KwaZulu-Natal Legislature, Pietermaritzburg:  2nd November 2009

Madam Speaker

This is the second time this House has been able to pronounce on the two national traditional leadership bills, and we in the IFP appreciate every opportunity to highlight the plight of traditional leaders in this province and beyond. We believe that governance based on traditional institutions is the backdrop of democracy in Africa in general, and in a democratic South Africa in particular.

It is unfortunate that we have had to wait so many years for a legal framework that would ensure that traditional leadership functions in a manner that contributes to the entrenchment of a democratic culture in our traditional communities. This legal vacuum, coupled with rapid social change in the post-apartheid South Africa, has done little to enhance the status of traditional leaders and their standing in our communities.

At the same time, when this legislation finally saw the light of the day, the undue haste which has accompanied its passage through Parliament has run the risk of compromising the input of the civil society and the traditional leaders themselves, who made submissions relating to this legislation during the public hearings, four of which were held in this province. It must be remembered that inadequate public participation opens every piece of legislation to challenge in the Constitutional Court.

We have long argued that the national, provincial, and district houses of traditional leaders, as well as the traditional councils, should be provided with powers and adequate resources to enable them to carry out their functions in a meaningful way. This legislation makes an explicit provision for support to the national House by government in respect of administration, finances, capacity building and resources. We will, however, believe it when we see it.

Schedule 3 of the PFMA lists the KwaZulu-Natal House of Traditional Leaders as a public entity. But, unlike others in that category and most notably some Provincial Government Business Enterprises like Ithala and the KwaZulu-Natal Growth Fund which are routinely wasting public resources on irrecoverable loans and unviable business ventures, the KwaZulu-Natal House of Traditional Leaders continues to be grossly under-funded – to the extent that it has not been able to afford adequate support staff to carry out its constitutional mandate.

One set of problems, which this legislation does not recognise, relates to the new municipal boundaries that had been demarcated in ways which caused a great deal of distress to many traditional leaders and communities. Traditional boundaries had been violated, with the result that confusion reigned in the countryside with people who were supposed to do things together being thrown apart. The Municipal Boundaries Demarcation Board would do well to revisit this matter, and demarcate boundaries in ways which would not divide and separate single traditional communities.

As it turns out many of the newly created municipalities, especially in our rural areas, are not viable economic entities either. This is partly because elected councillors are failing to discharge their duties. The national government-sponsored Local Government Assessment programme and the recent municipal hearings in this House have revealed that some councillors have not been seen in their communities since they were elected.

These findings cast a shadow over a belief that the constituency-based system, within which ward councillors are elected, does indeed result in greater accountability. It now appears that some ward councillors have even less of a grounding in our communities than many Members of Parliament who are elected on the basis of proportional representation.

Last week, during his address to the National Council of the Provinces in Cape Town, the President, Hon. JG Zuma, insisted that the change of name of the former Dent to Department of Co-operative Governance was not merely cosmetic. We have yet to see whether the ruling party is serious about adding substance to such rhetoric.

By virtue of a long established presence in communities, traditional leaders often carry more authority and legitimacy with their communities than elected councillors. The key to effective and efficient service delivery in traditional communities is, therefore, a close co-operation between traditional leaders and elected councillors. This co-operation must be supported by other government departments, most notably the Treasury.

Most previous attempts to resuscitate ailing municipalities, such as Project Consolidate, largely failed because of lack of consultation and buy-in from municipalities. Today the Municipal Support Programme, despite the best intentions of those in charge of it at the provincial Treasury, is running a similar risk because it is operating on a much reduced budget. Co-operation with well-resourced Houses of Traditional Leaders is therefore essential to the success of local government.

One last obstacle in the way of genuine co-operative governance is the restriction imposed by this legislation on the dual membership of various Houses of Traditional Leaders, on the one hand, and the National Assembly and the provincial Legislatures, on the other. We in the IFP have appreciated that our concern about the constitutionality of this provision was taken into consideration at committee level and eventually formed part of this province’s negotiating mandate in the National Council of the Provinces.

At the same time, we have to express our reservations about the quality of the legal opinion provided by this Legislature which failed to refer to a key court ruling in this matter. Last year the Pietermaritzburg High Court ruled in favour of members of the provincial House of Traditional Leaders whose dual membership of that House and Parliament was challenged by a member of the province’s Executive Council.

Madam Speaker, we in the IFP are confident about the obvious unconstitutionality of a limit on dual membership of a House of Traditional Leaders and Parliament. This brings me to the obvious subtext of this legal provision. When the ANC loses a municipal by-election – as it did in March at Imbabazane, it challenges the result in court. When it loses a court battle – as it did last year against the provincial House of Traditional Leaders, it seeks to change the law. If this was the motivation behind this legal provision, we will have little choice but take this legislation to the Constitutional Court.

I thank you.

Contact:
Roman Liptak

078 302 0929