MEETING OF AMAKHOSI OF THE
KINGDOM OF KWAZULU NATAL
ULUNDI : APRIL 20, 2001
This joint meeting of local government councillors elected in the IFP lists and amaKhosi of the Kingdom of KwaZulu Natal is an historical one. The Honourable Minister of Traditional Affairs, Local Government and Security, Inkosi N.J. Ngubane and I felt that it was imperative for us to call this meeting. It will be remembered that at a meeting of Local Government Councillors which was held here on the 20th of January 2001, a resolution was taken. The KwaZulu Natal Minister of Traditional Affairs and Local Government was requested to convey the resolution of local councillors to the President, requesting that this issue of where the jurisdiction of traditional authorities starts and ends, and where the jurisdiction of municipalities in traditional areas starts and ends, be resolved expeditiously so that local councillors can start their work of delivery. I felt it was imperative for us to call this meeting.
The lack of resolution on the clash of powers and functions between municipalities and traditional authorities has created a very difficult situation which we must address during this meeting. The fact that I hold the two positions of being an elected representative while being a traditional leader myself, gives me confidence that in KwaZulu Natal we will be able to find ways and means to harmonise the work of municipalities with the preservation of the important role that traditional authorities must continue to play in local government. What we shall do in KwaZulu Natal may provide an example for the whole of the country, in resolving the present impasse.
It is saddening that we must address these issues amongst ourselves without the benefit of a solution having been defined at a national level. However, there is also excitement in the possibility that we may succeed in proving that traditional authorities are an essential and valuable component of rural local governance. In doing so we shall make a resonant statement which will speak volumes for our commitment towards development and for the erroneous and ill-conceived policies which resulted in the deadlock at national government level between national government and South Africa's Traditional Leaders, and led to the formal obliteration of the local government powers and functions of traditional authorities.
It is quite clear that South Africa's Traditional Leaders have made it clear that they will not accept that situation lying down. Thus the urgency of holding this meeting to avoid any clashes amongst us which can so easily take us back to the dark days of black-on-black violence, from which we emerged only a few years ago.
In order to understand where we are in this fluid process it is essential that we briefly recollect its history. Since time immemorial, local government in rural areas has been provided by traditional leadership. During colonialism and apartheid some of the powers of traditional leadership were constrained or even eliminated on the basis of the notion of non-repugnancy, which allowed traditional authorities to exercise only those powers which were not repugnant to statutory law or not in conflict with the principles of natural justice. At the time the existence of traditional authorities was also formalised through dedicated legislation which provided a defined structural profile to the institution of traditional leadership.
Over time, the structure of traditional leadership became more complex to adjust to changing needs and led to the establishment of regional authorities and different forms of interface and liaison with other levels of government. Certain powers from other levels of government were also delegated to traditional authorities, some of which were not entirely consonant with our traditions. In this limited respect, traditional authorities were dragged into the so-called system of indirect rule. However, without any break of continuity, throughout our history traditional leadership was the institution which guaranteed self-governance of traditional communities and promoted their development, while attending to their needs.
When, in 1993, the Local Government Transition Act was negotiated at the World Trade Centre, it made no provision for local government structures in rural areas. The LGTA was amended in 1994 and then again in 1995 to provide for regional councils which would operate as regional local government structures in a rural area, not at the local level, but rather at the regional one. When such amendments were debated in Parliament, the IFP vigorously proposed and espoused that a two tier system be adopted in rural areas which comprised two structures of local government, one operating at a regional level and one at local level. This two tier system of local government was an idea entirely developed and articulated by the IFP.
The IFP two tier rural local government model envisaged traditional authorities maintaining their local government powers and functions and operating as the local government structure at the local level in a system in which regional councils would be established at regional level. However, the then Minister for Constitutional Development, Mr Valli Moosa, recognised the developmental value of this two tier model and sold it within ANC policy making circles as the way to go to develop a new system of local government in South Africa. However, he eliminated the preservation of traditional authorities as the primary level of government and substituted it with the establishment of new municipalities.
