26 - 09- 2003

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HEARINGS: COMMENTS ON TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL [B 58-2003]

 

 

 

 

 

CHAPTER

 

CLAUSE

COMMENT

 

MADE BY

General Comments

 

 

General

Genders issues

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Community participation

 

 

 

 

 

 

 

 

Guidelines & norms

 

Governance issues

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Role of traditional leader

 

 

 

 

Constitutional amendment

 

 

 

 

Support to traditional leaders and councillors

 

 

 

  • Should provide a plan or guidance on how to achieve the objective of women becoming traditional leaders. Defining titles of traditional leaders to include women e.g. Kings-Queens, headman-headwoman does not address that under customary law, with the exception of communities like Mojaji, women do not have leadership rights.
  • "An implied suggestion that women must be traditional leaders does not fully satisfy the equality provision of the Constitution...The Bill gives the power to the royal family to decide who should be a traditional leader when the position becomes vacant. Both the royal family and customary law have not appointed women traditional leaders in most parts of the country where traditional leaders families exist."
  • "The Final Draft of the White Paper accepted that women must be included in traditional leadership and to do so will not destroy those institutions. We would like to see these good intentions being reflected in the Draft Bill and not by use of Gendered titles only." (See clause 11(1) below).
  • "The Bill has avoided to deal with whether the death of a male traditional leader who has a wife creates a vacancy of the position of a traditional leader or not. It is not clear whether the queen and the king rule together because if they do, the death of one does not necessarily create a vacancy."
  • Community participation is important, in decisions pertaining to the establishment of traditional communities, for two reasons: Firstly, during the apartheid era many communities were removed from their original areas and placed on land which falls under the jurisdiction of different tribal authorities, thus they may not wish to be part of that community; secondly, "the process of demarcating and resolving administrative and jurisdictional boundary disputes is highly complex and resource intensive.
  • The Bill is silence on guidelines and uniform norms for the content of future provincial legislation on the establishment of traditional leadership structures.
  • Provide for clear linkages between the National House of Traditional Leaders, the Provincial Houses of Traditional Leaders and the to be established district houses of traditional leaders and traditional councils
  • Likewise the relationship between the traditional houses and councils and democratically elected institutions (Parliament, the provincial legislatures and municipalities, as well as their administration). This will ensure that the views and priorities on development and service delivery of these houses are taken into consideration
  • "Traditional leadership is a state institution and as an organ of state it should be governed by the basic values and principles provided for public administration."
  • This bill must ensure that traditional leaders do not channel resources provided by government towards their political colleagues.
  • "The role of a traditional leader...has always and must remain that of a facilitator and convenor of issues of tribal values. The arrangement is such that the councils of elders are the ones who make decisions which would be pronounced by the Chief. Chiefs in turn would report to the overall figure who is the King of that particular tribe."
  • "Those who are governed by amakhosi are not being protected in case they find themselves not in good terms with their leaders. Therefore, first amend the Constitution and the Bill should also illustrate the procedures to be taken when traditional leaders is found harassing his or her subject."
  • "The national and all provincial governments must provide education through workshops and courses to equip traditional leaders and councillors with knowledge of this Act and Constitution, Act 108 of 1996...It is of paramount importance to provide traditional leaders with skills of management and specifically made them aware that this Act supersedes any existing legislation which governed the institution of traditional authories".

 

 

 

 

CALS

 

 

 

 

 

CALS

 

 

 

 

 

 

CALS

 

 

 

 

CALS

 

 

 

 

 

LRC

 

 

 

 

 

 

 

 

 

LRC

 

 

MDB

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Thabang Motsoeneng

 

 

 

 

 

 

Sipho Dlamuka

 

 

 

 

 

NA Twaile

 

 

  

 

CHAPTER

 

CLAUSE

COMMENT

MADE BY

Long title and preamble

 

 

 

 

To provide for...

 

 

Whereas

 

 

 

 

Whereas

 

 

 

And whereas

 

  • Insert: '... the recognition of indigenous and traditional communities;...' - the word 'indigenous' must be included to read with the 'traditional' throughout the bill.
  • Insert: 'to restore the integrity... customary law and practices including all indigenous rights enshrined in the Indigenous and Tribal Peoples Convention, ILO 169 and the Decalartion of Rights of Indigenous Peoples as ratified by government of the RSA as a member state of the UN'.
  • Insert: 'An indigenous people who as a result of conquest or colonisation have adapted to a changing national South African situation, changing economy and to a changing environment and as a result fall into a special category of ethnic minorities.'
  • Insert: 'the State must ... dictates of democracy in South Africa and the provisions made in terms of the nature nad the fundamental principles of International Law ratified by the R.S.A. Government affecting the life and work of Indigenous minorities herein referred to as Conventions'.
  • Insert: 'the institution of traditional leaders must-

- promote respect for diversity by recognising the multi-ethnic and multi-cultural character of South Africa;

  • Must provide for 'powers' of traditional leaders and councils.
  • Must record the mischief that is desired to be addressed.
  • It is not acceptable that Government prescribes what the role of women should be in the process of succession.

