Government Gazette REPUBLIC OF SOUTH AFRICA Vol. 462 Cape Town 19 December 2003 No. 25855 THE PRESIDENCY No. 1838 19 December 2003 It is hereby notified that the President has assented to the following Act, which is hereby published for general information:– No. 41 of 2003: Traditional Leadership and Governance Framework Amendment Act, 2003. AIDS HELPLINE: 0800-123-22 Prevention is the cure 2 ~~ KO. 25855 ~~ ~~ GOVERNMENT GAZETTE, 19 DECEMBER 2003 Act No. 41,2003 TR4DITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT, 200:' GENERAL EXPLANATORY NOTE: [ ] Words in bold type in square brackets omissions indicate existing enactments. Words underlined with existing enactments. from a solid line indicate insertions in (English text signed by the President.) (Assented to 11 December 2003.) To provide for the recognition of traditional communities; to provide for the establishmentandrecognition of traditionalcouncils;toprovideastatutory framework for leadership positions within the institution of traditional leadership, the recognition of traditional leaders and the removal from office of traditional leaders; to provide for houses of traditional leaders; to provide for the functions and roles of traditionalleaders;toprovidefordisputeresolutionandthe establishment of the Commission on Traditional Leadership Disputes and Claims; to provide for a codeof conduct; to provide for amendments the Remuneration to of Public Office Bearers Act, 1998; and to provide for matters connected therewith. PREAMBLE WHEREAS the State, in accordance with the Constitution, seeks* to set out a national framework and norms and standards that will define the place and role of traditional leadership within the new system of democratic governance; * to transform the institution in line with constitutional imperatives; and * to restore the integrity and legitimacy of the institution of traditional leadership in line with customary law and practices; AND WHEREAS the South African indigenous people consist a diversity of cultural of CQEXunities; AND WHEREAS the Constitution recognises* the institution, status and role of traditional leadership according to customary law; and * a traditional authority that observes a system of customary law; AND WHEREAS* theStatemustrespect,protectand promote the institution of traditional leadership in accordance with the dictates of democracy in South Africa; * theStaterecognises the need to provideappropriatesupportandcapacity building to the institution of traditional leadership; the institution of traditional leadership must be transformedto be in harmony with the Constitution and the Bill of Rights so that- democratic governance and the values of an open and democratic society may be promoted; and - gender equality within the institution of traditional leadership may progressively be advanced; and 4 No. 25855 GOVERNMENT GAZETTE, 19 DECEMBER 2003 TRADITIONAL LEADERSHE' AND GOVERNANCE FRAMEWORK ACT. 2003 Act No. 41,2003 * .. the institution of tradltmnal Ieadership must-- promote freedom, human dignity and the achicvement of equality and non-sexism; - derive its mandate and primary authority from applicable customary law and practices; - strive to enhance tradition and culture; - promote nation building and harmony and peace amongst people; - promote theprinciples of co-operative governance in its interaction with all spheres of government and organs of state; and - promote an efficient, effective and fair dispute-resolution system, and a fairsystem of administration of justice, as envisagedin applicable legislation, B E IT THEREFORE ENACTEDby the Parliament of the Republic of South Africa, as follows:- ARRANGEMENT OF SECTIONS Sections CSAPTER 1 INTERPRETATION AND APPLICATION 1. Definitionsapplication and CHAPTER 2 TRADITIONAL COMMUNITIES AND TRADITIONAL COUNCILS 2. 3. 4. 5. 6. 7. Recognition of traditional communities Establishmentandrecognition of traditionalcouncils Functions of traditional councils Partnerships between municipalities and traditional councils Support traditional to councils Withdrawal of recognition of traditional communities 10 15 CHAPTER 3 LEADERSHIP POSITIONS WITHIN INSTITUTION OF TRADITIONAL LEADERSHIP Part I : Introduction Part 2: Kings and queens 9. 10. Recognition of kings queens and Removal of kings or queens Part 3: Senior traditional leaders, headmen and headwomen 11. 12. 25 Recognition of sepiortraditionalleaders,headmen or headwomen Removal of senior traditional leaders, headmen or headwomen Part 4: General provisions regarding traditional leaders 13. 14. Recognition of regents Personsacting as traditional leader 30 6 No. 25855 GOVERNMENT GAZElTE, 19 DECEMBER 2003 Act No. 41,2003 TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT. 2003 15. .. Deputy trad!t!oEa! !eaders CHAPTER 4 HOUSES OF TRADITIONAL LEADERS 16.Houses of traditionalleadersinRepublic 17.Localhouses of traditionalleaders 18. Referral of Bills to National House of Traditional Leaders 5 CHAPTER 5 ROLES AND FUNCTIONS OF TRADITIONAL LEADERSHIP 19.Functions of traditionalleaders 20. Guidingprinciples for allocation of roles and functions 10 CHAPTER 6 DISPUTE RESOLUTION AND COMMISSION ON TRADITIONAL LEADERSHIP DISPr_rTESAND CLAmlrS 21. Dispute resolution 22. Establishment of Commission 23. Appointment of members of Commission Vacancies 24. 25. Functions of Commission 26. Decisions of Commission 15 20 CHAPTER 7 GENERAL PROVISIONS 27. Code of conduct 28. Transitional arrangements 29. Amendment of Act 20 of 1998, as amended by Act 21 of 2000 30. Short and title commencement CHAPTER 1 INTERPRETATION AND APPLICATION Definitions and application I. (1) hAct, this udess the context indicates otlienvise30 “area of jurisdiction” means the area of jurisdiction designated for a traditional community and traditional council that have been recognised as provided for in sections 2 and 3 ; “code of conduct” means the code of conduct contained in the Schedule, and includes in respectof a particular province, a provincial code conduct envisaged 35 of in section 27, if in existence; “Commission” means the commissionestablished by section 22; “customary institution or structure” meansthoseinstitutions or structures established in terms of customary law; “district municipality” means a district municipality as defined in section1 of the 40 Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998); “headman or headwoman” means a traditional leader who(a) is under the authority of, or exercises authority within the area of jurisdiction of, a senior traditional leader in accordance with customary law; and recognised (b) is as such in terms 45Act; of this “headmanship” means the position held by a headman or headwoman; “king or queen” means a traditional leader- 25 8 No. 25855 GOVERNMENT GAZETTE. I9 DECEMBER 2003 TRAIIITIONAL LEADERSHIP AND GOVEF3VAIVCE FRAMEWORK ACT. 2003 Act No. 41,2003 j c ! under whnsr authority. or within whose are?. ofjurisc!iction, senior traditinna! leaders exercise authority in accordance with customary law; and (11) recognised as such in terms of this Act; “kingship” means the position held by a king or queen; “local house of traditional leaders” means a local house of traditional leaders provided for in section 16(b); “metropolitan municipality” means a metropolitan municipality as defined in section 1 of the Local Government: Municipal Srructures Act, 1998 (Act No. 117 of 1998); “Minister” meansthe national Ministerresponsiblefortraditionalleadership matters; “provincial house of traditional leaders” means a provincialhouse of traditional leaders envisaged in section 16(a); “regent” means any person who. in terms of customary law of the traditional communityconcerned,holdsatraditionalleadershippositioninatemporary capacity until asuccessor to that positionwho is aminor, is recognised as contemplated