Last year, the Portfolio Committee on Cooperative Governance and Traditional Affairs held nation-wide public hearings to solicit inputs to the proposed Traditional and Khoi-San Leadership Bill that is currently before Parliament. This Bill seeks to uphold the statutory recognition of Khoi-San Traditional Authority, the communal roles and functions thereof. 

Most importantly, the introduction of this Bill presupposes the repealing and the consolidation of the existing National Traditional Leaders Governance Framework, whose legal and legislative framework excluded the Kho-San communities.

Speaking during the adoption of the Bill in the National Assembly, the Minister of Cooperative Governance and Traditional Affairs, Mr Des van Rooyen, said the integration of the Khoi-San leaders into the houses of traditional leaders, which would in future be known as the Houses of Traditional and Khoi-San Leaders, would advance the notion of human dignity and values of democratic governance.

“Ultimately it is the duty of the institutions of traditional and Khoi-San leadership to promote democratic governance and the values of an open and democratic society. To progressively advance human dignity within the institutions of traditional and Khoi-San leadership and to promote the principles of cooperative governance in its interaction with all spheres of government and organs of state.”

According to the Chairperson of the Portfolio Committee on Cooperative Governance and Traditional Affairs, Mr Richard Mdakane, this Bill gives full expression to the spirit and letter of Chapter 12 of the Constitution, in that it gives effect to the Bill of Rights.”

This Bill has its own deliberate history. It is a culmination of a complex process that began in 1995, he said. “The Department of Constitutional Development dealt with the formal recognition of the Khoi-San community. In 1996, it undertook an investigation into the history, social structure and leadership of the Griqua community, which led to the establishment of the National Griqua Forum in July 1997.”

The Bill was then tabled before the National Assembly in September 2015, after an extensive public consultation process. This was followed by the Portfolio Committee on Cooperative Governance and Traditional Affairs’ nation-wide public consultation process that was concluded in August 2017, he said. “In most instances, there was an agreement on and support for the principle of recognising the Khoi-San. Differences of opinion mostly concerned the modalities of such a recognition. In its deliberations, the Committee has strived to accommodate, where possible, all the relevant concerns raised during the public hearings.”    

To affirm the Khoi-San as equals in status to other recognised traditional communities, the Bill has sanctioned the establishment of a Commission on Khoi-San Matters, he said. “This commission will be of equal status to the Commission on Traditional Leadership Disputes and Claims, and will function in the same manner.”

The statutory recognition of Khoi-San means that they now will be, like other traditional leaders, be public office bearers, he added. 

The public hearings that led to the adoption of this Bill left much to be desired, said Mr Kevin Mileham. “In many public hearings the copies of the Bill were only made available in English and were only provided on the day of the hearing. Considering that the Bill has 95 pages, you will appreciate that these communities did not have an opportunity to meaningfully engage and consider this legislation.”

The endeavour to recognise Khoi-San as indigenous inhabitants of this country, who seemed forgotten, should be applauded, said Mr Russel Cebekhulu. “It is of great importance and relevance that the Bill addresses issues pertaining to the aborigines of South Africa, who seem to have been forgotten by this government.”

As much as we appreciate the introduction of this Bill, we are of the view that it has not addressed the traditional leaders’ call for more powers and involvement in municipal and district levels, said Prof Nhlanhlakayise Khubisa. “On previous occasions, we stated that we would like to see traditional leaders given more powers of governance at municipal and district levels.” 

This Bill must ensure that our Customary Law is grounded on direct participation of the affected communities so that people in traditional authorities can benefit from the economic profit derived from their communal lands, said Mr Mncedisi Filtane. “The Bill must introduce clear steps to ensure that rural people are playing a significant role in the negotiation of economic partnership and that they share the profit derived from their land.”

Whilst we recognise the endeavour to give a constitutional effect to our traditional matters, but we are concerned about the bantustanisation and ethnicisation of rural communities in a democratic South Africa, said Mr William Madisha. “This Bill entrenches tribal boundaries derived from colonial and apartheid distortions of customary governance systems. As well as tribal identities that were forced upon communities at that time.”

We welcome the fact that this Bill is curtailing the powers of traditional leaders in taking decisions single-handedly without consulting people under their rule, said Mr Choloane Matsepe. Most significantly, unlike before, the traditional leaders will in respect to this Bill be required to submit financial statements, he added.

Now that the Bill has been passed by the National Assembly, it will now be referred to the National Council of Provinces for consideration and its Select Committee on Cooperative Governance and Traditional Affairs will embark on its own provincial public hearings to solicit inputs that will further influence its shape and form before it is passed into an Act.

By Abel Mputing
8 November 2017