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TRADITIONAL STRUCTURES IN LOCAL GOVERNANCE FOR LOCAL DEVELOPMENT PRESENTATION TO THE WORLD BANK INSTITUTE WASHINGTON 14

TRADITIONAL STRUCTURES IN LOCAL GOVERNANCE FOR LOCAL DEVELOPMENT PRESENTATION TO THE WORLD BANK INSTITUTE WASHINGTON 14 FEBRUARY 2005. PROF NIC OLIVIER (c) SADC CENTRE FOR LAND RELATED, REGIONAL AND DEVELOPMENT LAW AND POLICY POST-GRADUATE SCHOOL FOR AGRICULTURE AND RURAL DEVELOPMENT

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TRADITIONAL STRUCTURES IN LOCAL GOVERNANCE FOR LOCAL DEVELOPMENT PRESENTATION TO THE WORLD BANK INSTITUTE WASHINGTON 14

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  1. TRADITIONAL STRUCTURES IN LOCAL GOVERNANCE FOR LOCAL DEVELOPMENTPRESENTATION TO THE WORLD BANK INSTITUTE WASHINGTON14 FEBRUARY 2005 PROF NIC OLIVIER (c) SADC CENTRE FOR LAND RELATED, REGIONAL AND DEVELOPMENT LAW AND POLICY POST-GRADUATE SCHOOL FOR AGRICULTURE AND RURAL DEVELOPMENT UNIVERSITY OF PRETORIA E-mail: nolivier@postino.up.ac.za

  2. SCHEME OF PRESENTATION • INTRODUCTION 1.1 Historical Account of Traditional Structures 1.2 Context: Constitutional, Policy and Legislative 1.3 KwaZulu-Natal: A Brief Background • TRANSFORMATION OF INTERNAL GOVERNANCNE OF TRADITIONAL STRUCTURES AT LOCAL LEVEL 2.1 Organisational Structure, Division of Powers and Role Differentiation 2.2 Selection and Related Mechanisms 2.3 Participatory Decision-Making 2.4 Responsiveness, Accountability and Transparency 2.5 Local Perceptions of Traditional Structures © SADC CENTRE (UP)

  3. SCHEME OF PRESENTATION • STATUTORY ROLES OF TRADITIONAL STRUCTURES AND AUTHORITIES IN LOCAL GOVERNANCE 3.1 Representation in Official Governance Structures 3.2 Participation in Consultation Mechanisms 3.3 Informal Inclusion 3.4 Recognition of Customary Law • FUNCTIONS OF TRADITIONAL STRUCTURES IN LOCAL DEVELOPMENT AND SERVICE PROVISION 4.1 Exclusive Responsibility of Traditional Structures 4.2 Areas of Shared Responsibility with Local Government 4.3 Exclusive Responsibility of Local Government © SADC CENTRE (UP)

  4. SCHEME OF PRESENTATION • ADMINISTRATIVE IMPLICATIONS 5.1 Provincial Departmental Structures and Systems 5.2 Local Departmental Structures and Systems • CONCLUSION 6.1 Prospect and Challenges for Future Transformation 6.2 Impact of Non-Traditional Institutions 6.3 Contributions and Limitations of Traditional Structures as regards Enhanced Local Governance and Enhanced Local Development 6.4 Impact of Interaction with Local Government and Legitimacy and Perpetuation of Traditional Structures © SADC CENTRE (UP)

  5. 1. INTRODUCTION 1.1 HISTORICAL ACCOUNT OF TRADITIONAL STRUCTURES 1.1.1 Colonial Policies and Practices: • Reality of Traditional Communities • Reality of Traditional Governance Structures • 9 Main African Language Groups • Colonial Intervention: • Own Legislative and Administrative Framework • Indirect Rule • Removal of uncooperative Traditional Leaders • Formal Recognition of Traditional Leaders and Traditional Communities • Removal and Resettlement of Some Traditional Communities • Limited Recognition of Customary Law (and Customary Courts) 1.1.2 Segregationist, Apartheid and Homeland Policies and Practices: • Continuation of Colonial Approach and Interventions • Extensive and Detailed Statutory and Administrative Framework • Apartheid and Homeland Policy • Strengthening of Traditional Structures Subject to Strong Centralised Political and Administrative Control • Conversion of 1913 Reserved Areas and 1936 Released Areas into 10 Homelands © SADC CENTRE (UP)