 

 

NKC

 

 

NKC

 

 

 

 

NKC

 

 

 

NKC

 

 

 

 

 

 

 

CONTRALESA

Coalition/NHTL

OTLSA

 

 

   

 

CHAPTER 1

 

CLAUSE

 

COMMENT

 

MADE BY

 

1. Definitions

"Customary law"

 

 

 

 

"headman or headwoman" & "King or Queen"

 

 

 

 

 

 

 

 

 

 

"principal traditional leader"

"customary institution or structure"

"royal family"

'customary law'

 

 

'indigenous'

'indigenous council' or 'tribal house council'

 

'royal or national upper council of chiefs'

 

 

 

 

  • Define the term. "The Draft Bill suggested that customary law be defined to include evolving/emerging practices on the ground...Interpreting customary law to include practices would incorporate situations in existence in a number of communities who have women traditional leaders which seems to be the ideal of democracy".
  • Not necessary to use the term 'headwoman' as the term 'headman' denotes the office and not the gender of the person holding office.
  • The masculine language adopted contributes to the perpetuation of a male oriented society, in which omen are seen as having a lower status. Use "Queenship" and "headwomanship".
  • "sub-headman" must be recognised in ch 3 and defined here.
  • The varieties of headmanship must be set out;
  • The term 'headperson' should be used;
  • As reference is made to 'tribes' in clause 23 as opposed to 'traditional communities', the word 'tribe' must be defined.
  • Unclear whether this allows for different levels of principal traditional leaders.

 

  • Insert: 'means those institutions or constitutional accommodation structures...'; ??

 

  • '... close relatives of the reigning (ruling) family...'
  • Needs to be added and defined to include evolving/emerging practices on the ground, which thus recognises existing female traditional leaders;
  • means communities, nations and peoples as those defined in terms of the Cobo Study of the Problem of Discrimination Against Indigenous Populations (E/CN.4/Sub 2/1986/7) as prepared by Special Rapporteurs to the UN and as accepted by the Charter of the UN and the International Bill of Human Rights.
  • means a Tribal House Council serving the Khoi-Khoi or Saãn tribally named people or community and which is an entity recognised, registered and accredited by the National Upper Council of Chiefs.
  • means the highest authoritative body serving as the core institution consisting of ceremoniously appointed chiefs and chieftainesses by a paramount chief or council.

 

 

 

CALS

 

 

 

 

 

CONTRALESA

 

CGE

 

 

CONTRALESA; Coalition/NHTL; HRC

Coalition/NHTL

NKC

CONTRALESA

 

HRC

 

 

NKC

 

 

MDB

CALS

 

 

NKC

 

 

 

 

 

NKC

 

 

NKC

 

 

 

 

CHAPTER 2

 

CLAUSE

COMMENT

MADE BY

Traditional Communities & Traditional Councils

2. Recognition of traditional communities

2(1)

 

 

 

 

 

 

 

 

 

 

2(1)(b)

 

 

 

 

 

 

 

 

 

 

 

2(1)(d)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2(2)

 

 

 

 

 

 

2(3)

 

 

 

 

 

 

  • Address the issue of who is a member of a traditional community, especially in the context of the international right/notion of self-identification and its implications in South Africa.
  • Some traditional authority areas are defined in such a manner that it is difficult, and some instances impossible, to ascertain the exact boundaries of the traditional authority.
  • Insert: 'Recognition of traditional indigenous communities, nations and peoples and traditional indigenous communities', nations' and peoples' councils';
  • Insert: 'Recognition of traditional indigenous communities, nations and peoples'
  • Insert: 'observes a system of customary law, indigenous and cultural heritage according to their right to Self-Determination (s235 of the Constitution);
  • Insert subsection 2(1)(c) to read: 'has identified itself as in terms of the General Policy, Part (1), Article (1), Section (2) of the Indigenous and Tribal Peoples Convention: ILO 169, which states 'Self-identification as indigenous or fundamental criterion for determining the groups to which the provisions of the Convention apply';
  • Insert subsection 2(1)(d) to read: 'observes a system of customary law and embraces the prescriptions of the Constitution and all other International customary law and conventions, declarations and draft declaration pertaining to the enforcement of Indigenous Peoples Right';
  • Recognition must be done in consultation with the relevant traditional council or house of traditional leaders;
  • '... consult with community or communties concerned' [in the case of annexed communities];
  • 'consult' is too vague, decision rule (e.g. majority vote) within community should be provided;
  • Reviewed to read: '...after full and proper consultation...' or possibly '... after reasonably adequate consultation...';
  • The right of individuals not to be bound by traditional or customary dictates and structures, must be recognised;
  • Traditional leaders must recognise individuals who joined their communities through marriage or affiliation;
  • Insert the words "full and proper" before the word "consultation". "A less stringent alternative might be the words "reasonably adequate consultation" as provided in the consultation process for land tenure rights in [clause] 7(3)(b) of the Communal Land Rights Bill.
  • Provide objective guidelines or standards for assessing public participation in the consultation process.
  • 2(3) must be deleted, no community may be forced to change by law;
  • Customary law is presently very discriminating against women. The required transformation of customary law must be given a much stronger expression and the rights of - and the equality of - women, in all instances, must more thoroughly permeate the entire bill;

