COSATU welcomes the opportunity to make a submission on the Traditional Leadership and Governance Framework Bill of 2003, hereafter referred to as ‘the Bill.’. This submission provides COSATU with, amongst other, the chance to assess the changes and progress made since the Draft White Paper on Traditional Leadership and Governance, in 2002.

When the Draft Bill The Traditional Leadership and Governance Framework Bill was gazetted on 27 June 2003 and published for comment by the Department of Provincial and Local Government (DPLG), it with the set the deadline set at 18 July 2003. In theory there appears to be on the surface it appeared that 3 weeks was available for comment to the DPLG. In reality the time to respond was much shorter, especially when the synchronisation of the printed Gazette was not synchronised with the release of the Bill on the Internet since those subscribing to printed versions of the Government Gazette only receive it one to three weeks after publication. was not the same.

As with many of the bills published this year and in the past, the fast tracking of legislation without prior opportunity for public comment has become increasingly untenable and is unacceptable. COSATU again would like to lodges its disapproval with this practice., in particular with this Bill. As a result, r Real community participation and the ability of the public to development of a position after thorough consultation, has is been seriously compromised. It has become an ongoing problem in the government system.

2. COSATU’s previous recommendations on the Draft White Paper on

The South African Constitution recognises the institution, status and role of traditional leadership. Our submission to the Draft White Paper in November 2002, 2002 was at pains to point out the challenge of unacceptability of accommodating any notion of a ‘dual sovereignty whether executive, judicially or legislatively’, in a democratic state, since the ‘supremacy of the democratic constitution’ negates any such arrangement in South Africa. We are still of the opinion that no Constitutional amendment is necessary to secure the functions and powers of traditional leaders. Proposals have been made in the hearings to exclude areas under traditional leadership from the municipal boundaries within which they are currently included. This is completely unacceptable to COSATU and we would oppose it.

National legislation began to take shape with the release of The Draft White Paper began to shape as regards the realisation of a role for traditional leadership as an institution for local matters affecting local traditional communities. It In this regard, outlined the role and functions of traditional leadership institutions in their advisory, supportive and promotional capacities, in relation to competencies borne by all three spheres of government and their responsibilities regarding custom and cultural affairs., were being developed in the Draft White Paper. COSATU endorsed the essence of the Draft White Paper, and also commended the position demanding that traditional leaders remain above party political influences or differences.

In our previous submission however, we were critical of:

• the failure to provide policy direction regarding structured engagement of traditional leadership institutions in policy development and implementation; and
• the lack of clarity absence of regarding mechanisms to ensure involvement of the Houses of Traditional Leadership in the various appropriate policy development processes and programmes, particularly in the promotion of socio-economic development, good governance and service delivery at a local level.

A major objection of COSATU was a clause in the draft White Paper [Chapter 3 (3.3.)], that effectively allowed for the delegation of government functions to traditional leadership institutions. We called for the deletion of the following clause in the White Paper:

We are heartened were pleased to see that this clause was in fact deleted. More importantly any mention of a function on an agency basis was deleted. Our main concern was that the delegation of functions on, ‘executive powers in terms of section 238 of the Constitution’, to traditional leaders, was clearly unconstitutional.

COSATU is pleased that the Bill, in comparison with the White Paper, T has been traditional Leadership and Governance Framework Bill 2003, was amended substantially to include deal with many our perceived the shortcomings thereof and several of our recommendations were seriously considered made in the Submission on the Draft White Paper. This Bill, as it currently stands includes, provisions for:

• the formal recognition of traditional communities;
• establishment and recognition of traditional councils;
• functions and roles of traditional leadership;
• conditions for recognition of, and criteria for removal from office of traditional leaders;
• provision for houses of traditional leaders;
• dispute resolution; and the establishment of the Commission on Traditional Leadership Disputes and Claims and related matters

COSATU supports the A significant development in this Bill, namely , has been the clarification of the relationship between provincial government and traditional councils.

It makes sense to formalise the relationship of traditional communities at a provincial level, since several cultures exercise their unique custom of traditional leadership in a geographic spread that is best suited for provincial co-operative governance.

It is hoped that the role of provinces, w are to have two roles with regard to traditional leadership institutions, will be strengthened so as to ensure good governance.

Firstly, the province’s. The first is one of role of support and oversight and regulating. Provincial governments may adopt legislative or other measures to support and strengthen the capacity of traditional councils. Traditional councils operate at the provincial level and are established by the traditional community within the province, in consultation with the Premier.

