A SUBMISSION ON THE

TRADITIONAL LEADERSHIP

AND

GOVERNANCE FRAMEWORK BILL

CALLED FOR BY

THE PORTFOLIO COMMITTEE OF PARLIAMENT

OF THE

STANDING COMMITTEE ON PROVINCIAL AND LOCAL GOVERNMENT

11 September 2003

 

COMMENTS AS PER GOV. GAZETTE N. 25155, (2003)

Page N

Title and section (S) and/or sub-section

Add = ( )

Additions, Motivations and/or comments ( ) = add

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DRAFT BILL

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PREAMBLE

Whereas (1)

 

 

 

 

 

And Whereas (2)

 

And Whereas (3)

To provide for................

(add)...recognition of (indigenous and traditional councils)

Motivation: The word traditional in the case of the Khoi-Khoi and Saan people or any of the South African Indigenous minorities, has a tendency to isolate and marginalise the assimilated Indigenous Peoples groups. Many of these groups are in the process of Revitalising and Reclaiming their Indigenous identity according to the Rights enshrined in International Conventions and our Constitution. Thus the word Indigenous must be included to read with the Traditional throughout the Bill as (Traditional - Indigenous)

To restore the integrity................

(add).....customary law and practices..(including all Indigenous Rights enshrined in the Indigenous and Tribal Peoples Convention, ILO 169 and the Declaration on the Rights of Indigenous peoples as ratified by the Government of the Republic of South Africa as a member State of the United Nations).

Motivation: This matter was continuously raised within the process as a resolution.

Add:

(An indigenous people who as a result of conquest or colonisation have adapted to a changing national South African situation, changing economy and to a changing environment and as a result fall into a special category of ethnic minorities.

Motivation: This is of specific application to the Indigenous minorities in South Africa who occupied the Land before the dominant population.

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And Whereas (4)

 

 

 

 

 

 

 

 

 

 

 

 

 

PART (ONE) (1):

INTERPRETATION AND ADMINISTRATION OF (THE) ACT

 

Definitions

"Chief"

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

" Chieftainship"

The State must.........................

.......dictates of democracy in South Africa:

Add: (and the provisions made in terms of the nature and the fundamental principles of International Law ratified by the R.S.A Government affecting the life and work of Indigenous minorities herein referred to as Conventions).

The institution of Traditional (-Indigenous) leadership must -

  • Add: Promote respect for diversity by

Recognising the multi ethnic and multi- cultural character of South Africa.

 

 

 

 

 

 

 

 

"Chief" means............. " Chiefness"

Add: (Khoebaha, Khoeque, Khoedana, Khoesanhuma and humque)

("Chiefness" means the same as opposed to

Chieftainess)

Motivation: "Chief" is an Anglicised title for an indigenous / traditional leader. The dimunitive of which is " Chieftain" ie. Son of a "Chief" thus the title "Chieftainess" is the dimunitive of "Chiefness".

In the Khoi-Khoi (Khoi Saan) titular terms the masculine and feminine terms are recognised by a "b" or an "s" eg. In Nama Khoe(b) = Queen

Khoebque = King

 

Chieftainship should be changed to (Chiefship). See motivation under "Chief" and also "Kingship"

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(add)

 

 

 

 

 

 

 

(add)

 

 

 

 

 

(add)

" customary institution or structure"

 

 

 

 

 

 

 

 

" Headman"

 

 

 

 

 

 

"King"

 

 

 

 

("Indigenous")

 

 

 

 

 

 

 

("Indigenous Council" or Tribal House Council" )

 

 

 

 

(" Royal or National Upper Council of Chiefs" )

Add: (Constitutional Accomodation) structure

Motivation: The Khoi Khoi and Saan Indigenous Leadership have a structure established by the R.S.A State to lobby and advocate for Constitutional Accomodation of the Khoi-San peoples Rights. By the right to Self-Determination (S235) the Leadership have formed their own structures to formulate customary law. These are all in developmental stages of establishment towards a Customary Institution and Structures.

"Headman" should be changed to (Headperson / Counsellor or Councillor)

Motivation: In terms of the gender equality Constitutional non-sexist recommendations this title would be seen as more suitable.

