We are honoured to be presented with the opportunity of commenting on this very important piece of legislation, which is going to once and for all clarify the role of traditional leaders in South Africa. AmaHlubi tribe has a proud history of existing during the pre-colonial era and resisting attempts by colonial and apartheid masters to undermine the legitimate institution of traditional leadership and land dispossession.

We would like to make the following comments on the Traditional Leadership and Governance Framework Bill: -

It should be noted that the change of traditional leadership in places like England came gradually, over centuries, as the rule of traditional leaders was circumscribed and then gradually reduced. This seems a good way to change such a deeply embedded institution, although even in England it came with a lot of struggle.

In terms of the effects of colonial powers on traditional leadership, the indigenous governance structures had to change as a result of their interference. There were wars and they were defeated, as they didn’t have much power to resist what happened. What is instructive about this is simply this: traditional structures DO change and adapt to new situations. They are not fixed, unchanging institutions that cannot change when they need to.

The experiences throughout the African continent are not very helpful. It tells us what happened without explaining why those decisions were taken, who took them and how widely they are/have been accepted. Without this insight, there is not much to draw from the African experience to inform important decisions. It is important to note though, that despite every effort by different African politicians who took over power in the post-colonial era they dismally failed to destroy the power and influence of traditional leaders and their governing structures.

The traditional authorities in South Africa were forced to contribute to colonial objectives. But they also continued to offer services to a group of people who had no access to basic governance functions – like land administration and justice. It may not have done this perfectly but nobody else was doing it either. Instead of trying to punish the traditional authorities for their role in history we should rather look at why do we still need this structure of governance? And if we don’t need it at all, who will replace its functions. It is important to take into account that there are millions of people in our country who respect and support this institution.

We fully support the government’s commitment in defining the framework for the recognition of the institution of traditional leadership in the new democracy. We also wish the important role that was played by some traditional communities and leaders in the struggle for the liberation of the country and in defense of our land, rights and dignity be recognized. It is also important that Government identifies its role in rebuilding traditional structures and authorities that were destroyed or severely weakened by colonial powers. Our King, Langalibalele, fought gallantly with the British imperialist in 1873 and he was one of the first people to be jailed in Robben Island. There are other traditional leaders who resisted the rule of the colonial masters.

It is ironical that in the Draft Bill there is no commitment on the issue of land administration. This includes the functions of demarcating land allocations, sometimes registering new households that have been allocated land, assisting residents to find land that they need, rezoning areas that require a new land use (grazing to residential), resolving disputes about who holds rights to land and where boundaries are.

Democracy means that the will of the people has to be respected. If majority of people in rural/traditional areas choose the traditional leaders as their custodian of land and representative in development forums, that should be respected. We do not believe that in a free and democratic society there should be imposition of one method of governance. Rather, we should be flexible to allow people to choose what they want.

The issue of aligning customary practice and the Constitution is the big issue. It doesn’t only apply to traditional leaders but to all institutions in the country. That makes us realize that alignment is not just a question of law. Unless the law takes seriously what is there in the first place and puts in place procedures to enable adaptation towards constitutional principles, the law will remain irrelevant.

People voted for a party in a democratic state. They did not vote for democracy as opposed to something else – like traditional leadership. This observation and conclusion are wrong. A choice in terms of structure of governance was never presented since the Constitution was never put to the vote. Traditional leadership is much more than a regulator of custom.

The actual functions given to traditional leaders are so minimal as to be virtually non-existent. For there to be any other interpretations of this chapter, one would need a detailed exposition of what customary authority entails. This doesn’t exist. Where an attempt is made to allocate functions, the functions are clearly not based on any sort of analysis of what actually happens in these communities. For instance, the functions performed by traditional authorities around land administration are reduced to settling land disputes, while suddenly on the other end traditional leaders are asked to advise government on agriculture, stockbreeding and help prevent cruelty to animals--- these are obviously not and never have been their functions. Where is a detailed explanation of what their role should be in land administration and tribal court jurisdiction?

