1. The Coalition of Traditional Leaders of South Africa is an organisation which is composed of all Provincial Houses of Traditional Leaders in South Africa, the National House of Traditional Leaders of South Africa, Congress of Traditional Leaders of South Africa and the Royal Bafokeng Nation.

2. The Bill was promulgated by the Department of Provincial and Local Government on 04 September 2003 subsequent to the existence of the White Paper on Traditional Leadership and Governance in July 2003.

3. There can be no doubt that the vision for the institution of traditional leadership as portrayed by the Bill is very different to that envisaged by the traditional leaders and their communities. The adoption of democracy in 1994 led the traditional communities to believe that:

4. The expectations of the traditional communities and their leaders have not been met. They have found that their vision of a free democratic and open society is not shared by those who have been given the task of dealing with issues relating to traditional communities. The claim of the Coalition that African direct democracy is more democratic than euro-centric representative democracy, especially at the local level, is on the table. It cannot be brushed aside by any Parliament that claims to uphold the principles of democracy as enshrined in the Constitution.

5. An open and democratic society does not impose methods of governance upon its reluctant people. It does not attempt to destroy systems of governance that have endured for centuries. If left to operate in an open and democratic society, traditional systems adapt and change in accordance with the wishes of the communities they serve. Traditional systems and cultures evolve and change according to the wishes of the people. If a central authority seeks to impose change, it destroys the very essence of tradition and takes away from the people all that they value most.

6. Throughout Africa the indigenous people have had their traditions, cultures and languages invaded by foreign elements that have used force to disorient them and prevent them from utilising their ancient traditional systems to maintain peace and order in their communities. Africa has paid a heavy price. Unfortunately, as African majority governments have been voted into power using euro-centric "democratic" constitutions, they have generally refused to give recognition to their own traditional systems. The tragic consequences can be seen in the wars and strife that are pervasive throughout the continent. Africans need access to systems of governance, particularly at the local community level, which they know and understand. We appeal to the Parliament to put aside borrowed euro-centric thinking and approach this issue as Africans. It is a matter of the greatest consequence to rural communities. Their wishes must not be ignored in what appears to be a determined effort to impose foreign system of governance at any cost in South Africa.

7. In many government documents dealing with traditional leadership, the assumption appears to be made that because traditional authorities are not elected in the European manner, they are undemocratic. This view is incorrect. Democracy requires political leaders to listen to the people. Dictatorial behaviour towards citizens or communities within the area of democratic governance is authoritarian and lien to the fundamental principles of democracy. In terms of this fundamental description of the proper functioning of democracy, traditional leaders always act in a totally democratic manner. Those who claim that traditional African governance is undemocratic are either totally euro-centric in their thinking or have no understanding of the ways of African people.

8. Europeans have the view that if an election is won by one vote, the winning political party can act as it wishes and does not have to consider the views of the minority. This type of thinking forms no part of the African system of governance. In African democracy everyone has a right to be heard and if one dissenter has the wisdom to sway the views of the majority, the wisdom of that person will prevail.

9. In the circumstances we have considered the provisions of this Bill and we wish to make the following submissions:

1. LONG TITLE AND PRE-AMBLE

We would like to remind the Parliament that during the year 2000 the President established a Joint Technical Team to inter alia consider whether the establishment of new municipalities would diminish or obliterate forever the powers and functions vested in traditional institutions. The President pointed out that it was not the intention of his Government to diminish or obliterate any powers exercised by the traditional institutions instead the Government intended to grant more powers and functions to them.

When it was pointed out that the Constitution of the Country was the instrument that took away the powers of traditional authorities, the President clearly stated that, if that was so, the Constitution must be amended. We applauded the President for the stance he took in the matter.

During October 2000 the aforementioned Joint Technical Committee unanimously found that unless the Constitution was amended, the establishment of new municipalities would signal the death knell for the institution of traditional leadership in South Africa.

During the White Paper process and at the initial stages of processing the Bill, our representatives pointed out that both the institution of traditional leadership and spheres of Government can co-exist within the principles of co-operative governance enshrined in the Constitution provided that traditional authorities are granted similar powers to those of municipalities. It became apparent that the White Paper Task Team’s mandate was to draft the White Paper within the provisions of the existing Constitution. It is obvious therefore that this "constraint" will continue to exist until and unless the Constitution is amended.

Our representatives again reiterated our stance when the White Paper Task Team presented the White Paper to the Joint Political Reference Team that was established by the ministry and the latter agreed once more that the Constitution needs to be amended to bestow meaningful powers and functions to the envisaged Traditional Councils.

We believe that the long title and the preamble of the Bill should clearly record the mischief that is desired to be addressed. We would like to point out that traditional institutions have original powers to administer the affairs of all the people living in traditional communities in accordance with their own unique system of governance.

2. CHAPTER 1

The words "Principal Traditional Leader" and "Principal Traditional Leadership" are worse than the word "Chief" and "Chieftainship". We consequently reject their use. It is the feeling of the Coalition that the word should not be used in reference to the institution of traditional leadership. We prefer that vernacular languages be used.

We therefore believe that these categories of traditional leadership should be clearly set out in the Clause.