It also has the ability to regulate the ‘exercise of functions by a traditional council’ insofar as proper record keeping, auditing of financial statements, disclosure of receipt of gifts and ensuring the adherence to a prescribed code of conduct are important in fiscal accountability..

COSATU is concerned however that the current proposals assign too much discretion and power to the Premier. Instead we would prefer that these powers and functions be effected by the Premier, but in conjunction with the MEC for Local Government. Currently the Bill allows the Premier of a province, after consultation with the provincial house of traditional leaders and in accordance with provincial legislation to:

• formally recognise a traditional community and give notice of the traditional council’s defined area of jurisdiction;
• recognise the person identified by the royal family as king, queen, chief, chieftainess, headman or headwoman or regent (to assume leadership on behalf of a minor);
• issue a certificate of recognition to the successor in his/her position as a traditional leader; and
• revoke the certificate of recognition upon removal of a traditional leader

In practice, executing the above-mentioned powers and functions is a difficult task. According to the White Paper on Traditional Leadership and Governance, there are various important pieces of legislation assigned to the provincial Premiers. The various pieces of legislation are specific to geographic areas and therefore range for example, from six acts applicable to KwaZulu Natal to more than twenty five in Mpumalanga.

In light of the above, and the importance of national government in setting a national governance framework, COSATU would like to repeat its proposal that the national government must undertake an overall oversight role to ensure that such functions are properly and consistently carried out across the country. This is notwithstanding the competency of provinces to perform such functions.

Secondly, the Premier of a province may, after consultation with the provincial house of traditional leaders and in accordance with provincial legislation;

• recognise (a formal process, similar to accreditation) a traditional community and give notice of the traditional council’s defined area of jurisdiction;
• recognise the person identified by the royal family as king, queen, chief, chieftainess, headman or headwoman or regent (to assume leadership on behalf of a minor);
• issue a certificate of recognition to the successor in his/her position as a traditional leader; and

revoke the certificate of recognition upon removal of a traditional leader

Clearly the establishment of a district house of traditional leaders that requires the promulgation of provincial legislation, in conjunction with a district- or metropolitan municipality, is also required will be making new demands on the provincial legislature. COSATU would urge that this process be implemented in an enabling and empowering environment, where best practices of co-operative governance are emulated in areas where there has traditionally been conflict. for the establishment of a district house of traditional leaders. The establishment or amendment of roles and functions of traditional leadership also requires consultation with the Member if the Executive Council responsible for traditional affairs in the province concerned.

It makes sense to formalise the relationship of traditional communities at a provincial level, since several cultures exercise traditional leadership in a geographic spread that is best suited for provincial co-operative governance.

However, the current proposals accord a lot of discretion and power to the Premier. COSATU would prefer that this power rests with the Provincial Cabinet, where the Premier could have a casting vote instead.

COSATU would like to repeat its proposal that the national government must undertake an overall oversight role to ensure that such functions are properly and consistently carried out across the country. This is notwithstanding the competency of provinces to perform such functions.

Since 1994, Tthe Bill allows for the establishment of a ‘district house of traditional leaders… in a district municipality or metropolitan municipality where more than one principal traditional leadership exists in that municipality structuring o It f adds the third and final sphere to the representation of houses of traditional leaders, in addition to the included a National house, and Provincial Houses of traditional leaders in most provinces. (in most provinces).

The establishment of the

This Bill allows for the establishment of a ‘district house of traditional leaders… in a district municipality or metropolitan municipality where more than one chieftainship exists in that municipality’. The functions of the District House of Traditional Leaders appears, on the face of it, too costly and excessive and exercises a role that can largely be addressed by are similar to provincial Houses, and the fact that traditional leaders are already accorded representation on municipal councils through the Municipal Structures Act., It would appear that the establishment of a district house of traditional leaders is a compromise that has been made to address on-going concerns of traditional leaders. Although there is a limit of between 5 and 20 members to a district house of traditional leaders, we nevertheless retain serious reservations on this issue and would urge that other inclusions be considered to address these concerns, e.g. a forum of traditional leaders.

On the positive side, but within a current provisions are designed to advise on local government issues context, an important sphere that has finally come into being in 2000. Many issues, amongst other integrated development plans and land development objectives directly affects areas of traditional leadership. Communities residing in such areas would therefore benefit if a good working relationship exists between traditional leaders and democratically elected municipal councillors. .

