of the traditional authorities.

Mr N Masondo (ANC) added that the slides should be updated and sent to the Committee. He asked the Department to explain the challenges and how it was planning on dealing with them.

Chairperson said that an interim intervention had been needed because Parliament could be taken to court if the matters were not dealt with urgently, especially on the legal status of traditional authorities. The passing of the new Act would cover all previous Acts and address many of the issues that were found in the previous Acts. The establishment of traditional houses was complex and one needs to treat it with sensitivity.

Mr Sithole said that the challenges experienced by the Department related to the timeframes of the members of the National House of Traditional Leaders (NHTL) and tribal councils and community authorities that needed to be disestablished. The other challenges related to the establishment of kingships and queenships. The solution was for Parliament to extend the timeframes, as the terms of office ended in August 2017, and the ending of the terms of office required the establishment of new members of Councils and the NHTL.

Ms B Maluleke (ANC) asked what role the Department played where there were disputes, in ensuring that guidelines were followed.

Mr Mileham asked what form of public participation the Department had undertaken with communities, and why an alignment of the NHTL and traditional authorities was necessary.

Mr Sithole replied that the Department had started workshops on how the formula had to be implemented. The only consultations that had been done were with the tribal houses, and not the communities. The Department was of the belief that the tribal houses represented their communities as a whole when they attended the public hearings and consultation events, so it had not deemed it necessary to consult with communities. The NHTL and traditional councils’ members had lapsed because some of the traditional council members were also members of the NHTL.

Mr Meiring said the alignment of the NHTL and traditional councils had been completed in 2009.

The Chairperson added that the stakeholders who had been part of the consultation had said they were satisfied with how the process had been conducted. He did not see any reason why the process to pass the Bill should be delayed.

Mr Mileham asked what the Department would do differently this time to ensure that the process of legalising tribal authorities and extending the timeframes would not be disturbed.

Mr Sithole replied that the Department had accessed all the necessary systems to ensure that the process would be ready for the implementation of the Act. It was also being assisted by Professor Mandla Mchunu, who had extensive experience with tribal matters.

The Chairperson thanked the Department for their presentation and promised that the Committee would consider all its challenges when they discussed the Amendment Bill.

Annual Performance Plan and Budget Vote 4

The Chairperson moved on to the the report on the Budget Vote, reminding Members that the Budget Vote would take place next week, on Thursday 18 May. He advised them to make use of common language when drafting the report so that ordinary citizens would be able to understand its contents. He read the Committee and Department recommendations and the Committee observations, and asked for comment on the report.

Mr Mileham said there were three recommendations which the Committee had not taken any action on. The Committee had not met the Development Bank of Southern Africa, regular reports on the forensic investigations should have been provided to the Committee, and quarterly reports on the appointment of Senior Managers had not been submitted to the Committee.

Ms Maluleke asked for clarity of 7.3, as the sentence in its present form did not make sense.

Mr Andile Sokomani, Committee Researcher, said there were words missing in 7.3, and the sentence should read: “The Committee noted with concern the decrease in the rural and urban development staff programmes.”

Mr E Mthethwa (ANC) said the Department should also brief the Committee on the Local Government Laws Amendment Bill.

Mr Mileham said another recommendation regarding the Municipal Infrastructure Support Agency (MISA) annual report should be added. The Committee should be briefed on MISA’s spending patterns before their annual report could be approved. Also, the Municipal Financial Recovery Service (MFRS) must also report to the Committee on how it was assisting municipalities with their financial issues, especially with regards to the money owed to Eskom.

The Chairperson said the Department must strive to have a clean audit for its 2017/18 financial year.

The Committee agreed not to adopt the report at this times; changes needed to be made first.

Consolidated Draft Summary of Submissions on Traditional and Khoi-San Leadership Bill [B23 – 2015]

Mr Sokomani said while most communities appreciated the lengths Parliament had gone to in consulting on the Bill, there had been concerns about the late receipt of notices for public hearings, the unavailability of copies of the Bill in the language spoken by the people, non-consultation with major Khoi-San stakeholders, and the non-visibility of public hearings on radio, television and the newspapers. It was proposed that the Khoi-San issue should be treated separately from African traditional leadership issues, and that there should be separate Bills in this regard. There was a proposal that the recognition of the Khoi-San should be explicitly enshrined in the Constitution. Suggested in this regard was the enactment of a mechanism similar to the traditional communities under the interim constitution of 1993.

