RECOMMENDATIONS & AMENDMENTS ON RURAL DEVELOPMENT

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NATIONAL REFERENCE GROUP RURAL DEVELOPMENT AND LAND REFORMS

 

SUBMISSION REPORT TO THE GRIQUA ROYAL HOUSE

NATIONAL GENERAL CONFERENCE

 

FOR THE PERIOD 2011 - 2014

 

 

Compiled by: Commissioner Gordon Cassim

Member of National Reference Group: Rural Development and Land Reforms

       TABLE OF CONTENTS                     Page 

1. Introduction                                                                                             1- 3    

2. Background and Context                                                                    4-9

3. Conclusion and Recommendations                                                 9-11

 

  1. Introduction

1.1   On the 02 March 2010, an application was brought before the Constitutional Court of South Africa by four communities who were seeking to declare the Communal Land Rights Act (ClaRA Act) unconstitutional its entirety.

1.2   In the Matter between: Stephen Segopotso Tongoane and Others v Minister of Land Affairs; Minister of Local Government; The Speaker of the National Assembly; National House of Traditional Leaders, Chairperson of the National Council of Provinces.

1.3     The matter was registered as Tongoane and Others v National Minister Agriculture and land Affairs and Others (CC100/09) [2010] ZACC 10; 2010 (6) SA 214 (CC); 2010 BCRL 741 (CC) (11 May 2010), as decided on 11 May 2010, refers.

1.4   The case has raised important constitutional questions concerning one of the most crucial pierces of legislation enacted in the country since the advent of our constitutional democracy: the Communal Land Rights Act, 2004, hereafter referred to as (ClaRA).

1.5  This legislation was intended to meet one of the longstanding constitutional obligations of Parliament to enact legislation to provide for legally secure tenure or comparable redress to the people or communities whose tenure of land is legally insecure as a result of the racist policies of apartheid that were imposed under the colour law.The people and communities who were primarily victimised by these laws were African people.   

1.6   The judgement has extensively referred to Section 25 (6) of the Constitution as it provides:

“a person or a community whose tenure of land is legally insecure as a result of past racially discriminatory laws or to comparable redress”.

1.7   The Constitutional Court had to determined whether the procedures that were followed in enacting legislation and whether parliament complied with the constitutional guidelines laid down that involves public and consultation as set out in Sections 59 (1) (a) and 72 (1) (a) of the Constitution.

1.8  Secondly, the Constitutional Court have to determined whether the Communal Land Rights Act has undermined tenure secure as laid down by Section 25 (6) of the Constitution.

1.9  Thirdly, was to examine whether Parliament has correctly tagged the Bill, as a Section 76, of the Constitution which deals with bills that will affect provinces. The key concerned was whether the ClaRA that were passed in parliament without public participation on a provincial would direct impacted on the communities in these provinces.   

1.10.     The matter was first brought before The High Court in Pretoria who had declined to grant relief on that account because Parliament had committed an error of good faith and did not intended to suppress the views of the province.

1.11.     The High Court referred the matter to the Constitutional Court as required by law to grant an order of invalidity. The applicants in this matter seek confirmation of that order of the invalidity. In addition, they had also seek leave to appeal against the dismissal of their application to have ClaRA declared unconstitutional invalid in its entirety.

1.12.      On the 14 May 2010, The Constitutional Court judgement declared the whole of the Communal Land Right’s Act (CLaRA) invalid as legislation that was having been passed by a procedurally faulty process.  The High Court had in its earlier only declared certain clauses in the Act unconstitutional.

1.13.      The applicants had appealed to the Constitutional court because they were concerned that their land , that had previously been held in terms of “living indigenous law”, would now under the control of unelected traditional councils many of which shown themselves to be incapable of administering their land for the benefit of the community.

1.14.     The Constitutional Court had proposed to introduce a new regime that will regulate the use, occupation and administration of communal land, a field presently regulated to a large extent by indigenous law (49) and that traditional leaders, through traditional councils, would now have a wise ranging powers in relations to the administration of communal land.  It found that the new system contemplated by ClaRA replaces the indigenous – laws-based system currently managing the administration of communal land (89).

1.15.     The Constitutional found that parliament had therefore erred in claiming that this Act was a national one, not affecting the provinces, as the court found that the Act directly affected the provinces in that it replaces the indigenous law that regulates land occupation, use and administration in the different provinces. Parliament therefore had to used an incorrect procedure to pass this Act.

1.16.     The judgement makes repeated reference to the vital important of parliament’s constitutional obligation to facilitate public involvement in the legislation process.  

1.17.     It reiterates that the Constitution obliges government to see to the “restoration of land to the people and communities that were dispossessed of land by colonial and apartheid laws “and that” peoples and communities whose tenure of land is legally insecure as a result of racially discriminatory colonial  and apartheid laws be provided with legally secured tenure and redress. “(28).

1.18.     The Constitution envisages that parliament will enact legislation that will ensure that there is restitution of land to the people and communities that was dispossessed of their land, and that they will be accorded secure land tenure or comparable redress.

1.19.     The Court argued that land restitution and security of tenure must be given priority and that should treated with the urgency deserve. (126) and note that Section 237 of the Constitution provides that “(a) all constitutional obligations must be performed diligently and without delay. “Item 21 (1) of Schedule 6 to the (127) “it is now 13 years since the final constitution came into effect. By any standard, a 13 year is unfortunate. “(128).

1.20.     The Act was declared unconstitutional on a technicality; the court hoped that the judgement would provide Parliament with the opportunity to take a second look at the substantive objections raised by the applicants in this respect on CLaRA when it relooks at the matter.

2.        Background and Context

 

2.1       Asa result of the above-mentioned Constitutional Court judgement the Ministry Rural Development and Land Reforms (DRDLR) has taken a principled decision to involved other key stakeholders and land beneficiaries and established a National Reference Group (NAREG) as a forum to be a sounding board for the Minister, not to take a decision on policy development in order to prevent a recurrence. This decision was also undertaken to comply with the constitutional requirements.

2.2       Six working Task Teams were established and known as NAREG

                      i.         Land Management Commission

                    ii.         Land Rights Management Board

                   iii.         Office of the Valuer - General

                   iv.         Three Tier Tenure Systems

                    v.         Legislative Amendments

                   vi.         Communal Tenure

2.3       These themed working groups, coordinated by Mr Sunday Ogunronbi, were         part of stake-holders consultation processes and were meant to discuss   proposals on policy, strategy and legislation including tenure security policy    and legislation.

2.4       On about 17 February 2011, Chief Elaine Appies had contacted      Commissioner Gordon Cassim and informed him about a NAREG meeting        that were scheduled for on  the 18 February 2011, at Birchwood     Hotel &           OR Tambo Conference Centre.

2.5  Commissioner Gordon Cassim grouped a team together that had comprised of Chief Elwin White, Chief Ralf Goliath, and Chief Adam Matthysen both from the Griqua National Conference (GNC). The following KhoiSan leaders came on board at a later staged was Chief Winston Brandt from the Xun- Kumasile San people, Professor Watson Job, who was subsequently replaced by Commissioner Barend Van Wyk, who had failed to attend a single meeting and was replaced by Chief Abigail Elliot, as the only female on the KhoiSan representative team to ensure gender based representation on the group.

    

            The NAREG members were integrated in the work streams as follows:

·       Chief Elwin White served on the Land Rights Management Board.

·       Chief Adam Matthysen served on the Land Management Commission.

·       Chief Ralf Goliath served on the Three-Tier System.

·       Commissioner Gordon Cassim and Chief Abigail Elliot served on the Communal Land Tenure and Legislation Commissions, which were later, coined together under the leadership Dr. Moshe Swartz a Deputy Director General in the DRDLR and a Korana descendant.

2.6    The said NAREG Meeting was chaired by Minister Gugile Nkwinti who was flanked by Deputy Minister Lechesa Ntsenoli, Mr Mdu Shabangu, Director General, Chief Operation Officer, Chief Land Commissioner; deputy chief land Commissioner, Chief Directors of the DRDLR; various Stakeholders, land beneficiaries and Academics from various universities. At this first meeting the minister had remarked that:

“That it was the first time ever that he had heard the voices of the KhoiSan communities at the NAREG meetings.  Our participation on NAREG became a turning point in the history of South Africa and in particular the KhoiSan communities.

                                               

2.7       The Communal Land Tenure working group was mandated to develop a green paper on Land reforms before the end 2011. The processes had suffered numerous delays as the KhoiSan representatives has challenged the 1913 Native Land Act, and stated that the Act discriminated against the Indigenous KhoiSan people, which were dispossessed of their ancestral lands prior to the 1913 Act, came into being and that the KhoiSan communities would not be unable to submit their land claims, after the deadline of 31 December 1998. These representatives have called for a review of the 1913 Native Land Act, to accommodate the Khoi and San communities.

2.8       These representatives has seek a review of this act as it was unfairly discriminating against the KhoiSan people and stated that they were unfairly were excluded from the entire process. The work stream became stagnated to such a point that the Minister had placed it under Administration, Section 100 of the Constitution, which has required intervention and the personal and direct supervision of Mr Mdu Shabangu, the Director General.