Also, the focus of this draft bill is on traditional leaders. The leaders largely make judgments in tribal courts, and make very few decisions on their own – in fact, they represent and state the agreements that have been made by others (community, council etc). Where is an analysis of the institution of traditional governance rather than an attempt to regulate traditional leaders? Are we leaving izinduna in place? Amagosa? The tribal councilors? The white paper needs to deal with the institution of traditional governance in its entirety, rather than simply focus on traditional leaders.

The issue of the role of traditional leaders in party politics is tricky. The constitution gives each and every individual the right to freedom of association and to participate in party politics. It is our view that amaKhosi should be a father and unifying figure of their traditional communities as their active participation in party politics compromises this intended role. WE therefore support the recommendations in this direction.

We also fully support the idea of provincial governments providing capacity building and support to traditional authorities in order for them to be better equipped to carry out their tasks and functions. It is critical to note that in some parts of the country traditional leaders already have resources and infrastructure to carry out some of the local government functions.

In the whole world there is not a single government that is women dominated. The issue is unfair discrimination that results from procedures that discriminate arbitrarily and unfairly, not that there are few women traditional leaders. We also have never had a woman president in South Africa. It is therefore important to observe that gender discrimination is a national (international) challenge that all forms of governance should deal with. It is noted that in some parts of our country we are beginning to see women amaKhosi being appointed/elected. This is a sign that the institution of traditional leadership is willing to transform itself. As amaHlubi, we allow women to participate in traditional authorities, customary courts and general meetings.

We fully support the proposal that structures, which were created by apartheid and homeland legislation, should be disestablished. We agree that the structures established by customs should continue to exist and to exercise powers and functions conferred upon them in terms of customary indigenous law.

We support the proposal that custom and customary law should adapt and transform to comply with the principle of equality in the Bill of rights and the Constitution so as to allow qualifying men/women to succeed as traditional leaders in their own right.

We believe that traditional leaders should receive remuneration packages, pensions, medical aid and other benefits that civil servants enjoy.

We support the maintaining of the Houses of Traditional Leaders and propose that all issues (including legislation) that relate to traditional communities and institutions of traditional leadership should automatically be matters for consideration by the National and Provincial Houses of Traditional Leaders. We fully support the proposals put forward regarding the membership of the Houses.

We fully support the idea of setting up the national commission to deal with the legitimacy and/or illegitimacy of traditional leaders. The illegitimate traditional leaders have compromised the relevance and importance of the institution of traditional authority for so long.

We would like to believe that this commission will assist in determining the true traditional leaders of our people and also address one of the Hlubi's pressing problems of Langalibalele's indunas/headman who subsequent to his arrest by the British Colonial Authorities in 1873, were nominated by the British to be chiefs on his land. We are although concerned that this commission can only investigate disputes dating back to 1927, as it can be noted, a major part of issues affecting the Hlubi date as far back as 1873 and in some instances 1818. We would therefore like to recommend the commission be allowed to mediate on disputes going back at least to 1840.

Most importantly, Langalibalele, who was king of the Hlubi until his arrest and deposition in 1873, died under house arrest as a prisoner in 1889. As a result his successors were never returned to the throne. The consequence of this is that his successor, Nkosi MJ Radebe, Langalibalele II, is categorised by national and provincial government as a chief within the KwaZuluNatal province, making him and his people in Natal, subjects of another king. This is despite the fact that he has several chiefs all over South Africa who pay allegiance to him. We would like to submit that the Hlubi should be recognised as a collective, in the same way as the Xhosa, Tswana, Ndebele etc, and that Langalibalele II, should be accorded his rightful status as the King of the Hlubi. This is also in accordance with the definition provided in this bill.

The Hlubi who at some stage were said to be largest formation (tribe) in the Southern-East Africa, occupying a large part of what later became Natal, and are now found all over South Africa under close to 15 chiefs who pay allegiance to Langalibalele II. These Hlubis are found in areas like, Newcastle, Ladysmith, Estcourt, Ixopo, Hershell, Matatiele, Mt Fletcher, Qumbu, etc.

Siyabonga!