  6. 1. INTRODUCTION 1.1 HISTORICAL ACCOUNT OF TRADITIONAL STRUCTURES • Forced Removals and Resettlement in Homelands • Merger and Division of Existing Traditional Communities • Deposement of uncooperative Traditional Leaders • Appointment of Traditional Leaders • Formal Recognition of Traditional Authorities • Establishment of Homeland Executives and Legislatures (which were dominated by Traditional Leaders) • Transfer of Limited Executive and Administrative Powers to Homeland Governments • So-called Independence of Four “National States” – Transkei, Boputhatswana, Venda and Ciskei • Six Self-Governing Territories: Gazankulu, KwaZulu, KwaNdebele, KaNgwane, Lebowa, Qwa-Qwa 1.1.3 Status Immediately Before Democratic Elections (27 April 1994) • Approximately 800 Traditional Communities, Each with its Own Recognised Traditional Leader and its own Recognised Traditional Authority (Grouped into Regional Authorities): powers, functions, agency basis, underresourced • Twelve Kings / Paramount Chiefs • Limited Recognition of Headmen © SADC CENTRE (UP)

  7. 1. 2 CONTEXT: 1.2.1 CONSTITUTIONAL, STATUTORY AND REGULATORY FRAMEWORK 1.2.1.1 Provincial Legal Frameworks (Constituent Parts): • 1996 Constitution • Post-1994 RSA legislation • Non-assigned pre-1994 RSA + Provincial (incl. homeland) • Assigned pre-1994 RSA + Provincial (incl. homeland) • Own Provincial post-1994 legislation • Customary Law 1.2.1.2 1996 Constitution Chapter 12: • Section 211: (Recognition) (1) The institution, status and role of traditional leadership according to customary law, are recognized, subject to the Constitution. (2) A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs. (3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. © SADC CENTRE (UP)

  8. 1.2 CONTEXT: 1.2.1 CONSTITUTIONAL, STATUTORY AND REGULATORY FRAMEWORK • Section 212 (Role of traditional leaders): (1) National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities. (2) To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law – (a) national or provincial legislation may provide for the establishment of houses of traditional leaders; and (b) national legislation may establish a council of traditional leaders. • Schedule 4 (Part A) concurrent national and provincial functions: • Traditional leadership, subject to Chapter 12 of the Constitution • Indigenous law and customary law, subject to Chapter 12 of the Constitution • Section 219: Remuneration of persons holding public offices • Section 104: Legislative authority of provinces • Section 125: Executive authority of provinces © SADC CENTRE (UP)

  9. 1.2 CONTEXT: 1.2.1 CONSTITUTIONAL, STATUTORY AND REGULATORY FRAMEWORK • Section 146(5): Provincial legislation prevails in the absence of section 146(2) or (3) (overriding national framework legislation) • Continuation of pre-1994 legislation (Discussion Document 2000:61): • All old order legislation (legislation passed before 27 April 1994 by the previous South African, TBVC and homeland governments) • All interim period (during the time since the commencement of the 1993 Constitution (27 April 1994) up to 4 February 1997 (commencement of the 1996 Constitution). This is also applies to all assignment proclamations made by the President in terms of the 1993 Constitutions in respect of the old pre-27 April 1994 homeland and SA legislation pertaining to traditional leaders and institutions (as being matters within the functional domain of the provinces) • Section 239: Organs of state • Chapter 3: Co-operative government (s 41) • Three spheres of government (National. Provincial and Local) + organs of state • Autonomous, interrelated and interdependent • Intergovernmental relations • Chapter 10: Public administration (s 195) © SADC CENTRE (UP)