2.9       In about June 2011, Dr Moshe Swarts has invited Dr Zacharias the United Nations Residence Representative for Africa and the International Labour Organization to sit into one of our workshops. The following National KhoiSan Council (NKC) members were present, Chief Anthony Petersen, Ms Louise William and Kaptein Johannes Waterboer. This was also the first and last meeting that these delegates had attended a meeting and continued meeting requests that was sent to CoGTA were either ignored by the department or never reached these NKC members.

 2.10   At the said meeting the KhoiSan representatives took the opportunity and informed Dr Zacharias of the plight of the KhoiSan communities and their subsequent exclusions from the land reforms process and that it seemed that there was a resistance to accommodate the KhoiSan communities. Nevertheless, this action has opened up and paved a new path for the KhoiSan communities.

2.11    I had experienced some challenges on our workstream and inquired from Chief Elwin White, whether they have undergone the same issues. Chief White had replied that his work stream never met after they were established and never had a single meeting. I brought him and Chief Winston Brandt into the fold on our work stream to beef up our number. The DRDLR had said that they can only allowed and accommodate five representatives from the KhoiSan as Contralesa were having 5 representatives on the work stream.

2.12    We had further demanded that the DRDLR consider calling for a national dialogue on land reforms and rural development for the KhoiSan communities. We had maintained that nothing about us without us. This decision has proven to be very effective in that as a collective we gained confidence and engaged robustly with the DRDLR.

1.13    We had started building a credible based and confidence that Chief Zolani Mkiva from CONTRALESA had informed us that one of the main reasons Government has kept resources away from the KhoiSan peoples was the fact that KhoiSan people might use government resources to fight them.

2.14    The Communal Land Tenure work stream met twice a month to expedite the process and to meet our deadline. Mr Minister Nkwinti had informing us that he would write a Cabinet Memorandum to Cabinet explaining that the KhoiSan communities were previously excluded from the process and that the current 1913 Native Land Act and Land restitution Act of 1998, discriminate against them and that government need to review the legislation to accommodate these communities.

2.14    Minister Nkwinti had reported that the review of the 1913 Native land Act and the Restitution of land Rights Acts of 1998, will be forward to the ANC Policy Conference which was scheduled to meet in mid June 2012, for consideration and adoption.

2.15.   In June 2012, the ANC Policy conference has resolved and endorsed a review to be considered and referred the matter to the ANC National Conference in December 2012,at Mangaung for final adoption and approval, which the ANC has resolved in favour of the review for the  KhoiSan communities and exceptions needed to be taken.

 

2.16. President Jacob Zuma had subsequently announced in his State of the Nation Address (SONA) 2013, policy shift that the reviewed would opened up the land claims for the KhoiSan communities, Heritage Sites and Historical Land Marks and that exceptions would be taken.

2.17.   Land Reforms and Rural Development has become one of the five priorities of government and as a result responded positively and arranged the first ever KhoiSan National Dialogue These arrangements were facilitated by the National Khoi-San Council (NKC). The dialogue took place on the 15-16 April 2013, at Seperepere Conference Centre in Kimberley.  

2.18    The first Khoi and San Indaba has resolved that the task team should comprised of representatives of the main five Khoi and San groupings per province. The composition should consist of one woman, one youth within the five groupings. Provincial elections took place in the first quarter of 2013, which consisted of 5 representatives from across seven provinces. The KhoiSan NAREG had 45 representatives in total, which later accommodated KhoiSan representatives from Limpopo and Mpumalanga. The initial mandate of the KhoiSan NAREG was to advice the Ministry on the following issues:

            (1) The codification on the exceptions policy.

            (2) Design a Citizen’s manual for land claims.

            (3) Restitution of Land Rights Amendments.

            (4) To communicate progress to the Khoi and San communities.

2.17    The National KhoiSan Council was subsequently replaced by the KhoiSan National Reference Group during various protests and walk outs that was led by KhoiSan groupings and in particular the Western Cape. These communities has cited that the NKC should not participate in these meetings as their have failed the KhoiSan peoples due to a lack of communities and transparency and that they does not wanted them to partake in the process.

2.18    Minister Gugile Nkwinti has taken an executive decision and excluded the NKC from participating. He had told them in one of the meetings that their have obtained a mandate from another department (Cooperative Governance and Traditional Affairs) and that the KhoiSan National Reference Group has a  different mandate born out of the KhoiSan National Dialogue and the Ministry Rural Development and Land Reforms and that this was another department. 

2.19    This process has resulted in the exclusion of the National KhoiSan Council from participating in the KhoiSan NAREG with the exceptions of Dr William Langeveld, who has since attended all the KhoiSan NAREG meetings. The working had elected Kaptein John Witbooi as its Chairperson and Ms Letitia Pietersen as their Secretary. The KhoiSan NAREG was further dissected in a Working Group that met twice a month to give feedback and tracking. Most of the meetings took placed at the St George Hotel and Conference Centre in Irene, Gauteng.

2.20 The KhoiSan NAREG representatives became very technical and they had demanded various things such as appointment letters, a constitution,  resources and support, meeting stipends be paid to them and to have an introduction meeting with the TOP six of the African National Congress (ANC), which have materialized. Kaptein Witbooi has requested funding from his department to bank roll a Witbooi Namaqua festival and made unrealistic promises to the entire KhoiSan nation that the ANC would be funding transport and accommodation for the various KhoiSan communities across the nine provinces’ to attend this event, which never materialized causing further disgruntledness amongst our communities.

 3.        Conclusion

 

3.1       In conclusion, it appears that Kaptein Witbooi, Chairperson of the KhoiSan NAREG is rebranding the Witbooi Nama’s with Minister Nkwinti as the minister has attended their festival.

3.2       The DRDLR NAREG has received a second mandate in 2013 to design and to develop a Communal Land Tenure Policy (CLTP) for rural development that is in its final stages and would be finalized on the 11 April 2014. Once this policy has been sign off by the Minister. Several pierces of legislation will flow from it. The CLTP seek to address the impact that the 1913 native Land Act had on rural communities with regards to various colonial and apartheid laws that was enforced.

3.3       The discriminatory practices on women in terms secure tenure will also be address. The policy also seek to address the lack of rural development and proposed a Wagon Wheel Strategy for communal areas that would map out arable cropping and grazing sites, traditional households, infrastructure development, through a financial recapitalization facility agency ( a bank) earmarked for rural development and industrial areas. Clear demarcation of municipal boundaries, communal land, hence the fact that a land audit is currently underway with amenities strategically position. To curb urbanization and to create industries in rural areas that is sustainable and most importantly is to decongest urban areas.

3.4       The key findings in the ConCourt judgement were the lack of public consultation process, which is currently happening across the country. This Bill will soon be sign into law after May 2014. This bill seeks to address the Willing Buyer, Willing Seller policy. To placed a ceiling on land ownership and control by foreign owners, private and public entities. The bill will provides for an expropriation policy for land that is under utilized by land owners or land that the owners refused to sell for a fair value to be determined by the Valuer general. It further makes provision for the creation of a Valuer General and a Land courts to address potential disputes and a prompt manner.

3.5       The Restitution of Land Rights Amendment Bill was tabled in parliament in the Second quarter, which were subsequently passed by the NCOP and rejected by the Democratic Alliance (DA). The NCOP has referred the Bill with recommendations to the President to sign into law. These amendments seek to address the reopening of lodgement claims from 31 December 1998, to the 31 December 2018, a five year period whilst the DA wanted the reopening of lodgement claims to be effected by one year.

3.6       The codification policy will be presented to the Khoi and San communities and a Citizen’s manual to be an easy concept document that will be printed in Afrikaans, English and Nama languages. Followed by obtaining a second mandate from the constituencies. There is currently a second Khoi and San Indaba planned for the 10 – 11 April 2014, at Kimberley to give effect to this. This conference is managed by the KhoiSan NAREG Working Group. The objective is to ensure that this policies are sign off by the current minister before his term expires.

3.7       The KhoiSan NAREG representative from the other groupings consist of their Champions, who some has left the GRH and used this platform to take revenge by withholding information for the Western Cape leaders.

3.8       According to reliable sources the Minister has asked that each group present five projects as he intended to allocate five farms per group per province. We were not consulted on these projects and heard through the grapevine.

3.9       What is shocking is the fact that the Western Cape had already consulted with certain representatives and groupings, planned their projects, compiled a operational plan with a project costs and submitted these to the ministry and approval was granted for implementation.

3.10    The Griqua Royal House and the Griqua National Conference were sidelined and a decision was taken on their behalf by Abre Hector without the knowledge of the above-mentioned groupings.

3.11    This is an  huge oversight from our part as we had under estimated the capability and intentions of these other groupings.

3.12    It is my professional opinion that we have been compromised on the KhoiSan NAREG and one of the reasons might be that our leaders that are serving on this structure had trusted the Working group and their had defeated their own purpose.

3.13    It is recommended that we deploy our Ace Leaders (Bright sparks) to these task teams in order to reverse the loss ground. Secondly, we are facing very capable and competent leaders and can’t send captains to the battlefield that our competitors have deployed their Generals.