The IFP rejected the corruption of its original model and between the end of 1994 and 1995 fought strenuously to enable traditional authorities to continue to exercise their powers and functions during the interim period, ending with the 1999 local government elections. To this end, the IFP successfully negotiated a variation to the proposed amendments to the LGTA which was then accepted. That was the notion of "remaining areas" which made provision for regional councils to operate at the regional level without a transitional local council being established at a primary level. This arrangement was intended to enable traditional authorities to continue to exercise their local government functions in fact, if not in law.
Since May 1995 they participated in the consultative process organised by the Constitutional Assembly, when the amaKhosi of the Kingdom of KwaZulu Natal put forward the need to provide in the Constitution for a local government model which enables traditional authorities to continue to exercise their powers and functions. They detailed a two tier local government model in which the regional councils operating at the regional level could be harmonised with traditional authorities operating at the primary level within a common framework of development, shared services, planning and co-ordination. To this end, they submitted a detailed "manifesto" which they invited all other traditional leaders of South Africa to subscribe to as a common platform. They clearly identified that the position of traditional authorities in local government had to be spelt out in the Constitution, or that the Constitution had to be so designed as to allow legislation to preserve local government powers of traditional authorities.
This was not the first time that the issue was raised within constitutional negotiations. Indeed, it was among the list of outstanding constitutional issues which nearly prevented the IFP from participating in the April 1994 elections. It was also closely related to the legal recognition of our Kingdom of KwaZulu Natal, because the institution of traditional leadership is indeed our Kingdomís backbone. Both such items, the outstanding constitutional issues and the recognition of our Kingdom, were the very object of the solemn promise which President Mandela made to me when he, together with the then President FW de Klerk, signed the Agreement for Reconciliation and Peace. This agreement and the promise it embodied called on international mediation to resume as soon as possible after the April 1994 elections to address in such fashion the issue of traditional leadership. The promise of international mediation was dishonoured and the issue of traditional leadership was not attended to.
In 1996 the IFP challenged the constitutional text adopted by the Constitutional Assembly when it went for certification before the Constitutional Court. Our challenge focused on local government matters and requested that provision be made for a two tier local government system which could accommodate traditional authorities. The Constitutional Court accepted our challenge and forced the Constitutional Assembly to redraft the local government chapter, but only in respect of the structure of local government, which then resulted in a two tier system, but not in respect of opening the door to traditional authorities operating as the primary level of local government.
However, in the subsequent policy debate the competent Minister and his Department introduced sufficient confusion and ambiguity in an attempt to convince traditional leaders that the Constitution did not bar the exercise of local government powers and functions of traditional authorities. For this reason, traditional leaders actively participated in the local government white paper process aimed at designing the new local government law. On that occasion, traditional leaders from all over South Africa came together proposing a two tier model which would accommodate traditional authorities.
Traditional leaders made a detailed submission in this sense during the consultative process organised in November 1997. It was a major breakthrough that all South African traditional leaders had finally achieved a common platform. Government indicated its willingness to accommodate traditional leaders, but did not follow through on this statement with actual deeds. On the contrary, the White Paper which was produced makes no provision for local government powers of traditional authorities and mentions traditional leaders only marginally, almost as an afterthought.
From that point on, government hid behind the subterfuge of denial. They denied that the new local government system would take away powers from traditional authorities and that the clash between such powers and those of municipalities operating at the primary level of government, would be inevitable. For years the Minister kept stating that the establishment of municipalities would not affect the continuing activities of traditional authorities. Traditional leaders challenged the subterfuge and when they received no satisfaction from the competent Minister and his Department, they sought redress from the President.
The President was seized with the matter, which led to extensive negotiations which began at the end of 1999. Throughout this lengthy process of negotiations, the President has constantly maintained that it is his intention to ensure that the local government powers and functions of traditional authorities are not obliterated by the establishment of municipalities and, if they are obliterated, they will be restored as they used to be before any local government legislation was adopted. He made such a promise during several meetings we held with him. On May 16, he wrote to traditional leaders to confirm his willingness to amend the Constitution and any relevant legislation.
