SUBMISSION OF THE CONGRESS OF TRADITIONAL LEADERS OF SOUTH AFRICA ON THE TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL [B58 – 2003]

TO

THE PORTFOLIO COMMITTEE ON PROVINCIAL AND LOCAL GOVERNMENT, PARLIAMENT, CAPE TOWN 16 SEPTEMBER 2003

Introduction

Contralesa is an organization of traditional leaders, formed in 1987 to fight against apartheid and its injustices. The following are some of its aims and objectives.

- To reinstate, protect and promote the institution of chieftainship, its traditional status and function in the community.
- To organize and unite all traditional leaders of our country.
- To take up all the demands of our communities jointly with them.
- ]To fight against tribalism, ethnicity and all apartheid-instigated conflict amongst our people.
- To fight for the eradication of the homeland system and for the restoration of South African citizenship to all our people.
- To build, develop and deepen the spirit of free exchange of cultural activities amongst our people in pursuance of the building and development of a true South African culture and national talent.
- To educate our members and their people about the historical background of those traditional leaders who engaged the colonialists and the racist in wars and battles in order to save this land and to educate those who made material contribution to the welfare and development of the people.
- To run and self-help schemes together with like-minded organization that will advance all communities and enhance the good image of Contralesa

It became apparent that the new local government dispensation would result in the abolition of the powers and functions of traditional authorities, thereby rendering the institution of traditional leadership largely redundant. Such an eventuality was confirmed by a report which was prepared by a Technical Committee appointed by the President of the Republic of South Africa Mr Thabo Mbeki. The mandate of the Technical Committee, consisting of traditional leaders and officials from the Presidency and the Department of Provincial and Local Government, was to investigate whether indeed the establishment of new municipalities would result in the obliteration of the powers and functions of traditional leaders in local governance matters.

The government’s point of departure, as articulated by the President, was that the powers and functions of traditional leaders need not be obliterated and diminished in any way; on the contrary the democratic and non-racial government sought to strengthen and enhance those powers and functions. Were it to be found that there was a law which sought to obliterate such powers and functions, such law, even if it was the Constitution, would have to be amended.

The Technical Team came to the conclusion that indeed both the Constitution and the Local Government: Municipal Structures Act, 1998 had the effect of obliterating the powers and functions of traditional leaders in local governance matters. In light of this finding government announced that a law would be passed by Parliament defining and protecting the role, powers and functions of traditional leaders in local governance matters. That law was supposed to have been passed at the beginning of the year 2001. To date that law has not been enacted.

Due to the above state of affairs the coalition resolved that traditional leaders would not participate in local government structures as provided for in the Municipal Structures Act. Traditional Leaders decided to wait until such time that a law was passed which adequately defined their role in local governance matters. Needless to say service delivery in traditional authority areas has suffered a great deal because of the non-involvement of the majority of traditional leaders in local government structures.

It is the position of Contralesa that traditional authorities should be recognized as structures of local government in their own right in traditional community areas. The transformation and democratisation of traditional authorities should be a prerequisite for such recognition. This means that the traditional authorities must be composed of traditional leaders, traditionally and democratically elected councilors, some of whom will represent women and the youth.

The new municipal boundaries have been demarcated in ways which cause a lot of distress to many traditional communities and leaders. Traditional boundaries have been violated with the result that confusion reigns in the countryside with people who are supposed to do things together being thrown apart. This has the same kind of effect as the colonial boundaries have on families and communities who were forced to live in different colonies. The Municipal Boundaries Demarcation Board would do well to revisit the matter and demarcate the Municipal boundaries in ways which do not divide and separate single traditional communities.

Contralesa is in principle not opposed to the establishment of elected municipal councils with jurisdiction over traditional community areas provided that, where applicable, all heads of traditional authorities are full members of such councils.

The Traditional Leadership and Governance Framework Bill – the subject of this submission – purports to define, among others, the roles and functions of traditional leaders in the various spheres of government, not just the local sphere. Strangely though the Bill does not provide for the powers of traditional leaders in any of their structures.

Contralesa welcomes the fact that the Bill seeks to deal with all issues pertaining to the institution of traditional leadership. The National, Provincial and District Houses of Traditional Leaders, as well as the Traditional Councils must be provided with powers and adequate resources to enable them to carry out their functions in a meaningful way.

Contralesa, in spite of the reservations it has with respect to some of its provisions, notes, with appreciation, that the Bill gives recognition to the institution of traditional leadership as an organ of state with a role to play in the governance of the country. The Bill accepts the fact that all government programmes and policies can only be effectively implemented in the traditional community areas with the co-operation and active involvement of the country’s traditional leadership. It thus becomes imperative that the traditional leaders be part of the decision-making processes through their structures. This means that each House should be given ample opportunity to consider relevant draft laws before adoption by the relevant legislative body.