3.14    We need to identify an Ace Team of leaders in each province that can champion our strategy and that can work independently without constant supervision and guidance. We need to cut the fat of our meat and ensure that we are key role players and lead these task team instead of being led by our competitors.

3.15    It is further recommended that we increase our visibility on Chief Director Levels in all Government departments; because the Chief Director has decision making power and this is wear the TEKKIE Hits the Tarr roads. In other words the approval and implementation of all projects lies with the Chief Director.

Welcome to our website

 

 

REPUBLIC OF SOUTH AFRICA

 

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NATIONAL TRADITIONAL AFFAIRS BILL, 2011

Name of Bill should read:National Khoisan Tradiional Affairs Bill

Argument:Throughout Bill it is referring to Traditional and Khoisan Communities as per page 2 as example”To provide for recognition for Traditional and Khoisan communities”The bill itself is referring to a traditional community and a Khoisan Community.

 

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(As introduced in the National Assembly as a section 76 Bill;

Bill published in Government Gazette No.        of        )

(The English text is the official text of the Bill)

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(MINISTER OF CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS)

   

To provide for the recognition of traditional and Khoi-San communities, leadership positions and for the withdrawal of such recognition;

1)Problem Statement:Controversy(It reflects a them and us situation)

As much as we understand the term Khoisan is there also a need to define tradition in terms of the Bill.

The assumption that Khoisan covers all the different indigenous communities must not only be tested for its factual correctness but should invariable identify with these communities.Also the African Commission recently published and Advisory Opinion on the applicability of the UN Declarations on the rights of indigenous Peoples in the African context.

to provide for the functions of traditional and Khoi-San leaders;

to provide for the recognition, establishment and functions of kingship or queenship councils, principal traditional councils, traditional councils, Khoi-San councils and traditional sub-councils;

1)Problem Statement:Inconsistencies(them and us issue as it is put throughout the Bill,i.e.Traditional&Khoisan)-This suggest that Khoisan will not have these other councils:and why is the sequence of these councils different than under elections below.The same principle apply for the provision under Administration,Partnerships,Delegations of functions

Revised Consideration;To provide for (the recognition..........administration,partnerships ,delegation of King and Queenship Councils,Traditional and Khoisan Councils.

 to provide for the administration of kingship or queenship councils, principal traditional councils, traditional councils, Khoi-San councils and traditional sub-councils; to provide for partnerships and support to kingship or queenship councils, principal traditional councils, traditional councils, Khoi-San councils and traditional sub-councils; to provide for the delegation of functions to kingship or queenship councils, principal traditional councils, traditional councils, Khoi-San councils and traditional sub-councils; to provide for the establishment, composition and functioning of the National House of Traditional Leaders; to provide for the establishment of provincial houses of traditional leaders in terms of provincial legislation; to provide for the establishment of local houses of traditional leaders for the areas of jurisdiction of local and metropolitan municipalities and to provide for the composition of these houses;

2)Problem Statement Inconsistency;Establishment,composition and functioning of National,Provincial and Local Houses of Traditional Leaders

Revised consideration;...............Houses of Khoisan and Traditional Leaders.

to provide for the establishment and operation of the Commission on Traditional Leadership Disputes and Claims;

3)Problem Statement;Inconcistency;Commission on Traditional leadership

Revised Consideration;Commission on Khoisan and Traditional Leadersship Disputes and Claims.

to provide for the establishment and operation of the Advisory Committee on Khoi-San Matters;

4)Problem Statement:Why only on Khoisan Matters as if the traditional Communities (with reference to the statement of traditional&Khoisan communities above),will receive preferential treatment or be exclude.The rationale behind this reasoning is the Presidents Report during the opening of the National House of Traditional Leaders on  the disputes on claims and disputes only five is approved and there is still a number of applications still be investigated.

Another critical aspect to clarify is the role of the Advisory Committee (as stipulated in Section 75)in relation with the Nhalpu Commission and now a new Commission.

Revised Consideration:Advisory Committee on Khoisan and Traditional Matters:Moreover to replace advisory committee with Commission  (to move from an exclusive highly qualified knowledgeable individual(referred to in Section 76)to a more inclusive well represented structure of resource full (Professionals and Khoisan representatives)   

 to provide for the election of members of kingship or queenship councils, principal traditional councils, traditional councils, traditional sub-councils and Khoi-San councils;

5)Problem Statement ;Inconsistencies(Law first mentioned)Why Khoisan Councill now appears to be last(compared to all sequences of the layout above.This is a deviation from the principle of the ‘law first mentioned

 to provide for a code of conduct for members of the National House and all traditional councils;

6)Problem Statement:This implies that the Code of Conduct is not applicable on Provincial and Local Houses.Moreover that it is not applicable on Khoisan Councils.

Revised Consideration:Correct sequence of councils and the continuation thereof whereever it is mentioned in the Bill;Also just to put as simple as posible to “provide for a code of conduct”

to provide for regulatory powers of the Minister; to provide for transitional arrangements; to provide for amendments to the Remuneration of Public Office Bearers Act, 1998 and the Local Government: Municipal Structures Act, 1998; to provide for the repeal of legislation; and to provide for matters connected therewith.

 

Preamble

 

WHEREAS the Constitution recognises –

<!--[if !supportLists]--> ?               <!--[endif]--> the institutions, status and roles of traditional leadership according to customary law; and

<!--[if !supportLists]--> ?               <!--[endif]--> a traditional authority that observes a system of customary law;

 

AND WHEAREAS it is necessary to provide in national legislation for the recognition of the Khoi-San communities and leadership;

 

AND WHEREAS the state, in accordance with the Constitution , seeks –

 

<!--[if !supportLists]--> ?               <!--[endif]--> to set out a national framework and norms and standards that will define the place and role of traditional and Khoi-San leadership within the new system of democratic governance;

<!--[if !supportLists]--> ?               <!--[endif]-->Problem Statement;Nowhere in the constitution is there referal to Khoisan Leadership..

<!--[if !supportLists]--> ?               <!--[endif]--> to transform the traditional and Khoi-San institutions in line with constitutional imperatives; and

<!--[if !supportLists]--> ?               <!--[endif]-->ARGUMENT;If the bills want to become in line with the Constitution of the country it is important to read the preamble of the constitution Quote”Lay the foundation for a open and democratic society in which government is based on the will of the people and where every citizen is equally protected by law”this should be read in conjunction with Section 2,Chapter 1 that reads as follows:”The constitution is the supreme law of the Republic;law or conduct that is inconsistant with it is invalid,and the obligations imposed by it must be fulfilled.”It is totally clear in Chapter 2 of the same constitution on page 21 that a table of Non-Derogable Rights gives us a clear understanding the extent to which the rights in terms of the Bill of Rights are protected and we wish to mention the following sections that must be noted:section 9 and 10 of the said act.that stated in section 9 and is protected to the extent of unfair discrimination solely on the grounds of colour,ethnic or social origin and in section 10 :Everyone has inherent dignity and the right to have their dignity respected and protected.Inherent dignity to us the Khoisan Nation is that we are Traditional Communities with a value systems that must be equally judge as these of all other Traditional Communities.  

<!--[if !supportLists]--> ?               <!--[endif]-->In analising this Bill our understanding and interpretation is that there is a clear destinction between two communities where the one is subordinate to the other in terms of priveleges and rights.We must take care that we dont caurse devision and infighting amongst our communities or to develop a devide them and rule them type of system in this Bill as we know from the past.This is however the submission of Western Cape Contralesa that there should be no destinctions made between communities throughout the bill but that all of us should be treated equally.     

<!--[if !supportLists]--> ?               <!--[endif]-->  restore the integrity and legitimacy of the institutions of traditional and Khoi-San leadership in line with customary law and practices;

 

AND WHEREAS –

 

<!--[if !supportLists]--> ?               <!--[endif]--> the state must respect, protect and promote the institutions of traditional and Khoi-San leadership in accordance with the dictates of democracy in South Africa;

<!--[if !supportLists]--> ?               <!--[endif]--> the state recognises the need to provide appropriate support and capacity building to the institutions of traditional and Khoi-San leadership;

<!--[if !supportLists]--> ?               <!--[endif]--> the institutions of traditional and Khoi-San leadership must be transformed to be in harmony with theConstitutionand the Bill of Rights –

<!--[if !supportLists]--> ?               <!--[endif]-->       to promote democratic governance and the values of an open and democratic society;

<!--[if !supportLists]--> ?               <!--[endif]-->      to progressively advance gender equality within the institutions of traditional and Khoi-San leadership;

<!--[if !supportLists]--> ?               <!--[endif]-->      to promote freedom, human dignity and the achievement of equality and non-sexism;

<!--[if !supportLists]--> ?               <!--[endif]-->      to derive its mandate and primary authority from applicable customary law and practices;

<!--[if !supportLists]--> ?               <!--[endif]-->      to strive to enhance tradition and culture;

<!--[if !supportLists]--> ?               <!--[endif]-->      to promote nation building and harmony and peace amongst people;