in section 13(4); “royal family” means the core customary institution or structure consisting of immediate relatives of the ruling family within a traditional community,who have been identified in terms of custom, and includes, where applicable, other family members who are close relatives of the ruling family; “senior traditional leader” means a traditional leader of a specific traditional community who exercises authority over a number of headmen or headwomen in accordance with customary law. or within whose area of jurisdiction a number of headmen or headwomen exercise authority; “senior traditional leadership” means the position held by a senior traditional leader; “traditional community” means a traditional community recognised as such in terms of section 2; “traditional council” means a council established in terms of section 3; “traditional leader” means any person who, in terms of customary law of the traditional community concerned, holds a traditxonal leadership position, and is recognised in terms of this Act; “traditional leadership” means the customary institutions or structures, or customary systems or procedures of governance, recognised, utilised or practised by traditional communities; “tribe” means a tribe thatwas established or recognised under legislation in force before the commencement of this Act. (2) Nothing contained in this Act may be construed as precluding members of a traditionalcommunity from addressingatraditionalleader by the traditional title accorded to him or her by custom, but such traditi0na.l 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. 5 10 15 20 25 30 35 40 45 CHAPTER 2 TRADITIONAL COMMUNITIES AND TRADITIONAL COUNCILS Recognition of traditional communities 2. (1) A community may be recognised as a traditional community if it50 (a) is subject to a system of traditional leadership in terms of that community’s customs; and ( 0 ) observes a system of customary law. (2) (a)The Premier of a provincemay, by notice in the Provincial Gazette, In accordance with provincial legislation and after consultation with the provincial house 55 of traditional leaders in the province, the community Concerned, and, if applicable, the king or queen under whose authority that community would fall, recognise a community envisaged in subsection (1) as a traditional community. 10 No. 25855 GOVERNMENT GAZETTE, TRADITIONAL LEADERSHIP AhD GOVERNANCE FRAMEWORK ACT. 20078 mfo-nrl A ~ ~ 1 I L I * U C I \ , I I L Y I Y L L V U 19 DECEMBER 2003 Act No. 41,2003 (i) provide for a process that will allow for reasonably adequate consultation with the community concerned; and (ii) prescribe a fixed period within which the Premier of the province concerned must reach a decision regarding the recognition of a community envisaged in 5 subsection (1) as a traditional community. (3) A traditional community must transform and adapt cusf.omary 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( u ) preventing unfair discrimination; 10 ( b ) promotingequality; and ( c ) seeking to progressively advance gender representation in the succession to traditional leadership positions. ,u, / L l D-n.r;-c:ql l o A p l + ; r . n 1 I""*llrlUI tn ;n L" 111 yULUE'Uy" nqtclnrclnh /,,I ILL, IIIYOL mrlrt-p Establishment andrecognition of traditional councils 3. (1) Once the Premier has recognised a traditional conmunity, thattraditional community mustestablishatraditionalcouncilin line withprinciples set out in provincial legislation. (2) ( a ) A traditional council may have no more than 30 members, depending on the needs of the traditional community concerned. jbj At leasta third of themembers of a traditiocai cou~ci! inust lie womez. ( c ) The members of a traditional council must comprise(i) traditional leaders and members of the traditional community selected by the senior traditional leader concerned in terms of that community's customs, taking into account the need for overall compliance with paragraph (bj; and (ii) other members of the traditional community who are democratically elected for a term of five years, and who must constitute 40% of the members of the traditional council. (d) Where it has been proved that an insufficient number of women are available to participate in a traditional council, the Premier concerned may, in accordance with a procedure provided for in provincial legislation, determine a lower threshold for the particular traditional council than that required by paragraph (b). (3) The Premier concerned must. by noticeinthe Provincial Gazette and in accordance with the relevant provincial legislation, recognise a traditional council for that traditional community within a defined area of jurisdiction. 15 20 25 30 councils of traditional Functions 4. (1) A traditional council has the following functions: Administering the affairs of the traditional community in accordance with customs and tradition; assisting, supporting and guiding traditional leaders in the performance of their functions; supporting municipalities in the identification of community needs; facilitating tine involvement of the traditionai community in the development or amendment of the integrated development plan of a municipality in whose area that community resides; recommending, consultation after with the relevant and local provincial houses of traditional leaders, appropriate interventions to government that will contribute to development and service delivery within area the of jurisdiction of the traditional council; participating in the development of policy and legislation at local level; participating in development programmes of municipalities and of the provincial and national spheres of government; promoting the ideals of co-operativegovernance,integrateddevelopment planning, sustainable development and service delivery; promoting indigenous knowledge systems for sustainable development and disaster alerting any relevant municipality to any hazard or calamity that threatens the area of jurisdiction of the traditional council in question, or the well-being of people living such in area of jurisdiction, contributing and to disaster management in general: 35 40 45 50 ment; 55 No. 12 25855 GOVERNMENT GAZETTE, TR4DITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT. 2003 19 DECEMBER 2003 Act No. 41. 2003 council traditional liifoiriiation aiij co-operaGiig oihei. ti.a&ioii$ iouiicils; aiid (1) performing the functions conferred by custolnary law, customs and statutory law consistent with the Constitution. (2) Applicable provincial legislation mustregulate theperformance of functions by a traditional council by at least a council requiring traditional to-5 (ai keep proper records; ( b ) have its financial statements audited; (c) disclose the receipt of gifts; and (d) adhere to the code of conduct. (3) A must10 ( a ) co-operate with any relevant ward committee established in terms of section 73 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998); and ( b ) meet at least once a year with its traditional communityto give account of the activities and finances of the traditional council and levies received by the 1.5 traditional council. (4)A traditional counciland itsresources may not beused to promote or prejudice the interest of any political party. (k) Partnerships between municipalities and traditional councils 5. ( I ) The national governmentand all provincial governments must promole 20 partnerships between municipalities and traditional councils through legislative other or measures. (2) Any partnership between a municipality and a traditional council must( a ) be based on the principles of mutual respect (andrecognition of the status and respective the and parties; 2.5 roles of ( b ) be guided by and based on the principles of co-operative governance. (3) A traditional council enter a