  10. 1.2 CONTEXT: 1.2.1 CONSTITUTIONAL, STATUTORY AND REGULATORY FRAMEWORK 1.2.1.3 Legislation at National level: • Old order legislation (1994) • Black Administration Act 38 of 1927 (parts) • Black Authorities Act of 1968 of 1951 (parts) • Non-assigned proclamations, regulations, etc. • Interim RSA legislation 1994 (27 April 1994 – 03 February 1997) • New RSA legislation (04 February 1997+) • Remuneration of Public Office Bearers Act 20 of 1998 • National House of Traditional Leaders Act 10 of 1998 • Local Government: Municipal Structures Act 117 of 1998 • Public Finance Management Act 1 of 1999 • Local Government: Municipal Systems Act 32 of 2000 • Local Government: Municipal Finance Management Act 56 of 2003 • Local Government: Property Rates Act, 2004 • KwaZulu-Natal Ingonyama Trust Amendment Act 9 of 1997 1.2.1.4 Pre-1994 Legislation assigned by the RSA President to Provincial Premiers i.t.o. section 235 of the 1993 Constitution (e.g. to KwaZulu-Natal): • Pre-1994 KwaZulu legislation • KwaZulu Amakhosi and Iziphakanyiswa Act 9 of 1990 • KwaZulu Land Affairs Act 9 of 1992 • Pre-1994 Natal Ordinances • e.g. Natal Local Government Ordinances (Proclamation 107 of 17 June 1994) © SADC CENTRE (UP)

  11. 1.2 CONTEXT: 1.2.1 CONSTITUTIONAL, STATUTORY AND REGULATORY FRAMEWORK • Pre-1994 RSA legislation: • Parts of the Black Administration Act 38 of 1927 • Regulations prescribing the Duties, Powers, Privileges and Conditions of Service of Chiefs and Headmen, Proclamation 110 of 1957 • Land Regulations, Proclamation R188 of 1969 (parts) 1.2.1.5 Provincial post-1994 legislation: • KwaZulu-Natal Provincial House of Traditional Leaders Act 7 of 1994 (issued i.t.o. 1993 Constitution) • KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Act 5 of 1995 1.2.1.6 Legislation applied by other government departments: • National legislation within the concurrent domain (e.g. Health, Agriculture, Education, etc) • Provincial legislation (e.g. Health, Nature conservation, etc) © SADC CENTRE (UP)

  12. 1.2 CONTEXT: 1.2.1 CONSTITUTIONAL, STATUTORY AND REGULATORY FRAMEWORK 1.2.1.7 Transformation of local government: • 1994-2000 (interim) transitional phase (limited role, excluding many rural areas, participation of TLs) • 05 December 2000: implementation of final phase of democratically elected local government • Wall to wall municipalities (approx. 350 local municipalities) • Development function • Service delivery function • Municipal councils • Ex officio 20% representation without any voting powers • Relationship with municipal councils and ward committees • Duplication of functions etc • 2005: Project Consolidate: weak rural municipalities • KwaZulu-Natal: • 51 local municipalities • 10 district municipalities • 1 metropolitan municipalities © SADC CENTRE (UP)

  13. 1. 2 CONTEXT: 1.2.1 NATIONAL POLICY AND LEGISLATIVE CONTEXT SINCE 1997 • RSA Cabinet decision (Feb 1998): Policy process to be followed by National Legislation • Policy Process: • Status Quo Report (Sept 1999) • Draft Discussion Document (Apr 2000) • DPLG consultation with Key Stakeholders (Apr 2000 – Sept 2000) • Draft White Paper on Traditional Leadership and Governance (Oct 2002) • DPLG consultation with Key Stakeholders (Nov 2002 – Jan 2003) • Draft Framework Bill on Traditional Leadership and Governance (Jun 2003) • DPLG consultation (Jul – Aug 2003) • Final White Paper on Traditional Leadership and Governance (Jul 2003) • Rationalisation of National and Provincial Legislation: • Pilot Programme : joint national-provincial reference group (Oct 2000 – Jan 2001) • Enactment of national Traditional Leadership and Governance Framework Act 41 of 2003 • Expected further developments (April 2005+) © SADC CENTRE (UP)

  14. 1.2 CONTEXT:1.2.2 KEY ELEMENTS OF RSA WHITE PAPER ON TRADITIONAL LEADERSHIP AND GOVERNANCE (2003) FOREWORD INTRODUCTION • Preamble • Objective of the White Paper • Background to the White Paper Policy Process • Summary of Chapters • SETTING THE CONTEXT 1.1 International Experience 1.2 South Africa Context • VISION FOR THE INSTITUTION OF TRADITIONAL LEADERSHIP • TRADITIONAL LEADERSHIP, GOVERNANCE AND DEVELOPMENT 3.1 Background to Traditional Leadership and Governance 3.2 The roles of Traditional Leadership in Governance and Development 3.3 The Institution of Traditional Leadership in Governance and Development 3.3.1 Roles, Functions and Structures within the National Sphere of Government 3.3.2 Roles, Functions and Structures within the Provincial Sphere of Government 3.3.3 Roles, Functions and Structures within the Local Sphere of Government 3.3.4 Guiding Principles and Norms for Allocation of Roles and Functions © SADC CENTRE (UP)