<!--[if !supportLists]--> ?               <!--[endif]-->      to promote the principles of co-operative governance in its interaction with all spheres of government and organs of state; and

<!--[if !supportLists]--> ?               <!--[endif]-->      to promote an efficient, effective and fair dispute-resolution system, and a fair system of administration of justice, as envisaged in applicable legislation;

 

AND WHEREAS the Constitution provides that national or provincial legislation may provide for the establishment of houses of traditional leaders to deal with matters relating to traditional leadership, the role of traditional leaders, customary law and customs of communities observing a system of customary law,

 

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:-

 

 

ARRANGEMENT OF SECTIONS

 

CHAPTER 1

INTERPRETATION AND APPLICATION

 

<!--[if !supportLists]--> 1.                                                        <!--[endif]--> Definitions and application

 

CHAPTER 2

TRADITIONAL LEADERSHIP AND Governance

 

Part 1: Traditional communities

 

2.         Recognition of kingships or queenships

3.         Withdrawal of recognition of kingships or queenships

4.         Recognition of principal traditional communities

5.         Withdrawal of recognition of principal traditional communities

6.         Recognition of traditional communities

7.         Withdrawal of recognition of traditional communities

8.         Recognition of headmenship or headwomenship

9.         Withdrawal of recognition of headmensip or headwomenship

10.       Recognition of Khoi-San communities and branches

<!--[if !supportLists]--> 1.                   <!--[endif]--> Withdrawal of recognition of Khoi-San communities and branches

<!--[if !supportLists]--> 2.                                <!--[endif]--> Promotion of Constitutional principles

 

Part 2: Traditional leaders

 

<!--[if !supportLists]--> 3.                                <!--[endif]--> Recognition of leadership positions

<!--[if !supportLists]--> 4.                                <!--[endif]--> Recognition of kings and queens

15.      Withdrawal of recognition of kings or queens

16.      Recognition of principal traditional leaders

17.      Withdrawal of recognition of principal traditional leaders

18.      Recognition of senior traditional leaders, headmen or headwomen

19.      Withdrawal of recognition of senior traditional leaders, headmen or headwomen

20.      Recognition of senior Khoi-San leaders and branch heads

21.      Withdrawal of recognition of senior Khoi-San leaders and branch heads

22.      Recognition of regents

23.      Recognition of acting traditional and Khoi-San leaders

24.      Recognition of deputy traditional and Khoi-San leaders

25.      Functions of traditional and Khoi-San leaders

 

Part 3: Traditional councils

 

26.     Establishment and recognition of kingship or queenship councils

27.     Establishment and recognition of principal traditional councils

28.     Establishment and recognition of traditional councils

29.     Establishment and recognition of traditional sub-councils

30.     Establishment and recognition of Khoi-San councils

31.     Functions of kingship or queenship councils

32.     Functions of principal traditional councils

33.     Functions of traditional councils, traditional sub-councils, Khoi-San councils and branches

34.      Election of members of kingship or queenship councils, principal traditional councils, traditional councils, traditional sub-councils and Khoi-San councils

35.      Administration of kingship or queenship councils, principal traditional councils, traditional councils, Khoi-San councils and traditional sub-councils

36.      Support to kingship or queenship councils, principal traditional councils, traditional councils, Khoi-San councils and traditional sub-councils

37.      Partnerships between municipalities and kingship or queenship councils, principal traditional councils, traditional councils, Khoi-San councils and traditional sub-councils

38.      Delegation of roles and functions to kingship or queenship councils, principal traditional councils, traditional councils, Khoi-San councils, traditional sub-councils and traditional leaders

 

CHAPTER 3

HOUSES OF TRADITIONAL LEADERS

 

Part 1: Houses of traditional leaders

 

39.      Houses of traditional and Khoi-San leaders

 

Part 2: National House of Traditional Leaders

 

40.      Establishment and term of office of National House        

41.      Composition of National House

42.      Election and designation of members to National House

43.      Qualification for membership of National House

44.      Representatives to the National House

45.      Vacation of seats

46.      Filling of vacancies

47.      Seat and meetings of National House

48.      Chairperson and deputy chairperson of National House

49.      Status of members of National House

50.      Powers and duties of National House

51.      Administration of National House

52.      Responsibilities of National House

53.      Referral of Bills to National House

54.      Relationship between National House and kings and queens

55.      Relationship between National House and provincial houses

56.      Support to National House

57.      Annual report of National House

58.      Privileges and immunities of members of National House

59.      Remuneration and benefits of members of National House

60.      Rules, orders and committees of National House

61.      Dissolution of National House

62.      Oath or affirmation by members of National House

63.      Code of conduct

 

Part 3: Provincial and local houses of traditional leaders

 

64.      Provincial houses of traditional leaders

65.      Local houses of traditional leaders

 

CHAPTER 4

COMMISSION AND ADVISORY COMMITTEE

 

Part 1: Commission on Traditional Leadership Disputes and Claims

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

66.      Establishment of Commission

67.      Appointment of members of Commission

68.      Vacancies

69.      Conditions of appointment of members of Commission

70.      Support to and reports by Commission

71.      Functions of Commission

72.      Recommendations of Commission

73.      Provincial committees of Commission

 

Part 2: Advisory Committee on Khoi-San matters

 

74.      Recognition of Khoi-San communities, branches, senior Khoi-San leaders and branch heads

75.      Establishment of Advisory Committee

76.      Appointment of members of Advisory Committee

77.      Vacancies

78.      Conditions of appointment of members of Advisory Committee

79.      Support to and reports by Advisory Committee

80.      Functions of Advisory Committee

81.      Recommendations of Advisory Committee

 

CHAPTER 5

GENERAL PROVISIONS

 

82.      Regulations

83.      Transitional arrangements

84.      Amendment of legislation

85.      Repeal of legislation and savings

86.      Short title and commencement

 

SCHEDULE 1

 

Code of conduct

 

SCHEDULE 2

 

Oaths or affirmation by members of the National House

 

SCHEDULE 3

 

Amendment of legislation

 

SCHEDULE 4

 

Repeal of legislation

 

 

 

 

 

CHAPTER 1

INTERPRETATION AND APPLICATION

 

Definitions and application

 

1. (1)   In this Act, unless the context indicates otherwise –

 

“Advisory Committee” means the Advisory Committee on Khoi-San Matters established by section 75;

The advisory committee must be changed to commission:And the compilation of the Commission must be members out of the Communities who understand the believes,history and the values of the Khoisan and traditional Communities.

area of jurisdiction” means the area of jurisdiction defined for a kingship or queenship council, principal traditional council, traditional council and traditional sub-council;

Areas of jurisdiction should be broadened to where the followers of the king are residing.

branch” means a branch recognised as such in terms of section 10(5);

branch must be changed to demarcated areas.Branch terminology belongs to the identifications of areas whereas political parties establish there ruling areas.  

branch head” means a Khoi-San leader who -

 

(a)    is the head of a branch which has been recognised in terms of section 10; and

 

(b)    has been recognised as a branch head in terms of section 20;

This termonolgy is clearly disgusting and unacceptable.We were stripped by the colonials and Apartheids regime of our values and titles in our communities and there is no need to do the same in our new dispensation. I again wish to refer to my argument and submission on page 4 and 5.When referring to a Khoisan leader it should be no other termonology used  than a leader of a traditional community.

Revised Consideration:;We want clear demarcated areas under a single headma/woman assisted by a senior traditional leader

“code of conduct” means the code of conduct for members of the National House and members of traditional councils contained in Schedule 1;

Code of conduct acceptable but it must be reviewed from time to time because the needs change and is subjected to circumstances.

 

Commission” means the Commission on Traditional Leadership Disputes and Claims established by section 66;

 

customary institutions or structures” mean those institutions or structures established in terms of customary law or customs;

                                                                                                                                                                                                                                         

“Department” means the national department responsible for traditional affairs;

 

headman or headwoman” means a traditional leadership position contemplated in section 13 which -

 

(a)     is under the authority of, or exercises authority within the area of jurisdiction of, a senior traditional leader in accordance with customary law or customs; and

 

(b)    has been recognised as such in terms of section 18;

 

headmenship or headwomenship” means a headmenship orheadwomenship recognised in terms of section 8;

 

“Khoi-San community” means a Khoi-San community recognised as such in terms of section 10;

 

“Khoi-San council” means a council established in terms of section 30;

 

“Khoi-San leader”  means a person recognised as a senior Khoi-San leader or a branch head in terms of section 20 and includes a regent acting Khoi-San leader and deputy Khoi-San leader;

 

king or queen” means a person recognised as a king or queen in terms of section 14 

 

kingship or queenship” means a kingship or queenship recognised in terms of section 2;

 

kingship or queenship council” means a council established and recognised for a kingship or queenship in terms of section 26;

Each and every definition or terminology and positions when referring to a Khoisan leader must be the same as when referred to a traditional leader .

local house” means a local house of traditional and Khoi-San leaders provided for in section 65;

 

metropolitan municipality” means a metropolitan municipality as defined in section 1 of the Local Government: Municipal Structures Act, 1998 ( Act No . 117 of 1998 );

 

Minister” means the national Minister responsible for traditional and Khoi-San leadership matters;

 

“National House” means the National House of Traditional and Khoi-San Leaders established by section 40;

 

“prescribe” means prescribed by regulation in terms of section 82;

 

‘‘principal traditional community” means a principle traditional community recognised as such in terms of section 4;

A principle traditional communities is a community that is above a other community.This is very vague and confusing.It refers us to the section that either don't state clearly the definition of such community.

principal traditional council’ means a council established and recognised in terms of section 27;

 

‘‘principal traditional leader” means a person recognised as a principal traditional leader in terms of section 16;

Refers to above submission..

