2003-10-06

TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL

[B58 -2003]

PROPOSED AMENDMENTS

PREAMBLE

1. On page 2, in the thirteenth line, to omit "community" and to substitute "authority".

2. On page 2, after the sixteenth line, to insert:

ARRANGEMENT OF SECTIONS

1. On page 3, from line 14, to omit the reference to Chapter 3 and its content, and to substitute:

CHAPTER 3

LEADERSHIP POSITIONS WITHIN INSTITUTION OF TRADITIONAL LEADERSHIP

Part 1: Introduction

8. Recognition of traditional leadership positions

Part 2: Kings and queens

9. Recognition of kings and queens

10. Removal of kings or queens

Part 3: Principal traditional leaders, headmen and headwomen

10. 11. Recognition of other principal traditional leaders, headmen or headwoman

14. 12. Removal of principal traditional leaders, headmen or headwoman

Part 4: General provisions regarding traditional leaders

11. 13. Recognition of regent

12. 14. Person acting as traditional leader

13. 15. Deputy traditional leaders

2. On page 3, in line 29, to omit "District" and to substitute "Local".

3. On page 3, in line 33, to omit the reference to section 18 and to substitute:

18. Guiding principles for allocation of roles and functions

CLAUSE 1

1. On page 4, from line 46, to omit the definition of "royal family" and to substitute:

‘‘royal family’’ means the core customary institution or structure consisting of close relatives of the ruling family within a traditional community, who have been identified in terms of custom, and includes, where applicable, the extended royal family;

2. On page 4, after line 57, to add the following definition:

"tribe" means a tribe that was established or recognised under legislation in force before the commencement of this Act.

CLAUSE 2

1. On page 5, in line 11, to omit "own customary rules" and to substitute "customs".

2. On page 5, from line 13, to omit subsection (2) and to substitute:

(2) (a) The Premier of a province may, by notice in the Provincial Gazette, in accordance with provincial legislation and after full and proper consultation with the provincial house of traditional leaders in the province, and the community concerned, and, if applicable, the king or queen under whose authority that community would fall, recognise a community envisaged in subsection (1) as a traditional community.

(b) Provincial legislation referred to in paragraph (a) must prescribe a fixed period within which the Premier of the province concerned must reach a decision regarding the recognition of a community envisaged in subsection (1) as a traditional community.

3. On page 5, from line 17, to omit subsection (3) and to substitute:

(3) A traditional community must, for purposes of this Act, transform and adapt applicable customs and customary law so as to comply with the relevant principles contained in the Bill of Rights in the Constitution, in particular by –

(a) preventing unfair discrimination; and

(b) promoting equality.

CLAUSE 3

1. On page 5, from line 21, to omit subsection (2), and to substitute:

(2) (a) The members of a traditional council, of whom at least a third must be women—

(a) (i) may be no more than 30, depending on the needs of the traditional community concerned; and

(b) (ii) must, subject to paragraph (b), comprise—

(i) traditional leaders and members of the traditional community selected by the principal traditional leader concerned in terms of custom that community’s customs; and

(ii) other members of the traditional community who are democratically elected, and who must constitute 25% 40% of the members of the traditional council.

(b) At least a third of the members of a traditional council must be women, except where the Premier concerned has, in terms of the relevant provincial legislation, determined a lower threshold for a particular traditional council where it has been proved that an insufficient number of women are willing to participate in that traditional council.

