Traditional leaders lack accountability

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On Monday Sowetan reported that a meeting addressed by Kgosi Nyalala Pilane was disrupted by angry protesters in Moruleng, North West, at the weekend.

One of the protesters, Pinky Motshegoe, explained that the protesters wanted a report on the finances of the platinum-rich Bakgatla baKgafela traditional community which is made up of 32 villages. The Bakgatla are worth an estimated R15-billion and own 40% of Siyaya TV which has been awarded a R1-billion deal to televise football matches.

Despite this, most people live in poverty and there have been repeated, increasingly desperate, attempts over the past 10 years to get the kgosi, his traditional council, the courts or government to account for the revenue received from mining, and the other major business ventures that the kgosi is involved in.

 

When members of the royal family applied for a court order that he and the council submit its books to North West province and the auditor general, the North West High Court found that they had no legal standing and awarded punitive costs against them in a 2011 judgment.

 

A 2012 internal audit report of the traditional authority’s books revealed that no revenue from mining deals was recorded and urged that this revenue must be accounted for.

 

There were violent protests in Moruleng in 2012 and the premier was asked to remove Pilane from office. In previous years, residents had petitioned President Thabo Mbeki and earlier premiers.

 

Evidence collected by concerned Bakgatla led to the kgosi’s conviction of fraud and corruption in the Mogwase Regional Court in 2008. At the time this was hailed as a major victory for transparency. But his conviction was overturned on appeal in the North West High Court in 2010.

 

While the judges noted the concern about how the tribal books had been managed, they said the conviction was based on the fact that the money should have been dealt with in terms of Section 11 of the Bophuthatswana Traditional Leadership Act.

 

The judges said there was no reason for the tribe’s money to fall under Section 11 because it did not come from government. Yet Section 11 (d) refers to “all other amounts derived from any source whatsoever”.

 

The auditor-general’s office has confirmed that none of the 102 tribal books of account in North West have been audited since 1994 despite the fact that both the Bophuthatswana Act and its replacement, the North West Traditional Leadership Act of 2005, specifically state that tribal books must be audited annually.

 

Under these circumstances is it any wonder that people are disrupting meetings in Moruleng? Their efforts to use the courts and to approach government have backfired.

 

They remain locked within state-imposed tribal boundaries, at the mercy of a kgosi who refuses to account to them, and whose official status derives from the very North West Act whose financial oversight provisions are routinely flouted.

 

Pilane has a long track record of going to court to interdict community members from holding meetings. He insists that, as kgosi he is the only person with the authority to call meetings or transact with outsiders on behalf of the 32 villages.

 

In 2013 Mmuthi Pilane managed to appeal one of these interdict rulings in the Constitutional Court. The court struck down the interdict.

 

The problem of lack of accountability by traditional leaders is widespread in other parts of South Africa. We see it especially where mining is taking place on communal land. There is serious intimidation of those who dare to question the chiefs’ unilateral deals with mining companies in KwaZulu-Natal. Remember Pilane is not just the kgosi of the BaKgatla. He also represents the Congress of Traditional Leaders of South Africa (Contralesa) as its deputy chairman.

 

Contralesa has lobbied the government for laws such as the recent Traditional and Khoisan Leadership Bill, that sets in stone the tribal boundaries and traditional leaders created by the Bantu Authorities Act of 1951.

 

The Bill will replace the Traditional Leadership and Governance Framework Act of 2003.

 

The existing Act contains two safety valves to try to transform the autocratic tribal authorities of old into more responsive and accountable traditional councils for the future.

 

One is that 40% of the members of traditional councils must be elected, the other that a commission must investigate the legitimacy of disputed boundaries and traditional leadership positions.

 

Both have failed spectacularly. Very few of the 1322 claims and disputes that have been lodged have been settled, and in some provinces no elections have yet been held.

 

The existing Act provides that tribal authorities that fail to transform will lose their legal status. The new Bill keeps them alive.

 

It also provides for government to delegate powers directly to traditional councils through secret processes. The Monday article said that Pilane identified Meshack Pole as the instigator of the disruptions on Saturday.

 

He said steps would be taken against him. We need to carefully track what happens to Pole.

 

He is vulnerable only because the courts, the province and the auditor general have failed to enforce transparency where billions of rands and the rights of very poor villagers are at stake.

 

This article was first published in the Sowetan on 03 December 2015

opinion-grey Aninka Claassens is director of the Rural Women's Action Research programme in the Centre for Law and Society at UCT
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