Local Government: Municipal Structures A/B & Customary Initiation Bill: final mandates

NCOP Cooperative Governance & Traditional Affairs, Water and Sanitation and Human Settlements

24 November 2020
Chairperson: Mr C Dodovu (ANC; North West)
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Meeting Summary

Video: Select Committee meeting 24 November 2020

In a virtual meeting, the Department of Cooperative Governance and Traditional Affairs (COGTA) briefed the Committee on the final proposed amendments to the Local Government: Municipal Structures Amendment Bill. The changes proposed after considering the negotiating mandates were:

- The Long Title of the Bill was amended to include “to provide for transitional arrangements in respect of municipalities with a plenary executive system”.
- In Clause 1 definition amendments were made to “authorised representative”, “Code of Conduct”, “local council” and “municipal public accounts committee”.
- Technical changes were made to Clauses 7, 9, 10, 13 and 14.
- “set out in Schedule 1 to the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000; and “ was removed from Clause 18(a)(e).
- Further technical changes were made to Clauses 22, 23, 24(2), 25(2).
- “for Councillors set out in Schedule 1 to the Local Government Municipal Systems Act, 2000” was removed from Clause 27(3).
- The amendments to Clauses 29, 29(2), 29(3) and 29(4) was the writing of “municipal public accounts committee” in small letters.
- Technical changes were made to Clause 29(3)(b), 29(3)(c), 29(5)(a) and 33(a)(B).
- Further changes were made to subitems 11(1), 15(4), 16(4)(b) and 16(8) of the Code of Conduct.
- The amendment of Clause 37 included “section 54”.

In response to Committee question on who should be the Municipal Public Accounts Committee (MPAC) chairperson, the COGTA Director General said that the chairperson must come from the opposition.
The final mandates from the nine provinces all supported the Bill which was adopted with these amendments.

The proposed amendments to the Customary Initiation Bill after consideration of the negotiating mandates::
- In Clause 1 these definitions were amended “abuse”, “area of jurisdiction”, “local house”, “National House”, “principle traditional council”, “provisional house”, “traditional community”, “traditional council”, “traditional leader”, “emergency services” and “standards for initiating schools”.
- Clause 2(2)(b) was amended to be aligned with the new definition of abuse.
- Sub-Clause 4 of Clause 2 was amended to be split into (a) and (b).
- Sub-Clause 4(c) is a new addition to Clause 4 which states that “A care-giver, traditional surgeon or traditional health practitioner may only be involved in initiation practices or any aspect of such practice, after a period of 10 years 30 has lapsed since he or she graduated from an initiation school”.
- Sub-Clause 7 of Clause 2 were amended to include ‘gender or sexual orientation”.
- Sub-Clause 8 of Clause 2 is a brand new Sub-Clause which states the following: 8(a)Every initiate has the right to confidentiality regarding his or her health status”, 8(b) “A medical certificate required in terms of the provisions of this Act is confidential and must be treated as such by the medical practitioner issuing the certificate and by any person or body to whom such certificate must be submitted in terms of this Act” and 8(c) “Notwithstanding paragraphs (a) and (b), the confidential status of a medical certificate may not be used as a reason for non- compliance with section 22(1)(c) to (f) or (2)”.
- Technical amendments were made to Clauses 4(1)(b), 4(1)(f), 4(1)(i), 4(1)(j),
- Clause 5 was amended to ensure that the responsible Minister or DG chairs the first NIOC meeting.
- Further technical amendments were made to Clauses 15(1)(e), 15(1)(g), 21(10), 22(1)(c), 24(2)(a), 28(4)(d), 31(2)(b), 32(1), 32(2), 33(6)(d) and Clause 42.

Members raised questions about the gender of the medical practitioners and the different cultures. The Department replied that the Bill regulates the initiation process and does not determine what the culture must do in terms of its customs and norms. Members asked if the Department recognises traditional practitioners and what they do if a medical practitioner is not allowed to be involved in the initiation process. The Department replied that it does recognise traditional practitioners however they must have qualifications and be registered and the medical practitioner can only be involved if the practitioner has been invited.

Final mandates were received from eight provinces (except the KZN province). Seven of the provinces supported the Customary Initiation Bill with amendments. The Free State did not support the Bill. The Customary Initiation Bill was supported by a sufficient number of provinces.

Meeting report

Municipal Structures Amendment Bill: final mandates & proposed amendments
The Chairperson noted that the Committee had received the final mandates from all nine provinces and all the provinces were in favour of the Local Government: Municipal Structures Amendment Bill.

Mr Kevin Naidoo, Executive Manager: Department of Cooperative Governance and Traditional Affairs (COGTA) read out the proposed amendments in the D version of the Bill with the yellow highlights indicating the changes:

The Long Title of the Bill was amended to include “to provide for transitional arrangements in respect of municipalities with a plenary executive system”.