In terms of the title of the Bill, it was considered inappropriate on the basis that it divided the Khoi-San from other traditional leaders/African people, and that it emphasised leaders as opposed to the broader community. It was recommended that the title be changed to “Traditional Khoi-San Leadership Bill” to minimise this perceived division. Another recommendation had been that it be changed to Traditional Leadership Bill, to accommodate the view that Khoi-San leaders were considered traditional leaders and should not be segregated, as had been the case with the Group Areas Act. The title “African Natives Leadership Bill” had been recommended to make provision for every community that deemed itself traditional, and the title “African Traditional Leadership” had been recommended to recognise that the Khoi-San were also African. Other recommended titles had been “Indigenous People’s Bill” to acknowledge that the Khoi and San were indigenous to the Southern African region, and “Khoi-San Traditional Bill” to place emphasis on the Khoi-San community as whole, instead of leaders only.

In terms of Chapter 1 of the Bill, stakeholders had problems with the following definitions:

Section 1(1) – “Area of Jurisdiction.” A concern was raised that the definition of this term did not specify whose responsibility it was to determine the area of jurisdiction.

“Branch” - It was proposed that this term be changed to ‘clan,’ as the Khoi-San community was not a political party.

“Headmen or headwomen” - It was proposed that this term be changed to ‘Junior traditional leader.’

Section 1(1)(b) - “Khoi-San.” Concerns were raised with respect to the appropriateness of the term Khoi-San on the basis that the term had not been originated by the Khoi and the San, but was a product of colonial and apartheid legislation, and that it was derogative. Furthermore, the limitation of the ‘Khoi-San’ definition to the Cape Khoi, Griqua, Koranna, Nama and the San, hindered the acknowledgement of the Cochoqua, Goranaiqua, GoranHaikona, the Hessequa, Ghainoqua, the Choragoqwe and the Cobuqua, as entities in their own right.

Section 1 (5) - Clarity was sought on why the Bill did not give or mention the status of the Khoi-San as a first nation. It had been insisted that the Bill must recognise the Khoi-San as the first nation in South Africa, in terms of Convention 169 of the United Nations Declaration of the Rights of Indigenous People. In this regard, it was suggested that in the entire Bill (including the title), the use of the term ‘traditional’ must be replaced by the word ‘indigenous’; and that this clause be deleted.

In terms of Chapter 2 of the Bill, reference to the Khoi-San as a ‘community’ was deemed problematic because it distorted their status as a nation.

Section 3(1) – This section sets out the criteria for the recognition of kingship or queenship, traditional community, headmanship or headwomanship, and provides that traditional communities that were grouped together may be recognised as a kingship or queenship if they fulfilled certain criteria. There was a concern that the ‘grouping together’ sought to introduce the ‘deceitful manoeuvres’ contained in both the Native Administrative Act of 1927 and the Black Authorities Act of 1951, which saw African communities being coerced to form tribes under illegitimate chiefs.

Section 3(1)(d) -  This section provides that traditional communities that were grouped together may be recognised as a kingship or queenship if, among other things, they recognised as their king or queen, a specific recognised senior traditional leader who, in terms of custom and customary law, was of a higher status than the other senior traditional leaders. It was submitted that this provision was deliberately ambiguous -- it did not clarify the ‘customs and customary law’ in terms of which traditional communities should apply the recognition, and what was meant by ‘higher status than the other senior traditional leaders”.

Section 5(1)(a) provides that a community may apply to the Premier concerned to be recognised as a Khoi-San community if it met certain criteria, including a history of self-identification by members of the community concerned, and a proven history of coherent existence of the community from a particular point in time. It was objected that such criteria penalised the Khoi-San for having been forcibly labelled “Coloured,” while also failing to take into consideration the unique and violent impact of apartheid on the Khoi-San. It was proposed that these criteria should instead reflect the historical trajectory of the Khoi-San community within the South African historical context, including the consideration that the apartheid system outlawed their culture and forced them into becoming labourers and farm workers. In this regard it was suggested that the Khoi-San community recognition criteria be amended to take a restorative approach, using the status quo reports as a guiding standard.

Section 11 (3)(b)(ii) provides that, after following the relevant procedures, the Premier may withdraw the recognition of the relevant senior Khoi-San leader or branch head, or refuse to withdraw such recognition. It was proposed that the National House of Traditional Leaders should instead resolve this through its dispute resolution mechanisms.

Section 14 (1) provides that any king, queen, principal traditional leader, senior traditional leader, headman or headwoman who occupied a hereditary position must, with the concurrence of the relevant royal family and within the stipulated period (60 days), identify a deputy to act in his or her stead whenever he or she became a traditional leader, elected as a member of a provincial legislature, National Assembly, National Council of Provinces, full-time member in any house of traditional and Khoi-San leaders, or was employed on a full-time basis by any employer. It was proposed that it should not be mandatory or compulsory, but optional for the traditional leader to appoint a deputy. In this vein, the word ‘must’ was recommended to be changed to ‘may’.

