Report of the Portfolio Committee on Provincial and Local
Government on Public Hearings on National House of Traditional Leaders Bill [
B56- 2008 ] and Traditional Leadership
and Governance Framework Amendment Bill [B 57- 2008], dated
29-30 July 2008
Mr. S L Tsenoli (ANC)
(Chairperson), Mr. R Sonto (ANC), Mr. W Doman, (DA), Ms M Mdlalose
(NADECO), Mr. I D Mogase (ANC), Mr.M
Nonkonyane (ANC), Mr. M Swathe (DA).
Staff
Mr.
L Nxelewa (Committee Secretary)
Mr.
S Ngxiza (Parliamentary Researcher)
Mr.
V Mfuniselwa (Committee Assistant)
Apologies
Ms P Bhengu (ANC)
Ms M M Gumede (ANC)
Ms T P Nwamitwa-Shilubana
(ANC)
Mr. P Smith (IFP)
Mr. M T Likotsi
(APC)
State Law Advisor
Ms X Mdludlu
Ms F Omar
Guests
Inkosi S E Mahlangu, Chairperson of Mpumalanga
House of Traditional Leaders; Prof M W Sobahle,
Executive Manager DPLG; Mr. Fannie Louw, Executive
Manager DPLG; Mr. Themba Fosi,
Acting DDG DPLG; Mr. Litha Twaku,
Cabinet and Parliamentary Support; Mr. Gwadiso, NHTL;
Mr. DM Sithole, NHTL; Mr. MM Tshabalala,
NHTL; Mr. WT Mavundla, NHTL; Adv N de Havilland, Centre for Constitional
Rights; Morena M.F Mopeli,
Chairperson Free State HTL; Mr. N Radebe, FSHTL.
The Chairperson of the Committee
welcomed everyone at the meeting and gave Prof Sobahle,
Executive Manager, Department of Provincial and Local Government, an
opportunity to brief the committee on the background to both Bills. Prof Sobahle informed the committee that the Act which the
National House of Traditional Leaders Bill sought to repeal was not in line
with the 2003 White Paper. He further told the committee that, there were a
numbers of gaps that were identified in the principal Act. He furthermore
informed the Committee that, there was no alignment between the National House
of Traditional Leaders and Provincial House and the Bill intended to bring
about that alignment. Lastly he indicated to the Committee that the rationale
was also to align the term of the House to that of Local Government.
With regard to Traditional
Leadership and Governance Framework Amendment Bill, he informed the Committee
that, the intention was to address the recognition of Kingship; what should
happen in the event of a King passing away and interim measures for the
reconstituted Traditional Councils.
1. Presentation by
Nkosi S E Mahlangu
delivered a presentation which focused on the following proposals-
·
That
in section 1, an oath or affirmation, House committees and President should be
incorporated into the definition section.
·
That
in section 2, the term for National House should run concurrently with that of
National Parliament or National Council of Provinces, not Local Government.
·
That
subsection 3 should be added which would declare that the House was autonomous
from the government department.
·
That
in section 3 (4), the Provincial Houses should be incorporated for
consultation.
·
That
in section 4 (1), (2), (7) & (8) the word ῝Premier (s) ῎should be replaced by the
Chairperson(s) of the Provincial Houses.
·
That
subsection 4, 5 & 6 should be deleted as they should be included in the
provincial legislation.
·
That
in subsection 7, the duties contained herein should be done by the Secretaries
of the Provincial Houses.
·
That
subsection 1(h) should read “withdrawn by the respective provincial house”.
With regard to the Code of Conduct, it was suggested that a clause should be inserted
regulating the accountability and responsibility of the members that are
forwarded to the National House by provinces, including a sanction for not
abiding by such clause.
2. Presentation by
Morena M.F. Mopeli
made a presentation and raised the following issues-
·
That
National Department was indirectly interfering on provincial traditional
leaders on how the House should be constituted.
·
That
National Government should not prescribe the composition of the House as this
was an exclusive competence of Provincial Government which would take into
consideration provincial peculiarities.
·
That
the composition as proposed in the Bill would compromise the quality of the
representation in the National House of Traditional Leaders and subsequently
reduce meaningful participation.
·
That provincial representatives to the National House would somehow
be nominated by virtue of them being senior traditional leaders and not on
their exceptional proven leadership skills and efficiency.
3. Presentation by Contralesa
INkosi, Pathekile
Holomisa, took the committee through a presentation
which raised the following issues-
·
That
Contralesa supports the contents of the Bill.
·
That
Contralesa would have been more content if it was
given an opportunity to consult with the communities it led.
·
That
the Constitution should be amended to reinstate the provisions that were
contained in the Interim Constitution that ushered the new order.
·
That
The House needed to have power to delay the passage of Bills while they consult
their constituents and communities.