  15. 1.2 CONTEXT:1.2.2 KEY ELEMENTS OF RSA WHITE PAPER ON TRADITIONAL LEADERSHIP AND GOVERNANCE (2003) 3.4 Traditional Leadership and Participation in Politics 3.5 Traditional Leadership and Municipal Boundaries 3.6 Traditional Communities Situated in more than one Province 3.7 Traditional Leadership, Capacity Building and Support • INSTITUTIONAL SYSTEMS 4.1 Structures of Traditional Leadership 4.2 Leadership Positions within the Institution 4.3 Succession to Traditional Leadership Positions 4.4 Salaries, Allowances and Benefits of Traditional Leaders 4.5 Accountability of Traditional Leaders and Structures 4.6 Termination of Service of Traditional Leaders 4.7 National and Provincial Houses of Traditional Leaders 4.7.1 Introduction 4.7.2 The Role of the National and Provincial Houses 4.7.3 Membership of the National and Provincial Houses 4.7.4 Accountability and Remuneration of Members of the National and Provincial Houses 4.8 District Houses of Traditional Leaders 4.9 Khoi-San 4.10 Resolution of Traditional Leadership Disputes © SADC CENTRE (UP)

  16. 1.2 CONTEXT:1.2.2 KEY ELEMENTS OF RSA WHITE PAPER ON TRADITIONAL LEADERSHIP AND GOVERNANCE (2003) • LEGISLATIVE COMPLEXITY 5.1 Continuation of Old Law 5.2 Assignment of Laws 5.3 Current Reality 5.4 Rationalisation of Existing Legislation • CONCLUSION ANNEXURE: Legislation assigned to the Provincial Premiers © SADC CENTRE (UP)

  17. 1.2 CONTEXT:1.2.3 2002-2003 DRAFT NATIONAL FRAMEWORK LEGISLATION • Final Traditional Leadership and Governance Framework Bill (Sept 2003) • DPLG consultation (Sept – Oct 2003) • Enactment of Traditional Leadership and Governance Framework Act 41 of 2003 • Enactment (Dec 2003: assented to) • Commencement (July 2004): dependent on Provincial Legislation • Other legislative initiatives impacting on Traditional Leadership and Communities: • Amendment of National House of TL Act 10 of 1998 • Amendment of Remuneration of Public Office Bearers Act 20 of 1998 • Enactment of Communal Land Rights Act, 2004 • Finalization of Customary Courts Bill, 2005 • Provincial legislation to be drafted and enacted • Expected completion: June 2005 © SADC CENTRE (UP)

  18. 1.2 CONTEXT:1.2.4 OVERVIEW: RSA TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT 41 OF 2003 CHAPTER 1: INTERPRETATION AND APPLICATION • Definitions and application CHAPTER 2: TRADITIONAL COMMUNITIES AND TRADITIONAL COUNCILS • Recognition of traditional communities • Establishment and recognition of traditional councils • Functions of traditional councils • Partnerships between municipalities and traditional councils • Support to traditional councils • Withdrawal of recognition of traditional communities CHAPTER 3: LEADERSHIP POSITIONS WITHIN ISTITUTION OF TRADITIONAL LEADERSHIP Part 1: Introduction • Recognition of traditional leadership positions Part 2: Kings and queens • Recognition of kings and queens • Removal of kings or queens © SADC CENTRE (UP)

