Department of Traditional Affairs Presentation on Traditional and

Department of Traditional Affairs Presentation on Traditional and Khoi-San Leadership Bill, 2015 to Portfolio Committee on Cooperative Governance and Traditional Affairs 2015 1

Scope of presentation 1. Introduction 2. Objectives of Bill 3. Limitations 4. Contents of Bill 5. Financial implications 6. Consultations 7. Tagging 2

1. Introduction 1. 1 in 2010. The first consultation version of the Bill was made available in June 2011. Extensive pre-Cabinet consultations were conducted from June 2011 to early 2012. 1. 2 Government Gazette No 36856 of 20 September 2013 (General Notice No 947). The original 60 days allowed for the submission of comments was extended to 31 December 2013. 1. 3 In August 2015, Cabinet approved the introduction of the Bill in Parliament. 3

2. Objectives of Bill 2. 1 The main objectives of the Bill are - • to make provision for the recognition of the Khoi-San; • to consolidate (and consequentially to repeal) the National House of Traditional Leaders Act, 2009, and the Traditional Leadership and Governance Framework Act, 2003, to ensure an integrated and uniform approach in dealing with all matters relating to traditional leadership; • to address the limitations of the two laws that are to be repealed; and • to effect consequential amendments to other laws. 2. 2 the National House Act are retained in the Bill. 4

3. Limitations 3. 1 Limitations of the Framework Act: • No provision for the recognition of the Khoi-San. • No provision for the recognition and withdrawal of recognition of a headmanship/ headwomanship. • Insufficient provision for investigations in cases of uncertainty as to whether the criteria for the recognition of structures & leadership positions have been complied with. • Insufficient provisions in respect of the election of elected members of traditional councils. • No provision for the monitoring of councils. • Limited code of conduct. 5

3. Limitations (cont …) 3. 2 Limitations of the National House of Traditional Leaders Act, 2009: • Inadequate provisions relating to accountability of the House in relation to planning and reporting. • Current provisions relating to the content of annual report are vague. 3. 3 Limitations of the Local Government: Municipal Structures Act, 1998: • Section 81 of the Municipal Structures Act does not contain details on the roles of traditional leaders when participating in municipal councils. • Section 81 (read with Schedule 6 to the Act) does not provide sufficient details in respect of the identification of traditional leaders who may participate in municipal council proceedings. 3. 4 Commission for the Remuneration of Public Office-Bearers Act, 1997: • The definitions of “office bearer” in these acts exclude certain traditional leadership positions. 6

4. Contents of Bill 4. 1 The Bill consists of the following Chapters: • Chapter 1: Interpretation, Application and Principles • Chapter 2: Traditional and Khoi-San Leadership • Chapter 3: Houses of Traditional and Khoi-San Leaders • Chapter 4: Commission on Traditional Leadership Disputes and Claims; and Advisory Committee on Khoi-San Matters • Chapter 5: General provisions (regulations, delegations, transitional) • Schedule 1: Code of conduct • Schedule 2: Oath or Affirmation • Schedule 3: Amendment of legislation • Schedule 4: Repeal of legislation. 7

4. Contents of Bill (cont …) Chapter 1: Interpretation, application and principles 4. 2 Clause 1 of the Bill deals with definitions. Note should be taken of the definitions of: • “Khoi-San” which means a person who lives in accordance with the customs and customary law of the Cape-Khoi, Griqua, Nama, Koranna or San people, or any subgrouping thereof; • “principal traditional leader”: this definition makes it clear that this is not a position that can be applied for; a person can only become a principal traditional leader by operation of law. The position of principal traditional leader was introduced in 2009 through the amendment of the Framework Act to accommodate certain paramountcies which did not qualify to be a kingship or a queenship, but are deemed to be a kingship or a queenship. Such a kingship or queenship lapses upon the death of the incumbent king or queen whereupon the leadership position becomes a principal traditional leader. 8

