Promotion/Protection of Cultural, Religious & Linguistic Communities' Rights Commission Bill: delib

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Cooperative Governance and Traditional Affairs

22 October 2001
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Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO AND SELECT COMMITTEES: JOINT MEETING
23 October 2001
COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES BILL: DELIBERATIONS

Chairperson: Mr Y Carrim

Documents handed out:
Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill [B62-2001]
Department’s options for the composition of the Commission (see Appendix 1)
Department handout on background information on communities (see Appendix 2)
Department handout on Community Councils (see Appendix 3)

SUMMARY
The Committee continued with informal consideration of Clauses 5 to 17 of the Bill. The Department presented the committee with various options on the composition of the Commission. The Freedom Front strongly felt that the Commission should be small and comprise of experts. The rest of the Committee found this option unacceptable as it would require a constitutional amendment. They appeared wiling to accept the provision currently provided for in Clause 5.

Clause 10 relating to the conditions of employment of the Commission was discussed at length. It does not stipulate that the chairperson of the Commission should be employed full-time. Other Chapter 9 institutions have employed chairpersons on a full-time basis. The Committee was unsure as to whether the workload of the Commission would warrant full-time employment of a chairperson.
  
MINUTES
Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill
The Chair informed the committee that the Bill had been taken off the programme for the House for this year so they could continue with it in 2002. He asked members only to raise issues on those clauses that were of concern to them.

Part 3: Composition and membership of Commission
Clause 5: Composition
Mr Zam Titus (Director General) referred to the various options that the Department had drafted on what the ideal composition of the Commission should be [see document].

Mr Mulder (FF) strongly felt that Option 3 (a smaller commission of 5 –7 experts) was the best option. The Freedom Front felt this way even though it would require a constitutional amendment.
 
Mr Bouwer (Department) said that Section 186(2) of the Constitution requires the composition of the Commission to be broad. If the Commission were to be comprised of experts as is required by Option 3, it would force a constitutional amendment.

It seemed that there was significant consensus in the Committee that the composition of the Commission should be as it is set out in the Bill.

Ms C Lobe (ANC) noted that all the options were silent on the issue of the full-time or part-time employment of the Commission.

The Department agreed to look into it.
 
Clause 7: Procedure for appointment of members

The Chairperson said that the clause needs to be looked at from a conceptual point of view.

Mr P Smith (IFP) noted that the clause directly relates to the structure of the Commission. He felt that the Committee should discuss the clause when they deal with the structure of the Commission.

The Chair referred to Clause 7(1)(a) and wondered why the Minister is not required to advertise for nominations for persons to be appointed to the Commission.

Mr J Selfe (DP) questioned the use of the word “individuals” in the clause.

The Chair was curious to know what the policy reason had been for the use of the word “individuals” in the clause.
 
Mr P Bouwer (Department) replied that the decision to use the term, ”individuals” was in order to allow unorganised groupings also to make nominations to the Commission. This is to allow organised and unorganised groupings to be on the same footing as far as making nominations are concerned.

The Chair referred to Clauses 7(3)(a) and (b) and proposed that the provisions in the clauses be swapped around so that what is provided for in (a) is preceded by (b). The committee agreed.

Mr P Smith (IFP) asked what the actual number of members to the Commission is to be.

Ms G Borman (DP) asked what criteria would be used in the determination of the number of members to the Commission.

Mr Bouwer replied that the number of members would be determined by the President and is provided for in Clause 5. There are currently no criteria that the President would use in determining the number. He noted that the President has a discretionary power in this regard.

The Chair pointed out that the Commission would initially comprise 17 members but he felt that the numbers would vary in the future according to the needs of the Commission.

Clause 8: Chairperson
Clause 8(1) provides that the President must appoint a member of the Commission or any other person as chairperson of the Commission.

Ms Borman noted that the Committee in previous discussions had not been too sure if any other person should be allowed to be appointed as chairperson of the Commission.

Mr Titus replied that “any other person” had been provided for so as to allow the President to choose competent persons from outside the Commission to fill the post as chairperson, such as a judge.

Mr Smith referred to Clause 8(3) and expressed his concern over the fact that the President may appoint a deputy chairperson to the Commission. He felt that a positive obligation should be placed on the President to appoint a deputy chairperson. Mr Smith proposed that the word, “may” be replaced by the word, “must”.

The Committee was divided on the issue and agreed to discuss the issue at a later time.
 
Clause 10: Conditions of appointment
The clause provides for the Minister to determine the conditions of employment for the chairperson, deputy chairperson and other members of the Commission. The Chairperson may be appointed on a full-time basis but the rest of the Commission is appointed part-time.