3. CHAPTER 2

3.1 RECOGNITION OF TRADITIONAL COMMUNITIES (CLAUSE 2)

The traditional communities that exist and live in traditional communities must be allowed to continue to exist and be administered by Traditional Authorities concerned.

However, should the need arise to establish new traditional communities the government MUST recognise the traditional community IN CONSULTATION with the traditional council(s) and Provincial House concerned.

To suggest that traditional communities "must transform and adapt applicable customs and customary law" to be in line with the present provisions of the Bill of Rights in our Constitution is an insult to these communities. This suggest that our customs are backward and reminds us of the old repugnancy clause contained in what was contained in Section 11 of the then Kaffir Administration Act, 1927. This smacks of an unfortunate history repeating itself.

If the Government wants to repeal our well-established customs we suggest that it should instruct the Law Commission to conduct a proper study and make recommendations to it. Clause 2(3) of this Bill must be deleted.

3.2 ESTABLISHMENT AND RECOGNITION OF TRADITIONAL COUNCIL (CLAUSE 3)

We reiterate that the Clause should first of all make provision for the continued existence of traditional authorities albeit under a new name i.e. Traditional Councils. We would like to point out that Chapter 12 of the Constitution provides for Traditional Authorities and the use of Traditional Council is not consistent with the present text of the Constitution, unless of course it is amended as proposed by us.

We support in principle the idea that the envisaged traditional councils should continue to be democratic and also that a provision be made of at least a third of its members to be women. However, should in a particular community women themselves decide not to participate or have members in the councils they should be allowed to do so.

3.3 FUNCTIONS OF TRADITIONAL COUNCILS (CLAUSE 4)

The sub-heading must be amended to read: "Powers and functions of traditional councils".

The traditional councils must continue to exercise powers and functions that were exercised by traditional institutions before colonialists and the present Constitution.

The functions that are exercised by traditional councils and municipalities are set out in the Joint Technical Report which was submitted to the President on 09 October 2000. These powers and functions need to be exercised concurrently with the municipalities within the principles of partnership and mutual respect contemplated in Clause 6 of this Bill.

The Bill must also make provision for the power of traditional councils to continue to govern and administer the local affairs of traditional communities in accordance with the relevant traditions and culture. Such powers are all set out in the first report of the Commission on Remuneration of Public Representatives. The added powers and functions should also be set out e.g. those set out in Clause 18 of this Bill.

3.4 PARTNERSHIP BETWEEN MUNICIPALITIES AND TRADITIONAL COUNCILS (CLAUSE 5)

We support the provisions of this Clause. However, we maintain that unless the Constitution is amended to set out the powers of traditional councils as well, there is the possibility that the clause may be struck down by the Constitutional Court as unconstitutional. With this in mind we propose that another Bill to amend the Constitution must be introduction to Parliament and processed simultaneously with this Bill.

Our proposed constitutional amendments are annexed hereto, marked annexure "A".

3.5 SUPPORT TO TRADITIONAL COUNCILS (CLAUSE 6)

We support the principle of providing the necessary support to and strengthening of capacity of Traditional Councils. However, we propose that this is necessary and as such Provincial Government MUST support and strengthen the Councils by e.g. providing the necessary infrastructure such as office accommodation and office furniture and equipment such as computers, telephones and faxes, etc. Provision must also be made for Provincial Governments to employ the necessary staff e.g. personnel to manage administration.

3.6 WITHDRAWAL OF RECOGNITION OF TRADITIONAL COMMUNITIES (CLAUSE 7)

The provisions of this clause should be amended to be in line with our views as expressed under Clause 2 above. However, we would like to state that we do not envisage dissolution of the traditional councils that should continue to exist and those that may be newly established. This provision seems to suggest that the Department of Provincial and Local Government would wish that the councils should die a natural death in future. Needless for us to stress that we and generations to come will resist all such attempts. We, however, accept the possible re-organisation of traditional councils should the people concerned so desire.

3.7 RECOGNITION OF TRADITIONAL LEADERSHIP POSITIONS (CLAUSE 9)

We note that the provisions of this clause are not entirely in accordance with the White Paper. As transpired during the Political Reference Team meeting there is another level of traditional leadership, lower than that of a "headman". We propose that these provisions should not be prescriptive and provisions should be made to recognise another tier as may be prescribed by customary law of a traditional communities.

Needless for us to stress once more that we do not need "Principals" in traditional institutions.

3.8 RECOGNITION OF KINGS AND QUEENS (CLAUSE 9)

The Royal family must appoint a King or Queen after consultation with the tribe or nation concerned. The appointment must be submitted to the Traditional Council or District House for a formal resolution to be submitted to the President.

The envisaged framework to be prescribed by the President should be issued in consultation with the National House of Traditional Leaders.

3.9 RECOGNITION OF TRADITIONAL LEADERS (CLAUSE 10)

The provisions of this clause must be amended to make provisions for the role of Royal family, extended family and even clan or tribe to have a role in identifying a person to succeed as a traditional leader. After the entire process the traditional council should appoint "headmen". However, in respect of a "chief/chieftainess" the envisaged district houses of traditional leaders should be empowered to appoint such traditional leaders in consultation with clan or tribe concerned. We nevertheless agree that once the process has been followed the Premier must recognise such a person.