4. Contents of Bill (cont …) Chapter 2: Leadership 4. 3 Part 1 of Chapter 2 deals with traditional and Khoi-San communities. 4. 4 communities, and headmenships or headwomenships. Clause 4 makes provision for the withdrawal of any such recognition. In both clauses provision is made for proper investigations in instances where, for example, there is uncertainty whether the criteria for recognition have been met or whethere is sufficient cause for the withdrawal of a recognition. 4. 5 criteria with which a community must comply for recognition as a Khoi-San community. It also contains details on the application for recognition and all the documentation that has to accompany an application. 4. 6 It should be noted that all initial applications for the recognition of the Khoi-San must be lodged with the Advisory Committee on Khoi-San Matters. 9

4. Contents of Bill (cont …) Chapter 2: Leadership 4. 7 Clause 6 makes provision for the withdrawal of the recognition of a Khoi-San community. 4. 8 Clause 7 states that there are the following traditional leadership positions: • King or queen; • principal traditional leader (subject to the definition in clause 1); • senior traditional leader; • headman or headwoman; and the following Khoi-San leadership positions: • senior Khoi-San leader; • branch head - certain Khoi-San communities have a main community where the leader of that community resides, as well as one or more smaller communities that are situated in other areas away from the main community. These smaller communities are known as branches and their leaders are referred to as branch heads. 4. 9 Clause 7 also sets out the criteria for leadership positions. 10

4. Contents of Bill (cont …) Chapter 2: Leadership 4. 10 determined Note should clause taken isof where be 7(7) senior it when that traditional a leader is recognised as a king or a queen, such senior traditional leadership position becomes a vacancy and should be filled by recognising another person as senior traditional leader or by the identification of a deputy traditional leader. 4. 11 leader to resign. However, such resignation will not affect succession in terms of customary law and customs. ause 4. 12 a leader, is guilty of an offence. Clause 4. 13 or queen, principal traditional leader (successor), senior traditional leader, headman or headwomen while clause 9 deals with the withdrawal of such recognition. 11

4. Contents of Bill (cont …) Chapter 2: Leadership 4. 14 procedure to be followed in respect of recognition and clause 11 deals with the withdrawal of such recognition. Clause 4. 15 regent must relinquish his or her position. It also deals with instances where the royal family does not identify a regent. 4. 16 Clause 13 makes provision for acting leaders and clause 14 for deputy leaders. 4. 17 leaders as may be needed to enable them to perform their functions. This is necessary to ensure uniformity in respect of tools of trade. 12

4. Contents of Bill (cont …) Chapter 2: Leadership 4. 18 traditional council or traditional council. The following should be noted: • The councils must consist of the number of members as determined by the Minister by formula published in the Gazette; • the Minister must conduct certain consultations prior to publication of a formula; • the period within which a council has to be established shall only commence once the required formula has been published; • consultations on the formula must, in the case of a kingship or queenship council or a principal traditional council, be conducted with a forum of not more than 5 members designated by the royal family from amongst themselves, and a forum of not more than 20 senior traditional leaders under that king, queen or principal traditional leader; and • it is made clear that provisions of the Bill that relates to the establishment of a council shall apply to the initial establishment and any subsequent reconstitution. 4. 19 Clause 17 provides for the establishment of traditional sub-councils and subclause (7) provides clarity on the term of office of the members (aligned to term of office of members of main traditional council). 13

4. Contents of Bill (cont …) Chapter 2: Leadership 4. 20 Clause 18 makes provision for the establishment of Khoi-San councils. • The councils must consist of the number of members as determined by the Minister by formula published in the Gazette. • The councils must consist of 60% selected and 40% elected members. The 60% consists of – - the senior Khoi-San leader; - branch heads (if the main community has branches); - if there are no branches, the senior Khoi-San leader must select the required number of members (if there is a royal family, the selection must be done with the concurrence of a forum designated by the royal family; if there is no royal family, the selection must be done from amongst members of the main community). 4. 21 members) and is not based on a specific territory. 14

4. Contents of Bill (cont …) Chapter 2: Leadership 4. 22 traditional councils, traditional sub-councils, Khoi-San councils and branches. The focus is on community participation in municipal development initiatives and programmes, as well as the identification of community needs, to name a few. 4. 23 made in clause 21 for such elections to be conducted by the Electoral Commission (by agreement), by way of a community meeting (customs) or by a body appointed by the Premier. Clause 4. 24 councils. If a council does not or cannot fulfill its obligations, the Premier may intervene by appointing a person or persons to assist the council or to assume responsibility for any obligation on behalf of the council. 15

