Traditional Indaba day 1, with Deputy Minister

Meeting report

The Chairperson, in her introductory remarks, said the relationship the Committee had with the institution of traditional leadership was there to foster areas of common interest. Currently, there were many disputes around traditional leadership which needed to be resolved, because the institution of traditional leadership had a role to play in the nation building project. Women had to ascend to the throne in terms of planning for succession. Issues of customary marriages, virginity testing, circumcision, and current laws were some of the issues which she hoped would be clarified during the debate with the National House of Traditional Leaders (NHTL).

Briefing by Deputy Minister

Mr Obed Bapela, Deputy Minister, Cooperative Governance and Traditional Affairs (COGTA), welcomed the initiative by the Committee to engage the traditional leadership sector. He said the Indigenous & Khoisan Indaba that was held recently had raised a number of thorny issues, and the document would be sent to the Committee.

One matter that was brought up was that a law should be created so that communal land which was held in trust under the state should go to its original people. Secondly, the security of tenure was another issue the communities raised, and how the Ingonyama Trust Board saga was going to be addressed. Thirdly, traditional leaders complained about the budget of the Department, and suggested there should be separate votes as from next year, and that consideration should be given to the remuneration of traditional leaders and for their tools of trade. Fourthly, the debate around the powers and functions of traditional leaders should be resolved soon, because it had been going on since 2002. Fifthly, there was a big contestation in public between constitutional democracy and the traditional leadership system. It must not be forgotten, because there was a chapter in the constitution that dealt with the traditional leadership system. Sixthly, there was a resolution to build a Chamber or House for traditional leaders. That matter had not been resolved. Seventh, the Cultural Initiation Bill and the Traditional Courts Bill were in the hands of the National Council of Provinces (NCOP). They had passed through the National Assembly (NA) during the 5th Parliament. Lastly, he pointed out that harmful traditional practices like ukungenwa, ukuthwalwa, forced marriages, and ukuzila, for example, had got no space in the South African democratic system. The Department had to listen and see how it was going to address all these concerns.

Briefing by NHTL Chairperson

Nkosi Sipho Mahlangu, Chairperson of the NHTL, informed the Committee the President had signed the Traditional and KhoiSan Leadership Bill into law. This would correct the damage that had been done, so that traditional leaders could sign investment contracts on behalf of their communities.

He said the traditional leadership sector had been in existence before colonialism. Traditional leaders were the government of the day, even though they were working in a fragmented structure. They found themselves today in a position they were in because the traditional leaders fought many wars on land, but they fought individually, not collectively. That was why they were colonised. The land that was fought for was in the hands of the Minister, just like before and during apartheid.

Nkosi Mahlangu admitted the sector was not pure. Mistakes had been committed. There were those who were still against the sector and those who were for it. Fortunately, the constitution recognised the sector as a structure that had to exist. Unfortunately, a template that was designed by apartheid in establishing the sector had been imposed because no work was done to see how this sector was operating before colonialism. Consequently, this had led to conflicts with ward councillors and municipalities. There had been voices that were against traditional leaders, while traditional leaders, on the other hand, were saying their subjects were happy with them. There were mistakes that could be improved or resolved.  Many traditional leaders had refused to work with colonisers. As a result, those leaders were replaced by others, while some collaborated with the colonisers.

He pointed out they had not been given enough budget to evolve as a sector. The budget was so meagre to a point it had been difficult to sign service level agreements (SLAs) or contracts with municipalities because the people representing the sector were volunteers, while those representing the municipalities were remunerated researchers. For instance, the sector in Mpumalanga had been allocated R100 000 for the whole year. The sector had been given a gun, but the bullets had been taken away. That was making it difficult to fight the war of looking at legislation the government was supposed to implement. There had not been a single Member of the Executive Council (MEC) who had made a determination on the powers and functions of traditional leaders in municipalities. As a result, traditional leaders were agreeing to things they had not agreed upon because they were not part of the caucus.

