Submission on the Traditional Leadership and Governance Framework Act Amendment Bill (B12-2017)

31 October 2017

  1. Background

Although the Alliance continues to mobilize` for  the review of Traditional Leadership and Governance Framework Act of 2003, a complicated piece of legislation which prevented rural people from democratically transforming their lived realities and addressing the complex legacies of the apartheid Bantustans, The ARD is outraged by the recent TLGFAAB introduced by the Department of Cooperative Governance and Traditional Affairs (COGTA) extend deadline in order to give a lifespan to the existing Traditional Council who failed to comply.

Although there is an admission that 14 years later after the act, many tradititonal leaders and ther council have not complied with transitional requirements as according to section 28 of the 2003 Act, yet the public is given only 24 hours to submit their comments on the TLGFAB -B8B -2017. The rural citizens to whom this bill is going to apply do not have access to this kind of media newspapers, and they do not have the ability to go through the document written in a language that is foreign to them.

The bill is seen as of fundamental importance to rural citizens who continues to remain secondary citizens who are seen as subjects to Traditional Leadership of which many do not recognize them. The same controversial piece of legislation continues to spread its tentacles through the new Traditional Courts Bill of 2017, The Communal Land Tenure Bill and all other land bills.

We have observed with concern the attempt to rush the Traditional Leadership and Governance Framework Amendment Bill through parliament with no intentions for Public Participation. This is irrespective of the fact that the Constitutional Court has repeatedly enforced legislatures’ duties to facilitate public participation and citizens’ rights to meaningful consultation where legislation could affect their lives or livelihoods.  We write this submission with doubts at the back of our minds, whether it would be read and understood or considered given the fact that the rural people have demanded with force to have their voices heard on the TLGFAB. At the same time, the bill is already being referred to the NCOP for concurrence and the Traditional and Khoi-San Leadership Bill (TKLB), and is likely to be finalised by the National Assembly before year-end and sent to the NCOP for concurrence soon after.

  1. Our Submission

2.1 Background and History of South Africa and Traditional Institutions.

We are all aware that the colonial and apartheid laws created big problems for rural communities. It created communities inside other communities, changed customary law to suit the  apartheid agenda and changed traditional leaders into government officials with salaries and took away the rights of rural citizens to hold their leaders to account. Ever since the dawn of democracy, and before 2003 when the TLGFA of 2003 became law, our government was very aware of this troubled history and wanted to make things better for rural people.

This is one of the reasons why Act 108 of 1996, The Constitution carefully used words  NOT to foster these kind of Institutions down the throat of the people. Chapter 12 of the Constitution, Section 211(1) ; “The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution”. Section 212(1) – “National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities.”

The Constitution negotiators gave Government a choice, and it is now a proven fact that Government is chosing to ignore the people and their dreams of a democratic country, and want to lock them under untransformed authorities.

2.2 Customary Law is recognized subject to the Constitution. what does that mean?

It means that there was a realization that colonialism and apartheid discriminated against customary law, it was not regarded as real law like the common law or laws that parliament wrote. The Constitution wanted to end all inequality and discrimination and therefore it also ended the discrimination against customary law and recognized it as law in equal footing as the common law.

Many Traditional leaders and Government officials often only read the sections selectively yet the Constitution recognises customary law – the law of the community and the rule of Give and Take – first and foremost. Traditional leaders are not only bound by the Constitution but also by the customary law of their communities. They are not the ones to make customary law. It is developed by the people, it comes from the practice, in the past and present

The people knows their born leaders, only the people, especially the royal family can confirm their history of existence, their succession processes often the rightful royal heir – without their knowledge The Premier, the Minister and definitely not the President’s recognition is tantamount to injustices. PLEASE TAKE NOTE OF THE COMPLAIN BROUGHT ABOUT BY THE PARTICIPANTS ON WITHDRAWAL OF KING NDZUNDZA AT GA-MORWE COMMUNITY HALL. One clear example of imposing chiefs to the people and undermining the people’s choice

