Department of Traditional Affairs 2021/22 Annual Performance Plan; with Deputy Minister

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Cooperative Governance and Traditional Affairs

21 April 2021
Chairperson: Mr G Mpumza (ANC) (Acting)
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Meeting Summary

Video: Portfolio Committee on Cooperative Governance and Traditional Affairs
Annual Performance Plan (APP)

The Committee held a virtual meeting with the Department of Traditional Affairs (DTA) on its 2021/2022 annual performance plan, which indicated that its focus remained on the creation of functional institutions of Khoisan and traditional leadership in the country.

The Khoisan Traditional Leadership Act (KTLA) had finally recognised Khoisan traditional leadership, while other provisions in that particular piece of legislation mitigated the weak provisions that had been incorporated into the Traditional Leadership and Governance Framework Amendment Act. These provisions provided guidance to affected parties on dispute resolution.

The DTA had also commissioned research into the status of women and the disabled within traditional leadership structures. It continued to champion women's empowerment and the inclusion of the concerns of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community in traditional leadership and customs.

Members welcomed the emphasis of the Department on the pertinent challenges that vulnerable groups faced, which included gender-based violence, femicide, hate crimes against the LGBTI community, and the lack of women's empowerment within traditional leadership structures and communities. However, they expressed their dismay at the increase in traditional leadership disputes, and called on the Department to account, and were assured that the provisions contained in the KTLA spelled out a dispute resolution mechanism.

The DTA was taken to task for the lack of implementation of certain projects, many of which the Department explained fell within other departments' purviews. The leadership of the House of Traditional Leaders also called on the DTA to expedite the issue of a handbook for traditional leaders -- one similar to the ministerial handbook -- as this matter had been dragging on for years. However, it acknowledged that women in traditional societies continued to believe in patriarchal stereotypes of women, which seriously hampered efforts by the House to facilitate effective women's empowerment initiatives.

Meeting report

Ms Shereen Cassiem, Committee Secretary, informed Members that the Chairperson, Ms F Muthambi (ANC), was experiencing network difficulties, and had requested the Committee to select an acting chairperson in the meantime.

Ms P Xaba-Ntshaba (ANC) proposed that Mr G Mpumza (ANC) be elected as the acting chairperson.

The proposal had no objections, and Mr Mpumza was duly elected.

Opening remarks

The Acting Chairperson said the meeting would consider the annual performance plan (APP) of the Department of Traditional Affairs (DTA). He commented that the plan should be specific about the role that the DTA played in strengthening traditional leadership, as well as how it aimed to address key socio-economic challenges. He listed gender-based violence (GBV) and femicide, as well as the inclusion of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. 

He added that the Committee would like to be informed of the steps that had been taken to address concerns around initiation practices, and also touched on the research that had been conducted in the area of traditional leadership, and how this aimed to strengthen traditional leadership in the country.

 

Deputy Minister's overview

Mr Obed Bapela, Deputy Minister responsible for Traditional Affairs, provided the Committee with an introduction to the APP of the Department.

He said the Department would inform Members of the mandate and vision that guided the work conducted and envisioned within the sector. It had to account for the revised programmes, as well as the new ones, many of which had been undertaken in conjunction with other departments. These partnerships had borne fruit in some instances, whereas the lack of a working relationship had hampered effective service delivery in others.

He hoped that the Traditional and Khoi-San Leadership Act (TKLA) would strengthen the compliance and enforcement mechanisms of the memorandums of understanding (MOUs) that had been signed with these departments. These mechanisms would directly address the unfortunate consequences of the Framework Amendment Act, which had resulted in loose arrangements in the respective provinces. Most of the MOUs were not even signed, he informed the Committee.

 

Annual Performance Plan 2021/22

Mr Mashwahle Diphofa, Director General (DG), DTA, said the 2021/22 APP of the Department had been tabled in Parliament on 15 March.

Its three programmes comprised of Administration (Programme 1), Research, Policy and Legislation (Programme 2), and Institutional Support and Coordination (Programme 3). Its focus remained on the creation of functional institutions for the Khoisan and traditional leadership in the country.  The KTLA had finally recognised Khoisan traditional leadership in the country.

Other provisions in that particular piece of legislation provided guidance to affected parties on dispute resolution, and mitigated the weak provisions that had been incorporated in the Framework Amendment Act.

The Department had commissioned research on the status of women and the disabled within traditional leadership structures. It continued to champion women's empowerment and the inclusion of the concerns of the LGBTI community on traditional leadership and customs.

