DEPARTMENT OF TRADITIONAL AFFAIRS

1. ROLES AND FUNCTIONS OF TRADITIONAL LEADERS:a presentation to the portfolio committee on cooperative governance and traditional affairs DEPARTMENT OF TRADITIONAL AFFAIRS

2. The institution, status and role of indigenous leadership and institutions is recognised in section 212 of the Constitution, which provides that–“(1) The institution, status and role of traditional leadership, according to customary law, are recognised, 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.” DEPARTMENT OF TRADITIONAL AFFAIRS

3. Policies and legislation have been put in place to give effect to the above Constitution injunction, and the White Paper on Traditional Leadership and Governance as a government policy, calls upon the institution of traditional leadership to embrace democracy and the principles of equality, efficient governance, transparency and accountability. Traditional leaders are required to pay special attention to the objectives of the White Paper, to speed up the process of transformation of the institution, which is the primary objective of the White Paper.Other objectives of the White Paper include amongst other things creating an institution of traditional leadership that responds and adapts to change, promotes freedom, human dignity and the achievement of equality and non-sexism, and an institution that promotes democratic governance. DEPARTMENT OF TRADITIONAL AFFAIRS

4. The preamble to the Traditional Leadership and Governance Framework Act, 2003 states clearly that the State seeks “to transform the institution of traditional leadership in line with the constitutional imperatives”, and specifically provides that “the State must respect, protect and promote the institution of traditional leadership in accordance with the dictates of democracy in South Africa”.In giving effect to the constitutional injunction alluded to above, the preamble to the Traditional Leadership and Governance Framework Act, 2003 further enjoins the State to transform the institution of traditional leadership so that it is “in harmony with the Constitution and the Bill of Rights”. The transformation of the institution of traditional leadership in line with the Constitution and the Bill of Rights is a non-negotiable imperative that is on the agenda of the State so that the–“- democratic governance and the values of an open and democratic society may be promoted; and - gender equality within the institution …... may progressively be advanced”. DEPARTMENT OF TRADITIONAL AFFAIRS

5. In terms of the legislation, it is important that institutions of traditional leadership–- promote democratic governance and the values of an open and democratic society; - progressively advance gender equality within the institutions of traditional leadership;- promote freedom, human dignity and the achievement of equality and non-sexism;- strive to enhance tradition and culture;- promote nation building and harmony and peace amongst people;- promote the principles of co-operative governance in their interaction with all spheres of government and organs of state; and- promote an efficient, effective and fair dispute-resolution system, and a fair system of administration of justice. DEPARTMENT OF TRADITIONAL AFFAIRS

6. Whilst traditional courts promote restorative justice based on community rehabilitation of the offender, where the family and the institution of traditional leadership play a central role in dispensing and overseeing the implementation of this type of justice, the formal Courts recognized in the Constitution, generally apply punitive justice, which is the primary characteristic of the Roman Dutch Law. To the extent that this is so, traditional courts are an instrument for building social cohesion, unity and peace, whilst the formal courts primarily punish offenders, and if necessary, remove them from society. DEPARTMENT OF TRADITIONAL AFFAIRS

7. It is important to note that the Constitution and the legislative framework demonstrates that in a constitutional and democratic State– “The institution of traditional leadership cannot be immune to change and transformation. The challenge is ensuring that in doing this, the institution is not undermined and that it is kept true to African values and that its role is clearly defined in relation to that of the democratic state within the framework of co- operative governance.” DEPARTMENT OF TRADITIONAL AFFAIRS

8. The White Paper requires that provision be made to allocate the following additional roles to Traditional Leadership:“In addition, national and provincial departments, through legislation or other means, shall (own emphasis) provide for the Traditional Councils and their leadership, among others, to:(i) Arts and Culture - promote indigenous knowledge systems, music, oral history and commemorative events; - promote the preservation of heritage resources;(ii) Land and Agriculture - play a role in land administration; - advise government on agricultural development and improvement of farming methods; - promote sustainable use of land; - advise government and participate in programmes geared to prevent cruelty to animals;(iii) Health and Welfare - advise and play a role in traditional health practices and rituals including initiation schools; - advise and participate in nation-wide health campaigns, e.g. cholera, HIV/AIDS, TB, etc.; - facilitate community access to pensions and social grants; - promote the protection of the vulnerable, including children, the elderly and the disabled; DEPARTMENT OF TRADITIONAL AFFAIRS