It was hoped the Committee would help the traditional leadership sector to ensure the implementation of pieces of legislation, especially on matters stated by the President. The follow-up would be done with the Deputy President.  A draft document for the sector had been developed, and there were a number of projects that needed to be discussed with the Committee. These were agrarian programmes, land programmes, village feedlot programmes, and vegetable garden programmes. These programmes would empower cooperatives in the villages and were already attracting young people to the agriculture sector. Traditional leaders had secured markets for these programmes. Already, memorandums of understanding (MOUs) had been signed with lottery companies so that these projects could see the light of the day.

Nkosi Mahlangu highlighted that the policy and legislation that was supposed to assist traditional leaders had not been meant to empower the sector. The intention of legislation drafters was not to empower the sector, but to let it support the government, because it did not have legislative powers. Some of the pieces of legislation that had been passed had not been budgeted for. Questions on who was supposed to budget for these pieces of legislation abound. The sector could only do things when it got funding from the private sector. Currently, the sector was operating on an annual budget of R6m. The sector was on its own.

In addition, people were taking advantage of Parliament’s public participation processes. There was a need to go to traditional councils and hear views of the communities, and not force people to go to towns for comments, because the sector did not have money to bus people to towns. It was not understandable why experts on traditional maters were from Cape Town, particularly the University of Cape Town (UCT) and the University of the Western Cape (UWC). White people were getting title deeds to build malls in lands given by the Department of Rural Development and Land Reform (DRDLR), yet those lands belonged to the communities. Developers were just given permissions to occupy. That was another matter that should be looked into.

Lastly, he said the traditional leadership sector should work closely with municipalities on infrastructure maintenance, and it did not have to compete with the same constituency. The sector only wanted to participate fully and plan with communities and municipalities.

Briefing by Eastern Cape Province

Nkosi Langa Mavuso, Deputy Chairperson: Eastern Cape House of Traditional Leaders (ECHTL), said the ECHTL public participation model was enabling rural people to take control of their destiny, in order to deal with poverty, unemployment, and inequality through the optimal use and management of physical, intellectual, and natural resources. This would enable rural people to learn over time how to adapt their indigenous knowledge to their changing world.

The ECHTL developmental monarchy was still in a development state. As traditional leaders, they had a lifetime commitment and that was why they were legitimate to their communities because the traditional leaders were staying in rural communities and were experiencing the problems affecting the communities they served, and they had insights into indigenous knowledge systems. Politicians had only a five-year commitment, and thereafter they disappear. The traditional leadership sector was having difficulty in implementing the Spatial Planning and Land Use Management Act (SPLUMA).

Nkosi Mavuso said the role of traditional leadership was political in nature and had to be tempered by vibrant, innovative, and visionary community development agencies, which required a different set of skills to drive this developmental agenda. 26 out of 39 municipalities in the Eastern Cape had traditional leaders assisting municipalities in developing initiation programmes to avoid unnecessary deaths. District municipalities had initiation committees. The instability in the Nelson Mandela Bay municipality was affecting the initiation programme. The ECHTL was also facilitating the filling of vacancies at municipal councils on a quarterly basis, and providing oversight to determine the level of effectiveness of their participation and assessing working conditions.

Traditional leaders participating in municipal councils had a responsibility to influence municipalities to embrace and promote heritage, language, customs and tradition; support municipalities in the identification of community needs; and facilitate the involvement of traditional communities in the development and review of Integrated Development Plans (IDPs).

The challenges were around the non-existence of a tradition, culture and customs desk at municipalities; lack of office space for traditional leaders participating in municipal councils; some traditional leaders not attending council meetings; and inconsistency in the provision of the tools of trade, benefits and out of pocket expenses, as municipalities varied, based on capacity.

Regarding claims and disputes, he said the province was experiencing instability in the institution because the Eastern Cape had many kings. The Department, for instance, did not want to recognise the AmaRharhabe Kingdom. The government had been dragged to courts, and the courts had found the government wanting on these matters. The Eastern Cape, as a result, was in the process of drafting and finalising policy guidelines to address this. Their system was by the principle of primogeniture, even though mothers were allowed to be regents for their sons (heirs). In the same province, some royal families were not allowing women to act as regents, especially in Western Thembuland, so the ECHTL was trying to intervene. The House of Traditional Leaders only facilitated dispute resolutions and made recommendations to the premier. It was the royal family that gave a traditional leadership position.

