Ministers of Provincial and Local Government, Agriculture and Land Affairs, Energy and Mineral Affairs; a representative of the Ministry of the Justice and Constitutional Affairs; the Law Commission, the Commission on Gender Equality, the Human

Rights Commission; the Municipal Demarcation Board; Contralesa, the Khoisan

Forum, Chief Moletsane; SALGA and SANCO; the Human Science Research Council and the Environmental and Development Agency. Whilst all submissions were interesting, the report focuses exclusively on the submissions that addressed the questions at hand. The report is structured into various themes.

Participants differed on their perceptions on what the hierarchy of local government structure should resemble. Contralesa proposed that, contrary to the present structure, traditional authorities should constitute the primary layer of local government. These traditional authorities would be made up of both elected councillors and traditional leaders and councillors. They would undertake duties as outlined on the White Paper on Local Government in respect to traditional leaders at the municipal level.

Objection to this proposal was raised on the basis of traditional leadership's lack of financial and human capacity, on the one hand, its undemocratic nature, on the other hand. According to the Demarcation Board such a structure would lack the financial

and human capacity needed to address the socio-economic problems with which traditional communities are faced. For example, over fifty percent and three quarter of the social backlog in the Eastern Cape and Kwazulu-Natal is concentrated in traditional communities.

To overcome this backlog, traditional communities would need to be presided over by a municipal council with a sufficient revenue base and pool of skills. Traditional communities lack both these prerequisites. For example, there is only 17 professionals per 1 000 people in traditional communities, compared to 67 per 1 000 people in urban areas.

Apart from their lack of financial and human capacity, according to the Human Science Research Council's Greg Housten the undemocratic and discriminatory

nature of traditional leadership militates against them fulfilling this role. Its hereditary nature makes it less accountable to the people and thus exposes it to corruption and the abuse of power. Traditional leaders thus cannot play a major role in local government as a matter of right.

Dr Housten made this submission on his individual capacity. His knowledge of the institution derives from his academic interest in this area and involvement with the department in its compilation of the Status Quo Report.

Contralesa proposes that, instead of the current ex-officio Status and the 10% representation, heads of traditional authorities be made full (with voting rights) and automatic members of the municipal council in their area of jurisdiction.

This proposal found qualified support from Dr Housten. According to the latter, the ex-officio status has led to traditional leaders feeling emasculated. This, in turn, has given rise to both tension between themselves and elected leaders and non-attendance of council meetings. To obviate this and in recognition of their vital role, traditional leaders should be given voting rights. The 10% representation, however, should be retained as it would ensure that, even though they have voting rights, traditional leaders do not interfere with the popular will as expressed by elected leaders. Such rights, however, should be vested in them and not be exercised on their behalf by their representatives.

It may be necessary, according to the Demarcation Board that a single traditional leader is granted representation in various municipal councils as some traditional

communities would have to fall under different municipalities. This is because, firstly, of the scattered nature of traditional communities. For example, according to the

Board, there is one traditional leader who preside over 12 pieces of land that are 200 kilometres apart. And all these pieces of land cannot be clustered under the same

municipality. Secondly, the general rule that wards be of the same size is not easily applicable in traditional communities. Villages do not easily present themselves to

being defined as wards. One village may have to be combined with another (or others) in order to make up the required size for a ward.

Overall traditional leaders will have representation in metropolitan councils, district municipalities and local municipalities throughout the country. Of the 6 metropolitan councils, 2 will have traditional authority representatives; of the 47 district municipalities, 30 will have traditional authority representatives; and of the 232 local municipalities, 114 will have traditional authority representatives. It is only in the 17 district management areas that traditional leaders will not be represented.

Boundaries of some traditional communities, according to the Demarcation Board, will have to be revisited. For, there is a discord between what some traditional leaders say and what is defined in law. This needs to be speedily resolved as it will present problems in terms of determining the jurisdiction of traditional leaders and representation in councils.

Separation of a traditional community from its traditional leader by provincial and national boundaries should not severe links between the leader and his/her community. If a traditional community is divided by provincial boundaries, a representative of the traditional leader should be appointed on other side of the border. Such representative will, on behalf of the traditional leader, sit on the municipal council exercising jurisdiction over that traditional community.

Traditional communities whose traditional leaders are citizens of other states should remain loyal to their leader. The latter should interact and be allowed to perform cultural rituals and ceremonies either personally or through a representative. To this end, international instruments such as, inter alia, Article 35 of the UN Draft Declaration of the Rights of the Indigenous peoples stipulates that states should undertake measures to facilitate inter-cultural relations within the affected communities.

Whilst acknowledging that rank is generally determined by the custom of a particular tribe, Contralesa presented the following as the general hierarchical structure:

King

Chief

Headman

Sub- Headman

As suggested on the hierarchical structure the title Paramount Chief is not accepted. Instead, it should be substituted with the title King. The former title, according to Contralesa, was a colonial creation aimed at undermining the status of chiefs and not put them on par with the British King. Tribes that never had kings historically should not be given ones now. This, according to Contralesa, would amount to creating illegitimate kings.