may intoservice delivery agreement a with municipality in accordance with the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000), and any other applicable legislation. councils to traditional Support 6. The national government and a provincial government may adopt such legislative orother measures asmaybe necessary tosupport andstrengthenthecapacity of traditional councils within the province to fulfil their functions. Withdrawal of recognition of traditional communities 30 7. (1) The withdrawalof the recognition of a community as a traditional community as provided for in section 2, may only be considered where( a ) the community concerned requests the Premier of a province its that recognition as a traditional community be withdrawn; ( b ) the provincial government concerned is requested to review the position of a community or communitiesthat was or were divided or merged prior to 1994 in terms of applicable legislation; or ( c ) two or more communities so recognised, request the Premier of a province that they be merged intoa single traditional community. ( 2 ) ( a )The withdrawalof the recognition of a community asa traditional community must be done by the Premier of a province in accordance with applicable provincial legislation. ( b ) The provincial legislation referred to in paragraph ( a ) must(i) provide for the withdrawal of the recognition of a traditional council at the same time that the recognition of its traditional community is withdrawn as provided for in paragraph (a); and (ii) make provision for consultation by the Premier with the provincial house of traditional leaders concerned, any community that may be affected, and, if applicable, the king or queen under whose authority such a community falls, before the withdrawal of the recognition of a traditional community may be effected by way the a notice ofin Provincial Gazette. 35 40 45 50 55 14 No. 25855 GOVERNMENT GAZETTE. 19 DECEMBER 20G3 TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT, 2003 ~ Act No. 41,2003 ( 3 )Tiie Preiiiiei. uf pi.o-v;iice iii.usi, iii tziiiij uf sccii,sii 2, coiisi&i-iliZ i.ecugii&oii i,f separate traditional communities or a merged traditional community where a review of the division or merger of communities envisaged by subsection (l)(h) indicates that newly constituted traditional communities must be recognised. CHAPTER 3 LEADERSHIP POSITIONS WITHIN INSTITUTION OF TRADITIONAL LEADERSHIP Part I : Introduction 5 Recognition of traditional leadership positions 8. The following leadership positions within the institution of traditional leadership 10 are recognised: ( a ) Kingship; ( h ) senior traditional leadership;and (c) headmanship. Part 2: Kings and queens Recognition of kings and queens 9. (I) Whenever the position of a king ora queen is to be filled, the following process must be followed: ( a ) The royal family must, within a reasonable time after the need arises for the position of a king or a queen to be filled, and with due regard to applicable 20 customary law(i) identify a person who qualifies in terms of customary law to assume the position of a kingor a queen, as the case may be, after takinginto account whether any of the grounds referred to in section 10(l)(a), (b) and (d) apply to that person; and 25 (ii) through the relevant customary structure(aa) inform the President,the Premier of the province concerned and the Minister, of the particulars of the person so identified to fill the position of a king or a queen; (bb) provide the President with the reasons for the identification of that 30 person as a king or a queen; and (cc) give written confirmation to the President that the Premier of the province concerned and the Minister have been informed accordingly; and ( 6 ) the President must, subject to subsection ( 3 ) ,recognise a person so identified 35 in terms of paragraph (a)(i) as a king or a queen, taking into account(i) the Geed ta estzblish unifarmity in the Repub!i:: i respect zf the s t a ~ s : afforded to a king or queen; (ii) whether a recognised kingship exists(aa) that comprises the areas of jurisdiction of a substantial number of 40 senior traditionalleaders that fall under the authority such king or of queen; (bb) in terms of which the king or queen is regarded and recognised in terms of customary law and customsas a traditional leader higher of status than the senior traditional leaders referredto in subparagraph 45 (aa); and (cc) where the king a queen has a customary structure to represent the : traditional councils and senior traditional kaders that fall under the authority of the king or queen;and. (iii) the functions that will be performed by the king, or queen. 50 (2) The recognition of a person as a king or a queenin terms of subsection (1)jb) must be done by way of(a) a notice in the Gazette recognising the person identified as king or queen; and (b) the issuing of a certificate of recognition to the identified person. 15 16 No. 25855 GOVERNMENT GAZETTE. 19 DECEMBER 3-003 - Act No. 11.2003 TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT, 2003 ( 3 ) Whertt there ii evidence nr 2n a!!egttinr! that the identification of 2 person referred to in subsection (1) was not done in accordance with customary law, customs or processes, the President( a ) may referthematter to theNational House of Traditional Leadersforits 5 recommendation; or f h j may refuse to issue a certificate of recognition; and (ci must refer the matter back to the royal family for reconsideration and resolution where the certificate of recognition has been refused. (4) Where the matter which been has referred back to the royal family for reconsideration and resolution in terms of subsection (3) has been reconsidered and 10 resolved, the President must recognise the person identified by the royal family if the President issatisfied that the reconsideration and resolution the royal family has been by done in accordance with customary law. ( 5 ) ( a ) The President may, by notice in the Gazette, make regulations concerning-(i) the traditional or ceremonial role of a lung or queen; 15 (ii) the responsibilities of a king or queen in respect of nation building; and (iii) other functions or roles of a king or queen. ( b ) Regulations made in terms of paragraph ( a ) must be tabled in Parliament after their publication in the Gazette. Removal of kings or queens 20 10. (1) A king or queen may be removed from office on the grounds of( a ) conviction of an offence with a sentence of imprisonment for more than 12 months without an option of a fine; ( b ) physical incapacity or mental infirmity which, based on acceptable medical evidence, makes it impossible for the king or queen to function as such; 25 (c j wrongful appointment or recognition; or (d) a transgression of a customary rule or principle that 'warrants removal. (2) Wheneverany of the grounds referred to in subsection (1 )(a),(bj and (d) come to the attentionof the royal family and the royal family decides to remove aking or queen, the royal family must, within a reasonable time and through the relevant customary 30 structure(aj inform the President, the Premier of the province concerned and the Minister, of the particulars of the king or queen to be .removed from office; (bj furnish reasons for such removal; and (c) give written confirmation to the President that the Premier of the province 35 concerned and the Minister have been informed accordingly. (3) Where it has been decided to remove a king or queen in terms of subsection (2), the President must(aj withdraw the certificate of recognition with effect from the date of removal; ( b ) publish a notice with particulars of the removed king or queen in the Gazette; 40 and ( c ) inform the royal family concerned, and the removed king or queen of such removal. (4) Where a king or queen is removed from office, a successor in line with customs may assume the uosition. role and resDonsibilities. subiect to section 9. ~ ~~~~~ ~~~~~~~~~~~ 18 No. 25855 GOVERNMENT GAZEITE, 19 DECEMBER 2003 TRADITIONAL LEADERSHE' AND GOVERNANCE FRAMEWORK ACT. 2003 '2nn;nr "-.'I", 1,UU'.I*",IUI Act No. 41,2003 1 W,' 7 Po-t d .. h.nll;h'nnoJ JnnJnrr &YUUY,Y, .I.,UW..L.".I hnnllmnn U.