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Traditional and Khoi-San Leadership Act 2019

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[Last checked: 28 March 2025.*]

*The last time this Act was reviewed for updates.

TRADITIONAL AND KHOI-SAN LEADERSHIP ACT 3 OF 2019

[Updated to 24 May 2024.**]

**Date of last changes incorporated into this Act.

______________________

(English text signed by the President)

(Assented to 20 November 2019)

______________________

Published: G. 42865 of 28 November 2019

Commencement: 1 April 2021

Proc. 38, G. 43981 of 11 December 2020

ACT

To provide for the recognition of traditional and Khoi-San communities, leadership positions and for the withdrawal of such recognition; to provide for the functions and roles of traditional and Khoi-San leaders; to provide for the recognition, establishment, functions, roles and administration of kingship or queenship councils, principal traditional councils, traditional councils, Khoi-San councils and traditional sub-councils, as well as the support to such councils; to provide for the establishment, composition and functioning of the National House of Traditional and Khoi-San Leaders; to provide for the establishment of provincial houses of traditional and Khoi-San leaders; to provide for the establishment and composition of local houses of traditional and Khoi-San leaders; to provide for the establishment and operation of the Commission on Khoi-San Matters; to provide for a code of conduct for members of the National House, provincial houses, local houses and all traditional and Khoi-San councils; to provide for regulatory powers of the Minister and Premiers; to provide for transitional arrangements; to amend certain Acts; to provide for the repeal of legislation; and to provide for matters connected therewith.

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

ARRANGEMENT OF SECTIONS

CHAPTER 1

INTERPRETATION, APPLICATION AND PRINCIPLES

1. Definitions and application

2. Guiding principles

CHAPTER 2

LEADERSHIP AND GOVERNANCE

Part 1

Traditional and Khoi-San communities

3. Recognition of kingship or queenship, traditional community, headmanship or headwomanship

4. Withdrawal of recognition of kingship or queenship, principal traditional community, traditional community, headmanship or headwomanship

5. Recognition of Khoi-San community and branch

6. Withdrawal of recognition of Khoi-San community and branch

Part 2

Traditional and Khoi-San leaders

7. Recognition of leadership positions

8.. Recognition of king or queen, principal traditional leader, senior traditional leader, headman or headwoman

9 Withdrawal of recognition of king or queen, principal traditional leader, senior traditional leader, headman or headwoman

10. Recognition of senior Khoi-San leader or branch head

11. Withdrawal of recognition of senior Khoi-San leader or branch head

12. Recognition of regent

13. Recognition of acting traditional and Khoi-San leaders

14. Recognition of deputy traditional and Khoi-San leaders

15. Functions and resources of traditional and Khoi-San leaders

Part 3

Traditional and Khoi-San councils

16. Establishment of kingship or queenship council, principal traditional council or traditional council

17. Establishment of traditional sub-council

18. Establishment of Khoi-San council

19. Functions of kingship or queenship council and principal traditional council

20. Functions of traditional council, traditional sub-council, Khoi-San council and branch

21. Election of members of traditional council, traditional sub-council and Khoi-San council and filling of vacancies

22. Administration of kingship or queenship council, principal traditional council, traditional council, Khoi-San council and traditional sub-council

23. Support to kingship or queenship council, principal traditional council, traditional council, Khoi-San council and traditional sub-council

24. Partnerships and agreements

25. Allocation of roles to kingship or queenship council, principal traditional council, traditional council, Khoi-San council, traditional sub-council and traditional and Khoi-San leaders

CHAPTER 3

HOUSES OF TRADITIONAL AND KHOI-SAN LEADERS

Part 1

Houses of traditional and Khoi-San leaders

26. Houses of traditional and Khoi-San leaders

Part 2

National House of Traditional and Khoi-San Leaders

27. Establishment and term of office of National House

28. Composition of National House

29. Election and designation of members to National House

30. Disqualification for membership of National House

31. Vacation of seats

32. Filling of vacancies

33. Seat and meetings of National House

34. Chairperson and deputy chairperson of National House

35. Status of members of National House

36. Duties of National House

37. Administration of National House

38. Responsibilities of National House

39. Referral of Bills to National House

40. Relationship between National House and kings, queens and principal traditional leaders

41. Relationship between National House and provincial houses

42. Support to National House

43. Annual report of National House

44. Privileges and immunities of members of National House

45. Remuneration and benefits of members of National House

46. Rules, orders and committees of National House

47. Dissolution of National House

48. Oath or affirmation by members of National House

Part 3

Provincial and local houses of traditional and Khoi-San leaders

49. Provincial houses of traditional and Khoi-San leaders

50. Local houses of traditional and Khoi-San leaders

CHAPTER 4

COMMISSION ON KHOI-SAN MATTERS

51. Establishment of Commission

52. Appointment of members of Commission

53. Vacancies

54. Conditions of appointment of members of Commission

55. Support to and reports by Commission

56. Application for recognition of Khoi-San communities, branches, senior Khoi-San leaders and branch heads

57. Functions of Commission

58 Recommendations and decisions

CHAPTER 5

GENERAL PROVISIONS

59. Disputes

60. Regulations

61. Delegation of powers and duties by Premier

62. Monitoring

63. Transitional arrangements

64. Amendment of legislation

65. Repeal of legislation and savings

66. Short title

Schedule 1: Code of conduct for members of Houses and councils

Schedule 2

Schedule 3: Amendment of Legislation

Schedule 4: Repeal of Legislation

CHAPTER 1

INTERPRETATION, APPLICATION AND PRINCIPLES

1. Definitions and application

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

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

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

“branch head” means a Khoi-San leader who is the head of a branch and who has been recognised as a branch head in terms of section 10;

“code of conduct” means the code of conduct provided for in Schedule 1;

“Commission” means the Commission on Khoi-San Matters established in terms of section 51;

“Department” means the national department responsible for traditional and Khoi-San leadership and governance matters;

“district municipality” means a district municipality as defined in section 1 of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998);

“headman or headwoman” means a traditional leadership position contemplated in section 7 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 and customs; and

(b) has been recognised as such in terms of section 8;

“headmanship or headwomanship” means a headmanship or headwomanship recognised in terms of section 3;

“Khoi-San” means any person who lives in accordance with the customs and customary law of the Cape-Khoi, Griqua, Koranna, Nama or San people, or any subgrouping thereof, and is consequentially a member of a particular Khoi-San community as contemplated in section 5;

“Khoi-San community” means a Khoi-San community recognised as such in terms of
section 5;

“Khoi-San council” means a council established in terms of section 18;

“Khoi-San leader” means a person recognised as a senior Khoi-San leader or a branch head in terms of section 10 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 8;

“kingship or queenship” means a kingship or queenship recognised in terms of section 3;

“kingship or queenship council” means a kingship or queenship council contemplated in section 16;

“local house” means a local house of traditional and Khoi-San leaders contemplated in
section 50;

“local municipality” means a local municipality as defined in section 1 of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998);

“metropolitan municipality” means a metropolitan municipality as defined in section 1 of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998);

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

“National House” means the National House of Traditional and Khoi-San Leaders established in terms of section 27;

“prescribe” means prescribed by regulation in terms of section 60;

“principal traditional community” means a community deemed to be a principal traditional community in terms of section 28(9)(c) of the Traditional Leadership and Governance Framework Act, 2003 (Act 41 of 2003), prior to the repeal of that Act, or as contemplated in section 63(8)(c) of this Act;

“principal traditional council” means a council established and recognised in terms of section 16;

“principal traditional leader” means a person deemed to be a principal traditional leader in terms of section 28(9)(c) of the Traditional Leadership and Governance Framework Act, 2003, prior to the repeal of that Act, or as contemplated in section 63(8)(c) of this Act, or a successor to such person as contemplated in section 8;

“provincial house” means a provincial house of traditional and Khoi-San leaders as contemplated in section 49;

“regent” means any person who, in terms of section 12, holds a traditional or Khoi-San leadership position in a temporary capacity until the identified or elected leader to such position who is a minor, becomes a major as contemplated in section 17 of the Children’s Act, 2005 (Act 38 of 2005) and is recognised in terms of this Act;

“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 contemplated in
section 46;

“Secretary” means the Secretary of the National House appointed in terms of section 37;

“senior Khoi-San leader” means a person recognised as a senior Khoi-San leader in terms of section 10;

“senior traditional leader” means a person recognised as a senior traditional leader in terms of section 8;

“this Act” includes any regulations made in terms of any relevant provision of this Act;

“traditional community” means a traditional community recognised as such in terms of section 3;

“traditional council” means a traditional council contemplated in section 16 and includes a traditional sub-council contemplated in section 17;

“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 section 8 and includes regents, acting traditional leaders and deputy traditional leaders;

“traditional leadership” means the institutions or structures established in terms of customary law or customs, or customary systems or procedures of governance, recognised, utilised or practiced by traditional communities; and

“traditional sub-council” means a traditional sub-council contemplated in section 17.

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

(3) Traditional and Khoi-San 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.

(4) Any provision of this Act that requires the consultation of a provincial or local house of traditional and Khoi-San leaders has to be complied with only in instances where such a house has been established: Provided that in instances where such a house has not been established, such requirement does not apply and will have no effect on any action or decision taken in terms of the relevant provision.

(5) The provisions of this Act relating to the recognition of a traditional or Khoi-San community or leader shall not be construed as bestowing upon such a community or leader any special indigenous, first nation or any other similar status.

2. Guiding principles

(1) A kingship or queenship, principal traditional community, traditional community, headmanship, headwomanship and Khoi-San community 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 and Khoi-San leadership positions.

(2) The resources of any community, leader, council, house, Commission or committee recognised or established in accordance with a provision of this Act—

(a) must not be used to promote or prejudice the interest of any political party or any grouping of such party, or to promote or prejudice any candidate in any election, irrespective whether such election is an internal election within the relevant party or an external election; and

(b) may only be used for purposes of the functions, duties and responsibilities allocated by this Act to such community, leader, council, house, Commission or committee.

CHAPTER 2

LEADERSHIP AND GOVERNANCE

Part 1

Traditional and Khoi-San communities

3. Recognition of kingship or queenship, traditional community, headmanship or headwomanship

(1) 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 subsection (4);

(b) each has a recognised traditional council with a defined area of jurisdiction as contemplated in section 16;

(d) they recognise as their king or queen, a specific recognised senior traditional leader who, in terms of custom and customary law, is of a higher status than the other senior traditional leaders;

(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)

(a) Traditional communities that meet the criteria set out in subsection (1), may apply to the President for recognition as a kingship or queenship which application must be accompanied by a resolution of each traditional council referred to in subsection (1)(b), indicating that such council forms part of the kingship or queenship being applied for.

(b) An application in terms of paragraph (a) must be accompanied by an application for the recognition of the position of a king or queen of those communities as contemplated in section 8.

(3)

(a) The President may, after consultation with the Minister, by notice in the Gazette recognise the traditional communities 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)—

(i) cause an investigation to be conducted by the Minister 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).

(4) 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;

(d) occupies a specific geographical area;

(e) has an existence of distinctive cultural heritage manifestations; and

(f) where applicable, has a number of headmenship or headwomenship.

(5)

(a) A community that meets the criteria set out in subsection (4), may apply to the Premier concerned for recognition as a traditional community.

(b) An application in terms of paragraph (a) must be accompanied by an application for the recognition of the position of a senior traditional leader of that community as contemplated in section 8.

(6) The Premier concerned may, after consultation with the relevant provincial house and by notice in the relevant Provincial Gazette recognise the community contemplated in subsection (4) as a traditional community.

(7) A headmanship or headwomanship may be recognised as such if it—

(a) has a system of traditional leadership at a headmanship or headwomanship level and is recognised as such by the relevant traditional community;

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

(8)

(a) A portion of a traditional community that meets the criteria set out in subsection (7), may request the relevant traditional council to apply to the Premier concerned for the recognition of such portion of the community as a headmanship or headwomanship.

(b) If the traditional council is of the view that the portion of the traditional community referred to in paragraph (a) does not meet the criteria set out in subsection (7), the traditional council must inform the community and the Premier accordingly and provide reasons for such view.

(9) The Premier concerned may, after consultation with the relevant traditional council and by notice in the Provincial Gazette, recognise the headmanship or headwomanship contemplated in subsection (7).

(10) The Minister may, in accordance with the provisions of section 60, make regulations in respect of—

(a) a process that will allow for sufficient consultations as envisaged in subsections (6) and (9); and

(b) the period within which a Premier must reach a decision regarding the recognition of communities as envisaged in subsections (6) and (9).

(11) The Premier concerned may cause an investigation to be conducted by the member of the Executive Council responsible for traditional affairs of the relevant province to determine whether a traditional community or portion of a traditional community, as the case may be, complies with the criteria set out in subsections (4) and (7) respectively, and with the guiding principles set out in section 2.

4. Withdrawal of recognition of kingship or queenship, principal traditional community, traditional community, headmanship or headwomanship

(1) The withdrawal of the recognition of a kingship or queenship or principal traditional community, as the case may be, may, subject to subsection (12), only be considered where the majority of traditional communities under the jurisdiction of the kingship or queenship or principal traditional community concerned request the President, in the case of a kingship or queenship, or the relevant Premier, in the case of a principal traditional community, to withdraw the recognition of their kingship or queenship or principal traditional community: Provided that such request must be accompanied by a resolution of each traditional council of such traditional communities and the grounds on which the request is based.

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

(3)

(a) The withdrawal of the recognition of 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 direct the Minister to conduct the consultations referred to in paragraph (a) and determine a period within which such consultations must be finalised.

(4)

(a) The withdrawal of the recognition of a principal traditional community must be done by the Premier concerned by notice in the Provincial Gazette.

(c) The Premier concerned may direct the member of the Executive Council responsible for traditional affairs of the relevant province to conduct the consultations referred to in paragraph (b) and determine a period within which such consultations must be finalised.

(5) The withdrawal of the recognition of a community as a traditional community may, subject to subsection (12), only be considered where—

(a) the community concerned requests the relevant Premier to withdraw its recognition as a traditional community: Provided that if such traditional community forms part of a kingship or a queenship or a principal traditional community, such request may only be submitted after the traditional community has consulted the kingship or queenship council or principal traditional council;

(b) a kingship or a queenship council or a principal traditional council requests the relevant Premier to withdraw the recognition of a traditional community which forms part of such kingship, queenship or principal traditional community: Provided that such request may only be submitted after the kingship or queenship council or principal traditional council has consulted the relevant traditional community;

(c) the Premier concerned is requested by any affected community or communities to review the position of such a community or communities that was or were divided or merged prior to 1994 in terms of applicable legislation; or

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

Provided that any request for the withdrawal of the recognition of a traditional community must be accompanied by the grounds on which the request is based: Provided further that any such request must be accompanied by information setting out the details of the consultation contemplated in this subsection.

(6)

(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.

(b) Before the withdrawal of a recognition contemplated in paragraph (a), the Premier concerned must consult the relevant provincial house, any community that may be affected and, if applicable, the kingship or queenship council or principal traditional council referred to in subsection (5)(a) and (b), before the withdrawal of the recognition of a traditional community may be effected by way of a notice in the Provincial Gazette.

(7)

(a) The Premier concerned must, by notice in the Provincial Gazette, recognise a merged traditional community contemplated in subsection (5)(d) and disestablish the individual traditional communities that requested to be merged.

(b) The notice referred to in paragraph (a) must stipulate the legal, practical and other consequences of the merger and disestablishment, including—

(i) if applicable, the transfer of assets, liabilities and administrative and other records of the disestablished traditional community; and

(ii) the leadership position of the merged traditional community and the vacation of office of any office bearer of the disestablished traditional community.

(8)

(a) The withdrawal of the recognition of a headmanship or headwomanship may, subject to subsection (12), only be considered where the relevant traditional council requests the Premier concerned to withdraw such recognition.

(b) A request referred to in paragraph (a) must be accompanied by the grounds on which the request is based.

(9) The Premier concerned may, after consultation with the relevant traditional council and by notice in the Provincial Gazette, withdraw the recognition of the headmanship or headwomanship as contemplated in subsection (8).

(10) The Premier concerned may, before withdrawing the recognition of a traditional community, a headmanship or headwomanship, cause an investigation to be conducted in order to establish whether there is sufficient cause for the withdrawal of such recognition.

(11) The Minister may, in accordance with the provisions of section 60, make regulations in respect of—

(a) a process that will allow for sufficient consultations as envisaged in subsections (4), (5), (6) and (9); and

(b) the period within which a Premier must reach a decision regarding the withdrawal of the recognition of communities as envisaged in this section.

(12)

(a) The recognition of a kingship or queenship, principal traditional community, traditional community, headmanship or headwomanship must be withdrawn if so ordered by a court.

(b) The President, in the case of a kingship or a queenship, and the relevant Premier, in the case of a principal traditional community, traditional community, headmanship or headwomanship, must give notice in the Gazette or Provincial Gazette, as the case may be, of any withdrawal of recognition in accordance with a court order.

(c) The notice contemplated in paragraph (b) must stipulate the legal, practical and other consequences of the withdrawal of recognition.

5. Recognition of Khoi-San community and branch

(1)

(a) A community may, subject to paragraph (b), apply to the Premier concerned to be recognised as a Khoi-San community if it—

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

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

(iii) 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;

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

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

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

Provided that all applications for recognition as contemplated in this section must be lodged with the Commission and dealt with in accordance with the procedures set out in section 58 until such time as the period referred to in section 57(2)(a) has expired, whereafter all applications for recognition must be lodged with the Premier in terms of this section.

(b) An application in terms of paragraph (a) must be accompanied by—

(i) an application for the recognition of the position of a senior Khoi-San leader of that community as contemplated in section 10; and

(ii) a list of all community members: Provided that such a list must in respect of each community member contain his or her—

(aa) full names and surname;

(bb) identification number and a certified copy of his or her valid identification document or passport, or in the case of a community member who is younger than 16 years, a certified copy of his or her birth certificate;

(cc) physical address as confirmed by documentary evidence, including the name of the province where such physical address is located;

(dd) contact details;

(ee) signature acknowledging his or her association with such community; and

(ff) any other information as may be requested by the Commission or as may be prescribed by the Minister: Provided that in the case of any community member who is younger than 16 years, the information required by this subparagraph must be provided by any parent or the legal guardian of such member and such parent or legal guardian must sign the list on behalf of the relevant member:

Provided further that only community members who are 18 years or older may participate in the official affairs of a Khoi-San community or council as provided for in this Act.

(c) A person who has confirmed his or her association with a particular Khoi-San community by signing a list as contemplated in paragraph (b)(ii), may not be a member of any other Khoi-San community.

(d) Once a Khoi-San council has been established for a particular Khoi-San community, such council must update the list of members referred to in paragraph (b)(ii) at least annually and provide copies of such a list to the Minister, the Premier of the province where such council is situated and the Premiers of the provinces where any branch of such a community may have been recognised: Provided that the Minister or any relevant Premier may take the necessary steps to have the information contained in such a list verified.