At the Presidentís request, traditional leaders made a proposal on how they could be accommodated in a two tier system of local government to be introduced before local government elections, which would have required only minor amendments to the Constitution and the Municipal Structures Act. This detailed and unanimous proposal was delivered to the President in June last year, almost a year ago. The President appointed a Joint Technical Committee to look into this proposal, which supported such proposal and elaborated on it further in what became known as "Annexure E". Since then, Annexure E has been with the national government which, to this day, has not yet commented on it or expressed reasons why it should not be employed to accommodate traditional authorities.
On October 3, 2000 traditional leaders agreed to the President proclaiming the date for the local government elections, only in consideration of his formal promise that the local government powers and functions of traditional authorities would be preserved and, if necessary, restored by means of an interim solution to be adopted before elections. Elections were held without such an interim solution being adopted. When, on October 3, the President made his promise of an interim solution, there was plenty of time to begin the process for the amendment of the Constitution. However no attempt was made to do so.
Time lapsed and, at the last moment, just before elections a Bill was put together by the competent Minister which was totally incapable of addressing the issue of the clash of the powers and functions of traditional authorities with those of municipalities. Without a constitutional amendment, if the Bill dealt with local government it would have been unconstitutional and, if it didnít, it would have been useless. In the end, such Bill could not be processed by Parliament and elections were held without any solution whatsoever, interim or permanent.
However, confronted with this crisis, a few hours before elections on November 30 a delegation of Government led by the Deputy President and consisting of the four Ministers appointed by Cabinet to deal with this issue agreed with the Coalition of Traditional Leaders on a Joint Statement, which committed Government to amend Chapters 7 and 12 of the Constitution to provide for local government powers and functions of traditional authorities. The agreement clearly stipulated that the matter be dealt with by Cabinet at its first meeting after elections. To this day, Cabinet has not considered any possible amendment to the Constitution, nor has any amendment to the Constitution been drafted and circulated by the competent Minister.
Nevertheless, in order to facilitate the process, on January 16 traditional leaders took it upon themselves to draft proposed amendments to the two chapters of the Constitution which they forwarded to Cabinet. As with the case of the proposed Annexure E containing the local government model proposal, Government has not yet made any comment on the amendments proposed by traditional leaders. On the contrary, the competent Minister produced another Bill which has little to do with the real problem and is profoundly different from the one which was put together at the last moment before elections.
Traditional leaders met to consider such Bill and provided their comments on it, which I think are important for us to share on this occasion. Their document reads as follows:
Pretoria: April 9, 2001
A Bill ostensibly aimed at addressing, on an interim basis, concerns of traditional leaders was presented to the coalition of traditional leaders at an ostensibly consultative meeting convened by the Minister for Provincial and Local Government on April 6, 2001.
Traditional leaders reject with contempt both the process which led to the formulation and consultation on this Bill as well as its contents, and give notice that they are at the end of their tether and will no longer tolerate that their intelligence and dignity be so openly insulted.
For the past two years, traditional leaders have raised concerns about one urgent issue, which is the clash between the powers and functions of traditional authorities and those of municipalities. Neither the process employed thus far nor the Bill have anything to do with this concerning issue.
The Bill purports to set in place an interim solution. The notion of an interim solution was first voiced by the President as something to be adopted before the establishment of municipalities. It was then changed to signify something to be set in place before the completion of the white paper process. It now seems that it is intended as something less than what would be required to address the issue. Interim should not mean ineffective or cosmetic or superfluous. It is necessary to think in terms of the final solution which could be implemented through preliminary interim measures. Interim measures not aimed at a final solution are stopgap devices.
Traditional leaders object to the contemptuous and offensive form in which they were consulted by the Minister. They understood that the purpose of consultation was that of formulating legislation addressing their concerns, which necessitates that discussions between them and the Minister would precede any step taken to convey the outcome of such concerted efforts to third parties. On the contrary, not only did the Minister formulate a Bill without any consultation of traditional leaders but he also first disclosed and discussed it with COSATU, SANCO, SALGA, The Commission of Gender Equality and the Municipal Demarcation Board, and only afterwards was it discussed with traditional leaders. This behaviour lacks any seriousness and shows how the Minister intends to bind his hands so that he can make no genuine progress in addressing the concerns of traditional leaders.