*W "MA ,Y l U U . .l. r".ll LnnJlr,nmnn Recognition of senior traditional leaders, headmen or headwomen 11. (1) Whenever the positionof senior traditional leader, headman or headwoman is to be filled(a) the royal family concerned must, within a reasonable time after the need 5 arises for anyofthose positions to be filled, and with due regard to applicable customary law(i) identify a person who qualifies in terms of customary law to assume the position in question, after taking account whetherany of the grounds into referred to in section 12(l)(a), ( b ) and (d) apply to that person; and 10 (ii) through the relevantcustomarystructure,informthePremier of the province concernedof the particularsof the personso identified to fill the position and of the reasons for the identification of that person; and ( b ) the Premier concernedmust, subject to subsection(3),recognise the personso identified by the royal family in accordance with provincial legislation as 15 senior traditional leader, headman or headwoman, as the case may be. (2) (a)The provincial legislation referredto in subsection (l)(b) must at least provide for(i) a notice in the Provincial Gazette recognising the person identified as senior traditional leader, headman or headwoman in terms of subsection (1); 20 (ii) a certificate of recognition to be issued to the identified person; and (iii) therelevantprovincial houseof traditionalleaders to beinformed of the recognition of a senior traditional leader, headman or headwoman. (6) Provincial legislation may also provide for(i) the election or appointment of a headman or headwoman terms in of 25 customaq law and customs; and (ii) consultation by the Premier with the traditional council concerned where the position of a senior traditional leader, headman or headwoman is to be filled. (3) Where there is evidence an allegation that the identification a person referred or of toinsubsection(1)wasnotdone inaccordance with customary law, customsor 30 processes, the Premier( a ) may refer the matter to the relevant provincial houseof traditional leaders for its recommendation; or (bj may refuse to issue a certificate of recognition; and (c) must referthematterbacktotheroyalfamilyforreconsideration and 35 resolution where the certificate of recognition has been refused. (4) Where matter the which been has referred to royal back the family for reconsideration and resolution in terms of subsection (3) has been reconsidered and resolved, the Premier must recognise the person identified by the royal family if the Premier is satisfied that the reconsideration and resolution by the royal family has been 40 done in accordance with customary law. Removal of senior traditionalleaders, headmen or headwomen 12. (1) A senior traditional leader, headman or headwoman may be removed from office on the grounds of(a) conviction of an offence with a sentence of imprisonment for more than 12 45 months without an option of a fine; (b) physical incapacity or mental infirmity which, based on acceptable medical evidence, makes it impossible for that senior traditional leader, headman or headwoman to function as such: (c) wrongful appointment or recognition; or 50 (dj a transgression of a customary rule or principle that warrants removal. (2) Whenever any of the grounds referred to in subse,ction (1 )(a),(b) and (d) come to theattention of the royal family and theroyalfamilydecides to remove a senior traditional leader, headman or headwoman. the royal family concerned must, within a reasonable time and through the relevant customary structure-55 ( a ) inform the Premier of the province concerned of the particulars of the senior traditional leader, headman or headwoman to be removed from office: and Ih) furnish reasons for such removal. 20 N o . 75855 GOVERNMENT GAZETTE. TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK .4CT. 2003 19 DECEMBER 2003 Act No. 41,2003 ( 3 ) ‘T:ie : ’l i~ has ~ C X E ~ i d to ieicG>-ea s e n i ~ ti r a d i d ~ ~ d d d :c;dcr, hc;d~;~ GT headwoman in terms of subsection ( 2 ) ,the Premier of the province concerned must. in terms of applicable provincial legislation( a , withdraw the certificate of recognition with effect from the date of removal; (0) publish a noticewith particulars of theremovedsenior traditional leader, 5 headman or headwoman in the Provincial Gazette; and ( c ) inform the royalfamilyconcerned.theremovedseniortraditionalleader, headman or headwoman,and the provincialhouse of traditional leaders concerned, of such removal. (4) Where a senior traditional leader, headman or headwoman is removed from office. 10 a successor in line with customs may assume the position, role and responsibilities, subject to section 11. Part 4: General provisions regardingtraditional leaders Recognition of regents 13. (1) Where the successor to the position of king, queen, senior traditional leader, I 5 headman or headwoman identified terms of section 9 or 11 is still regarded as a minor in in terms of applicable customary law or customs( a ) the royal family concerned must, within a reasonable time(i> identify a regent to assume leadership on behalf of the minor: and (ii) throughtherelevantcustomarystructure,informthePremier of the 20 province concerned of the particulars of the person identified as regent and the reasons for the identification of that person; and ( b ) the Premier concerned must, with due regard to applicable customary law or customs, and subject to subsections and (3), recognise the regent identified (2) by the royal family in accordance with provincial legislation. 25 (2) The provincial legislation referred to in subsection ( l ) ( h )must at least provide for(a) a notice in the Provincial Gazette recognising the person identified as regent in terns of subsection (1); (0) a certificate of recognition to be issued to the identified regent; 30 ( c ) the recognition of a regent to be reviewed by the Premier at least every three years; and jd) the relevantprovincialhouse of traditionalleaders to beinformed of the recognition of a regent. (3) Where there is evidence or an allegation that the identification of a person as 35 regentwasnotdoneinaccordance with customary law, customsorprocesses,the Premier( a ) may refer the matter tothe relevant provincial house of traditional leaders for its recommendation; or ( b ) may refuse to issue a certificate of recognition; and 40 (c) must the refer matter back to theroyalfamilyforreconsiderationand resolution where the certificate of recognition has been refused. ( ) Where matter 4 the which has been referred to royal back the family for reconsideration and resolution in terms of subsection (3) has been reconsidered and resolved, the Premier must recognise the person identified by the royal family if the 45 Premier is satisfied that the reconsideration and resolution by the family havebeen royal done in accordance with customary law. ( 5 ) As soon as the successor to the position of king. queen, senior traditional leader, headman or headwoman ceases to be a minor in terms of customary law, the regent recognised in terms of subsection (1) must relinquish his or her position as regent. and 50 the rightful successor must( a ) in the caseof a king or queen. be installedby the President in terms of section 9( l ) ( b ) ,and a certificate of recognition contemplated in section 9(2)(b) must be issued after his or her name has been published inthe Gazette; or jb) in the case of a senior traditional leader. headman or headwoman,be installed 5 5 by the Premier in terms of section 11(I)(b), and a certificate of recognition contemplated in section Il(2)(aj(ii) must be issued after his or her name has been published i n the P r o v i m i d Gazette. 