CLAUSE 4

1. Clause rejected.

NEW CLAUSE

1. That the following be a new Clause:

Functions of traditional councils

4. (1) A traditional council has the following functions:

(a) Administering the affairs of the traditional community in accordance with custom and tradition;

(b) assisting, supporting and guiding traditional leaders in the performance of their functions;

(c) supporting municipalities in the identification of community needs;

(d) facilitating the involvement of the traditional community in the development or amendment of the integrated development plan of a municipality in whose area that community resides;

(e) recommending, in consultation with the relevant district and provincial houses of traditional leaders, appropriate interventions to government that will contribute to development and service delivery within the area of jurisdiction of the traditional council;

(f) participating in the development of policy and legislation at local level;

(g) participating in development programmes of municipalities and of the provincial and national spheres of government;

(h) promoting the ideals of co-operative governance, integrated development planning, sustainable development and service delivery;

(i) promoting indigenous knowledge systems for sustainable development and disaster management;

(j) alerting any relevant municipality to any hazard or calamity that threatens the area of jurisdiction of the traditional council in question, or the well-being of people living in such area of jurisdiction; and

(k) performing the functions conferred by customary law, customs and statutory law consistent with the Constitution.

(2) Applicable provincial legislation may must regulate the performance of functions by a traditional council by at least requiring a traditional council to—

(a) keep proper records;

(b) have its financial statements audited;

(c) disclose the receipt of gifts;

(d) adhere to a prescribed code of conduct.

(3) A traditional council and its resources may not be used to promote or prejudice the interest of any political party.

CLAUSE 5

1. On page 6, in line 14, to omit "legislative and", and to substitute "legislative or".

Option 1

2. On page 6, from line 20, to omit subsection (3) and to substitute:

(3) A traditional council may enter into a service delivery agreement with a municipality as provided for by law in accordance with the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000), and subject to any other applicable legislation.

Option 2

2. On page 6, from line 20, to omit subsection (3).

 

CLAUSE 6

1. Clause rejected.

NEW CLAUSE

1. That the following be a new Clause:

Support to traditional councils

6. The National Government and a A provincial government 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 within the province to fulfil their functions.

CLAUSE 7

1. On page 6, from line 46, to omit subsection (4) and to substitute:

(4) The provincial legislation referred to in subsection (1) must make provision for consultation with the provincial house of traditional leaders concerned, and any community that may be affected, and, if applicable, the king or queen under whose authority such a community falls, before the withdrawal of the recognition of a traditional community may be effected by way of a notice in the Provincial Gazette.

CHAPTER 3

1. Chapter rejected.

NEW CHAPTER

1. That the following be a new Chapter 3:

CHAPTER 3

LEADERSHIP POSITIONS WITHIN INSTITUTION OF TRADITIONAL LEADERSHIP

Part 1: Introduction

Recognition of traditional leadership positions

8. The following leadership positions within the institution of traditional leadership

are recognised:

(a) kingship;

(b) principal traditional leadership; and

(c) headmanship.

Part 2: Kings and queens

Recognition of kings and queens

9. (1) Whenever the position of a king or a queen is to be filled, the following process must be followed:

(a) The royal family or extended royal family, where applicable, must within a reasonable time after the need arose arises for the position of a king or a queen to be filled, and with due regard to applicable customary law—

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

(ii) through customary channels the relevant customary structure —

(aa) inform the President, the Premier of the province concerned and the Minister of the particulars of the person so identified to fill the position of a king or a queen;

(bb) provide the President with the reasons for the identification of that person as a king or a queen; and

(cc) furnish proof to the President that the Premier of the province concerned and the Minister have been informed accordingly; and

(b) the President must, subject to subsection (3), recognise a person so identified in terms of paragraph (a)(i) as a king or a queen, taking into account a framework prescribed by the President that—

(i) provides for the status and benefits of a king or a queen in a province, which status and benefits must be uniform throughout the Republic of South Africa;

(ii) provides uniform guidelines on the traditional or ceremonial role or any other function of a king or queen in a province; and

(iii) provides for an additional traditional or ceremonial role of a king or a queen that must be consistent with the Constitution.