 

 

"King" include the Khoi Khoi title of Khoebaha, Khoeque and Gaob or Gaoab

Queen"= Gaos

 

Note: "b" and "s" to be placed carefully behind the titles " Khoesan and "Khoesque" and "Gaos"

"Indigenous" means communities, nations and peoples as those defined in terms of the Cobo Study of the Problem of Discrimination Against Indigenous Populations (E / CN.4/Sub 2 / 1986 / 7 and add 1 - 4) as prepared by Special Rapporteurs to the United Nations Mr J. Martinez Cobo and Dr. E.I Daes as accepted by the Charter of the Un and the International Bill of Human Rights.

("Indigenous Council") should be added and (means a Tribal House Council serving the Khoi-Khoi or Saan tribally named people or community under a Chief or Chiefness in a demarcated area and which is an entity recognised, registered and accredited by the National Upper Council of Chiefs.

Royal or Khoi-Khoi Upper Council of Chiefs means the highest authorative body serving as the core institution consisting of ceremoniously anointed Chiefs and Chiefnesses by a Paramount Chief and Council.

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Administration of the Act.

2.

....designated by the President.

Add ( in consultation with the Traditional Indigenous Leadership)

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Add ( ) PART 2:

TRADITIONAL (INDIGENOUS) COMMUNITIES (NATIONS AND PEOPLES) AND TRADITIONAL (INDIGENOUS, COMMUNITIES, NATIONS AND PEOPLES) COUNCILS

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Recognition of traditional communities

 

S3. (1) (b) Observes........

 

S3. (1) (c) (Blank)

 

 

 

 

 

S3. (1) (d)

 

 

 

 

 

 

Establishment and recognition of (a) Traditional -

Add - (Indigenous, Community, People or Nation) council

4 (1) (2) and (3) accepted

Add throughout to the text (Indigenous Community people or Nation) where applicable.

Add 4 (4)

Add (indigenous) communities, (nations and peoples) to read (Recognition of traditional-indigenous Communities, nations and peoples)

(b) add .........indigenous and (cultural heritage according to their right to Self-Determination (S235) of Act 108 1996, The Constitution)

(c) add ( has identified itself as in terms of the General Policy, Part (1), Article one(1), Section 2 of the Indigenous and Tribal Peoples Convention: ILO 169 which states "Self-Identification as indigenous or fundamental criterion for determining the groups to which the provisions of the Convention apply")

add (observes a system of customary law and embraces the prescriptions of the Constitution (Act 108, 1996) and all other International customary law and Conventions, declarations and draft declaration pertaining to the enforcement of Indigenous Peoples Right.)

 

 

 

 

 

 

 

 

 

 

 

 

 

(4) Add (Should such a Council be established, the Premier must accept recognise and acknowledge only those who in terms of the criteria set by the National Upper Council or Royal House and who have been through the SQR process of the National body as set by the DPLG

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Functions of traditional councils

S5 (1) (a) - (l)

Add (m) and (n)

 

 

 

 

 

 

 

S5 (2) (a) - (d)

Add (e) and (f)

 

 

Add (m) Promote and perform the recommendations made by the UNHR in its various documents, towards the indigenous communities, peoples and nations up liftment and participation in the issues affecting their Indigenous Right

Add (n) Exercise and perform a networking role and function among themselves as traditional councils to share information which will enhance their functions outlined in this Bill (a) - (m)

Agreed

Add (e) (Provincial legislation must make provision for the capacity-building of all traditional leaders in these areas so that the status of this institutions will not be drawn into disrepute)

(f) Add Endorse a code of discipline and adhere to the prescriptions thereof as applicable to all public-office bearers.

Section: Local Government - Co-Operative Governance

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Partnerships between municipalities and Traditional Councils.

S6 (a) - (b) (i) and (ii)

 

Agreed

Provincial Government - ( Co-Operative Governance)

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Support to Traditional Councils:

S7 1(a)

Add (b)

 

 

 

 

 

 

 

Withdrawal of recognition of traditional communities

S8

 

(b) Provincial Governments must co-operate with the Provincial Houses of Traditional leaders established within a Province, or make provision for the

establishment of such a provincial House of Traditional Leaders so as to allow Traditional Councils to perform and fulfil their functions in accordance with Provincial competencies.