(2) The Premier concerned may cause an investigation to be conducted to determine whether a community meets the criteria set out in subsection (1) and the guiding principles set out in section 2.

(3) The Premier concerned may, after consultation with the relevant provincial house, by notice in the relevant Provincial Gazette recognise the community contemplated 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—

(i) is recognised by the Khoi-San community as a branch of that community;

(ii) consists of not less than 10 per cent of the total number of members of such community as reflected in the list of community members referred to in subsection (1)(b)(ii);

(iii) will contribute to a more effective and efficient administration of the Khoi-San council; and

(iv) 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 meets the criteria set out in subsection (4).

(b) If the Premier is of the view that the branch meets 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.

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

(7) The Premier of the province where the branch is situated may, subject to subsection (8), recognise a branch that meets 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 be done by the relevant Premiers by notice in the Provincial Gazettes of the provinces where the branches are situated.

(9)

(a) A Premier must on an annual basis, or when requested by the Minister, provide the Minister with a report on the recognition of Khoi-San communities and branches.

(b) A copy of the report referred to in paragraph (a) must be submitted to the relevant provincial house for noting.

6. Withdrawal of recognition of Khoi-San community and branch

(1) The withdrawal of the recognition of a Khoi-San community or a branch may, subject to subsection (5), 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:

Provided that such request must be accompanied by the grounds on which the request is based.

(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 as 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 withdrawing the recognition of the Khoi-San community or branch 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)

(a) The Premier concerned must recognise a merged Khoi-San community contemplated in subsection (1)(b) and disestablish the individual Khoi-San communities that requested to be merged, by notice in the Provincial Gazette.

(b) Whenever Khoi-San communities are merged, such merger automatically results in the disestablishment of any branch or Khoi-San council that has been established for such communities: Provided that a merged Khoi-San community must establish a Khoi-San council in accordance with the provisions of section 18 and may request that new branches for such merged community be recognised in accordance with the provisions of section 5.

(c) The notice referred to in paragraph (a) must stipulate the legal, practical and other consequences of the merger and disestablishment including—

(i) if applicable, the transfer of assets, liabilities and administrative and other records of the disestablished Khoi-San community, branches and councils; and

(ii) the leadership position of the merged Khoi-San community and the vacation of office of any office bearer of a disestablished Khoi-San community or branch.

(5)

(a) The recognition of a Khoi-San community or branch must be withdrawn if so ordered by a court.

(b) The relevant Premier must give notice in the Provincial Gazette of any withdrawal of recognition in accordance with a court order.

(c) The notice contemplated in paragraph (b) must stipulate the legal, practical and other consequences of the withdrawal of recognition.

Part 2

Traditional and Khoi-San leaders

7. Recognition of leadership positions

(1)

(a) There are the following traditional leadership positions—

(i) king or queen;

(ii) principal traditional leader;

(iii) senior traditional leader; and

(iv) headman or headwoman:

Provided that the position of principal traditional leader only applies to a person who is deemed to be a principal traditional leader as defined in section 1.

(b) There are the following Khoi-San leadership positions—

(i) senior Khoi-San leader; and

(ii) branch head.

(2) The following criteria apply whenever a leadership position is to be recognised—

(a) a proven history of existence of such leadership position within the community concerned;

(b) a proven history of acceptance of such leadership position by the community concerned;

(c) a history of functions and powers of the specific leadership position in terms of the established customary law and customs within the particular community;

(d) the recognition of the community in terms of this Act; and

(e) a proven history of either—

(i) hereditary leadership in terms of customary law or customs of the community, with or without a customary role for community participation in the determination or confirmation of the individual as leader; or

(ii) elected leadership where, in terms of the customary law or customs of the community concerned, the leader is elected.

(3)

(a) An application for the recognition of the position of a king or a queen must be submitted to the President.

(b) An application for the recognition of the position of a principal traditional leader, senior traditional leader, senior Khoi-San leader, headman, headwoman or branch head must be submitted to the Premier concerned: Provided that all applications for the recognition of the position of a senior Khoi-San leader or branch head must be lodged with the Commission until such time as the period referred to in section 57(2)(a) has expired, whereafter all applications for recognition must be lodged with the Premier in terms of sections 5 and 10, respectively.

(4) Where there is evidence or an allegation that a leadership position does not comply with the criteria set out in subsection (2), the President or Premier, as the case may be, must cause an investigation to be conducted by an investigative committee designated by the President or Premier, as the case may be, which committee must provide a report on whether the leadership position complies with the said criteria: Provided that in the case of the leadership position of a king or a queen, at least one member of the investigative committee must be a member of the National House and in the case of any other leadership position, at least one member of the investigative committee must be a member of the provincial house concerned.

(5) The President or the Premier, as the case may be, may, after having considered the report of the investigative committee, recognise the leadership position.

(6) The recognition of a leadership position in terms of this section must be done by notice in the Gazette or Provincial Gazette, as the case may be.

(7)

(a) Whenever a senior traditional leader is recognised as a king or a queen in terms of this Act or has been so recognised prior to the commencement of this Act, such senior traditional leadership position becomes vacant or is regarded as vacant, as the case may be.

(b) A vacant senior traditional leadership position as contemplated in paragraph (a) may, subject to paragraph (c) and within 90 days of such vacancy occurring or, in the case of a recognition as a king or a queen prior to the commencement of this Act, within 90 days from the commencement of this Act, be filled—

(i) by means of the recognition of another person as senior traditional leader in accordance with the provisions of section 8; or

(ii) by the identification of a deputy traditional leader in accordance with the provisions of section 14.

(c) Whenever the recognition of a kingship or a queenship is withdrawn in terms of section 4, such withdrawal will automatically result in—

(i) the recognised king or queen reverting to the position of senior traditional leader which he or she occupied prior to recognition as a king or queen; and

(ii) the withdrawal of the recognition of the senior traditional leader referred to in paragraph (b)(i) or the lapsing of the recognition of a deputy traditional leader referred to in paragraph (b)(ii).

(d) A person whose recognition as senior traditional leader has been withdrawn as contemplated in paragraph (c)(ii)—

(i) relinquishes all functions, roles, duties, responsibilities and rights associated with the relevant position of senior traditional leader;

(ii) shall continue to receive the salary and benefits associated with such senior traditional leadership position until his or her death; and

(iii) is no longer entitled to receive any allowance or enabling resource as contemplated in the Independent Commission for the Remuneration of Public Office-Bearers Act, 1997.

(8)

(a) Any recognised traditional or Khoi-San leader may resign as such leader: Provided that such resignation must be in writing and must, in the case of a king or a queen, be submitted to the President and in the case of any other recognised traditional or Khoi-San leader, be submitted to the Premier who recognised such leader: Provided further that in the case of a Khoi-San leader who was recognised by the Minister in terms of section 58, such resignation must be submitted to the Minister and a copy thereof must be submitted to the Premier of the province in which such Khoi-San leader resides.

(b) A traditional or Khoi-San leader who resigns as such leader automatically relinquishes, with effect from the date of resignation, any salaries, allowances, benefits and rights associated with the leadership position occupied prior to such resignation.

(d) Whenever a traditional or Khoi-San leader resigns as contemplated in this subsection, the relevant position becomes vacant and has to be filled in accordance with the relevant provisions of this Act, taking into account the fact that a resignation does not affect succession in terms of customary law and customs of the particular community.

(9) Any person who is not a recognised leader as contemplated in subsection (1) but purports to be such a leader, is guilty of an offence and liable upon conviction to a fine or imprisonment not exceeding three years.

8. Recognition of king or queen, principal traditional leader, senior traditional leader, headman or headwoman

(1) Whenever the position of a king or queen is to be filled or the successor to a principal traditional leader is to be identified, the following process applies—

(a) The royal family concerned must, within 90 days after the need arises for the position of a king or queen, or principal traditional leader to be filled, and with due regard to applicable customary law and customs—

(i) identify a person who qualifies in terms of customary law and customs to assume the position of a king or queen, or principal traditional leader, as the case may be, taking into account whether any of the grounds referred to in section 9(1) or 16(11)(h) or 16(14)(a), (c), (d), (e) or (k) apply to that person; and

(ii) apply to the President or relevant Premier, as the case may be, for the recognition of the person so identified as a king or queen, subject to
section 3(2), or principal traditional leader which application must be accompanied by—

(aa) the particulars of the person so identified to fill the position of a king or queen, or principal traditional leader; and

(bb) the reasons for the identification of that person as king or queen, or principal traditional leader.

(b) The President may, after consultation with the Minister and the Premier concerned, and subject to subsections (3) and (4), recognise as a king or queen a person so identified in terms of paragraph (a)(i), taking into account whether a kingship or queenship has been recognised in terms of section 3.

(c) The Premier may recognise as the successor to a principal traditional leader a person so identified in terms of paragraph (a)(i), taking into account whether a principal traditional community still exists.

(2) Whenever the position of senior traditional leader, headman or headwoman is to be filled, subject to subsection (3)—

(a) the royal family concerned must, in the event of hereditary succession, within 90 days after the need arises for any of those positions to be filled, identify a person who qualifies in terms of customary law or customs to assume the position in question, taking into account whether any of the grounds referred to in section 9(1) or 16(11)(h) or 16(14)(a), (c), (d), (e) or (k) apply to that person;

(b) in the event that hereditary succession is not applicable, a person who is to assume the position of headman or headwoman must, in terms of customs or customary law be identified or elected by the community concerned, within 90 days after the need arises for such a position to be filled, taking into account whether any of the grounds referred to in section 9(1) or 16(11)(h) or 16(14)(a), (c), (d), (e) or (k) apply to that person;

(c) the royal family in the case of hereditary succession referred to in paragraph (a), through the relevant customary structure, and the traditional council concerned in the case of an identified or elected headman or headwoman referred to in paragraph (b), must apply to the Premier for the recognition of the person so identified or elected and provide the Premier with the particulars of such person; and

(d) the Premier concerned must, subject to subsection (3), recognise the person so identified or elected as senior traditional leader, headman or headwoman, as the case may be.

(3) Whenever the President recognises a king or queen, or a Premier recognises the successor to a principal traditional leader or recognises a senior traditional leader, headman or headwoman, the President or the Premier, as the case may be, must—

(a) publish a notice in the Gazette recognising such person as a king or queen, or publish a notice in the relevant Provincial Gazette recognising such person as a principal traditional leader, senior traditional leader, headman or headwoman;

(b) issue a certificate of recognition to such person; and

(c) inform the National House of the recognition of a king or queen and inform the relevant provincial house of the recognition of a principal traditional leader, senior traditional leader, headman or headwoman.

(4) Where there is evidence or an allegation that the identification of a person as a king or queen, principal traditional leader or senior traditional leader, or the identification or election of a person as a headman or headwoman, was not done in terms of customary law and customs, the President or the relevant Premier, as the case may be—

(a) must cause an investigation to be conducted by an investigative committee designated by the President or Premier, as the case may be, which committee must, in the case of a committee designated by the President, include at least one member of the National House and in the case of a committee designated by a Premier, include at least one member of the relevant provincial house, to provide a report on whether the identification or election of the relevant person was done in accordance with customary law and customs and if not, which person should be so identified or whether a new election should be held; and

(b) must, where the findings of the investigative committee indicate that the identification or election of the person referred to in subsections (1) and (2) was not done in terms of customary law and customs, refer the report contemplated in paragraph (a) to the royal family or relevant traditional council in the case of an elected headman or headwoman, for its comments.

(5) The President or the relevant Premier, as the case may be, may, after having considered the report of the investigative committee as well as the comments of the royal family, subject to subsection (3) recognise a person as king or queen, principal traditional leader, senior traditional leader, headman or headwoman, as the case may be.

(6) The Minister may, in accordance with the provisions of section 60, make regulations in respect of the—

(a) consultation by the Premier concerned with the traditional council where the position of a senior traditional leader, headman or headwoman is to be filled; and

(b) procedure to be followed for the identification or election of a senior traditional leader, headman or headwoman in instances where the customs or customary law does not make provision for such identification or election.

9. Withdrawal of recognition of king or queen, principal traditional leader, senior traditional leader, headman or headwoman

(1) The recognition of a king or queen, principal traditional leader, senior traditional leader, headman or headwoman, subject to subsections (2) and (3)—

(a) must be withdrawn if he or she—

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

(ii) is declared mentally unfit or mentally disordered by a court; or

(iii) no longer permanently resides within the area of the kingship or queenship council, principal traditional council or traditional council, as the case may be; or

(b) may be withdrawn if he or she—

(i) has been removed from office in terms of the code of conduct; or

(ii) has transgressed customary law or customs, on a ground that warrants withdrawal of recognition; and

(2)

(a) Whenever in the case of a king or a queen, any of the grounds referred to in subsection (1) come to the attention of the royal family, the royal family must, within 90 days from the date of becoming aware of such grounds and through the relevant customary structure—

(i) inform the President, the Premier concerned, the Minister and the senior traditional leaders within the kingship or queenship, of the particulars of such king or queen, and of the particulars relating to the specific ground referred to in subsection (1); and

(ii) give written confirmation to the President that the Premier concerned and the Minister have been informed accordingly.

(b) Whenever any of the grounds referred to in subsection (1)(b) come to the attention of the royal family, the royal family may recommend the withdrawal of the recognition of the king or queen, and must furnish the President with reasons for such recommendation.

(3)

(a) Whenever in the case of a principal traditional leader, senior traditional leader, headman or headwoman, any of the grounds referred to in subsection (1) come to the attention of the royal family or, in the case of an elected headman or headwoman, come to the attention of the relevant traditional council, the royal family or traditional council concerned must, within 90 days from the date of becoming aware of such grounds and through the relevant customary structure, inform the Premier concerned and the senior traditional leaders within the principal traditional community or traditional community, as the case may be, of the particulars of such principal traditional leader, senior traditional leader, headman or headwoman, and of the particulars relating to the specific ground referred to in subsection (1).

(b) Whenever any of the grounds referred to in subsection (1)(b) come to the attention of the royal family or, in the case of an elected headman or headwoman, come to the attention of the relevant traditional council, the royal family or traditional council, as the case may be, may recommend the withdrawal of the recognition of the principal traditional leader, senior traditional leader, headman or headwoman, and must furnish the Premier with reasons for such recommendation.

(4)

(a) When the President or relevant Premier is informed of the presence of any of the grounds referred to in subsection (1)(a), the President or Premier must, after consultation with the Minister or member of the Executive Council responsible for traditional affairs in the particular province, as the case may be, and subject to subsections (5) and (6), withdraw the recognition of the relevant king or queen, principal traditional leader, senior traditional leader, headman or headwoman.

(b) When the President or relevant Premier is informed of the presence of any of the grounds referred to in subsection (1)(b), the President or Premier may, after consultation with the Minister or member of the Executive Council referred to in paragraph (a), and—

(i) after having considered the information referred to in subsection (2)(a)(i); and

(ii) where applicable, after having considered any recommendation and reasons as contemplated in subsection (2)(b),

withdraw the recognition of the king or queen, principal traditional leader, senior traditional leader, headman or headwoman or refuse to withdraw such recognition: Provided that if the President or Premier refuses to withdraw such recognition, he or she, as the case may be, must in writing provide reasons to the royal family or, in the case of an elected headman or headwoman, to the relevant traditional council: Provided further that if the President refuses to withdraw a recognition, he or she must inform the relevant Premier and the Minister accordingly.

(5) When the President or relevant Premier withdraws the recognition of a king or queen, principal traditional leader, senior traditional leader, headman or headwoman—

(a) the President must cause a notice with particulars of such king or queen and the date on which such withdrawal takes effect to be published in the Gazette;

(b) the relevant Premier must cause a notice with particulars of such principal traditional leader, senior traditional leader, headman or headwoman and the date on which such withdrawal takes effect to be published in the relevant Provincial Gazette; and

(c) the President or Premier, as the case may be, must inform the royal family or traditional council concerned and the relevant king or queen, principal traditional leader, senior traditional leader, headman or headwoman of such withdrawal.

(6)

(a) Where there is evidence or an allegation that—

(i) the withdrawal of the recognition of a king or queen, principal traditional leader, senior traditional leader, headman or headwoman was not based on any of the grounds set out in subsection (1);

(ii) the information which was brought to the President or Premier’s attention in accordance with subsection (2)(a)(i) was provided in bad faith; or

(iii) a recommendation made by the royal family or relevant traditional council, in the case of an elected headman or headwoman, as contemplated in subsection (2)(b) was done in bad faith,

the President or Premier, as the case may be, must cause an investigation to be conducted by an investigative committee designated by the President or Premier which committee must, in the case of a king or queen, include at least one member of the National House and, in the case of a principal traditional leader, senior traditional leader, headman or headwoman, include at least one member of the relevant provincial house, to provide a report as well as recommendations on whether the withdrawal of the recognition of the person concerned was done in accordance with the grounds set out in subsection (1), or whether the information brought to the attention of the President or Premier was done in bad faith or not, or whether the recommendation of the royal family or traditional council was made in bad faith or not.

(b) Where the report of the investigative committee indicates that—

(i) the withdrawal of the recognition of the king or queen, principal traditional leader, senior traditional leader, headman or headwoman was not done in accordance with any of the grounds set out in subsection (1);

(ii) the information brought to the President or Premier’s attention was done in bad faith; or

(iii) the recommendation of the royal family or relevant traditional council was made in bad faith,

the President or Premier, as the case may be, must refer the report to the royal family or traditional council for its comments and the royal family or traditional council must provide the President or Premier with written comments within 60 days from the date of such referral.

(c) The President or Premier may, after having considered the report of the investigative committee as well as the comments of the royal family or traditional council where applicable—

(i) refuse to withdraw the recognition of a king or queen, principal traditional leader, senior traditional leader, headman or headwoman if the information provided or the recommendations made by the royal family or traditional council were done in bad faith; or

(ii) by notice in the Gazette or Provincial Gazette, as the case may be, confirm the withdrawal of recognition of the particular traditional leader or revoke such withdrawal of recognition: Provided that if the withdrawal of recognition is revoked, the relevant traditional leader shall consequentially be regarded as reinstated from the date on which the recognition was withdrawn.

(7) Where the recognition of a king or queen, principal traditional leader, senior traditional leader, headman or headwoman is withdrawn in accordance with subsection (1)(a), (b) or (c), the royal family must identify a successor in accordance with section 8 and the relevant customary law and customs.