12 No. 15855 GOVERNME?NTGAZETTE, I!, DECEMBER 2003 TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK .4CT. 2003 Act No. 41,2003 ( 6 )'%ere a regem hab been r c c u g n i d ill lespt;ci oi the p i t i u i i of a kiig or q ~ m , the Premier concerned must inform the President( a ) of the particulars of the regent; jb) when the regent is supposed to relinquish his or her position as regent; and (c) of the withdrawal of the recognition of the regent. 5 Persons acting as traditional leader nt. 14. (1) A royalfamily may, inaccordancewithprovinciallegislation,identifya suitable person to act as a queen, king, senior traditional leader, headman or headwoman, as the case may be, wherea successorto the position of a king, queen, senior traditional leader, headman 10 or headwoman has not been identified by the royal family concernedin terms of section 9( 1 ) or 11(1); theidentification of asuccessortotheposition of aking,queen,senior traditional leader, headman headwoman is being reconsidered and resolved or in terms of section 9(3) or 15 or 11(3); a king, queen, senior traditional leader, headmanor headwoman, as the case may be, would be absent his her from or area of jurisdiction under circumstances other than those provided for in section and for a period of 1.5 more than six months for(i) the treatment of illness; 20 (ii) skdyy prposes; or (iii) any other lawful purpose. (2) An acting appointment in terms subsection (1) must be made in accordance with of provincial legislation, which legislation must at least provide for( a ) a certificate of appointment in an acting position to be issued by an appropriate 2.5 authority; ( b ) a review of the acting appointment on a regular basis; ( c ) the removal of a person who has been appointed in an acting position; and (d) the relevant provincial house of traditional leaders to be informed of such an acting 30 (3) A person who has been appointed as an acting king, queen, senior traditional leader, headman or headwoman in terms of subsection (1) may perform the functions thatareattachedtothekingship,seniortraditionalleadership or headmanshipin question. (4) Where a person has been appointed as an acting king or queen, the authority 3.5 referred to in subsection (2)(a)must inform the President of(a) theactingappointment;and (b) the removal of the person who has been appointed an acting king or queen. as Deputy traditionalleaders 15. (1) A king, queen, senior traditional leader, headman or headwoman, as the case may be, may, after consultation with the royal family, appoint a deputy to act in his or her whenever stead that king, senior queen, traditional headman leader, or headwoman(a) becomes a fuii-rime member of a municipai councii; (b) is electedmember as a provincial of alegislature; (c) is elected as a member of the National Assembly; (d) is appointed as a permanent delegate in the National Council Provinces; or of ( e ) is elected to, or appointed in, a full-time position in any house of traditional leaders. (2) An appointment in terms of subsection (1) must be made in accordance with provincial legislation, which legislation must at least provide for( a ) the removal of a person who has been appointed as a deputy; (bj a certificate of appointmentto be issued to adeputyby an appropriate authority; and (c) the relevant provincial house of traditional 1e.aders to be informed of such an appointment. (3) A person who has been appointed as a deputy in terms of subsection (1) may perform the functions that are attached to the kingship, senior traditional leadership or headmanship in question. (4) Where a kingor queen has appointed a deputyin terms of subsection (l),the king or queen must inform the President of such appointment. 40 45 50 55 60 24 No. 25855 GOVERNMENT GAZETTE, 19 DECEMBER 2003 Act No. 41,2003 TRADITIONAL LEADERSHIP AND GOVEJRNANCE FRAMEWORK ACT, 2003 HOUSES OF TRADITIONAL LEADERS Houses of traditional leaders in Republic 16. (1) The houses of traditional leaders in the Republic are( a ) anationalhouse of traditionalleadersandprovincialhouses of traditional 5 leaders as provided for in section 212(2)(a) of the Constitution; and (b) local houses of traditional leaders established in accordance the with principles set out in section 17. (2) A house of traditional leaders and its resources may not be used to promote or interest theprejudice any of political party. 10 (3) Provincial legislation must provide for mechanislns or procedures that would allow a sufficient number of women( a ) to be represented in the provincial house of traditional leaders concerned; and (bj to be elected as representatives the provincial houseof traditional leadersto of House National the of Traditional Leaders. 15 Local houses of traditional leaders 17. (1) A !oca! house of :;aditional leaders m~ls:be established in accordance with provincial legislation the for area of jurisdiction of a district municipality or metropolitan municipality where more than one senior traditional leadership exists in metropolitan municipality. thator municipality district 20 (2) ( a ) The numberof members of a local houseof traditional leadersmay not be less than five and may not be more than 10, or such other higher number not exceeding 20 as may be determined by the Minister where thereare more than 35 traditional councils within the area of jurisdiction of a district municipality or metropolitan municipality. ( b )Members of a local houseof traditional leaders are elected byan electoral college 25 consisting of all kings or queens,or their representatives, and senior traditional leaders residing within the district municipality or metropolitan municipality in question. (c) The electoral college referred to in paragraph (b) must seek to elect a sufficient number of women to make the local house of traditional leaders representative of the traditional leaders area within the of jurisdiction in question. 30 (3) The functions of a local house of traditional leaders are(a) to advise the district municipality or metropolitan municipality in question on(i) matters pertaining to customary law, customs, traditional leadership and the traditional communities within the district municipality metropoli- 35 or tan municipality; (ii)thedevelopment of planningframeworksthatimpacton traditional communities; or (iii) the development of by-laws that impact on traditional communities; ( b ) to participate in local programmes have development that the of rural 40 communities as an object; or (c) to participate in local initiatives that are aimed at monitoring, reviewing or evaluating government programmes in rural communities. (4) Where a local house of traditional leaders cannot be established in terms of subsection (l), thefunctions of alocalhouse of traditionalleaders referred to in 45 subsection ( 3 )are performedby the traditional council within the district municipality or metropolitan municipality concerned. Referral of Bills to National House of Traditional Leaders 18. (1) ( a ) AnyparliamentaryBillpertainingtocustomary law or customs of traditional communities must, before it is passed by the house of Parliament where it 50 was introduced, be referred by the Secretary to Parliament to the National House of Traditional Leaders for its comments. ( b )The National House of Traditional Leaders must, within 30 days from the dateof such referral, make any comments it wishes to make. (2) A provincial legislature or a municipal council mayadoptthe same procedure 55 referred toin subsection (1) in respectof the referralof a provincial Bill a draft