Traditional Affairs General Amendment Bill: DTA briefing, Free State & Eastern Cape Oversight Reports; with Deputy Minister

Meeting report

In his opening remarks, the Chairperson said the challenge for the Committee was to champion the publication of promulgated laws so that they could impact governance and the provision of services, as he had noticed on the oversight visits that many people were unaware of the laws or changes to the laws.

Traditional Affairs General Amendment Bill
Dr Rinaldi Bester, Chief Director: Policy and Legislation, Department of Traditional Affairs (DTA), gave a briefing on the Traditional Affairs General Amendment Bill. He said the briefing would be on the reasons for the technical amendments to section 81 and section 16, and the repeal of section 30.

Amendments to sections 81

Dr Bester said Section 81 of the Municipal Structures Act, 1998, dealt with the participation of traditional leaders in municipal council proceedings. A new section 81 was introduced through the Traditional and Khoi-San Leadership Act, 2019 (TKLA). The new section 81 commenced on the same date as the TKLA, 1 April 2021.
In terms of both the old and the new section 81, the Code of Conduct contained in the Municipal Systems Act, 2000 (Systems Act) also applied to traditional leaders who participated in municipal council proceedings.
The new section 81 had several references to the Code of Conduct as it appeared in the Systems Act. However, the Code of Conduct had been moved from the Systems Act to the Structures Act. As a result, the references to the Code of Conduct in section 81 were outdated and needed to be corrected to ensure legal certainty. Clause 1 of the Bill contained these proposed amendments.
Repeal of section 30

Section 30 of the Municipal Structures Amendment Act, 2021, contained an amendment to section 81 of the Structures Act. However, the proposed amendment was outdated, as it was intended to amend text that did not exist anymore. Therefore, the commencement proclamations of the Municipal Structures Amendment Act, 2021, exclude section 30. Although section 30 would not commence, it would remain on the statute if it was not repealed. Clause 3 of the Bill contained the repeal. 
Amendments to sections 16

During Parliament's processing of the TKLA, an amendment was made to section 16(3)(a).
Section 16(3)(a) refers to a forum that has to be consulted by traditional leaders when they select the 60% component of a kingship/queenship council, principal traditional council and traditional council.
However, the manner in which the section was amended had resulted in a cross-reference to another forum provided for in the Act that may be interpreted as applicable to kings, queens and principal traditional leaders only, and not to senior traditional leaders. Therefore, to provide legal certainty, the proposed amendment to section 16(3)(a) to provide clarity on which forum, had to be consulted by the leaders. This was provided for in clause 2 of the Bill. 
The proposed amendments contained in clauses 1 to 3 of the Bill were technical and necessary to ensure legal certainty. The proposed amendments had no financial implications. The Bill was tabled in Parliament on 29 July 2022.
Dr Bester added that the tagging of the Bill as a section 76 bill had been confirmed, and the Bill had been referred to the National House of Traditional Leaders for input.

Discussion
Mr C Brink (DA) wanted confirmation that the clause-by-clause deliberations would occur later.

Mr K Ceza (EFF) asked why the Bill was named a 'General Amendment' bill. He asked if the Committee would await the process of the referral of the Bill to the National House of Traditional Leaders (NHTL). He said that there were no traditional leaders in some areas, such as the Cape Metro. He asked what impact the Bill would have on areas where it would not be applicable, as it did not have traditional leaders. He said some traditional leaders had pulled out of the Congress of Traditional Leaders of South Africa (CONTRALESA). Would the Bill cut across and include traditional leaders inside and outside of CONTRALESA?

DTA's response
In response to the naming of the Bill, Dr Bester said that the Bill covered two different pieces of legislation related to the Traditional Affairs General Amendment Bill, and therefore the word 'General' was part of the name.

On the Bill's referral to the NHTL, he said that the NHTL had a maximum of 60 days to respond to Parliament on the Bill, otherwise it would be assumed that it supported the Bill. While the new NHTL was being re-constituted, the old NHTL -- whose term ended in June -- had the power to deal with legislative matters while the new House was being re-constituted.

On traditional leaders being members of CONTRALESA or other institutions, he said that traditional leaders were those recognised as such, even if they were not members of CONTRALESA.

Mr Mashwahle Diphofa, Director-General (DG), Department of Traditional Affairs (DTA), confirmed that there was still the opportunity for clause-by-clause deliberations.

On metros and districts where there were no traditional leaders, he said there were around 32 districts where traditional leaders existed, and where there were no traditional leaders, the Bill would not apply. In the Western Cape, it may apply later when Khoi and San leaders became recognised.

Deputy Minister Obed Bapela responded on whether the Bill would have implications for traditional leaders who had left CONTRALESA, and said CONTRALESA was an extra-parliamentary body that was the voice of traditional leaders on issues beyond legislative frameworks. The Traditional and Khoi-San Leadership Act governed traditional leaders and communities, irrespective of which organisation leaders belonged.

