Traditional and Khoi-San Leadership Bill: Department response to submissions

Meeting report

Traditional and Khoi-San Leadership Bill [B23-2015]: Department response to submissions
Mr Charles Nwaila, Director-General: Department of Traditional Affairs (DTA) introduced his delegation which included Ikosi Sipho Mahlangu, Deputy Chairperson: National House of Traditional Leaders, Dr Rinaldi Bester, the drafter of the legislation and Mr Johan Meiring, Senior Manager, COGTA.

He explained the response document is divided into the issues raised and the Department response. There is an item under the Auditor-General which talks about the financial statements of the Traditional Council being audited. He had suggested that Auditor-General South Africa be invited to discuss auditing the . He had written a letter to the Chairperson where he had indicated the process of how they would embark on costing the Bill. He invited Dr Bester to present the Department response and he would highlight crucial aspects.

Dr Rinaldi Bester, COGTA legal drafter, explained that the left-hand side of the document was prepared by the Committee secretary and the right-hand side was their views as a department.

Item 2.1: On consultation, he highlighted that the Bill had been thoroughly consulted on by the Department, in addition the Portfolio Committee had consulted all provinces and the Bill was also in the Government Gazette.

Item 2.2: On unrecognised traditional leaders, any person who met the criteria may apply for recognition, this includes people who regard themselves as “unrecognised”. In terms of the existing legislation and the Traditional and Khoi-San Leadership Bill, the recognition of traditional leaders, with the exclusion of kings and queens is a responsibility of provinces and their premiers. The Bill did make provisions in clause 69 for the Minister in consultation with the relevant Premier to take necessary steps to ensure that the provisions of this Act are met.

Item 2.3: On the separation of Khoi-San from ‘African’ traditional leaders, while it was proposed that the Khoi and San issue be treated separately, the Department wanted a single piece of legislation to ensure there is an integrated approach in dealing with matters of traditional affairs. The Department wants to avoid a fragmentation of legislation.

Item 2.4: On the matter of Constitutional recognition, the point of the Bill is to deal with recognition, recognition of traditional leadership, recognition of the Khoi-san, recognition of the community, recognition of certain structures such as the traditional council and it does not deal with anything else. The issue of first nation status is a Constitutional matter.

Item 2.5: On financial implications, the Financial and Fiscal Commission (FFC) had mentioned that they should look at the costing of the Bill, which will be done in the very near future. It is important to note that in terms of traditional leadership, they are already there. There are 829 senior traditional leaders and they are already remunerated in terms of the determination made by the President. The structures that serve them are already there, for example the traditional councils. The houses of traditional leaders are there, and so for the traditional leaders there should not be any financial implications because that is already there. What will be additional is the Khoi-San, particularly Khoi-San leaders. At the moment, there is no one that could tell the exact number of Khoi-San who would apply for recognition and no one can predict how many would be recognised. The Remuneration Commission must take into account certain factors as prescribed by section 8(6) of the Independent Commission of Public Office-Bearers Act but since senior tradition leaders and senior Khoi-San leaders will perform similar roles and functions, their remuneration levels could be more or less the same.

Item 3: On the title of the Bill, while over the years the title had changed a few times, as the Department, they are not prescriptive on the title of the Bill, as long as it is indicative of the content of the Bill. In coming up with the title, they asked themselves, what the Bill is about and they identified that it was about ‘leadership’, ‘traditional leadership’ and ‘the Khoi-San’ which led them to the current title. They are open to other suggestions.

On the reference to ‘indigenous’, as the Department they do not believe that there should be any part of the South African population that should be treated differently from others. We are all under one Constitution and we are all under one dispensation. Research conducted by the African Union and other institutions found that there is no community in South Africa that can be regarded as the first nation.

There was a concern that the English text is the official text of the Bill.  English is the language used in the courts of law so the text is in English for interpretation purposes. Any other language will be regarded as a translation.

Item 5.1: There was a concern about “area of jurisdiction” but this is addressed in clause 16(5)(a) of the Bill.

On the use of the term “branch” instead of “clan”, the public felt that branch was a term used for political parties. Yet anthropologists have argued that “clan” had a more limited meaning. They could not come up with another alternative, and in their opinion, “clan” was not the solution.

On the terms “headmen and headwomen”, while “junior traditional leader” was proposed, they conducted research in legislation that was drafted before 1994 and the term “headmen” has been used over time.

