Hon M Khawula MP
National Council Of Provinces
Hon Minister of Cooperative Governance and Traditional Affairs.
Traditional leaders: AmaKhosi present.
On behalf of Inkatha Freedom Party, I wish to start by expressing our sincere gratitude, and my leader’s sincere gratitude to the Hon Chairperson of the NCOP, Hon Thandi Modise, for agreeing that this very important topic be put in the NCOP agenda, after our caucus request to her office.
Traditional leaders were there during the pre-colonial era, the colonial era and the post-colonial era. They have always been there to defend their land, their livestock and their communities. The traditional leaders of our country were actually the first freedom fighters. I can refer to the likes of King Hintsa, Queen Mantantise, King Sekhukhune, King Shaka, King Cetshwayo, and many others.
Therefore, the Institution of Ubukhosi is inherent in us; it is important to our communities and is of historical value and significance to South Africa.
The issue of Traditional leaders in decision making structures of governance in the country cannot merely be reduced to the debate about salaries and benefits. Is it much more than that.
Chapter 12 of the Constitution of South Africa (1996) stipulates and specifically acknowledges the Institution of Traditional Leaders, its role and its place in the system of democratic governance. This chapter provides for the continued authority and functioning of Traditional Leaders in accordance with traditional law, within the broader legal framework, and for Traditional Leaders to participate at local government level.
Since 1994 the following pieces of legislation have been enacted to guide the participation of traditional leadership in governance:
The local government municipal structures act which has created wall-to-wall municipalities and claimed for municipalities all the power of local governance.
The Communal Land Rights Act (CLARA) which had been enacted to deal, inter alia, with land rights on Traditional Authorities and was declared unconstitutional on procedural grounds in May 2010. A replacement act has never been considered since then.
The National Framework of Traditional Leadership act.
The Traditional Courts Bill – This was withdrawn along the way.
The role of traditional leaders is mentioned in section 81 of the Local Government Municipal Structures Act which states that:
“Traditional authorities that traditionally observe a system of customary law in the area of a municipality, may participate through their leaders, identified in terms of the subsection (2), in the proceedings of the council of that municipality, and those traditional leaders must be allowed to attend and participate in any meeting of the council. The MEC for Local Government in a Province, in accordance with schedule 6 and by notice in the Provincial Gazette, must identify the Traditional Leaders who in terms of subsection (1) may participate in the proceedings of a municipal council.
The number of Traditional leaders that may participate in the proceedings of a municipal council may not exceed 20 percent of the total number of councillors in that council, but if the council has fewer than 10 councillors, only one traditional leader may participate. If a number of traditional leaders identified in a municipality’s area of jurisdiction exceed 20 percent of the total number of councillors, the MEC for local government in the province may determine a system for the rotation of those traditional leaders. Before a municipal council takes a decision of any matter directly affecting the area of a traditional authority, the council must give the leader of that authority the opportunity to express a view on that matter.
The MEC for local government in a province, after consulting the provincial House of Traditional Leaders, may by notice in the Provincial Gazette regulate the participation of traditional leaders in the proceedings of a municipal council; and prescribe a role for traditional leaders in the affairs of a municipality.”
The gravity of the situation here is the extent to which traditional leaders are given a voice on governance decisions through their managed participation. It is clear that it is the MEC for local government who is responsible for identifying which leaders should participate in a local government, and who may then attend and participate in the meetings of municipal councils. Even that limited number allowed to attend, do not carry the authority of councillors nor the right to vote.
Section 81 (3) states that the leaders of the traditional authority which is to be “directly affected” by a municipal decision is to be given an opportunity to make representations on the matter. But the municipal council is not obliged to act on this view or to take it into account in the decision-making process. The participation of that regulated limited number of traditional leaders cannot be expected to have any binding influence when decisions are taken. These stipulations result in Traditional Leaders merely becoming ceremonial figures in matters of local governance.
Whilst Traditional Leaders are subject to the requirements of the Public Finance Management Act, there is however, no dedicated budget allocated to the traditional councils, nor the National House of Traditional Leaders, nor the Provincial Houses of Traditional Leaders, nor the Houses of Traditional Leaders at local level. This issue of the Houses of Traditional Leaders having no dedicated budgets severely inhibits the effectiveness of Traditional Leadership.
The matters pertaining to resources and regulated participation have thus placed traditional leaders and traditional leadership just outside of the sphere of governance. Traditional leadership has in essence become an institution with no official function and none or very limited administrative capacity to perform accordingly. For an improved partnership in governance between traditional leaders and all other structures of governance, a relook into these issues is necessary.
There is also an important issue of overlapping responsibilities and a lack of clear delineation of roles. For example, there have been instances in the country where Amakhosi and Izinduna have been responsible for the allocation of sites, and in the same jurisdiction councillors have also been responsible for the same. In this vein, functions and powers of traditional leaders need to be spelled out just as those of municipalities are spelled out. The real partnership between local government and the Institution of Traditional Leadership need to be strengthened and empowered through amendments in legislation in order to recognise the role of traditional leaders in governance.
I thank you.
Mr M Khawula, MP, on 071 207 9445
IFP Media, Parliament