The notion of landless chiefs, Contralesa further stated, is unheard of in African culture. If chiefs are landless it is because they have dispossessed of their land. Therefore, government should restore that land to these chiefs. The so-called independent headmen are in fact chiefs who were denied recognition by the authorities. Independent headmen could be recognised as chiefs and a traditional authority constituted.

However, there is disagreement over the total number of chiefs in respect to certain provinces notably Free State and Mpumalanga. The Demarcation Board and the

Department, in particular, arrived at different numbers. It was suggested that both bodies look closely into this matter.

Views on this matter were in agreement that identification of a successor should be left entirely to the traditional bodies. According to Contralesa, such bodies should be the royal family, royal clan and traditional authority. The royal family informs the royal clan which, in turn, informs traditional authority. The latter, in turn, informs the tribe, which informs the King. However, if a successor declines the throne, such a wish should be respected. Despite abdication of the father, heirs should however be considered for succession.

Similarly, the removal of a traditional leader from position should also be dealt with by the same traditional bodies, as outlined above. And this should only happen following violation of a code of conduct (which still needs to be drafted). If the primary players fail to resolve a dispute relating to either identification or removal of a traditional leader, such a dispute should be referred to Houses of Traditional Leaders. Whilst generally agreeing with Contralesa, some participants felt that a role should be found for commoners in the removal of a chief. Close relations between members of the royal family and the traditional leader in question, may predispose them to leniency in such matters. Involvement of a commoner would also ensure accountability of traditional leaders to the people. It was suggested that elected headman could fulfil this role.

Government - in the form of a premier - is thus the last point of contact and its involvement is restricted to the issuing and withdrawal of a certificate. If in the process of either issuing or withdrawing a certificate government feels that the process did not meet all the requirements, it has powers to refer the matter back for consideration. Government should also provide financial and logistical support for the ceremonial inauguration. Concomitantly, the notion that the president should be the supreme chief was rejected.

Whilst restricting government in some aspects, participants it will have to be fully involved in the removal of the apartheid imposed chiefs. It was felt that this issue was too sensitive to be handled by the traditional leaders alone.

Views expressed on this matter were poles apart. Women, according Contralesa, cannot succeed to the throne as this would disrupt the very foundation of patrilineal chieftaincy. Under this form of chieftaincy only male descendants of a specific royal clan inherit the throne. Succession of a woman would present serious problems. Children of a woman traditional leader bear the clan name of their father, and once her eldest child succeeds her, this would mean the passage of chieftaincy from one clan to the other. This would constitute a serious violation of custom.

The equality clause, therefore, "plays no role on the law of succession". Whilst ruling out succession to the throne, Contralesa proposes that women be allowed can to take part in customary courts, imbizo and traditional authorities through elections.'

In light of South Africa's ratification of the international conventions against discrimination of women - i.e. Article 2(f) of the Convention of the Elimination of all Forms of Discrimination Against Women (CEDAW) - and the adoption of the Bill of Rights the basis of the constitution, some participants felt that the state should ensure that women are included in all structures of power including the traditional leadership. Whilst tradition frowns upon this idea, it was felt that ways could be found to adapt the institution to the current democratic order. After all, according to this view, tradition, by its very nature, is flexible and adaptable to changes. That there already exist a matriarchal traditional leadership and women act as regent indicates the openness of the institution to this notion.

A mere succession of women into leadership positions, cautioned the Commission for Gender Equality, would not be sufficient to effect equality of sexes. Even in matriarchal traditional leadership, such as the Lebode's Queen Modjadji, men are still dominant in decision making due to the prevalence of patriarchal culture in general. Structural changes, therefore, would have to be accompanied by a concerted effort to cultivate a gender sensitive culture.

Whilst considering ways of allowing women to succeed into leadership positions, consideration should be given to establishing Women's Council. This body should have the same representation and powers as the patriarchal bodies, for these bodies, cannot be relied upon to articulate gender sensitive issues.

Youth, according to Contralesa, have no role in the various positions of the traditional institution. Their link with the institution should only be through their participation in regiments and youth leagues. A young heir will not be anointed until he reaches maturity and preferably after marriage. In the meantime chieftainship should be under a regent. A time-frame must be drawn up indicating when the legitimate heir would be inaugurated. Whilst on the throne, a portion of the regent's salary should be used towards maintaining the family of the deceased.

Some participants felt that a more constructive role for the youth should be found in

in this institution as their exclusion is the cause of the tension currently existing in some rural communities between traditional leaders and the youth. Integration of the

youth would not only eliminate tension but would also provide a way of teaching the youth about the institution. As it stands now, the youth is portrayed as outsiders and a disruptive force. According to Department of Local Government and Provincial Government suggestions have already been made in regard to this issue and can be made available to the committee.

AII participants agreed in principle that traditional leaders should be remunerated by the State. In addition to salaries, Contralesa went further to propose that traditional leaders should also be provided with medical aid and pension. These benefits will

assist the family once a traditional leader has died. In their absence, government will have to cater for the family of the deceased. Members of the House of Traditional Leaders, Contralesa further proposed, should be paid a salary and not sitting allowances. Constituency and car allowances enabling them to visit and account to their fellow traditional leaders and communities should also be provided.