10. Recognition of senior Khoi-San leader or branch head

(1) Whenever the position of a senior Khoi-San leader or branch head is to be filled, subject to sections 56, 57 and 58—

(a) the royal family concerned, in the event of hereditary succession must, within 90 days after the need arises for a position to be filled and with due regard to applicable customary law and customs, identify a senior Khoi-San leader as the hereditary successor, taking into account whether any of the grounds referred to in section 11(1) or, with the necessary changes, any of the grounds referred to in section 16(14)(a), (c), (d) or (e) apply to that person;

(b) the Khoi-San council concerned, in the case of succession by election must, within 90 days after the need arises for a position to be filled and with due regard to applicable customary law and customs, elect a senior Khoi-San leader or a branch head to assume the position in question, taking into account whether any of the grounds referred to in section 11(1) or, with the necessary changes, any of the grounds referred to in section 16(14)(a), (c), (d) or (e) apply to that person;

(c) the royal family or the Khoi-San council, as the case may be, must apply to the Premier for the recognition of the person identified or elected in terms of paragraphs (a) or (b).

(2) A branch head elected in terms of subsection (1)(b) is, subject to the provisions of section 6(4)(b), elected for a period of five years which term must coincide with the term of the Khoi-San council concerned.

(3)

(a) An election referred to in subsection (1)(b) must, subject to paragraph (b), be conducted in terms of rules and procedures adopted by the Khoi-San council concerned.

(b) The Minister may make regulations in respect of an election referred to in subsection (1)(b).

(4) The royal family or Khoi-San council, as the case may be, must inform the Premier concerned of the particulars of the person identified or elected as contemplated in subsection (1).

(5) The Premier concerned must, subject to subsections (6) and (7), where a senior Khoi-San leader or branch head has been identified or elected—

(a) by notice in the relevant Provincial Gazette recognise the person identified or elected in terms of subsection (1);

(b) issue a certificate of recognition to the person so identified or elected and, subject to subsection (2), indicate the term of office of an elected person; and

(6)

(a) Where a branch head who has been elected resides in a province other than the province where the relevant Khoi-San council is situated, the Premier of the province within which the branch is situated must, by notice in the relevant Provincial Gazette and after consultation with the Premier of the province where the Khoi-San council is situated, recognise the branch head concerned.

(b) The provisions of subsection (5)(b) and (c) apply to the recognition of a branch head in terms of paragraph (a).

(7) Where there is evidence or an allegation that the election or identification of a person referred to in subsection (1) was not done in accordance with the rules and procedures contemplated in subsection (3) or customary law and customs, the Premier concerned—

(a) must cause an investigation to be conducted by an investigative committee designated by the Premier which committee must include at least one Khoi-San member of the provincial house, to provide a report on whether the identification or election of the person referred to in subsection (1) was done in accordance with customary law and customs or the rules and procedures contemplated in subsection (3) and if not, which person should be so identified or whether a new election should be held; and

(b) must, where the findings of the investigative committee indicate that the identification or election of the person referred to in subsection (1) was not done in terms of customary law and customs or the rules and procedures contemplated in subsection (3), refer the report contemplated in paragraph (a) to the royal family or Khoi-San council, as the case may be, for its comments.

(8) The Premier concerned may, after having considered the report of the investigative committee as well as the comments of the royal family or Khoi-San council—

(a) recognise a person as a senior Khoi-San leader or a branch head; or

(b) advise the Khoi-San council that the election of a senior Khoi-San leader or branch head was not done in terms of customary law and customs or in accordance with the rules and procedures contemplated in subsection (3) and that a re-election must be held within the time determined by the Premier.

(9)

(a) A Premier must on an annual basis, or when requested by the Minister, provide the Minister with a report on the recognition of Khoi-San leaders and branch heads.

(b) A copy of the report referred to in paragraph (a) must be submitted to the relevant provincial house for noting.

11. Withdrawal of recognition of senior Khoi-San leader or branch head

(1) The recognition of a senior Khoi-San leader or branch head, subject to the provisions of subsection (2)—

(a) must be withdrawn if he or she—

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

(ii) is declared mentally unfit or mentally disordered by a court; or

(b) may be withdrawn if he or she—

(i) has been removed from office in terms of the code of conduct; or

(ii) has transgressed customary law or customs,

on a ground that warrants withdrawal of recognition; and

(2)

(a) Whenever any of the grounds referred to in subsection (1) come to the attention of the royal family or Khoi-San council, as the case may be, the royal family or Khoi-San council must, within 90 days from the date of becoming aware of such grounds and through the relevant customary structure inform the Premier of the province where the royal family or branch is situated of the particulars of such senior Khoi-San leader or branch head and of the particulars relating to the specific ground referred to in subsection (1).

(b) Whenever any of the grounds referred to in subsection (1)(b) come to the attention of the royal family or Khoi-San council, the royal family or Khoi-San council may recommend the withdrawal of the recognition of the senior Khoi-San leader or branch head and must furnish the Premier with reasons for such recommendation.

(3)

(a) When the Premier is informed of the presence of any of the grounds referred to in subsection (1)(a), the Premier must, subject to subsections (4) and (5), withdraw the recognition of the relevant senior Khoi-San leader or branch head.

(b) When the Premier is informed of the presence of any of the grounds referred to in subsection (1)(b), the Premier may—

(i) after having considered the information referred to in subsection (2)(a); and

(ii) where applicable, after having considered any recommendation and reasons as contemplated in subsection (2)(b),

withdraw the recognition of the senior Khoi-San leader or branch head or refuse to withdraw such recognition: Provided that if the Premier refuses to withdraw such recognition, he or she must in writing provide reasons to the royal family or Khoi-San council, as the case may be.

(4) When the Premier withdraws the recognition of a senior Khoi-San leader or branch head, the Premier must—

(a) cause a notice with particulars of such senior Khoi-San leader or branch head and the date on which such withdrawal takes effect to be published in the Provincial Gazette; and

(b) inform the royal family or Khoi-San council concerned and the senior Khoi-San leader or branch head concerned of such withdrawal.

(5)

(a) Where there is evidence or an allegation that the withdrawal of the recognition of a senior Khoi-San leader or branch head was not based on any of the grounds set out in subsection (1), or that the information which was brought to the Premier’s attention in accordance with subsection (2)(a) was provided in bad faith, or that a recommendation made by the royal family or Khoi-San council as contemplated in subsection (2)(b) was done in bad faith, the Premier must cause an investigation to be conducted by an investigative committee designated by the Premier which committee must include at least one Khoi-San member of the relevant provincial house, to provide a report as well as recommendations on whether the withdrawal of the recognition of the senior Khoi-San leader or branch head was done in accordance with the grounds set out in subsection (1), or whether the information brought to the attention of the Premier was done in bad faith or not, or whether the recommendation of the royal family or Khoi-San council was made in bad faith or not.

(b) Where the report of the investigative committee indicates that the withdrawal of the recognition of the senior Khoi-San leader or branch head was not done in accordance with any of the grounds set out in subsection (1), or that the information brought to the Premier’s attention was done in bad faith, or that the recommendation of the royal family or Khoi-San council was made in bad faith, the Premier must refer the report to the royal family or Khoi-San council, as the case may be, for its comments and the royal family or Khoi-San council must provide the Premier with written comments within 60 days from the date of referral.

(c) The Premier may, after having considered the report of the investigative committee as well as the comments of the royal family or Khoi-San council where applicable—

(i) refuse to withdraw the recognition of a senior Khoi-San leader or branch head if the information provided or the recommendations made by the royal family or Khoi-San council were done in bad faith; or

(ii) by notice in the Provincial Gazette, confirm the withdrawal of recognition of the senior Khoi-San leader or branch head concerned or revoke such withdrawal of recognition: Provided that if the withdrawal of recognition is revoked, the relevant senior Khoi-San leader or branch head shall consequentially be regarded as reinstated from the date on which the recognition was withdrawn.

(6) If a senior Khoi-San leader or branch head whose recognition has been withdrawn—

(a) occupied a position of hereditary leadership as contemplated in section 7(2)(e)(i), a successor or an acting senior Khoi-San leader as contemplated in section 13(1), as the case may be, must be identified by the royal family in accordance with the provisions of section 10 or 13 respectively; or

(b) was elected as contemplated in section 7(2)(e)(ii), a successor must be elected by the Khoi-San council in accordance with the provisions of section 10: Provided that a person elected as branch head in terms of this paragraph is elected for the unexpired term of his or her predecessor.

(7)

(a) Where the royal family or Khoi-San council, as the case may be, recommended the withdrawal of the recognition of a branch head who resides in a province other than the province where the Khoi-San council is situated, the Premier of the province where the Khoi-San council is situated must request the Premier of the province that recognised the branch head to withdraw the recognition of such branch head.

(b) The provisions of subsections (4) and (5) apply to a withdrawal in terms of paragraph (a).

12. Recognition of regent

(1) Where the hereditary successor to the position of a king, queen, principal traditional leader, senior traditional leader, headman, headwoman or senior Khoi-San leader identified in terms of sections 8 or 10, as the case may be, is regarded as a minor—

(a) the royal family concerned must, within 90 days of the death of a king, queen, principal traditional leader, senior traditional leader, headman, headwoman or senior Khoi-San leader—

(i) identify a regent to assume leadership on behalf of the minor, after taking into account whether, in the case of a regent to the position of a king, queen, principal traditional leader, senior traditional leader, headman or headwoman any of the grounds referred to in section 9(1) or 16(11)(h) or 16(14) apply to such regent, or whether, in the case of a regent to a senior Khoi-San leader, any of the grounds referred to in section 11(1) or 16(14) apply to such regent; and

(ii) through the relevant customary structure and with due regard to applicable customary law and customs, inform the Premier 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 (2) and (3), recognise the regent identified by the royal family in respect of the position of a king, queen, principal traditional leader, senior traditional leader, headman, headwoman or senior Khoi-San leader:

Provided that the recognition of a regent must be reviewed by the Premier concerned at least every two years.

(2) Where the royal family fails to identify a regent as contemplated in subsection (1), the Premier must, after consultation with the royal family and after taking into account whether any of the grounds contemplated in subsection (1)(a)(i) apply to such person, identify a suitable person as regent.

(3) Whenever a Premier recognises a regent as contemplated in subsection (1), he or she must—

(a) publish a notice in the relevant Provincial Gazette recognising the person identified as regent in terms of subsection (1);

(b) issue a certificate of recognition to the identified regent; and

(4) A regent is responsible for the performance of the functions that are attached to the relevant position and is entitled to the salary and allowances attached to such position.

(5) The provisions of section 10(7) apply with the necessary changes in respect of a regent identified for a senior Khoi-San leader.

(6) Where there is evidence or an allegation that the identification of a person as regent was not done in accordance with customary law or customs, the Premier concerned—

(a) must cause an investigation to be conducted by an investigative committee designated by the Premier which committee must include at least one member of the relevant provincial house, to provide a report on whether the identification of the person referred to in subsection (1) was done in accordance with customary law and customs and if not, which person should be so identified; and

(b) must, where the findings of the investigative committee indicate that the identification of the person referred to in subsection (1) was not done in terms of customary law and customs, refer the report contemplated in paragraph (a) to the royal family for its comments.

(7) The Premier concerned may, after having considered the report of the investigative committee as well as the comments of the royal family, recognise a person as a regent.

(8) As soon as the successor to the position of a king, queen, principal traditional leader, senior traditional leader, headman, headwoman or senior Khoi-San leader ceases to be a minor, the regent recognised in terms of subsection (1) must relinquish his or her position as regent, and the rightful successor—

(a) in the case of a king or queen, must be recognised by the President after consultation with the Minister as contemplated in section 8(1)(b), and a certificate of recognition as contemplated in section 8(3)(b) must be issued after his or her name has been published in the Gazette;

(b) in the case of a principal traditional leader, senior traditional leader, headman or headwoman, must be recognised by the Premier concerned in terms of section 8(1)(c) or 8(2)(d), as the case may be, and a certificate of recognition contemplated in section 8(3)(b) must be issued after his or her name has been published in the relevant Provincial Gazette; or

(c) in the case of a senior Khoi-San leader, must be recognised by the Premier concerned in terms of section 10(5)(a), and a certificate of recognition contemplated in section 10(5)(b) must be issued after his or her name has been published in the relevant Provincial Gazette.

(9) Where a regent has been recognised in respect of the position of a king or queen, the Premier concerned must inform the President and the Minister—

(a) of the particulars of the regent;

(b) when the regent is supposed to relinquish his or her position as regent; and

(10) If the successor to the position of a king, queen, principal traditional leader, senior traditional leader, headman, headwoman or senior Khoi-San leader dies while still being a minor, the regent automatically and immediately relinquish[es] his or her position.

(11) In instances where—

(a) the position of a king, queen, senior traditional leader, headman, headwoman or senior Khoi-San leader has been recognised for the first time in terms of sections 8 or 10, as the case may be;

(b) such leadership position is regarded as hereditary in nature; and

the provisions of this section apply with the necessary changes.

13. Recognition of acting traditional and Khoi-San leaders

(1) Within 90 days of becoming aware of any of the instances mentioned in subparagraphs (i), (ii) and (iii)—

(a) a royal family must identify a suitable person to act as a king, queen, principal traditional leader, senior traditional leader, headman or headwoman, after taking into account whether any of the grounds referred to in section 9(1) or 16(11)(h) or 16(14) apply to such person; or

(b) a royal family or Khoi-San council, as the case may be, must identify a suitable person to act as a senior Khoi-San leader or branch head, as the case may be, after taking into account whether any of the grounds referred to in section 11(1) or 16(14) apply to such a person,

where—

(i) a successor—

(aa) to the hereditary position of a king, queen, principal traditional leader, senior traditional leader, headman, headwoman or senior Khoi-San leader has not been identified by the royal family concerned in terms of section 8 or 10, as the case may be; or

(bb) to the position of senior Khoi-San leader or branch head has not been elected by the Khoi-San council as contemplated in section 10(1)(b);

(ii) the identification of a successor to the position of a king, queen, principal traditional leader, senior traditional leader, headman, headwoman, senior Khoi-San leader or branch head is being dealt with in terms of section 8(4) or 10(7), as the case may be; or

(iii) a king, queen, principal traditional leader, senior traditional leader, headman, headwoman, senior Khoi-San leader or branch head, as the case may be, is unable to perform his or her functions under circumstances other than those provided for in section 14 for—

(aa) the treatment of illness for a period of more than three months;

(bb) study purposes for a period of more than three months; or

(cc) any other lawful purpose.

(2) Where the royal family or Khoi-San council fails to identify a suitable person as contemplated in subsection (1), the Premier must, after consultation with the royal family or Khoi-San council, as the case may be, and after taking into account whether any of the grounds contemplated in subsection (1) apply to such person, identify a suitable person to act as a king, queen, principal traditional leader, senior traditional leader, headman, headwoman, senior Khoi-San leader or branch head, as the case may be.

(3) Where a person has been identified to act as a king, queen, principal traditional leader, senior traditional leader, headman, headwoman, senior Khoi-San leader or branch head, the royal family or Khoi-San council, as the case may be, must, within seven days of the identification of an acting person, inform the Premier concerned of the particulars of the person so identified and the reasons for the identification of that person.

(4) A person identified to act as a king, queen, principal traditional leader, senior traditional leader, headman, headwoman, senior Khoi-San leader or branch head must, subject to subsection (5), be recognised by the Premier concerned by notice in the relevant Provincial Gazette and the Premier must—

(a) issue a certificate of recognition to the person identified to act in a particular position; and

(b) inform the Minister of the recognition of an acting king or queen and inform the relevant provincial house of the recognition of any other acting leader:

Provided that an acting recognition must be reviewed at least every two years by the Premier concerned.

(5)

(a) Where there is evidence or an allegation that the identification of a person as acting king, queen, principal traditional leader, senior traditional leader, headman or headwoman was not done in accordance with customary law or customs, the Premier concerned—

(i) must cause an investigation to be conducted by an investigative committee designated by the Premier which committee must include at least one member of the relevant provincial house, to provide a report on whether the identification of the person referred to in subsection (1) was done in accordance with customary law and customs and if not, which person should be so identified; and

(ii) must, where the findings of the investigative committee indicate that the identification of the person referred to in subsection (1) was not done in terms of customary law and customs, refer the report contemplated in subparagraph (i) to the royal family for its comments.

(b) The provisions of section 10(7) apply with the necessary changes in respect of the identification of an acting senior Khoi-San leader or branch head.

(6) A person who has been recognised as an acting king, queen, principal traditional leader, senior traditional leader, headman, headwoman, senior Khoi-San leader or branch head in terms of this section, is responsible for the performance of the functions that are attached to the relevant position and is entitled to the salary and allowances attached to such position: Provided that the king, queen, principal traditional leader, senior traditional leader, headman, headwoman, senior Khoi-San leader and branch head in whose stead a person has been recognised to act in terms of this section, is not entitled to any salary and allowances attached to the relevant position for the duration of the recognition of the person so acting.

(7) Where a person has been identified as an acting king or queen, the Premier concerned must inform the President and the Minister of—

(a) the acting recognition; and

(b) if applicable, the withdrawal of recognition of the person who has been identified as an acting king or queen.

(8) Whenever the successor to a leadership position has been identified or elected as contemplated in subparagraph (i) of subsection (1), or an investigation as contemplated in subparagraph (ii) of subsection (1) has been finalised, or the circumstances referred to in subparagraph (iii) of subsection (1) are no longer applicable, any relevant acting recognition shall automatically lapse on the date on which the relevant leader referred to in subparagraph (i) or (ii) of subsection (1) is recognised by notice in the Gazette or Provincial Gazette, as the case may be, or the date on which the leader referred to in subparagraph (iii) of subsection (1) resumes his or her functions.

14. Recognition of deputy traditional and Khoi-San leaders

(1) Any senior traditional leader, headman or headwoman who occupies a hereditary position must, with the concurrence of the relevant royal family, within 90 days of any of the circumstances set out in paragraphs (a) to (f) occurring, identify a deputy to act in his or her stead whenever that senior traditional leader, headman or headwoman—

(a) becomes a full-time member of a municipal council;

(b) is elected as a member of a provincial legislature;

(d) is appointed as a permanent delegate in the National Council of Provinces;

(e) holds a full-time position in any house of traditional and Khoi-San leaders; or

(f) is employed on a full-time basis by any employer:

Provided that such senior traditional leader, headman or headwoman must, prior to the identification of a deputy, take into account whether any of the grounds referred to in section 9(1) or 16(11)(h) or 16(14) apply to such deputy.

(2) Where the senior traditional leader, headman or headwoman fails to identify a suitable person as contemplated in subsection (1), the Premier must, after consultation with the relevant leader and royal family, and after taking into account whether any of the grounds contemplated in subsection (1) apply to such person, identify a suitable person as deputy.

(3) A hereditary senior Khoi-San leader must, with the concurrence of the relevant royal family, within 90 days of any of the circumstances set out in subsection (1)(a) to (f) occurring, identify a suitable person as deputy to act in the stead of that senior Khoi-San leader: Provided that such senior Khoi-San leader must, prior to the identification of a deputy, take into account whether any of the grounds referred to in section 11(1) or 16(14) apply to such a person.

(4) Where the senior Khoi-San leader fails to identify a suitable person as contemplated in subsection (3), the Premier must, after consultation with the relevant leader and royal family, and after taking into account whether any of grounds contemplated in subsection (1) apply to such person, identify a suitable person as deputy.

