We have, we like to believe, broken out of the classical unitary versus federal form of state, and have instead struck our own unique system of cooperative government with three spheres: national, provincial and local, which are distinct, but interrelated and interdependent.
This system is at the core of our Constitution. But so too is the imperative for the state to be fully democratic and inclusive and be embedded in the will of the people. And if you look at the legislation we've passed since 1994, it becomes all too clear that ours is meant to be a system not just of cooperative government, but, fundamentally, cooperative governance.
In essence, government rules in interaction with the people. Ours is meant to be an inclusive, comprehensive democracy, which means we have to recognise the institution of traditional leadership. Indeed this is expressly set out in sections 211 and 212 of the Constitution. Managed properly, as government seeks to do, and increasingly succeeds in doing, the institution of traditional leadership and our modern democracy are certainly compatible. The Constitution provides the broad framework and legislation gives effect to this.
Exactly how we find the synergy between elective democracy and the institution of traditional leadership changes over time. It's invariably contested. There are inevitable tensions. There are people who feel strongly that too much or too little has been done for the institution of traditional leadership. We must accept these differences and manage them. That too is the hallmark of our democracy.
Of course, we know that traditional leaders feel that they were hard done by with the Interim and final Constitutions which provided for wall to wall municipalities. With the establishment of municipalities in rural areas traditional leaders feel that their customary powers and functions were taken away and given to municipalities. Traditional leaders have other grievances too. Government is willing to engage with traditional leaders about their concerns.
Of course, there are problems, but we have, in fact, come a long way since 1994. We now have the national house and provincial and local Houses of Traditional Leaders. We adopted a White Paper on "Traditional Leadership and Governance". Various pieces of legislation that deal with the institution of traditional leadership have been passed since 1994 that provide for an enhanced role for the institution. This includes:
* Constitution of the Republic of South Africa No. 108 of 1996 (chapter 12 and schedule four).
* Traditional Leadership and Governance Framework Act No. 41 of 2003 (Framework Act).
* National House of Traditional Leaders Act No. 10 of 1997.
* Municipal Structures Act No. 117 of 1998 (section 81).
* Remuneration of Public Office Bearers Act No. 20 of 1998 (sections five, eight and nine).
* Municipal Systems Act No. 32 of 2000 (sections four, 16, 17, 18, 29 and 42).
* Disaster Management Act No. 57 of 2002 (sections five and seven), and the disaster management framework introduced there under.
* Communal Land Rights Act No. 11 of 2004 (sections one, two and five, and Chapters seven and eight)
* Intergovernmental Relations Framework Act No. 13 of 2005 (sections 6(3), 10(3), 17(3) and 25(3))
* other legislation administered by other government departments impacting on traditional leadership.
The following are the provincial acts enacted in terms of the Traditional Leadership and Governance Framework Act:
Mpumalanga Traditional Leadership and Governance Act, Act No. 3 of 2006
Mpumalanga Provincial House and Local Houses Of Traditional Leaders Act, Act No. 5 of 2005
Limpopo Traditional Leadership and Institutions Act, Act No. 6 of 2005
Leadership and Governance Act, Act No. 8 of 2005
Free State House of Traditional Leaders Amendment Act, Act No. 5 of 2000
KwaZulu-Natal Traditional Leadership and Governance Act, Act No. 5 of 2005
North West Traditional Leadership and Governance Act, Act No. 2 of 2005
The House of Traditional Leaders for the Province Of North West Act, Act No. 12 of 1994
Northern Cape Traditional Leadership and Governance and Houses of Traditional Leaders Act, Act No. 2 of 2007
Traditional Leadership and Governance Act, (Eastern Cape), Act No. 4 of 2005
North West Houses of Traditional Leaders Act, Act No. 3 of 2009
There has been significant progress in regularising the remuneration of traditional leaders and other material support for the institution of traditional leadership. Under the Cooperative Governance and Traditional Affairs Ministry, a new Department of Traditional Affairs is being established to signal the importance the new administration gives to the institution of traditional leadership.
Not just the institution of traditional leadership, but traditional affairs more generally. Clearly, traditional leaders have space to play an important governance and developmental role in traditional authority areas which include over 14 million people.
Legal definition of traditional councils
It is against this background that the relationship between local government and traditional councils must be located. In terms of legislation, traditional councils should uphold the values and administer the affairs of a traditional community, and assist traditional leaders to perform their functions.
They are meant to work with municipalities to identify the needs of a traditional community and facilitate their involvement in municipal affairs, including through shaping integrated development plans (IDPs) and participating in service delivery. They have roles in respect of disaster management and the promotion of indigenous knowledge systems.
Traditional councils are meant to reject tribalism, promote peace and foster social cohesion. Traditional councils are meant to contribute to the system of cooperative governance. National and provincial government departments may also allocate to traditional councils roles in land administration, agriculture, administration of justice, safety and security, health, welfare, arts and culture, tourism, registration of births, deaths and customary marriages; and the management of natural resources.
Once a premier has recognised a traditional community, it can establish a traditional council. Until an amendment to the legislation last year, a traditional council could comprise up to 30 members. Now the number will be determined by a formula set by the Minister which will take into account the number of traditional wards and people in a traditional community.
Forty percent of a traditional council is elected and 60 percent appointed by the senior traditional leader. Those appointed do not all have to be traditional leaders. The senior traditional leader could also appoint other members of the traditional community. At least a third of the traditional council must be women. A traditional council serves a five year term.
The premier has to publish in the Provincial Gazette the recognition of a traditional council. Traditional councils are required to cooperate with ward committees. They must meet at least once a year with the traditional community to account for their activities and finances, including the levies received.
