REPORT OF THE NATIONAL CONFERENCE ON TRADITIONAL LEADERSHIP HELD ON 17 AND 18 AUGUST 2000 AT THE ESKOM CONFERENCE CENTRE, MIDRAND

INTRODUCTION AND ATTENDANCE
The Department of Provincial and Local Government organised a two day National Conference on Traditional Leadership and Institutions from 17 to 18 August 2000 at the Eskom Conference Centre in Midrand. The Conference was conceived as an effort towards involving all the stakeholders in the field of traditional affairs in the discourse on a process-led, participatory and inclusive policy- making process. Participants were drawn from a wide spectrum of experts including: traditional leaders, members of the academia, Commissioners, NGOs, Politicians, civil society and delegates from the neighbouring countries of Mozambique, Botswana, Swaziland and Lesotho.

PURPOSE
The purpose of the conference was to further add on the inputs submitted in terms of the Discussion Document on Traditional Leadership and Institutions and to test the opinions of delegates on the issues raised (festival of ideas). The Conference was conceived as an effort towards encouraging deliberations and eliciting more comments regarding constitutional legal policy questions arising out of the Discussion Document.

DISCUSSIONS
The opening ceremony received a keynote address on behalf of the Deputy President from Minister Stella Sicgawu while papers were delivered by experts drawn from the academia and knowledgeable members of the civil society. The processes that led to the drafting of the Discussion Document and the rationalisation of legislation were provided by contributions from members of the Department of Provincial and Local Government.

Deliberations during the Conference were exhaustive, dwelling on the history and politics of the institution of traditional leadership in South Africa, the complex constitutional provisions relating to traditional leadership and the policy process embarked upon to clarify their role in the democratic constitutional dispensation. They also focused on some fine policy questions as outlined in the Discussion Document.

THEMES OF THE CONFERENCE
Three Commissions addressed the following themes as follows:

COMMISSION I
Roles, Powers and Functions of traditional leadership in the current constitutional order

The mandate of the Commission was to deal with the following issues:
+ The powers, functions and roles of traditional leadership
+ Traditional leadership participation in local government
+ Co-operative governance and the role of traditional leadership

Summary of responses

After deliberating on the above issues, it became clear that responses focused on three issues, that is, the Constitution, Municipal Structures Act and Powers, functions and roles of traditional leadership.

1. The
Constitution of the Republic of South Africa (Act 108 of 1996)
+ It became clear that the 1996 Constitution fails short of clearly defined powers, roles and functions of the traditional leadership except merely to recognise the institution.
+ The Constitution is the expression of the will of people. It can therefore, be amended it the people who voted for it so wish.
+ The Constitution is the supreme law of the land and whatever the traditional leadership is doing, should be within the confines of the present constitution

2. The Municipal Structures Act 117 of 1998
+ There was a strong feeling that 10% representation of traditional leadership in municipal councils is inadequate. Many delegates felt that there is a need for amendment
+ Some delegates felt that the 50-50 % representation of traditional leadership and councillors would be adequate.
+ However, others argued that the context of the area should be taken into
account, for example where there are many traditional leaders (rural areas)
representation should be higher and where they are few/less (urban areas)
representation should be minimised.
+ Another view was that traditional leadership could constitute an Electoral College that can represent them in the council of their jurisdictional area(s).
+ Traditional leadership participation and representation should not be confined to rural areas only but also in the Regional/District Councils.
+ Traditional leaders could stand as independent candidates in a given locality.

3. The Powers, Functions and Roles of Traditional leadership
+ It is a reality that both the institutions of traditional leadership and councils are recognised in the current constitutional dispensation (both are here to stay).
+ Given this reality, the role of traditional leadership at local level needs to be redefined.
+ To solve some of the problems, both traditional leadership and councils should be capacitated, given resources and be prepared to work together for effective service delivery and development (co-operative governance).
+ Some delegates argued that many people are not against the institutions per se but some individuals who are serving in those institutions therefore, a distinction should be clearly made between the institutions and the individuals who may not be acceptable to the communities.
+ Traditional leadership should be part of land redistribution/allocation in their jurisdictional areas
+. Traditional: leaders are custodians of their cultures therefore, should inform and advise magistrates in explaining customary law and traditional governance.
+ Traditional leadership should be given civil and criminal jurisdiction and the appeal courts should recognise customary law.
+ Traditional leaders should also perform policing functions and attend to dispute resolution in their localities.

