Traditional Leaders and Khoi-San Amendment Bill: Clause 70-73 and Schedules

Meeting report

The Chairperson stated that he hopes the Committee will wrap up the deliberations by the time the meeting comes to an end so that any proposed changes can be effected to the Working Document of the Bill so that the process can move forward.

Clause 70 Transitional arrangements
Mr K Mileham (DA) referred to clause 70(4) where it states “a traditional council must comply with section 16(2) within one year from the date of commencement of this Act” and “if the timeframe of one year is not met, the Minister may take the necessary steps to ensure that the provisions of section 16(2) are met” He said the clause does not state what the Minister’s role is to make that happen. When it says “necessary steps” it does not unpack what the Minister must or may do. Those steps should be made clear in the Bill.

Ms Phumelele Ngema, Parliamentary Legal Advisor, pointed out “necessary steps” is the qualifying phrase to contain the extent of the power of the Minister.

The Chairperson believed that it was not necessary to outline the steps as one cannot anticipate the conditions and that is why it is necessary to allow the Minister to do that. The Minister will be accountable to the Committee if he/she does things that are not within the legislation. However, the Chairperson understood Mr Mileham’s point that specificity of those steps would assist so that the Minister is guided by what is contained in the legislation.

Mr Mileham asked if the Committee is going to amend the phrase “necessary steps”, if not he will object that clause as being vague. The legal advisor should know better than having something so vague in legislation.

The Chairperson asked what Mr Mileham proposes.

Mr Mileham replied that the Minister must be given specific steps that he/she may take when intervening. The current wording is very vague and not enforceable, and the Minister “must” i.e. to be obliged to take steps after a reasonable time has lapsed without any action.

Mr Charles Nwaila, Director-General: Department of Traditional Affairs, stated that some matters when they are specific, they will exclude other areas, so interventions may require an investigation, and a number of many other things and while it may be useful to be specific but in some instances some other things may be excluded. Perhaps to strike a balance and getting more specific would exclude other things but also being too general may be problematic.

Mr E Mthethwa (ANC) stated that “necessary steps” is a term that has been used before, even within the document. He failed to understand why this time it needs to be changed. The legal opinion has already been received on the matter, therefore he suggested that the Committee can move forward and note the DA’s objection.

Mr Mileham said that when people do not meet the time frames as prescribed in the Bill, there must be consequences; it is not enough to state that the Minister must take “necessary steps” The Bill must not be silent on this.

The Chairperson suggested that the Committee move on and flag this concern. Perhaps in the interim the Department could devise a solution.

Dr Rinaldi Bester, Cooperative Governance and Traditional Affairs Chief Director: Policy and Legislation stated that clause 70(10)(a) will be re-drafted, because the “new Commission” would have been dissolved by the time the Bill is brought into operation.

Clause 70(17), (18) and (21) are re-worked and amended by the Committee.

Clause 73 Short title and commencement
Mr Mileham asked about who is going to determine the dates in clause 73(2): “Different dates may be so determined in respect of different provisions of this Act”. Is the Bill going to come back to the Committee to determine these dates?

Dr Bester replied that the “different dates” refer to the commencement of the Bill. Only the President can change the date for implementing the Act.

Mr Mileham suggested it be re-worded because it is written in a manner that gives the impression that anyone can change the dates.

The Chairperson suggested that the legal team change the wording in clause 73(2).

Schedule 1 Code of Conduct for members of houses and councils
Item 1 – Definitions
Mr Mileham suggested that the definition of “Council” be looked into by the Department. He was not satisfied with it.

Dr Bester explained that the Code of Conduct has its own definitions. Therefore the definition of “council” in Schedule must be read for the purposes of the Code of Conduct. This definition is applicable only to this schedule.

Item 4 – Sanctions for non-attendance of meetings
Mr Mthethwa asked if item 4(1) does not contravene the Labour Relations Act.

Mr Mileham said the Labour Relations Act does not apply to persons occupying public office, so it does not contravene the Act.

Item 5 – Disclosure of Interests
Mr Mileham referred to item 5(1)(a) and suggested that members should submit their declarations of interest every year, just as the Members of Parliament are required to do the same.

The Committee agreed.

Item 6 – Personal Gain
Mr Mileham asked if the Department can unpack Item 6(1) as he does not understand the relationship between item 2(e) and item 6(1). He suggested that the phrase “subject to item 2(e)” be removed.

Ms Ngema replied that it would seem that the reference to item 2(e) is linked to the disclosure of confidential information, and a member may not use that information unless required by law. She suggested that “or confidential information obtained as a member” also be removed for the clause to be sensible and relevant.

Mr Mileham fundamentally disagreed.

Dr Bester said that even if the reference to item 2(e) is removed, item 6(1) would still communicate the intended course. Therefore he agreed with Mr Mileham that only the reference to item 2(e) be removed.

Item 7 – Declaration of interests
The Chairperson stated that some things are really not declarable; the value of the interest up to a certain amount will be determined by the Minister in the Gazette.

Item 9 – Unauthorised disclosure of information
Mr Mileham asked if the House or Council has the authority to classify information as privileged or confidential. He further pointed out that meetings should not be closed, they should be made public and no one should be stopped from attending the proceedings unless otherwise stated in the Order of the Day.

Mr N Masondo (ANC) stated that people who work for security agencies tends to abuse their position and then ask members of the public all sorts of questions. He slightly disagreed with the suggestion that meeting should be made public at all times. This should be at the discretion of the Council Committee or Council.

Item 10 – Breach of code by a member of the National House
Mr Mthethwa said that the involvement of the Minister in Item 10(2) is too early, because the Minister needs to be neutral as the appeal body. If the Minister is involved in the investigation stage of a matter how is he/she going to be neutral when that individual is appealing the decision emanating from the investigation. He suggested that Item 10(2) be re-worded to ensure a fair appeal process for those who may wish to appeal to the Minister.

The Chairperson asked the Department to look into Mr Mthethwa’s suggestion.

Mr Mileham suggested that a time frame needs to be inserted in Item 10(7)(a), after such time that the National House failed to appoint a committee to investigate the breach.

The Chairperson suggested that a committee should be established that members of the public can go to in order to report a king or other leader who breaches the code of conduct, because if a member of the public reports to one king, that king may inform the king being reported on. This will not do justice to the public. Secondly, if the public do not have access to the National House the Department should perhaps look into this and find a way in which it can be crafted and inserted into the Bill.

Mr Nwaila agreed that this would definitely assist members of the public, and the Department will look into inserting this into the Bill.

Ms J Maluleke (ANC) asked if that committee is going to comprise of kings or external members of the public.

The Chairperson replied that it would have to be comprised of members of the National House, as well as external members but there must be an independent administrator. This committee will be designated to serve as a registry of complaints.

Item 11 – Breach of code by a member of a provincial house, a local house or a council
Ms Maluleke asked about why the House lacks the power to suspend a member of a provincial house, a local house or a council that has breached a provision of the code of conduct, as outlined in 11(2)(c).

Dr Bester replied that the Council or the House has certain powers as well as the Premier; it may not be fair that the Council removes the members when they are actually appointed by the Premier. Therefore, since the Premier appointed the member, the power to remove a member should rest within the Premier.

Schedule 2 Oath and affirmation
Members looked at Part A and B – oath and affirmation by members of the national house, provincial houses and local houses. No changes were suggested by Members.

Schedule 3 Amendment of legislation and Schedule 4 Repeal of legislation
No substantive changes were suggested by Members.

The Chairperson thanked the Members and the Department.

The meeting was adjourned.