  19. 1.2 CONTEXT:1.2.4 OVERVIEW: RSA TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT 41 OF 2003 Part 3: Senior traditional leaders, headmen and headwomen • Recognition of senior traditional leaders, headmen or headwomen • Removal of senior traditional leaders, headmen or headwomen Part 4: General provisions regarding traditional leaders • Recognition of regents • Persons acting as traditional leader • Deputy traditional leaders CHAPTER 4: HOUSES OF TRADITIONAL LEADERS • Houses of traditional leaders in Republic • Local houses of traditional leaders • Referral of Bills to National House of Traditional Leaders CHAPTER 5: ROLES AND FUNCTIONS OF TRADITIONAL LEADERSHIP • Functions of traditional leaders • Guiding principles for allocation of roles and functions © SADC CENTRE (UP)

  20. 1.2 CONTEXT:1.2.4 OVERVIEW: RSA TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT 41 OF 2003 CHAPTER 6: DISPUTE RESOLUTION AND COMMISSION ON TRADITIONAL LEADERSHIP DISPUTES AND CLAIMS • Dispute resolution • Establishment of Commission • Appointment of members of Commission • Vacancies • Functions of Commission • Decisions of Commission CHAPTER 7: GENERAL PROVISIONS • Code of conduct • Transitional arrangements • Amendment of Act 20 of 1998, as amended by Act 21 of 2000 • Short title and commencement © SADC CENTRE (UP)

  21. 1.3 KWAZULU-NATAL1.3.1 BRIEF BACKGROUND • Constituent parts: • Natal province (est. 1845) • KwaZulu homeland (self-governing status 1981) • Political context • 70%+ rural, overwhelmingly in former KwaZulu • 286 recognised traditional communities • Levels of traditional leadership: • 1 King (Ingonyama, Isilo) • Traditional Prime Minister (limited recognition) • 282 Amakhosi • 4 Iziphakanyiswa • 15 000 (unrecognised) Izinduna • Remuneration • Recognised institutions: • 286 Traditional authorities (now Traditional councils) (since 1951) • 4 Community Authorities (since 1951) • 23 Regional Authorities (since 1951) • Provincial House of Traditional Leaders (established 1994) • KwaZulu-Natal Local Government: • 51 local municipalities • 10 district municipalities • 1 metropolitan municipalities © SADC CENTRE (UP)

  22. 1.3 KWAZULU-NATAL1.3.1 BRIEF BACKGROUND • Functions: • Customary law • Statute: • Former KwaZulu: KwaZulu Amakhosi and Iziphakanyiswa Act 9 of 1990 • Former Natal: Regulations prescribing the Duties, Powers, Privileges and Conditions of Service of Chiefs and Headmen, Proclamation 110 of 1957 • Judicial (civil and criminal) • KZN Department of Traditional and Local Government Affairs • Head Office: Pietermaritzburg • Regional Offices • District Officers • Secretaries of Traditional Councils • KZN Department of the Royal Household • Province specific issues: • Political context and change of government (14 April 2004) • Role of monarch (including Draft KZN Provincial Constitution) • Land in former KwaZulu: Ingonyama Trust Land (managed by Ingonyama Trust Board in terms of national legislation) • Code of Zulu Law (Natal) + KwaZulu Act on the Code of Zulu Law © SADC CENTRE (UP)

  23. 4. ISSUES FOR PROVINCIAL ACTIVITY FOUR (OR LESS) PROVINCIAL ACTS: • Substantive Provincial Act • Amendment of Provincial House Act • Provincial Local House Act • Repeal of old order legislation A: SUBSTANTIVE PROVINCIAL ACTS: • Long Title • Preamble • Interpretation and Application (s 1(2) + (3)) • Traditional Councils (s 2(2), 3(1), 3(2), 3(3), 4(2), 5(1), 6 and 7(2)) • Co-operative Governance (s 5) • Leadership positions and recognition of Traditional Leaders (s 11(1), 11(2), 12(3), 13(1), 13(2), 14(2) and 15(2)) • Provincial and Local Houses of Traditional Leaders (s 16(3) and 17(1)) • Role and Functions of Traditional Leadership (s 20) • Conditions of Service of Traditional Leaders (s 27(2) and 27(3)) • Finances and Financial Control (s 6) • Dispute Resolution (s 21) • Implementation of decisions of National Commission (s 26(2)) © SADC CENTRE (UP)