Any knowledgeable person who has applied his or her mind to the issue of the clash of powers between traditional authorities and municipalities would have long realised that the necessity of amending the Constitution is inescapable if traditional leaders are to be afforded powers and functions at a local government level. The Coalition and Government reached agreement on a Joint Statement which calls for the amendment of Chapter 7 and 12 of the Constitution. This Statement echoed the commitment made by the President on May 16, 2000 to be amenable to amend the Constitution if necessary. Without an amendment to the Constitution, any legislation is nothing but an exercise in futility or deception. A legitimate process can only start from an enabling constitutional amendment. In January this year traditional leaders submitted proposed simple and efficient constitutional amendments which the Minister has not yet commented on or replied to.
Similarly, there is still not one single response from Government on the local government model proposed by traditional leaders in June 2000 as a compromise position, in spite of this model having been endorsed by the Technical Committee appointed by the President. This shows that there is no seriousness about engaging traditional leaders on discussions of substance on the real issues of the matter.
The continuous reference to the white paper process as the source of the solution to the clash of the powers of municipalities and traditional authorities is also an exercise in futility or deception, because the white paper process deals with everything but local government and expressly indicates that the relationship between traditional authorities and municipalities must be dealt with in a separate process.
2. Contents of the Bill
The Bill has nothing to do with the concerns of traditional leaders and it is an enormous setback on anything previously proposed by government. It clearly shows the attitude that now that elections have taken place and municipalities are established, traditional leaders should be satisfied with any bone thrown to them and should be strung along until the process of rationalisation of municipal powers is completed some time in July.
The Bill no longer deals with the fundamental powers of traditional leaders to administer their land, both in point of ownership as well as in point of land use, as the November 2000 Bill did. In respect of those traditional authorities where the issue of land ownership is not clear, the postponement of the clear recognition of the powers of traditional leadership in respect of land ownership and use is a direct attack on the core of the institution, since the establishment of municipalities has obliterated the preexisting legal framework which, in its ambiguity and uncertainty, enables the indigenous and customary law power of land administration and the indigenous land tenure system to survive.
The Bill merely contemplates traditional authorities as one possible institution in the territory of a municipality, as a sort of glorified community forum. In providing that local government powers and functions be delegated to a traditional authority, the Bill does not add anything to existing legislation and, if anything, detracts from it. In fact it has always been understood that a municipality already has the power of delegating all its functions with the exception of those listed in Section 160 of the Constitution. Moreover, the Municipal Systems Act already provides for delegation in respect of service provision, which can apply to traditional authorities which are usually statutory bodies. Against this background, the Bill makes delegation to traditional authorities more restrictive than it would be without it, because in terms of the Bill it can only take place "within a framework determined by the Minister".
Delegation is not the route to preserve the powers and functions of traditional authorities. In fact, in terms of delegation, traditional authorities would only exercise municipal rather than indigenous law powers and functions. They would need to act the way statutory law prescribes, rather than applying indigenous law. Delegation does not prevent the obliteration of indigenous law, practice and customs.
It is also awkward and possibly destabilising that an elected official who is a subject of an Inkosi could delegate powers to such an Inkosi and monitor how that Inkosi exercises them.
The only identifiable benefit that the Bill seems to be giving to traditional authorities is the power of making recommendations which a municipality is under the legal obligation to consider and inform the traditional authorities of its decision. However, the municipality has no obligation to follow or comply with such recommendation, and must merely be responsive to it, which is just one step up from the right to petition any organ of the State, which anyone has.
The other provisions of the Bill do not seem to have much substance or provide clear benefits to traditional authorities. For instance, the matters listed under clauses 2[b] to [f] are powers that any statutory body or community association may exercise without any specific statutory empowerment. Moreover, the short summary of the Bill is deceitful in its reference to retention of the powers and functions of traditional authorities.