Mr Nwaila interjected stating that the term “junior traditional leader” would be problematic. The hierarchies of traditional leadership start with the king, the queen, traditional leaders and headmen. In terms of the English language, the term “junior” means somebody who is below someone who is above. If they were to limit to this category, it would cause other problems. They invented terminology where in 1909 South African law brought in terms like Governor General referred to as the supreme chief, followed by the paramount chief, then the chief and the headmen. Those concepts point towards royal leadership.

Mr C Matsepe (DA) stated that in the African culture the term “junior traditional leader” is not a concept. If you call a conference with all the traditional leaders and used the term, they would refute the whole process. The understanding is that they are all traditional leaders and they are all equal. So it cannot be said that some leaders are principal and some are junior; in our culture it does not work that way. This would create conflict among traditional leaders that some of them are juniors, they are not juniors. There would be a backlash, and consultation would be needed on using such terminology.

The Chairperson intervened and stated that it is not the Department that is suggesting the “junior” terminology, they are responding to what people suggested in a public hearing. Therefore Mr Matsepe and the DTA share a similar view on the term in that it is a problematic term. He reiterated that the community made the suggestion.

Mr E Mthethwa (ANC) stated that having “senior traditional leaders” brings into question who are the juniors.

Mr B Bhanga (ANC) stated that he would like the Department to finish its presentation and members not to interject while they are presenting.

Dr Bester continued with the presentation, and stated that at a national level they decided to use terminology which has been used in national legislation, which they wanted to standardise in all provinces. Clause 1(2) of the Bill stipulates that nothing contained in the Bill may be construed as precluding members of a community from addressing their leaders by their customary designations.

Item 5.1 continued: On the term ‘Khoi-San’ in clause 1(1) of the Bill, while some people have asked why they do not separate the term to ‘Khoi and San’, they maintain that academics and researchers use ‘Khoi-San’ so they feel this an acceptable term.

Dr Bester pointed out that there is nothing in the Bill that elevates the Khoi-San people to a higher status and the Bill does not grant special status to any community or leader. No one is getting any special status just because they are included in the Bill, they are treated equally according to the Constitution.

There was a comment about “opting in” and “opting out”, found in a document of frequently asked questions. He stressed that no is piece of legislation which forces people to stay in a particular jurisdiction, there is nothing that forces you to stay and there is nothing that prevents you from leaving.

Item 5.2: On the guiding principles, in section 2(1) of the Bill, the Commission for Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities proposed the insertion of ‘promoting and protecting the rights of cultural, religious and linguistic communities’. The Department believes it is the traditional leaders’ right to do so and they can exercise that responsibility.

Item 6.1: On the recognition of kingship or queenship in section 3(1), it means that a kingship or a queenship cannot exist of only one traditional community, but can only be considered for recognition if it consists of more than one such community. This does not mean that people are forced to stay in a particular area or forced to pay allegiance with other groups to a specific traditional leader.

Item 6.3: On Traditional and Khoi-San councils, people criticised the determination that councils should compromise 60 percent of traditional leaders and 40 percent elected members in Clause 16(2)(c)(i) and (ii). They questioned why it was not 50/50. The Constitution, and in particular the original Traditional Leadership and Governance Framework Act did not make such provision. However, when the Framework Act was amended on 2009, it made provision for the 60/40 component. The 40 percent does bring in the democratic principles and the 60 percent recognises customary practices. In the 2009 Amendment Act, a formula was brought in by DTA to achieve some consistency in the composition of traditional councils. DTA also implemented a limit on the number of members in traditional councils, the minimum is 18 and the maximum is 50. The Department also provided guidelines to ensure uniformity of members of traditional councils.

Mr Johan Meiring, Senior Manager, COGTA, added that it is important to understand that there are kingships, councils and traditional councils. For traditional councils it is important to get to a point where there is uniformity throughout the country that is why measures were put in place such as the guidelines. But the same applies for kingship councils, they have not been established yet but the Department has developed a formula to ensure the same uniformity is maintained in the different provinces. It is a very technical exercise but it is not very difficult, but they will ensure that in the kingship councils there is representation from different councils and a geographical spread of all the members.

Item 6.3: On the involvement of the Auditor-General, Clauses 19(2)(b) and 20(2)(b), the Auditor-General South Africa (AGSA) said that AGSA should not be required to audit traditional councils. They looked at the provincial laws and all the provincial laws except for Mpumalanga require AGSA to audit. The laws have been there since 2005. They find it interesting that AGSA is objecting now, but if they want to change it then DTA is open to proposals by the Committee. DTA had discussions with National Treasury and Treasury proposed that auditing be done by AGSA.