  24. 4. ISSUES FOR PROVINCIAL ACTIVITY • General Provisions (s 28(4), (5) and (6)) • Short Title • Commencement B: DETERMINATION OF PROVINCIAL POLICY: • Identification of province specific issues • Determination of provincial position in respect of, amongst other, the following issues: • Rationalisation of existing legislation • Drafting of Provincial Act on Traditional Leadership & Governance • Reformulation of Codes of Zulu Law and alignment with living customary law • Roles, Powers, Functions and Duties of different levels of Traditional Leadership and Institutions: - King (Isilo) - Traditional Prime Minister (Zulu-speaking communities) - Traditional Leaders (e.g. Amakhosi) - Hereditary Headmen (e.g. Izinduna) - Elected Headmen (e.g. Iziphakanyiswa) - Traditional Authorities (TAs – transformed into Traditional Councils) - Provincial House of Traditional Leaders (PH) - Local House of Traditional Leaders (LH) © SADC CENTRE (UP)

  25. 4. ISSUES FOR PROVINCIAL ACTIVITY • Procedures and norms for identification of successors to Traditional Leadership • Standardization and rationalization of customary and statutory procedures for recognition and installation of Traditional Leaders • Identification and codification of customary roles and functions of different levels of Traditional Leadership • Policy directive regarding Traditional Leaders holding more than one Public Office • Participation of Traditional Leadership in development of Traditional Communities • Appropriate arrangements for accountability towards Provincial Government, Provincial House and Traditional Communities • Compliance with legislation by Traditional Leadership and Institutions (e.g. Public Finance Management Act) • Status of Traditional Leadership and Institutions • Status and remuneration of headmen (e.g. Izinduna) • Arrangements for appropriate service delivery partnerships by Local Government within co-operative government framework with Traditional Leadership and Institutions: • Focus on collaboration • Coordination as regards planning, implementation, and monitoring + evaluation • Eradication of duplication © SADC CENTRE (UP)

  26. 4. ISSUES FOR PROVINCIAL ACTIVITY • Mechanisms to deal with: • Succession • Claims • Disputes • Establishment of IGR Structures: e.g. • Traditional Councils + Local Municipalities • Local Houses + District Municipalities • Provincial House + Local Houses • Provincial House + Traditional Councils • Provincial House + Provincial Government (Executive + Legislature) • Provincial Statutory Body consisting of Provincial Government, Local Government and Traditional Institutions • Establishment of Interdepartmental Committee on Traditional Leadership + Institutions © SADC CENTRE (UP)

  27. 4. ISSUES FOR PROVINCIAL ACTIVITY C: REPEAL (RATIONALISATION) OF EXISTING LEGISLATION: • Establishment of National Team on Legislation relating to Traditional Leadership • Two levels: • National level (including Key National Departments: re-activation of Oct 2000 – Jan 2001 National Reference Group) • Provincial level • Procedure to be followed: • Identification of all principal and subordinate legislation at National, Provincial and Local level (pre- and post- 1994) • Inventorisation • Analysis • Determination of legislation to be: • Retained • Amended • Repealed • Alignment with: • Constitutionality of to be retained or amended legislation • Binding Framework Policy and National Framework Legislation • Provincial Policy, Cabinet decisions and Legislation • Drafting of new substantive and amending legislation © SADC CENTRE (UP)

  28. 5. IMPLEMENTATION: NATIONAL AND PROVINCIAL • Enactment process: • Rationalisation of existing legislation • Promulgation of subordinate legislation • Determination of commencement dates • Statutory structures: • Establishment of new structures (National Commission, Local Houses) • Reconstitution of existing structures (National House, Provincial Houses, Traditional Councils) • Government level: restructuring • Identification of key departmental functions etc. • Determination of appropriate departmental structures + restructuring of departments • Drafting of relevant programmes • Allocation of budgets for implementation of programmes • Appointment of staff to restructured directorates • Establishment of administrative systems: • Drafting and implementation of implementation systems • Establishment and implementation of monitoring, evaluation, supervision and intervention systems • Drafting and implementation of Finance Management systems (PFMA compliant) • Drafting and implementation of Performance Management systems • Implementation of various programmes, amongst others: • Training of statutory structures • Training of staff • Training of Traditional Leaders • Training of National, Provincial and Local Government officials © SADC CENTRE (UP)