(5) A royal family referred to in subsection (1) or (3) must, within seven days of the identification of a deputy and through the relevant customary structure, inform the Premier concerned of the particulars of the person identified as deputy traditional leader in terms of subsection (1) or deputy senior Khoi-San leader in terms of subsection (3), and the reasons for the identification of that person.

(6) The Premier concerned may, with due regard to applicable customary law or customs and subject to subsection (8), recognise the deputy identified in terms of subsection (1) or (3) and must—

(a) issue a certificate of recognition to such deputy traditional leader or deputy senior Khoi-San leader; and

(b) inform the relevant provincial house of the recognition of such deputy leader: Provided that the recognition of a person as a deputy shall automatically lapse with effect from the date that the senior traditional leader, headman, headwoman or senior Khoi-San leader ceases to occupy a position referred to in subsection (1).

(7) The provisions of section 10(7) apply with the necessary changes in respect of the identification of a deputy senior Khoi-San leader.

(8) Where there is evidence or an allegation that the identification of a person as deputy senior traditional leader, headman or headwoman was not done in accordance with customary law or customs, the Premier concerned—

(9) Any recognition in terms of this section must be reviewed by the Premier concerned at least every two years in order to establish whether the reasons for having identified and recognised a deputy are still applicable.

(10) A person who has been recognised as a deputy in terms of this section is responsible for the performance of the functions that are attached to the relevant position and is entitled to the salary and allowances attached to such position: Provided that the senior traditional leader, headman, headwoman or senior Khoi-San leader in whose stead a person has been recognised as deputy in terms of this section, is not entitled to any salary and allowances attached to the relevant position for the duration of the recognition of such deputy.

15. Functions and resources of traditional and Khoi-San leaders

(1) A traditional or Khoi-San leader performs the functions provided for—

(a) in terms of customary law and customs of the traditional or Khoi-San community concerned; and

(b) in terms of any applicable national or provincial legislation.

(2) The Minister may, taking into account a recommendation made by the Independent Commission for the Remuneration of Public Office-bearers in terms of section 8(4)(c) of the Independent Commission for the Remuneration of Public Office-bearers Act, 1997 (Act 92 of 1997), and after consultation with all Premiers, by notice in the Gazette determine the resources to be made available to traditional and Khoi-San leaders as may be necessary to enable them to perform their functions effectively.

Part 3

Traditional and Khoi-San councils

16. Establishment of kingship or queenship council, principal traditional council or traditional council

(1) Once the President has recognised a kingship or a queenship, or a community has been deemed to be a principal traditional community as contemplated in section 63(8)(c), or the Premier has recognised a traditional community as contemplated in section 3, that kingship or queenship, principal traditional community or traditional community must, within a period of two years of such recognition or any such further period as the Minister, in the case of a kingship or a queenship, or a Premier, in the case of a principal traditional community or a traditional community, may determine by notice in the Gazette or Provincial Gazette, as the case may be, establish a kingship or queenship council, principal traditional council or traditional council, as the case may be: Provided that in any instance where a kingship or queenship, principal traditional community or traditional community has been recognised prior to the publication of the formula contemplated in subsection (2), the period of two years shall commence from the date of publication of such formula.

(2)

(a) A kingship or queenship council, a principal traditional council and a traditional council consists of the number of members as determined by the Minister, by formula published by notice in the Gazette after consultation with—

(i) in the case of a kingship or queenship council or principal traditional council—

(aa) the king or queen, or principal traditional leader, as the case may be;

(bb) a forum of not more than five members of the royal family designated by the royal family; and

(cc) a forum of not more than 20 senior traditional leaders under the kingship or queenship or principal traditional community, designated by the senior traditional leaders from amongst themselves;

(ii) in the case of a traditional council, the relevant Premiers and provincial houses: Provided that the formula must be published in the Gazette within two years from the date of commencement of this Act.

(b) At least a third of the members of a kingship or queenship council, principal traditional council or traditional council must be women: Provided that if this requirement cannot be met, the Minister may determine a lower threshold for the particular kingship or queenship council or the relevant Premier may determine a lower threshold for the particular principal traditional council or traditional council.

(i) 60 per cent of traditional leaders and members of the traditional community selected, subject to subsection (3) and in terms of that community’s customs, by the king or queen, principal traditional leader or senior traditional leader who is an ex officio member and chairperson of the relevant council, taking into account the need for overall compliance with paragraph (b): Provided that if, in the case of traditional councils, there are no recognised headmen or headwomen, only community members must be selected; and

(ii) 40 per cent of members elected in terms of paragraph (f) in the case of a kingship or queenship council or principal traditional council, or elected in terms of section 21 in the case of a traditional council.

(d) The selection of the members of a kingship or queenship council, principal traditional council or traditional council as contemplated in this section must be finalised before the election of members as contemplated in this section, and the names of such selected members must be made public within 14 days from the date of such selection: Provided that any election in the case of a kingship or queenship council or principal traditional council must take place within 28 days of the names of the selected members having been made public and, in the case of a traditional council, within 21 days of the names of the selected members having been made public.

(e) A kingship or queenship, principal traditional community or traditional community must, within 14 days of the date of an election, submit the names of the members that have been selected and elected to the Premier concerned.

(f) Each traditional council falling within the area of jurisdiction of the kingship or queenship or principal traditional community concerned, must elect one person from the elected members of that council, to serve as a member referred to in paragraph (c)(ii): Provided that where the number of persons so elected are less than the number of members contemplated in paragraph (c)(ii), the traditional councils must each elect one additional person from amongst the elected members of that council: Provided further that where the number of persons so elected exceed the number of members contemplated in paragraph (c)(ii), the persons elected by the traditional councils must elect from amongst themselves the number of persons contemplated in paragraph (c)(ii).

(3)

(a) The forum contemplated in subsection (2)(a)(i)(bb) must assist the king or queen, principal traditional leader or senior traditional leader with the selection contemplated in subsection (2)(c)(i).

(b) The selection of the members contemplated in subsection (2)(c)(i) by a king or queen, principal traditional leader or senior traditional leader is subject to the concurrence of the forum referred to in paragraph (a).

(c) If there is no concurrence as referred to in paragraph (b), the king or queen, principal traditional leader or senior traditional leader, as the case may be, must submit the names of the persons who were nominated for selection as contemplated in paragraph (a) to the Premier concerned and the Premier must, after consultation with such leader and the forum referred to in paragraph (a), select the required number of members as contemplated in subsection (2)(c)(i).

(4)

(a)

(i) The term of office of the members of a traditional council, excluding the senior traditional leader, is not more than five years and must be aligned to the term of office of the National House: Provided that, notwithstanding anything to the contrary contained in any law, the term of any traditional council that was established and constituted prior to the commencement of this Act, will expire on 31 March 2022: Provided further that any term of office of any such council constituted or established after the commencement of this Act, shall expire every five years on 31 March, calculated from 31 March 2022.

(ii) The term of office of the members of a kingship or queenship council or a principal traditional council, excluding the king or queen or principal traditional leader, is not more than five years and must be aligned to the term of office of the National House: Provided that, notwithstanding anything to the contrary contained in any law, the term of any kingship or queenship council or principal traditional council that was established and constituted prior to the commencement of this Act, will expire on 30 April 2022: Provided further that any term of office of any such council constituted or established after the commencement of this Act, shall expire every five years on 30 April, calculated from 30 April 2022.

(b) The selection of members in terms of subsection (2)(c)(i) must, in the case of a kingship or queenship council or principal traditional council, be finalised at least 60 days prior to the expiry of the term of office of members of such council, and in the case of a traditional council, at least 45 days prior to the expiry of the term of office of the members of such council.

(5)

(a) The Premier concerned must, by notice in the relevant Provincial Gazette and in accordance with this Act, recognise a kingship or queenship council, principal traditional council or traditional council for such kingship or queenship, principal traditional community or traditional community and define its area of jurisdiction, indicating the portions of land forming part of such area of jurisdiction, and having regard to the provisions of section 3(1)(b) and (2)(a) in the case of a kingship or queenship: Provided that the Premier must inform the President and the Minister of any recognition of a kingship or queenship council: Provided further that the area of jurisdiction of a traditional council must include the area of a traditional sub-council, where applicable.

(b) The notice referred to in paragraph (a) must contain the names of the council members.

(c) The area of jurisdiction contemplated in paragraph (a) must be mapped and such map must be published under the notice referred to in paragraph (a).

(6) A kingship or queenship council, a principal traditional council and a traditional council convenes at the administrative seat of the particular council.

(7) The quorum of a kingship or queenship council, principal traditional council or traditional council consists of the majority of the total number of members of such council: Provided that for the purposes of determining such quorum, the total number of members excludes any vacancies.

(8) A kingship or queenship council, principal traditional council or traditional council must elect one of its members as a deputy chairperson who will act as the chairperson in the absence of the king or queen, principal traditional leader or senior traditional leader, as the case may be.

(9)

(a) A kingship or queenship council or principal traditional council must meet once every three months and a traditional council must meet every two months: Provided that the king or queen, principal traditional leader or senior traditional leader, as the case may be, may, with the concurrence of the relevant Premier, convene any additional ordinary or any special meeting of the relevant council.

(b) A king, a queen or a principal traditional leader must at least once a year meet with all senior traditional leaders falling under such kingship, queenship or principal traditional leadership.

(10) A king or queen, principal traditional leader or senior traditional leader, as the case may be, must, for purposes of convening a special meeting, give notice of not less than seven days to members of the kingship or queenship council, principal traditional council or traditional council.

(11) A member of a kingship or queenship council, principal traditional council or traditional council must vacate his or her office if—

(a) he or she ceases to be a South African citizen;

(b) he or she has been convicted of an offence and sentenced to imprisonment for more than 12 months without the option of a fine;

(d) he or she is declared mentally unfit or mentally disordered by a court;

(e) the period for which the member was selected or elected, as the case may be, has expired;

(f) he or she becomes disqualified in terms of subsection (14);

(g) he or she has been removed from office in terms of the code of conduct;

(h) he or she no longer resides within the area of jurisdiction of the kingship or queenship council, principal traditional council or traditional council, as the case may be; or

(i) he or she is a selected member and his or her recognition as a traditional leader has been withdrawn.

(12) If a member of a kingship or queenship council, principal traditional council or traditional council dies or vacates his or her office before the expiration of his or her term of office, such a vacancy must be filled in the manner referred to in subsection (2)(c)(i) or (ii), as the case may be, within 90 days of the vacancy having arisen.

(13) A person who has been appointed to fill a vacancy in a kingship or queenship council, principal traditional council or traditional council as contemplated in subsection (12), holds office for the unexpired period of his or her predecessor’s term of office.

(14) A person is not eligible to be elected or selected as a member of a kingship or queenship council, principal traditional council or traditional council if that person—

(a) is not a South African citizen;

(b) is under 18 years of age;

(c) has been convicted of an offence in respect of which he or she was sentenced to imprisonment for more than 12 months without the option of a fine;

(d) is an unrehabilitated insolvent or has entered into a compromise with his or her creditors;

(e) is of unsound mind and has been so declared by a competent court;

(f) is or becomes a full-time member of a municipal council;

(g) is elected as a member of a provincial legislature;

(h) is elected as a member of the National Assembly;

(i) is appointed as a permanent delegate in the National Council of Provinces;

(j) is elected to a full-time position in any house of traditional leaders; or

(k) does not reside within the area of jurisdiction of the kingship or queenship council, principal traditional council or traditional council, as the case may be.

(15)

(a) The withdrawal of the recognition of a kingship or queenship, principal traditional community or traditional community in terms of section 4, automatically results in the disestablishment of the relevant kingship or queenship council, principal traditional council or traditional council and the withdrawal of the recognition of the relevant king or queen, principal traditional leader or senior traditional leader.

(b) The disestablishment of a kingship or queenship council, principal traditional council or traditional council must be done by the Premier concerned by notice in the relevant Provincial Gazette.

(16) The notice referred to in subsection (15)(b) must stipulate the legal, practical and other consequences of the disestablishment of a kingship or queenship council, principal traditional council or traditional council, including the transfer of assets, liabilities, staff, administrative and other records, taking into account any applicable legislation.

(17) Any provision of this Act that relates to the establishment of a kingship or queenship council, principal traditional council, traditional council or traditional sub-council, apply to the initial establishment of such a council or sub-council and any subsequent reconstitution of the council or sub-council following the expiry of any term thereof: Provided that, subject to subsection (18) or (19), as the case may be, the provisions of subsection (5) and section 17(2) relating to areas of jurisdiction do not apply to the reconstitution of such a council or sub-council.

(18) Whenever the area of jurisdiction of a traditional council is to be amended, the Premier must, after consultation with the relevant traditional council and municipal council, by notice in the Provincial Gazette redefine such area of jurisdiction.

(19) Whenever the area of jurisdiction of a traditional sub-council is to be amended, the Premier must, after consultation with the relevant traditional council and sub-council, by notice in the Provincial Gazette redefine such area of jurisdiction.

17. Establishment of traditional sub-council

(1)

(a) Notwithstanding the provisions of section 16, the Premier concerned may at the request of a traditional council, in cases where a traditional community occupies two or more non-contiguous geographical areas within a province, establish a traditional sub-council for the geographical area which is located outside the area where the administrative seat of the traditional community is situated, if the Premier is of the view that such establishment will improve the effective administration of the traditional community.

(b) A traditional sub-council consists of the number of members as determined by the Premier concerned, after consultation with the main traditional council.

(2) The Premier concerned must, subject to the provisions of section 16(5), (17) and (19), by notice in the relevant Provincial Gazette recognise a traditional sub-council as part of the main traditional council and define its area of jurisdiction, indicating the portions of land forming part of such area of jurisdiction, which area must be mapped and such map must be published under such notice.

(3)

(a) At least a third of the members of a traditional sub-council must be women.

(b) The members of a traditional sub-council must comprise of—

(i) 60 per cent traditional leaders and members of the traditional subcommunity, selected by the senior traditional leader concerned, in terms of that community’s customs, taking into account the need for overall compliance with paragraph (a): Provided that if there are no recognised headmen or headwomen, only community members must be selected; and

(ii) 40 per cent of members of the traditional subcommunity who are elected by members of the traditional subcommunity in accordance with the provisions of section 21.

(4) The provisions of section 16(2)(b) and (d) apply to the constitution and composition of a traditional sub-council and any reference in the said paragraphs to members of a traditional council shall be construed as a reference to members of a traditional sub-council.

(5) The chairperson of a traditional sub-council must be elected by the members of such sub-council.

(6) A chairperson elected in terms of subsection (5) must be a member of the traditional council.

(7) The term of office of members of a traditional sub-council is not more than five years and must be aligned with the term of office of the relevant traditional council: Provided that, notwithstanding anything to the contrary contained in any law, the term of any traditional sub-council that was established and constituted prior to the commencement of this Act, will expire on 30 April 2022: Provided further that any term of office of any such sub-council constituted or established after the commencement of this Act, shall expire every five years on 30 April, calculated from 30 April 2022.

(8)

(a) A traditional sub-council must meet every two months and performs the functions referred to in section 20 as may be delegated to it by the traditional council concerned.

(b) A traditional sub-council must, in the format and within the timeframes as determined by the traditional council, submit a report to the traditional council on the performance of the functions delegated to it.

(9)

(a) The withdrawal of the recognition of a community as a traditional community in terms of section 4, automatically results in the disestablishment of the traditional sub-council concerned.

(b) If, after consultation with a traditional council, a Premier is of the opinion that a traditional sub-council is no longer contributing to the effective administration of that traditional community, the Premier may withdraw the recognition of such traditional sub-council.

(c) The withdrawal of the recognition of a traditional sub-council must be done by the Premier concerned by notice in the relevant Provincial Gazette.

(d) The provisions of section 16(16) apply with the necessary changes to the withdrawal of the recognition of a traditional sub-council.

18. Establishment of Khoi-San council

(1) Once a Premier or the Minister has recognised a Khoi-San community in accordance with the provisions of section 5 or 58 respectively, that community must within a period of two years of such recognition or any further period as the Premier may determine by notice in the Provincial Gazette, establish a Khoi-San council: Provided that in any instance where a Khoi-San community has been recognised prior to the publication of the formula contemplated in subsection (2)(a), the period of two years shall commence from the date of publication of such formula.

(2)

(a)* A Khoi-San council consists of the number of members determined by the Minister by formula published in the Gazette, after consultation with all Premiers: Provided that the formula must be published in the Gazette within two years from the date of commencement of this Act.

*Formula for determination of the number of members of a Khoi-San Council – GN 4880 / G. 50687 / 24 May 2024

(b) The members of a Khoi-San council must comprise of—

(i) 60 per cent of members which consists of—

(aa) the senior Khoi-San leader concerned who is an ex officio member and chairperson of the Khoi-San council; and

(bb) where the main community has branches, branch heads: Provided that if the senior Khoi-San leader together with the branch heads is less than the required number of members, the senior Khoi-San leader must select the remainder from the members of the main community after consultation with the branch heads and, where there is a royal family, must also select from members of the royal family with the concurrence of a forum as contemplated in subparagraph (cc) : Provided further that if the number of branch heads are more than the required number of members, the branch heads must elect the required number from amongst themselves, ensuring provincial representation; or

(cc) where the main community has no branches, the senior Khoi-San leader must, where applicable, with the concurrence of a forum of not less than five and not more than 10 members designated by the royal family, select the required number of members from the members of the royal family and members of the main community, or where there is no royal family, the senior Khoi-San leader must select the required number of members from the main community only: Provided that the provisions of section 16(3)(c) shall apply with the necessary changes to instances where there is no concurrence;

(ii) 40 per cent of members which consist of members of the main community who are elected by the main community in accordance with the provisions of section 21.

(3) The Premier concerned must, by notice in the relevant Provincial Gazette, recognise a Khoi-San council for a Khoi-San community and indicate the administrative seat of such Khoi-San council.

(4) The jurisdiction of a Khoi-San council will apply only to the members of the Khoi-San community contemplated in section 5(1) and (3).

(5) The provisions of section 16(2)(b), (d) and (e), (5)(b), (7), (8), (11), (14)(a) to (j), (15) and (16) apply to a Khoi-San council and any reference in the said section to a traditional council, senior traditional leader and headmen or headwomen shall, respectively, be construed as a reference to a Khoi-San council, senior Khoi-San leader and branch head.

(6) Any provision of this Act that relates to the establishment of a Khoi-San council applies to the initial establishment of such a council and any subsequent reconstitution of the council following the expiry of any term thereof.

(7) A Khoi-San council must meet every three months: Provided that the senior Khoi-San leader may, with the concurrence of the Premier of the province where such council is recognised, convene any additional ordinary or any special meeting of the relevant council: Provided further that for the purposes of convening a special meeting, the senior Khoi-San leader must give notice of not less than seven days to the members of the relevant Khoi-San council.