When DTA met with AGSA, AGSA indicated that they did not have the capacity to do the auditing. National Treasury was made aware of these concerns and instructed a service provider to investigate the matter and make recommendations. That is why Director General Nwaila had written a letter to the Chairperson, for the purpose of requesting that Treasury and AGSA to address the Committee on this. If AGSA does come to meet the Committee, the Members need to ask AGSA exactly which laws should be amended and how.

Item 7: On the National House of Traditional and Khoi-San Leaders, Clause 34 states a chairperson or deputy chairperson may be removed from office by the House, provided a two-thirds majority vote is supported for the removal. The Department was asked to remove this two-thirds majority vote clause to avoid deputies and chairpersons being removed without a valid reason.

Mr Nwaila said that in relation to the indigenous debate, he has circulated the position paper to members where matters of indigeneity are discussed. This paper emanates from a cabinet meeting of 3 November 2004 where matters of the Khoi-San were reported. They then indicated that the Department of Justice must research on the subject of first nation status. The DTA worked with the Department of Justice. They have just come from the United Nations and the position of South Africa is that we are a unitary state and in South Africa the word ‘indigenous’ refers to African people as well, therefore there are no better indigenous people than another. The document was well researched, it also makes reference to the African Commission which conducted research commissioned by the African Union. The AU came to the conclusion that in Africa, there are no first nation status people in the same way as other countries. For example, the Saami people in Nordic countries, are different from the other people there and in 2005 in a particular county (equivalent of district municipality) where Saami people were concentrated in that county and 95 percent was given to that community. They have their own government, parliament, schools and so on in the same way as in Canada and Australia.

So in terms of separating the Khoi-San from ‘African’ traditional leaders, the South African situation is different. In his view, separation can only be considered for the purposes of ensuring that the Khoi and San are recognised in an expedited manner so that they like other indigenous people can exercise their political rights. After their recognition, they will have one provincial house in a particular province and one national house. If they were to expedite this, it would be for them to be recognised, not because the Khoi-San are different.

Ikosi Sipho Mahlangu, Deputy Chairperson: National House of Traditional Leaders, commended the work of the Committee. He agreed with what was raised earlier by Mr Meiring on public participation processes. It is those who want to make inputs on the Bill that will make their inputs. In the main, the majority of people are happy with what they have seen. One could see there were different groups that had papers that were pre-prepared for the commissions that were similar in most provinces. It is important to have those groups commenting.

His main input is on transformation of the institution. Their experience is that the 60/40 component has been overtaken by politics. They have seen here there are a lot of political parties that participate in the election of the 40 percent. It has become a political game in which those that are in the majority will have their own people participate in traditional councils. Then there are others that see this as a job opportunity. This collapses the whole system so he wanted to question that. As much as we would want greater participation from outside, he thinks the interest that is coming from different sectors is completely different from what they want as an institution. This process will render the traditional council to be a bit redundant.

Ikosi Mahlangu said the South African Local Government Association (SALGA) submission stated it was concerned about traditional councils having double benefits, and that traditional councils in Mpumalanga and Eastern Cape had travel allowances. The House pays for travel allowances so he is not sure if SALGA is saying that the House must also pay for travel allowances for traditional leaders in municipalities, or what are they saying. The only people that have petrol cards are those that are working full-time. According to this legislation, those that are working full-time are not based in municipalities. He did not know what SALGA was talking about in terms of double benefits. He added that he is raising this based on his experience.

Discussion
The Chairperson thanked the delegation for the Department’s comprehensive response on the issues raised by the communities. They will deal with the issues clause by clause.

Mr Mthethwa asked the Department if they still think that the title of the Bill should be changed. Do they see the confusion of this Bill with the Traditional Leadership and Governance Framework Amendment Bill? Are they still negotiable on this matter because proposals made in various areas and he felt that they must be taken into account?

On consultation, he knows that the Bill has been there for some time, but at the public hearings in most of areas people did not have copies of the Bill and people that were meant to consult were not given copies on time. There were only one or two people that had copies. He also had a concern about publicity in the media about the public hearings. Radio publicity was not done.

Remuneration was a major issue that needs to be considered going forward with this Bill. The branches and structures need more clarity. This issue of branches is only going to apply to one section to the Khoi and San, as under the current traditional leadership this is not going to be applicable. How do they find a way to ensure that they deal with the Khoi and San separately so they can deal with the interpretation of some of these words before there are many interpretation challenges?

On the 60/40 component, he asked if they could find another formula for a more equal representation because in some areas they felt that this will promote the previous structure more than it includes those that are not in power.

AGSA needs to clarify its stance as it is part of the important structures of government to ensure audits. Perhaps a meeting with AGSA will assist so this can be clarified.

