SALGA SUBMISSION ON TRADITIONAL LEADERS AND GOVERNANCE BILL

Introduction
The liberation of South Africa entailed a principled drive for national unity with the concomitant yearning for our country to overcome the divisions of parochial and tribal politics.

The contribution of progressive forces within traditional leadership confirmed their status as a key component of our democracy.

For local government to succeed, traditional leaders must work closely with elected public representatives.

It is encouraging to witness traditional leaders working with local government councilors especially with regard to integrated rural development and in championing the cause of rural development.

Traditional Leaders can assist local government in creating opportunities through the integrated rural development programme.

Dignity and peoples’ faith in their own custom and traditions can be restored with the progressive role that can be played by traditional leadership.

Clear expression to the role of traditional leadership must be given within the context of our unique system of governance and within the parameters of our constitution.

2.1. Developmental local government
Within South Africa’s decentralized system of government, local government (LG), as one of the three spheres of government, plays an important part in the government of the country. It is the key site of delivery and development and is central to the entire transformation of South Africa. It has been accepted across government that local government is a major developmental arm of the State. The White Paper on Local Government defines the key outcome of developmental local government as follows:
- Provision of household infrastructure and services
- Creation of liveable, integrated cities, towns and rural areas
- Local economic development
- Community empowerment and redistribution.

Within South Africa’s system of government, local government plays an important role in the government of the country, being responsible for 21% of the total government expenditure. The Constitution allocates significant powers to municipalities, giving local government a measurable degree of autonomy within the system of cooperative government. Equally important, local government as a whole enjoys a high degree of financial autonomy: it generates more than 92% of its own revenue, with transfers from the national government comprising only 8%.

In comparison to decentralized countries, South Africa’s local government plays one of the most prominent roles in the governance of a country. Its contribution to total government expenditure is high, it enjoys the highest degree of constitutional protection, and is financially by far the most financially self-sustaining.

This role of local government as a sphere of government is dynamic and its relations with the other spheres are constantly developing. The role of local government is likely to increase. In terms of the Constitution, the national government and provincial governments must assign to a municipality, by agreement, the administration of matters listed in Schedules 4A and 5A which necessarily relate to local government and if those matters would be most effectively administered locally and the municipality has the capacity to do so. Furthermore, already more and more functions are being assigned by the national government to municipalities.

Local government, according to the White Paper on Local Government, is tasked with the following, among others:
- To promote and facilitate cooperative decision-making.
- To coordinate and align priorities, budgets, policies and activities across interrelated functions and sectors.
- To ensure a smooth flow of information within government, and between government and communities, with a view to enhancing the implementation of policy and programmes.
- The prevention and resolution of conflicts and disputes.

3. ORGANISED LOCAL GOVERNMENT AND THE ROLE OF SALGA
With local government consisting of 284 municipalities, effective participation in the system of intergovernmental relations requires that local government act as a collective, both to make the voice of local government heard as well as making sure that local government is a full partner in cooperative government. Local government can act collectively only through organised local government structures. This imperative is recognised and entrenched in the Constitution and legislation.

The Constitution and a number of statutes require that Salga, as the embodiment of organized local government at national level, represents municipalities in South Africa’s system of intergovernmental relations as it pertains between the three spheres. Furthermore, in terms of the Municipal Systems Act of 2000, Salga has a role to play in the relations between municipalities within the local government sphere - to strengthen the ability of municipalities to meet their constitutional mandate of serving their communities.

Representative role
Salga represents the interests of its members in their relations with the other spheres of government and also internationally. In representing the interests of municipalities the following objectives are pursued:
- within the context of the principles of cooperative government, to secure the coordination of municipalities’ programmes and legislation with those of the other spheres; and
- to promote and protect the relative autonomy of local government against encroachment by the other spheres.

In pursuit of both these objectives, Salga has a leadership role to play. When representing the interests of municipalities, it must "seek to develop common approaches to local government as a distinct sphere". From the views of 284 municipalities it must cull a common approach. Likewise, when local government as a collective of municipalities must cooperate and coordinate legislation and programmes with the other spheres, Salga’s task is that of "facilitat[ing] compliance with the principles of cooperative government and intergovernmental relations".