Dr C Mulder (FF) asked how chairpersons of other Chapter 9 institutions are appointed. Are they part-time or full-time?

Mr D Olifant (ANC) said that chairpersons of other Chapter 9 institutions are employed on a full-time basis.

Mr Smith asked why “may” the chairperson be employed on a full-time basis. Why is it not that the chairperson “must” be employed on a full-time basis?

Dr Mulder agreed. Why is the example of other Chapter 9 institutions not being followed?

Mr Smith stated that the fact that the Commission comprises 17 members is reason enough that the chairperson should be employed on a full-time basis. He proposed that the issue be discussed by the committee at a later time and the committee agreed.

Clause 12: Termination of membership
The Chair stated that in earlier versions of the Bill a person who stands for political election is disqualified from serving on the Commission. He asked why the provision had not been included in the present version.

The Department was unable to give an explanation.

The Committee agreed for it to be included in the Bill again. It was also agreed that even persons nominated for political office should be excluded from serving on the Commission.

The Department agreed to draft appropriate provisions.

Clause 13: Removal from office       
Mr Mulder asked why Parliament has a say in the removal of a member of the Commission but no say in the appointment of a member.

Mr Smith stated that the clause is merely giving effect to Section 194 of the Constitution.

Part 4: Operation of Commission
Clause 16: Procedures
The Chair was concerned that no provision had been made for the procedural requirements of a quorum for the Commission.

Mr Bouwer stated that the intention is for the Commission to be an independent body and that decision making regarding procedure should lie with them.

Clause 17: Decisions
The Chair was not pleased with the wording of the clause and it was consequently agreed to reword it.

Mr C Aucamp (Afrikaner Eenheidsbeweging) asked that provision be made in the clause for consensus to be reached on decision making.

The Committee agreed.

The meeting was adjourned. 
Appendix 1:
OPTIONS ON COMPOSITION
OPTION 1: COMMISSION (11-17 MEMBERS)
As provided for in draft Bill.

OPTION 2: LARGER COMMISSION (30 MEMBERS)
This proposal aims to cover the whole spectrum of communities and is based on pre-identification of communities relying on census results and the Constitution.

Cultural and linguistic communities: (20)
·           At least one representative of each official language communities: 11 members At least one representative of Khoi, Nama and San communities: 1 member
·           At least one representative of other language communities:1 member

Religious communities: (1 0)
·           At least one representative of each of the five major religions practiced in South Africa:
Christianity, Islam, Judaism, Hinduism, African traditional religion.
·           At least one representative of other religions practiced in South Africa
·           Members representing religious communities could form a Committee on Religious Community Rights in Commission

OPTION 3: SMALLER COMMISSION (5-7 EXPERTS)
As proposed by the Freedom Front. This would require constitutional amendment.

OPTION 4: REPRESENTATION IN COMMISSION EXTENDED THROUGH PROVINCIAL SUB-STRUCTURES
·           Core Commission as provided for in draft Bill.
·           Provincial sub-structures. Technical Committee proposed supporting committees, rather than fully-fledged provincial Commissions: "The Commission may establish a provincial committee to assist the Commission in the performance of its functions or the exercise of any of its powers on a provincial level."
·           Community councils in each province could participate in the provincial sub-structures.

OPTION 5: REPRESENTATION IN COMMISSION EXTENDED THROUGH NATIONAL CONSULTATIVE CONFERENCE
·           Core Commission would serve as executive of National Consultative Conference.
·           NCC elects members to Commission.
·           Community councils directly represented at NCC.

OPTION 6: REPRESENTATION IN COMMISSION EXTENDED THROUGH COMMUNITY
COUNCILS
·           In addition to core Commission appointed by President, each national community council could elect a part-time representative on the Commission.
·           Proposal of Afrikanervryheidstigting (Mr C Boshoff), that Commission should consist of community representatives.

Appendix 2:
BACKGROUND INFORMATION ON COMMUNITIES
A)         LINGUISTIC COMMUNITIES/LANGUAGES

1)         Census figures (1996)
98.56% official language communities
0.56% others
0.87      unspecified

2)         Identification
The following languages identified in the Constitution:
1)         Eleven official languages: Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrkaans, English, isNdebele, isiXhosa and isiZulu.
2)         Khoi, Nama and San languages.
3)         Sign language
4)         Community (heritage) languages: including German, Greek, Gujerati, Hindi, Portuguese, Tamil, Telegu and Urdu
5)         Arabic, Hebrew, Sanskrit and other languages used for religious purposes.