·
That
the Houses must be made an integral part of the Legislatures of the land.
·
That
they must be autonomous bodies and not be subjected to control by the Minister
and this would encompass, adopting their own budget and being able to hire
their own support staff.
·
That
no Politician, including the President or Minister should be given a right to
decide who should be full time or not.
·
That
a Member of the House should, as a matter of course, be accorded the same
rights, privileges and benefits as are due to their political counterparts.
·
That Monarchs must have a right to participate in any and all structures
that have been set up by Government for the benefit of traditional leaders.
·
That
all structures of traditional leaders, namely, Kings; Senior Traditional
Leaders; (iinkosi), Junior Traditional Leaders (iinkosana) be eligible to become members of the House.
·
That Members of the House must be deployed on a full time basis so as to
be able to dedicate their time to the work of the House during their term of
office.
·
That
the process of deployment of members of the Houses must not be conducted by
politicians but by Independent Electoral Commission, citing political
manipulation and interference as reasons.
·
That
deployment of members of the Houses from Traditional Council to the Provincial
Houses and in the National House must be conducted through an open discussion
and consensus, in line with tradition.
4. Presentation by F W de Klerk Foundation
Advocate N de Havilland
took the committee through her presentation and raised the following concerns-
·
That
the Center was concerned about the supremacy of the Constitution which was not
emphasized in the Bill.
·
That
when members take the oath, it should be recognized that they acknowledge the
supremacy of the Constitution and commit themselves to upholding it without
fear, favour or prejudice.
·
That,
for this reason, the Centre believed that a specific
role and function of the House should be to develop customary law in a manner
that promotes the spirit, purport and object of the Bill of Rights.
She proposed the following sub
clauses that needed to be added to clause 11:
·
Clause
11 (1)(a)(xiii) the transformation and adaptation of customary law and customs
so as to comply with the provisions of the Bill of Rights in the Constitution,
in particular by-
(i)
Preventing unfair discrimination
(ii) Promoting equality; and
(iii)Seeking to
progressively advance gender representation in the succession to traditional
leadership positions.
She concluded by informing the committee
that, the Centre was concerned with the quorum
provisions contained in clauses 8 (6) and (7) as these were not in line with
the principle of consensus which underpinned all customary law.
5. Presentation by Inkosi Mangosuthu
Buthelezi, Chairman of the House of Traditional
Leaders (KwaZulu Natal)
INkosi Mavundla
made a presentation on behalf of INkosi Mangosuthu Buthelezi and raised
the following issues-
·
That Traditional leaders were consulted after decisions had
been taken. Traditional leaders expressed concern that municipalities should
not encroach upon the powers of local governance or traditional authorities.
·
That
Parliament should reconsider its role in this matter and accept that it has
usurped a role which should have been exercised by provinces.
·
That Traditional leaders are a sui
generis institution, in that it was not the part of
the Government of the country and therefore, when dealing with traditional
leadership, legislation must to a certain degree recognize the autonomy of the
institution.
·
That
the House autonomy was restricted instead of increased and this organ of the
state was given much less autonomy than that provided to other organs of the
state.
·
That
it was totally unacceptable that the national legislature should dictate the
composition and qualification of the national house.
Regarding Traditional Leadership and
Governance Framework Amendment Bill, he raised the following issues-
·
That
the Bill and its principles was a framework only in name, when they in fact
subvert the Constitutional scheme by taking over the issues regulated by
provinces.
·
That
the result was the imposing of a uniform scheme of regulations which may be
appropriate in some provinces, but inappropriate in others.
·
That
the Kingship and the Queenship Councils are foreign
to their culture and traditions, and could create long term conflicts within
their provincial community.
·
That
the Bill subverted the notion of leadership and hierarchy existing in their
reality and traditions. The Bill did not provide for the institution of the
traditional Prime Minister of the Zulu Nation.
·
That
the proposed role to be played by Premiers in terms of the Framework Bill was
unacceptable.
·
That
the role only belonged to the Monarch and its Traditional Prime Minister.
6. Presentation by National House of Traditional Leaders
INkosi Mavundla
delivered the presentation and highlighted certain concerns. He made the
following proposals-
·
That
both Bills do not take sufficient account of the fundamentals of the
constitution.
·
That
the Bills only define the function and role of the institution at a local level
and are silent in this regard at a provincial level.
·
That
the Bills were couched in a language and terminology reminiscent of colonial
and apartheid inventions hence they needed to be referred to parliamentary or
other language service for vetting and re-writing.
Commenting specifically on National
House of Traditional Leaders Bill, he suggested the following-
·
That
the long title should mention the purpose of the Bill being to repeal the three
previous Acts.