(8) The term of office of the members of a Khoi-San council, excluding the senior Khoi-San leader, is, subject to section 63(19), not more than five years and must be aligned to the term of office of the National House: Provided that any term of office of any such council established after the commencement of this Act, shall expire every five years on 31 March, calculated from 31 March 2027.

19. Functions of kingship or queenship council and principal traditional council

(1) A kingship or queenship council and principal traditional council have the following functions—

(a) administering the affairs of the kingship or queenship or principal traditional community in accordance with customary law and customs;

(b) assisting, supporting and guiding senior traditional leaders and traditional councils falling within the jurisdiction of the kingship or queenship or principal traditional community concerned in the performance of their functions;

(c) assisting the king or queen, or principal traditional leader in performing customary functions in relation to the recognition of senior traditional leaders, where applicable;

(d) assisting the king or queen, or principal traditional leader in mediating disputes between senior traditional leaders falling within the jurisdiction of the kingship or queenship or principal traditional community;

(e) promoting unity between traditional communities falling under the jurisdiction of the kingship or queenship or principal traditional community; and

(f) assisting the king or queen, or principal traditional leader in performing his or her roles and functions conferred upon him or her in terms of regulations made in accordance with the provisions of section 60.

(2) A kingship or queenship council or principal traditional council must—

(a) keep proper records;

(b) have its financial statements audited by a registered auditor as contemplated in the Auditing Profession Act, 2005 (Act 26 of 2005), and submit such audited statements to the Premier within two months from the date of receipt thereof;

(c) disclose to the Premier concerned, the receipt of gifts with a value above an amount as may be determined by the Minister by notice in the Gazette;

(d) adhere to the code of conduct; and

(e) advise and support all traditional councils falling under its authority.

(3)

(a) If an audit contemplated in subsection (2)(b) is not performed by the Auditor-General, the Auditor-General may review any such audit.

(b) If any kingship or queenship council or principal traditional council does not have its financial statements audited as contemplated in subsection (2)(b), the accounting officer of the provincial department responsible for providing financial support to such council may withhold any financial support to such council or impose any other appropriate sanction on the council.

20. Functions of traditional council, traditional sub-council, Khoi-San council and branch

(1) A traditional council, a traditional sub-council subject to section 17(8), a Khoi-San council and a branch have the following functions—

(a) administering the affairs of the traditional or Khoi-San community in accordance with customs and tradition;

(b) assisting, supporting and guiding traditional and Khoi-San leaders in the performance of their functions;

(d) facilitating the involvement of the traditional or Khoi-San community in the development or amendment of the integrated development plan of a municipality in whose area that community resides;

(e) recommending, after consultation with the relevant local and provincial houses, appropriate interventions to government that will contribute to development and service delivery within the area of jurisdiction of the traditional council or within the municipal area where the administrative seat of the Khoi-San council is;

(f) participating in the development of policy and legislation at a municipal level;

(g) participating in development programmes of the local, provincial and national spheres of government;

(h) promoting the ideals of co-operative governance, integrated development planning, sustainable development and service delivery;

(i) promoting indigenous knowledge systems for sustainable development and disaster management;

(j) alerting any relevant municipality to any hazard or calamity, and contributing to disaster management in general;

(k) sharing information and co-operating with other traditional and Khoi-San councils; and

(l) performing the functions conferred by customary law, customs and statutory law consistent with the Constitution.

(2) A traditional and Khoi-San council must—

(a) keep proper records;

(c) disclose to the Premier concerned, the receipt of gifts with a value above an amount as may be determined by the Minister by notice in the Gazette; and

(d) adhere to the code of conduct.

(3) A traditional and Khoi-San council must—

(a) co-operate with any relevant ward committee established in terms of section 73 of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998); and

(b) respectively meet at least once a year with the relevant traditional or main Khoi-San community to give account of the activities and finances of the traditional or Khoi-San council.

(4)

(a) If an audit contemplated in subsection (2)(b) is not performed by the Auditor-General, the Auditor-General may review any such audit.

(b) If any traditional or Khoi-San council does not have its financial statements audited as contemplated in subsection (2)(b), the accounting officer of the provincial department responsible for providing financial support to such council may withhold any financial support to such council or impose any other appropriate sanction on the council.

21. Election of members of traditional council, traditional sub-council and Khoi-San council and filling of vacancies

(1) Whenever a member of a traditional council, traditional sub-council or Khoi-San council is to be elected, the Premier concerned, after consultation with the relevant provincial house, may have such elections conducted—

(a) by the Electoral Commission established in terms of the Electoral Commission Act, 1996 (Act 51 of 1996), if the Electoral Commission and the Premier of the province concerned enters into an agreement in respect of such elections, which agreement must include provisions relating to the manner in which the elections are to be conducted: Provided that this paragraph does not apply to the filling of a vacancy that occurs during the term of office of the council concerned; or

(b) subject to subsection (2)—

(i) by way of a community meeting; or

(ii) by a body consisting of one or more persons appointed by the Premier.

(2) A Premier may, by notice in the relevant Provincial Gazette, make regulations in respect of—

(a) the elections as contemplated in subsection (1)(b) relating to the procedure to be followed and timeframes within which such elections must be conducted; and

(b) subject to the provisions of this Act, the filling of vacancies.

22 Administration of kingship or queenship council, principal traditional council, traditional council, Khoi-San council and traditional sub-council

(1) A kingship or queenship council, principal traditional council, traditional council, traditional sub-council and a Khoi-San council (in this section jointly referred to as a council) must endeavour to perform its statutory, financial and customary obligations in the best interest of its community and is accountable to the Premier concerned for the efficient and effective performance of such obligations.

(2) A Premier must monitor a council situated within his or her province so as to ensure the effective and efficient performance of that council’s statutory, financial and customary obligations.

(3) If a Premier is of the view that a council does not or cannot fulfil a statutory, financial or customary obligation binding on that council, the Premier must—

(a) by written notice, request the council to provide the Premier with the information relating to the council’s performance in respect of the obligation required in the notice; or

(b) if the Premier considers it necessary, designate a person or persons to investigate the matter.

(4) If, based on the information received or investigation conducted as contemplated in subsection (3), a Premier is satisfied that a council does not or cannot fulfil its statutory, financial or customary obligations, the Premier may intervene by appointing any person or persons for a period determined by the Premier in writing—

(a) to assist the council concerned to perform any or all of the statutory, financial and customary obligations assigned to such council; or

(b) to assume responsibility for any or all the statutory, financial and customary obligations of such council.

(5) If a person or persons are appointed in terms of subsection (4), the council concerned is divested of the specific or all of its statutory, financial and customary obligations, as the case may be.

(6) A person or persons appointed in terms of subsection (4) must be competent to perform either the statutory, financial or the customary obligations of such council or all three, as the case may be.

(7)

(a) A person or persons appointed in terms of subsection (4) must submit monthly written reports to the Premier concerned setting out the steps taken and progress made in respect of the performance of the specific or all of the council’s statutory, financial and customary obligations, as the case may be.

(b) A Premier must submit copies of the reports contemplated in paragraph (a) to the National House and relevant provincial house for noting.

(8) An appointment made in terms of subsection (4) must be reviewed before the expiry of a period of 180 days: Provided that such a period may, as many times as the Premier concerned deems necessary to ensure the efficient and effective performance of the specific or all of the relevant council’s statutory, financial and customary obligations, be renewed for a further period of 180 days and must be reviewed before the expiry of any such period of 180 days.

23. Support to kingship or queenship council, principal traditional council, traditional council, Khoi-San council and traditional sub-council

(1) The national government may and a provincial government must adopt such legislative or other measures as may be necessary to—

(a) support and strengthen the capacity of kingship or queenship councils, principal traditional councils, traditional councils, Khoi-San councils and traditional sub-councils to fulfil its functions, and such support includes the provision of administrative and financial support; and

(b) monitor and manage the finances of such councils: Provided that the Department must, subject to section 62, monitor the management of the finances of such council.

(2) The Premier of a province may, after consultation with a kingship or queenship council, principal traditional council, traditional council or Khoi-San council situated in the particular province—

(a) determine the number and remuneration levels of posts needed to perform the administrative, financial and related duties relevant to the functions of the specific council;

(b) determine any other conditions of service applicable to such posts; and

(c) appoint suitable persons in such posts in accordance with the recruitment procedures applicable to that provincial government or second officials from the provincial government to perform such duties.

(3)

(a) For the purposes of subsection (1) a Premier must, in consultation with the relevant Provincial Treasury and subject to any legislative or other measures as contemplated in subsection (1), cause to be opened an account for each established council referred to in subsection (1) into which must be paid—

(i) all voluntary contributions made by members of the relevant community;

(ii) all moneys derived from any property owned or managed by such council;

(iii) any financial donation made to such council by any person, body or institution;

(iv) any moneys payable to the council in accordance with the provisions of a partnership or agreement as contemplated in section 24; and

(v) any other moneys as may be determined or agreed to by the Premier.

(b) For the purposes of the management of any account referred to in paragraph (a), a Premier must, in consultation with the relevant Provincial Treasury and subject to paragraph (c) and any legislative or other measures as contemplated in subsection (1), determine—

(i) the financial systems and controls applicable to such account;

(ii) any conditions applicable to such account;

(iii) the investment of any moneys by the council concerned;

(iv) the payment of any expenditure by the council concerned;

(v) the purposes for which any moneys in such account may be used by the relevant council;

(vi) the closure of any other accounts, including a trust account but excluding a trust account as contemplated in section 10 of the Trust Property Control Act, 1988 (Act 57 of 1988), and the transfer of any moneys in such other account or trust account to the account contemplated in paragraph (a);

(vii) the reporting requirements applicable to such account; and

(viii) any other measures as may be deemed necessary by the Premier to ensure the efficient and effective management of such account,

and may designate any official from the provincial government to assist the council concerned with the management of such account or to manage such account on behalf of the relevant council: Provided that for the purposes of subparagraphs (ii) to (vii) the Premier must consult the relevant council prior to making any determination as contemplated in those subparagraphs.

(c) The Minister must, in consultation with the Minister of Finance and after consultation with the Premiers, by notice in the Gazette determine the minimum standards to be complied with by a Premier for the purposes of paragraph (b)(i) to (vii).

(d) The financial year of any council contemplated in this section must be aligned to the financial year of the provincial department responsible for providing financial support to such council.

(4)

(a) The provincial government of a province where a branch of a Khoi-San community has been recognised must adopt such legislative or other measures as may be necessary to provide administrative support to such branch: Provided that if a branch is situated in a province other than the province where the Khoi-San council has been recognised, the Premier of the province where the branch is situated must first consult the Premier of the province where the Khoi-San council is situated to ensure uniformity in the provisioning of such administrative support.

(b) The provincial government of a province where a branch of a Khoi-San community has been recognised is responsible for the financial expenditure in relation to the attendance of Khoi-San council meetings by the relevant branch head.

24. Partnerships and agreements

(1) The national government and provincial governments may, through legislative or other measures, regulate partnerships and agreements as contemplated in this section.

(2) Kingship or queenship councils, principal traditional councils, traditional councils, Khoi-San councils and traditional sub-councils may enter into partnerships and agreements with each other, and with—

(a) municipalities;

(b) government departments; and

(3) Any partnership or agreement entered into by any of the councils contemplated in subsection (2) must be in writing and, notwithstanding the provisions of any other law,—

(a) must be beneficial to the community represented by such council;

(b) must, in addition to any other provisions, contain clear provisions on the responsibilities of each party and the termination of such partnership or agreement;

(i) a prior consultation with the relevant community represented by such council;

(ii) a decision in support of the partnership or agreement taken by a majority of the community members present at the consultation contemplated in subparagraph (i); and

(iii) a prior decision of such council indicating in writing the support of the council for the particular partnership or agreement;

(d) is subject to ratification by the Premier of the province in which the relevant council is situated and will have no effect until such ratification has been obtained; and

(e) may not bind the state or any person, body or institution who is not a party to such partnership or agreement.

(4) Any partnership or agreement contemplated in subsection (2) must—

(a) be based on the principles of mutual respect and recognition of the status and roles of the respective parties; and

(b) be guided by and based on the principles of co-operative governance.

(5) Any council contemplated in subsection (2), may enter into a service delivery agreement with a municipality in accordance with the Local Government: Municipal Systems Act, 2000 (Act 32 of 2000), and any other applicable legislation.

(6) A Premier must—

(a) monitor all partnerships and agreements as contemplated in this section and may take the necessary steps to ensure the effective and efficient implementation or termination thereof;

(b) provide the Minister with copies of all partnerships or agreements contemplated in subsection (3)(d) which copies must be kept by the Department in an appropriate database; and

(7)

(a) A Premier, when considering the ratification of any partnership or agreement as contemplated in subsection (3)(d), must be satisfied that the provisions of subsection (3)(a), (b), (c) and (e) have been complied with.

(b) If a Premier is of the opinion that a partnership or agreement does not comply with the provisions of subsection (3)(a), (b), (c) or (e), the Premier must refer such partnership or agreement to the parties who entered into such partnership or agreement, together with his or her reasons for not ratifying the partnership or agreement, and request them to rectify any shortcomings as referred to in his or her reasons.

25. Allocation of roles to kingship or queenship council, principal traditional council, traditional council, Khoi-San council, traditional sub-council and traditional and Khoi-San leaders

(1) A department within the national or provincial sphere of government, as the case may be, may, through legislative or other measures provide a role for a kingship or queenship council, principal traditional council, traditional council, Khoi-San council, traditional sub-council and traditional and Khoi-San leaders in respect of any functional area of such department: Provided that such a role may not include any decision-making power.

(2)

(a) The process and procedure to be followed for the provision of a role contemplated in subsection (1) to any of the councils or leaders contemplated in that subsection, as well as the extent thereof, and the conditions and resources attached to any such provision, may, subject to paragraph (b), be determined by the department concerned.

(b) Before a department makes provision for a role as contemplated in subsection (1), such department must—

(i) in the case of a national department, obtain the concurrence of the Minister and consult with the National House; and

(ii) in the case of a provincial department, obtain the concurrence of the member of the Executive Council responsible for traditional affairs of the relevant province and consult with the relevant provincial and local houses.

(3) Where a department has made provision for a role for any council or leader contemplated in subsection (1), such department must monitor the execution of the role and ensure that—

(a) the execution of the role is consistent with the Constitution and any other relevant law; and

(b) the role is being executed efficiently and effectively.

(4) Where any of the councils or leaders contemplated in subsection (1) does not execute a role as envisaged in subsection (3), such role or any resources provided to such a council or leader to perform that role may be withdrawn by the department concerned: Provided that before any such withdrawal, the relevant department must first establish the reasons for the non-execution of the relevant role and, where necessary, capacitate such councils or leaders to enable them to execute the role.

(5)

(a) When a national or provincial department has made provision for a role as contemplated in subsection (1), such department must inform the Department of—

(i) the extent thereof;

(ii) the conditions and resources attached thereto; and

(iii) the name of the relevant council or leader.

(b) When a national or provincial department withdraws a role or resources as contemplated in subsection (4), such department must inform the Department of the reasons for such withdrawal.

(6) The allocation or withdrawal of a role as contemplated in this section must be published for noting in the Gazette or Provincial Gazette, as the case may be, by the relevant department.

CHAPTER 3

HOUSES OF TRADITIONAL AND KHOI-SAN LEADERS

Part 1

Houses of traditional and Khoi-San leaders

26. Houses of traditional and Khoi-San leaders

The houses of traditional and Khoi-San leaders are—

(a) a National House of Traditional and Khoi-San Leaders established in terms of
section 27;

(b) provincial houses of traditional and Khoi-San leaders as may be established in accordance with the principles set out in section 49; and

(c) local houses of traditional and Khoi-San leaders as may be established in accordance with the principles set out in section 50.

Part 2

National House of Traditional and Khoi-San Leaders

27. Establishment and term of office of National House

(1) There is hereby established a National House to be known as the National House of Traditional and Khoi-San Leaders.

(2) The term of office of the National House is five years: Provided that, notwithstanding anything to the contrary contained in any law, but subject to section 63(12), the term of the National House that was established in terms of the National House of Traditional Leaders Act, 2009 (Act 22 of 2009), prior to the commencement of this Act, will expire on 30 June 2022: Provided further that any subsequent term of office of the National House as reconstituted after the commencement of this Act, shall expire every five years on 30 June, calculated from 30 June 2022.

28. Composition of National House

(1)

(a) The National House consists of senior traditional and senior Khoi-San leaders—

(i) elected by each provincial house in accordance with the provisions of paragraph (b) and section 29; and

(ii) where relevant, of persons contemplated in subsection (2).

(b) In a province where a provincial house has been established and there are—

(i) only senior traditional leaders, the provincial house must elect three senior traditional leaders as members of the National House; or

(ii) only senior Khoi-San leaders, the provincial house must elect three senior Khoi-San leaders as members of the National House; or

(iii) more senior traditional leaders than senior Khoi-San leaders, the provincial house must elect three senior traditional leaders and one senior Khoi-San leader as members of the National House; or

(iv) more senior Khoi-San leaders than senior traditional leaders, the provincial house must elect three senior Khoi-San leaders and one senior traditional leader as members of the National House; or

(v) an equal number of senior traditional leaders and senior Khoi-San leaders, the provincial house must elect two senior traditional leaders and two senior Khoi-San leaders as members of the National House; or

(vi) two or less than two of either or of both senior traditional leaders and senior Khoi-San leaders, such leaders are ex officio members of the National House.

(2) In a province where a provincial house has not been established—

(a) the senior traditional leaders or the senior Khoi-San leaders or the senior traditional leaders and the senior Khoi-San leaders, as the case may be, in the particular province, must, at a meeting convened by the relevant Premier, elect from amongst themselves representatives to the National House in accordance with the representation numbers as contemplated in subsection (1)(b)(i) to (v); or

(b) where there are two or less than two of either or of both senior traditional leaders and senior Khoi-San leaders in such province, such leaders are ex officio members of the National House.

(3) At least a third of the members of the National House must consist of women: Provided that if this requirement cannot be met, the Minister must, after consultation with the Premiers concerned and the relevant provincial houses, determine a lower threshold in respect of the representation of women in the National House.

29. Election and designation of members to National House

(1) The Minister must, at least 30 days before the expiry of the term of office of the National House, request the Premiers to notify provincial houses to elect subject to section 28, senior traditional leaders and where applicable, senior Khoi-San leaders to serve as members in the National House.

(2) The members of a provincial house referred to in section 28(1) must be elected, within 21 days after having received the notice from the Premier concerned in terms of subsection (1), by members of that provincial house in a meeting called for that purpose and attended by at least two-thirds of the members of the house concerned: Provided that the members of a provincial house referred to in section 28(1)(a)(i) and (b), may not be full-time members of such provincial house.

(3) The election proceedings referred to in subsection (2) must be managed and chaired by the Premier concerned or a person designated by such Premier, and must be observed by officials of the National House and the provincial department responsible for traditional affairs.