4. Contents of Bill (cont …) Chapter 2: Leadership 4. 25 councils. Of particular importance is that the clause contains detailed provisions in respect of the opening and management of bank accounts of councils. There is no such provision in the existing Framework Act. 4. 26 enter into partnerships and agreements, and requires of any such partnership or agreement to be beneficial to the relevant community. 16

4. Contents of Bill (cont …) Chapter 2: Leadership 4. 27 (a) Clause 25 deals with the allocation of roles to councils and leaders. § A department (national or provincial) may, in respect of any functional area of such department, through legislative or other measures provide a role for any council or leader. § Such a role may not include any decision-making power. § Any department which provides such a role, is responsible for monitoring the execution thereof. (b) In earlier years, the settlement of civil disputes and powers to try certain offences could be granted to traditional leaders in terms of the Black Administration Act, 1927. (c) The Black Authorities Act, 1951, made provision for the establishment of amongst others tribal and regional authorities. Through these structures, traditional leaders had executive powers over the development of their areas and the management of schools and hospitals, to name a few. 17

4. Contents of Bill (cont …) Chapter 2: Leadership (d) The Interim Constitution of 1993, determined that structures such as regional authorities shall continue to exist and perform their powers and functions in terms of applicable laws and customs until such laws or customs are amended or repealed. The 1996 -Constitution recognises the institution, status and role of traditional leadership and also provides that a traditional authority may function subject to applicable legislation. The relevant provisions of the final Constitution are less explicit than those of the Interim Constitution. (e) developed and section 20 of the Act allows government to provide roles for traditional leaders or councils in respect of specific functional areas. (f) Framework Act and the Bill, are of an advisory, facilitative, supportive and participatory nature. These functions and roles therefore do not include executive and legislative powers which in terms of the Constitution are exclusive competencies of the three spheres of government. 18

s. The 4. Contents of Bill (cont …) Chapter 3: Houses of Traditional and Khoi-San Leaders 4. 28 be taken of the following: • Clause 27(2): Determines a specific date on which the term of the current National House shall end. Subsequent terms will end on the same date every five years. This is necessary to ensure better alignment between the terms of houses and councils. • Clause 38(1): The National House must prepare strategic and annual performance plans. • Clause 38(3): The National House is provided with the responsibility to determine why the one-third requirement for female representation on a provincial house is not met. • Clause 43: Contains the details that must be included in the annual report. 4. 29 include recognised Khoi-San leaders as members. 19

4. Contents of Bill (cont …) Chapter 4: Commission and Advisory Committee 4. 31 Leadership Disputes and Claims have been retained. Note should be taken of the following: • Clause 56(8): This subclause provides clarity on who should deal with disputes that have arisen after the cut-off date for lodgement of disputes and claims with the Commission. • Clause 58: In terms of the Framework Act, a provincial committee of the Commission has to be established in each province. This is however not necessary and clause 58 provides a discretion in respect of the establishment of provincial committees, based on the number of disputes and claims per province and the complexity thereof. 4. 32 Clause establishes 59 Advisory an Committee Khoi-San on Matters assist to government with the recognition process of the Khoi-San. This Advisory Committee – • will consist of a chairperson, deputy chairperson and not more than 5 members; members must have qualifications or experience in, or knowledge of, anthropology, the history of the Khoi-San, customary law and customs of the Khoi-San, or the law (clause 60); • may only be established after a nomination process has been followed (thus allowing for public participation); and • has a limited lifespan of three years. 20

4. Contents of Bill (cont …) Chapter 4: Commission and Advisory Committee se 4. 33 lodged with the Advisory Committee and the date from which applications may be lodged will be announced in the Government Gazette. 4. 34 must investigate and make recommendations to the Minister on the recognition of the Khoi. San. relevant recommendation Premier the for Advisory referred A 4. 35 to Committee the befirst of must comments before it is submitted to the Minister for a decision. 21

