Traditional Leadership Submissions; Municipal Structures Amendment Bill: briefing

Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
20 June 2000
TRADITIONAL LEADERSHIP SUBMISSIONS: REPORT-BACK; MUNICIPAL STRUCTURES AMENDMENT BILL

Documents Handed Out:
Report-back on the Traditional Leadership submissions
Local Government: Municipal Structures Amendment Bill

MORNING SESSION
SUMMARY
The committee went through the Report that highlighted the issues raised in the submissions on the Traditional Leadership discussion document. The IFP criticised aspects of the Report : there needed to be more clarification in defining the ex-officio status and the voting rights of heads of traditional authorities on municipal councils as well as in outlining the problems associated with women succeeding to the throne.

There was a briefing on the Municipal Structures Amendment Bill. These amendments, requested by the Municipal Demarcation Board, are needed to finalise the demarcation process and local government election preparations.

The Nedlac Report on Infrastructure was postponed until August, due to the time constraints on the committee in completing the Municipal Systems Bill.

MINUTES
Report-back on the Traditional Leadership hearings
The committee was briefed by Mr Mcebisi Ndletyana, political analyst for the Centre for Policy Studies. The Report draws from both written and verbal submissions made to the portfolio committee held on 7-8 June 2000. The Report highlighted the following points:

Local Government Hierarchy/Structure
There were diverse views on the perception of how the hierarchy of local government should be structured. Contralesa proposed that traditional authorities should constitute the primary layer of local government. The traditional authorities would be made up of both elected councillors and traditional leaders and councillors. The Demarcation Board objected to the proposal on the basis that such a structure would lack the financial and human capacity needed to address the socio-economic problems in traditional communities. They further argued that traditional communities would have to be presided over by a municipal council with a sufficient revenue base and pool of skills, both of which they lacked, to overcome the backlog of socio-economic problems.

Representation in Municipal Councils
Contralesa proposed that instead of the current ex-officio status and 10% representation, heads of traditional authorities should be given full voting rights, and made automatic members of the municipal council. Although it was submitted that the 10% representation should be retained so as not to interfere with the popular will as expressed by elected leaders.

The Demarcation Board suggested that a single traditional leader be granted representation in various municipal councils since some traditional communities would have to fall under different municipalities. This was due to the scattered nature of traditional communities which would see one traditional leader preside over areas quite distant from each other, and also due to traditional communities not easily accepting wards of similar sizes. For these reasons, boundaries of some traditional communities will have to be revisited, and speedily resolved so as not to present problems in terms of determining jurisdiction of traditional leaders and representation in councils.

Trans-Provincial//National Implications:
Mr Ndletyana stressed that the separation of a traditional community from its traditional leader by means of a provincial or national boundary should not sever the connection between that community and the leader. If a traditional community is divided by such boundaries, a representative of the traditional leader shall be appointed on the opposite side of the boundary. To this end, international agreements such as the UN Draft Declaration of the Rights of Indigenous Peoples have stipulated that states should undertake measures to facilitate inter-cultural relations with the affected communities.

Hierarchy of Traditional Leadership:
Contralesa proposed the hierarchical term of Paramount Chief be replaced by King, since the former was a colonial creation. Furthermore, tribes that have not had kings in the past should not be allowed to have them now, as they could be viewed as illegitimate.

Identification of a successor:
All submissions were of the view that the identification of a successor should be the responsibility of traditional bodies. As such, the royal family would inform the royal clan, who would then inform the traditional authority. It was also agreed that if a successor declines the throne, that that wish be respected.

Removal from Position:
It was felt that the removal of a traditional leader should also be the responsibility of traditional bodies. This would only occur as a result of a violation of a code of conduct. If the dispute cannot be resolved by the persons involved, the matter should be referred to the Houses of Traditional Leaders.

Government, in this process, should be limited solely to the issuing and withdrawal of certificates, but be granted the power to refer the case back for further consideration, if it was felt all other avenues had not been exhausted.

Youth and Women in Traditional Leadership:
Submissions were divergent on this issue. Contralesa argued that women could not succeed to the throne as it would disrupt patrilineal chieftaincy, and would constitute a violation of custom. Contralesa did, however, accept that women should be allowed to take part in customary courts, imbizo and traditional authorities through elections.

The Convention of the Elimination of all Forms of Discrimination Against Women and the Bill of Rights were thought by many not to sufficiently effect the equality of sexes. The Commission for Gender Equality suggested that a Women’s Council be established to better represent and articulate the gender sensitive issues.