(b) the President must, subject to subsection (3), recognise a person so identified in terms of paragraph (a)(i) as a king or a queen, taking into account –

(i) the need to establish uniformity in the Republic in respect of the status afforded to a king or queen;

(ii) whether a recognised kingship exists –

(aa) that comprises the areas of jurisdiction of a substantial number of principal traditional leaders that fall under the authority of such king or queen;

(bb) in terms of which the king or queen is regarded and recognised in terms of customary law and customs as a traditional leader of higher status than the principal traditional leaders referred to in sub-subparagraph (aa); and

(cc) where the king or queen has a customary structure to represent the traditional councils and principal traditional leaders that fall under the authority of the king or queen; and

(ii) the functions that will be performed by the king or queen.

(2) (a) The recognition of a person as a king or a queen in terms of subsection (1)(b) must be done by way of—

(a) (i) a notice in the Gazette recognising the candidate person identified as king or queen; and

(b) (ii) the issuing of a certificate of recognition to the identified candidate person.

(b) The President must inform the National House of Traditional Leaders of the recognition of a person as king or queen.

(3) Where there is evidence or an allegation that the identification of a person referred to in subsection (1) was not done in accordance with customary law, the President—

(a) may refuse to issue a certificate of recognition;

(b) may refer the matter to the National House of Traditional Leaders for its recommendation; or

(c) may refer the matter back to the royal family or extended royal family, where applicable, for reconsideration and resolution.

(4) Where the matter which has been referred back to the royal family for reconsideration and resolution in terms of subsection (3) has been reconsidered and resolved, the President must recognise the person identified by the royal family or extended royal family, if the President is satisfied that the reconsideration and resolution by the royal family has been done in accordance with customary law.

(5) The Minister may, by notice in the Gazette, make regulations concerning –

(a) the traditional or ceremonial role of a king or queen;

(b) the responsibilities of a king or queen in respect of nation building;

(c) other functions or roles of a king or queen.

Removal of kings or queens

10. (1) A king or queen may be removed from office on the grounds of—

(a) conviction of an offence with a sentence of imprisonment for more than 12 months without an option of a fine;

(b) physical incapacity or mental infirmity that makes it impossible for the king or queen to function as such;

(c) wrongful appointment or recognition;

(d) a transgression of a customary rule or principle that warrants removal.

(2) Whenever a king or queen is to be removed from office on any of the grounds referred to in subsection (1)(a), (b) or (d), the royal family must, within a reasonable time—

(a) inform the President of the particulars of the king or queen to be removed from office; and

(b) furnish reasons for the request for such removal.

(3) Where it has been decided to remove a king or queen in terms of subsection (1), the President must —

(a) withdraw the certificate of recognition with effect from the date of removal;

(b) publish a notice with particulars of the removed king or queen in the Gazette; and

(c) inform the royal family and the removed king or queen of such removal.

(4) Where a king or queen is removed from office, a successor in line with customary rules of succession may assume the position, role and responsibilities, subject to section 9.

Part 3: Principal traditional leaders, headmen and headwomen

Recognition of other principal traditional leaders, headmen or headwomen

10. 11. (1) Whenever the position of principal traditional leader, headman or headwoman is to be filled—

(a) the royal family concerned must, within a reasonable time after the need arose arises for any of those positions to be filled, and with due regard to applicable customary law—

(i) identify a candidate person who qualifies in terms of customary law to assume the position in question; and

(ii) through customary channels the relevant customary structure inform the Premier of the province concerned of the particulars of the person so identified to fill the position and of the reasons for the identification of that person; and

(b) the Premier concerned must, subject to subsection (3), recognise the person so identified by the royal family in accordance with provincial legislation as principal traditional leader, headman or headwoman, as the case may be.

(2) (a) The provincial legislation referred to in subsection (1)(b) must at least provide for—

(i) a notice in the Provincial Gazette recognising the candidate person identified as principal traditional leader, headman or headwoman in terms of subsection (1); and

(ii) the issuing of a certificate of recognition to the identified candidate person.