Clause 1(a) the definition of “authorised representative” was changed “in relation to a party, means a natural person daily authorised by the party in accordance with its constitution to act on the parties behalf for purposes of performing the duties contemplated in sections 27(2) and 43(2)(d) and (e)’’. Clause 1(b) changed the definition of ‘Code of Conduct’ to say that “by the insertion before the definition “councillor” of the following definition: ‘Code of Conduct’ means the Code of Conduct for councillors set out in Schedule 7”. Clause 1(c) was amended to include “by the Electoral Commission” and Clause 1(f) the definition of Local Government: Municipal Finance Management Act was changed to state that “by the insertion after the definition of ‘local council’ of the following definition: ‘Local Government: Municipal Finance Management Act’ means the Local Government: Municipal Finance Management Act, 2003 (Act No. 56 of 2003)”. Clause 1(g) was amended by decapitalisation of the words “municipal public accounts committee”, which means the committee and not the Committee “as established in terms of section 79A”.

Clause 7(b) was amended to include the number “10” to align with the number of municipalities in each province and the word “or” was removed. Grammar changes were made in Clause 7(c) removing the full-stop and replacing it with the word “or” and in Clause 7(d) the word size was replaced with the “area” to coincide with square kilometres.

Provisions were made to Clause 9 which includes the “Code of Conduct: 21A The Code of Conduct applies to every member of a municipal council”.

Amendments were made to Clauses 10(b) and 11(c) to include “by the Electoral Commission” for ease of reference.

The number 1 was included in Clause 13(a) “1 A councillor vacates office during a term of office if that councillor-”, this was done to make reference to the Code of Conducts because there are two. “for Councillors set out in Schedule 1 of the Local Government: Municipal Systems Act, 2000 7,” was removed from Clause 13(c) and Clause 13(d) was amended with the inclusion of “only an authorised representative”.
Technical changes were made to Clause 14 to include “the municipal manager, or in the absence or refusal by the municipal, a person designated by the MEC for local government in the province, may call and chair the meeting”.

“set out in Schedule 1 to the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000; and “ was removed from Clause 18(a)(e)for ease of reading.

Technical changes were made to the following Clause, in Clause 20(a)(1)(a) the word “determined” was included, in Clauses 20 (d) and (e) “through an authorised representative” was included.

In Clause 22(a) the word Election was replaced by the word “Determination” and in Clauses 22(b) the word elect was replaced by the word “determine”

In Clauses 23 and 24(2) the word elected was replaced by the word “determined”.

In Clause 25(2) the amendment included “a new determination of members must take place, and a new election of (and)” with the removal of the word election.

“for Councillors set out in Schedule 1 to the Local Government Municipal Systems Act, 2000” was removed from Clause 27(3).

In clause 29 the “municipal public accounts committee” was written in small letters and in Clauses 29(2), 29(3), and 29(4) “municipal public accounts committee” was written instead of just the word committee. The technical amendments to Clause 29(3)(a) was the inclusion of “Auditor- General’s”, “management committee” and “audit committee”. In Clause 29(3)(b) the amendments included the “management committee and the audit committee”. The amendments of 29(3)(c) included “initiate and develop the oversight report on annual reports contemplated in section 129 of the Local Government; Municipal Finance Management Act;” and in Clause 29(3)(e) the word but was replaced with a comma in “initiative, subject”. Changes to Clause 29(5)(a) included the removal of the number and year of the Act.

In Clause 33(a)(B) the word seats was replaced with the word “votes”.

Grammar changes we made to item 11(1) of the Code of Conduct, the comma was placed after the word not in “A councillor may not,”. In item 15(4) of the Code of Conduct the word Chairperson was replaced by the word “speaker”, for consistency because the word speaker is used throughout the Code of Conduct. In item 16(4)(b), “by the MEC” was inserted at the end of the sentence. In item 16(8) of the Code of Conduct we made an incorrect reference to subitem (6) and changed it to “subitem (7)” and the “Promotion of Administration Justice Act, 2000 (Act No. 3 of 2000).

 In the repeal of laws, Clause 37 we inserted “section 54 because we include the provisions of the Code of Conduct into this Bill.

The amendments of “Transitional arrangements” of Clause 38 was done in order to deal when the plenary executive will come into operation or be obsolete, the amendments includes that “A municipality with a plenary executive system immediately before the commencement of this Act, will continue to exist as a municipality with a plenary executive system until the date of the first local government election after commencement of this Act”.

In Clause of 39 the Act of 2018 was replaced by the Act of 2020.

Discussion
The Chairperson commended COGTA on the fine adjustments to the Bill so that it can be passed.

Mr S Zandamela (EFF, Mpumalanga) asked what the financial implications of this Bill are.