 

 

 

 

 

HRC

 

 

Municipal Demarcation Board

 

 

NKC

 

 

NKC

 

NKC

 

NKC

 

 

 

 

 

NKC

 

 

 

 

CONTRALESA; Coalition/NHTL

Madikwe communities

NLC

LRC

 

LRC

 

N.A. Tswaile

 

 

LRC

 

 

 

 

LRC

 

CONTRALESA

LPM, CALS

 

 

 

 

 

 

 

 

 

 

 

 

3 Establishment and recognition of traditional councils

3(1)

 

 

 

 

 

 

 

 

3(2)

 

 

 

 

 

 

3(2)(a)

 

 

 

3(2)(b)(i)

 

3(2)(b)(ii)

3(2)(iii)

 

 

3(3)

 

3(4) [new sub-clause]

 

 

 

 

 

 

 

  • Include "norms or standards relating to the establishment of traditional councils in the national framework legislation".
  • "Should read 'The members of a traditional council, of whom a third must be women, must comprise leaders in the area and community members who are democratically elected or who qualify to be in the council because of the developmental skills they possess'"
  • A third is inadequate for purposes of making the participation of women in councils meaningful. "We hope that the minimum participation requirement will be bolstered in practice by allowing first born girls to become rightful traditional leaders".
  • "Traditional leaders should not be confined to a third."
  • Change to 50% women's representation
  • Change to; "...the needs of traditional community concerned and in accordance with the values of non-sexisms and gender equality."
  • 25% is too low, and should, in the spirit and principles of participatory democracy, be at least 51%.
  • Selection according to custom risks abuse of customary principles.
  • Change 25% to 50%.
  • Insert subclause to read: "other members of the community who qualify to be in the council because of the developmental skills they possess."
  • Make it clear who "defines" the area of traditional community.
  • Insert a subclause to read: "should such a council be established, the Premier must accept, recognise and acknowledge only who in terms of the criteria set by national upper council or royal house and who have been through the SQR process of the national body as set by the DPLG."

 

 

 

 

 

 

 

 

LRC

 

CALS

 

 

 

 

 

CALS

 

 

 

Prince T. Diko

CGE

CGE

 

 

CGE

 

HRC, Madikwe communities

 

HRC

CALS

 

 

MDB

 

NKC

 

 

4. Functions of traditional councils

 

 

4(1)(b)

 

 

4(1)(c)

 

 

 

 

 

4(1)(d) & (h)

 

 

4(1)(f)

 

 

4(1)(h)

 

 

 

 

4(1)(l) [new clause]

 

 

4(1)(m) [new clause]

 

 

4(2)

  • 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 leaders.
  • "Traditional leaders should not only play a supportive role. But a leading role in the development of their traditional communities..."
  • Change as follows: "recommending, in consultation with the relevant district and provincial house of traditional leaders, appropriate interventions to government that will contribute to development and service delivery within the area jurisdiction of the traditional council
  • "...emphasise the interaction and self-mobilisation participation for it is through these that the best interests of the rural people will be served."
  • Reviewed to read: '... in accordance with custom and tradition as adapted in accordance to principles contained in the Bill of Rights;'
  • Remove. Traditional councils do not have legislative powers.
  • Should be removed as the participation of traditional councils in legislative processes is the same as any other civil society participation;
  • Insert subclause 4(1)(l) to read: "promote and perform the recommendations made by the UNHR in its various documents, towards the indigenous communities, people and nations upliftment and participation in the issues affecting their Indigenous Right.;";
  • Insert subclause 4(1)(m) to read: 'exercise and perform a networking role and function among themselves as traditional councils to share information which will enhance their functions outlined in this bill (a)-(l);'
  • "...establish uniformity on the election of members of the councils, fair participation in decision-making, legislative entrenchment of gender equity and democratic process." ...[The]" failure of the Bill to delineate clear norms, standards and policies for traditional councils raises serious questions as t whether it will be able to successfully rely on the provisions of s146(2)(b) of the Constitutions to ward off legal challenges.
  • Replace "may" with "must" to oblige provincial legislation to regulate the performance of the traditional councils.
  • Introduce a penalty of non-compliance by the traditional councils.