The DTA also reported on the 2021/22 indicative budget allocations. A budget breakdown for the three programmes was provided. The allocation for the Department stood at almost R171.4 million for the period under review, and in terms of the medium term expenditure framework (MTEF) estimates, the allocation would be R175.7 million for 2022/23, and R180 million for 2023/24.

Discussion

Ms D Direko (ANC) asked the DG to explain what the department had done to effectively deal with traditional leadership disputes. How long did it take for these disputes to be resolved? What timeframes had been attached to the establishment of local traditional houses by the provinces?

She argued that women were just as capable as men to ascend to the throne and assume power. She highlighted the oppressive conditions that women found themselves in within tribal areas. She therefore wanted the DTA to explain what had been done to ensure the progressive realisation of transformation in the sector.

She asked whether the development of traditional communities had been aligned to the objectives of the District Development Model (DDM). During the Indigenous and Traditional Leadership Indaba. one of the areas that had been identified focused on the lack of development within rural areas. She recalled that traditional leaders had expressed their displeasure at the manner in which they had been treated during local government council meetings, alleging that they had been excluded from discussions and decision making processes.

She asked the Department to provide a brief on whether any legislation had been effected or considered that addressed traditional leaders' concerns. It had touched only on new legislation and had failed to speak to the other competencies that fell under the Department's purview. Not long ago, there had been discussion on the issue of initiation, and she wanted to know how far the DTA had come on inclusive decision-making.

Ms Xaba-Ntshaba asked what the role of the Department had been in the management and administration of traditional councils, and how this would be affected by the Khoisan Traditional Leadership Act.

She said the APP had referred to the misalignment between provincial and national legislation that had led to inconsistencies, which had apparently exposed the government to litigation. She asked for examples of these inconsistencies, as well as concrete examples of court cases.

The APP had also stated that the Department would ensure that provinces received the necessary capacity to respond to persistent leadership disputes, and she asked what specific measures the Department would implement.

She also wanted to how many traditional leaders had been covered under the allocated budget, as there were some who were "crying about being excluded from the budget."

Mr K Ceza (EFF) said that he was appreciative of the actions that the Department had taken to "cushion" traditional leadership in all aspects. He had several questions that had not been covered in the presentation, however. 

The first issue centred on the safety and security of traditional leaders, and whether any measures had been undertaken to address security concerns. He reminded Members of the leadership dispute that persisted in Mangweni, Kwazulu-Natal.

On initiation practices, he wanted to know what the Department's state of readiness had been, to bring order to this particular sector. He decried the senseless deaths, and said that those responsible should be arrested and held to account. Did the Department have the confidence to pronounce its readiness to deploy medical practitioners, or had this just been empty talk?

He proposed that the Department should engage National Treasury on the capacity constraints that existed within the Department.

Deputy Minister Bapela said that the DG had earlier indicated that the Department would not be all that strong in certain areas, as the competency for many of the issues resided with other departments.

The resolution on agrarian reform remained an important policy consideration. The DTA had been assigned the monitoring mandate in the resolution on agrarian reform, whereas the implementation mandate had been assigned to another department. The Deputy Minister said the Members should focus their attention on the difference between "to monitor" and "to implement." There currently existed no budget within the Department for the implementation of the resolution on agrarian reform. The budget for implementation had been located within Cooperative Governance, and the Department would monitor those provinces that had the budget to implement the resolution. The mandate of the Community Work Programme (CWP) also resided within Cooperative Governance, he added. 

On the other pertinent issues that had been raised by the Members, the Deputy Minister said the DTA would return to provide progress reports on the implementation of the resolution by Cooperative Governance. However, for now the APP was restrictive on what the Department could report on.

Deputy Minister Bapela expressed his dismay at the discourse that had emanated around the "Agrarian Revolution." This had wrongly associated the agrarian revolution with food security, whereas it had always referred to the socio-economic development of rural areas. He would also return to provide an adequate report on the agrarian revolution.

He said traditional leaders remained the focal point of the Department's mandate and that it would continue to support them, even when certain issues fell within other departments' purview.

On the question that pertained to land and land use, he said the Department of Agriculture, Land Reform and Rural Development (DALRRD) had been assigned this competency. The DTA's presentation could thus focus only on security of tenure, even though the challenges remained myriad.