Lastly, he indicated the institution would like to go large on its development initiatives, which were in line with the agriculture revolution, but the challenge was the lack of support from the government. These development initiatives involved a citrus development programme, macademia nuts, maize production, livestock production; granite quarry mining; Commemoration of Frontier Wars of Land Dispossession and our Heroes; and Home of Legends. The ECHTL was planning to move out of COGTA, and remain only with Traditional Affairs.

Briefing by Free State Province

Kgosi Lebohang Sekonyela, Deputy Chairperson: Free State House of Traditional Leaders, said his province had five recognised traditional communities, two recognised principal traditional leadership positions, and 13 recognised traditional councils. The House was established in accordance with the Free State Provincial and Local Houses of Traditional Leaders Act. The Free State House was constituted of 15 traditional leaders from all five of the recognised traditional communities. The province had two local houses -- Mangaung and Thabo Mofutsanyana Local Houses of Traditional Leaders.

The Free State House of Traditional Leaders (FSHTL) had embarked on a number of activities with various provincial departments. Regarding arts and culture, the FSHTL continued to celebrate annual cultural days for the five recognised traditional communities. The institution had a cordial relationship with the Department of Sport, Arts, Culture and Recreation in hosting the Basotho New Year celebration in August.

On land administration, he said there was no provision for expansion of land in traditional communities as the population grew. The institution of traditional leadership was facing challenges in the administration and management of land.

Two traditional communities were collaborating on two agricultural projects with the Department of Agriculture, Land Reform and Rural Development (DALRRD). The DALRRD partnered with these two communities in “One Family, One Cow and Twenty Chicken” projects. Through this project, garden tools were made available to 1 500 households, and 22 chickens to 56 households. The DALRRD allocated one tractor for each community to assist with cultivation. Traditional communities which were landless had initiated communal food gardens which were supported by the Motsepe Foundation.

The institution was working closely with the Departments of Health, Police, Roads and Transport, and municipalities to ensure safer initiation schools, and municipalities had to ensure initiation committees were established to curb illegal initiation schools. The province was continuing to capacitate traditional leaders by hosting HIV/Aids programmes to continue the fight against this pandemic.

During November, the province had launched the Queens Forum with the objective of creating an enabling environment for women in traditional leadership, and for rural women to participate in empowerment programmes that contribute to sustainable livelihood in the five recognised traditional communities. The South African Judicial Education Institute (SAJEI) had provided training to the institution of traditional leadership to administer justice over their areas of jurisdiction. The traditional leaders were continuing to make inputs on Bills; participating in the Cross Border Crime Prevention Forum to curb stock theft, illegal initiation schools, land invasion, etc.; and were partnering with the private sector to install boreholes in traditional communities to address the scarcity of water supply in these areas.

Challenges facing the institution included an inadequate budget for the traditional leadership, office accommodation for Provincial and Local Houses, land administration and management, capacity building for traditional leaders, lack of provision for traditional leaders to participate in municipal councils, lack of provision for traditional leaders to participate in IDPs, and lack of information communication technology (ICT) infrastructure in traditional leaders’ offices.

In his conclusion, Kgosi Sekonyela urged the government to continue to assist the institution of traditional leadership to ensure it was rendering its core service of advising provincial government on developmental matters relating to indigenous law, traditions and customs affecting traditional communities, promoting the role of traditional leadership in the province, and participating in national and provincial developmental programmes.

Briefing by North West Province

Mr Mothibedi Kegakilwe, Member of the Executive Council (MEC): Cooperative Governance, Human Settlements and Traditional Affairs, North West, identified the non-signing of a moratorium in the appointment of headmen and the available land that was not fully utilised by the government, as key issues. His department had an engagement with one chief who suggested the MEC should apply for water rights on their behalf, so that the community could use the land lying fallow for agricultural purposes.

He said the institution of traditional leadership was experiencing challenges in mining areas. The mining houses were seen as the source of division between traditional leadership and communities. The use of royalties was solely for the chief or the traditional council. Another challenge that was peculiar to the North West was the D Account coming from the former Bophuthatswana homeland. This account had got a number of subsidiary accounts, and still had money. The matter had never been resolved, and the province had gone to the Public Protector for advice.

