Public Protector calls for bona fide involvement of traditional leaders in municipal council sittings

Public Protector Adv. Busisiwe Mkhwebane has called for sincerity of intention in the inclusion of traditional authorities in proceedings of municipal councils in areas across the country where customary law is observed. Speaking during a meeting with the KwaZulu-Natal House of Traditional Leaders (HOTL) in Durban on Wednesday, Adv. Mkhwebane said traditional leaders should not be invited to municipal council meetings merely to serve as tokens who do no more than observe the goings-on in such sessions. “When they sit in council meetings they are not just observers.

The law demands that they must also put items on the agenda. They must be involved in service delivery decisions affecting their subjects,” she said, adding that this was allegedly not the case in some municipalities across the country. In terms of the Municipal Systems Act 117 of 1998 (MSA), traditional authorities who observe a system of customary law in the area of a municipality may participate through their leaders in the proceedings of the municipal council and must be allowed to attend and take part in any meeting of that council.

The act provides further that before a municipal council takes a decision on any matter affecting the area of a traditional authority, the council must give the leader of that authority the opportunity to express a view on the matter. In addition to the MSA, there is the Traditional Leadership Governance Framework Act 41 of 2003 (TLGFA), which sets out the guiding principles for the allocation of roles and functions of traditional leaders and municipal councils. Under this law, national and provincial governments may provide a role for traditional councils or leaders in respect of arts and culture, land administration, agriculture, health, welfare, disaster management and births, deaths and customary marriages, among other things.

Adv. Mkhwebane’s remarks came within the context of her concerns about the non-implementation of the remedial action she took in December 2020 following an own-initiative systemic investigation on alleged tensions between some traditional authorities and the local sphere of government, thus dealing a devastating blow to the provision of quality of public service delivery to local communities. At the time, she directed MECs of Cooperative Governance and Traditional Affairs in all provinces but Gauteng and the Western Cape to put measures in place to support and strengthen traditional councils so they can fulfil their functions. Such measures included helping traditional authorities to enter into service delivery agreements with municipalities in accordance with the TLGFA.

The MECs were further urged to put in place measures to promote partnerships between municipalities and traditional councils in line with the TLGFA and the Intergovernmental Relations Framework Act. This was in the wake of findings that provincial departments of Cooperative Governance and Traditional Affairs (COGTA) failed to promote partnerships between district municipalities and Kingship or Queenship Councils in contravention of the TLGFA.

The departments were also found to have failed to provide information to traditional leaders and councils on their assigned roles and functions and on the Provincial Gazette which regulates their participation in proceedings of a municipal council and prescribes their role in the affairs of a municipality. They were further found to have failed to provide traditional leaders and councils with information on their funding, resourcing and remuneration. The provincial COGTA department in KwaZulu-Natal is among those that have not implemented the remedial action.

Adv. Mkhwebane will raise the issue with Premier Sihle Zikalala and Speaker of the Provincial Legislature Hon. Ntobeko Boyce in a future meeting. Also to be taken to the engagement with Premier Zikalala and Hon. Boyce are grievances the Chairperson of the HOTL, Inkosi Phathisizwe Chiliza, brought to Adv. Mkhwebane’s attention. These include lack of funding for the HOTL, lack of tools of trade for traditional leaders and issues concerning their conditions of service such as medical aid.

Deputy Public Protector Adv. Kholeka Gcaleka, who also spoke at the meeting with the HOTL, called on traditional leaders to join hands with the Public Protector South Africa (PPSA) and empower communities to stand up for themselves in the face of indifferent state functionaries. Communities needed to know their rights, entitlements and responsibilities; be knowledgeable about how government functions; and where to get help in the event of poor services and maladministration, she explained.

Adv. Mkhwebane and Adv. Gcaleka concluded the day’s programme with an inspection in loco at the site of a killer road, which meanders steeply down the “valley of a thousand hills” in KwaXimba, Cato Ridge, some 50km outside Durban, connecting with a narrow bridge over the Msunduzi River. The site is notorious for fatal road accidents.

Local traditional leader, Inkosi Mlaba and his council want the government to make the road safer for motorists. The PPSA is on a nationwide Stakeholder Roadshow during which parties interested in the office’s work are engaged in fulfilment of the office’s constitutional mandate to investigate, report on and remedy any alleged or suspected improper conduct in all state affairs and to be accessible to all persons and communities.

The roadshow’s next stop in the North West