The functions of the district house of traditional leaders’ role includes advising (emphasis added) the district municipality or metropolitan municipality on:

• matters pertaining to indigenous and customary law, custom, traditional leadership and the traditional communities; within the district municipality or metropolitan municipality;
• the development of planning frameworks that impact on traditional communities; and
• the development of by-laws that impact on traditional communities

These functions correctly limit the both the role of traditional leadership (royal family and regents), and the functions of traditional councils (provincial structures) within the realm of civil society. Therefore, their advisory, supporting, participating role, must be clearly outlined.

COSATU believes that more emphasis should have been placed on the Constitutional framework within which these engagements occur. Functions and powers of traditional leadership should be more clearly delineated, so that no vagueness in interpretation is possible.

 Within the current local government context, where there are increasing engagement of public-private partnerships and where is occurring and the private sector is entrenching its role as a key stakeholder in development at the municipal level, it becomes very easy for the blurring of the lines of responsibility to occur.

A very real scenario exists where, the awarding of the awarding of local government tenders and contracts could be unduly be influenced are made by by municipal councillors or traditional leaders. It is possible that some traditional leaders may be elected as municipal councillors, by temporarily abdicating their official positions as traditional leaders. It is also possible that they could serve in key positions on the council of a municipality or on that serve on the board of a municipal entity. The appointment required of companies to provide basic services to a municipality wherein a traditional community resides could be influenced directly or indirectly by a municipal councillor (ex-traditional leader). Clearly this is a problematic situation. can arise where there is a conflict of interest.

This is an another additional important reason why COSATU insists that national government has an overall oversight role to ensure that such functions are properly and consistently carried out across the country.

A detailed researched report published in February 2002, entitled ‘Opportunities and Obstacles to Women’s Land Access in South Africa’ revealed that women’s access to land is ‘inextricably tied to a web of traditional social values, attitudes and stereotypes in communities, [and] the traditional institutions that support and enforce these values…..’ Literature reviewed for research in this Report argues that the various aspects of this problem include:

• women’s lack of access to public process in their communities;
• their increased poverty burden;
• their coping mechanisms and efforts to sustain their household livelihoods;
• collective initiatives to access land;
• gender violence and other mechanisms through which men resist women’s attempts at independence; and
• the nature and capacity of the institutional structures found in traditional communities.

COSATU is therefore disappointed that this Bill has retracted many of the intentions outlined in the draft White Paper addressing the gender inequalities and succession system entrenched in the traditional leadership institutions. It is problematic that the term ‘gender’ issues are is almost completely absent from this Bill. It also weakens the State’s ability to progressively transform this institution.

Whilst access to authority continues to be highly regulated by the strictures of customary law, the recognition of the traditional leadership institutions by the Constitution is based on the explicit mandatory provision requiring their subjection to the core values of the Constitution. The objective of reforming the customary practices of patriarchy is based on section 9 of the Constitution in terms of which the right to equality is unqualified.

As per our previous submission, COSATU calls for the urgent pronouncement of a policy framework regarding the crucial issue of gender equality in relation to customary law. COSATU questioned the practicality of implementing a quota system for women representation in the traditional leadership institutions. Section 25(3) of the Bill provides that a tribal authority needs to comply with section 4(2) of the Bill requiring among other, a minimum of a third of the council consisting of women, within four years of the commencement of this Act. This provision reflects to what extent gender equality has been placed on the backburner.

We are of the opinion that traditional leadership should not be the exclusive domain of men, but that it should strive towards gender equality.

As per the previous submission, COSATU calls for the urgent pronouncement of a policy framework regarding the crucial issue of gender equality in relation to customary law. We are currently engaged in discussions with the Commission for Gender Equality (CGE) on this Bill. CGE is having workshops on this Bill to glean community input in preparation of their Submission.

The Preamble of the Bill includes calls for equality, non-sexism and highlights the government’s desire to transform the institution of traditional leadership, in line with Constitutional imperatives. Yet no specific call is made for gender equality. This remains a major omission in this Bill and COSATU continues to voice its objection, and calls for the reintroduction of gender equality with measurable outcomes within stipulated timeframes.

COSATU reiterates its concern regarding the silence in this Bill about the functions and powers of traditional leaders’ in administering communal land.

The absence of any mention of the Communal Land Rights Bill (CLRB), which affects traditional leaders’ power to allocate communal land, is problematic may be due to the lack of progress in expediting this legislation.

Here an important opportunity to ensure compliance was missed by avoiding not adequately synchronising the policy direction being considered in the two pieces of legislation emphasis of the centrality of this piece of legislation. Customary law empowers traditional leaders to administer and allocate communal land, which they hold in trust on behalf of their communities. This, it can be argued, violates the Constitution. Progress on the Communal Land Rights Bill, published in August 2002 has been particularly slow.