He pointed out the budget of the institution was not enough, because it was difficult for them to appoint professionals like anthropologists for research, or for fighting disputes. Even though that was the case, there were traditional leaders who were making good progress in terms of development in their communities. The traditional leaders were playing no meaningful role in municipalities, however, because there was no clarity on their roles and functions in terms legislation.

Finally, he stated decisions had been made with regard to tools of the trade, but there had been no implementation. The province was building one office a year, yet the institution had 56 traditional leaders. The vehicles of the institution had not been maintained for years. He informed the Committee the institution would be having a three-day session before the start of the festive season to map a way forward for the North West in terms of traditional leadership.

Discussion

Prof Luka Mosoma, Chairperson, Cultural, Religious and Linguistic (CRL) Rights Commission, said the Commission had been mandated to promote the rights of communities. It had been built on three pillars: culture cohesion, religion cohesion, and linguistic cohesion. These three constituted social cohesion in order to build national unity, peace, and harmony. Culture, religion, and language were the custodians of traditional leadership, and it was critical that a working relationship continued to thrive between the three to identify areas of collaboration. The Commission was always trying to identify what was common in all cultures, since many cultures were holding many societies apart. This, therefore, was making it difficult for cultural cohesion.

On unacceptable harmful practices, he gave the example of ukuthwala, which Westerners see as abduction. He said it was important to look at the historical context of this practice and its relevance today. One would find that in the African context, there was a mutual agreement between the families involved. He also mentioned virginity testing had been done to discourage the young from sexual intercourse up to a certain age, so as to avoid teenage and unwanted pregnancy, and infections like HIV/AIDS. He pointed out that initiation had been practiced for a long time though there had been no deaths, but now it could be that certain things were not done right at the initiation schools as some people open them or profit. Even when it came to initiation, it was significant to find things that were common.

Religion and culture were part of the movement, and the economy was part of their life. African languages had not been introduced to the economy, and that was why they had not developed. The reason for this was that parents did not want learners to study in their home languages, as they were concerned about the future of their children with the use of African languages. The challenge had remained, that all languages should be treated equally and equitably. He noted there were areas that were common and which needed to be developed. Those were the areas where traditional leadership could play a role.

Ms H Mkhaliphi (EFF) remarked she had once suggested there should be a workshop to understand the role of traditional leadership, because of some of the matters raised by Nkosi Mahlangu and Nkosi Mavuso. She was worried that amakhosi who were women had said nothing. Committee Members had heard nothing about rural women’s organizations, though they had been told they existed. It was the duty of the amakhosi to empower women in rural areas. She had come across a chief who was in a bad health in Plakfontein around Kimberley. The house was dilapidated and he was wheelchair bound. The chief had told her the previous MEC was aware of his condition. She had then asked the chiefs to investigate the matter.

Regarding land and Permission to Occupy (PTOs), she indicated the issue of land was still debated in Parliament and it was important to know the contribution and position of the chiefs on this matter, because the EFF had met the Congress of Traditional Leaders of South Africa (Contralesa) to articulate its position on the land matter, which was expropriation without compensation. She wanted clarity on the policy guiding PTOs, so that it could be explained to people because it appeared to her that it had not been coordinated well. The confusion was around the R1 000 that gets paid for occupation of land by investors, who get a title deed from the Department of Rural Development and Land Reform.

Nkosi Nosandi Mhlauli, Deputy Chairperson, NHTL, said she had indicated to her Eastern Cape province that if it had said nothing about women and unacceptable harmful practices, it had to keep quiet for good. Women’s structures within the NHTL had held a national conference. The resolutions were touching on what was raised in the Committee on the role of women. It had been resolved that provinces should start women’s structures. The Eastern Cape was the first to set up Imbumba Yamakhosikazi, and North West had followed suit. Unfortunately, when Edna Molewa left, the idea collapsed in the North West. KwaZulu-Natal (KZN) had a clear programme, and the Free State had recently launched its own, led by the Premier and MEC.

She also pointed out women’s structures within the NHTL attended the men’s Parliament on the ticket of promoting the Boy Child Programme, which was in all provinces. The conference resolved men should go back to basics and define the meaning of being a man.