  1. TLGFAB together with Traditional Leadership and Khoisan bill (TKLB) are seen by many people living in traditional council areas to be crucial for accountability by Traditional leaders, Government and private institutions. For example, people of Bapong ba Mogale, Bakgatla Ba Kgafela, Mapela and many other in the former homelands demand accountability and consultation in decisions about the management of revenues and other benefits flowing from the commercial and industrial use of their land. The level of public concern is now evident in part in the growing frequency and intensity of protests against mines and leaders along the platinum belt that stretches across the provinces of Limpopo and North West. Many of these concerns were also voiced during public hearings of the High-Level Panel on the Assessment of Key Legislation and Acceleration of Fundamental Change, chaired by former President Kgalema Motlanthe.
  2. Summary Concerns:
  • The TLFGA Amendment Bill tries to legitimize currently illegitimate and invalid traditional councils because of the following:
  • They failed to hold elections as provided by the TLFGA of 2003 and meet number requirements for selected 60% , 40% elected and 30% women members.
  • The Bill hides an additional attempt to validate contested commercial deals made by invalid traditional councils without the consent of land owners and users.
  • The memorandum to the TLGFA Amendment Bill that is currently before Parliament admits that 13 years after the Traditional Leadership and Governance Framework Act of 2003 (TLGFA) commenced, traditional councils have largely still not met the composition requirements.
  • TLFGA of 2003 provided for Code of Conduct and minimal sanctions, and the amendment bill turns a blind eye to those.

The above bullet points prove that most councils are therefore not legally valid, nor are the deals that they have signed valid. The Amendment Bill proposes a new period of one year for traditional councils to transform. How this will address structural problems at the heart of the TLGFA’s failure is not explained. Most serious is that the Amendment Bill takes away the immediate consequence of illegality where councils fail to transform, and consequently the incentive to do so. Rather than being a technical “stopgap” as the Department of Traditional Affairs claims, the Amendment Bill is likely to exacerbate existing confusion and abuses around governance in traditional areas.

The Amendment Bill’s provisions anticipate that the TKLB, which repeals the TLGFA, will also pass in due course.  With its current wording the TKLB would give traditional councils sweeping powers to transact on communal land, without any obligation to consult with residents who actually hold the land rights.  The TKLB keeps many of the TLGFA’s fundamental principles of top-down authority, tribal jurisdictions and the centralization of power in senior traditional leaders and councils. Yet, the TKLB’s provisions are often more extensive than the current TLGFA and new provisions have been introduced to write current abusive practices by some traditional authorities into law. One such provision is clause 24, which empowers traditional councils to conclude agreements with any institution or entity, including mining companies, without any requirements for consultation with residents living within the boundaries of traditional communities (previously known as “tribes”) that make up the former homelands. This denies and undermines the land rights of people who were previously dispossessed of their rights during colonialism and apartheid.

  1. Proposals

Given the serious proposals contained in these two bills, we are calling for a thorough processes of public consultation by Parliament on the following sections.

  • Section 28 Revised as follows; 40% selected, 60% elected and 50% of women and youth
  • Recognition of Khoisan nation, their language and land rights through this amendment
  • Section 4(3): a traditional council must meet at least once a year with its community to give account of its activities, finances, levies received. We demand to see these! We Demand to be heard at meetings
  • Section 4 requires provincial legislation to provide for auditing of financial statements, keeping records, disclosing gifts.
  • Code of Conduct for traditional councils and traditional leaders should enable ordinary community members to allege misconduct. Sanctions for non-compliance must be implemented, COGTA should do their work without favor.

Conclusion: Lastly, We urge the speakers’ forum to look at the proposals made to the High Level Panel chaired by our former President Dr. Kgalema Motlanthe, as we believe that the speakers appointed this panel as an effort to find solutions.  We Insist on proper customary law process that recognizes living customary law, including consultation, accountability mechanisms, Free Prior and Informed Consent when land rights are threatened.

Constance Galeo Mogale

Alliance for Rural Democracy c/o Rural Democracy Trust

Email: ruraldemocracytrust@gmail.com

Cell: 082 559 0632 

 The Alliance for Rural Democracy (ARD) is a dynamic grouping of civil society organizations and communities which come together voluntarily whenever there is a need to contest policy and legislation that threatens to dilute the rights of rural citizens living in the former homeland areas. Such laws and practices distort customary law, undermine security of tenure and rights in land while entrenching the powers of traditional authorities, The ARD has challenged these undemocratic practices and proposed laws on the ground and through the courts.

 

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