Mr B Bhanga (DA) says the DTA stated that it is amenable to changing the title of the Bill. What came out from the public hearings is that how it was captured, it had everyone on board. However, some people had their reservations. What was critical for him is if they are dealing with the recognition of the Khoi-San, let them deal with that in a separate package. When bringing the Khoi-San into the mainstream, let that be a process on its own. What they did in dealing with the recognition of the Khoi-San in the current legislation is a problem as some will ask why are you prioritising the Khoi-San over everybody else. Issues are being confronted but the Khoi-San are being prioritised. Deal with the recognition of Khoi-San and then bring them into the mainstream with one legislation that will encompass the entire traditional leadership. They need to look at this and that would translate into changing the title of the Bill.

On the 60/40 rule, a lot of issues are raised around traditional leaders who are probably not democratic by nature because it is not a democratic institution, they do not do elections. To assign therefore 60 percent strengthens that notion that the public is not being listened to because it gives more power to the traditional leader as opposed to the community. Some would say it should be the other way around, 60 percent must be elected by the people.

On the issues raised by communities, some were complaining about minerals where the traditional leaders are the beneficiaries rather than the community and where leaders believe that the land is theirs and the people are their subjects. This created a problem because in a constitutional democracy one does not have subjects because we are all governed by the Constitution. The Bill provided a solid foundation in bringing everyone on board and in that way, whether they are recognised constitutionally or not, in terms of their traditional background they are recognised as “a people” in South Africa.

Mr R Cebekhulu (IFP) commented on the word ‘clan’ as compared to ‘branch’. Previously we used to hear the word ‘tribe’ and now it is changed from tribe to clan, then clan to branches. His feeling was that they have tried to be accommodating in using a foreign word as Africans. He does not know why we have tried to be accommodating when trying to express and bring forward the previous traditional structures before the new names came.

On the support structure for traditional councils, his view is that these structures have been there for a long time now. On the things that should change, we should now have employment for those that are assisting in the traditional courts. He asked why they cannot be accommodating to empower those people that are there rather than bringing other people.

People tend to say this institution is an institution that has not been democratically structured. Really one can come from a different angle, it depends on how one understands democracy. The only problem depends on how one understands democracy. Does one understand democracy in terms of the worst or understand democracy in terms of the structures that have been there for people. A problem is some of the traditional leaders allow themselves to be used by the system so as to stand up and say they have a say in everything. We need to tread carefully because we seem to be looking down on what is still ours instead of empowering these structures. We seem to be saying that we better do away with them which he does not believe will succeed at the end of the day.

On 60/40 rule, from the angle of understanding how tripartite leaders lead, South Africa has nine provinces. The number of Members of Provincial Legislatures (MPLs) is identified by the population of a province, so Gauteng has more MPLs than the Northern Cape. The same applies to traditional leaders. You will find in a very white area where there are 97 sub-wards where indunas are leaders in those sub-wards being subjected to having this 60/40 representation. Where do we put those sub-wards? Do we say people are represented although there is nobody coming from those sub-wards to represent the council? The approach is very skewed in seeing the importance of representation for people in certain communities.

When people say that the 60/40 rule was a matter of the inkosi appointing people who favour whatever issue he puts forward, that is not the case. He understood that inkosi in council or inkosi assisted by other people to identify people from certain wards to form part of the 60. Not to just wake and say so and so will be part of the council.

Mr Matsepe said that the 60/40 component is very controversial because it was used by the Nationalist Party. The 60/40 is an import from when the homelands were established. To maintain the implementation of their policies, in the case of the homelands in the homeland government there were 40 percent non-traditional leaders. The 60 percent was traditional leaders so they had an upper hand over the non-traditional leaders. This 60/40 is based on customary law, it is an import from the homelands and the 40 percent is non-traditional leaders. Their elections were different, the first election was for the traditional leaders and some weeks thereafter there were elections for the non-traditional leader. With the traditional leader if he loses out to go to parliament, he was allowed by this very Act to go over and compete along with the non-traditional leaders. So there is no way we can avoid this, we have to deal with this in that context. We must know the origin, it is an import.

He needed clarity on whether countrywide traditional councils have been constituted? How many provinces so far have constituted them? In terms of the role of the traditional leaders, if you research you will find that traditional leaders in this country, no government has given any credit to them apart from the Nationalist government. We need to think about how we can give space for this structure. Even now the position of this country is that the role of the traditional leader is ceremonial. What traditional leaders are gunning for, if you ask them what are their roles and functions, they will say they fulfil the roles and functions of a municipal council. So it is a problem and we need to clarify this issue, because they must have a space in this country.