by-law or 26 GOVERNMENT No. 25855 GAZE'ITE, TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT, 2003 19 DECEMBER 2003 Act No. 41,2003 to a provinciai houseof traditionai ieaders or a iocai houseof uadirionai ieaders, as tine case may be. CHAPTER 5 ROLES AND FUNCTIONS OF TRADITIONAL LEADERSHIP Functions of traditional leaders 5 19. A traditional leader performs the functions provided for in terms of customary law and customs of the traditional community concerned, and in applicablelegislation. Guiding principles for allocation roles and functions of 20. (1) National government or a provincial government, as the case may be, may, through legislative other or measures, provide a role for traditional councils or 10 traditional leaders in respect of( a ) arts andculture; ( b ) land administration; (c) agriculture; 15 (d) health; (e) welfare; (f) the administration of justice; (g) safetyandsecurity; (h) the registration of births, deaths and customary marriages; development; (i) economic 20 ( j ) environment; ( k ) tourism; ( I ) disaster management; (m) the management of natural resources; and (n) the dissemination of information relating to govemment policies and 25 programmes. ( 2 ) Whenever an organ of statewithinthenationalgovernment or a provincial government considers allocating arole for traditional councils or traditional leaders in terms of subsection (l),that organ of state mustthe (a) seek concurrence of30 (i) the Minister if it is an organ of state in the national spheregovernment; of or (ii) the Member of the Executive Council responsible for traditional affairs in the province concerned if it is an organof state of that province; (b) consult with35 (i) the relevant structures of traditional leadership; and (ii) the South African Local Government Association; (c) ensure that the allocation of a role or function consistent the is with Constitution and applicable legislation; (d) take the customary law and customs of the respective traditional communities 40 into acco.unt; (e) strive to ensure that the allocation of a role or function is accompanied by resources andthat appropriate measures for accounting such resources are for put in place; (f) ensure, to the extent that it is possible, that the allocation of roles or functions 45 is implemented uniformly in areas where the institution of traditional leadership exists; and (8) promote the ideals of co-operative governance, integrated development planning, sustainable development and service delivery through the allocation of roles and functions. 50 (3) Where an organ of state has allocated a role or function to traditional councils or traditional leaders as envisaged by subsection (l), the organ of state must monitor the implementation of the function and ensure that(a) the implementation of the function is consistent with the Constitution; and performed. being (6) the function is 55 (4) Where traditional council does not perform an allocated function a as envisaged in subsection ( 3 ) , any resources givento a traditional council to perform that function may be withdrawn. 28 No. 25855 GOVERNMENT GAZETTE, 19 DECEMBER 2003 TRADITIONAL LEADERSHIP AND GOL'ERNANCE FRAMEWORK ACT. 2003 Act No. 41,2003 DISPUTE RESOLUTION AND COMMISSION ON TRADITIONAL LEADERSHIP DISPUTES AND CLAIMS Dispute resolution 21. (1) ( a ) Whenever a dispute concerning customary law or customs arises within a traditional community or between traditional communities customary or other institutions on a matter arising from the implementationof this Act, members of such a communityandtraditionalleaderswithinthetraditionalcommunityorcustomary institution concerned must seekto resolve the dispute internally and in accordance with customs. (b) Where a disputeenvisagedinparagraph ( a ) relatestoacasethat must be investigated by the Commission in terms of section 25(2),the dispute must be referred to the Commission, and paragraph ( a ) does not apply. ( 2 ) ( a ) A dispute referred to in subsection (l)(a) that cannot be resolved as provided for in that subsection must be referred to the relevant provincial house of traditional leaders, which house must seek to resolve the dispute in accordance with its internal rules and procedures. (bj If a provincialhouse of traditionalleadersisunable to resolveadispute as provided for in paragraph the dispute must referred to the Premierof the province (a). be concerned, dispute who theafter must having resolve consulted(i) the parties to the dispute; and (ii) the provincial house of traditional leaders concerned. Establishment of Commission 22. (1) There is herebyestablished a commissionknown as theCommission on Disputes Traditional Leadership and Claims. 25 ( 2 )The Commissionmust carry out its functions in manner that is fair, objective and a impartial. 5 10 15 20 Appointment of members of Commission 23. ( I ) The President must appoint not more that 15 persons as members of the Commission who are knowledgeable regarding customs the institutionof traditional 30 and leadership. ( 2 ) AnyvacancyontheCommissionmust be filled in terms of subsection (1) whenever it arises. (3) The President may remove a member of the Commission on the grounds of( a ) conviction by a criminalwithout court an option of a fine; 35 ( h ) physical incapacity; (c) such member having been declared insolvent by a court; and (it; such member having been declzec! to be of ~nsor;nc! mind by a court. Vacancies 24. A vacancy occurs whenever a member of the Commission40 (a) resigns by giving written notice to the President; (bj is removed in terms of section 23(3);or ( c ) becomes a member of the National Assembly, a provincial legislature or a municipal council, or becomes a permanent delegate to the National Council 45 of Provinces. Functions of Commission 25. ( I ) The Commissionoperatesnationallyandhas authority to decide onany traditional leadel-ship dispute and claim contemplated in subsection (2) and arising in any province. (2) ( a ) The Commission has authority to investigate, either on request or of its own 30 accord- 30 No. 25855 GOVERNMENT GAZETTE, 19 DECEMBER 2003 TR4DITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT, 2003 Act No. 41,2003 (i) a case where there is don“,; as -&&er 2 Sngship,senior :;a&ii r;a! :o leadership or headmanship was establishedaccordance with customary law in and customs; (ii) a traditional leadership position where the title or right of the incumbent is 5 contested; (iii) claims by communities to be recognised as traditional communities; (iv) the legitimacy of the establishment or disestablishment of “tribes”; (v) disputes resulting from the determination of traditional authority boundaries and the merging or division of “tribes”; and (vi) where good grounds exist, any other matters relevant to the matters listed in 10 this paragraph, including the consideration of events that may have arisen before 1 September 1927. (b)A dispute or claim may be lodged by any person and must be accompanied by information setting outthenature of thedispute orclaimandanyotherrelevant 15 information. (c) The Commission may refuse to consider a dispute or claim on the ground that(i) the person who lodged the dispute claim has not provided the Commission or with relevant or sufficient information; or (ii) the dispute is to be dealt with in terms of section 21(l)(a) in a case where section 21(l)(bj does not apply. 