She made it clear that unacceptable harmful practices were not only in the Eastern Cape, but all over the country. The NHTL had forged a relationship with the Department of Social Development to deal with poverty, teenage pregnancy and other social ills through the programmes of the NHTL. The main challenge with the Northern Cape  was the shortage of traditional leaders. That was why it had no seat in the NHTL. She admitted traditional leadership was dominated by males, with women only as regents.

Nkosi Mahlangu referred to the Plakfontein chief issue, and indicated the matter would be given attention now that the KhoiSan Bill was an Act. He added that the Ad Hoc Committee on Section 25 would be assisting on how the parties could work with traditional leaders on the question of land. A workshop had been held to discuss the matter, but unfortunately the DA and EFF had declined the invitation.

Princess Gabo Moroka, NHTL EXCO Member, welcomed the spirit from the Committee to understand the traditional leadership system in its entirety, based on African values and identity. She was concerned most South Africans were embracing foreign royalty, rather than showing an interest in their own. She said they owed it to themselves to talk about things that make them uncomfortable in order to go forward. She maintained the functionality of the sector was not adequately funded. For example, the Thaba Nchu traditional area had 42 villages were each was subsidised by R2 000 per month.

The traditional leadership sector was modest about talking of the work it was doing. There was a need to talk about the agrarian revolution. They had made presentations to the President, but nothing had been forthcoming. The sector was piloting a project – Bojanala -- in North West to explore the potential of groundwater.

Finally, she conceded patriarchy was real and still existing in the sector, even though progress had been very slow. When the sector entertained these disputes, the indication was that the traditional leadership in the entire country should be investigated.

Kgosi Kgasebone, NHTL EXCO Member (North West), remarked it was crucial for Members to understand how the traditional leadership system worked. The women who had spoken have said a lot. The traditional leadership institution had existed since the Stone Age, and had been tested many times. He pointed out the Committee had to be educated on the procedures and protocols of the NHTL, the contestation of chieftainship, and said that a committee had to be established to make follow ups on the pronouncements made by the President during the State of the Nation Address (SONA).

Mr K Ceza (EFF) said the EFF was continuing with the fight over land that was started by the traditional leaders a long time ago, and its position was clear. The sector should start establishing museums on arts and culture for future generations. That would be a coordinated way of writing history with traditional leaders. He asked the traditional leadership to tell the Committee how it was planning to address the shortage of burial land in urban areas. He indicated beneficiation was not being properly addressed -- it was not acceptable for multi-nationals to come and loot in front of traditional leaders and when the product was finished, they disappeared.

Nkosi Mahlangu said there were traditional leaders that were trying to build museums in their areas, like the AmaRharhabe Kingdom in the Eastern Cape. He also indicated a socio-development model was being developed for rural communities to guide traditional leaders in the development of communities in terms of beneficiation.

Ms D Direko (ANC) commented the meeting should not only be a talk show, but should produce fruitful results. She wanted to know what mechanisms were in place to ensure a good, healthy working relationship existed between the traditional houses and local government. She asked how long it was taking the Department to investigate kingship cases, because there were specific provincial challenges like instability and contested kingships. She proposed a monitoring and evaluation committee should be established so that it could do follow-ups on commitments made by the President, because they were not being implemented. She recommended there should be a long term plan to measure progress and to provide feedback on achievements and failures.

Nkosi Mahlangu informed the Committee the NHTL was cultivating a relationship with the South African Local Government Association (SALGA). There was already a memorandum of understanding (MOU) that was being developed, so that traditional leaders could attend the workshops that ward councillors were attending after local government elections. This would ensure everyone understood what the other hand was doing. The NHTL was working towards resolving disputes on contested kingships. He commented that most queens had become destitute when the king died, because the money went to the son, who also had a family, and this was dividing the families.

Ms M Kibi (ANC) observed the sector was not pure or clean, because the colonialists had wanted to destroy it. There was a need to change the mindset and move forward. There was no 100% good working relationship between the local government and traditional leaders, because the laws that were developed by the traditional leaders had not been accommodated after 1994. The government was continuing to make use of Roman-Dutch Law. There was a need to have a well structured model or framework, and make use of indigenous information. In addition, traditional leadership should be at the forefront of things affecting the communities they served, because it now appeared the interests of non-governmental organizations (NGOs) were put before those of traditional leadership. Provinces should start to take note of the House of Traditional Leaders seriously.