He asked Dr Bester if he heard him right when he said the deputy and the chair of the National House can be removed.

Dr Bester replied that the current law makes provision that they can be removed.

The Chairperson stated that the main function of the meeting is to allow the Department to explain what they thought were issues that were critical for the community. They explained where they stand and what is left is for the Committee to deal with these clause by clause. They have agreed to that programme. When they discuss the Bill clause by clause, they will discuss whether they separate the two or not.

The Chairperson said that, in terms of the content of the Bill, he thinks that they have completed the consultation processes. It is rare to find that people are satisfied with everything on consultation. Consultation is a dynamic process, it is not something you can quantify. We have not come to a stage whereby consultation has become qualitative, where people know exactly what they are doing, hence the NGO sector writes some document for them to empower them to go to the meeting. It will always be contested this issue of consultation, whether it is sufficient or not sufficient, and what does it mean when it is sufficient, is it the number of people that speak? For example, only ten people spoke but there are a hundred people present. Mastering the art of public processes does not happen overnight. They will sit down and look at the Bill. The 60/40 component will be discussed, because some have raised that the 60/40 division does not work. As they discuss it clause by clause, they will sort out the issues raised.

The first nation issue is not raised by the Khoi-San. Members of the traditional council do not raise the first nation. The first nation issue is raised by those who seek opportunities for becoming kings and queens. The real people say that we have never had kings and queens in our society, we have had an egalitarian society in our lives all along, that is how people who have genuinely been put there argue. But then there are those who are playing politics, they have their own views. They need to differentiate this matter from genuine people who want recognition to be able to practice their culture and not from those who use public hearings for political purposes. If they do not separate the two, it will cause problems.

Inkosi Mahlangu is here and Inkosi Cebekhulu is here. There are traditional leaders at their disposal so they can improve these traditional structures. They have agreed that they will take the Bill as an incremental approach, recognise the Khoi-San and then discuss other issues that are still outstanding for the entire traditional system. The intention of the Committee is to pass the Bill before the end of this year. The community has been waiting and waiting and they have all agreed to pass the Bill. The minimum they can do at the moment is to process the outstanding issues of traditional leaders.

The Chairperson asked the Director-General to finalise the Bill dealing with the traditional courts. They should not wait until 2019, they should do it faster.

Generally they are happy with the presentation; they will debate the Bill as they go through it clause by clause. The title of the Bill will be open for discussion. They should not delay the content of the Bill just because of the title.

Mr Mthethwa stated that opting in and opting out is still a matter on the table. He wants some clarity because what has been explained has not been very clear. If a person living in a certain area is not bound by the laws of that area, can they opt out? The land is another major issue in this Bill that needs further clarity.

The Chairperson replied that the question of land belongs to the Department of Rural Development and Land Reform; there are processes that need to deal with the land. The question of opting in or opting out is a very complex question. Dr Bester said that for all South Africans, if they do not like how things are handled in a certain area, you have a right to move and no one can stop you from doing that. He asked Dr Bester to repeat the point.

Mr Matsepe intervened and said that opting in or out depends on whether you recognise a traditional level of development because some people may have outgrown that system and you cannot force them to remain in that system.

Inkosi Mahlangu stated that he does not remember any traditional council subjecting anyone to be part of them. The traditional councils that he has served on are very cosmopolitan; at no given time would one want to subject anyone. We have Pedis and Shangaans. At an indaba he was speaking at, there is a Pedi community that is not far from him which has five villages, he is Ndebele and that Pedi community took a community resolution that they want to be under his traditional council. They are a completely different culture but their administration will be under his traditional council – but they can still continue with their own practices. So this thing of opting in or out he does not understand where it comes from, they are democratic terms because when it comes down to the ground, those things are not happening.

Mr Nwaila agreed and stated that traditional councils do not have jurisdictional areas or boundaries. He thinks it is more of an academic exercise, you cannot opt out or you cannot opt in. They have never received a report of people being forced to do things that they did not like. That is why people pay allegiance to their leader and they do things willingly. If there is a murder, the first person to call is the traditional leader or the headmen in that village.

The Chairperson wondered whether in terms of the Bill, opting in or opting out is an option. If the Mthethwas want to build a road and say that everyone must contribute, it would be very difficult for an individual to say they do not want to contribute because, despite allegiance, what is inherent in that system is fear. It creates issues that they need to balance very well. They need to look at it from a different view because they might have an urban bias. In rural areas they have their own system of governance where people know that things are for the benefit of the whole community and they willingly participate. The general content of the Bill is accepted. The Committee can deal with the Bill clause by clause the following week.

The meeting was adjourned.