SUBMISSION

1. Long Title and Preamble
The long title must provide for powers of traditional leaders and councils. It would be futile to have structures performing functions without giving them powers to perform such functions. The rest of the provisions are supported.

2. CHAPTER 1
Clause 1 – Definitions
It is not necessary to use the term headwoman as the term headman denotes the office and not necessarily the gender of the person holding the office. In the vernacular the term used for a traditional leader irrespective of gender is the same. It does not amount to an undermining of a woman traditional leader nor does it discriminate on the basis of gender.

In view of the fact that Clause 23 makes reference to tribes as opposed to traditional communities the word tribes must be defined to avoid confusion.

In reality there are four rungs in the hierarchy of traditional leadership epitomized by the King, the principal traditional leader, the headman and the sub-headman. The word sub-headman must accordingly be defined.

The rest of the provisions of the clause are supported.

CHAPTER 2

Clause 2 Recognition of Traditional Communities
The provisions of this clause are supported subject to the following proposals: -
Recognition of a traditional community must be done in consultation with the relevant traditional council or house of traditional leaders; and
Sub-clause2 (3) must be deleted. This provision is unnecessary and irrelevant. No community may be forced to change by law. This is offensive as it suggests that by mere fact of the traditional communities being traditional they are thus backward and inferior. Moreover any act that is against the Constitution stands to be struck down.

Clause 3 – Establishment & Recognition of Traditional Councils
The provisions of this clause are supported in principle. If the term traditional council is preferred to traditional authorities (with which Contralesa has no problems) then the relevant provisions in the Constitution must be amended. The Constitution recognizes traditional authorities.

Contralesa supports the participation of women in traditional councils. Failure or refusal by women to participate in a particular traditional council should, however, not result in the invalidity of such council.

Clause 3 – Functions of Traditional Councils
The sub-heading must be amended to read: Powers and Functions of Traditional Councils.

This clause should provide for the powers which are contained in the current statutory and customary laws which are exercised by traditional authorities. Such powers are outlined in the first report of the Commission on the Remuneration of Public Representatives.

The powers and functions must be exercised and performed within the principles of partnership and mutual respect envisaged in Clause 5.

The rest of the provisions of this clause are supported.

Clause 5 – Partnerships Between Municipalities and Traditional Councils
Whilst the provisions of this Clause are supported, Contralesa proposes that the Constitution be amended, through another Bill, to provide for the stipulation of the powers and functions of traditional councils in local government in the same way as those of municipal councils are stipulated. Attached hereto as Annexure A are the Coalition’s proposals for such amendments.

Clause 6 – Support to Traditional Councils
The Bill envisages situations where both the national and provincial governments will require traditional councils to perform certain functions for the two spheres as in Clause 18.

This clause must be amended to stipulate that the national government and provincial governments must provide support and strengthen the capacity of traditional councils. The need to provide support must not be at the discretion of government.

Clause 7 – Withdrawal of Recognition of Traditional Communities
Provided that any reorganisation of traditional communities and councils is done in consultation with the relevant traditional council or house, the provisions of this clause are supported.

CHAPTER 3
Clause 8 - Recognition of Traditional Leadership Positions
Contralesa understands the difficulty relating to the use of acceptable English terminology for the leadership rungs below the King. The terminology is thus grudgingly accepted on the understanding that provinces and communities will be free to refer to their traditional leaders in acceptable indigenous terms.

The clause must be amended to provide for the recognition of sub-headmanship where this applies.

Clause 9 – Recognition of Kings and Queens
Kings and reigning queens will also function through traditional councils and district houses. The designation of a king or queen, therefore, must go through the traditional council and district or provincial house before the matter is referred to the President. The national house must be furnished with the relevant information as part of its records on traditional leadership. The endorsement of the new king or queen, by the traditional community, in line with custom must be sought. The rest of the provisions are supported.

Clause 10 – Recognition of Other Traditional Leaders
The relevant traditional council and district house must be empowered to consider the designation of a principal traditional leader or headman before confirmation. Here again the clan or traditional community must give its endorsement in line with custom.

Clauses 11, 12 & 13 - Recognition of Regent, Person acting as Traditional Leader, Deputy Traditional Leader
The provisions of these clauses are supported, provided that the term of office with respect to each position is restricted to a period of no more than five (5) years, which term may be periodically reviewed.

Clause 14 – Removal of a Traditional Leader
The provisions of this clause are supported. Contralesa proposes that the offences which may lead to removal are serious offences such as embezzlement of council funds, murder, theft, rape, etc. Upon the completion of the term of imprisonment and on evidence of rehabilitation, the traditional leader should be considered for re-instatement.

CHAPTER 4
Clause 15 - Houses of Traditional Leaders in Republic
The provisions of this clause are supported. Contralesa, however, proposes an amendment by the addition of sub-clauses which provide for the powers and functions of the National and Provincial Houses of Traditional Leaders. Members of the Houses must be on a full-time basis. They must enjoy benefits, allowances and salaries similar to those of elected public representatives.

