The municipal demarcation process is being obfuscated by a misinformation campaign, writes Jubie Matlou
The dispute that has erupted between the Municipal Demarcation Board and KwaZulu- Natal traditional leaders revolves around the role and powers of traditional leaders and the demarcation of traditional authority land under the municipal demarcation process.
These two issues were the main items on the agenda of a meeting held earlier this week between President Thabo Mbeki, Minister of Justice and Constitutional Development Sydney Mufamadi and KwaZulu-Natal traditional leaders, led by Mpi Mzimela, leader of the province’s House of Traditional Leaders. The meeting came in the wake of an ugly exchange between the demarcation board and KwaZulu-Natal traditional leaders over the demarcation process.
The first has nothing to do with the municipal demarcation process, and everything with the Constitution. Any change to the status and role of traditional leaders requires an amendment to the Constitution. The Constitution provides for the recognition of traditional leaders and the establishment of a national council or provincial houses of traditional leaders.
The second, the demarcation of traditional authority land into different municipalities, is indeed a demarcation issue. In cases where the Ingonyama Trust holdings – traditional land held in trust by the Zulu king – are scattered over the province and lie kilometres apart from each other, the demarcation of municipal boundaries over traditional land becomes untenable.
The scattered traditional land of Qadi, consisting of six separate pieces of land, and of Embo/Nkasa and Isimahla in KwaZulu- Natal are at the heart of the dispute over the demarcation process – a genuine demarcation issue that the affected traditional authorities are taking up with the Municipal Demarcation Board.
However, the scattered traditional land is a direct product of the drawing of provincial boundaries following the Union of South Africa and the process of land dispossession ushered by the Land Act of 1913.
The inauguration of the Union of South Africa saw the carving up of the whole country into traditional trust land, reserves, and private and municipal land. The result was the creation of artificial borders around the country cutting across different jurisdictions.
Under normal circumstances, where traditional land is intact, the board has adopted an approach not to interfere with the political or physical boundaries of a traditional authority. Dr Mike Sutcliffe, board chair, maintains that “the demarcation process is not about the demarcation of land, but of municipal jurisdiction. There are cases where traditional authority land has no maps or where traditional authority land consists of pieces of land that lie kilometres apart. In such circumstances it becomes extremely difficult to draw municipal boundaries, and the demarcation of traditional authority land into different municipalities becomes untenable,” Sutcliffe said.
Sutcliffe attributes the confusion of a constitutional with a demarcation matter to a deliberate misinformation campaign by forces bent on sowing mistrust and deflecting the transformation of local government.
“Demarcation is about the determination of the jurisdiction of municipalities, not about the demarcation of land or redrawing of political borders over the traditional land,” said Sutcliffe.
Apart from the Constitution, there are two pieces of legislation that deal with the role of traditional authorities. The Local Government Municipal Structures Act of 1998 provides for the participation of traditional leaders in the affairs of a municipality, and requires a municipality to consult with a traditional authority on any matter that directly affects the powers or jurisdiction of a traditional leader.
The Municipal Demarcation Act of 1998, on the other hand, requires the demarcation board to take into account areas falling under traditional leaders when it determines the demarcation of municipal boundaries. It is on the basis of this Act that the board adopted a policy position not to interfere with traditional authority land unless the situation so dictates, as in the case of Qadi, Embo/Nkasa and Isimahla.
The current dispensation, that unfolded after the 1995/96 local government election, has seen traditional leaders participating in the regional municipal councils. Representation of traditional leaders in the regional councils is limited to 10%, and the remaining positions are occupied by elected officials.
According to Zam Titus, director general of constitutional and provincial affairs, traditional leaders are playing an important role on development issues. Titus maintains that traditional leaders are custodians of customs and traditions, and that there are functions that municipal authorities cannot perform. This includes land allocation and judicial functions in a village.
Inkosi Nyanga Ngubane, KwaZulu-Natal MEC for traditional and environmental affairs, said many of the chiefs in the province are happy with the current arrangement of participating in the regional municipal councils. He said that despite a brief from Sutcliffe to the chiefs and the House of Traditional Leaders, “nobody knows what will happen after the implementation of the proposed demarcations”.
The final gripe KwaZulu-Natal traditional leaders have raised against the demarcation process is the possible introduction of rates and taxes. Some wild speculations went so far as to suggest that people would be charged rates for drawing water from nearby streams.
Sutcliffe dismissed these speculations as “baseless and without foundation”. He said many municipalities in KwaZulu-Natal and elsewhere had chosen to charge rates to properties with a value exceeding R50E000. “As a result, many people in the rural areas are not paying rates at all, and the situation would not change once the demarcation proposals are implemented”, said Sutcliffe.
The Department of Provincial and Constitutional Affairs is to release a White Paper on traditional leaders in March. Titus told the Mail & Guardian that the department is developing a co-operative model for the co-existence of traditional and modern institutions that require democratic participation by the community. He cited Mpumalanga as one province practicing the co-operative model of co- existence.