Mr Naidoo replied that this matter has been raised a lot about remuneration of ten councillors because there is normally five or seven councillors in a given municipality. The ten councillors are paid by National Treasury through the Local Government Equitable Share (LGES). In a grade one municipality, Treasury subsidises 90% of the remuneration of councillors, in grade two municipalities Treasury subsidises 80% and in grade three Treasury subsidises 70% of the remuneration of councillors.

Mr I Sileku (DA, Western Cape) asked who should be the chairperson of the Municipal Public Accounts Committee (MPAC) because it is problematic if the deputy mayor of that council is also the MPAC chairperson.

Mr Naidoo replied that if there is a council with a majority then the MPAC chairperson should come from the opposition. The council rules of order indicate that the council should deal with that because in some councils there is no outright majority or opposition. An office-bearer is not allowed to be a MPAC member.

All the provinces supported the Bill and therefore the Bill would be adopted with amendments.

Customary Initiation Bill: final mandates and proposed amendments
The Chairperson indicated that he has received the final mandates from seven provinces but not from the Western Cape and KZN. Six of the seven final mandates support the Bill. The Free State does not.

Dr Rinaldi Bester Chief Director: Policy and Legislation, Department of Traditional Affairs, said that the Department with the parliamentary and state advisors had ensured that the C-list contains all the amendments suggested by the Committee and that the amendments are included correctly in the D-version of the Bill. He noted the following proposed amendments to the Bill:

In clause 1 of the definitions, the definition of “abuse” was amended to state that “ ‘abuse’ includes but is not limited to physical or mental abuse, sexual abuse, any form of gender-based violence and any harmful practice that an initiate may be subjected to;”. This was done to ensure that there are no limitations in the definition and that physical and mental abuse is included.

The definitions of “area of jurisdiction”, “kingship or queenship”, “local house”, “National House”, “principal traditional council”, “provisional house”, “traditional community”, “traditional council” and “traditional leader” have all been amended to include the new Traditional and Khoi-San Leadership Act (TKLA) once the new TKLA commences.

The definition of “emergency services” was amended to “‘emergency services’ means any services needed as a response to an urgent, impending or recurrent situation for which knowledgeable and expert intervention is required to ensure the welfare of initiates and any other person present at an initiation school, including but not limited to emergency medical services, ambulance services, fire-fighting services and disaster management services;”.

The definition of 'standards for initiation schools' "means standards for initiation school premises published under General Notice No. 1229 of 2015 in Government Gazette No. 39561 of 24 December 2015 as part of the National Health Norms and Standards for Premises, as may be amended from time to time.” The definition includes the new TKLA. This definition was amended to follow the regulations that the Department of Health prescribed.

Clause 2(2)(b) was amended to include “all forms of abuse” in order to be aligned with the definition of “abuse”.
Sub-Clause 4 of Clause 2 was amended to be split into (a) and (b) which states the following that “Any principal, care-giver, traditional surgeon or traditional health practitioner who is involved in initiation practices or any aspect of such practice, must, subject to section 37(3) and (4), be at least 40 years old and must have undergone initiation himself 25 or herself” and Sub-Clause 4(b) A principal must have prior and proven experience as a care-giver for a minimum of five initiation seasons. Sub-Clause 4(c) is a new addition to Clause 4 which states that “A care-giver, traditional surgeon or traditional health practitioner may only be involved in initiation practices or any aspect of such practice, after a period of 10 years 30 has lapsed since he or she graduated from an initiation school”.

Clause 2(7) was amended to include “gender or sexual orientation”.

Clause 2(8) is a brand new sub-clause which states the following: 8(a)Every initiate has the right to confidentiality regarding his or her health status”, 8(b) “A medical certificate required in terms of the provisions of this Act is confidential and must be treated as such by the medical practitioner issuing the certificate and by any person or body to whom such certificate must be submitted in terms of this Act” and 8(c) “Notwithstanding paragraphs (a) and (b), the confidential status of a medical certificate may not be used as a reason for non-compliance with section 22(1)(c) to (f) or (2)”.

Clause 4(1)(b) was changed from two members of the National House to “three members of the National House”. Clause 4(1)(f) was amended to include “Youth and Persons with Disabilities” to be aligned with the new name of the Department of Women, Youth and Persons with Disabilities which was referenced incorrectly. Clause 4(1)(i) is a new Sub-clause which states that “one senior official from the Department of Sports, Arts and Culture who has knowledge of cultural customs, designated by the Minister responsible for Sports, Arts and Culture; and” and Clause 4(1)(j) is highlighted because it used to be Cause 4(1)(i). Sub-Clause 4 of Clause 4 was amended to include the reference of “(1)(j)”.