Option 1

(b) Provincial legislation may also provide for –

(i) the term of office of a headman or headwoman, where a headman or headwoman is elected in terms of customary law and customs; or

(ii) consultation by the Premier with the traditional council concerned where the position of a principal traditional leader, headman or headwoman is to be filled.

Option 2

(b) Provincial legislation may also provide for the term of office of a headman or headwoman consultation by the Premier with the traditional council concerned where the position of a principal traditional leader, headman or headwoman is to be filled.

(3) Where there is evidence or an allegation that the identification of a person referred to in subsection (1) was not done in accordance with customary law, the Premier—

(a) may refuse to issue a certificate of recognition; and

(b) must refer the matter back to the royal family for reconsideration and resolution.

(4) Where the matter which has been referred back to the royal family for reconsideration and resolution in terms of subsection (3) has been reconsidered and resolved, the Premier must recognise the person identified by the royal family if the Premier is satisfied that the reconsideration and resolution by the royal family has been done in accordance with customary law.

Removal of principal traditional leaders, headmen or headwomen

14. 12. (1) A principal traditional leader, headman or headwoman may be removed from office on the grounds of—

(a) conviction of an offence with a sentence of imprisonment for more than 12 months without an option of a fine;

(b) physical incapacity or mental infirmity that makes it impossible for that principal traditional leader, headman or headwoman to function as such;

(c) wrongful appointment or recognition;

(d) a transgression of a customary rule or principle that warrants removal.

(2) Whenever a principal traditional leader, headman or headwoman is to be removed from office on any of the grounds referred to in subsection (1)(a), (b) or (d), the royal family concerned must, within a reasonable time—

(a) inform the Premier of the province concerned of the particulars of the principal traditional leader, headman or headwoman to be removed from office; and

(b) furnish reasons for the request for such removal.

(3) The Premier of the province concerned must in terms of applicable provincial legislation—

(a) withdraw the certificate of recognition with effect from the date of removal;

(b) publish a notice with particulars of the removed principal traditional leader, headman or headwoman in the Provincial Gazette; and

(c) inform the royal family concerned and the removed principal traditional leader, headman or headwoman of such removal.

(4) Where a principal traditional leader, headman or headwoman is removed from office, a successor in line with customary rules of succession may assume the position, role and responsibilities, subject to section 9 or 10, as the case may be 11.

Part 4: General provisions regarding traditional leaders

Recognition of regent

11. 13. (1) Where the successor to the position of king, queen, principal traditional leader, headman or headwoman identified in terms of section 9 or 10 11 is still regarded as a minor in terms of applicable customary law or customs—

(a) the royal family concerned must, within a reasonable time—

(i) identify a regent to assume leadership on behalf of the minor;

(ii) inform the Premier of the province concerned of the particulars of the person identified as regent and the reasons for the identification of that person; and

(b) the Premier concerned must, with due regard to applicable customary law and subject to subsections (2) and (3), recognise the regent identified by the royal family in accordance with provincial legislation.

(2) The provincial legislation referred to in subsection (1)(b) must at least provide for—

(a) a notice in the Provincial Gazette recognising the candidate person identified as regent in terms of subsection (1);

(b) the issuing of a certificate of recognition to the identified regent; and

(c) the recognition of a regent to be reviewed by the Premier at least every three years.

(3) Where there is evidence or an allegation that the identification of a person as regent was not done in accordance with customary law or processes, the Premier—

(a) may refuse to issue a certificate of recognition; and

(b) must refer the matter back to the royal family for reconsideration and resolution.

(4) As soon as the successor to the position of king, queen, principal traditional leader, headman or headwoman ceases to be a minor in terms of customary law, the regent recognised in terms of subsection (1) must relinquish his or her position as regent, and the rightful successor must –

(a) in the case of a king or queen, be installed by the President in terms of section 9(1)(b), and a certificate of recognition contemplated in section 9(2)(b) must be issued after his or her name has been published in the Gazette; or

(b) in the case of a principal traditional leader, headman or headwoman, be installed by the Premier in terms of section 10(1)(b) 11(1)(b), and a certificate of recognition contemplated in section 10(2)(a)(ii) 11(2)(a)(ii) must be issued after his or her name has been published in the Provincial Gazette.