9. (iv) Justice, Security and Home Affairs - play a role in the administration of the traditional system of justice; - play a role in the provision of safety and security to traditional communities; - play a role in the registration of births, deaths and customary marriages; - act as authorities for the administration of oaths; - play a role in the restoration of peace in rural areas;(v) Economic Development - support local economic development initiatives;(vi) Environment and Tourism - promote environmental management; - promote sustainable use of cultural resources within communities;(vii) Natural Resource Management - promote sustainable traditional approaches to water resource management; and(viii) Communication and Information - play a role in communication and information dissemination of government policy and programmes.” DEPARTMENT OF TRADITIONAL AFFAIRS

10. It is important also to note that the White Paper determines a number of binding Guiding Principles and Norms for the Allocation of Roles and Functions to Traditional Councils and their leadership:“In providing for these roles, national and provincial departments must: (a) consult with the national Minister or the provincial MECs responsible for Traditional Leadership matters/issues; (b) consult with the relevant structures of Traditional Leadership;(c) ensure that the allocation of roles and functions is consistent with the Constitution and applicable legislation;(d) take into account customary law and customary practices of the different communities;(e) strive to ensure that the allocation of roles and functions is accompanied by resources and, where necessary, appropriate measures for accounting for the resources are put in place;(f) ensure that, to the extent possible, the allocation of such roles and functions applies uniformly in areas where the institution of Traditional Leadership exists; and(g) promote the ideals of co-operative governance, integrated planning, sustainable development and service delivery.” DEPARTMENT OF TRADITIONAL AFFAIRS

11. In responding to the need to provide for a role for traditional leadership at the local level of community organisation, effect must be given to the constitutional and legislative injunctions contemplated in Chapter 12 of the Constitution and sections 19 and 20 of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003)(TLGFA). It must however be noted that section 19 does not allocate any specific roles and functions to Traditional Leaders, except for customary roles and functions, and whereas the White Paper indicated a peremptory allocation of roles and powers to Traditional Leaders, section 20 only provides for the discretionary allocation of roles and functions to Traditional Leaders. DEPARTMENT OF TRADITIONAL AFFAIRS

12. As regards the statutory framework for the allocation of roles and assignment of functions, section 20 of the current Act provides for the following interlinked steps: - Section 20(1) provides for a decision on the allocation of roles to Traditional Leaders and Traditional Councils by the national executive/provincial executive by means of a resolution. - Section 20(2) then provides for the assignment of the performance of certain parts of functions (as identified by the line functionary Minister, MEC or Board (as the case may be)) by means of a specific, focused, delegation, subject to pre-compliance with a number of requirements as set out in section 20(2). - Section 20(3) provides for the establishment of the Monitoring and Evaluation system. - Section 20(4) determines that if resources were made available (in terms of section 20(2)), and have not been used appropriately, they may thereafter be removed from the entity to whom it had been transferred. DEPARTMENT OF TRADITIONAL AFFAIRS

13. Section 20(1) vests in national and provincial governments the discretion to allocate additional roles and functions to Traditional Leaders and Traditional Councils, by means of legislation or by means of other measures (e.g. Cabinet / Provincial Executive Council resolution, departmental programmes, etc). Unlike the White Paper (see above), it also does not suggest what specific roles Traditional Leaders and Traditional Councils should be given within the listed fields or functional domains, by the national and provincial governments and other Organs of State. DEPARTMENT OF TRADITIONAL AFFAIRS

14. It is generally submitted that the determination of true basic needs in rural communities must be approached in a sensitive manner and in close co-operation along essentially two distinct but complementary routes, being on the one hand, the pro-active route according to which government takes the initiative directly in facilitating the debate on the provision of basic needs at community initiatives such as those facilitated and managed by Traditional Leaders. Issues such as job creation should also involve Traditional Leaders as active role players. The need for the creation of jobs is manifest throughout the country in all sectors and at all levels. Employment creation is therefore envisaged as not the sole jurisdiction or responsibility of a single agency or department or government but must be the preoccupation of all sectors which obviously includes the involvement of Traditional Leaders and their Councils. DEPARTMENT OF TRADITIONAL AFFAIRS