20 (3) ( a )When considering a dispute or claim, the Commission must consider and apply customary law and the customs the relevanttraditional community as they were when of the events occurredthat gave rise to the dispute or claim. ( b ) The Commission must(i) in respect of a kingship, be guided the criteria set out in section 9(1)(b)and 25 by such other customary norms and criteria relevant to the establishment of a kingship; and (ii) in respect of a senior traditional leadership or headmanship, be guidedby the customarynormsand criteria relevant to theestablishment of asenior traditional leadership or headmanship, as the case may be. 30 (c) Where the Commission investigates disputes resulting from the determination of traditional authority boundaries the and merging or division of “tribes”, the Commission must, before taking a decision in terms of section 26, consult with the MunicipalDemarcationBoardestablished by section 2 of theLocalGovernment: Municipal Demarcation Act, 1998 (Act No. 27 of 1998). 3s (4) The Commission has authority to investigate all traditional leadership claims and disputes dating from 1 September 1927, subject to subsection (2)(a)(vi). ( 5 )The Commission must complete its mandate within a of five years or within period such longer period as the President may determine. (6) Sections 2 , 3 , 4 , 5 and 6 of the Commissions Act, 1947 (Act 8 of 1947), apply, 40 No. with the necessary changes, to the Commission. Decisions of Commission 26. (1) A decision of the Commission is taken with the support of at least two thirds of the members of the Commission. (2) A decision of the Commission must, within two weeks the decision being taken, 45 of be conveyedto( a ) the President for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision;and (b) the relevant provincial government and any other relevant functionary which must immediately implement the decision of the Commission in accordance 50 with applicable provincial legislation in so far as the implementation of the decision does not relate to the recognition or removal of a king or queen in terms of section 9 or 10. (3) Any decision taken by the Commission must be conveyed to the President. 32 No. 25855 GOVERNMENT GAZETTE, TRADIT[ONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT, 2003 19 DECEMBER 2003 Act No. 41,2003 GENERAL PROVISIONS Code of conduct 27. (1) The code of conduct contained in the Schedule applies to every traditional leader and traditional council and must, in respect of a particular province, be read 5 together with the relevant provincial code as envisaged by subsection (2)(a). (2) ( a ) Provincial legislation may prescribeprovincial a code of conduct for traditional leaders and traditional councils in the province concerned complements that the code of conduct contained in the Schedule. (b)A provincial code of conduct envisaged in paragraph (a) may10 (i) further regulate or define the ambit of a matter mentioned in item 1 or 2 of the Schedule; or (ii) prescribe any other matterthat a traditional leader or traditional council must a adhere to. (3) Applicable provincial legislation must at least provide for15 ( a ) mechanisms to deal with any breach of the code of conduct; and (0) fines that may be imposed for a breach of the code of conduct, and in respect of a traditional leader also other penalties that do not include the removal of the traditional leader; and (c) an acting position during the period that a traditional leader is suspended for 20 a breach of the code of conduct, if such a penalty is provided for. Transitional arrangements 28. (1) Any traditional leader whowas appointed as such in terms of applicable provincial legislation and was recognised as a traditional leader immediately before still the commencement of this Act, is deemed to have beenrecognised as such in terms of 25 section 9 or 11, subject to a decision of the Commission in terms of section 26. (2) A person who, immediately before the commencement of this Act, had been appointed and was still recognised as a regent, or had been appointed in an acting capacity oras a deputy, is deemed have been recognisedor appointed as such in terms to of section 13, 14 or 15, as the case may be. 30 (3) Any “tribe” that, immediately before the commencement of this Act, had been established and was still recognised as such, is deemed to be a traditional community contemplated in section 2, subject t o ( a ) the withdrawal of its recognition in accordance with the provisionsof section 7; or 35 (bj a decision of the Commission in terms of section 26. (4) tribal authority that, immediately before the commencement this Act, had been of establishedandwas still recognised as such, is deemed to bea traditional council contemplated in section 3 and must perform the functions referred to in section 4; Provided that such a tribal authority must comply with section 3(2) within one year of 40 the commencement of this Act. ( 5 ) Any communityauthority that hadbeenestablishedinterms of applicable legislation and still existed as such immediately before the commencement of this Act, continues to exist until it is disestablished in accordance with provincial legislation, which disestablishment must take place within two years the commencement of this 45 of Act, except where the traditional leadership related to that communityauthority is still under investigation by the Commission in terms of section 25(2). ( 6 ) ( a )The memberof the Executive Councilof a province responsible for traditional affairs must, by noticein the Provincial Gazette, within one year of the commencement of this Act disestablish any regional authority, Ibandla Lamakhosi. Council of Chiefs 50 and ward authority functioning under tribal authorities that have been established in terms of applicable legislation before the commencement of this Act. jb) The notice disestablishing a regional authority Ibandla Lamakhosi, Council of Chiefs orward authority must regulate the legal, practical and other consequences of the disestablishment. including55 34 No. 25855 GOVERNMENT GAZETTE, 19 DECEMBER 2003 TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT. 2003 Act No. 41,2003 zaiisfer assets, iiabilides aiid of a&iGii&raijv.e aiid oilier io appropriate provincial department, a municipality local house of traditional or leaders. as circumstances may require; (ii) the vacation of office of any office bearer of such a regional authority; and (iii) the transfer of staff of such a regional authority. (7) The Commissionmust, in terms of section 25(2), investigate the position of paramountcies and paramount chiefs that had been established and recognised, and which were still in existence and recognised, before the commencement of this Act, before the Commission commences with any other investigationterms of that section. in (ij 5 Amendment of Act 20 of 1998, as amended by Act21 of 2000 10 29. The Remuneration of Public Office Bearers Act, 1998 (Act No. 20 of 1998), is hereby amended by( a ) the substitution for the Long Title of the following Long Title: “To provide a forframework determining salaries for the and allowances of thePresident,members of theNationalAssembly, permanent delegates to the National Council of Provinces, Deputy President, Ministers, Deputy Ministers, traditional leaders, members of local Houses of Traditional Leaders, members of provincial Houses of Traditional Leaders members and of the National House of Traditional Leaders; to provide for a framework for determining the upperlimit of salariesandallowances of Premiers,members of Executive Councils, members of provincial legislatures and members of Municipal Councils; to provide for a framework for determining pension and medical aid benefits of office bearers; to provide for the repeal of certain laws; and to provide for maters connected therewith.”; (b) the substitution in section 1 for(i) the definition of “benefits” of the following definition: ‘‘ ‘benefits’ means in respect of a traditional leader, a member of a local House of TraditionalLeaders,amember of aprovincialHouse of Traditional Leaders and a member the National House of Traditional of Leaders those benefits which the President may determine in terms of section 5(3), and in respect of all other office