A traditional council and its resources cannot be used to promote or prejudice the interests of a political party. The national and provincial governments are required to promote partnerships between municipalities and traditional councils through legislative and other means.
Such partnerships have to be "based on the principles of mutual respect and recognition of the status and role of the respective parties" and be "based on the principles of cooperative governance". Traditional councils may enter into service delivery agreements with municipalities. The national and provincial governments may through legislation and other means strengthen the capacity of traditional councils.
Partnerships between municipalities and traditional councils
There are many ways in which municipalities and traditional councils can work together. These include:
* Municipalities and traditional councils sharing resources, for example, office space. Pongolo and eThekwini traditional leaders share offices with the traditional councils. In eThekwini, the mayor and or municipal manager meet traditional councils and traditional leaders about three or four times a year. The traditional councils and traditional leaders also have regular access to municipal officials
* Traditional councils and municipalities identifying community development needs in rural areas
* Joint integrated development plan processes, including local economic development plans
* Municipalities signing service delivery agreements with traditional councils for certain services to be rendered by the traditional councils
* Constant sharing of information on matters of mutual interest.
Some municipalities have implemented the provisions of the legislation on partnerships well. These include uMhlathuze, eThekwini, Ugu, Nquthu and Pongolo in KwaZulu-Natal. Partnerships with the Royal Bafokeng in North West have also been very effective. The Royal Bafokeng actually fulfils certain municipal functions. In some municipalities, traditional councils are involved in IDPs and the budgeting process.
In several traditional councils women constitute 50 percent and sometimes more of the members. Relations between municipalities and traditional councils vary, but in general, they are not effective and tensions persist.
Improving relationships between municipalities and traditional councils
So, how to improve relationships?
Relations between traditional councils and municipalities will improve if relations between the institution of traditional leadership as a whole and government in general improve. But it is also true that improved relations between traditional councils and municipalities can contribute to improvements in the relations between the institution of traditional leadership and government as a whole.
The relations between traditional councils and municipalities cannot be separated from the broader challenges of the relationship between the institution of traditional leadership and local government and these challenges need to be addressed.
Both municipalities and traditional councils need to respect their respective status and roles. They have to be better informed about the policy and legislation that defines their roles and relationships. They also need to see the potential of mutually beneficial relationships. If municipalities and traditional councils develop effective relationships, service delivery and development can be significantly advanced in rural areas, where the biggest challenges are.
We need to accelerate service delivery in rural areas and we need the maximum cooperation of all stakeholders, not least traditional councils and traditional leaders, to do so. It is in this context that President Zuma's recent call for a national summit on local government and traditional leadership must be understood.
While both municipalities and traditional councils need to reach out to each other, in general, it is for municipalities to be more active in trying to secure an effective relationship. Where relations between traditional leaders and municipalities are good, there are better prospects for an effective relationship between traditional councils and a municipality.
In terms of the Municipal Structures Act, traditional leaders make up 20 percent of a municipal council without voting rights. While in KwaZulu-Natal traditional leaders in general do not participate in municipal council meetings, elsewhere in the country they mostly do.
However, traditional leaders generally are opposed to being in municipal councils without the right to vote. They complain that theirs is a token participation. Government is to consider this issue further. There are differences of views.
Some argue that if Houses of Traditional Leaders in each local municipality are established and effective, and if municipalities take traditional councils seriously, there is no need for traditional leaders to participate in municipalities. Others say that traditional leaders should be given the right to vote in municipal councils. Yet others say the current situation is correct. We will need to address these issues effectively soon.
In some areas, traditional leaders or other members of traditional councils are part of the ward committees. Consideration needs to be given to making it necessary for traditional councils to be represented in ward committees, through changes in policy or regulation or legislation.
Municipalities should also ensure that traditional councils participate in the integrated development plans. Again consideration needs to be given to changes in policy, regulation or legislation to make this necessary.
Other issues that need to be addressed to improve relations between municipalities and traditional councils include:
* Expediting changes to the traditional leadership institution legislation pending
* Cooperative Governance and Traditional Affairs more actively assisting provinces that have not been able to finalise the transformation and reconstitution of traditional councils as required by legislation
* Developing guidelines or frameworks on how the partnerships between traditional councils and municipalities should be constituted
* Making available more support and resources to enable traditional councils to perform their statutory functions, particularly in partnership with municipalities
* Intensifying capacity building programmes for traditional leaders
* Finding ways to resolve conflicts between municipalities and traditional councils amicably
* Developing minimum standard and norms to guide provincial government support to traditional councils.
There is also the issue of a stipend for members of traditional councils who are not traditional leaders that need to be addressed. Cooperative Governance and Traditional Affairs is already attending to some of the issues raised here.
We are now working more actively with provincial departments to ensure that traditional councils are reconstituted where they have not yet been. The councils not yet reconstituted are mainly in Limpopo. Our target is to ensure all traditional councils are reconstituted by the end of this year.
We are finalising a framework to assist other departments to assign roles and functions to traditional leaders and traditional councils as required by sections 19 and 20 of the Traditional Leadership and Governance Framework Act. We are to soon appoint the new members of the reconstituted Commission on Traditional Leadership Disputes and Claims that deals with disputes and claims within the institution.
As you may be aware, we now have two departments in our Ministry, the Department of Cooperative Governance and the Department of Traditional Affairs. With the new Department of Traditional Affairs, we will be able to give much more focussed and considered attention to traditional affairs as part of our evolving democracy.
So government is serious about the institution of traditional leadership and traditional affairs more generally. We have to be if we are to give full effect to an inclusive and participatory democracy.
I thank you.
Source: Department of Cooperative Governance and Traditional Affairs
