Traditional Leadership & Governance Framework Amendment Bill & National House of Traditional Leaders Bill: proposals for amendment by Minister & Department

Meeting report

Traditional Leadership and Governance Framework Amendment Bill (TLGFA): Deputy Minister’s briefing
Hon Yunus Carrim, Deputy Minister of Cooperative Governance and Traditional Affairs, tabled the proposal for amendments to the Traditional Leadership and Governance Framework Amendment Bill (the TLGFA Bill). He noted that by 22 April 2009 this Bill had not yet received attention by the NCOP and, in accordance with Parliamentary procedure, had therefore lapsed. It was, however, resuscitated in mid-June, in the form in which it had stood as at 22 April.

However, Mr Carrim requested that, for practical reasons, the Committee consider a proposal by the Department for further amendments, revolving largely around issues raised by the Commission on Traditional Leadership Disputes and Claims (previously known as the Nhlapo Commission).

Whilst Mr. Carrim said he would take full responsibility, personally and collectively, for the unfinished work of this Commission, he noted that this was exacerbated by gaps in the existing legislation, particularly in that committees had not been established to work on behalf of the Commission. It was far too challenging and sensitive for the Commission to manage and arbitrate claims to traditional leadership. There had been 1 000 claims made over the past five years for registration of traditional leaders and traditional communities. Further to this, the work of the Department was hampered by the short working space afforded in an election year, since Government had effectively wound down its work in January and only recommenced on appointment of the new Cabinet.

He also said that though this form of engagement was not preferred by the Department, it was necessary under the circumstances.

He noted that the Commission's term would formally lapse at the end of September, and so, to avoid a vacuum, the Commission should be reconstituted in a new form from 1 October. In order to overcome the constraints of the current legislation, it was suggested that the new Commission be comprised of five full-time members with the legal right to appoint, coordinate and oversee provincial committees, which would accomplish most of the work.

In regard to the disputed claims, he noted that the legitimacy of six of the twelve paramount chiefs had been called into question. Because it would cause enormous tensions if these leaders were to have their chieftanship formally removed, it would be expedient for Parliament to consider allowing them to retain their status until they had passed away. After their death, their next of kin could fall into a fourth category of principal traditional leader, somewhere between the position of king or queen and chief. This category may not necessarily apply in all cases, nationally, but could apply in where contextually demanded. This was necessary considering South Africa's historical situation, and the need to find pragmatic and democratic solutions to ease the burden of apartheid legacies. Because of the individual and case-specific nature of this transitional mechanism, the most practical solution would be to provide for it in provincial legislation.

Finally, he suggested that he and the Minister were asking that the Bill, together with the minor amendments that he had outlined, should be fast-tracked.

Hon Sicelo Shiceka, Minister of Cooperative Governance and Traditional Affairs, agreed that these amendments were necessary to prevent a vacuum when the term of the Commission ended, and that it was essential to implement the Bills quickly. The institution structure of traditional leadership in South Africa had been extremely contentious, and these foundational issues must be resolved by 2014. He also reiterated the imperative of including provincial and local government in the implementation, and expressed his surprise and dismay that previous attempts by provincial MECs to become involved had been hindered legally.

The Chairperson suggested that, for the sake of expediency, the Committee discuss the need to fast-track the Bills. Technical details should stand over for subsequent meetings, where other stakeholders would be present.

Mr D Bloem (COPE, Free State) responded that it would be inappropriate for the Chairperson to make a ruling before the Committee had had a chance to discuss the matter with the Department. Although it was unlikely that they would take a contrary view, it was important to maintain observance to the correct procedure.

The Chairperson accepted that Mr Bloem's reservation was valid.

Mr L Nzimande (ANC, KwaZulu-Natal) noted that there was a need for further clarity on the exact implications of fast-tracking, so that a clear consensus could be reached by the Committee
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Mr Carrim said that idea of the presentation was not present the proposed amendments in a technical form, but simply to provide an overview of the key issues at stake, and what the fast tracking would entail. He stressed that the amendments being proposed to reintroduced Bill were not extensive.

The Chairperson asked that the presentation on the overview of the proposed amendments should continue.

Departmental Overview of proposed amendments and request to fast-track and discussion
Mr Nathi Mpungose, Director, Department of Cooperative Governance and Traditional Affairs, noted that the Traditional Leadership and Governance Framework Act was passed in 2003, after the adoption of the White Paper, and required Provinces to appropriately modify their own legislation in line with this Act. However, over the past four years serious gaps that have impeded the implementation of the Act were identified.