·
That
regarding sec. 3(4), there should be a better formulation
·
That
the National House must endevour to ensure gender representativity in composition of the membership of the
House in line with the constitutional values of promotion of gender equality
and to give effect to the provisions of Promotion of Equality and Prevention of
Unfair Discrimination Act.
·
That
the purpose of section 4 (4) appears to be that of ensuring non-partisanship
among members of the House.
·
That
in sections 7 (1) reduce 14 days to 7 days and section 7(2) be reduced from 45
days to 30 days.
·
That
in section 8 (6) the president shall on an annual basis deliver an address to
the House at its first sitting of the year.
·
That
in section 10 the Chairperson and Deputy Chairperson of the House shall be full
time members of the House.
·
That employees of the House shall be subject to the terms and conditions
determined by the House.
·
That Members of the House shall deliver Provincial Reports to the House
and a National Report to their respective provincial houses.
·
That
section 23, the preferred formulation should be one that enjoins/requires the
house to develop and adopt codes of conduct of its own.
·
That
the powers of the Minister should not be too wide.
Mr. S L Tsenoli (ANC) (Chairperson), Mr. R Sonto
(ANC), Mr. W Doman, (DA), Ms M Mdlalose
(NADECO), Mr. I D Mogase (ANC), Mr. Nonkonyane (ANC), Mr. M Swathe (DA).
. Staff
Mr. L Nxelewa
(Committee Secretary)
Mr. S Ngxiza
(Parliamentary Researcher)
Mr. V Mfuniselwa
(Committee Assistant)
Apologies
Ms M M Gumede (ANC)
Parliamentary
Legal Advisor
Adv Z Adhikare,
Senoir Legal Advisor
State Law Advisor
Ms X Mdludlu
Ms F Omar
Guests
Inkosi S E Mahlangu, Chairperson of Mpumalanga
House of Traditional Leaders; Prof M W Sobahle,
Executive Manager DPLG; Mr. Fannie Louw, Executive
Manager DPLG; Mr. Themba Fosi,
Acting DDG DPLG; Mr. Litha Twaku,
Cabinet and Parliamentary Support; Mr. Gwadiso, NHTL;
Mr. DM Sithole, NHTL; Mr. MM Tshabalala,
NHTL; Mr. WT Mavundla, NHTL; Adv N de Havilland, Centre for Constitional
Rights; Morena M.F Mopeli,
Chairperson Free State HTL; Mr. N Radebe, FSHTL.
1. Presentation by
INkosi S
·
That
section 2A subsection 1(F) should be deleted in its entirety
as there is uncertainty as to what would happen if other communities did not
recognize that Kingship.
·
That
section 2A (5) (a), would enhance
unending conflicts and disputes within traditional leadership as traditional
leaders may mobilize themselves to depose the Kings or
·
That
the Kingship was a matter of birthright and did not depend on whether
communities need to change traditional leadership or not.
·
That
in section 3 2(c) (i) the word “ex-officio” should be
deleted or rephrased.
·
Section
3A subsection 2(d): this subsection excluded members of the Inner Royal Family
of the King and as such it would perpetuate the current Inner Royal Family
about Kingship and Kings.
·
That
the term of traditional leaders should be aligned to that of members of
National Parliament.
·
Section
4 A: the breach of the code of conduct by the King should be left to the
Kingship Council and not to the Minister.
2. Presentation by Contralesa
INkosi Dilizintaba delivered the presentation and made the
following proposals-
.
·
That the institution did not understand the rationale behind
the choice of the word “Kingship” as opposed to Kingdom.
·
That the council must be made up of all the senior
traditional leaders of the relevant kingdom.
·
That those deployed through traditional council should
include persons who represent vulnerable groups such as women and the disabled
persons.
·
That the term of office of the Kingship must not be aligned
with that of the elected political leaders.
·
That the institution opposed the disqualification of senior
traditional leaders from becoming members of the Kingship Council on account of
them being members of the municipal council, legislatures and Houses of the
Traditional Leaders.
·
That they must be allowed to participate provided that they
would not be remunerated, except for unavoidable traveling
and subsistence allowances.
·
That the Kingship Council should also have the power to
mediate in disputes involving junior traditional leaders and not be confined to
those involving senior traditional leaders.
·
That the establishment of the council should be done with
respect to all the areas of rule of junior traditional leaders.
·
That the Chairperson of the sub- traditional council must of
necessity be the relevant junior traditional leader.
·
That the amendment of the Governance and Framework Act affords
Parliament an opportunity also to make sure that the Traditional Councils
include all junior traditional leaders, regardless of their number, within the
area of jurisdiction of such Council, to be ex officio member of the council.
·
The remuneration of the traditional leaders must in the same
manner as elected politicians, be regulated by law, with the requisite benefits
and allowances clearly spelt out and not be dependant on the whims of political
leaders.