(4) An election contemplated in subsection (2) must be by secret ballot by members of the provincial house concerned in the same meeting where the nominations take place.

(5) Each provincial house must elect one of the members contemplated in subsection (2) as leader of the elected members.

(6) A Premier must submit to the Minister, in respect of every person elected and designated, such person’s—

(a) acceptance of the election or designation;

(b) full name and surname;

(d) contact details.

(7) In the event that a provincial house fails to elect one or more of its members to serve in the National House within the period referred to in subsection (2), the Premier concerned must designate members of the relevant provincial house to serve in the National House.

(8) A member of the National House may not serve more than two consecutive terms as a member of the National House.

30. Disqualification for membership of National House

A person is disqualified from becoming a member of the National House if that person—

(a) is a member of a municipal council, a member of a provincial legislature or a member of Parliament;

(b) at the time of the election of members of the National House, is serving a sentence of imprisonment of more than 12 months without the option of a fine;

(d) is of unsound mind and has been so declared by a competent court;

(e) has been convicted of a criminal offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic or outside the Republic, if the conduct constituting the offence would have been an offence in the Republic, but no-one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined or until the time for an appeal has expired;

(f) is not a member of a provincial house;

(g) is not a South African citizen; or

(h) is not permanently resident within the Republic.

31. Vacation of seats

The seat of a member of the National House becomes vacant—

(a) upon the death of a member;

(b) if the member resigns by written notice to the Minister;

(d) if the member becomes a full-time member of a municipal council, a member of a provincial legislature or a member of Parliament;

(e) if a member is convicted of an offence with a sentence of imprisonment for more than 12 months without the option of a fine;

(f) if the member is removed from office for a breach of the code of conduct; or

(g) in the case of a member contemplated in section 28(1)(a)(i) and (b), if the member ceases to be a member of a provincial house that elected him or her, and in the case of a member contemplated in section 28(1)(b) and (2), if the member ceases to be a chairperson or member of a traditional or Khoi-San council, as the case may be.

32. Filling of vacancies

(1) Where a vacancy occurs in the National House the Minister must, within 14 days after being informed of such a vacancy by the Secretary, inform the relevant Premier of such a vacancy.

(2) A vacancy in the National House must, subject to sections 28 and 29, be filled within 45 days after it became vacant, by the election of a member for the unexpired portion of the term of office of the member in whose place he or she is elected, and in the same manner in which the previous member was elected or designated.

33. Seat and meetings of National House

(1)

(a) The first meeting of the National House must take place within 90 days after its constitution in terms of sections 28 and 29, at a time and place determined by the Secretary, subject to subsection (5).

(b) The President or a person designated by him or her may address the annual official opening of the National House.

(2) Ordinary meetings of the National House may, subject to subsection (5), take place at a time and place determined by the Secretary in consultation with the Chairperson.

(3) Special meetings of the National House may, subject to subsection (5), be held at a time and place determined by the Executive Committee of the National House or, if authorised thereto by the Executive Committee, by the Chairperson of the National House: Provided that the Minister may at any time summon the National House to a special meeting for the purposes of attending to urgent business at a time and place determined by the Minister.

(4) The National House must meet at least once in every quarter.

(5) The administrative seat of the National House is located at the same place where the head office of the Department is located and meetings of the National House may take place either at the administrative seat or at the seat of Parliament.

(6) The quorum for meetings of the National House is fifty per cent plus one of the total membership of the National House.

(7) The decisions of the National House must be taken by consensus, or where a vote is taken, subject to subsection (6), by a majority of the members present and voting in the meeting.

(8) Meetings of the National House are, subject to section 46(1)(f), open to the public.

34. Chairperson and deputy chairperson of National House

(1) At its first meeting after it has been constituted in terms of sections 28 and 29, the National House must, with the Chief Justice or a judge designated by the Chief Justice presiding, elect one of its members to be the chairperson and must thereafter elect another of its members to be the deputy chairperson.

(2) The chairperson is vested with all powers and functions assigned to a chairperson in terms of this Act and the rules and orders of the National House.

(3) The chairperson presides over meetings of the National House.

(4) If the chairperson is absent or for any reason unable to exercise or perform the powers or functions vested in the office of the chairperson, or when the office of the chairperson is vacant, the deputy chairperson must act as chairperson during the chairperson’s absence or inability or until a chairperson is elected.

(5) If both the chairperson and the deputy chairperson are absent, a member of the National House designated in terms of the rules and orders of the National House must act as chairperson while the said circumstances prevail.

(6) The deputy chairperson or the member designated in terms of this Act, while acting as a chairperson, may exercise the powers and must perform the functions vested in the office of the chairperson.

(7) While presiding at a meeting of the National House, a member of the House designated as a chairperson has a deliberative vote as well as a casting vote in the case of an equality of votes.

(8) The chairperson or deputy chairperson must vacate office if he or she becomes disqualified in terms of section 30.

(9) If the position of chairperson becomes vacant, the Minister or a person designated by the Minister must preside over the election of a member of the National House to fill the vacancy.

(10) If the position of deputy chairperson becomes vacant, the chairperson must preside over the election of a member of the National House to fill the vacancy.

(11) If the positions of both chairperson and deputy chairperson of the National House become vacant, the National House must, with the Chief Justice or a judge designated by the Chief Justice presiding, elect members of the National House to fill the vacancies.

(12) A chairperson or deputy chairperson is eligible for re-election: Provided that no member may serve as a chairperson or deputy chairperson of the National House for more than two terms.

35. Status of members of National House

(1) The chairperson and deputy chairperson shall be full-time members of the National House.

(2) The Minister may, after consultation with the National House and subject to subsection (1), determine that certain members are full-time members of the National House.

36. Duties of National House

(1) The duties of the National House are—

(a) to co-operate with the provincial houses, to promote—

(i) the role of traditional and Khoi-San leadership within a democratic constitutional dispensation;

(ii) nation building;

(iii) peace, stability and cohesiveness of communities;

(iv) the preservation of the moral fibre and regeneration of society;

(v) the preservation of the culture and traditions of communities;

(vi) socio-economic development and service delivery;

(vii) the social well-being and welfare of communities; and

(viii) the transformation and adaptation of customary law and customs so as to comply with the provisions of the Bill of Rights in the Constitution, in particular by—

(aa) preventing unfair discrimination;

(bb) promoting equality; and

(cc) seeking to progressively advance gender representation in the succession to traditional and Khoi-San leadership positions; and

(b) to enhance co-operation between the National House and the various provincial houses with a view to address matters of common interest.

(2) The National House—

(a) must consider Parliamentary Bills referred to it by the Secretary to Parliament in terms of section 39;

(b) may advise the national government and make recommendations in respect of—

(i) matters relating to policy and legislation regarding traditional and Khoi-San leadership;

(ii) the role of traditional and Khoi-San leaders;

(iii) customary law; and

(iv) the customs of communities observing a system of customary law;

(c) may investigate and make available information on traditional and Khoi-San leadership, traditional and Khoi-San communities, customary law and customs;

(d) must, at the request of the Minister, advise any member of the National Cabinet in connection with any matter referred to in this section;

(e) must complement and support the work of government at national level;

(f) may form co-operative relations and partnerships with government at national level in respect of development and service delivery;

(g) may participate in and form partnerships in respect of international and national programmes geared towards the development of rural communities;

(h) may participate in national initiatives meant to monitor, review and evaluate government programmes in rural communities; and

(i) must perform tasks as may be determined by the President or Minister or as may be provided for in national legislation.

(3) Any member of the National Cabinet who is responsible for national government development programmes that affect or may affect traditional or Khoi-San communities, must consult the National House before any such programme is implemented, amended or discontinued.

37. Administration of National House

(1) The Director-General of the Department may, in consultation with the chairperson of the National House and subject to the laws governing the public service, second or designate officials from the Department to discharge the administrative work of the National House.

(2) The Director-General of the Department must, in terms of the laws governing the public service and in consultation with the chairperson of the National House, appoint a person as Secretary to the House, who must—

(a) exercise or perform the powers and functions conferred upon or assigned to the Secretary by this Act and the rules and orders of the National House;

(b) subject to the directions of the National House, perform such work as is incidental to the exercise or performance by the National House of its powers and functions; and

(c) ensure that the National House and any committee of the House exercise or perform its duties, functions and responsibilities in an appropriate and cost-effective manner.

(3) The Secretary must be supported in the exercise or performance of his or her powers and functions by officials of the Department seconded or designated in terms of subsection (1) for that purpose.

38. Responsibilities of National House

(1) The National House must—

(a) prepare a strategic plan for a period of five years and review it annually;

(b) prepare an annual performance plan;

(d) in addition to quarterly meetings, hold an annual meeting with provincial houses to give account of the activities and finances of the National House;

(e) enforce the code of conduct;

(f) establish clear relationships with provincial houses and facilitate co-operation and communication between itself and provincial houses, as well as between the various provincial houses;

(g) assign clear responsibilities for the management and co-ordination of the administration of the National House to the Secretary of the National House and hold him or her accountable for the overall administration of the National House;

(h) maximise the efficiency of communication and decision-making within the administration of the National House;

(i) involve the Secretary of the National House in decisions impacting on the overall management of the National House, as far as is practical;

(j) promote an equitable, fair, open, non-discriminatory and supportive environment for all provincial houses; and

(k) provide an equitable, fair, open, non-discriminatory and supportive environment for members of the National House.

(2)

(a) The strategic plan and annual performance plan referred to in subsection (1)(a) and (b) must be submitted to the Minister for approval, before a date determined by the Minister.

(b) The National House must submit a quarterly report to the Minister on the implementation of the strategic plan and annual performance plan.

(c) The National House must, within 60 days after the Minister has approved the strategic plan or any revised strategic plan as contemplated in subsection (1)(a), table the strategic plan in Parliament.

(3) The National House must, where applicable,—

(a) determine the reasons why the one-third requirement for female representation on a provincial house is not met; and

(b) in collaboration with the relevant provincial house, determine the reasons why such requirement is not met by a local house, kingship or queenship council, principal traditional council, traditional council, traditional sub-council or Khoi-San council,

and make recommendations to the Minister and the Premier, house and council concerned on how female representation on such house or council can be advanced to ensure that the one-third requirement is met.

39. Referral of Bills to National House

(1)

(a) Any Parliamentary Bill—

(i) which directly affects traditional or Khoi-San communities or pertaining to customary law or customs of traditional or Khoi-San communities; or

(ii) pertaining to any matter referred to in section 154(2) of the Constitution,

must, in the case of a Bill contemplated in subparagraph (i) and may, in the case of a Bill contemplated in subparagraph (ii), before it is passed by the house of Parliament where it was introduced, be referred by the Secretary to Parliament to the National House for its comments.

(b) The National House must, within 60 days from the date of such referral, make any comments it wishes to make and submit such comments to the Secretary to Parliament: Provided that the National House may refer any such Bill to any provincial house for comments: Provided further that if the National House has no comments on any Bill referred to it, the National House must inform the Secretary to Parliament accordingly.

(2) A provincial legislature or a municipal council may adopt the same procedure referred to in subsection (1) in respect of the referral of a provincial Bill or a draft by-law to a provincial house or a local house, as the case may be.

40. Relationship between National House and kings, queens and principal traditional leaders

The National House may meet with recognised kings, queens and principal traditional leaders to discuss—

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

(b) matters of interest to kings, queens and principal traditional leaders;

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

41. Relationship between National House and provincial houses

(1) The National House may—

(a) investigate matters referred to it by a provincial house and make recommendations thereon;

(b) advise provincial houses regarding the administration of their affairs; and

(c) hold a meeting with a provincial house to discuss progress on matters relating to the general interest and welfare of traditional and Khoi-San communities.

(2) Where the National House wishes to interact with a local house or a traditional or Khoi-San 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, after having informed the relevant Premier, interact directly with a local house or traditional or Khoi-San council.

(3) 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.

(4) 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.

42. Support to National House

(1) The Department 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 37(1);

(iii) skills development programmes; and

(iv) administrative systems; and

(b) must include financial support, which support is subject to the budget allocation of the Department.

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

43. Annual report of National House

(1) The National House must annually by no later than 30 June of a particular year, submit to the Minister a report in respect of the preceding financial year, complying with the provisions of subsection (2), in respect of its activities and programmes and must, within 30 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—

(a) the composition of the National House;

(b) the filling of any vacancies;

(d) meetings of the National House, with specific reference to the meetings held with kings, queens and principal traditional leaders, and the meetings held with provincial houses;

(e) the consideration of any Bills referred to the National House;

(f) the exercising of any duties of the National House as contemplated in section 36;

(g) the responsibilities of the National House as contemplated in section 38;

(h) the budget and expenses of the National House;

(i) any matter as may be directed by the President or Minister; and

(j) any other 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.

(b) 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.

44. Privileges and immunities of members of National House

(1) The National House has the authority to control, regulate and dispose of its internal affairs and has all such 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.

45. Remuneration and benefits of members of National House

The remuneration and benefits of members of the National House are determined in terms of the Remuneration of Public Office Bearers Act, 1998 (Act 20 of 1998).

46. Rules, orders and committees of National House

(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) subject to subsection (2), the establishment, constitution, meetings, powers and functions, procedures and lifespan of committees of the National House;

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

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

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

(f) the attendance of any meeting of the National House by any person who is not a member of the House and the status of such a person at such a meeting.

(2) There may be an executive committee consisting of the chairperson and deputy chairperson and those members contemplated in section 29(5).

(3) The National House must, subject to subsection (1), establish an ethics committee.

47. Dissolution of National House

(1) 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 majority of the full complement of the members of the National House in a meeting of the National House called for that purpose: Provided that in such instance the National House must be reconstituted in accordance with the provisions of sections 28 and 29, and such reconstituted National House shall function for the unexpired term of the dissolved National House as contemplated in section 27(2).

(2) Notwithstanding the dissolution of the National House, the Minister may summon the National House to an extraordinary meeting to attend to any urgent business, during the period following such dissolution until the day before the first meeting of the next National House and for this purpose—

(a) every person who on the date of the dissolution of the National House is a member, remains a member of the House; and

(b) the National House remains competent to function.

48. Oath or affirmation by members of National House

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.

Part 3

Provincial and local houses of traditional and Khoi-San leaders

49. Provincial houses of traditional and Khoi-San leaders

(1) Provincial houses may be established by provinces in terms of provincial legislation and subject to the provisions of this Act.

(2) The provincial legislation contemplated in subsection (1) must include provisions that provide for—

(a) fair representation of women in the provincial houses and at least one of the elected representatives of such provincial house to the National House to be a woman;

(b) the term of provincial houses to be five years: Provided that, notwithstanding anything to the contrary contained in any law, but subject to section 63(13), the term of a provincial house that was established and constituted in terms of any applicable legislation prior to the commencement of this Act, will expire on 31 May 2022: Provided further that any term of office of provincial houses reconstituted or established after the commencement of this Act, shall expire every five years on 31 May, calculated from 31 May 2022;

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

(d) where applicable, the election of both senior traditional leaders and senior Khoi-San leaders as contemplated in section 28(1)(a)(i) and (b);

(e) where applicable, a relationship between the provincial house and any kingship or queenship council or principal traditional council within the particular province, including meetings with such councils or the respective recognised traditional leaders;

(f) full-time and part-time members of the provincial house; and

(g) administrative and financial support to the provincial house,

and may provide for a code of conduct for members of a provincial house that complements the code of conduct contained in Schedule 1 to this Act.

(3)

(a) The membership contemplated in subsection (2)(c) must be composed in such a way that both senior traditional leaders and senior Khoi-San leaders are represented in the provincial house concerned—

(i) in the same proportion that they are represented in the local houses concerned; or

(ii) if local houses have not been established, in the same proportion that they would have been represented in such local houses had such houses been established:

Provided that if only one senior Khoi-San leader is a member of a local house as contemplated in subparagraph (i) or would have been such a member as contemplated in subparagraph (ii), such senior Khoi-San leader must be a member of the provincial house concerned.

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

(4) The members of a provincial house must, before they begin to perform their functions in the provincial house, take an oath or solemn affirmation as set out in Schedule 2 to this Act, before a judge of the High Court designated by the relevant Judge President for this purpose.

50. Local houses of traditional and Khoi-San leaders

(1) Subject to the provisions of this Act and any regulations relating to local houses as contemplated in subsection (11), a Premier may by notice in the relevant Provincial Gazette establish a local house of traditional and Khoi-San leaders for the area of jurisdiction of a local municipality, district municipality or a 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, district municipality or a metropolitan municipality are members of a local house established for the specific area.

(4) Where within the area of a local municipality, district municipality or a 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 from amongst its members 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 but not 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: Provided further that where in total the senior traditional leaders, senior Khoi-San leaders, branch heads and chairpersons of traditional sub-councils are not more 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 relevant senior traditional leaders and senior Khoi-San leaders, as the case may be;

(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 district or local and metropolitan municipality—

(a) the senior traditional leader is a member of the local house where he or she resides; and

(b) the traditional council must elect a headman or headwoman from the areas situated in the local, district 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 are—

(a) to advise the local municipality, district municipality or the metropolitan municipality on—

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

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

(7) A local house must meet at least four times a year.

(8) The term of a local house is five years: Provided that, notwithstanding anything to the contrary contained in any law, but subject to section 63(14), the term of a local house that was established and constituted in terms of any applicable legislation prior to the commencement of this Act, will expire on 30 April 2022: Provided further that any term of office of local houses reconstituted or established after the commencement of this Act, shall expire every five years on 30 April, calculated from 30 April 2022.

(9) The traditional and Khoi-San leaders who participate in the proceedings of a municipal council as contemplated in section 81 of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998), must report on such participation in accordance with the provisions of that section.

(10) A province must provide administrative and financial support to local houses which support may include, but is not limited to, office accommodation and support staff: Provided that where local houses are established for the areas of jurisdiction of local municipalities, the administrative support to such houses may be provided as a shared service on district or metropolitan level.

(11) The Minister may, in accordance with the provisions of section 60, make regulations in respect of—

(a) the disqualification of members of a local house;

(b) the privileges and immunities of members of a local house;

(d) meetings of a local house, including the quorum and requisite majorities;

(e) the vacation of seats and the filling of vacancies;

(f) subject to subsection (6), the powers, functions and duties of a local house;

(g) subject to subsection (4)(a), the chairperson and deputy chairperson of a local house;

(h) the rules and orders of a local house;

(i) subject to subsection (10), the administrative and financial support to be provided to a local house;

(j) the relationship between provincial and local houses having regard to the provisions of section 41;

(k) mechanisms or procedures that would allow a fair representation of women as members of local houses; and

(l) a code of conduct for members of local houses that complements the code of conduct contained in Schedule 1 to this Act.

(12) A Premier may make regulations in respect of the matters set out in subsection (11): Provided that such regulations may not be inconsistent with any regulations made by the Minister in terms of subsection (11): Provided further that the provisions of section 60(2)(a) apply with the necessary changes to any regulations made by a Premier in terms of this subsection.