bearers, the contributions contemplated in sections 8(2) and (5) and 9(2) and (5); (xii)”; (ii) the definition of “office bearer” of the following definition: ‘office bearer’ meansDeputy a President,Minister,Deputy a a Minister, a member of the National Assembly, a permanent delegate, a Premier, a member of an Executive Council, a member of a provincial legislature, atraditional leader, a memberof a local House of Traditional Leaders,amember of aprovincialHouse of TraditionalLeaders,a member of the National House of Traditional Leaders and a member of a Municipal Council; (ii)”; and (iii) the definition of “traditional leader” of the following definition: ‘tmditiona! leader’ meam [any person identified terms of section in 5(5)] a traditional leader as defined in section 1 of theTraditional Leadership and Governance Framework Act, 2003. (ix)”; the substitution for section 5 of the following section: Salaries, allowances and benefits of traditional leaders, members of local Houses of Traditional Leaders, members of provincial Houses of Traditional Leaders and members of National House of Traditional Leaders 5. (1) Traditional leaders, members of any local House of Traditional provincialHouse of TraditionalLeadersand members of theNationalHouse of TraditionalLeadersshall,despite anything to the contrary in any other law contained, be entitled to such salaries and allowances as may from time to time be determined by the President after consultation with the Premier concerned proclamation in by the Gazette, after taking into consideration( a ) any recommendations of the Commission; “ “ 15 20 25 30 35 40 45 50 55 36 No. 25855 GOVERNMENT GAZETTE, 19 DECEMBER 2003 Act No. 41.2003 TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT, 2003 therole.status,duties.functions and responsibilities of different categories of traditional leaders,different members of the local Houses of Traditional Leaders, different members the Housesof Traditional of Leaders in the various provinces and different members of the National House of Traditional Leaders; 5 the affordability of different levels of remuneration of public office bearers; the current principles and levels remuneration in society generally; of the need for the promotion of equality and uniformity of salaries and allowances for equal work performed; 10 the enhancement of co-operation, unity and understanding between traditional communities nationally; theextent of theroleandfunctions of traditionalleadersacross provincial borders; and inflationary increases. 15 (2) Despite ;he provisions of subsection (l), a traditionalleader, a member of a local House of Traditional Leaders, a member of a provincial House of TraditionalLeadersor a member of theNationalHouse of Traditional Leaders who holds different public offices simultaneously, is only entitled to the salary, allowances and benefits of the public office for 20 which he or she earns the highest income, but( a ) this subsectionshall not preclude the payment of of out pocket expenses for the performance of functions other than those forwhich such office bearer receives such highest income; and ( b ) where only an allowance has been determined in terms of subsection 25 (1) in respect of a traditional leader’s membershipof a local House of Traditional Leaders, a provincial House of Traditional Leaders or the National House of Traditional Leaders, such a traditional leader shall beentitledtosuch an allowance in additionto his orher salary, allowances and benefits as a traditional leader. 30 (3) ( a ) The President may, if he or shedeems it expedient after consultation with the Minister and Premier concerned, by proclamation the in the Gazette determine anybenefits towhich a traditionalleader, a member ofany localHouse of TraditionalLeaders,amember ofany Provincial Houseof Traditional Leadersor a member of the National House 35 of Traditional Leaders shall be entitled, subject to such conditions as the President may prescribe. (b) If the President decides to determinesuch benefits, the criteria listed in paragraphs ( a ) to ( h ) of subsection (1) shall be applicable,with the necessary changes. 40 (4) The amount payable in respect salaries, allowances andbenefits to of traditional leaders, members of local Houses of Traditional Leaders, members of provincial Houses of Traditional Leaders and members of the National House of Traditional Leaders shall be paid from monies appropriated for that purpose by Parliament in respect of the National 45 House of Traditional Leaders and by a provincial legislature in respect of traditional leaders, [and] members of local Houses of Traditional Leaders and members of provincial Houses of Traditional Leaders, as the case may be. [(5) A traditional leader is a person identified by the Minister after 50 consultation with thePremier concerned by notice in Gazette for the the purposes of this Act.] ( 6 ) Despite the provisions of subsection (I), a member of the National House of Traditional Leaders be shall entitled to an allowance as determined by the Presidentby proclamation in theGazette for actual work 55 performed with effect from 10 April 1997 until a determination is made in terms of subsection (l).”; (d) the substitution in section 8 for subsection (6) of the following subsection: ‘ * ( 6The provisions of this section shall, subject to section 5(3), not apply ) to a traditional leader, a memberof a local House of Traditional Leaders. a 60 member of a provincial House of Traditional Leaders anda member of the National House of Traditional Leaders.”; and 38 No. 25855 GOVERNMENT GAZE'ITE, TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT, 2003 19 DECEMBER 2003 Act No. 41,2003 (e,! the substitution i n section 9 for subsection ( 6 ) of the fo!!owing subsecdo~: "(6) The provisions of this section shall, subject to section 5(3), not apply to a traditional leader, a member a local Houseof Traditional Leaders. a of member of a provincial Houseof Traditional Leaders and a member the of House National of Traditional Leaders.". 5 Short title and commencement 30. This Act is called the Traditional Leadership and Governance Framework Act, 2003, and comes into operation a date determined by the Presidentby proclamation on in the Gazette. GOVERNMENT 40 25855 No. Act No. 41,2003 GAZE'lTE, 19 DECEMBER 2003 TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT, 2003 CODE OF CONDUCT General conduct of traditional leader ommunities; 1. A traditional leadermust perform the functions allocated to him or her in good faith, diligently, 5 honestly and in a transparent manner; must fulfil his or her role in an efficient manner; may not conduct himself or herself a disgraceful, improper or unbecoming in manner; applicable with any comply must legislation; 10 must actin the bestinterest of the traditional community or communities heor she serves; must promote unity amongsttraditional communities; may not embark on actions that would create division within or amongst traditional must promote nation building; may not refuse to provide any service to a person on political or ideological grounds; must foster good relations with the organs of state with whom he or she interacts; 20 must promote the principlesof a democratic and open society; and must disclose gifts received. General conduct of traditional council 2. A traditional council must(a) perform the functions allocated to it in good faith, diligently, honestly and in 25 a transparent manner; (b) execute its duties in an efficient manner; (c) comply with any applicable legislation; (d) act in the best interest of the traditional community it serves; ( e ) give effect to the principles governing public administration set out in section 30 195 of the Constitution; and (fl foster good relations with the organs of state with whom it interacts.