Remuneration of headmen, however, elicited a variety of views. In view of the fact that one becomes a headman either through inheritance, appointment by a King or election, Contralesa proposed remuneration of hereditary and elected headmen. Remuneration of appointed headmen should be determined by the size of the community over which they are responsible. Sanco, in contrast, proposed that payment of all headmen be determined by their job description following a thorough an investigation.

Contralesa went further proposing the remuneration of sub-headmen as well. In addition to remuneration, sub-headmen should be given a travelling allowance out of traditional authority funds.

All participants concurred that, in view of their unitary role, traditional leaders should remain apolitical. Their political involvement may sow divisions in their communities due to their identification with a particular political group over others. Traditional leaders thus cease to symbolise unity and become, contrary to custom, a divisive force in their communities.

According to Contralesa, however, it is necessary at this moment that traditional

leaders are involved in politics to help determine what their role, status and functions are the local government level. This is because politicians have never loved traditional leadership for its own sake, hence they cannot be trusted to decide the fate of traditional leaders on their own. Once the White Paper on this matter has been completed, traditional leaders would seriously consider staying out of politics.

Participants unanimously felt that relations between the various bodies of traditional leadership and government at all level of governance - local, provincial and national -should be marked by co-operative governance. National and Provincial Houses of Traditional leaders should be allowed to make input into bills before they are passed into law. Government should thus empower these bodies so that they are able to fulfil this role,

Contralesa, however, felt that the size and composition of Provincial Houses should be representative of all traditional leaders in the regions of a province. A ministry of Traditional Affairs and Rural Development should be formed both at national and provincial levels in order to facilitate rural development and ensure smooth running of traditional affairs'. The present arrangement, according to Contralesa, is insufficient to undertake these tasks.

Whilst generally embracing the notion of co-operative governance, views differed on the exact functions traditional leaders should execute at the municipal level. Some thought that traditional leaders should retain their current advisory role whilst others maintained that this should be determined by the affected communities. In short, it should a result of a bottom-up approach, rather than a top-down approach. Specific recommendations were nonetheless advanced by the HRSC's Greg Housten suggesting that traditional leaders perform both joint and exclusive 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; and municipal planning and public works.

· Administer customary law

· Mediate between traditional communities and the state

Advice authorities on land allocation; trading licenses and customary issues

Customary courts, participants agreed, should be equipped with modern facilities and presiding officers should be trained so as to sensitise them to the constitution, the Bill of Rights and legislation in general. To this end, Contralesa proposed that the school for sons of chiefs and headmen should be revived so as to be used a training facility for traditional leaders and councillors.

A representative of the Law Commission reported that the bill on customary courts, currently under deliberation, entails: the recognition of customary courts as courts of law, empowerment of courts and training of its officers; the subjection of the appointment of councillors to elections; and the inclusion of women.

The bill, according to the Law Commission, should be ready within the next six weeks. Comments on the bill will be elicited before it is presented to the minister.

A bill that will see the transference of the ownership of communal land from the state to traditional communities is currently under deliberation, reported the Minister of Land and Agricultural Affairs. This bill will address the following issues:

1. Separation of ownership and governance of land: Ownership should rest with the traditional authority giving it the right to decide who resides where. Governance or provision of social services will rest with the elected council.¹In light of the fact that ownership and governance cannot be entirely separated, both these bodies will be cooperate in pursuit of development in traditional communities.

2. Co-existence of communal and private tenure: Communal and private tenure has always co-existed in South Africa, but one was not give a title deed. Male members of a homestead, upon marriage were allocated a piece of land by the head of the homestead to build a hut and for cattle grazing and cultivation. Such allocation, however, was never accompanied by a title deed. Whilst not dejure, there has always been a defacto individual ownership. The bill will thus make provision for the issuing of a title deed. In contrast, Contralesa felt that "it would be foolhardy to for any community to issue title deeds to its members or anyone else".

3. Co-existence of communal tenure and commercial farming: The bill also makes provisions for the allocation of land for commercial purposes. This would not be a totally new practise in these communities. Traditional communities previously allowed for a practice called PTO - permission to occupy - which gave one access to land beyond what one was already entitled to by virtue of his membership in a particular homestead. A PTO was provided for a specific period of time and granted on condition that the land was used productively. Failure to comply with this condition resulted in the withdrawal of the PTO. The bill is thus looking at making provisions for registration of the PTO and giving it a legal status so that its holders can get loans from commercial banks.

4. Ownership of land by women: Private ownership of land should also be extended to women.

The Minister of Energy and Mineral Affairs reported that parliament is presently working on a bill whose aim is to separate ownership and mineral rights. Under the present legislation ownership of land entitled one to minerals located in that land. Once the new law comes into effect current holders of mineral rights acquired through ownership of land will have relinquish them and apply to the ministry for mineral rights. Development of the area in which the mine is located and the advancement of black ownership of mineral rights will determine the approval of such applications.

A concern was raised as to whether or not consultative processes or structures were in place to inform traditional leaders and communities that their mineral rights may be taken and how that will affect them.