Commission 1 concluded as follows:
Given the adopted Constitution 108 of 1996 of the Republic of South Africa it became evident that government and the traditional leadership should try to find a solution/compromise on the powers, roles and functions that should be assigned to the traditional leadership. This will exacerbate effective service delivery in rural areas while at the same time promoting co-operative governance.

COMMISSION II
The commission dealt with the following issues:
1. The process of appointment of traditional leaders into positions of traditional leadership
+ The commission resolved that royalty is born into positions of traditional leadership and not appointed.
+ The identification is the duty of the inner circle, done in accordance with custom.
+ Where there is a King, he should recognise and overseer all appointments.
+ Government should only participate in the installation process of traditional leaders.
+ Terminology that should be used with regard to the above is "identification" and recognition" rather then "appointment" as this term can be confusing.
+ Where there are disputes regarding the identification of traditional leaders government should play a facilitator role.
+ The commission recognised that there are different systems of appointment at different levels. Within these differences, the issue of gender representivity should be addressed.
+ The Royal Council should be responsible for the removal of traditional leaders from their positions as this goes hand in hand with the identification.
The following issues were flagged as important:
+ Decline - Where the traditional leader declines his/her appointment what is the position of the offsprlng as well as the position of the wife?
+ Involvement of the Provincial House of Traditional Leaders in the appointment of traditional leaders. Does this not result in the imposition of other cultures to the appointment being considered?

2. Party Political Affiliation
+ Traditional leaders should be impartial in the performance of their duties.
+ If traditional leaders publicly align themselves to any of the political parties, how will they keep peace in their communities? i.e. political instability.
+ Traditional leaders can not be deprived from participating in politics (i.e. Freedom of association clause in the Bill of Rights). Therefore it is recommended that where
they want to be involved, they should relinquish their active positions and hand
them over to a potential successor.
+ The issue to be considered in deciding this issue is the unity of the tribe.

3. Accountability
+ Accountability can be dealt with in two forms i.e. the functional accountability and the accountability that results from remuneration.
+ Traditionally traditional leaders account through imbizo, lekgotla etc.
+ Traditional leaders are accountable to their communities by virtue of their positions as traditional leaders and to the government because of the fact that government pays them salaries.
+ Traditional leaders are also accountable to the Houses of Traditional Leaders because of their nomination as members of the House.
+ Accountability should be accompanied with the availability of resources.
+ Provincial Houses of Traditional Leaders should account at provincial level i.e. to tribal authorities and provincial government.

The following issue was flagged:
+ What mode should be used to account to the government?

4. Women
+ There was a unanimous agreement that women should participate in traditional leadership structures.
To secure the position of the heir to be, mothers should be appointed as regent on behalf of their own children.
· On the issue of succession, women should succeed into position of traditional leadership. The question was, in what form should they succeed? Should it be as regents or in their own right?
· If in their own right then the following means of appointment were made:
+ That a male from another Royal Family marries into the Queen’s family;
+ The Queen does not marry;

The Queen marries, however the offspring do not succeed;
+ Succession should begin the moment the husband ascends the throne i.e. the wife should start building a relationship with the tribe as the mother of the tribe from the moment her husband ascends to the throne.
+ Education of women is imperative in order for them to be able to exercise their rights.
+ Constitutional gains made in the field of women should be defended.
+ It is important to balance the constitutional and cultural diversity.
+:. It is necessary to recognise that both the girl and boy child are equally important, so is maintaining the family name.