 

 

CONTRALESA, Coalition/NHTL

CONTRALESA, Coalition/NHTL, OTLSA

 

Prince T. Diko

 

 

MDB

 

 

 

 

 

Prince T. Diko

 

 

LRC, CALS, LPM, SANCO

 

 

CGE

 

CGE

 

NKC

 

 

 

NKC

 

 

 

LRC;CGE

 

 

 

 

 

 

 

CGE

 

CGE

 

 

5 Partnerships with municipalities

 

 

5(1)

 

 

 

 

 

 

 

5(2)(b)

 

 

 

 

 

5(3)

  • Recommend that the entry into service delivery partnerships be made subject to the provisions of the Systems Act.
  • The terms of partnership turn to be ignored. Strengthen partnership through legislative an d other measure"
  • Change to "The National Government, and all provincial governments and municipal councils, having traditional councils within their provinces and municipal areas, must promote partnerships between municipalities and traditional councils through legislative and other measures".
  • Partnerships should be regulated simultaneously with the enactment of this bill to avoid power struggle;
  • Delete. The principle of cooperative governance applies to the three spheres of government. The extension of these principles to be applicable to traditional councils suggests that they are assuming the characteristics of a sphere of government. This raises questions whether it is desirable or even constitutional.
  • It will be difficult for rural communities to hold traditional leaders and unelected traditional councils accountable for service delivery.
  • Clarify "on the manner in which such service delivery agreements will be concluded, the payment of revenues or fees to traditional councils, or the use to which such fees or revenues will be put."
  • Delete. This is already covered in clause 4(1)(b) and clause 4(1)(c). "Should this clause remain, it could be interpreted, and lead to the expectation, that traditional council be given preference with regard to service delivery tenders. This could also lead to traditional councils doubling up as surrogate local government with regard to service delivery."
  • Service delivery agreements should be made subject to fulfilment of clause 4(2) [or 3(2)??] of traditional council.
  • Should be deleted: service delivery should be left with municipal councils, and the functions of the traditional council limited to a supportive one.

 

 

SALGA, SANCO

 

 

 

 

MDB

 

 

 

 

Mahumani Tribe

 

SALGA

 

 

 

 

 

LRC

 

LRC

 

 

CGE

 

 

 

 

 

Sekhukhune, (LRC)

 

NLC, LRC, CGE

 

 

6. Support to traditional councils

  • Amended to read that national and provincial government must provide support.
  • What about support for district houses? Also provide for funding, infrastructure and staff to ensure that the traditional councils and district houses function optimally and expenditure is not fruitless.
  • Change to "The National Government and a provincial government having traditional communities within its province, may adopt such legislative or other measures, including the provision of financial and human resources, and infrastructure as may be necessary to support and strengthen the capacity of traditional councils and the Houses referred to in Chapter 4 (within the province) to fulfil their functions."

 

 

CONTRALESA, Coalition/NHTL, NKC

MDB

 

 

MDB

 

 

 

 

 

 

 

 

 

 

7. Withdrawal of recognition of traditional communities

 

 

 

7(2)(a)

 

 

 

 

 

7(4)

 

 

  • This clause is highly controversial. While the traditional status of communities can be withdrawn, the indigenous identification cannot cease, be withdrawn or relinquish. Likewise it is questionable whether the merger or division of communities by the Premier is compatible with any legal instruments dealing with the rights of indigenous, traditional or tribal peoples.
  • A community or a member of the community should also be afforded the opportunity to request the withdrawal of the recognition as a traditional community.
  • Change to read: "the community or a member of the community concerned..."
  • In consultation with relevant traditional council or house.

 

 

NKC

 

 

 

 

 

 

CGE

 

 

CGE

 

CONTRALESA, Coalition/NHTL

 

  

 

 

CHAPTER 3

 

CLAUSE

COMMENT

MADE BY

Leadership Positions within Institutions of Traditional Leadership

 

 

 

8. Recognition of traditional leadership position

8

 

 

 

 

 

 

 

  • Provision must be made for the recognition of sub-headmanship where this applies.
  • Provision should be made for the surviving spouse (king or queen; husband or wife of principal traditional leader) to be installed as traditional leader if position is vacated due to death (or the equivalent in case of dethronement) - as an active measure to incorporate women.

 

 

 

 

 

 

 

CONTRALESA, Coalition/NHTL

CALS

 

 

 

 

 

 

 

 

9. Recognition of kings and queens

9(1)(a)

 

 

 

 

 

 

 

 

 

 

 

 

 

9(1)(a)(i)

 

9(1)(c) [new clause]

 

  • Recognition of kings and queens need to go hand in hand with the provisions pertaining to their areas of jurisdiction and their powers and functions.