Committee's oversight visit to Free State
The Committee considered the draft report of its oversight visit to the Free State province from 19 to 22 April.

Mr X Msimango (ANC) said the issue of the powers removed from the district municipalities to local municipalities had been sharply raised in two districts. Had this been captured in the report?

Mr Andile Sokomani, Committee Content Advisor, said 3.16; 4.2.1 and recommendation 7.2 spoke to the rationale behind removing these powers, which should be clarified to the Committee.

The Chairperson said the Committee had been in the Free State in April, and there had to be follow-up and feedback from issues raised by the Committee.

Deputy Minister Bapela said some were related to the Department of Cooperative Governance and Traditional Affairs (COGTA), some to COGTA provincial departments and some to the municipalities. He requested that the Committee release him from the meeting.

Mr I Groenewald (FF+) asked Mr Sokomani about the section 129 interventions that had been raised at a few municipalities. He asked for the reports, especially on Maluti-A-Phofung, which was removed from section 129 even while its financials were still outstanding. There was nothing specifically in the recommendations that there must be a report in terms of the section 129 intervention.

Mr G Mpumza (ANC), referring to the Chairperson's comment on following up, asked about a previous oversight visit to KwaZulu-Natal (KZN), Limpopo and the Eastern Cape. He could not remember if the Committee received draft reports regarding the Eastern Cape districts of Amatole and OR Tambo, and Vhembe in Limpopo. He said the Committee had agreed to make a follow up, especially in Limpopo, but it had not made that follow up, nor received that report. The Committee had resolved that a better way would be a physical oversight of Amatole and OR Tambo municipalities, instead of a virtual oversight visit. He could not recall receiving that draft report or adopting it. What remedial action would the Committee have to do regarding these two municipalities and the district of Ugu in KZN?

The Chairperson said that the issues raised should be noted.

Mr Sokomani said all oversight draft reports had been produced, and the Limpopo report had gone through the Announcements, Tablings and Committees (ACT) process and tabled in the House, while the others were in the office of the previous Chairperson of the Committee and had not been discussed by the Committee. The virtual Eastern Cape visit was not a formal oversight visit, so no report was expected for the Amatole and OR Tambo municipalities.

The report with amendments was adopted.

Committee's customary initiation oversight visit to Eastern Cape
The Committee discussed its oversight visit to the Eastern Cape from 3 to 8 July.

Mr Msimango said he had not picked up the issue of the under-age children in the report. The law said children aged 16 and above could attend initiation schools. However, instances had been found where people under 16 performed the responsibilities way better than the older ones allowed by the law, and maybe there was a need to consider amending the age stipulation in the law based on prevailing conditions on the ground.

The Chairperson said the point should be noted for review.

Mr Sokomani said there had been no interaction with the surgeons during the oversight visits, as they had not wanted to meet with the Committee.

Mr Ceza asked whether these challenges were reflected in the report. Did the South African Police Service (SAPS) reports on culprits, as compared to the quarterly reports of the National Prosecuting Authority (NPA), Special Investigating Unit (SIU) and the Hawks, not reflect on such issues like, for example, the 15-year-old who was abused and not treated well at a school while the surgeon wanted to have a relationship with the mother? In another instance, a surgeon who was a second offender had run away when the Committee wanted to interview him. Should these not be reflected under challenges, as the Committee had found some serious irregularities? In Libode, the surgeon had all the data and papers but did not know how to fill them in. This surgeon had said that there was a communication problem, the availability of police, and the non-availability of ambulances because of hospital strikes in the case where an initiate had died because of a lung infection.

The Chairperson said the issues raised should be noted, adding that the reports might be stale as he had received provincial reports which had updated some of the issues raised in the meeting.

Mr Sokomani said issues raised by Mr Msimango had occurred in Libode, and the surgeon Mr Ceza had referred to was Mtshayina, which was noted in point 4.1

Mr Ceza said they had gone to Port St Johns, and 18 initiates had run away.

The Chairperson confirmed this had happened in Port St Johns, and a common problem was that the boys were underage.

Mr Ceza said it had occurred on 5 June, and false signatures were used on health certificates.

The Chairperson said that Committee Members' notes should be shared with Mr Sokomani to fully capture the visit.

Mr Sokomani said the issue of the 15-year-old raised by Mr Ceza was in point 6. The case was in Ndevana, because the mother had refused the sexual advances of the surgeon. The case referred to by Mr Ceza, of the 18 initiates that ran away, had occurred in Ghobasi.

Mr Ceza said that Ghobasi was near Mdantsane, while he was referring to a case in Port St Johns

Mr Sokomani said he would take Mr Ceza's notes.

The report with amendments was adopted.

The meeting was adjourned