(5) Where a regent has been recognised in respect of the position of a king or queen, the Premier concerned must inform the President –

(a) of the particulars of the regent;

(b) when the regent is supposed to relinquish his or her position as regent; and

(c) of the withdrawal of the recognition of the regent.

 

Person acting as traditional leader

12. 14. (1) A royal family may, in accordance with provincial legislation, identify a suitable person to act as a king, queen, principal traditional leader, headman or headwoman, as the case may be, where—

(a) a successor to the position of a king, queen, principal traditional leader, headman or headwoman has not been identified by the royal family concerned in terms of section 9(1) or 10(1) 11(1);

(b) the identification of a successor to the position of a king, queen, principal traditional leader, headman or headwoman is being reconsidered and resolved in terms of section 9(3) or 10(3) 11(3); or

(c) a king, queen, principal traditional leader, headman or headwoman, as the case may be, would be absent from his or her area of jurisdiction under circumstances other than those provided for in section 13 15 and for a period of more than six months for—

(i) the treatment of illness;

(ii) study purposes; or

(iii) any other lawful purpose.

(2) An acting appointment in terms of subsection (1) must be made in accordance with provincial legislation, which legislation must at least provide for—

(a) the issuing of a certificate of appointment in an acting position by an appropriate authority;

(b) a review of the acting appointment on a regular basis; and

(c) the removal of a person who has been appointed in an acting position.

(3) A person who has been appointed as an acting king, queen, principal traditional leader, headman or headwoman in terms of subsection (1) may exercise any powers and perform any duties perform the functions that are attached to the kingship, principal traditional leadership or headmanship in question.

(4) Where a person has been appointed as an acting king or queen, the authority referred to in subsection (2)(b) must inform the President of–

(a) the acting appointment; and

(b) the removal of the person who has been appointed as an acting king or queen.

 

Deputy traditional leaders

13. 15. (1) A king, queen, principal traditional leader, headman or headwoman, as the case may be, may, after consultation with the royal family, appoint a deputy to act in his or her stead whenever that king, queen, principal traditional leader, headman or headwoman—

(a) becomes a full-time member of a municipal council;

(b) is elected as a member of a provincial legislature;

(c) is elected as a member of the National Assembly;

(d) is appointed as a permanent delegate in the National Council of Provinces; or

(e) is elected to, or appointed in, a full-time position in any house of traditional leaders.

(2) An appointment in terms of subsection (1) must be made in accordance with provincial legislation, which legislation must at least provide for—

(a) the removal of a person who has been appointed as a deputy; and

(b) the issuing of a certificate of appointment to a deputy by an appropriate authority.

(3) A person who has been appointed as a deputy in terms of subsection (1) may exercise any powers and perform any duties perform the functions that are attached to the kingship, principal traditional leadership or headmanship in question.

CLAUSE 15

1. On page 10, in line 11, to omit "The houses of traditional leaders in the Republic are –", and to substitute:

(1) The houses of traditional leaders in the Republic are –

2. On page 10, in line 14, to omit "district" and to substitute "local".

3. On page 10, in line 15, to omit "section 16" and to substitute "section 17".

4. On page 10, after line 15, to insert the following new subsection:

(2) A house of traditional leaders and its resources may not be used to promote or prejudice the interest of any political party.