 

  • "...with due regard to applicable customary law as adapted according to principles contained in the Bill of Rights
  • Notion of kingship could pose problems for communities paying allegiance to kings/queens in neighbouring countries.
  • Insert "or clan or tribe"
  • The name of the candidate identified must be advertised to the concerned community/traditional council or house prior to recognition, to seek the endorsement of the new king or queen by the community.
  • The Premier should refer the name of the candidate to the Commission for investigation and verification;
  • The National House of T.L. must be informed for its records.
  • This clause should be subject to the Bill of Rights and international human rights norms and standards.
  • Insert to recognise the fact that not all kings and queens are recognised in South Africa at the moment: "Where the position of a king or queen was not filled in the past, due to non-recognition of such a position by the past government, the royal family or extended royal family and the traditional council must, with due regard to applicable customary law -

(i) identify a candidate in terms of customary law to assume the position of king or queen, as the case may be; and

(ii) through customary channels (as in 9(a))".

MDB

 

 

 

C ALS, SANCO, CGE

HRC

 

Coalition/NHTL

N.A. Tswaile; CONTRALESA; Coalition/NHTL

 

N.A. Tswaile

CONTRALESA

 

HRC

 

XHF

 

10. Recognition of other traditional leaders

10(1)(a)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

10(a) & (b)

 

 

  • Should the President not be involved in the appointment of a regent as in the case of a king or queen in clause 9?

 

 

 

  • "...with due regard to applicable customary law as adapted according to principles contained in the Bill of Rights"'
  • This order is completely foreign to the Zulu Nation, will encourage conflict in communities and the (entire legislative) matter should be left to provinces;
  • The traditional council or community must, in line with custom, give its endorsement prior to recognition of new principal traditional leader or headman;
  • District house must give its endorsement;
  • Should the royal family be directly involved in the identification of headman/woman as suggested here?
  • Insert: "the royal family or the upper royal executive council concerned must...".
  • All the so-called independent headmen should be recognised, automatically or through a process, as principal traditional leaders, and the process of recognition of wrongfully removed traditional leaders should be provided for in this bill.
  • These paragraphs do not seem to make provision for traditional councils in the filling of the position of a headman or a headwoman at least. "Is this role or consultation assumed under customary law or is it envisaged in terms of the functions of traditional councils in section 4 of the Bill?

HRC

 

 

 

 

CALS, SANCO, CGE

KZN House of Traditional Leaders

CONTRALESA, Coalition/NHTL, HRC

CONTRALESA; Coalition/NHTL

HRC

NKC

XHF

 

 

 

 

HRC

 

 

 

11. Recognition of regent

 

 

 

 

 

11(1)

 

 

 

 

 

11(1)(a)

 

  • Restricted to a period of no more than five years, which term may be periodically reviewed and extended should the royal family so decide;
  • In case of regent for king or queen, should not the President be informed?
  • Provide for "instances where a regent does not want to step down form the position when the successor to the position ceases to be a minor."
  • 11(1) may only be applicable in respect of principal traditional leader, only in the absence of a female heir apparent; [I don't understand]
  • "...allow wives of kings to take over the throne not as regents but as rightful leaders who can abdicate the throne once a child eligible to take over is of age".
  • If applicable customary law includes the rule of primogeniture which regulates succession into traditional leaders' positions, women will never become traditional leaders...there are royal families without male children which makes the rules of primogeniture as relied up not a reliable source".

CONTRALESA, Coalition/NHTL

HRC

Prince T. Diko

 

 

CGE

 

CALS

 

 

CALS

 

12. Person acting as traditional leader

  • Restricted to a period of no more than five years, which term may be periodically reviewed and extended should the royal family so decide.

CONTRALESA, Coalition/NHTL

 

13. Deputy traditional leader

13(1)

 

 

 

13(1)(f) [new sub-clause]

  • Traditional leaders should be apolitical.

 

 

  • Should a king or queen really occupy any of these positions (except member of Houses of T.L.)?
  • Restricted to a period of no more than five years, which term may be periodically reviewed;
  • Insert : "becomes a full-time member of an indigenous inter-governmental body of the indigenous minorities inside the RSA including those of the African Union recognised by their respective Governments as legitimate and who have a co-operative relationship with their souvereign governments who are recognised by the African Union of States or in the Permanent Forum of Indigenous isuues or any other United Nations Systems body falling under the authority of the Secretary General of the UN".