COSATU believes that the Bill should set out clearly the principles and framework to guide policy development and application regarding the allocation of communal land under the Communal Land Rights Bill (CLRB). This should be directed at ensuring compliance with Constitutional principles.

Section 5 of the Traditional Leadership and Governance Framework Bill lists the functions of traditional councils. The role of traditional councils in the administration of the CLRB is unnecessarily vague and can only be inferred from these functions.

It appears that this matter is deferred again, since 18(1) of the Bill states that national government ‘may, through legislative or other measures, provide a role for traditional leaders in respect of…..(b) land administration and agriculture’.

COSATU supports the establishment of a Commission on Traditional Leadership Disputes and Claims. It recommends that the composition of the Commission be a maximum of 15 persons to be appointed by the President to the Commission that should broadly reflect the geographic distribution of traditional communities in South Africa, in addition to being ‘knowledgeable of custom and traditional leadership.’

Given the nature of the Bill, COSATU would agree with previous recommendations at these hearings that the Bill be translated into all official languages for public comment and deliberation, especially amongst people residing in areas located within traditional leadership areas. In this regard, co-operation and assistance from the Provincial and National Houses of Traditional Leaders in conjunction with the Provinces and the NCOP would demonstrate their earlier assertions in these hearings that ‘traditional leaders represented the interests of the community.’

The further allocation of national revenue to Houses of Traditional Leadership (now at all tiers of government), lends weight to the argument that accountability should not only be limited to persons residing in areas of traditional rule, but that such institutions be a support structure to the State. Some would argue that the Houses of Traditional Leaders are an organ of the State. They should thus also be subject to similar procedures to ensure financial accountability.

In its hearings on the Municipal Systems Amendment Bill, COSATU notes the Committee’s concerns regarding the ‘urgent need to address the governance aspects of municipal entities in a comprehensive manner’. For reasons described below, the deliberations on this Bill should raise similar concerns.

There is the possibility that traditional leaders can unduly pursue a vested financial interest insofar as they are able to temporarily abdicate their role as a traditional leader and hold a municipal office for a term, or possibly serve on the board of a municipal entity. The scenario exists where the provision of a municipal service through a public-private partnership, of which a traditional leader is a shareholder, may arise. Clearly this situation would be problematic since there is a conflict of interests. COSATU suggests that the National Treasury, provincial Premier and municipality issue regulations to specifically prevent this scenario.

The drafting of this Bill reflects deliberations that go back as far as the drafting of the South African Interim Constitution in 1993. It is therefore very regrettable that civil society hardly only 3 weeks (theoretically) to draft a response to the Bill.

Many A number of COSATU’s concerns raised in its Submission on the Draft White Paper were addressed in this Bill, although new concerns and shortcomings have been raised.

• We are pleased that proposed delegation of government functions to traditional leadership institutions has been scrapped entirely.
• We are of the view that the Premier’s role is too central in the recognition and oversight of traditional leadership and councils. Instead we would prefer that these powers and functions be effected by the Premier, but in conjunction with the MEC for Local Government.
• COSATU recommends that the Provincial Cabinet serve this role instead, where the Premier could have a casting vote.
• COSATU repeats its proposal that the national government must undertake an overall oversight role to ensure that traditional leadership and governance functions are properly and consistently carried out across the country. Especially so within the climate of public-private partnerships and the increasing inclusion of the private sector in local government service delivery. This situation has exacerbated the blurring of the linesdelineation between the private and public domain.
• COSATU is As per our previous submission, COSATU calls for the urgent pronouncement of a policy framework regarding the crucial issue of gender equality in relation to customary law. Section 25(3) of the Bill provides that a tribal authority needs to comply with section 4(2) of the Bill requiring among other, a minimum of a third of the council consisting of women, within four years of the commencement of this Act. This provision reflects to what extent gender equality has been placed on the backburner. We are of the opinion that traditional leadership should not be the exclusive domain of men, but that it should strive towards gender equality. establishment of
• Finally, COSATU believes that the Bill should have clearly spelt out the principles, and policy guidelines regarding the allocation of communal land envisaged under the draft Communal Land Rights Bill (CLRB). The delay of this fundamental issue has serious repercussions on the well being of women. It has been shown through literature reviews that the control of communal land by men leads to women’s lack of access to public process in their communities; an increased poverty burden; and even gender violence.