3)         Smaller linguistic communities/languages
Khoi, Nama and San Languages:
1)         Khoekhoegowab (Nama): number of speakers unknown, include areas of Richtersveld, Orange River and Upington in Northern Cape.
2)         !Xu and Khwedam (Immigrant San language communities from Angola via Namibia;
3500 !Xu and 1100 Khwe living at Scmidtsd rift, Northern Cape.
3)         South African San communities:
·           Khomani: mostly speak Khoekhoegowab and/or Afrikaans (living in the Southern Kalahari)
·           Ng!u: 23 confirmed speakers of NIu language (about 1500 adults spread over area of more than 1000km in Northern Cape Province, mostly in northern reaches of Gordonia)
·           jxegwi: estimated 30-100 adults, living on farms in Mpumalanga near Lakes Banager and Chrissie, towns of Lothair and Carolina. Original language extinct.
·           !Xam: thousands of people in the Northern Cape consider themselves direct descendants of !Xam ,including Karretjiesmense(Prieska)
·           Kung: 70 adults presently living in Botswana across the border from South Africa, originally lived in area proclaimed as Kalahari Gemsbok National Park.

Lobedu
·           Unwritten dialect of Northern Sotho
·           Majority live around Duiwelskloof in the Northern Province
Organisation:    Balobedu Speakers Association

Makhuwa (Zanzibari)
·           Ex-slaves brought to Natal from Mozambique in 1873.
·           Mother tongue is Makhuwa, also speak Swahili and English.
·           Organisation: Rahmania Madressa Society

Northern Ndebele
·           AmaNdebele who speaks Northern Ndebele which differs from Southern Ndebele and Northern Sotho.
·           Lives in Pietersburg, Mpumalanga, Hammanskraal, Makapanskrans and Gauteng.
·           Organisation: Northern Ndebele National Organisation

Phuti
·           Language at least 300 years old, most closely related to Swati, but heavily influenced by Sotho.
·           Use and recognised in scattered communities around the border of the Eastern Cape and Lesotho only.
·           Organisation: Phuti Language Contact Group

RELIGIOUS COMMUNITIES
1)         Census figures (1996)
75.49    Christian churches
1.39      Muslim faith
1.35      Hindu faith
0.17      Judaists
0.04      African traditional belief
0.48      Other faiths
11.65    No religion
9.41      Refused, DNA, Other

·           Christian groupings include: the Roman Catholic Church, Protestant Churches, Reformed Churches, Pentecostal and charismatic Churches and African Independent Churches.
·           Other religions include : Buddhism and the- Baha'l faith.
·           Organisations include : South African Council of Churches, Muslim Judicial Council, SA Jewish Board of Deputies, Hindu Maha Sabha.

Appendix 3
COMMUNITY COUNCILS
Terminology
·           The Constitution provides for a cultural or other councils or councils for a community or communities in South Africa. It is proposed that these councils should be referred to as community councils. The term cultural councils leads to confusion with fine arts type of institutions. The term "other councils" is also vague.
·           These community councils are primarily aimed at cultural communities. In terms of language the Pan South African Language Board is in the process of establishing national language bodies for all eleven official languages, for Khoe and San languages, and other community languages. In terms of religion there is a number of national bodies formed by different religious traditions and faiths.

Criteria and functions
·           A number of submissions have called for criteria for recognition and also for power and functions of councils to be included in the Bill. The following new clause is proposed, based on proposals by the Technical Committee and the Western Cape legislation.

Status, composition, functions and funding of community councils
           
38.        (1)        A community council recognised in terms of section 37 -
                        (a)        is a juristic person;
                        (b)        must be composed of members elected or designated in accordance with a
                                    prescribed procedure;
                        (c)        may be requested by the Commission to submit a report on its organisational
                                    structure and operational activities;
                        (d)        must have functions which accord with functions prescribed for such
                                    councils;
                        (e)        must be funded with funds generated primarily by the community for which it
                                    is established; and
                        (f)         must comply with any prescribed norms and standards relating to financial
                                    management and control.

(2)        (a)   Subsection (1) (e) does not prevent national, provincial or municipal contributions appropriated by a relevant legislature to a council.
(b)        A recognised council may apply to the Commission for financial assistance to
carry out a project approved by the Commission that would assist the Commission in achieving its objects.

(3)        A council recognised in terms of section 37 must perform functions prescribed for such councils, including:
                        (a)        the preservation, promotion and development of the culture, language or
                                    religion of the community for which it was recognised.
                        (b)        monitoring, investigation, research, education regarding and solicitation of
                                    support for the protection and promotion of the cultural, religious and
                                    linguistic rights of the community for which it was recognised;
                        (c)        advising the Commission on and assisting in all matters concerning the
                                    achievement of the objects of the Commission.


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