N.A. Tswaile

 

 

HRC

CONTRALESA

 

NKC

 

14. Removal of traditional leader

 

 

14(1)

 

 

 

 

 

 

 

 

 

14(1)(a)

 

 

 

 

 

14(1)(b)

 

 

 

 

14(1)(e) [new sub-clause]

 

 

 

14(3)

  • Should the President who recognizes the appointment of kings and queens in terms of clause 9 of the Bill also not be involved in their removal?
  • Make it clear who may remove a traditional leader from office - the royal family or the Premier? It may be advisable to allow both.
  • This raise questions about customary rules of succession and the extent to which these contravene constitutional provisions. "...customary rules of succession are being reviewed by the South African Law Commission for their unconstitutionality...".
  • "Non-delivery of services, as may be determined or agreed upon between the municipalities and traditional leaders, must result in the removal of the traditional leader like it happens to political leaders, civil servants or other service providers."
  • In case of conviction of an offence with a sentence for imprisonment for more than one month, the commission must establish whether he/she is fit to continue as traditional leader;
  • Upon the completion of the term of imprisonment and on evidence of rehabilitation, the traditional leader should be considered for re-instatement.
  • "...or mental infirmity confirmed by medical evidence..."
  • Channelling of resources on basis of political affiliation should be ground for removal.
  • Must be made clear who may remove a traditional leader from office - the royal family or the Premier or both?
  • Provide for the removal of a person in a position of an acting without the permission of the royal family and the removal of a traditional leader who occupy that position through violence.
  • Provide for the removal of a traditional leader who fails to have financial statements Audited.
  • Before the withdrawal of certificate, the affected person must be given opportunity to respond to allegation.
  • In case of removal of king or queen, the president should be informed, as he/she is involved in their appointment.

HRC

 

MDB

 

 

CALS

 

 

 

Toyitoyi Dimbaza

 

 

 

 

N.A. Tswaile

 

 

CONTRALESA, Coalition/NHTL

CGE

N.A. Tswaile

MDB

 

SA Mamadi

 

 

SA Mamadi

 

MBD

Mahumani Tribe

 

 

  

 CHAPTER 4

 CLAUSE

COMMENT

MADE BY

Houses of Traditional Leaders

 

15. Houses of traditional leaders in the republic

  • Title should be amended to read "traditional-indigenous leaders".
  • "The Bill does not clearly specify the Legislative Power of the National Council [of traditional leaders] and the Provincial Houses? What are their Legislative Powers?"
  • "What will be the composition of the National Councils and Provincial Councils? When will their term expire? Will it be a permanent position to be in any of those Houses? Are we going to see permanent member of any of those houses? If yes, which rules are they going use for selecting those permanent members? What will be the internal proceedings arrangement of any of these houses? What will be the access and involvement of the Public on the Houses (Provincial and National)? How will the Chair...of any of the Houses be selected?"
  • A sub-clause providing for the powers and functions of the national and provincial houses of traditional leaders should be added, and the constitution amended accordingly;
  • The relationship between houses on different levels and traditional councils requires clarification, as well as the functions of district houses vis-à-vis the traditional councils.
  • Provisions should be inserted to ensure that the capacity of all traditional structures are built and maintained.
  • Members should be full-time and receive same benefits as MPs and MPLs.
  • 30 % of members in all houses should be women.
  • Kings and queens must become the ex-officio members of either national or provincial houses of traditional leaders.
  • Provincial governments must co-operate with the provincial houses of traditional leaders established within a province.
  • It is "not clear how the Bill establishes the district houses yet the Premier of the Province will only consult with the provincial house and the community envisaged in subsection 3(1)

NKC

Takalani Radabi

 

Takalani Radabi

 

 

 

 

 

 

 

 

CONTRALESA

 

MBD

 

 

Coalition/NHTL, MDB, NKC

Coalition/NHTL

SANCO

XHF

NKC

 

Prince T. Diko

 

16 District houses

 

 

 

 

 

 

 

 

 

 

 

 

16(2)

 

 

 

16(2)(a)

 

 

 

 

 

 

16(2)(b)

 

 

 

 

 

 

 

 

 

16(3)

 

 

 16(4)

  • Make provisions for national or provincial funding for district houses. Municipalities should not be burdened in this regard.
  • Clarify the relationship between these houses and the traditional councils, the provincial houses and the national house.
  • There is "already an Act in place for an establishment of the houses. The Act must be amended to provide for this establishment".
  • "In other parts of the rural communities there are already structures such as the region of traditional leaders. This Bill does not make mention of these structures, yet they have been operational for a period of time."
  • No provision for gender representation is made.
  • Powers and functions exercised by regional authorities must be transferred to the district houses.
  • Reviewed to accommodate the reality of the Khoi-San people, that district municipalities in historically Khoi-Khoi territories not seldomly have less than five chiefs.
  • Must be deleted and substituted with a clause providing that all heads of traditional leaders must be members of the district house;
  • "What criteria is going to be used where there are more than then chiefs in the district and the communities each represent...? Is the limitation in the number of the council members based on the remuneration?"
  • Include provisions for gender representation in the composition of district house of traditional leaders. This is a departure from clause 3(2) of the Bill.
  • This does not augur well with modern notion of democracy and is inconsistent with the selection of members of a traditional council in clause 3(2)(b)(ii) of the Bill.
  • Reviewed to read: "Members of a district house of traditional leaders, of whom at least a third must be women, are...".
  • Electoral college goes against principles of modern democracy, and is inconsistent with the selection of members for traditional council;
  • Insert: "...within the district municipality or metropolitan municipality in question."
  • The district house must have the right to participate in the deliberations of the council and the right to initiate bylaws for the district.
  • (i) Should be deleted in its entirety as customary matters is only the functional areas of concurrent National and Provincial legislative competence.
  • Advisory role rejected.
  • Difficult to understand the point here (?)
  • Ensure that the composition of a district house of traditional leaders is more representative in terms of gender and elected representatives of the traditional communities.