Such an amendment requires an amendment of Chapter 12 of the Constitution. Accordingly an amendment bill of the Constitution must be passed. The amending bill must oblige the relevant legislature to refer relevant draft legislation to the House for consideration and comment. In this regard the powers and functions contained in the interim Constitution must be re-instated.

Clause 16 - District Houses of Traditional Leaders
Clause 16(2) must be deleted. It must be substituted with a clause which provides that all heads of traditional councils must be members of the district House.

With regard to Clause 16(3) the district House must not only advise the municipal council, but must have the right to participate in the deliberations of the Council. The House must also have the right to initiate by-laws for the district.

In view of the fact that the district Houses effectively replace the regional authorities, the powers and functions exercised and performed by the latter must be transferred to the district Houses.

The rest of the provisions of this clause are supported.

6. CHAPTER 5
Clause 17 – Functions of Traditional Leaders and Code of Conduct
The sub-heading must be changed to include powers. The traditional leader must be empowered to enforce decisions and directives lawfully taken and given.

The rest of the provisions of this clause are supported.

Clause 18 - Allocation of Roles , Functions and Guiding Principles
Here again the heading must include powers. Contralesa supports the provisions of this clause which gives recognition to the fact that traditional leadership has a role to play in all matters which affect the lives of traditional communities.

For this reason Contralesa proposes that the affairs of traditional leadership must be administered in the highest provincial and national office, ie the Premier and Presidency.

Accordingly clause 18 (2)(a) should be deleted. It should suffice that the relevant organ of state will consult structures of traditional leadership.

Contralesa proposes the addition of Clause 18(3) which obliges government to construct offices and other amenities to enable traditional leaders and councils to perform their functions.

The rest of the provisions of this clause are supported.

CHAPTER 6
Clause 19 – Dispute Resolution
This clause must provide for the consideration of disputes by the district House before a matter is referred to a provincial House.

The rest of the provisions of this clause are supported.

Clause 20 - Establishment of Commission
The provisions of this clause are supported

Clause 21 – Appointment of Members of Commission
The provisions of this clause are supported.

Clause 22 - Vacancies
The provisions of this clause are supported.

Clause 23 - Functions of Commission
The sub-heading must include powers as the commission will need powers to carry out some of its functions.

The provisions of this clause are otherwise supported.

Clause 24 – Decisions of the Commission
While the provisions of this clause are supported, Contralesa proposes the addition of a sub-clause which provides for the referral of the Commission’s decisions to the relevant traditional council, district, provincial and national House.

CHAPTER 7

Clause 28 - Transitional Arangements
As stated earlier Contralesa is of the view that the affairs of traditional leaders must be administered in the highest office. Accordingly Clause 28 (5)(a) must be amended to provide for the Premier, and not the MEC, disestablish the structures referred to in the paragraph.

The rest of the provisions of the clause are supported.

Clause 26 – Short Title and Comment
The provisions of this clause are supported.

Conclusion
Contralesa wishes to thank the Portfolio Committee on Provincial and Local Government for the opportunity it has afforded it to convey its views on this very important piece of legislation to Parliament. We thank also the Minister and his department for having finally come up with a Bill that goes a long way towards the resolution of the vexed question of the role and place of traditional leadership under the new democratic dispensation.

Various individuals and organizations have shown consistent support to the traditional leadership of this country in the course of the on-going search for a formula which would harmonise the indigenous African systems of governance and those inherited from the country’s former colonialists and oppressors. We thank them profusely. This Bill vindicates their principled support.

Contralesa bears no grudge towards those who have campaigned against the institution believing that the promotion of human rights and democracy was inimical to the institution of traditional leadership. While some of these were motivated by pure envy and jealousy, others did so out of pure ignorance generated by years of so-called Western civilization and brain-washing.

The passage of this Bill, enriched as it will be by some of the submissions that the committee will receive, should lead to a celebration of true African Renaissance by the people of our land, especially the rural communities. For too long the latter have been placed in the invidious situation where they were forced to choose between their traditional leaders and politicians. Contralesa hopes that when the country celebrates ten years of freedom in the course of the year 2004, the country’s traditional leaders will have no reservations and will join their people and government in declaring that indeed all of South Africa is free.

In conclusion Contralesa cannot tell politicians and their parties what not to say as they campaign for elections next year. It is, however, its wish that the issue of traditional leadership is not used as a tool for point scoring and the gathering of votes. The spectacle is unedifying and does not suit the dignity that goes with the institution.

Dated in Cape Town this …… day of September 2003

Nkosi SP Holomisa (A! Dilizintaba)

Chairperson: Coalition of Traditional Leaders of South Africa
And President: Congress of Traditional Leaders of South Africa