Comment only!

It is felt that this Section 8 is highly controversial. It however highlights the concerns expressed by the National Khoi-San Council in its numerous submissions made to the Task Group on the Bill, Parliamentary Standing Committee Green paper process and the House of Traditional Leaders on the matter of INDIGENOUS TRADITIONAL.

In this section the Traditional status of communities can be withdrawn or relinquish. Conversely Indigenous

Identification cannot cease, be withdrawn or relinquish.

Note: This is highlighted by Dr Erica-Irene Daes, Chairperson-Rapporteur of the United Nations Working Group on Indigenous Peoples who has noted that Special Rapporteur Mr Jose M. Cobos' definition of indigenous communities, peoples and nations, highlights the following elements:

  1. the distinctiveness of indigenous peoples
  2. the impact of colonialism on indigenous peoples
  3. their "non-dominance at present", which implies that some form of our marginalisation and discrimination exists and justifies action by the [International Community] ceases to be 'indigenous' if, as a result of [any] measures taken for the full realisation of its rights it were no longer non dominant.
  4. Daes, Erica-Irene (1996) Pacific Island Workshop on the United nations Draft Declaration on the Rights of Indigenous Peoples, Sura Fiji

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S8 continued comment on withdrawal

Concerns expressed in the Khoi-San consultative process over section 8 is the fact of "Coloured Persons of Indigenous Khoi-San Decent" who now wish to invoke the critical factor of Self-identificationas Indigenous in their Khoi-Khoi and San Ancestral Land now called by the colonial name South Africa are once again made vulnerable to being called or branded along racial classification lines. This is if this legislative power is one again put into the hands of State officials. The definition of 'indigenous' can only become effective if the individual is made fully aware of their right to the widely accepted authorative and binding definition. This manipulation of indigenous terms must thus be avoided and left totally to the person to exercise this right as enshrined in the various Indigenous Peoples Conventions.

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Merger or division of Traditional Communities

S9 (a) and (b)

Comment only!

This Bill should not only be applicable to rural areas where Chiefs as Traditional Leaders exercised authority over a community (or tribe) residing in a geographically demarcated area now declared a municipality. This is understood to be traditional land

occupied by the traditional community. Such lands or territories occupied by communities must remain sovereign ancestral territories or communities properties. A Premier as such, thus cannot fill the role as an owner over the communities regarding their status as traditional communities or their traditional lands and territories.The system of merging or dividing those communities in terms of the Bill does not mention land or territories but only [peoples] understood to be communities. This is thus incompatible with any legal instruments dealing with the rights of indigenous, traditional, or tribal peoples.

Consideration must be given to the Khoi-San communities, especially the San when dealing with merging and divisions. The San Indigenous peoples groups have been traumatised by the Westernised system of partitioning of Southern Africa into sovereign territories as treatied at the Berlin Conference of 1886. Up and until very recently, they have still been the subject of merger and division in South Africa, Namibia, Botswana and Angola. Entire communities have been disrupted which requires them to be placed into a special category of communities. A close-second to this type of classification is the 'so called Coloured of Khoi-Khoi descent who during apartheid years were separated into Westernised communities but along racial lines. It thus leaves a modern Westernised Government with a dillema since communities are still classified along these lines and have to some extend come to accept this community-style. However, Traditional Leaders have met from Black and Khoi-Khoi communities to address this matter in the Western Cape province. Both are fully aware of the need to deal with this matter since it is predominantly a Khoi-Khoi territory in which large Black, mainly Xhosas areas are established. The great respect shown towards each other when dealing with this manner in a co-operative governance with the provincial Government must be continued. It could serve as a model when dealing with merger or division issues in an urban context.

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PART 3: LEADERSHIP POSITIONS WITHIN THE INSTITUTION OF TRADITIONAL LEADERSHIP

Recognision of traditional leadership positions

S10 (a) Kingship

(b) Chieftainship (change to (Chiefship)

  • Headmanship (change to Headpersonship)
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    S10 (b) and (c)

     

     

     

     

     

     

     

    Comment only

    In the Khoi-Khoi ranks of Traditional-Indigenous Leadership the title of "Kingship" did exist. The position was recognised by the invading and settling European Governments. The last of the titles is about

    1707 for Khoebaha Goeboe. A more diminished title " kaptein" remained in place up and until today especially in the Northern Cape and Namibian territories.