 

SALGA; MDB

 

MDB

 

Prince T. Diko

 

Prince T. Diko

 

 

 

HRC, CALS

CONTRALESA, Coalition/NHTL

NKC

 

CONTRALESA; Coalition/NHTL

 

CALS

 

 

HRC

 

 

HRC

 

SANCO

 

HRC

 

MDB

CONTRALESA

 

Mahumani Tribe

 

Coalition/NHTL

HRC

 

  

 

CHAPTER 5

 

CLAUSE

COMMENT

MADE BY

Roles and Functions of Traditional Leadership

 

17. Functions of traditional leaders and code of conduct

 

17(1)

 

 

 

 

 

 

 

  • Sub-heading must be changed to include powers.
  • The area of jurisdiction, powers and functions of a king/queen must be clarified.
  • Reviewed to read: "...in terms of customary law and practices of the traditional community concerned as adapted according to principles contained in the Bill of Rights in the Constitution, and in applicable legislation".
  • Change to: "A traditional leader performs the functions provided for in terms of customary law, including the constitutional principle of equality, and practices of the traditional community concerned...".
  • It should be expressed more clearly that South African law supersedes any traditional norm, and that such law should be consulted before customary law is applied.
  • Should include the power to govern and administer affairs of traditional institutions.
  • Should include provisions for a named instance to which members of a traditional community could turn to lodge complaint against a traditional leader or council, or for settlement of disputes concerning interpretation of custom and its consistency with provisions made in the Bill of Rights in the Constitution.
  • Traditional leaders should be compelled to work with women, who otherwise becomes victim of customary law.

 

CONTRALESA

MDB

CALS; LPM; SANCO

 

 

 

CGE

 

 

SANCO

 

Coalition/NHTL

Madikwe communities, HRC, Sipho Dlamuka

 

 

 

Madikwe communities

 

18. Allocation of roles

 

 

 

 

 

 

 

 

 

18(1)

 

 

 

 

 

 

 

 

18(1)(b)

 

 

 

 

 

 

 

18(1)(d)

 

 

 

 

18(1)(k) [new sub-clause]

 

18(1)(l) [new sub-clause]

 

18(2) (Allocation of roles)

 

 

 

 

 

 

 

 

 

 

18(2)(a)

 

 

 

 

 

18(2)(b)(ii)

 

 

18(2)(c)

 

18(2)(e)

 

 

  • Requires compulsory consultation with organised local government nationally or within the province.
  • Must be changed to include powers.
  • Reviewed to read: '...or a provincial government or a municipality, ... may... provide a role for traditional councils, district houses of traditional leaders or traditional leaders [including the king?] in respect of -'
  • Reworded to clearly indicate that the role will be restricted to an advisory role only, and that an implementation role is not included.
  • Must recognise that land administration and ownership resides with traditional leaders.
  • "This list does not seem to have taken into account whether traditional leaders satisfactorily discharged their responsibilities, especially in the light of lack of improvements in these areas...". Change to: "National Government or a provincial government or a municipality, as the case may be, may, through legislative or other measures, provide a role for traditional councils, district houses of traditional leaders or traditional leaders (including the king?) in respect of..."
  • Land administration is often abused by traditional leaders and should not reside with them.
  • Land administration should be completely left out of this bill.
  • By giving legislative recognition to a role for traditional councils in land administration, the Bill runs the danger of re-inforcing the continued disempowerment of rural women in their struggle for equitable land rights.
  • Administration of justice by traditional leaders is questionable, unless thorough training is provided to avoid discrimination against women. What their participation should be in the administration of justice is not set out anywhere.
  • Insert: "indigenous rights and indigenous issues pertaining to the various international documents making reference to women, youth's and children's development and protection of rights".
  • Insert: "participating and representing the indigenous traditional communities in and at all forums on a consultative basis internationally, nationally, provincially and locally mandated representatives".
  • Reviewed to read: '... or a provincial government, other than the Minister or Member of the Executive Council responsible for traditional affairs, or a municipality considers allocating a role for traditional councils or district houses of traditional leaders or traditional leaders in terms of subsection (1), that national or provincial organ of state or municipality must -
  • Insert additional sub-clause: "must give consideration to the extent of a traditional council's compliance with the criteria in s 3(2) before allocating a role or function for traditional councils or traditional leaders in terms of s 18(1)".
  • Should be deleted: consultation with traditional. leadership enough;
  • Provide for similar consultation with organised local government.
  • An additional sub-clause 18(3) should be added obliging government to construct offices for traditional councils.
  • Change to read: "the Members of the Executive Council responsible for traditional affairs in the province concerned if it is an organ of state of that province or a municipality".
  • Change to read: "ensure that the allocation and implementation of a role or function is consistent with...".
  • Delete "Strive to".