  29. TRANSFORMATION OF INTERNAL GOVERNANCE OF TRADITIONAL STRUCTURES AT LOCAL LEVEL 2.1 Organisational Structure, Division of Powers and Role Differentiation • 1994 – 2004: • King, Amakhosi, Izinduna • Continuation: • Regional, Traditional and Community Authorities • Continuation of management of institution • Premier: Appointment letter • Roles, powers, functions and duties (customary, statutory and in practice) - as before • Relationship between levels • Impact of provincial political divisions • Establishment of KZN Provincial House of Traditional Leaders • Non-conferment of criminal and civil jurisdiction (1994-1999) • Limited support and funding • No new focussed mechanisms to deal with deposement, claims and disputes • 2005+: • Premier: recognition of Amakhosi (King: President) • Management of institution • Traditional Councils (recomposition, partly elected + gender representation) • Roles, powers, functions and duties (customary, statutory and in practice) • Traditional councils: supportive and partnership (with local government) • Traditional leaders: Still unclear • Relationship between levels • Impact of provincial political divisions • Establishment of KZN Local Houses of Traditional Leaders 2.2 Selection and Related Mechanisms • Two phased process: • Customary (role of royal family, Traditional and Regional Authority) • Government: • - 2004: Appointment letter • 2005+ : Formal recognition • Gender issue (acting and permanent Amakhosi) © SADC CENTRE (UP)

  30. TRANSFORMATION OF INTERNAL GOVERNANCNE OF TRADITIONAL STRUCTURES AT LOCAL LEVEL 2.3 Participatory Decision-Making • - 2004: no prescribed statutory processes to enforce participation by • Community members in general • Females and the youth • 2005+: • Reconstitution of Traditional Councils and open proceedings • Annual Imbizo 2.4 Responsiveness, Accountability and Transparency • - 2004: no prescribed statutory process to enforce, bookkeeping weak • 2005+: • Annual imbizo • Record-keeping (PFMA compliant) • Gender sensitivity • National Commission on Claims and Disputes • Removal and Disciplinary Processes • Code of conduct 2.5 Local Perceptions of Traditional Structures • Community level • Disputes and claims • Local government (municipal councils and ward committees) © SADC CENTRE (UP)

  31. STATUTORY ROLES OF TRADITIONAL STRUCTURES AND AUTHORITIES IN LOCAL GOVERNANCE 3.1 Representation in Official Governance Structures • Formal structures • National House of Traditional Leaders • Provincial House of Traditional Leaders • Local Houses of Traditional Leaders • Traditional Councils • Non voting members (ex officio) of municipal councils • Possible establishment of statutory KZN coordination council • Informal structures • E.g. National Aids Council 3.2 Participation in Consultation Mechanisms • At present no formal consultation outside of the National House and Provincial House context • Informal participation as regards ad hoc consultation with CONTRALESA (Council of Traditional Leaders of South Africa) © SADC CENTRE (UP)

  32. STATUTORY ROLES OF TRADITIONAL STRUCTURES AND AUTHORITIES IN LOCAL GOVERNANCE 3.3 Informal Inclusion • Membership of Izinduna (Headmen) in a number of ward committees • Informal consultation by Local Government at both political and administrative level 3.4 Recognition of Customary Law • Customary law recognised in terms of section 211 of the Constitution • Traditional Leaders, Local Houses, Provincial House and National House responsible for the preservation of development law • Conferment of criminal and civil jurisdiction on Traditional Leaders © SADC CENTRE (UP)

  33. FUNCTIONS OF TRADITIONAL STRUCTURES IN LOCAL DEVELOPMENT AND SERVICE PROVISION 4.1 Exclusive Responsibility of Traditional Structures • Preservation, maintenance and development of customary law • Zulu culture, history and tradition • Civil and criminal jurisdiction • Peace and stability within Traditional Communities • Conflict resolution within Traditional Communities • Promotion of Constitutional values and principles • Promotion of provincial unity • Carrying out customary functions not inconsistent with National and Provincial legislation • Administer affairs of Traditional Communities • Promote indigenous knowledge systems for sustainable development for disaster management © SADC CENTRE (UP)