The representative function of Salga is entrenched in a number of statutes. A detailed exposition of the statutory mandates is set out in Annexure B. The statutory framework can be summarized in point form as follows:

Salga must be consulted by national government on the following matters:
- Assignment of responsibilities to local government by legislation
- Planning requirements
- Labour relations
- Regulations in terms of the Municipal Systems Act
- Standard draft by-laws
- Regulations in terms of the Municipal Finance Management Bill
- Implementing planning regulations
- Limiting municipal tariffs, rates, taxes, etc
- National Road Traffic Law Enforcement Code.

Salga has membership of the National Council of Provinces.
Salga is an invited member of the National Assembly’s Portfolio Committee on Provincial and Local Government.
Salga has membership of the following statutory IGR structures:
- Budget Forum
- Finance and Fiscal Commission
- Committee for Environmental Coordination
- Road Traffic Management Corporation’s shareholders meeting.
Salga has membership of a number of non-statutory IGR structures:
- MinMECs
- President’s Coordinating Council
- Various technical working groups, tasks teams and flagship programmes such as the Integrated Sustainable Rural Development Programme, Urban Renewal Programme and Local Economic Development.

Service role
Given the fact that each of the 284 municipalities is a constitutional entity in its own right, organized local government performs an important IGR role at a horizontal level. The Systems Act, in giving effect to the White Paper, expresses this role as follows: organized local government "must seek to enhance co-operation, mutual assistance and sharing of resources among municipalities". Salga must strengthen the ability of its members to serve their communities. This is done by assisting municipalities in their day-to-day functioning individually or collectively. In practice this has crystalised in Salga being the employer body in negotiations with municipal trade unions. Less formal are the numerous services Salga provides its members, the aim of which is to strengthen their effective functioning.

Chapter 12 of the constitution
Recognises "the institution, status and role of traditional leadership.

Constitution identifies role of traditional leaders as follows:

- National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities
- To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law
= National or provincial legislation may provide for the establishment of houses of traditional leaders, and
= National legislation may establish a council of traditional leaders

Local Government Municipal Structures ACT no 117 of (1998)

Section 81
1. Traditional authorities that traditionally observe a system of customary law in the area of a municipality, may participate through their leaders, identified in terms of subsection (2), in the proceedings of the council of that municipality, and those traditional leaders must be allowed to attend and participate in any meeting of the council

2. (a) The MEC for local government in a province, in accordance with schedule 6 and by notice in the Provincial Gazette, must identify the traditional leaders who in terms of subsection (1) may participate in the proceedings of a municipal council
(b) The number of traditional leaders that may participate in the proceedings of a municipal council may not exceed 10 per cent of the total number of councillors in that council, but if the council has fewer than 10 councillors, only one traditional leader may so participate
(c) If the number of traditional leaders identified in a municipality’s area of jurisdiction, exceeds 10 percent of the total number of councillors the MEC for local government in the province may determine a system for the rotation of those traditional leaders

3. Before a municipal council takes a decision on any matter directly affecting the area of a traditional authority, the council must give the leader of that authority the opportunity to express a view on that matter

4. The MEC for local government in a province, after consulting the provincial House of Traditional Leaders, may by notice in the Provincial Gazzette-
(a)regulate the participation of traditional leaders in the proceedings of a municipal council, and
(b) prescribe a role for traditional leaders in the affairs of a municipality

5. When participating in the proceedings of a municipal council a traditional leader is subject to the appropriate provisions of the Code of Conduct set out in schedule 5
The Draft White Paper on Traditional Leadership and Governance released in October 2002, deals with the following issues:
- the identification of a role for traditional leadership as an institution at a local level, on matters affecting local communities
- the reform of the entire institution, so as to restore the legitimacy it once enjoyed prior to the distortions introduced by the colonial and apartheid regimes
- the transformation of the institution generally, particularly the restoration of its character as an institution founded on custom, culture and tradition of the people
- reform of the institution so that it embraces some of the basic tenets underpinning the Constitution, such as equality and democracy.
Section 81 of the Local Government: Municipal Structures Act, 1998 Act 117 of 1998, was amended during 2000, providing enhanced representation of traditional leaders in municipal councils. They enjoy 20% representation.