With regard to Section 16(2)(c)(i) &(ii), members of the public had criticised the determination that membership of a kingship or queenship council, principal traditional council or traditional council should comprise 60% of traditional leaders and members of the traditional community selected by the relevant traditional authority, while 40% of the members were elected. It was said that this amounted to a dictatorship. It was suggested that this should be the other way round, with 60% of members elected, and 40% selected, because traditional authorities were numerically inferior to community members. In other words, there was no test case indicating that traditional leaders and royal families constituted larger portions of traditional communities and thus had latitude to select more people to councils than those elected by communities. Some of those who had accepted the formula felt that the 40% to be elected must have historical experience from the Khoi and San communities. It was further suggested that this clause should also consider the gender dimension.

The Office of the Auditor-General of South Africa (AGSA) was also concerned about the above requirements, because:

(a) The current wording of the Bill did not give the AGSA any discretion to decide which councils would be audited;

(b) Due to the small size and few activities of some of the councils, it was not cost beneficial for them to be subjected to an audit;

(c) There were more than 800 established traditional councils, and the AGSA did not have the capacity to audit all the traditional councils;

(d) The Bill prescribed a very short timeline of submission to the premier (one month from the date of receipt), which was interpreted to mean that the auditor’s report must be signed and issued within one month of receipt of financial statements, and this provided the AGSA with a very short period of time to complete the audit;

(e) The Bill did not specify the periods that the AGSA was expected to audit, such as whether it would be retrospective and include all the years not previously audited, or only prospective – an issue that had to be considered in the context of the large number of councils that had never submitted financial statements for audit and a backlog that had existed for many years;

(f) There was also existing legislation at the national and provincial level that was not clear in terms of financial statement preparation and the auditing thereof. For example, the national legislation requires the preparation of financial statements while provincial legislation requires the preparation of accounts, and this makes it unclear whether the Bill would replace the existing legislation or whether the existing legislation would remain.

In terms of Chapter 3 of the Bill, Section 28(3) provides that at least a third of the members of the National House must consist of women, provided that if this requirement can not be met, the Minister must, after consultation with the premiers concerned and the relevant provincial houses, determine a lower threshold in respect of the representation of women in the National House. It had been proposed that this clause be redrafted to read as follows: “of the three persons who were senior traditional leaders or senior Khoi-San leaders elected by each province to represent them in the National House, one of them should be a female senior traditional leader/senior Khoi-San Leader, to the extent to which they were available.

Section 36(1) – This section lists the duties of the National House of Traditional Leaders. One of these was to (a) cooperate with the provincial houses to promote, among other things, (viii) the transformation and adaptation of customary law and customs so as to comply with the provisions of the Bill of Rights in the Constitution, in particular by… (the CRL Commission proposes the insertion (dd), promoting and protecting the rights of cultural, religious and linguistic communities).

In terms of Chapter 4 of the Bill, a concern had been expressed that the Bill imposed discrimination by giving the non-Khoi-San Africans a high class Commission and the Khoi-San Africans a low class Advisory Committee. It was recommended that both the non-Khoi-San and the Khoi-San get a Commission of equal standing in all respects. It was observed that the Commissions put in place to assist the government with resolution of traditional disputes (Ralushai, Kgatla and Nhlapho Commissions) had reportedly been ineffective thus far due to conflicts of interest.

In terms of the Advisory Committee on Khoi-San Matters, it was urged that the Advisory Committee be independent and without bias; the Khoi-San Council be part of the Advisory Committee; and that the Advisory Committee must not just be academics, but needed to include members of the provinces that had an in-depth study, oral history and knowledge of the Khoi-San history and leadership. It was also submitted that, instead of an Advisory Committee, a Statutory Commission with similar terms of reference to the Nhlapo Commission be appointed, subject to recommendations from the Khoi-San people’s representatives regarding the composition and mandate of such a Commission.

Discussion

The Chairperson said these inputs would be discussed and considered by the Committee. He urged the Department also to read the inputs made by the public. The role of a traditional leader in a democratic state was yet to be established and defined in SA, so one had to develop such policies to ensure that at least the institution of traditional leadership was recognised and respected.

Mr Mileham said when the Department briefed the Committee on the inputs, it should also respond to issues relating to the technical amendments of the Bill, and it should also indicate if it agreed or disagreed with these amendments.

The Chairperson said it should take at least a month to finalise the Bill, but the Committee would continue its consultations with the traditional leaders.

The meeting was adjourned.