 

CLAUSE 16

1. On page 10, in line 16, to omit "District" and to substitute "Local".

2. On page 10, in line 17, to omit "district" and to substitute "local".

3. On page 10, in line 21, to omit "district" and to substitute "local".

4. On page 10, in line 24, to omit "district or metropolitan municipality" and to substitute:

district municipality or metropolitan municipality

5. On page 10, in line 25, to omit "district" and to substitute "local".

6. On page 10, in line 27, after "municipality" to insert:

or metropolitan municipality

7. On page 10, in line 28, to omit "district" and to substitute "local".

8. On page 10, in line 41, to omit "district" and to substitute "local".

9. On page 10, in line 42, to omit "district" and to substitute "local".

CLAUSE 18

1. On page 11, in line 5, to omit" Allocation of roles, functions and guiding principles", and to substitute:

Guiding principles for allocation of roles and functions

2. On page 11, after line 16, to insert the following new paragraph:

(i) disaster management;

3. On page 11, in line 29, to omit paragraph (b) and to substitute:

(b) consult with –

(i) the relevant structures of traditional leadership; and

(ii) the South African Local Government Association;

4. On page 11, in line 33, to omit "strive to".

5. On page 11, after line 41, to add the following new subsection:

(3) Where an organ of state has allocated a role or function to traditional councils or traditional leaders as envisaged by subsection (1), the organ of state must monitor the implementation of the function and ensure that –

(a) the implementation of the function is consistent with the Constitution; and

(b) the function is being performed.

CLAUSE 19

1. On page 11, in line 46, to omit "custom" and to substitute "customs".

2. On page 11, in line 51, to omit "custom" and to substitute "customs".

 

CLAUSE 23

1. On page 12, in line 39, to omit "custom" and to substitute "customs".

2. On page 13, from line 1, to omit paragraph (d).

3. On page 13, in line 5, to omit "facts" and to substitute "events".

4. On page 13, from line 6, to omit paragraph (b) and to substitute:

(b) The Commission must –

(i) in respect of a kingship, be guided by the criteria set out in section 9(1)(b) and such other customary norms and criteria relevant to the establishment of a kingship; and

(ii) in respect of a principal traditional leadership or headmanship, be guided by the customary norms and criteria relevant to the establishment of a kingship, principal traditional leadership or headmanship as the case may be.

CLAUSE 24

1. On page 13, from line 22, to omit subsection (3) and to substitute:

(3) Any decision taken by the Commission must be conveyed –

(a) to the President;

(b) the National House of Traditional Leaders; and

(c) the relevant provincial house of traditional leaders.

 

CLAUSE 25

1. On page 13, in line 29, to omit "section 9 or 10, subject to a decision of the Commission in terms of section 24", and to substitute:

section 9 or 10 11, subject to a decision of the Commission in terms of section 24 25

2. On page 13, from line 32, to omit "section 11, 12 or 13" and to substitute:

section 13 or 14 (or 15?)

3. On page 13, after line 33, to insert the following new subsection:

(3) Any tribe that, immediately before the commencement of this Act, had been established and was still recognised as such, is deemed to be a traditional community contemplated in section 2, subject to a decision of the Commission in terms of section 25.

4. On page 13, in line 37, to omit "four years" and to substitute "one year".

5. On page 13, from line 39, to omit subsection (4) and to substitute:

(4) Any community authority that had been established in terms of applicable legislation and still existed as such immediately before the commencement of this Act, continues to exist until it is disestablished in accordance with provincial legislation, which disestablishment must take place within five two years of the commencement of this Act, except where the traditional leadership related to that community authority is still under investigation by the Commission in terms of section 24(2).

6. On page 13, in line 42, to omit "five years" and to substitute "two years".

7. On page 13, in line 46, to omit "Councils" and to substitute "Council".

8. On page 13, in line 47, to omit "ward authorities" and to substitute "ward authority".

9. On page 13, in line 49, after "regional authority" to insert:

Ibandla Lamakhosi, Council of Chiefs or ward authority

10. On page 13, after line 55, to add the following subsection:

(6) The Commission must, in terms of section 24(2), investigate the position of paramountcies and paramount chiefs that had been established and recognised, and which are still in existence and recognised, before the commencement of this Act, before the Commission commences with any other investigation in terms of that section.