“provincial house ” means a provincial house as contemplated in section 64;

 

regent” means any person who holds a traditional or Khoi-San leadership position in a temporary capacity until a successor to that position who is a minor, is recognised as contemplated in section 22;

 

“representative” means a representative of a kingship or queenship council contemplated in section 41(1)(a) or of a Premier contemplated in section 44;

 

royal family” means the core customary institution or structure consisting of immediate relatives of the ruling family within a traditional or Khoi-San community, who have been identified in terms of customary law or customs, and includes, where applicable, other family members who are close relatives of the ruling family;

“rules and orders” means rules and orders of the National House as provided for in section 60;

 

“Secretary” means the Secretary of the National House appointed in terms of section 51;

 

senior traditional leader” means a person recognised as a senior traditional leader in terms of section 18;

 

“senior Khoi-San leader” means a person recognised as a senior Khoi-San leader in terms of section 20;

 

“this Act” includes any regulations made under section 82;

 

traditional community” means a traditional community recognised as such in terms of section 6;

 

traditional council” means a council established in terms of section 28 and includes a traditional sub-council established in terms of section 29;

 

traditional leader” means a person who has been recognised as a king or queen, principal traditional leader, senior traditional leader or headman or headwoman in terms of sections 14, 16, 18 and 20 respectively and includes regents, acting traditional leaders and deputy traditional leaders;

 

traditional leadership” means the customary institutions or structures, or customary systems or procedures of governance, recognised, utilised or practiced by traditional or Khoi-San communities;

 

“traditional sub-council” means a sub-council established in terms of section 29;

 

tribe” means a tribe that was established or recognised under legislation in force before 24 September 2004.

 

(2) Nothing contained in this Act may be construed as precluding members of a traditional community from addressing a traditional leader by the traditional title accorded to him or her by custom, but such traditional title does not derogate from or add anything to the status, role and functions of a traditional leader as provided for in this Act.

 

(3)  Traditional leaders may acknowledge or recognise the different levels of seniority among themselves in accordance with customs, and none of the definitions contained in subsection (1) must be construed as conferring or detracting from such seniority.

 

CHAPTER 2

TRADITIONAL LEADERSHIP and GOVERNANCE

 

Part 1: Traditional communities

 

Recognition of kingships or queenships

 

2. (1) Subject to subsections (2) and (3), a number of traditional communities that are grouped together may be recognised as a kingship or queenship if –

 

(a)   they are recognised as traditional communities in terms of section 6;

 

(b)   each has a recognised traditional council with a defined area of jurisdiction in terms of section 28;

 

(c)   each has a senior traditional leader;

 

(d)   they recognise a king or queen, in terms of customary law and customs;

 

(e)   they recognise themselves as a distinct group of traditional communities with a proven history of existence, from a particular point in time up to the present, distinct from principal traditional communities and other traditional communities;

 

(f)    they have a system of traditional leadership at a kingship or queenship level; and

 

(g)   they have an existence of distinctive cultural heritage manifestations.

 

(2) Traditional communities that comply with the criteria set out in subsection (1), may apply to the President for recognition as a kingship or queenship.

 

(3)(a) The President may, by notice in the Gazette, after consultation with the Minister, recognise a kingship or queenship contemplated in subsections (1) and (2) as a kingship or queenship.

 

   (b) The President may, before recognising a kingship or queenship as contemplated in paragraph (a), –

 

<!--[if !supportLists]--> i.                <!--[endif]--> cause an investigation to be conducted by the Minister with a view to determine whether the relevant traditional communities comply with the criteria set out in subsection (1);

 

(ii)     direct the Minister to conduct consultations with the relevant Premier, the provincial house in the relevant province, the National House and the senior traditional leaders of traditional communities who fall under the kingship or queenship being applied for; and

 

(iii)    determine a period within which the Minister must finalise the investigation or consultations contemplated in subparagraphs (i) and (ii).

 

Withdrawal of recognition of kingships or queenships

 

3. (1) The withdrawal of the recognition of a community as a kingship or queenship as provided for in this Act, may only be considered where –

 

(a)     the majority of traditional communities under the jurisdiction of the kingship or queenship concerned request the President to withdraw the recognition of their kingship or queenship concerned; or

 

(b)     the President, on good cause shown, decides that the withdrawal of such a kingship or queenship is necessary.

 

(2)  The President may, before taking a decision in terms of subsection (1)(b), cause an investigation to be conducted by the Minister in order to establish whether there is sufficient cause for the withdrawal of the recognition of the relevant kingship or queenship.

 

(3)(a) The withdrawal of the recognition of a community as a kingship or queenship must be done by the President by notice in the Gazette after consultation with the kingship or queenship council, the National House, the Minister, the relevant Premier and the provincial house concerned.

 

(b)     The President may –

 

(i)      direct the Minister to conduct the consultations referred to in paragraph (a); and

 

(ii)     determine a period within which the Minister must finalise the consultations contemplated in subparagraph (i).

 

Recognition of principal traditional communities

 

4. (1) A number of traditional communities that are grouped together may be recognised as a principal traditional community if –

 

(a)     they are recognised as traditional communities in terms of section 6;

 

(b)     each has a recognised traditional council with a defined area of jurisdiction in terms of section 28;

 

(c)     each has a senior traditional leader;

 

(d)     they recognise a principal traditional leader in terms of customary law and customs;

 

(e)     they recognise themselves as a distinct group of traditional communities with a proven history of existence, from a particular point in time up to the present, distinct from kingships or queenships and other traditional communities;

 

(f)      they have a system of traditional leadership at a principal traditional leadership level recognised by other traditional communities; and

 

(g)     they have an existence of distinctive cultural heritage manifestations.

 

(2) Traditional communities that comply with the criteria set out in subsection (1), may apply to the Premier concerned for recognition as a principal traditional community.

 

(3)(a) The Premier concerned may, by notice in the Provincial Gazette, after consultation with the relevant provincial house and the senior traditional leaders who form part of the principal traditional community being applied for, recognise the traditional communities contemplated in subsections (1) and (2) as a principal traditional community.

 

(b) The Premier concerned –

 

                        (i)      may direct the member of the Executive Council responsible for traditional affairs to conduct the consultations referred to in paragraph (a);

 

(ii)     may determine a period within which the member of the Executive Council responsible for traditional affairs must finalise the consultations contemplated in subparagraph (i); and

           

(iii)    must advise the Minister of the recognition referred to in paragraph (a) within 14 days of the publication in the Provincial  Gazette.

 

(4) The Premier concerned may cause an investigation to be conducted by the member of the Executive Council responsible for traditional affairs with a view to determine whether a principal traditional community complies with the criteria set out in subsection (1).

 

Withdrawal of recognition of principal traditional communities

 

5. (1) The withdrawal of the recognition of a community as a principal traditional community as provided for in this Act, may only be considered where –

 

(a)     the majority of traditional communities under the jurisdiction of the        principal traditional community concerned request the relevant Premier to withdraw the recognition of their principal traditional community            concerned; or

 

(b)     the Premier concerned, for good cause shown, decides that the withdrawal of such a principal traditional community is necessary.

 

(2) The Premier concerned may, before taking a decision in terms of subsection (1)(b), cause an investigation to be conducted by the member of the Executive Council responsible for traditional affairs in order to establish whether there is sufficient cause for the withdrawal of the recognition of the relevant principal traditional community.

 

(3)(a) The withdrawal of the recognition of a community as a principal traditional community must be done by the Premier concerned by notice in the ProvincialGazette after consultation with the relevant provincial house and the senior traditional leaders who form part of the principal traditional community.

 

(b) The Premier concerned may –

 

(i)      direct the member of the Executive Council responsible for traditional affairs to conduct the consultations referred to in paragraph (a); and

 

(ii)     determine a period within which the member of the Executive Council responsible for traditional affairs must finalise the consultations contemplated in subparagraph (i).

 

 

Recognition of traditional communities

 

6. (1) A community may be recognised as a traditional community if it –

 

(a)     has a system of traditional leadership at a senior traditional leadership level recognised by other traditional communities;

 

(b)     observes a system of customary law;

 

(c)     recognises itself as a distinct traditional community with a proven history of existence, from a particular point in time up to the present, distinct and separate from other traditional communities; and

 

(d)     has an existence of distinctive cultural heritage manifestations; or

 

(e)     has a number of headmenship or headwomenship.

 

(2) A traditional community that complies with the criteria set out in subsection (1), may apply to the Premier concerned for recognition as a traditional community.