SALGA

CONTRALESA

MDB

 

 

CGE

 

Coalition/NHTL; OTLSA; Mr T.V. Motsoeneng

CALS

 

 

 

 

 

 

 

 

Sekhukhune,

NLC

LRC

 

 

 

CALS

 

 

 

 

NKC

 

 

 

NKC

 

 

 

MDB

 

 

 

 

 

 

LRC, Sekhukhune

 

 

 

 

CONTRALESA

LRC

CONTRALESA

 

 

MDB

 

LRC

 

MDB

  

 

 

CHAPTER 6

 

CLAUSE

COMMENT

MADE BY

Dispute Resolution & Commission on Traditional Leadership Disputes and Claims

 

19. Dispute resolution

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

19(1)(a)

 

 

 

19(2)(b)

 

 

 

  • The role of the Commission should be considered in relation to the roles and responsibilities of other traditional structures and available resources and affordability.
  • District houses must consider disputes before matter is referred to a provincial house;
  • If a provincial house of traditional leaders is unable to resolve dispute, the dispute should be referred to national house of traditional leaders, before being referred to Premier as last instance;
  • National house of traditional leaders should make final determination of disputes;
  • Unclear what the Premier should do if he/she cannot resolve dispute;
  • It should be made clear that the dispute resolution envisaged here only pertains to customary law disputes arising from the implementation of this act, and that any claims of a legal nature made by women - relating to customary law or not - can be dealt with through the normal court system, and should not be made subject to this procedure.
  • It is unclear how a Premier will deal with a dispute referred to him or her by a provincial house of traditional leaders. "What about disputes pertaining to kings and queens, should these be referred to the Premier or the Premier and the President?"
  • The role of the Premier should be considered in relation to the possible role that the National House may be able to play to resolve disputes.

 

MDB

 

CONTRALESA;, Coalition/NHTL

MDB

 

 

Coalition/NHTL

HRC

CGE

 

 

 

 

 

 

HRC

 

 

 

MDB

 

 

 

21. Appointment of members of commission

  • President must appoint members on the recommendation of the national house of traditional leaders;
  • Commission should consist of traditional leaders;
  • Traditional leaders should have no say over this matter. It is a function of the President;

Coalition/NHTL

OTLSA

NKC

 

23. Functions of Commission

23(2)(a)(iv)

23(2)(a)(v)

 

 

23(4)

23(5) [new sub-clause]

 

  • Must be changed to include powers.

 

 

  • Use of term 'tribe' should be avoided as it is derogatory;
  • Difference between 'tribe' and 'traditional community'?
  • Investigations of disputes concerning determination of traditional authority boundaries should be done by the authority responsible for determination of such boundaries, or at least in consultation with such authority.
  • There should be no cut-off-date for claims.
  • Make provision for "any traditional leader convicted by a competent court should be referred to the traditional commission to establish whether he or she is still a fit and proper person to be a traditional leader."

CONTRALESA

 

 

CALS

MDB

MDB

 

 

Coalition/NHTL

NA Tswaile

  

 

 

CHAPTER 7

 

CLAUSE

COMMENT

MADE BY

General provisions

 

25. Transitional arrangements

 

25(3)

 

 

 

 

 

 

 

25(5)(a)

  • This should also be applied to the traditional indigenous leaders of the Khoi-San people;
  • Traditional authorities should be retained as statutory bodies.
  • One year proposed instead of four years;
  • What are the consequences of non-compliance with clause 3(2) upon expiry of 4 years?
  • Tribal councils must be subjected to the demands of democracy as soon as bill is enacted;
  • Tribal authorities as traditional councils should only be recognised subject to decision by Commission on matters referred to in clause 23(1)(iv) and (v);
  • The Premier and not the MEC should disestablish the structures referred to in the paragraph, in accordance with the more general wish that the affairs of the traditional leaders be administrated in the highest office.

NKC

KZN House of Traditional LeadersHRC, LRC

LRC

HRC; LRC

LRC

NLC

Madikwe communities

 

 

CONTRALESA