15. The housing needs especially in traditional areas are of great concern to traditional councils who are eager and willing to become involved in housing development projects. It is therefore submitted that housing development projects be extended to Traditional Communities and ceased to be regarded as the urban programmes. It is further submitted that the role of the State should not only be to regulate and facilitate housing development with the already established private companies. Wherever practically feasible, local contractors and sub-contractors should play a major role in the delivery system. This arrangement will in turn create jobs. Bearing in mind the high level of illiteracy, ignorance and diseases, it is submitted that educational and health matters be given a strong consideration and first priority in the rural areas. DEPARTMENT OF TRADITIONAL AFFAIRS

16. Traditional leaders as custodians of the sacrosanct values and inspirations believe that the programme on Democratic Transformation is an important tool that can assist them to further consolidate and preserve their culture, traditions and languages.The land question for traditional councils remains a crucial point of debate. The evolution of South African land policies removed most powers and functions that Traditional Leaders had on land administration in terms of their customary laws and gave it to Government. These powers were returned as added functions to the Traditional Leadership. With the said change, Traditional Leaders were managing land on behalf of government. This is contrary to the actual position of customary law of African communities. DEPARTMENT OF TRADITIONAL AFFAIRS

17. Traditional leaders have a definite role to play in the rural economy. The constitutional principle that local government should bring basic amenities to the people at grassroots level must incorporate and include traditional leadership and institutions as integral component of harmonising the relationships between Traditional Leaders and Municipalities. An effective co-operative model of governance is an incredible opportunity which can be utilised to deepen co-operation, communication and consultation between all organs of state and traditional leaders and institutions. DEPARTMENT OF TRADITIONAL AFFAIRS

18. Democratisation of governance, decision-making, law making processes and decision implementation is impossible without effective traditional leadership participation, particularly in the development of traditional communities. Despite the anomalies and defects inherent in the institution of Traditional Leadership, it would be inappropriate to reduce their powers particularly in matters of governance. Traditional leaders control vital resources such as land and play a very important role to any service delivery and development strategies to be implemented in the rural areas. Furthermore, since Traditional Leaders are the authentic voice of the communities in the rural areas, they must be enabled to take their rightful place in the modern governance and all transformation processes. The reason being that traditional leadership is a voice, which articulates and translates aspirations and interests of the people on matters of rural development and traditional governance. DEPARTMENT OF TRADITIONAL AFFAIRS

19. To give full effect to the intention of the Constitution, the policy and the regulatory framework, as well as to the spirit and letter of the Cabinet Resolution on the allocation and assignment of roles and functions, it is strongly recommended that the Department takes the necessary steps to address these issues in a comprehensive manner so as to ensure the establishment and implementation of a coherent system of governance to provide the framework for regulating the prescribed support to be given to the three spheres of government by traditional institutions. Some of these key issues are: - Partnerships between Traditional Councils and municipalities; - Identification of additional roles and functions to be allocated to local houses; provincial houses and the National House of Traditional Leaders, as well as, possibly, to the Commission on Traditional Leadership Disputes and Claims; - Establishment of, as IGR structures, political and technical MINMECs on Traditional Affairs (and the allocation of specific roles and functions to these structures); DEPARTMENT OF TRADITIONAL AFFAIRS

20. - Allocation of funding for training of Traditional Governance Institutions; - Training of national and provincial government officials, Traditional Leaders and Traditional Councils, to ensure the effective management and implementation of allocated roles and functions; - The development, establishment and implementation of Monitoring and Evaluation, impact assessment, reporting and intervention mechanisms (structures and systems); - An audit of the capacity of Traditional Leaders and Traditional Councils, as well as of available infrastructure, human resources, financial resources and needs; - An audit of all Traditional Councils that have not yet been reconstituted; - The implementation of training programmes of Traditional Leaders and Traditional Councils; - The implementation of the programme of national support to Traditional Leaders and Institutions; and - The redrafting of section 20 of the Act to ensure a uniform approach as regards the allocation of specific roles and functions to Traditional Leaders. DEPARTMENT OF TRADITIONAL AFFAIRS

21. DEPARTMENT OF CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS • THANK YOU