(13) The members of a local house must, before they begin to perform their functions in the local house, take an oath or solemn affirmation as set out in Schedule 2 to this Act, before a judge of the High Court designated by the Judge President for this purpose.

CHAPTER 4

COMMISSION ON KHOI-SAN MATTERS

51. Establishment of Commission

(1) There is hereby established a Commission on Khoi-San Matters.

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

52. Appointment of members of Commission

(1)

(a) The Minister must, subject to paragraphs (b), (c), (d), (e) and (f), and after inviting nominations from the general public, appoint a chairperson, deputy chairperson and not more than five other persons, as members of the Commission for a period not exceeding five years or any such further period as the Minister may determine by notice in the Gazette.

(b) A member of the Commission must be a South African citizen and have a qualification or experience in or knowledge appropriate to—

(i) anthropology;

(ii) history relating to the Khoi-San;

(iii) customary law and customs and the institutions of Khoi-San leadership; or

(iv) law.

(c) The members of the Commission referred to in paragraph (b)(i), (ii) and (iii) must collectively represent a pool of knowledge concerning issues relevant to the Khoi-San groupings.

(d) The Minister may appoint a selection panel consisting of the Director-General of the Department and not more than three other persons to make recommendations to the Minister on which nominees, based on the requirements referred to in this subsection, are most suited to serve on the Commission.

(e) The Minister may, after having received the recommendations of the selection panel contemplated in paragraph (d), refer the recommendations to the Premiers for comments.

(f) A nomination made by the public must contain all the information as may be specified in the invitation and must indicate whether the nominee is eligible for possible recognition as a senior Khoi-San leader or is a member of a community which may apply for possible recognition as a Khoi-San community: Provided that no such person may serve on the Commission.

(g) The names of the chairperson, deputy chairperson and members appointed in terms of paragraph (a), together with the date from which the appointment takes effect, must be published in the Gazette.

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

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

(4) 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) such member having been declared mentally unfit or mentally disordered by a court;

(d) misconduct, incapacity or incompetence; or

(e) such member becoming eligible for recognition as a senior Khoi-San leader or branch head, or being a member of a community which applied for recognition as a Khoi-San community.

(5)

(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).

53. Vacancies

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 52(4); 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.

54. Conditions of appointment of members of Commission

(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 the members of the Commission; and

(b) the level of expertise and experience required from the members of the Commission.

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

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

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

55. Support to and reports by Commission

(1)

(a) The Department must provide administrative and financial support to the Commission so as to enable it to perform all the functions assigned to it and may second or designate officials from the Department for this purpose or to conduct research on behalf of the Commission.

(b) The Commission may, subject to the provisions of the Public Finance Management Act, 1999 (Act 1 of 1999), and with the approval of the Director-General of the Department, appoint a suitable person or persons to conduct research on its behalf.

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

56. Application for recognition of Khoi-San communities, branches, senior Khoi-San leaders and branch heads

(1) A community that meets the criteria set out in section 5 may lodge a detailed application in writing with the Commission for the recognition of that community and if applicable, the branches of that community as well as for the recognition of a senior Khoi-San leader who meets the criteria set out in section 7 and if applicable, a branch head.

(2) An application contemplated in subsection (1) must be in the format as may be determined by the Commission, must comply with the provisions of section 5(1)(b) and must—

(a) be lodged by a member of the community duly authorised by such community or the royal family concerned, as the case may be; and

(b)

(i) be accompanied by information setting out the details on which the claim for the recognition of the community as well as the leadership positions are based;

(ii) be accompanied by details of the geographical area or areas referred to in section 5(1)(a) and, subject to section 5(1)(c), the number of members of the community occupying such areas;

(iii) be submitted within the period of two years referred to in section 57(2)(a); and

(iv) if the community referred to in subsection (1) has a proven history of hereditary or elected leadership, be accompanied by details of the hereditary or elected leadership position.

(3) When considering an application, the Commission must consider and apply customary law and customs of the Khoi-San community concerned.

(4) The Commission must, in respect of an application for the recognition of—

(a) a community and branches, apply the criteria set out in section 5; and

(b) hereditary or elected senior Khoi-San leaders, apply the criteria set out in sections 7 and 10.

(5) The Commission must, on a quarterly basis, inform the Premiers concerned of the applications received in terms of this section.

57. Functions of Commission

(1) The Commission must investigate and make recommendations to the Minister on the recognition of—

(a) Khoi-San communities;

(b) hereditary senior Khoi-San leaders;

(d) branches and branch heads.

(2) The Commission—

(a)* may only investigate and make recommendations in respect of those applications that have been lodged with the Commission in terms of section 56 within a period of two years from a date to be determined by the Minister by notice in the Gazette,* or any such further period as the Minister may determine by notice in the Gazette; and

* 30 March 2022 (GN 1639 in G. 45690 of 24 December 2021).

(b) must complete the investigations and make recommendations as contemplated in paragraph (a) within the period of five years referred to in section 52(1)(a), or any such further period as the Minister may determine.

(3) Any application that has not been lodged with the Commission by the period referred to in subsection (2)(a), may not be dealt with by the Commission and must be dealt with in accordance with the provisions of sections 5 or 10, as the case may be.

(4) Any dispute that may arise after the period referred to in subsection (2)(a), must be dealt with by the relevant Premier and for this purpose the provisions of section 59 apply with the necessary changes.

58. Recommendations and decisions

(1) A recommendation of the Commission must be agreed to by at least two-thirds of the members of the Commission.

(2)

(a) A recommendation of the Commission must, within a period of two weeks of the recommendation having been made, be referred for comments to the Premier of the province where the applicant community, leader and branch head reside or where the branch is located.

(b) A Premier must submit his or her comments to the Commission within a period of 60 days from the date of referral of the recommendation: Provided that if no comments are received within the period of 60 days, it shall be deemed that the Premier is in support of the specific recommendation.

(c) The Commission must, within a period of two weeks from the expiry of the 60 days referred to in paragraph (b), submit its recommendation together with the Premier’s comments, if any, to the Minister.

(3) The Minister must, within a period of 60 days from the date of receipt of the submission contemplated in subsection (2)(c), make a decision on the recommendation.

(4) If the Minister takes a decision that differs with the recommendation submitted in terms of subsection (2), the Minister must provide written reasons for such decision to the Commission and relevant Premier.

(5) Subject to the decision of the Minister as contemplated in subsection (3), the Minister must—

(a) recognise a Khoi-San community, branch, senior Khoi-San leader or branch head, as the case may be, by notice in the Gazette; and

(b) issue a certificate of recognition to such leader.

CHAPTER 5

GENERAL PROVISIONS

59. Disputes

(1)

(a) This section applies to any traditional leadership dispute other than a dispute that was dealt with or is being dealt with by the CTLDC contemplated in section 63(23).

(b)

(i) Provincial legislation may provide for a mechanism to deal with traditional leadership disputes, excluding any dispute relating to a king or a queen or a kingship or a queenship: Provided that such legislation may not be inconsistent with this section.

(ii) Notwithstanding the relevant provisions of provincial legislation contemplated in subparagraph (i), a Premier may apply subsection (3).

(c) In the absence of provincial legislation as contemplated in paragraph (b)(i), a Premier must apply the provisions of this section.

(2) Any traditional leadership dispute relating to a king, queen, principal traditional leader, senior traditional leader, headman, headwoman, kingship, queenship, principal traditional community, traditional community, headmanship or headwomanship, must be dealt with by the President in the case of a king, queen, kingship or queenship and by the Premier concerned in the case of any other dispute and the President or Premier, as the case may be, must—

(a) cause an investigation to be conducted by an investigative committee designated by him or her which committee must, in the case of a dispute concerning a king, queen, kingship or queenship include at least one member of the National House and in the case of any other dispute include at least one member of the relevant provincial house, to provide a report as well as recommendations on the matter in dispute within 60 days from the date of designation of the investigative committee; and

(b) refer the report to the relevant royal family or, where applicable, relevant traditional council for its written comments which must be submitted to the President or Premier, as the case may be, within 60 days from the date of such referral.

(3) The President or the relevant Premier, as the case may be, may refer any dispute, including any report, recommendations and comments contemplated in subsection (2), to the Minister for written comments and advice which must be submitted to the President or Premier, as the case may be, within 60 days from the date of such referral.

(4) After having considered the report and recommendations of the investigative committee, the comments of the royal family or traditional council and, where applicable, the comments and advice of the Minister, the President or relevant Premier, as the case may be, must take a decision on the matter in dispute and inform the parties to the dispute in writing of his or her decision.

60. Regulations

(1) The Minister may, by notice in the Gazette, make regulations regarding—

(a) any matter that must or may be prescribed in terms of this Act;

(b) the traditional, ceremonial and any other roles and functions of a king or queen, or principal traditional leader, after consultation with a delegation consisting of not more than two members of each kingship or queenship council or principal traditional council, as the case may be, designated by such councils;

(c) any matter that may be necessary to ensure the effective functioning of any local house, including a matter referred to in section 50(11); and

(d) any ancillary or administrative matter that is necessary to prescribe for the proper implementation or administration of this Act.

(2) Before any regulations are made under this section, the Minister must—

(a) in respect of regulations as contemplated in subsection (1)(a), (c) and (d), consult—

(i) the members of the Executive Councils responsible for traditional and Khoi-San leadership matters of the provinces concerned; and

(ii) the relevant provincial houses;

(b) in respect of regulations as contemplated in subsection (1)(b), consult—

(i) the Premiers concerned;

(ii) the members of the Executive Councils responsible for traditional and Khoi-San leadership matters of the provinces concerned;

(iii) the National House; and

(iv) the provincial houses concerned; and

(3) Any regulations made under this section must, within 90 days of the notice contemplated in subsection (1), be tabled in Parliament for noting.

61. Delegation of powers and duties by Premier

(1) A Premier may, subject to such conditions as he or she may determine, in writing, delegate any power or duty conferred on him or her under this Act, except the power to recognise any community or leader or to withdraw such recognition, to the member of the Executive Council responsible for traditional affairs of the province concerned.

(2) A delegation in terms of subsection (1) does not prevent the exercise of the relevant power or the performance of any duty by a Premier.

(3) A Premier may at any time, in writing, withdraw or amend a delegation contemplated in subsection (1).

(4) A member of the Executive Council to whom a power has been delegated, may not further delegate such power or duty, without the written authority of the Premier concerned.

(5) A Premier must, within 30 days of delegating any power or duty in terms of subsection (1) or withdrawing or amending such delegation in terms of subsection (3), inform the Minister accordingly.

62. Monitoring

(1) The Department may monitor the implementation of this Act and any regulations made in terms of this Act, including the functioning of any Commission, committee, house, community, leader, council or branch provided for in this Act, and may submit reports in this regard and make recommendations on such implementation or functioning to the Minister, the relevant Premier or Premiers in general, and the relevant Commission, committee, house, community, leader, council or branch.

(2) The Department may monitor the implementation of section 81 of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998), and make recommendations on such implementation to the Minister, a Premier, any relevant house of traditional and Khoi-San leaders, and any senior traditional leader or senior Khoi-San leader who participates in the proceedings of a municipal council in accordance with the provisions of that Act.

(3) The Minister may, after having received a report or recommendations contemplated in subsections (1) and (2), as the case may be, and in consultation with the relevant Premier, take the necessary steps to ensure that the provisions of this Act are met.

63. Transitional arrangements

(1)

(a) Any traditional leader—

(i) who was appointed or recognised as such in terms of applicable provincial legislation and was still recognised as a traditional leader immediately before 24 September 2004; or

(ii) who was recognised as such in terms of the Traditional Leadership and Governance Framework Act, 2003 (Act 41 of 2003) (hereinafter referred to as the Framework Act), prior to the repeal of that Act, or in terms of any applicable provincial legislation which is not inconsistent with the Framework Act, as the case may be,

is deemed to have been recognised as such in terms of section 8 of this Act, subject to a recommendation of the CTLDC, where applicable.

(b) Any kingship or queenship, principal traditional community, traditional community and subject to paragraph (c), any headmanship or headwomanship that was recognised as such in terms of the Framework Act prior to the repeal of that Act, or in terms of any applicable provincial legislation which is not inconsistent with the Framework Act, as the case may be, is deemed to have been recognised in terms of section 3 of this Act, subject to a recommendation of the CTLDC, where applicable.

(c)

(i) A Premier must, within three years of the commencement of this Act or such further period as the Minister may determine, cause an investigation to be conducted to determine whether any headmanship or headwomanship established or recognised in terms of applicable legislation prior to or since the commencement of the Framework Act, and any headman or headwoman appointed or recognised for such headmanship or headwomanship, meet the relevant criteria set out in sections 3, 7 and 8 of this Act.

(ii) If an investigation as contemplated in subparagraph (i) finds that any headmanship or headwomanship or any headman or headwoman does not meet the relevant criteria set out in sections 3, 7 and 8 of this Act, such headmanship or headwomanship shall automatically be disestablished upon the death or resignation of the relevant headman or headwoman and the appointment or recognition of the position of headman or headwoman, as the case may be, shall be deemed to have been withdrawn.

(iii) The Premier may by notice in the Provincial Gazette stipulate the legal, practical and other consequences of a disestablishment as contemplated in subparagraph (ii).

(d) Any kingship or queenship council, principal traditional council, traditional council or traditional sub-council established in terms of the Framework Act prior to the repeal of that Act, or in terms of applicable provincial legislation which is not inconsistent with the Framework Act and which complies with all requirements of this Act, is deemed to have been established in terms of section 16 or 17 of this Act, as the case may be.

(2) Any person who was recognised or appointed as a regent, acting leader or deputy leader in terms of the Framework Act, prior to the repeal of that Act, or in terms of any applicable provincial legislation which is not inconsistent with the Framework Act, as the case may be, is deemed to have been recognised as such in terms of section 12, 13 or 14 of this Act, as the case may be.

(3) Any “tribe” that, immediately before 24 September 2004, had been established in terms of applicable legislation and was still recognised as such, is deemed to be a traditional community contemplated in section 3 of this Act, subject to—

(a) the withdrawal of its recognition in accordance with the provisions of section 4; or

(b) a recommendation of the CTLDC, where applicable.

(4)

(a) A tribal authority that, immediately before 24 September 2004, had been established and was still recognised as such, is deemed to be a traditional council contemplated in section 16 of this Act and must perform the functions referred to in section 20: Provided that such a tribal authority must be reconstituted to comply with the provisions of section 16(2) within two years from the date of commencement of this Act.

(b) If, prior to the commencement of this Act, any tribal authority was reconstituted as contemplated in paragraph (a), but such reconstitution did not comply with all the requirements of section 16(2), such tribal authority is deemed to be a traditional council and must, within two years of the commencement of this Act, be reconstituted in full compliance with the provisions of section 16(2).

(c) If the timeframes contemplated in paragraph (a) or (b) are not met, the Minister may, within one year after the timeframes have lapsed and after consultation with the relevant Premier, apply the provisions of section 16(2) to ensure that such tribal authority or traditional council is constituted or reconstituted in accordance with the provisions of section 16(2).

(d) The provisions of section 16(5) apply to any constitution or reconstitution contemplated in this subsection.

(5)

(a) Any community authority that had been established in terms of applicable legislation and still existed as such immediately before 24 September 2004, continues to exist until it is disestablished in accordance with provincial legislation, which disestablishment must take place within three years from the date of commencement of this Act, except where the traditional leadership related to that community authority is still under investigation by the CTLDC in which case the community authority concerned must be administered as if the relevant establishing legislation had not been repealed.

(b) The provincial legislation contemplated in paragraph (a) must regulate the legal, practical and other consequences of the disestablishment, including—

(i) the transfer of assets, liabilities and administrative and other records to an appropriate authority;

(ii) the vacation of office of any office bearer of such a community authority; and

(iii) the transfer of staff of such a community authority in accordance with applicable legislation.

(c) In the absence of provincial legislation as contemplated in paragraph (a), the Premier of a province may, after consultation with any relevant member of the Executive Council of the province, the relevant community authority and the provincial house, by notice in the Provincial Gazette disestablish such community authority and such notice must stipulate the legal, practical and other consequences of such disestablishment as contemplated in paragraph (b).

(d) If the timeframe referred to in paragraph (a) is not met in respect of any community authority, the Minister may, after consultation with the relevant Premier, disestablish a community authority and by notice in the Gazette, stipulate the legal, practical and other consequences of such disestablishment as contemplated in paragraph (b).

(6)

(a) The Premier of a province must, by notice in the Provincial Gazette, within two years of the commencement of this Act disestablish any regional authority, Ibandla Lamakhosi, Council of Chiefs and ward authority functioning under tribal authorities that have been established in terms of applicable legislation before the commencement of this Act.

(b) The notice disestablishing a regional authority, Ibandla Lamakhosi, Council of Chiefs or ward authority must stipulate the legal, practical and other consequences of the disestablishment, including—

(i) the transfer of assets, liabilities and administrative and other records to an appropriate provincial department, a municipality or local house of traditional 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 in accordance with applicable legislation.

(c) If the timeframe of two years referred to in paragraph (a) is not met in respect of any regional authority, Ibandla Lamakhosi, Council of Chiefs or ward authority, the Minister may, after consultation with the relevant Premier, disestablish a regional authority, Ibandla Lamakhosi, Council of Chiefs or ward authority and by notice in the Gazette, stipulate the legal, practical and other consequences of such disestablishment subject to paragraph (b).

(7)

(a) Where, pursuant to an investigation conducted in terms of section 28(7) of the Framework Act, the Commission decided that a paramountcy qualifies to be recognised as a kingship or queenship, such a paramountcy is deemed to be recognised as a kingship or queenship in terms of section 3 of this Act.

(b) The incumbent paramount chiefs, in respect of the kingships and queenships contemplated in paragraph (a), are deemed to be recognised as kings or queens in terms of section 8 of this Act.

(c) In this subsection and subsection (8), “Commission” refers to the Commission on Traditional Leadership Disputes and Claims as it existed prior to 1 February 2010.

(8)

(a) Where, pursuant to an investigation conducted in terms of section 28(7) of the Framework Act, the Commission decided that a paramountcy does not qualify to be recognised as a kingship or queenship, such a paramountcy will, notwithstanding the decision of the Commission and subject to paragraph (c), be deemed to be recognised as a kingship or queenship in terms of section 3 of this Act.

(b) Where, pursuant to an investigation conducted in terms of section 28(7) of the Framework Act, the Commission has decided that a paramount chief does not qualify to be recognised as a king or queen, such a paramount chief, regent or acting paramount chief will, notwithstanding the decision of the Commission and subject to paragraph (c), be deemed to be recognised as a king or queen in terms of section 8 or a regent or acting king or queen in terms of section 12 or 13 of this Act, respectively.