Against this lack of substance and benefit for traditional authorities the Bill imposes heavy obligations on traditional authorities, as its clause 3 requires them to exercise all their powers and functions in line with the exercise of municipal powers and functions, and to cooperate with municipalities. This seemingly balanced provision which is cast in this seemingly neutral language of mutuality becomes very onerous for traditional authorities when their powers and functions are so disproportionately less than those of municipalities, and it is tantamount to forcing the lamb to lie side by side with the lion. Traditional authorities are brought into the system and obligations of cooperative governance without giving them any powers, which echoes the cooption of indirect rule during colonialism and apartheid.
In conclusion, this Bill does not address the concerns of traditional leaders. It would be more honest if the Government openly states that it does not intend to address such concerns in spite of the Presidentís repeated assurances and promise, and the clear agreement reached in the Joint Statement of Intent of November 30, 2000. The only way forward is in abiding by the provisions of such Statement and amending the Constitution."
The problem is now before you and, on this occasion, we need to find ways and means to deal with this problem and perhaps begin to solve it within our midst. We cannot escape this problem and we cannot live with it. We must find a way to begin solving it. Within this meeting we are all equally committed to the development of rural communities and to enhancing service delivery to the poorest of the poor. Within this meeting we are all equally aware that traditional leaders and traditional authorities are important, and that they will not vanish into thin air. In the Kingdom of KwaZulu Natal most of us who are Traditional Leaders are descendants of warriors who fought great battles in defence of the King and country. The blood of those warriors flows in our veins.
There is uncertainty on the actual impact of the establishment of municipalities on the powers and functions of traditional authorities. Obviously, the same power cannot be exercised by two entities. For instance, there cannot be two entities on the same territory exercising the function of impounding stray cows, or deciding the use to which any given piece of land may be put. However, we must also bear in mind that municipalities and traditional authorities operate on the basis of two different legal systems and bodies of law: statutory law as it relates to municipalities and indigenous law as it relates to traditional authorities.
These are the many complex facets which we find ourselves having to deal with without a clear legislative framework capable of giving us the necessary direction. We need to find a solution in the daily practice of government of our communities. We need to ensure that the powers and functions of traditional authorities are respected and that the rationalisation of capacity and resources to municipalities which is currently taking place does not leave traditional authorities under-resourced. I am not sure how this specific aspect can be dealt with, but it is one of my utmost concerns. It will be easy for those who wish to obliterate traditional authorities to recognise the powers and functions of traditional authorities in a nominal manner only, giving them no resources and capacity to exercise effectively so that only municipalities can provide services to the people. These are all difficult issues to which we must apply our minds.
However, I think the most important thing which should emerge from this meeting is a resounding call to the Government and the President to provide the solution they have promised to this problem. We must make them aware that, in our Province, municipalities cannot operate unless the issue of traditional authorities is solved. We must bring to the fore the problems which are being ignored or hidden. In the interests of good governance and for the sake of our people, we must highlight these difficulties. It is no good hiding difficulties at this initial stage of the new local government dispensation allowing such difficulties to explode into irreparable crises at some later stage down the road.
We all know that the tensions which may arise out of the clash of powers and functions of municipalities and traditional authorities may disrupt governance in rural areas and even give rise to violence in our communities. We must avoid at all costs violence and the loss of life becoming part of this process. For this reason, we must raise our voices as loudly as possible to ensure that a solution is indeed arrived at, and we must bring as much pressure to bear as possible by highlighting the many difficulties that the simplistic solution imposed on us by the national government and its competent Minister, have sought to gloss over.
In this meeting, I hope that we can come together and deal with this issue as a family equally concerned about the interests of our citizens. I hope that from the spirit of this meeting a climate of cooperation and constructive engagement in problems may emerge. We have a great challenge before us and many of the hopes of bringing about an African Renaissance truly hinge on our success or failure to confront it. These are tragic times, but these are also times of great possibility, which enables us to become the protagonists of a better tomorrow which must be forged in our shared commitment to development, development, development. I know that by working together on the actual development of our communities, many of the difficulties will find an easy way of being solved or alleviated.
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