 

(3)(a) The Premier concerned may, by notice in the relevant Provincial Gazette, in accordance with provincial legislation and after consultation with the relevant provincial house, recognise the community contemplated in subsection (1) as a traditional community.

 

 (b) Provincial legislation referred to in paragraph (a) must –

 

(i)      provide for a process that will allow for consultation with the community concerned; and

 

<!--[if !supportLists]--> ii.              <!--[endif]-->prescribe a period within which the Premier must reach a decision regarding the recognition of a community envisaged in subsection (1) as a traditional community.

 

(4) The Premier concerned may cause an investigation to be conducted with a view to determine whether a traditional community complies with the criteria set out in subsection (1).

 

Withdrawal of recognition of traditional communities

 

7. (1) The withdrawal of the recognition of a community as a traditional community as provided for in this Act, may only be considered where –

 

(a)     the community concerned requests the Premier concerned to withdraw its recognition as a traditional community; or

 

(b)                 two or more recognised communities request the Premier concerned to merge such communities into a single traditional community.

 

(2)(a) The withdrawal of the recognition of a community as a traditional community must be done by the Premier concerned by notice in the relevant Provincial Gazette and in accordance with applicable provincial legislation.

 

(b) The provincial legislation referred to in paragraph (a) must make provision for consultation by the Premier concerned with the relevant provincial house , any community that may be affected and, if applicable, the king or queen or principal traditional leader under whose authority such a community falls before the withdrawal of the recognition of a traditional community may be effected by way of a notice in the Provincial Gazette.

 

(3) The Premier concerned may, before taking a decision in terms of subsection (2), cause an investigation to be conducted in order to establish whether there is sufficient cause for the withdrawal of the recognition of the relevant community as a traditional community.

(4) The Premier concerned must recognise a merged traditional community contemplated in subsection (1)(b), give notice of such a merger in the Provincial Gazette and advise the Minister of the merger within 14 days of the publication in the Provincial Gazette.

 

Recognition of headmenship or headwomenship

 

8. (1) A headmenship or headwomenship may be recognised as such if it –

 

(a)     has a system of traditional leadership at a headmenship or        headwomenship level recognised by the relevant traditional community;           

(b)     consists of an area within the area of jurisdiction of the traditional         council of the relevant traditional community;

 

(c)     is recognised by the relevant traditional community as a headmenship or        headwomenship; and

 

(d)     will contribute to a more effective and efficient administration of the relevant traditional council.

 

(2) A headmenship or headwomenship that complies with the criteria set out in subsection (1), may apply to the Premier concerned for recognition as a headmenship or headwomenship.

 

(3) The Premier concerned may cause an investigation to be conducted with a view to determine whether a headmenship or headwomenship complies with the criteria set out in subsection (1).

 

(4)(a) The Premier concerned may, by notice in the Provincial Gazette, in accordance with applicable provincial legislation and after consultation with the relevant traditional council, recognise the headmenship or headwomenship contemplated in subsection (1).

 

 

    (b)    Provincial legislation referred to in paragraph (a) must –

 

<!--[if !supportLists]--> i.                <!--[endif]--> provide for a process that will allow for consultation with the  community concerned; and

 

<!--[if !supportLists]--> ii.              <!--[endif]--> prescribe a period within which the Premier concerned must reach a decision regarding the recognition of a headmanship or headwomanship as contemplated in subsection (1).

 

Withdrawal of recognition of headmenship or headwomenship

 

9. (1)The withdrawal of the recognition of a headmenship or headwomenship may only be considered where a relevant traditional council requests the Premier concerned to withdraw such recognition.

 

(2)(a) The Premier concerned may, by notice in the Provincial Gazette, in accordance with applicable provincial legislation and after consultation with the relevant traditional council, withdraw the recognition of the headmenship or headwomenship as contemplated in subsection (1).

   

(b)        Provincial legislation referred to in paragraph (a) must –

 

<!--[if !supportLists]--> i.                <!--[endif]--> provide for a process that will allow for consultation with the community concerned; and

 

(ii)     prescribe a period within which the Premier concerned must reach a decision regarding the withdrawal of the recognition of a headmanship or headwomanship as contemplated in subsection (1).

 

(3) The Premier concerned may, before taking a decision in terms of subsection (2), cause an investigation to be conducted in order to establish whether there is sufficient cause for the withdrawal of the recognition of the relevant headmanship or headwomanship.

 

Recognition of Khoi-San communities and branches

 

10. (1) A community may apply to the Premier concerned to be recognised as a Khoi-San community if it –

 

 (a)    has a history of self-identification by members of the community            concerned, as belonging to a unique community distinct from all       other communities;

 

(b)     observes distinctive established Khoi-San customary law and customs;

 

(c)     is subject to a system of hereditary or elected Khoi-San leadership with structures exercising authority in terms of customary law and customs of that community;

 

(d)     has an existence of distinctive cultural heritage manifestations;

 

(e)     has a proven history of coherent existence of the community from a particular point in time up to the present;

 

(f)      is acknowledged by other Khoi-San communities as a distinct community; and

 

(g)                 occupies a specific geographical area or various geographical areas together with other non-community members.

 

(2) The Premier concerned may cause an investigation to be conducted with a view to determine whether a community complies with the criteria set out in subsection (1).

 

 (3)The Premier concerned may, subject to sections 74 and 81 and after consultation with the relevant provincial house, by notice in the relevant Provincial Gazette, recognise a community that complies with the criteria set out in subsection (1) as a Khoi-San community.

 

(4)(a) A Khoi-San community may, where applicable, consist of branches recognised in terms of subsection (5).

 

     (b) A branch may be recognised in terms of subsection (5) if it –

 

 

 

<!--[if !supportLists]--> i.                <!--[endif]-->is recognised by the Khoi-San community as a branch of that community;

 

<!--[if !supportLists]--> ii.              <!--[endif]-->has a sufficient number of members to warrant the recognition of such branch;

 

<!--[if !supportLists]--> iii.             <!--[endif]-->will contribute to a more effective and efficient administration of the Khoi-San council; and

 

<!--[if !supportLists]--> iv.            <!--[endif]-->recognises the senior Khoi-San leader in terms of customary law and customs.

 

(5)(a) A Khoi-San council may, subject to paragraphs (b) and (c), apply to the Premier of the province where the council is situated, for the recognition of a branch if it complies with the criteria set out in subsection (4).

 

(b) If the Premier referred to in paragraph (a) is of the view that the branch complies with the criteria set out in subsection (4), but such branch is situated in a province other than the province where the Khoi-San council is situated, the Premier of the province where the council is situated must request the Premier of the province where the branch is situated to recognise that branch.

 

(c)   The recognition of a branch contemplated in paragraph (a) is subject to subsections (6), (7) and (8).

 

(6) The Premier of the province where the branch is situated may cause an investigation to be conducted with a view to determine whether a branch complies with the criteria set out in subsection (4).

 

(7) The Premier of the province where the branch is situated may, subject to subsection (8), in the notice contemplated in subsection (3), recognise a branch that complies with the criteria set out in subsection (4).

 

(8) Where the Khoi-San community consists of branches in different provinces, the recognition of such branches must, subject to subsection (3), be done by the relevant Premiers by notice in the respective ProvincialGazettes of the provinces where the branches are situated.

 

Withdrawal of recognition of Khoi-San communities and branches

 

11. (1) The withdrawal of the recognition of a community as a Khoi-San community or a branch may only be considered where –

 

(a)     a Khoi-San council requests the Premier concerned that the recognition of a Khoi-San community or the recognition of a branch or branches of such community be withdrawn; or

 

(b)     the Khoi-San councils of two or more recognised Khoi-San communities request the Premier concerned to merge such communities into a single Khoi-San community.

 

(2)(a) Subject to paragraph (b) and subsection (3), the Premier concerned may, after consultation with the relevant provincial house, by notice in the relevant Provincial Gazette, withdraw the recognition of a Khoi-San community or a branch contemplated in subsection (1)(a).

 

(b) Where the branches of a Khoi-San community which are to be withdrawn, are situated in more than one province, the Premiers of the provinces where the branches are situated must, subject to subsection (3), by notice in the relevant Provincial Gazettes, withdraw the recognition of the branches.

 

(3) The Premier or Premiers concerned may, before taking a decision in terms of subsection (2), cause an investigation to be conducted in order to establish whether the communities to be affected by a request contemplated in subsection (1) were consulted and support such request.

 

(4) The Premier concerned must recognise a merged Khoi-San community contemplated in subsection (1)(b), give notice of such a merger in the relevant Provincial Gazette and advise the Minister of the merger within 14 days of the publication of such notice.

 

Promotion of Constitutional principles

 

12.   A kingship or queenship, principal traditional community, traditional community, Khoi-San community and branch must transform and adapt customary law and customs relevant to the application of this Act so as to comply with the relevant principles contained in the Bill of Rights in the Constitution, in particular by –

 

(a)     preventing unfair discrimination;

 

(b)      promoting equality; and

 

(c)     seeking to progressively advance gender representation in the succession to traditional leadership positions.