The Department intended to table a model of ownership of communal land, as well as the transfer of land to people by traditional authorities. The nature of some of these competencies, which straddled various departments, had meant that the Department could not incorporate them into the APP. He added that due to the competencies that resided in other departments, the DTA had not been able to provide an account of these projects. The DG blamed other departments for the lack of implementation, and cited their total disregard of the MoUs that had been entered into. He said that the Department would be able to "push on this one," and that the DG would be able to highlight the other key aspects.

The Deputy Minister said that social cohesion had been the competency of the Department of Arts and Culture (DAC), with whom the Department had also signed an MoU. However, this MoU had not been fulfilled, he lamented. This remained an issue on which the Department continued to engage.

He also pointed out that the presentation had dealt only with GBV and food security, and that nation building and cultural economic policy formulation and implementation rested with other government departments.

He was emphatic that in order to deconstruct and dismantle patriarchy, the DTA had to work in unison with the Department of Arts and Culture on how best to protect and enhance the role of traditional leaders. The South African Constitution was clear on the defined roles of traditional leaders in South African society.

He stressed that the House, in conjunction with provincial traditional houses, had championed various initiatives that had been undertaken by the government. GBV, patriarchy and other harmful practices were initiatives that would be taken up, or had been taken up.

On the representation of traditional leaders in local government councils, he said that the Department had always called for the maximum participation of traditional leaders in decision-making structures. He conceded that this had been a "touch- and-go" issue, and that the TKLA would provide more clarity on participation. The next presentation by the Department would highlight the provisions in the TKLA that maximised traditional leaders' participation in local government structures.

The Deputy Minister acknowledged that he had heard Members' concerns about continued leadership disputes. He suggested that, given the increased leadership disputes and Members' interest, dispute resolution should be a stand-alone programme within the Department's APP.

He then shone a spotlight on the real reason behind the increased leadership disputes, referring to internal battles within royal families as the seeds of discontent. Recent leadership disputes had not revolved around recognition or the lack of recognition from the erstwhile Nhlapo Commission. He reiterated his previous comment that dispute resolution should be a sub-sector of the Department's APP, with clear focus on stability within the sector. 

He said the TKLA would bring some kind of relief, and the agreements entered into with other departments had to contain clear compliance provisions with the delegated responsibilities. In a blunt and forthright assessment of MoUs entered into, he quoted the MoU entered into with the DALRRD which, he asserted, had never been functional, nor had it been accompanied by an action plan. He added that these MoUs had to be accompanied by budgets that would give effect to the implementation of policy decisions.

Ms Shoky Mogaladi, Deputy Director-General (DDG): Research Policy and Legislation, DTA, responded to the question on leadership dispute resolution and claims, and said that in terms of existing legislation, this had been apportioned to different mandates or competencies at both the national and provincial level. 

She said that South Africa had different levels of traditional leadership. President Ramaphosa had been vested with the national competency on the determination of Kingship and Queenship, whereas provincial premiers had been vested with the provincial competency, and assumed responsibility for designations below Kingship and Queenship.

She explained that due to the provisions contained in existing legislation, the national sphere of government had been empowered to effect dispute resolution mechanisms at any level. The DTA had devised the Framework on Disputes and Claims, which had been used as a guideline to royal families. This framework empowered royal families to establish procedures for the recognition of a successor. Regardless of the framework, the customs and customary law of a particular cultural group remained the sole determining factor for legitimate succession.

Once royal families had been empowered, they would then be required to identify the heir to the throne, and the government had absolutely no role in the proclamation of any successor to a throne. She reiterated an earlier comment that applications for recognition at the level of Kingship/Queenship fell within the President’s purview. The regulatory framework also called on the President to embark on a consultation process with relevant affected structures, which included the royal family in question. After these consultative engagements, the President would then make a determination.

Provincial premiers had been empowered, in terms of the Framework Act, to adjudicate and determine leadership disputes at the level below kings and queens. The DDG conceded that the DTA had encountered a myriad of challenges with leadership disputes. This realisation had prompted the Department to devise a mechanism that could be of assistance to royal families. The sole aim of departmental interventions had been to empower traditional leaders with regard to dispute resolution and claims.

The Department had also devised an alternative option in the form of literature on various traditions and customs in South Africa. It had assisted various traditional groups in the country to compile their own books and literature premised on their customary laws and history that had been handed down through successive generations. This initiative had assisted one king and two principal headmen in the Free State. She hoped that the various mechanisms would result in a decrease in disputes, adding that all of the information that had been compiled into book form had emanated from royal families themselves.

On transformation in the sector and the lack of females ascending to the throne, she advised Members about the project on documenting customary law and the need for alignment with the South African constitution.