On Youth, Contralesa felt that their participation in traditional institutions should be restricted to regiments and youth leagues. A youth should not be anointed as an heir until he reaches maturity, and preferably marriage. They proposed that until a youth reaches maturity, the chieftainship should be retained by a regent. Other submissions were in disagreement, believing that youth involvement would provide a way of teaching youth about traditional institutions.

Remuneration
All submissions were in favor of remuneration for traditional authorities by the State. Contralesa suggested, in regards to headmen, remuneration be granted for hereditary and elected headmen, but that remuneration of appointed headmen should be dependent on the size of the community for which they are responsible.

Sanco proposed that remuneration of headmen be standard and determined by an investigation into the functions of the job.

Political Affiliation
All submissions were in favour of traditional leaders remaining apolitical, but Contralesa supported traditional leaders being involved in order to determine their specific role and function at the local government level.

Co-operative Governance
Participants unanimously supported co-operative governance between traditional leadership and all three spheres of government, including traditional leaders being able to input on Bills before they are passed into law.

Contralesa proposed that a ministry of Traditional Affairs and Rural Development should be formed both at the national and provincial level to ensure the smooth running of traditional affairs.

Views differed on what functions traditional leaders should play. Greg Houston of the Human Science Research Council (HSRC) suggested that traditional leaders hold the following functions:

Joint Functions
- Consulting the community and lobby for community development
- Carry out legislative, executive and administrative duties in the areas of: child care facility, electricity and gas reticulation, water and sanitation services, trading regulations, local tourism, municipal planning and public works.

Executive Powers and Functions
- Administer customary law
- Mediate between traditional communities and the state
- Advise authorities on land allocation, trading licences and customary issues

Customary Courts
Participants agreed that customary courts should be equipped with modern facilities, including presiding officers who have a strong understanding of the Constitution, the Bill of Rights and all legislation. Contralesa further proposed that the school for sons of chiefs be used as training facilities for traditional leaders and councillors.

Ownership of Land
A bill is currently under deliberation to deal with the transference of the ownership of land from the State to traditional communities. The Bill will address the separation of ownership and governance of land. The ownership of land would rest with the traditional authority, whereas the provision of social services would rest with the elected council. The Bill would also make provision for the issuing of title deeds to male clan members who were allocated land upon marriage. Private ownership would also be extended to women.

Mineral Rights
Parliament is presently working on a bill to separate ownership and mineral rights. If the law comes into effect, current holders of mineral rights acquired through ownership of land will have to relinquish them and apply to the ministry for mineral rights. Participants were concerned that processes had not been established to inform and advise traditional leaders of the effects of this bill.

Discussion
Mr Smith (IFP) raised criticism over the Report. He commented there needed to be more clarification in defining the ex-officio status, and on voting rights in respect of representation of traditional authorities in municipal councils, and in outlining the problems associated with women succeeding to the throne.

Sister Ncube (ANC) asked whether stakeholders had been contacted to see if they were content with the Report?

The Chair replied that no contact had been made, but agreed that all participants would be sent a copy of the Report.

Chief Mtirara (UDM) asked for clarity on how the combined structure of traditional authorities and elected councillors at the municipal level of government would work?

The Chair responded that the Department of Provincial and Local Government had made a concerted attempt to find common ground between the two institutions. The Department has also been working to address the needs of traditional leaders in municipalities, but recognized that there were many issues to consider. He indicated that the department was moving through the process as quickly as possible.

Ms Jackie Manche, Acting Deputy Director General for the Department of Provincial and Local Government agreed that there were a number of issues that needed clarity. Specific reference was made to women becoming traditional leaders. The problem traditional communities were experiencing was how the process of women succeeding to the throne should be implemented.

Ms Manche clarified concern over the establishment of training facilities. The purpose of the facilities was to ensure that councillors in tribal courts were better able to perform their duties and functions.

The Chair felt the report presented was effective in articulating the concerns of the stakeholders that were involved.

Local Government: Municipal Structures Amendment Bill
The Department of Provincial and Local Government briefed the committee on the changes to the Local Government: Municipal Structures Act, 1998.

The Municipal Demarcation Board had requested certain amendments which deal with matters that need to be addressed in order to finalise the demarcation process and other preparations for the forthcoming local government elections.

Concern was raised by the Chairperson as to whether the Bill would be ready to be passed by the middle of August. Ms Manche responded that the department was working towards completing the Bill by the specified time.

The afternoon session dealt with Chapters 2 and 3 of the Municipal Systems Bill (see Afternoon session report for these minutes).