Nkosi Mahlangu said the issue of Roman-Dutch Law had been discussed a lot. The suggestion had been that customary law should become the common law. He admitted the NGOs had been given bigger voices, even though they were not seen in rural areas. The innocent voices had been bought, because when the NGOs had been asked to criticise the NHTL, they wanted to be paid.

Nkosi Shinga, NHTL EXCO Member (KZN), proposed that the traditional courts should also house other activities, like mobile clinics and police, Social Development Department access points, and administration. He said funding was proving to be a challenge for many projects aimed at women. The Boys to Men project, which had to do with the upbringing of boys, had received no funding for the current year even though it had received financial assistance from COGTA and the Department of Social Development last year. He suggested there should be a standardised approach when it came to traditional houses, because they were not treated the same.

Nkosi Mahlangu said that the Ministers and Members of Executive Council (MinMec) had approved a document on standardisation regarding the houses of traditional leaders.

Nkosi B Luthuli (IFP) observed nothing had changed in the traditional leadership sector since the new government came into power in 1994. There were no clear functions for the roles of chiefs or amakhosi. There was an Act of 1990 in KZN that clarified the role of the amakhosi or chiefs. He was feeling bad because nothing had been done for chiefs since 1994 even though the chiefs had indicated the role they wanted to play in the new dispensation. He cautioned that NGOs should not be taken seriously, because they did not have the interests of the chiefs at heart. He appreciated the fact that the challenges of the traditional leadership sector had been brought before the Committee.

Mr Ceza proposed the music curriculum at tertiary institutions should be coupled with African culture, because many European countries were exporting African traditional music while local communities were not benefiting, and that was something the traditional leadership should look into.

The Chairperson commented that the presentation delivered by Nkosi Mahlangu had detailed all the challenges facing the sector, including recommendations. She wanted to understand what was wrong with SPLUMA, because the traditional leadership had complained it had not been consulted on the matter. It was important to involve the traditional leadership during the initial stages of the Bill, so that its concerns could be factored into the development of the Bill. It was not making sense to pass the Bill and for the President to take a year to sign it into law.

It had been said the traditional courts belonged to the justice department, and the assertion that these courts were discriminatory was wrong. For instance, being banned from a community was a sign one was not fit to belong in that community. She wanted to find out what the traditional leadership was doing to ensure communities were respecting it, without imposing itself on the communities.

She also commented there was a lack of synergy between the Thusong Centres and Traditional Councils, and suggested these two should be the centres of administration rather than be allowed to be white elephants. It was not clear now what the value of the cultural villages was. She noted irrigation schemes were facilitated by traditional leaders, but now those pieces of land were no longer being put to good use. She gave an example of a young chief who had been empowering his community to a point his community did not need the services of a ward councillor.

Traditional leaders were supposed to advocate on behalf of their communities, especially on programmes of arts and culture, safety and security, and education, because these programmes belonged to the institution of traditional leadership. If the government was failing to provide support for these programmes, then the traditional leadership should approach the Committee for advice and report the matter. Lastly, she suggested the Committee needed to be fully educated about the monarchy of SA, so that it could have an informed opinion.

Nkosi Mahlangu admitted the traditional leadership had not pushed hard on its side because it had let democracy to take control of the traditional leadership sector. He agreed totally with the concerns raised by the Chairperson, because there was no reason to build new facilities when Thusong Centres or Traditional Councils were in place, and they could serve as facilities for administration.

Ms Mkhaliphi asked for clarity on why the Limpopo House of Traditional Leaders was not pleased with the outcome of the court, which had been in favour of the VhaVenda king, who was a female.

Nkosi Mahlangu stated that according VhaVenda culture, there had never been a history of a female leader. It was the family that decided on the kingship. If the father had passed on, the second in line should be the next to take over. The NHTL had done research on how to guide the family on this matter, but the decision of the family was the one that counted at the end of the day.

The Chairperson noted the engagement had helped the Committee to understand the evolution of kings, protocol, and decorum in the traditional leadership system. The stubborn challenges facing the traditional leadership had been raised. What was important was sufficient consensus through dialogue and decision-making. The Committee would now have a better understanding of how the traditional leadership system worked.

The meeting was adjourned.