(i) if, on 1 February 2010, the position was vacant;

(ii) on the death of the incumbent king or queen where the position of such king or queen is occupied by a permanent incumbent;

(iii) where the position of the incumbent king or queen is occupied by a regent or an acting incumbent, on the death of such regent or acting incumbent or on the date of the recognition of a successor,

whereafter the kingship or queenship and the king or queen, as the case may be, will be deemed to be a principal traditional community and principal traditional leader respectively: Provided that when a leader or a community becomes a principal traditional leader or principal traditional community in terms of this paragraph, the Premier concerned must publish a notice in the relevant Provincial Gazette recognising such principal traditional leader and principal traditional community, and issue a certificate of recognition to such principal traditional leader.

(9) If a kingship or queenship council has been established for a kingship or queenship referred to in subsection (8)(a) and the recognition of such kingship or queenship lapses in terms of subsection (8)(c), the kingship or queenship council shall be deemed to be a principal traditional council.

(10)

(a) The CTLDC established by section 22 of the Framework Act shall, notwithstanding the repeal of that Act by this Act, continue to function in accordance with the provisions of sections 21 to 26A of the Framework Act until the expiry of its term of office, subject to section 25(4)(b) of the Framework Act.

(b) Any recommendation made by the CTLDC remains valid notwithstanding the repeal of the Framework Act.

(11) Any dispute or claim that has not been disposed of by the CTLDC by the expiry of its term of office must be dealt with in accordance with the provisions of section 59 of this Act or any relevant provisions provided for in provincial legislation.

(12) Notwithstanding the provisions of section 28, the traditional leaders who, on the date of commencement of this Act were members of the National House of Traditional Leaders established in terms of the National House of Traditional Leaders Act, 2009 (Act 22 of 2009), remain members of that House and continue as such as if that Act had not been repealed, until 30 June 2022 whereupon that House must be reconstituted in terms of this Act: Provided that anything done by the National House in accordance with a provision of the National House of Traditional Leaders Act, 2009, prior to the commencement of this Act, shall be deemed to have been done in terms of the corresponding provision of this Act.

(13) Notwithstanding the provisions of section 49, the traditional leaders who, on the date of commencement of this Act were members of a provincial house of traditional leaders established and constituted in terms of provincial legislation, remain members of the provincial house concerned, until 31 May 2022 and any subsequent reconstitution of such a house must comply with the provisions of section 49.

(14) Notwithstanding the provisions of section 50, the members of a local house of traditional leaders who, on the date of commencement of this Act were members of a local house established and constituted in terms of applicable national or provincial legislation, remain members of the local house concerned, until 30 April 2022 and any subsequent reconstitution of such a house must comply with the provisions of section 50.

(15) Any formula or guidelines determined or issued in terms of a provision of the Framework Act, prior to the commencement of this Act, continues to apply until it is replaced by a formula issued in terms of the applicable provision of this Act.

(16) Any consultations done in respect of the establishment of a kingship or queenship council as contemplated in section 3A(2)(a) of the Framework Act prior to the commencement of this Act, is deemed to have been done in accordance with the provisions of section 16(2) of this Act.

(17) Notwithstanding the provisions of sections 16 and 17, as the case may be, the members of a kingship or queenship council, a principal traditional council or a traditional sub-council who, on the date of commencement of this Act were members of such a council established and constituted in terms of applicable national or provincial legislation, remain members of the council concerned, until 30 April 2022, and any subsequent reconstitution of such a council must comply with the provisions of section 16 or 17, as the case may be.

(18) Notwithstanding the provisions of section 16, the members of a traditional council who, on the date of commencement of this Act were members of such a council established and constituted in terms of applicable national or provincial legislation, remain members of the council concerned, until 31 March 2022, and any subsequent reconstitution of such a council must comply with the provisions of section 16.

(19) Notwithstanding the provisions of section 18, the members of a Khoi-San council that was established in terms of this Act prior to 31 March 2022, remain members of the council concerned until 31 March 2027, and any subsequent reconstitution of such a council must comply with the provisions of section 18.

(20)

(a) Notwithstanding any other provision of this Act, recognised senior Khoi-San leaders will become members of the National House, provincial houses and local houses with effect from the dates referred to in sections 27(2), 49(2)(b) and 50(8) respectively and subject to the provisions relating to the constitution of such houses as contemplated in sections 28, 29, 49 and 50.

(b) Notwithstanding the provisions of paragraph (a), any senior Khoi-San leader who has been recognised prior to the dates referred to in sections 49(2)(b) and 50(8) respectively, may, upon a decision of the relevant provincial or local house, become a co-opted member of such house with observer status for the term of office of such house ending in 2022.

(c) A recognised senior Khoi-San leader who becomes a co-opted member of a provincial or local house as contemplated in paragraph (b), may be reimbursed for his or her travel and accommodation expenditure for the purposes of attending meetings of such house, in accordance with the travel and subsistence policy of the provincial department responsible for providing administrative and financial support to such house.

(21) In any instance where the area of jurisdiction of a traditional council or traditional sub-council has been defined in terms of national or provincial legislation prior to the commencement of this Act, a Premier must, within three years of the commencement of this Act, or such further period as the Minister may determine, have such areas of jurisdiction mapped and publish such maps by notice in the relevant Provincial Gazette.

(22)

(a) Any partnership or agreement entered into by a kingship or queenship council, principal traditional council, traditional council or traditional sub-council prior to the commencement of this Act, must, within three years from such commencement, be reviewed by the relevant Premier to determine whether such partnership or agreement meets the requirements of section 24(3)(a), (b), (c), (e) and (4).

(b) If a Premier is of the opinion that a partnership or agreement contemplated in paragraph (a) does not meet such requirements, the Premier must refer such partnership or agreement to the parties who entered into such partnership or agreement and request them to either amend or re-enter into such partnership or agreement to ensure compliance with section 24(3)(a), (b), (c), (e) and (4), or to cancel such partnership or agreement.

(d) The provisions of this subsection do not apply to any partnership or agreement which, at the commencement of this Act, has been entered into in accordance with any enabling provisions of any other law.

(23) For the purposes of this chapter, “CTLDC” means the Commission on Traditional Leadership Disputes and Claims established in terms of section 22 of the Framework Act.

64. Amendment of legislation

The legislation mentioned in Schedule 3 to this Act, is hereby amended to the extent set out in that Schedule.

65. Repeal of legislation and savings

(1) The legislation specified in Schedule 4 to this Act, is repealed to the extent indicated in the third column of that Schedule.

(2) Anything done or deemed to have been done under any provision of a law repealed by subsection (1) and which may or must be done in terms of this Act, is regarded as having been done in terms of the corresponding provision of this Act.

66. Short title

This Act is called the Traditional and Khoi-San Leadership Act, 2019, and comes into operation on the date to be determined by the President by proclamation in the Gazette.

Schedule 1

CODE OF CONDUCT FOR MEMBERS OF HOUSES AND COUNCILS

[Sections 1(1), 49(2) and 50(11)]

1 Definitions

2 General conduct of members

3 Attendance of meetings

4 Sanctions for non-attendance of meetings

5 Disclosure of interests

6 Personal gain

7 Declaration of interests

8 Rewards, gifts and favours

9 Unauthorised disclosure of information

10 Breach of code by a member of the National House

11 Breach of code by a member of a provincial house, a local house or a council

1 Definitions

In this Schedule, unless the context indicate[s] otherwise—

(a) “House” means the National House of Traditional and Khoi-San Leaders, a provincial house of traditional and Khoi-San leaders and a local house of traditional and Khoi-San Leaders;

(b) “member” means a member of a House or a council;

(c) “council” means a kingship or queenship council, principal traditional council, traditional council, traditional sub-council, Khoi-San council and a branch.

2 General conduct of members

A member—

(a) must perform his or her functions in good faith and in an honest, non-discriminatory and transparent manner;

(b) must at all times act in the best interest of the House or council and in such a way that the credibility and integrity of the House or council are not compromised;

(d) may not use the power of his or her office to seek or obtain special advantage for personal benefit that is not in the public interest; and

(e) may not disclose confidential information acquired in the course of his or her duties, unless required by law to do so or by circumstances to prevent substantial injury to third persons.

3 Attendance of meetings

A member must attend each meeting of the House or a council and of a committee of the House or a council of which he or she is a member, except when—

(a) leave of absence is granted in terms of an applicable law or as determined by the rules and orders of the House or council; or

(b) that member is required in terms of item 5(1)(b) to withdraw from a meeting.

4 Sanctions for non-attendance of meetings

(1) A member who, without leave of absence, is absent from three or more consecutive meetings of the House or a council which that member is required to attend, must be removed from office as a member of the House or such council.

(2) The removal of a member from office in terms of subitem (1) is subject to the provisions of item 10 in the case of a member of the National House and item 11 in the case of a member of a provincial house, a local house or a council.

5 Disclosure of interests

(1) A member must—

(a) disclose to the House or a council, or to any committee of the House or a council of which he or she is a member, any direct or indirect personal or private business interest that that he or she, or any spouse, partner, business associate or close family member of that member, may have in any matter before the House or a council or before a committee of the House or a council; and

(b) withdraw from the proceedings of the House or a council or committee of the House or a council when a matter as contemplated in paragraph (a) is considered by the House, council or committee, unless the House or a council or a committee thereof decides that the member’s direct or indirect interest in the matter is trivial or irrelevant.

(2) A member who, or whose spouse, partner, business associate or close family member, acquired or stands to acquire any direct benefit from a contract concluded with the House or a council, must disclose full particulars of the benefit of which that member is aware of, at the first meeting of the House or a council at which it is possible for the member to make such disclosure.

6 Personal gain

(1) A member may not use the position or privileges of being a member, or confidential information obtained as a member, for private gain or to improperly benefit another person.

(2) Except with the prior consent of the House or a council, a member may not—

(a) be a party to or a beneficiary under a contract for the provision of goods or services to the House or a council;

(b) obtain a financial interest in any business of the House or a council; or

(c) for a fee or other consideration appear on behalf of any other person before the House or a council or a committee of the House or a council.

(3) If more than one-quarter of the members of the House or a council object to consent being given to a member in terms of subitem (2), such consent may only be given to the member with the approval of the Minister in the case of the National House and the relevant Premier in the case of a provincial house, a local house or a council.

7 Declaration of interests

(1) When elected or appointed, a member must within 60 days of his or her election or appointment, declare in writing to an official of the House or of a council, designated by the Minister in the case of the National House or by the relevant Premier in the case of a provincial house, a local house or a council, the following financial interests held by such member—

(a) shares and securities in any company;

(b) membership of any close corporation;

(d) directorships;

(e) partnerships;

(f) other financial interests in any business-undertaking;

(g) employment and remuneration;

(h) interest in property;

(i) pension; and

(j) subsidies, grants and sponsorships by any organisation.

(2) Any change in the nature or detail of the financial interests of a member must annually be declared in writing to the official referred to in subitem (1).

(3) Gifts received by a member with a value above an amount as may be determined by the Minister by notice in the Gazette, must also be declared in accordance with subitem (1).

(4) The House or a council must determine which of the financial interests referred to in subitem (1) must be made public having regard to the need for confidentiality and the public interest for disclosure.

8 Rewards, gifts and favours

A member may not request, solicit or accept any reward, gift or favour for—

(a) voting or not voting in a particular manner on any matter before the House or a council or before a committee of the House or a council, of which he or she is a member;

(b) persuading the House or a council or any committee of the House or a council with regard to the exercise of any power, function or duty;

(d) disclosing privileged or confidential information.

9 Unauthorised disclosure of information

(1) A member may not without the permission of the House or a council or a committee of the House or a council, disclose any privileged or confidential information of the House or a council or such committee to any unauthorised person.

(2) For the purposes of this item “privileged or confidential information” includes any information—

(a) in respect of which the House or a council or a committee of the House or a council is the original author and is classified by the House or a council or a committee of the House or a council, to be privileged or confidential;

(b) discussed in closed session by the House or a council or a committee of the House or a council;

(d) declared to be privileged, confidential or secret in terms of law.

(3) This item does not derogate from the right of any person to apply for access to information in terms of relevant national legislation.

10 Breach of code by a member of the National House

(1) If the National House, on reasonable grounds, is of the opinion that a provision of the code of conduct has been breached by one of its members, the National House must—

(a) authorise an investigation of the facts and circumstances of the alleged breach; and

(b) give the member of the National House a reasonable opportunity to reply in writing regarding the alleged breach:

Provided that the National House may suspend the relevant member for the duration of such an investigation.

(2) The National House must inform the Minister of the outcome of any investigation.

(3) The Secretary must ensure that each member of the National House, when taking office, is given a copy of this code of conduct and that a copy of the code is available in every room or place where the National House or a committee of the National House meets.

(4) If the National House has authorised an investigation, it must establish an investigative committee—

(a) to investigate and make a finding on any alleged breach of the code of conduct; and

(b) to make recommendations in respect of an appropriate sanction or sanctions to the National House.

(5) If an investigative committee appointed by the National House to conduct an investigation finds that a member of the National House, including the chairperson or deputy chairperson, has breached a provision of the code of conduct, the National House may—

(a) issue a formal warning to such member;

(b) reprimand such member;

(d) remove such member from office.

(6)

(a) Any member of the National House who has been warned, reprimanded, suspended or removed in terms of paragraph (a), (b), (c) or (d) of subitem (5) may, within 14 days of having been notified of the decision of the National House, appeal to the Minister in writing setting out the reasons on which the appeal is based.

(b) A copy of the appeal must be provided to the National House.

(c) The National House may, within 14 days of receipt of the appeal referred to in paragraph (b), make any representation pertaining to the appeal to the Minister in writing.

(d) The Minister may, after having considered the appeal, confirm, set aside or vary the decision of the National House and inform the relevant member of the National House as well as the House of the outcome of the appeal.

(7)

(a) If the National House does not authorise an investigation as contemplated in subitem (1), the Minister must appoint a person or a committee to investigate any alleged breach of a provision of this code of conduct by a member of the National House and to make recommendations as to the appropriate sanction in terms of subitem (5): Provided that the Minister may suspend the relevant member for the duration of such investigation.

(b) If the Minister is of the opinion that a member of the National House has breached a provision of this code of conduct, and that such contravention warrants a suspension or removal from office, the Minister may—

(i) suspend the member of the National House for a period and on conditions determined by the Minister; or

(ii) remove the member of the National House from office.

(8) Any investigation in terms of this item must be conducted in accordance with the provisions of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000).

11 Breach of code by a member of a provincial house, a local house or a council

(1) If a provincial house, a local house or a council, or any member of such a house or council, on reasonable grounds, is of the opinion that a member of such house or council, excluding the chairperson, has breached a provision of this code of conduct, that house or council must establish an investigative committee—

(a) to investigate and make a finding on any alleged breach of this code of conduct; and

(b) to make recommendations to the relevant house or council:

Provided that the house or council may suspend the relevant member for the duration of such investigation.

(2) If an investigative committee finds that a member of a provincial house, a local house or a council has breached a provision of this code of conduct, the relevant house or council may—

(a) issue a formal warning to such member;

(b) reprimand such member;

(d) request the Premier to remove the member from office.

(3)

(a) If the relevant provincial house, local house or council does not establish an investigative committee as contemplated in subitem (1), the relevant Premier must appoint a person or an investigative committee to investigate any alleged breach of a provision of this code of conduct and to make recommendations as to the appropriate sanction in terms of subitem (2): Provided that in the event of an alleged breach of the code of conduct by the chairperson of a provincial house, a local house or a council, the provisions of this item must be applied by the Premier: Provided further that the Premier may suspend the relevant member for the duration of such investigation.

(b) If a Premier is of the opinion that a member of a provincial house, a local house or a council has breached a provision of this code of conduct and that such contravention warrants a suspension or removal from office, the Premier may—

(i) issue a formal warning to such member;

(ii) reprimand such member;

(iii) suspend the member for a period and on conditions as he or she may determine; or

(iv) remove a member from office: Provided that in the case of the chairperson of a council, any such removal from office is subject to the relevant provision of the Act dealing with the withdrawal of recognition of the leadership position concerned.

(4) If a Premier fails to comply with subitem (3)(a), the Minister must appoint a person or an investigative committee to conduct an investigation as contemplated in subitem (3)(a), and the provisions of subitem (3)(b) apply with the necessary changes.

(5) The Commissions Act, 1947 (Act 8 of 1947), or where appropriate, applicable provincial legislation, may be applied to an investigation in terms of subitem (3).

(6) Any investigation in terms of this item must be conducted in accordance with the provisions of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000).

Schedule 2

[Sections 48, 49(4) and 50(13)]

Part A

Oath by members of the National House, Provincial Houses and Local Houses

I, ................................................................................................................. (name of member),

do swear that I will be faithful to the House and will obey, respect and uphold the Constitution and all other law of the Republic, and I solemnly promise to perform my functions as a member of the House to the best of my ability.

So help me God.

...................................................

Signature of Member

Date:

Part B

Affirmation by members of the National House, Provincial Houses and Local Houses

I, ................................................................................................................. (name of member),

do solemnly affirm that I will be faithful to the House and will obey, respect and uphold the Constitution and all other law of the Republic, and I solemnly promise to perform my functions as a member of the House to the best of my ability.

...................................................

Signature of Member

Date:

Schedule 3

AMENDMENT OF LEGISLATION

[Section 64]

1. Amends section 1 of the Independent Commission for the Remuneration of Public Office-bearers Act 92 of 1997 by substituting paragraph (e) of the definition of “office-bearer”.

2. Amends the Remuneration of Public Office Bearers Act 20 of 1998 by substituting the long title.

3. Amends section 1 of the Remuneration of Public Office Bearers Act 20 of 1998; as follows: paragraph (a) substitutes the definition of “benefits”; paragraph (b) inserts the definitions of “Khoi-San leader” and “member of a house”; paragraph (c) inserts the definition of
“non-traditional leader member”; paragraph (d) substitutes the definition of “office bearer”; and paragraph (e) substitutes the definition of “traditional leader”.

4. Substitutes section 5 of the Remuneration of Public Office Bearers Act 20 of 1998.

5. Amends section 8 of the Remuneration of Public Office Bearers Act 20 of 1998 by substituting subsection (6).

6. Amends section 9 of the Remuneration of Public Office Bearers Act 20 of 1998 by substituting subsection (6).

(1) Amends the Local Government: Municipal Structures Act 117 of 1998 by substituting
section 81.

(2) Schedule 6 of the Local Government: Municipal Structures Act, 1998 (Act 117 of 1998), is hereby repealed.

(3) The provisions of subsections (1) and (2) come into operation on the date of commencement of the Traditional and Khoi-San Leadership Act, 2019.

Schedule 4

REPEAL OF LEGISLATION

[Section 65]

No.	Title, number and year of law	Extent of repeal
1	Traditional Leadership and Governance Framework Act, 2003 (Act 41 of 2003)	The whole
2	Traditional Leadership and Governance Framework Amendment Act, 2009 (Act 23 of 2009)	The whole
3	National House of Traditional Leaders Act, 2009 (Act 22 of 2009)	The whole