The first issue that the proposed amendment sought to address revolved around recognition of kingships and queenships. Currently the legislation provided for the recognition of senior traditional leaders, headmen, and kings and queens, but did not officially recognize their jurisdiction over a community. This gave rise to a serious contradiction, as an incumbent traditional leader could not be recognized as having authority without simultaneously recognising the body over whom that leader had authority.

Another change related to the traditional councils. The thirty-member limit on traditional councils would need to be relaxed. Guidelines on determining an appropriate membership would need to be established by the Minister.

The proposed amendments also sought to reconcile issues where traditional communities would become geographically split by instituting traditional sub-councils, particularly in problematic cases that had implications arising from the land restitution programme.

Additionally, the proposed amendments were trying to help resolve controversies surrounding succession of paramount chiefs, by allowing for interim chiefs to be instituted while the Commission’s determinations into an appropriate successor were ongoing.

The proposed amendments also sought to extend the one year period that was granted to transform traditional authorities in line with the Act. Although the period was previously extended to five years, it was now proposed that a further extension, bringing this to a total of seven years, be granted.

The proposal was also seeking to align all terms of office of all structures of traditional leadership to the term of office of the National House of Traditional Leaders (NHTL).

Finally, the proposed amendment provided for provincial legislation, to establish structured relationships between kings or queens and provincial houses.

Mr Mpungose then stated that the National House of Traditional Leader Bill was designed to overhaul the existing legislation, which was still based on the Interim Constitution of 1993, and which was not in line with the final Constitution. It sought also to bring coherent structure to the relationship between the National House of Traditional Leaders, provincial houses and kings and queens.

Discussion
Mr Bloem asked why the TLGF Bill was withdrawn from the House earlier in the year.

Mr Carrim responded that all Bills not processed at the time that the five-year term of Parliament ended would lapse, in terms of the Parliamentary Rules. If a Minister wished such as Bill to be finalised, he or she would have to write to the Chairperson of the NCOP, and Speaker of the National Assembly, requesting the Bill to be revitalised. The question of why exactly the Bill was not processed and therefore lapsed rested with Parliament, not the Minister.

Mr J Gunda (ID, Northern Cape) noted that in the Northern Cape there were no kings or queens. The indigenous people were mainly Khoisan and Griqua, and their traditional structures had chiefs and captains. He asked whether they have been included in the Bill.

Mr Shiceka responded that up to this point the Khoisan and Griqua had not been included in the democratic dispensation. However, in March the Department had established a task team to look into the inclusion of their traditional leaders. Although interim arrangements to include the Khoisan were agreed on, and a proposal was presented to the previous administration, a comprehensive process for recognition would have to be dealt with by the new Commission.

The Minister noted that he was considering the possibility of dividing the National House of Traditional Leaders into a bicameral institution, with an upper house for kings and queens, and a lower house for other traditional leaders.

Mr Carrim added that in 1998 the Department approached then-Minister Valli Moosa and advocated the inclusion of the Khoisan, and this was put in a report to Parliament. At the time there were issues in the NHTL about that issue, which prevented their outright inclusion, but matters had changed.

Ms G Swartbooi (ANC, KwaZulu Natal), Chairperson of Cooperative Governance in the KwaZulu Natal Provincial Legislature, thanked the Minister for advancing the recognition of the Khoisan and Griqua. She agreed that during the time that she was serving in the KwaZulu Natal provincial legislature, her attempts to raise the issue were laughed at.

Ms Swartbooi went on to ask what exactly 'fast-tracking' would entail.

The Minister noted that there were three prime and unconventional components to the fast tracking. Firstly, he noted that meetings with traditional leaders, the National house and provincial houses were necessary, and that these had taken place in May. Although it was unconventional that the Executive approach the legislature in this way, it was necessary so that this Bill would be well received. The second unconventional point of procedure was the close proximity between the NCOP and National Assembly (NA) in designing the Bill. Thirdly, the NCOP should take the procedural lead, rather than the NA, and this too had not previously been the case. 

The Minister believed firmly that quality and engagement must not be sacrificed, and that legislators must engage with relevant stakeholders. Fast-tracking would require that the NCOP and provincial Portfolio Committees give priority to this task. He finally noted that, although this Committee was not compelled to adopt fast-tracking, he and his Department were making a strong plea that it be allowed and followed.

Members agreed to adopt a motion to fast-track the Bill.

The meeting was adjourned.