 

Part 2: Traditional leaders

 

Recognition of leadership positions

 

13. (1)The following leadership positions are recognised:

 

(a)     King or queen;

 

(b)      principal traditional leader;

 

(c)      senior traditional leader;

 

(d)      senior Khoi-San leader; and

 

(e)      headman, headwomen and branch head.

 

(a)     the activities and programmes of the National House;

 

(b)     matters of interest to kings and queens;

 

(c)     matters relating to service delivery and the development of traditional communities; and

 

(d)     any other business identified and proposed by either party and agreed to by both parties.

 

Relationship between National House and provincial houses

 

55. (1) The National House must investigate matters referred to it by a provincial house and make recommendations thereon.

 

(2)  The National House must advise provincial houses regarding the administration of their affairs.

 

(3)  The National House must, twice a year, hold a meeting with provincial houses to discuss progress on matters relating to the general interest and welfare of traditional communities.

 

(4)  Where the National House wishes to interact with a local house or a traditional council, such interaction must be done in consultation with the relevant provincial house: Provided that where no provincial house has been established, the National House may interact directly with a local house or traditional council.

 

(5)  The chairperson of the National House must establish a body of chairpersons of provincial houses to interact with the National House on a regular basis on issues of mutual interest.

 

(6)  The Secretary of the National House must establish a body of Secretaries of provincial houses to interact with the National House on a regular basis on issues of mutual interest.

 

Support to National House

 

56.  (1)The Minister must provide support to the National House so as to enable the National House to perform all the functions assigned to it, and such support –

 

(a)     may include the provision of –

 

(i)      infrastructure;

 

(ii)     human resources as contemplated in section 51(1);

 

(iii)    skills development programmes; and

 

(iv)    administrative systems; and

 

(b)     must include financial support.

 

(2) For the purposes of subsection (1)(b), the National House must submit to the Minister, before a date determined by the Minister, annual estimates of expenditure for the next financial year.

 

Annual report of National House

 

57.  (1) The National House must annually and in respect of the preceding financial year, submit to the Minister a report, complying with the provisions of subsection (2), in respect of its activities and programmes and must, within 60 days after the Minister has approved the report, table it in Parliament.

 

(2) The information to be contained in the report contemplated in subsection (1), include, but are not limited to, information on –

 

<!--[if !supportLists]--> a.              <!--[endif]-->the composition of the National House;

 

<!--[if !supportLists]--> b.              <!--[endif]-->the filling of any vacancies;

 

<!--[if !supportLists]--> c.               <!--[endif]-->the disqualification of any member;

 

<!--[if !supportLists]--> d.              <!--[endif]-->meetings of the National House, with specific reference to the meetings held with kings and queens, and the meetings held with provincial houses;

 

<!--[if !supportLists]--> e.               <!--[endif]-->the consideration of any Bills referred to the National House;

 

<!--[if !supportLists]--> f.                <!--[endif]-->the exercising of any powers and duties of the National House as contemplated in section 50;

 

<!--[if !supportLists]--> g.              <!--[endif]-->the responsibilities of the National house as contemplated in section 52;

 

<!--[if !supportLists]--> h.              <!--[endif]-->the budget and expenses of the National House;

 

<!--[if !supportLists]--> i.                <!--[endif]-->any matter as may be directed by the President or Minister; and

 

<!--[if !supportLists]--> j.                <!--[endif]-->any matter deemed necessary by the National House.

(3)(a) The Minister may, before approving a report submitted to him or her as contemplated in subsection (1), request a meeting with the National House to discuss the content of the report.

 

<!--[if !supportLists]--> b.              <!--[endif]-->Any house of Parliament may, once a report contemplated in subsection (1) has been tabled in Parliament, request a meeting with the National House to discuss the contents of the report.

 

Privileges and immunities of members of National House

 

58.  (1) The National House has full power to control, regulate and dispose of its internal affairs and has all such powers, privileges and immunities as may, subject to the Constitution , be prescribed.

 

(2)(a) Members of the National House have freedom of speech in the National House and its committees, subject to the rules and orders of the National House.

 

(b) Members of the National House are not liable to civil or criminal proceedings, arrest, imprisonment or damages for –

 

(i)      anything that they have said in, produced before or submitted to the National House or any of its committees; or

 

(ii)     anything revealed as a result of anything that they have said in, produced before or submitted to the National House or any of its committees.

 

Remuneration and benefits of members of National House

 

59.  (1)The remuneration and benefits of members of the National House are determined in terms of the Remuneration of Public Office Bearers Act, 1998 ( Act No . 20 of 1998 ).

 

(2) For purposes of remuneration in terms of the Remuneration of Public Office Bearers Act, 1998, a person designated in terms of section 44(1) is not a member of the National House.

 

Rules, orders and committees of National House

 

60. (1) The National House must make rules and orders in connection with the conduct of its business and proceedings, including rules and orders regulating –

 

(a)     the establishment, constitution, powers and functions, procedures and lifespan of committees of the National House;

 

(b)     the procedure to be followed in meetings of the National House and its committees;

 

(c)     restrictions on access to such committees;

 

(d)     the competency of any such committee to perform or dispose of its business and proceedings at venues other than the seat of the National House; and

 

(e)     the designation of members to preside over meetings of the committees of the National House.

 

(2)(a) There may be an executive committee consisting of the chairperson and deputy chairperson and as many additional members, so as to ensure that each provincial house is represented in the executive committee, as elected by the National House.

 

(b) The National House may at any time on good cause shown, replace any of the members elected in terms of paragraph (a).

 

Dissolution of National House

 

61.    The National House must be dissolved –

 

(a)     on the expiry of the term of office of the National House; or

 

(b)     after a vote supported by a two-thirds majority of the full complement of the members of the National House in a meeting of the National House called for that purpose.

 

Oath or affirmation by members of National House

 

62.    All the members of the National House must, before they begin to perform their functions in the National House, take an oath or solemn affirmation as set out in Schedule 2 to this Act, before the Chief Justice or a judge designated by the Chief Justice.

 

Code of conduct

 

63. (1) All members of the National House, a kingship or queenship council, principal traditional council, traditional council, traditional sub-council and Khoi-San council must adhere to the code of conduct contained in Schedule 1 to this Act.

 

(2)  Any breach of the code of conduct referred to in subsection (1) must be dealt with in accordance with the procedure set out in items10 or 11 of the code of conduct, as the case may be.

 

Part 3: Provincial and local houses of traditional leaders

 

Provincial houses of traditional leaders

 

64. (1) Provincial houses must be established in terms of provincial legislation.

 

(2) The provincial legislation contemplated in subsection (1) must provide for –

 

(a)      mechanisms or procedures that would allow a sufficient number of       women –

 

(i)      to be represented in the provincial house concerned; and

 

(ii)     to be elected as representatives of the provincial houses to the National House;

 

(b)     the alignment of the term of provincial houses with the term of the National House;

 

(c)     where applicable, the membership of both traditional leaders and Khoi-San leaders in provincial houses;

 

(d)     the membership of senior traditional leaders designated in terms of section 41(1)(a) in provincial houses; and

 

(e)     the participation of the persons designated in terms of section 44 in meetings of a provincial house on the same conditions as set out in sections 44 and 59(2).

 

(3)(a) The membership contemplated in subsection (2)(c) must be composed in such a way that both traditional leaders and Khoi-San leaders represented in local houses are represented in the provincial house in substantially the same proportion they are represented in the local houses concerned: Provided that if a Khoi-San leader is the only member of a local house, that Khoi-San leader must be a member of the provincial house concerned.

 (b) The fact that only traditional leaders or Khoi-San leaders are recognised in a province does not preclude a province from establishing a provincial house.

 

Local houses of traditional leaders

 

65. (1) Subject to the provisions of this Act, a local house of traditional and Khoi-San leaders must be established in accordance with provincial legislation for the area of jurisdiction of a local municipality or metropolitan municipality where there are one or more traditional councils or Khoi-San councils.

 

(2) A local house must consist of not less than five members, of which at least one member must be a senior traditional leader or a senior Khoi-San leader.

 

(3) All senior traditional leaders and senior Khoi-San leaders who reside within the area of jurisdiction of a local municipality or metropolitan municipality are members of a local house established for that area.

 

(4) Where within the area of a local municipality or metropolitan municipality there –

 

(a)                 is only one traditional council or only one Khoi-San council, the local     house consists of four members elected by that traditional council or Khoi-San council and the senior traditional leader or senior Khoi-San leader who is ex officio a member and chairperson of the local             house;

 

(b)     are in total more than one and less than five traditional councils,            Khoi-San councils, traditional sub-councils or branches, the local       house consists of –

 

(i)     all senior traditional leaders and senior Khoi-San leaders;

 

(ii)     all chairpersons of such traditional sub-councils; and

 

(iii)    all branch heads of such branches:

 

Provided that where there is more than one –      

 

(aa)   branch of the same Khoi-San community, the Khoi-San council must elect one branch head;

 

(bb)   traditional sub-council of the same traditional community, the traditional council must elect one chairperson,

 

as a member of the local house: Provided further that where in total the senior traditional leaders, senior Khoi-San leaders, branch heads and chairpersons of traditional sub-councils are less than five, the senior traditional leaders and senior Khoi-San leaders must designate the required number of members from amongst their councils: Provided further that where more than one senior traditional leader or senior Khoi-San leader is required to make a designation, such designation must be made with the concurrence of all senior traditional leaders and senior Khoi-San leaders;

 

(c)     are in total more than five traditional councils, Khoi-San councils,          traditional sub-councils or branches, the local house consists of –

 

(i)      all senior traditional leaders and senior Khoi-San leaders;

 

(ii)    all chairpersons of such traditional sub-councils; and

 

(iii)    all branch heads of such branches: Provided that where there is more than one –

 

(aa)     branch of the same Khoi-San community, the Khoi-San council must elect one branch head;

 

(bb)     traditional sub-council of the same traditional community, the traditional council must elect one chairperson as a member of the local house.