  34. FUNCTIONS OF TRADITIONAL STRUCTURES IN LOCAL DEVELOPMENT AND SERVICE PROVISION 4.2 Areas of Shared Responsibility with Local Government • Work together with municipalities in identification of community needs • Facilitate involvement of Traditional Community in amendment of IDPs • Recommend governmental interventions as regards development and service delivery • Participate in development of policy and legislation at local level • Participate in development programmes of local, provincial and national government • Promote ideals of cooperative government, integrated development planning, sustainable development and service delivery © SADC CENTRE (UP)

  35. FUNCTIONS OF TRADITIONAL STRUCTURES IN LOCAL DEVELOPMENT AND SERVICE PROVISION 4.3 Exclusive Responsibility of Local Government The following local government matters to the extent set out for provinces in section 155(6)(a) and (7): • Beaches and amusement facilities • Billboards and the display of advertisements in public places • Cemeteries, funeral parlours and crematoria • Cleansing • Control of public nuisances • Control of undertakings that sell liquor to the public • Facilities for the accommodation, care and burial of animals • Fencing and fences • Licensing of dogs • Licensing and control of undertakings that sell food to the public • Local amenities • Local sport facilities • Markets • Municipal abattoirs • Municipal parks and recreation • Municipal roads • Noise pollution • Pounds • Public places • Refuse removal, refuse dumps and solid waste disposal • Street trading • Street lighting • Traffic and parking © SADC CENTRE (UP)

  36. FUNCTIONS OF TRADITIONAL STRUCTURES IN LOCAL DEVELOPMENT AND SERVICE PROVISION Responsibility of Local Government Provincial inputs possible: • Air pollution • Building regulations • Child care facilities • Electricity and gas reticulation • Firefighting services • Local tourism • Municipal airports • Municipal planning • Municipal health services • Municipal public transport • Municipal public works only in respect of the needs of municipalities in the discharge of their responsibilities to administer functions specifically assigned to them under this Constitution or any other law • Pontoons, ferries, jetties, piers and harbours, excluding the regulation of international and national shipping and matters related thereto • Storm water management systems in built-up areas • Trading regulations • Water and sanitation services limited to potable water supply systems and domestic waste-water and sewage disposal systems © SADC CENTRE (UP)

  37. FUNCTIONS OF TRADITIONAL STRUCTURES IN LOCAL DEVELOPMENT AND SERVICE PROVISION 5.1 Provincial Departmental Structures and Systems • Traditional Affairs • Land Affairs • Support services • Traditional administration • Traditional constitutional matters • Local Government • Corporate Services • Rural and Urban Development Planning • Development Planning 5.2 Local Departmental Structures and Systems • No provision at present • All IGR structures and systems still need to be established and implemented © SADC CENTRE (UP)

  38. CONCLUSION 6.1 Prospect and Challenges for Future Transformation • Judicial powers and functions, as well as dispute resolution • Land allocation, management as well as the conversion form communal tenure to secure new order rights (which is bankable and may eventually become full ownership) • Customary law transformation as regards the customary law of marriage and of succession • Training and capacity building (of all traditional leaders and institutions, as well as of officials (especially local government officials)) • Remuneration of the approximately 12 000 headmen • Establishment of mechanisms that would ensure that traditional institutions as organs of state comply fully with the constitutional provisions regarding cooperative government, public administration, accountability (towards communities and government), transparency, inclusivity and participation • Mainstreaming progressive compliance with the constitutional agenda regarding gender and youth in respect of representation and participation in decision-making © SADC CENTRE (UP)

  39. CONCLUSION • The establishment of partnerships between municipalities and traditional councils • Provisioning of resources (human, financial, infrastructural, etc.) to traditional institutions • The restructuring of provincial and local government • The alignment of all local and provincial integrated development plans with the new framework, and the focussed provisioning of resources that would ensure successful implementation • The introduction of performance management structures and systems • The establishment and implementation of comprehensive monitoring and evaluation systems 6.2 Impact of Non-Traditional Institutions • See above © SADC CENTRE (UP)

  40. CONCLUSION 6.3 Contributions and Limitations of Traditional Structures as regards Enhanced Local Governance and Enhanced Local Development • See above – dependent on the establishment of effective intergovernmental relations structures and systems, capacitating and financial resources 6.4 Impact of Interaction with Local Government on Legitimacy and Perpetuation of Traditional Structures • See above – new framework is to be implemented as from 01 July 2005 © SADC CENTRE (UP)

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