Provision should be made that such appointment should be made in accordance with the tradition and culture of the clan or tribe concerned.

3.10 RECOGNITION OF THE REGENT (CLAUSE 11), ACTING TRADITIONAL LEADERS (CLAUSE 12) AND DEPUTY TRADITIONAL LEADERS (CLAUSE 13)

The provisions of these clauses are supported in principle. However, we propose that the terms should not be more than 05 years at any specific period subject to extension of time should the Royal family so decide. We base this on our experience that more often than not if traditional leaders act for very long period they refuse to hand over to the rightful persons and sometimes they would act against their interests.

3.11 REMOVAL OF TRADITIONAL LEADER (CLAUSE 14)

The provisions of this clause are supported in principle. However, we propose that the offences that may lead to a removal of a traditional leader must only be limited to serious offences such as embezzlement of council funds, theft, murder, rape, etc. Furthermore such a removal must be limited to the period the traditional leader is serving. Should the Traditional Leader be rehabilitated after the term of imprisonment, he or she should be eligible to be considered to assume his or her position.

4. CHAPTER 4

4.1 HOUSE OF TRADITIONAL LEADERS IN REPLUBIC (CLAUSE 15)

The Provincial and National Houses recognised in the Constitution must also have their powers and functions clearly set out in the Constitution. They must also be capacitated and strengthened in line with the President’s undertaking in this regard during the year 2000. The members of the Houses must be full time and should also receive same benefits like all members of Provincial legislatures and Parliament.

4.2 DISTRICT HOUSES OF TRADITIONAL LEADERS (CLAUSE 16)

The provisions should be made for the disestablishment of the existing Regional Authorities and transforming then into the new District House of Traditional Leaders.

The powers of the District Houses must be set out in the Constitution, which should include the powers and functions presently exercised by the Regional Authorities. The proposed advisory role undermines the principle of partnership and mutual respect and is accordingly rejected.

We are opposed to the provisions which should limit the number of the members. The heads of Traditional Councils within the area of jurisdiction of District Houses must be members of the District House. In addition to them, these Councillors elected by the Councillors of the Traditional Councils who are not Traditional Leaders. Portion of these councillors may be females.

5. CHAPTER 5

5.1 FUNCTIONS OF TRADITIONAL LEADERS AND CODE OF CONDUCT (CLAUSE 17)

We do not undestand why the roles and functions of the institution of traditional leadership should be set out in different sections. This may lead to confusion. We reiterate that the powers and functions of traditional leadership should be clearly set out in the Bill.

The recognition of this clause to the power of Traditional Leaders based on customary law and practices is welcomed.

We also welcome the need to have a code of conduct that must be prescribed for traditional leaders. The code of conduct should be proclaimed in consultation with the Houses of Traditional Leaders.

5.2 ALLOCATION OF ROLES, FUNCTIONS AND GUIDING PRINCIPLES (CLAUSE 18)

The principles set out in this clause should emphasise the principles outlined above such as the power of traditional institutions to govern and administer their affairs in line with their own well-established democratic principles of direct democracy.

We accordingly believe that Government MUST provide for the role of traditional leadership.

We would like to reiterate that the power to own and administer land in traditional communities is not negotiable. The Bill must recognise this fact.

The reference to an "organ of state" is confusing in the context of the Bill. We regard the Traditional Councils and District Houses of Traditional Leaders as organs of state sui generis.

5.3 DISPUTE RESOLUTION (CLAUSE 19) AND ESTABLISHMENT OF COMMISSION (CLAUSE 20) APPOINTMENT OF MEMBERS OF COMMISSION (CLAUSE 21), VACANCIES (CLAUSE 22), FUNCTIONS OF COMMISSION (CLAUSE 23) AND DECISION OF COMMISSION (CLAUSE 24)

The internal resolution mechanism provided must also include the envisaged district houses of traditional leaders.

We are opposed to the provision that if the House of Traditional Leaders is unable to resolve a dispute the Premier must be involved. We propose that the matter should be referred to the National House of Traditional Leaders for final determination.

It must be recorded that there is no unanimity on the establishment of the Commission. However, if the President appoints members of the Commission, he must do so on recommendation from the National House. Be that as it may, we would like to record our reservations because of the potential danger of political manipulation, lawlessness and anarchy if this issue is not properly handled.

We are opposed to the idea that the cut-off-date for claims and counter-claims should be 1927. We suggest that there should be no limit. There are legitimate claims that date back to 16^th Century when the Colonialist first inflicted damage to the institution of traditional leadership in this Country.

The Commission must first submit its findings and recommendations to the traditional council, district house, provincial house or national house concerned and to the relevant Government Department for implementation.

6. CHAPTER 7

6.1 TRANSITIONAL ARRANGEMENTS (CLAUSE 25)

The provisions of this clause are supported.

62. SHORT TITLE AND COMMENCEMENT (CLAUSE 26)

The provisions of this clause are supported.