The following issues were flagged as matters, which Heed very serious attention:
+ Female mutilation
+:. Ukuhlolwa custom/virginity test
+ Ukungena custom
+:. Consideration of the community interests.

COMMISSION Ill
This Commission dealt with deposement or removal from office of traditional leaders.

Commission 3 recognised the customary role of the Inner Family (Royal Family) in identifying a successor in any African Traditional Leadership. However, in view of the fact that in some instances, such Inner Families (Royal Families) are divided arid cannot resolve succession disputes, delegates proposed that:

A Commission of Inquiry must be instituted. it must be composed of civil servants who are knowledgeable and experienced about African tradition: customs and culture: elders socially acceptable and with interest in traditional leadership; members of society knowledgeable about African traditions, customs and culture. To safeguard against western influence on African traditional leadership, It advised against judges being appointed to the Commission.

Members of the Commission should be appointed on the basis of their knowledge of African culture, customs and tradition, and be representative of our cultural diversity.

The Inner Circle (Royal Family) should in the meantime continue to appoint traditional leaders and government have to recognise such appointments. In the case of dispute by the Inner Circle (Royal family), the matter should be referred to the envisaged commission.

+ The cut-off date for submission of claims, as held by the majority, should be 1927 (in line with the coming into effect of the Black Administrative Act). The minority view felt that the 18th century should be the cut-off period.
+ The powers of the envisaged Commission should be to make recommendations and for government to implement such recommendations.
+ Once the envisaged Commission of Inquiry has identified and recommended a legitimate traditional leader, and in instances were the identified illegitimate one is accepted by the members of the community then the following measures must be adopted:
+ The Commission must develop a mechanism that will enable the illegitimate leader to voluntarily step down.
+ Government or Commission must consult with the Inner Circle (Royal Family) and facilitate the process of stepping down.
+:. Benefits received by the identified illegitimate one must be stopped.
+:. Government must urgently review and repeal all old laws dealing with traditional leadership

In dealing with claims submitted by woman in terms the Bill of Rights then the following must be considered:
+ If customs, culture and tradition of that particular community permit, then the claimant be allowed succession rights.
+ If customs, culture and tradition of the affected community disallowed, then such barring be allowed to prevail, as this would be in line with principles of fair discrimination.
+ The envisaged Commission must only take cognisance of customary structures, systems and Women’s participation in customary structures if that is in line with customs, culture and tradition of that particular community.

INPUTS BY THE PLENARY
+. The Plenary endorsed recommendations by Commission 3. It felt that the appointment of a Commission of Inquiry is long overdue. It however recommended the following:
+ That the involvement and participation of women in all traditional leadership structures, including succession rights. be unconditional and in line with the constitution
+ That the principle of fair discrimination" in relation to women as successors should be abolished.
+:. That the envisaged Commission, albeit instituted centrally, should take into considerations provincial dynamics
+:. That there should be strict time frames for the operation and existence of the commission.
+ Those value laden principles such as customs, tradition, and culture, as used by various diverse ethnic groupings, be investigated by the envisaged commission.
+ That the Commission should investigate alt the pre-colonial actual traditional meaning of titles and the levels of Traditional Leadership (Kings, Paramount Chiefs, Chiefs and Headmen)-

GENERAL IMPRESSIONS OF THE CONFERENCE
The Conference achieved what it had set out to achieve i.e. to raise ideas and to contribute to the inputs made in terms of the Discussion Document. It was not intended to adopt positions and resolutions on issues.

The inputs and comments made by delegates were constructive and incisive. It was clear that the majority of delegates wanted to make input in the White Paper Process.

Although traditional leaders adopted a position that they be regarded as observers, their failure to offer inputs and comments did not dent the spirit of the conference nor stultify comments and participation. They however later participated fervently in commissions and made valuable contributions.

The conference was the last in the series of consultations paving the penultimate step of drafting the White Paper on Traditional Leadership.

The conference adjourned at 12h30 on Friday with a closing speech by Minister F S Mufamadi.