GENERAL COMMENTS
As stated by South African Local Government Association (SALGA) in its comments on the then draft White Paper on Traditional Leadership and Governance, we are in full support of the spirit of the proposed legislation. Traditional leadership has a vital role to play in the upliftment and development of especially the traditional communities. The role that traditional leadership must play in this regard is complementary to and in support of local government. Their participation in municipal councils, as envisaged in the Municipal Structures Act, will serve to bring democracy and accountability even closer to a significant portion of our population.

SPECIFIC COMMENTS
1. The bill deals, firstly, with the establishment of traditional councils by traditional communities and the recognition thereof by the relevant Premier. The functions of such councils, in relation to a municipality, are to be the representative of the traditional community in its engagement with the municipality (see section 5). One of the express functions of a traditional council will be "to enter into service delivery agreements with municipalities regarding the provision of services to rural communities". If this is intended to bind municipalities into only delivering services through councils to rural communities, it may be in conflict with the service delivery provisions of the Systems Act. It is recommended that the entry into service delivery partnerships expressly be made subject to the provisions of the Systems Act.

2. The bill deals, secondly, with the notion of a "partnership between municipalities and traditional councils" (see section 6). It provides further that any such partnership "must be guided and based on the principles of cooperative governance". Whilst it is appreciated that there must be mutual respect and recognition of the status between a municipality and a council, it deserves to be noted that the principles of cooperative governance applies to the three spheres of government (see chapter 3, Constitution). The extension of these principles to be applicable to traditional councils, suggests that they are assuming the characteristics of a sphere of government. Whether this is desirable (or even constitutional), is a matter for debate and SALGA expresses no particular view in this regard. It is recommended that the words "and based on" be deleted so that the partnership must only be guided by the principles of cooperative governance.

3. The bill deals, thirdly, with the establishment of district houses of traditional leaders within metropolitan and district municipalities where more than one chieftanship exists. The bill is silent on where the resources will come from to sustain such a house. The house has a cooperative relationship with the relevant district- or metropolitan municipality (see section 17) and will render advice on specified matters and will participate in developmental activities involving rural communities as initiated by the district municipality. It is recommended that the bill makes provision for national or provincial funding for district houses.

4. The bill deals, lastly (for SALGA purposes), with the allocation of roles and functions to traditional leaders by national or provincial government (see section 18). Where an organ of state considers allocating a role for traditional councils or traditional leaders, there is a compulsory consultation with the Minister or the relevant MEC for traditional affairs. It is recommended that there must be similar consultation with organised local government nationally or within the province where the role to be allocated will involve engagement with a municipality.

RECOMMENDATIONS
1. It is recommended that the entry into service delivery partnerships expressly be made subject to the provisions of the Municipal Systems Act.

2. It is recommended that the words "and based on" be deleted so that the partnership must only be guided by the principles of cooperative governance.

3. It is recommended that the bill makes provision for national or provincial funding for district houses.

4. It is recommended that there must be compulsory consultation with organised local government nationally or within the province when roles are allocated to traditional leaders.

Conclusion
Traditional leadership has a crucial role to play in the extension of democracy and accountability to our traditional communities. This bill clearly articulates the role of traditional leadership in governance related municipal matters. It is of critical importance for municipalities to make appropriate space for traditional leaders in matters of governance that affect them. Poverty alleviation, job creation, the upliftment of the poor, and the social and economic development of communities are the yardsticks by which the people will measure government as a whole. Traditional leadership, together and in cooperation with local government is at the forefront of government’s attempts to push back the frontiers of poverty and building a better life for all.