The amendment of Clause 5 states “which meeting must be convened and chaired by the Minister or by the Director-General if so directed by the Minister,”. This amendment was done to ensure that the Minister or the DG responsible must chair the first meeting of the National Initiation Oversight Committee (NIOC).

Clause 15(1)(e) the word "provisioning" was changed to “availability” and the amendment included “and accessibility of the schools;” and this was added to the criteria when the Provincial Initiation Coordinating Committee (PICC) considers reconciling initiation schools. Clause 15(1)(g) was amended to include the reference of “the standards for initiation school premises as such standards are not inconsistent with this Act,”. This was done so that when the PICC considers the initiation school, the school must comply with the standards.

The amended Clause 21(10) states that “including the provision of sign of sign language practitioners and braille services where applicable. This clause was amended so that initiation schools cater for persons with disabilities.

Clause 22(1)(c) was amended to include “who is practicing within the province where the relevant initiation school is located,”. This amendment was done because the members of the Committee raised concerns that doctors from other provinces provide certificates to individuals who attends initiation school in another province therefore this new amendment states that that the doctor must come from the province where the initiate is attending the initiation school.

In Clause 24(2)(a) the word ‘any’ was replaced with “the relevant”.

Clause 28(4)(d) was amended with the inclusion of “or coerced”.

Clause 31(2)(b) was amended with the inclusion of “and if requested by them, to the parents or legal or customary guardian of the deceased initiate”.

Clauses 32(1) and 32(2) were amended to include “4(1)(j)” as per the amendment of Clause 4.

Clause 33(6)(d) was amended by removing the words “physical or mental abuse” by just stating “abuse of initiates” because “abuse of initiates” covers the entire aspect of “physical or mental abuse”.

Clause 42 was amended by making reference to the Act of “2020”.

Discussion
The Chairperson commended Dr Bester for highlighting key areas of the Bill for the Committee to consider because the Customary Initiation Bill will put South Africa on the map in terms of regulating the customary initiation policy and address any issue in this sector comprehensively.

Mr Sileku said there has been a communication problem and that the Western Cape has sent its final mandate.

The Chairperson noted this and said that it is only KZN that has not sent its final mandate.

Ms Z Ncitha (ANC, Eastern Cape) said it important that South Africa has taken the step to regulate customary initiation because there are a lot of cases in provinces such as the Eastern Cape where initiates die because of the conditions they find themselves in. She noted that Dr Bester referred to surgeons as he or she and asked if they recognise females as surgeons.

Dr Bester replied that the Customary Initiation Bill deals with male and female initiations and therefore throughout the Bill it will refer to “he or she”.

Mr E Mthethwa (ANC, KZN) said that there are different initiation cultures. He asked if there is a national model that they must adhere to and how the Department will control this in respect to the different cultures.

Dr Bester replied that the Customary Initiation Bill deals with the initiation process and what standards the initiations schools must adhere to, but the Bill does not interfere with the customs and norms of the cultures.

The Chairperson agreed with Dr Bester and said it is important to respect the different cultures and not restrict communities from their customs. The Customary Initiation Bill is there only to regulate the standards for initiations.

Mr Mthethwa asked the Department how it deals with a situation where the medical practitioner is not allowed to enter the initiation field.

Dr Bester replied that the medical practitioner’s involvement in the initiation process is limited and can be present only if the parents or family or the principal of the initiation school invites the medical practitioner during the circumcision process.

Ms Ncitha said that the medical practitioner must enjoy what he or she is doing and must have ties with the communities because in some cultures they do not allow medical practitioners to be part of the circumcision process.

Mr Mthethwa asked what the Department does if it is a female medical practitioner because females are not allowed in the male initiation process. In hospitals you cannot decide who treats you but in certain cultures females are not allowed to be part of the process.

Mr Mashwahle Diphofa, Director General at Department of Traditional Affairs, replied that the provisions of the Customary Initiation Bill is not a determining factor who should be the practitioner during the male circumcision process and the government does not make that decision.

Dr Bester replied that the Bill makes provision that only males will be involved in the male initiation process and only females will be involved in the female initiation process. If the parent or family or principal of the school invites the medical practitioner to be involved in a male circumcision, the medical practitioner has to be male.

Mr Mthethwa asked if the Department of Traditional Affairs recognises the traditional practitioners because they do not have the qualifications of the Western medical practitioners.

The Director General replied that the Bill does recognise traditional surgeons but they must be qualified surgeons and they must be registered as practitioners.

The Chairperson concluded by saying that the Customary Initiation Bill will address the deaths and injuries of the initiates that are reported in the media.

Seven of the eight provinces had submitted final mandates supporting the Bill. The Free State did not support the Bill. KZN had not sent its final mandate. This meant the Customary Initiation Bill would be adopted with amendments.

The meeting was adjourned.

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