    Post our new dispensation in 1994, a Khoi-San Renaissance as part of the African Renaissance took place. Kingship was not considered due to the great losses and disruption to Khoi-Khoi leadership resulting from the 13 February 1713 smallpocks epidemic in which hundreds of Khoi-Khoi died. Kinship or Goabship was taken by South African Khoi-Khoi Kings and Leadership into Namibia where it still remains and is recognised. Proof of this is the fact that Gaob Hendrik !Nanseb Witboois appears on their paper currency/notes. In this Khoi-Khoi hero's own handwriting is written " Ich bein Koninck Hendrik Witbooi." The German Government recognised and acknowledge his claim. He was born in Pella in South Africa as were many of the Khoi-Khoi Royalty. Thus we the Khoi-San Leadership are not creating a royal house which did not exist in our traditional leadership. Instead we are exercising a right of revitalising our Kingship in South Africa. However until the Upper House Council of Khoi-Khoi Chiefs re-instate such a person it will remain a vacant leadership position.

     

    Accepted with changes to the wording

    ( (b) Chiefship - Chiefnesship)

    ( (c) Headpersonship)

    Motivation: Chieftainship is for the successor of the Chief because in English lexicographical terms the dimunitive of ""Chief""is Chieftain thus the position is Chief --Chiefship and Chieftain -Chieftainship

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    14/15

    Recognition of Traditional Leader(s)

    Add (s) or change title to read ( Recognition of (a) Traditional Leader

    S11 (1) (a) (b)

    (2) (a) (b)

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Recognition of (a) Regent

    S12

    1. (a) - (4)

    (Recognition of a) Person acting as (a) Traditional Leader

    S13 (1) (a) (b) - (2) and (3)

    Deputy Traditional Leaders

    S14 (1) (a), (b), (c) and (e)

    Add (f)

     

     

     

     

     

     

     

     

    S14 (2) (a), (b)

    S14 (3)

     

     

     

     

     

    S11, 1(a)

    1(a) The royal family (or the Upper Royal Executive Council) concerned must..............

    Motivation: The Khoi-Khoi and San Traditional Indigenous Leadership used a Paramount Chief to conduct the ceremonious-anointing (!nau-rites-of passage) of Chiefs, Chiefnesses, Headmen and Headwomen, and their Tribal Councillors. In the absence of the Paramount Chief the members of the Upper Royal Executive Council performed this role. The successor to the Paramount Chief in the Upper Council was called the President of this Council. Since

    the Draft White Paper and this Bill does not recognise Paramount Chiefship it is hoped that in the Bill, the position of Paramount Chiefship will become the position of Royal Family or Gaob, Khoeque or Khoebaha as historically recorded. We believe that at present this authorative power and function is vested in the Upper Council inaugurated by the late Paramount Chief Daniel James Augustine Kanyiles MP and member of the NCOP and headed by Chief Joseph Dominic Little of the National Upper Royal Executive Council of Khoi-Khoi Chiefs of South Africa. A meeting to consolidate this position has been post-poned due to the "period of mourning for the late Paramount Chief. The NCOP Chief whip the Honourable Adriaan van Niekerk has honoured the Paramount Chief and recognised Chief Joseph D. Little as his successor. We have entrusted his powers and function to Chief Joseph D. Little to ensure that the process are fairly and honourably executed.

     

     

    Agreed to in terms of S11, 1(a)

     

     

    Agreed to in terms of S11 1(a)

     

     

    Agreed to

    Add (f) becomes a full-time member of an Indigenous Inter-governmental body of the Indigenous minorities inside the Republic of South Africa including those of the African Union recognised by their respective Governments as legitimate and who have a co-operative relationship with their sovereign Governments who are recognised by the African Union of States or in the Permanent Forum of Indigenous Issues or any other United Nations Systems body falling under the authority of the Secretary General of the UN.