4. Contents of Bill (cont …) Chapter 5: General provisions 4. 36 conducted in respect of draft regulations. 4. 37 Clause 68 makes provision for delegations. 4. 38 implementation of the Bill once it becomes law. 4. 39 Clause 70 contains all transitional provisions. Note should be taken of the following: • Clause 70(1) requires of provinces to investigate whether any headmanship or headwomanship, or any headman or headwoman established or recognised prior to or since the commencement of the Framework Act, meets the criteria for recognition as contained in the Bill. This is necessary to address allegations that some headmen and headwomen may have been recognised without meeting any criteria. 22

4. Contents of Bill (cont …) Chapter 5: General provisions • To address current challenges with the reconstitution of traditional councils, clause 70(4) determines that if a traditional council does not comply with the requirements for the establishment of such a council, the Minister may take the necessary steps to ensure that the provisions of the Bill are met. The same applies to the disestablishment of community authorities [clause 70(5)]. 4. 40 repealed). 4. 41 Clause 73 is the short title of the Bill. 23

4. Contents of Bill (cont …) Schedules 4. 42 Schedule contains very comprehensive 1 a Conduct Code ofcompared clause two the code to in the Framework Act. 4. 43 Schedule 2 contains the oath or affirmation to be taken by members of houses. 4. 44 Schedule 3 contains amendments to other laws: • Amendments to Independent Commission for the Remuneration of Public Office-bearers Act, 1997: o Paragraph (e) of the definition of “office-bearer” in section 1 of this Act refers to traditional leaders. The paragraph, however, excludes certain existing traditional leadership positions and does not include the envisaged Khoi-San leadership positions. The proposed amendments address this. 24

4. Contents of Bill (cont …) Schedules • Amendments to Remuneration of Public Office Bearers Act, 1998: o The proposed amendments to various provisions of this Act are necessary to ensure that all traditional leadership positions are included in the Act, and also to include the envisaged Khoi-San leadership positions. • Amendments to Local Government: Municipal Structures Act, 1998: o Section 81 of the Structures Act, read with Schedule 6 thereto, deals with the participation of traditional leaders in municipal councils and the identification of traditional leaders for this purpose. o The Bill proposes to amend section 81 – § to make provision for a more streamlined process in respect of the identification of the traditional leaders who may participate in the proceedings of municipal councils; and § to provide more detail on the roles and responsibilities of such leaders. 4. 45 Schedule 4 lists the laws to be repealed. 25

5. Financial implications 26

6. Consultations Pre-Cabinet 6. 1 In the course of June and July 2011 the Bill was referred for comments to – • 29 national departments and all provincial governments; • the National House of Traditional Leaders (NHTL) and all provincial houses; and • 14 institutions (incl Commission on Gender Equality, CRL Rights Commission & Human Rights Commission). 6. 2 The Department presented the Bill to – • the NHTL (on 2 occasions) and all provincial houses; • Contralesa (on 2 occasions); • the National Khoi-San Council (NKC); • a joint session of the NHTL, Contralesa and the NKC; and • officials from the provincial governments and the secretaries of the provincial houses. 6. 3 San, a total of 29 consultation sessions were conducted with Khoi and San communities throughout the country. The DTA officials were supported by NKC members during these consultations. 6. 4 The Department received total written 58 of a inputs which were carefully all considered during the refinement process of the Bill. 27

6. Consultations After publication in Gazette 6. 5 Following the publication of the Bill in the Government Gazette for public comments - • the DTA distributed the Bill to all provincial governments, the National House of Traditional Leaders (who in turn distributed it to the provincial houses), all members of the National Khoi-San Council and various persons and institutions who requested copies of the Bill; • the DTA presented the clauses that are relevant to the Khoi-San to the National Khoi-San Council on 11 and 12 October 2013; • the DG engaged the provinces of Limpopo, Mpumalanga, Northern Cape, Free State and Eastern Cape on the Bill as part of the outreach programme; • the DTA arranged a meeting for 1 November 2013 with representatives of all provinces with the intention to address any questions of clarity they may have had on the Bill; and • the National House of Traditional Leaders was briefed on 4 November 2013. 6. 6 was amended where necessary. 28

7. Tagging 7. 1 legislative competency, it is tagged as a section 76 Bill. 7. 2 with the provisions of section 18 of the Framework Act. THANK YOU 29