 

(5) Where the area of a traditional council is situated within more than one local municipality or within a local and metropolitan municipality –

 

<!--[if !supportLists]--> a.         <!--[endif]--> the senior traditional leader is a member of the local house where he or she resides; and

 

<!--[if !supportLists]--> b.         <!--[endif]--> the traditional council must elect a headman or headwomen from the areas situated in local or metropolitan municipalities other than where the senior traditional leader resides, to be a member of the relevant local house.

 

(6) The functions of a local house of traditional leaders are –

 

(a)     to advise the local municipality or metropolitan municipality on –

 

(i)      matters pertaining to customary law, customs, traditional and Khoi-San leadership and the traditional and Khoi-San communities within the local municipality or metropolitan municipality;

 

(ii)     the development of planning frameworks that impact on traditional and Khoi-San communities; and

 

(iii)    the development of by-laws that impact on traditional and Khoi-San communities;

 

(b)     to participate in local programmes that have the development of traditional and Khoi-San communities as an object; or

 

(c)     to participate in local initiatives that are aimed at monitoring, reviewing or evaluating government programmes in traditional and Khoi-San communities.

 

 

 

CHAPTER 4

COMMISSION AND ADVISORY COMMITTEE

 

Part 1: Commission on Traditional Leadership Disputes and Claims

 

Establishment of Commission

 

66. (1) There is hereby established, with effect from 20 January 2010, a Commission known as the Commission on Traditional Leadership Disputes and Claims.

 

(2) The Commission must carry out its functions in a manner that is fair, objective and impartial.

 

Appointment of members of Commission

 

67. (1)(a) The Minister must, after consultation with the National House, appoint a chairperson, deputy chairperson and not more than three persons, for a period not exceeding five years, as members of the Commission who are knowledgeable regarding customary law, customs and the institution of traditional leadership.

 

(b) The Minister must publish in the Gazette the names of the chairperson, the deputy chairperson and of every person appointed as a member of the Commission, together with the date from which the appointments take effect.

 

(2) A member of the Commission is either a full-time or part-time member, as may be determined by the Minister.

 

(3) The deputy chairperson of the Commission must act as chairperson in the absence of the chairperson of the Commission.

 

(4) If a member of the Commission dies or vacates his or her office before the expiry of the period for which he or she was appointed, the Minister must appoint, in accordance with the provisions of subsection (1), a person to fill the vacancy for the unexpired term for which such member had been appointed.

 

(5) The Minister may remove a member of the Commission on the grounds of –

 

(a)     having been convicted of an offence with a sentence of imprisonment for more than 12 months without the option of a fine;

 

(b)     physical incapacity;

 

(c)     such member having been declared insolvent by a court;

 

(d)     such member having been declared to be of unsound mind by a court; and

 

(e)     misconduct, incapacity or incompetence.

 

(6)(a) A decision to remove a member of the Commission on the grounds of misconduct or incompetence must be based on a finding to that effect by an investigative committee appointed by the Minister.

 

(b) The Minister may suspend a member of the Commission who is under investigation in terms of paragraph (a).

 

Vacancies

 

68. A vacancy occurs whenever a member of the Commission –

 

(a)     resigns by giving written notice to the Minister;

 

(b)     is removed in terms of section 67(5); or

 

(c)     becomes a member of the National Assembly, a member of a provincial legislature, a full-time member of a municipal council or a permanent delegate to the National Council of Provinces.

 

 

 

Conditions of appointment of members of Commission

 

69. (1) The Minister must, after consultation with the Minister of Finance, determine the conditions of appointment of the members of the Commission, taking into account –

 

(a)     the role, duties and responsibilities of a member of the Commission;

 

(b)     affordability in relation to the responsibilities of the Commission; and

 

(c)     the level of expertise and experience required from a member of the Commission.

 

(2) Conditions of appointment may differ in respect of –

 

(a)     the chairperson and other members of the Commission;

 

(b)     full-time and part-time members; and

 

(c)     any other appropriate circumstances.

 

Support to and reports by Commission

 

70. (1)(a) The Department must provide administrative and financial support to the Commission so as to enable the Commission to perform all the functions assigned to it.

 

(b) The Commission may, subject to the provisions of the Public Finance Management Act, 1999 (Act No. 1 of 1999), appoint a person or an institution to conduct research on its behalf.

 

(2) The Commission must quarterly, or when requested by the Minister, provide a comprehensive report on its activities to the Minister.

 

 

Functions of Commission

 

71. (1) The Commission operates nationally in plenary and provincially in committees and has the authority to investigate and make recommendations on any traditional leadership dispute and claim contemplated in subsection (2).

 

(2)(a) The Commission has the authority to investigate and make recommendations on –

 

(i)      a case where there is doubt as to whether a kingship or queenship, a principal traditional leadership, a senior traditional leadership, a headmanship or headwomenship was established in accordance with customary law and customs;

 

(ii)     a traditional leadership position where the level of such position or any rights of the incumbent is contested;

 

(iii)    claims by communities to be recognised as kingships, queenships, principal traditional communities, traditional communities, or headmanships or headwomenships;

 

(iv)    the legitimacy of the establishment or disestablishment of “tribes” or headmanship or headwomenship;

 

(v)     disputes resulting from the determination of traditional authority boundaries as a result of the merging or division of “tribes”;

 

(vi)    all traditional leadership claims and disputes lodged during the period from 1 September 1927 to the coming into operation of provincial legislation dealing with traditional leadership and governance matters: Provided that the Commission may consider any events applicable to a dispute or claim that predates 1 September 1927; and

 

(vii)   gender-related disputes relating to traditional leadership positions arising after 27 April 1994.

 

(b) A dispute or claim as contemplated in this Act may be lodged by any person and must be accompanied by information setting out the nature of the dispute or claim and any other relevant information.

 

<!--[if !supportLists]--> c.        <!--[endif]--> The Commission may decide not to consider a dispute or claim on the ground that the person who lodged the dispute or claim has not provided the Commission with relevant or sufficient information.

 

(3)(a) When considering a dispute or claim, the Commission must consider and apply customary law and the customs of the relevant traditional community as they applied when the events occurred that gave rise to the dispute or claim.

 

(b) The Commission must –

 

(i)      in respect of a kingship or queenship, be guided by the criteria set out in sections 2(1) and 14(1); and                                                                                                                                                                                                                                              

 

(ii)     in respect of a principal traditional leadership, a senior traditional leadership, a headmanship or a headwomenship, be guided by the customary law and customs and criteria relevant to the establishment of a principal traditional leadership, a senior traditional leadership, a headmanship or a headwomenship, as the case may be.

 

(c) Where the Commission investigates disputes resulting from the determination of traditional authority boundaries and the merging or division of “tribes”, the Commission must, before making a recommendation in terms of section 72, consult with the Municipal Demarcation Board established by section 2 of the Local Government: Municipal Demarcation Act, 1998 (Act No. 27 of 1998), where the traditional council boundaries straddle municipal and or provincial boundaries.

 

 

(4) Subject to subsection (5) the Commission –

 

(a)     may only investigate and make recommendations on those disputes and claims that were before the Commission on 20 July 2010; and

 

(b)     must complete the matters contemplated in paragraph (a) within a period of five years, which period commences on the date of appointment of the members of the Commission in terms of section 67, or any such further period as the Minister may determine.

 

(5) The Commission –

 

(a)     may delegate any function contemplated in this section, excluding a matter related to kingships or queenships, to a committee referred to in section 73; and

 

(b)     must coordinate and advise on the work of the committees referred to in section 73.

 

(6) Sections 2, 3, 4, 5 and 6 of the Commissions Act, 1947 (Act No. 8 of 1947), apply, with the necessary changes, to the Commission.

 

(7) The Commission may adopt rules for the conduct of

 

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20.05 | 15:46

send an email to :griquacommissariate@gmail.com

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17.05 | 03:46

I am researching my Great Great Grandfather Missionary Christoph Andreas Sass who married an Orlam Kaaitjie Engelbrecht in Silver Fountain 1817. Any help please

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17.05 | 03:33

I am doing research of my Great Great Grandfather Christoph Andreas Sass who was a missionary in Namaqualand from 1811 and moved to Captain Cornelius Kok's Kraa

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15.05 | 14:16

Thanks Joe

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