    Agreed to

    Agreed to

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    Removal of (a) Traditional (Indigenous) Leader

    S15 (1) (a), (b), (c)

    S15 (2) (a), (b)

     

     

    S15 (3) (a), (b), (c)

    S15 (4)

     

    Agreed to

    Agreed to

     

     

    Agreed to

    Agreed to


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    PART 4: ( HOUSES OF TRADITIONAL LEADERS )

    (INDIGENOUS)

    Structuring of houses of Traditional Leaders

    S16

    1. National House
    2. (Provincial Houses
    3. (District Houses)
    4. (Tribal Houses)

    District houses of Traditional Leaders

    S17. (1)

     

     

    NB

    Only for Kings and Queens, Chiefs and Chiefnesses & Regents

    Comments only.

    It is felt that S16 should separate the houses under a sub-section denotation re.

    1. A National House
    2. 9 provincial Houses
    3. District or Regional Houses
    4. Tribal Houses

    Comments only.

    The Khoi-San Houses vary from general Nguni understanding of a system of Houses. We agree to having the following:

    1. One National House in the R.S.A
    2. One Provincial House per province
    3. District councils: Here it is noted that only Kings

    and Queens Chiefs and Chiefnesses, Senior Headpersons - or their representatives may constitute this District House. This is the same for the (a) National and (b) Provincial Houses.

    NB! It is thus only for geographical territories where more than 5 and not more than 10 tribal houses of traditional leaders exist. Since these are district municipalities or metropolitan municipalities it is understood that there may be more than one district house per municipality. Some provinces are composed of a mixture of metropolitan sub-council municipalities and district municipalities especially in historically Khoi-Khoi territories which have less than 5 Chiefs. Effectively it means that the District House must be extended to meet this criteria.

     

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    PART 5: ROLES AND FUNCTIONS OF TRADITIONAL LEADERSHIP

    Guiding principles for allocating roles and functions

    S18 (1)

    Add [ (k) and (l) ]

     

     

     

     

     

     

    S18 (2) (a), (b), (c), (d), (e), (f) and (g)

     

     

     

    (k) Indigenous Rights and Indigenous issues pertaining to the various International Documents making reference to women, youths and childrens development and protection rights.

    1. Participating and representing the Indigenous Traditional Communities in and at Forums on a consultative basis internationally, nationally, provincially and locally mandated representatives.

    Agreed to

     

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    PART 6: DISPUTE RESOLUTION AND COMMISSION ON TRADITIONAL LEADERSHIP DISPUTES AND CLAIMS

    Dispute resolution

    S 19

    (1)

    (2) (a) and (b) (i ) and (ii)

     

    Agreed to in principle

    Agreed to in principle

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    Establishment of (a) Commission

    S20

    (1)

    (2)

    Appointment of members of (the) Commission

    S21

    (1)

    (2)

    (3)

     

    Vacancies

    S22

     

     

    Agreed to in principle

    Agreed to in principle

     

     

     

    Agreed to in principle

    Comment only. The Traditional Leaders have no say over this matter. It is a parliamentary function with the President.

    Comment only

    Agreed to in principle. This remains a parliamentary function under Presidential decisions and the Commission concerned.

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    20/21

    Powers and functions of (the) Commission.

    S23

    (1)

    1. (a) (i ) - (iv)
    2. (b)

      (c)

      (d)

    3. (a)

    (b)

    (4)

    (5)

    (6)

     

    Comment only

    The Commission should only commence to exercise these powers and functions after the roles, powers and functions of the Traditional Leaders who were recognised and accredited by the President(s) post 1994, becomes effective. Such Traditional Leadership were made subject to an SQR process and thus qualify as accepted persons on their bona fides. It is now up to these leaders to implement their roles, powers and functions as outlined in the Bill. Any disputes thus arising post the closure of this process around the matters and cases outlined in S23 (1) and (2) (i) -(iv) (3) (a), (b), (4), (5), and (6) is agreed to where applicable.

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    Decisions of Commission

    S24

    (1)

    (2)

    (3)

    Agreed to in principle

    21/22

     

     

     

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    PART 7: GENERAL PROVISIONS

    Transitional arrangements

    S25.............

     

    Short title and commencement

    S26...........

    Comment only

    The NKC requests that this also be applicable for their traditional-indigenous leaders.

    Agreed to with (Indigenous) included as recommended

     

     

     

     

    ..............................

    Chief Joseph D. Little

    NKC Chairperson

    12 July 2003