She said he institution of traditional leaders had to ensure that harmful traditional practices should be abolished, and to recognise that cultures evolved over time. Customary law had to conform to the Bill of Rights, so the DTA would continue to engage with traditional leaders on the need for continued revision of customs and customary laws.

On the research initiatives that had been undertaken by the Department, she said the targeted deadline for the research on traditional houses had been earmarked for the 2021/22 financial year, and it was envisaged that the research would take about a year to conclude. The Department required the generated information for policy formulation purposes.

She said the Framework Act had empowered provinces to enact their own legislation. This allowance to provinces had unfortunately resulted in vastly different legal regimes being adopted by the respective provinces. She touted the KTLA's virtues, especially the different provisions that had been included.

The research would also pinpoint good practices in provinces, which would assist the Department’s policy formulation, as it wanted to base its policy considerations on facts. It also championed continued engagements with various stakeholders on content and policy-related matters. After this year-long consultative process, the Department would draft the regulations in the following financial year.

She emphasised that provincial legislation had to be aligned to national legislation, as they had found misalignments, especially with the Framework Act, and had since learned valuable lessons.

The Department had conducted workshops with provinces on the KTLA, and its interventions would not end there. It stood ready to assist those provinces who opted to enact their own pieces of legislation that aligned with the KTLA. Some provinces may implement the Act "as is," but this posed no problem to the Department.

DG Diphofa said that one useful development that affected how leadership disputes should be resolved, mitigated the void that had been created by the provisions under the Framework Amendment Act. Certain specifications listed in Section 5 (59) of the KTLA now outlined the mechanism that could possibly be used for leadership dispute resolutions below the level of Kings and Queens. 

Section 5 specified the exact process that should be followed and the powers assigned to Premiers to appoint a committee that should include at least one representative from the respective provincial house to adjudicate disputes. Once this committee had concluded its work, a report with recommendation would be handed over to the Premier, who in turn would consult with the relevant royal family on these recommendations. He had raised this provision in particular, as this had not been provided for previously.

This provision also empowered the national government to intervene and facilitate dispute resolution processes below the level of Kings and Queens. If the dispute could not be resolved through the mechanisms that had been identified in the KTLA, affected parties could then of course opt to pursue the legal route. Every South African had the right to seek relief through the justice system, but he stressed that it would be constructive and beneficial to affected parties to first exhaust all internal Departmental processes before they sought legal relief.

On cultural traditional initiation, the framework of the Customary Initiation Act specified in detail the requirements that had to be met by duly registered initiation schools. If a school had fallen foul of the law, the necessary fines would be imposed. The Department had highlighted the role of parents and guardians on this matter.

Mr Diphofa said the DTA had looked at the current policy guidelines and had identified enforcement as a strategic risk. He recalled the recent spate of botched circumcisions in the Eastern Cape that had now resulted in criminal proceedings. The recommendation that had been made by Mr Ceza had been a “strong one,” and this rite of passage had adequately been legislated for within the enabling provisions of the Customary Initiation Act (CIA). This recommended that circumcision be conducted under the supervision of a registered medical professional, but this had not been made a requirement, as it would inevitably have led to the recommendation not being popular or even entertained. Furthermore, the relevant prescribed provisions and policies on cultural initiation addressed awareness campaigns and the state of readiness to conduct safe circumcisions.

On transformation in the sector, the DG referred Members to the provisions of the Act that had specific requirements which called for greater women's representation. He had also been of the opinion that the window for the reconstitution of traditional councils would allow the Department to engage on transformation and greater women's representation in general. The Department regarded women's as empowerment an important factor.

The Acting Chairperson wanted to know how the TKLA gave expression to Section 81 of the Municipal Structures Act. Did the provisions within the Act apportion sufficient representation for traditional leaders in local government councils? Could the Committee be provided with the report on the powers and functions of the National House of Traditional Leaders?

Mr Diphofa replied that the original Section 81 of the Municipal Structures Act had been broadened to provide for greater participation of traditional leaders within local government structures. This had provided clarity and empowered the relevant Member of the Executive Council (MEC) to draft regulations on the participation of traditional leaders in local municipal councils.

He added that during the drafting of the KTLA, a schedule had been devised that would replace Section 81 of the Municipal Structures Act. In fact, when one looked at the Municipal Structures Amendment Act, one would see that Section 81 had been strengthened, broadened and seemed more detailed. Some of the competencies that had been left to premiers had now effectively been dealt with. A provision also specified the level of representation by traditional leaders. The roles and functions of the traditional councils had also been defined. Traditional leaders that represented their respective councils were now compelled by the legislation to report back to their respective Houses and communities on the deliberations and decisions.

On the powers and functions of the national House, the DG said the approach had been to convert all the information and inputs into a working document that would then be analysed by a task team that was comprised of traditional leaders and the DTA. The Department had consulted extensively, and once all processes had been concluded, it would be tabled before the Committee.

Ms Xaba-Ntshaba asked how many traditional leaders had been covered by the Department's budget. She also wanted a provincial breakdown. She wanted to know when the traditional houses' handbook would be ready, and sought clarity on the provision of resources to the House.

Mr Diphofa replied that the budget that had been presented to Members covered accommodation expenditure, the salaries of staff, the stipends and related expenditure. The expectation had always been that other spheres of government would fulfil their legislative responsibilities. Senior traditional leaders such as headmen should be provided for in the various provincial budgets. Provinces also assumed responsibility for related benefits and tools of trade for traditional leaders. Beyond this, traditional leaders would benefit through training and attendance at induction courses.

On the direct benefits per province, he said that the budget allocation mostly went towards salaries, allowances, and tools of trade for members of the national House. This particular competency resided within provinces who had to ensure that funds had been allocated.

The draft handbook had been developed and would be sent for consultation with the relevant stakeholders before implementation. It had also been costed per its current format. The draft would be processed through the budget forum for focused discussions, after which the Minister would use the provisions in the KTLA to issue guidelines. He could not comment on the budget forum processes, but had confidence that the handbook would be in operation by the end of the current financial year.

Mr Ceza sketched a scenario in which a monarch had passed away without a will or a male heir, but had a first-born female child. Given the patriarchal structure of South African society, what would the Department’s resolve be on the emancipation of women, within traditional leadership structures. He said it was common cause that women residing within traditional communities suffered oppression and GBV at the hands of their husbands or male partners.

The DG said that the emancipation of women within traditional leadership structures remained a critical issue for the Department.

He recalled the position that the national House had taken in 2017, when it had adopted a resolution that disavowed harmful cultural practices. The House had also facilitated engagements on the need for culture and traditions to evolve.

He explained that in the event of the death of a monarch, that particular cultural group's customary law determined the line of succession and eligibility. When a royal family pronounced on the succession of a particular individual to a throne, regardless of that individual's gender, the succession would be considered as concluded. The Department played absolutely no role in that process. He said there had already been litigation on the right of females to ascend thrones, and the courts had ruled in favour of the eldest child, who happened to be a woman.

He also recalled the Venda case, where the eldest child -- a female -- of the deceased Vhavenda King had challenged her cousin, who had been confirmed to the throne. The Supreme Court had referred the matter back to the High Court with an instruction letter to consider the case through gender-neutral eyes. The department would continue to deal with transformation.

The Acting Chairperson said that all questions and subsequent comments had been exhausted, and called on the leadership of the National House of Traditional Leaders (NHTL) to present their respective insights.

Inkosikazi Nomandla Mhlauli, Deputy Chairperson, NHTL, said she appreciated the presentation and the invitation that had been extended to traditional leaders to attend these Parliamentary deliberations.

She highlighted the comments by the Deputy Minister about the challenges related to activities that had not formed part of the DTA's overall core competency.

She acknowledged that even traditional leaders found themselves confused as to what all of these projects had been about.

Traditional leaders had been excited about the agrarian revolution programme, and really wanted to move on it, but had not, as implementation resided with another department.

She had listened attentively to the questions and comments by Members. These inputs showed that Members had the best interest of the sector at heart.

She decried the fact that the Department had not yet issued a handbook for traditional leaders -- one similar to the ministerial handbook. This matter had been dragging on for years and traditional leaders would like this handbook to be finalised.

The Department had assisted the House to facilitate dialogue on increased participation of women in traditional councils. The House had also been the recipient of capacity training programmes that had been facilitated by the Department.

She concluded that women in traditional societies continued to believe in patriarchal stereotypes of women. This seriously hampered efforts by the House to facilitate effective women's empowerment initiatives.

Inkosi Sipho Mahlangu, Chairperson, NHTL, commented that the Department still had a long way to go to address pertinent challenges that faced the sector. He had been frustrated at times, but the DTA had done good work given their limited resources. It had been saddled with a lot of problems, yet the allocated budget did not speak to those problems. He called on the Committee to ensure that the DTA's budget be increased.

The meeting was adjourned.

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