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PROVINCIAL & LOCAL GOVERNMENT PORTFOLIO & SELECT COMMITTEE: JOINT MEETING
17 October 2001
COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES BILL: DELIBERATIONS
Chairperson: Mr Y Carrim
Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill [B62-2001]
Committee members discussed the composition of the proposed Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. Members differed sharply on whether the constituted commission would be representative of the various constituencies of marginalised groups or if it should be composed solely of experts in the field.
The Committee’s concern was that should all groups be represented then the commission would be too big and unwieldy to manage. The Committee said it intends to keep the number or commissioners as low as eleven and in any case not to exceed seventeen members
The Committee considered the possibility of organising a conference where all stakeholders could meet to ventilate some of these issues. The Committee said it was not clear on wh constituted the marginalised community.
Deliberations on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill
Mr Smith (IFP) asked if the intention of the Act was to rebuild the shattered communities or it was creating something new all together.
The Chair said that the title says that “we must protect” but there are those communities that had been destroyed which need rebuilding.
Mr Olifant (ANC) said that the title is talking about rights of communities and not rebuilding cultures though he did not see anything wrong in rebuilding a fractured communal culture. He cautioned, however, that there are cultures that have been decimated and it may be impractical to rebuild them.
Ms Borman (DP) asked whether the emphasis was on promoting the culture since the preamble appears to lay emphasis on unity whilst the spirit of the Bill is about rights.
The Legal advisor from the Department said that the pervious version of the Bill had a recital which laid more emphasis on rights than anything else and that the same style need to be maintained.
Mr Smith (IFP) said the preamble should be issue based in order to be in tune with the Constitution adding that it is worthwhile to feature people’s rights in the preamble.
The Chair advised that the Committee recognise that the preamble treats both rights and culture in its letter and spirit. Members agreed on the preamble and the short title as drafted.
Part 1: Interpretation and Administration of the Act
Clause 1: Definitions
Mr Smith (IFP) said that it is important to know under which Minister this matter would fall for purposes of Parliamentary foreseeing role.
Mr Olifant (ANC) objected to Mr Smith’s suggestion and pointed out that it was undesirable for the Committee, at this stage, to prescribe under whose ministerial portfolio this matter would fall. He said such a decision is better left to the president.
The Department’s Legal advisor said that the executive had not taken the decision regarding the ministerial function and that, therefore, it would be inappropriate for Parliament to make a definitive prescription in this regard.
In any event it would be futile for the Committee to take such a decision since the Cabinet is Constitutionally entitled to override it.
Responding to a suggestion by Ms Borman that the phrase ‘Cultural Council’ be defined, the Chair expressed the view that it would be better to come back to revisit this issue at a later stage.
Ms Borman (DP) said that since the Bill is about communities, it is appropriate to define what the term “community” entails.
The Chair noted that there was reference in the Bill to ‘the main community’ and wondered how such terminology would be defined. He frankly admitted that the task of assigning definition to terminologies such as these was particularly challenging.
He called on members to leave room for fair flexibility since the issue here was about identity which by its very nature was elusive and dynamic with considerable political overtones.
The Local Government Director General concurred with the Chair and referred members to Clause 25 (b)&(c) of the draft Bill which is specifically aimed at dealing with the definition conundrums members have referred to. He said the clause arose from the deliberations of the 1999 conference where some of these issues were vigorously debated.
He added that Clause 25 aimed at clarifying some of these issues. He said further that the conference had even called for a Constitutional amendment in this regard but it was instead decided to first promote an all-inclusive dialogue before introducing the appropriate amendment.
The Chair drew the attention of the Committee to the absence of the Freedom Front Party and lamented that it was regrettable that the Party had chosen to be absent when the issues being dealt with were at the heart of their party manifestos.
The Chair suggested that since deliberation on the Bill had now taken the conceptual route, it might be prudent to identify relevant conceptual matters and the function and composition of the Commissioners then exhaust discussion thereon before embarking on the Bill.
Mr Smith aid that since deliberations on the Bill had commenced in earnest it would be better to let it progress and any issues that come in due course would be dealt with as they arise.
The Chair retracted his earlier suggestion and asked that deliberations on the Bill proceed accordingly.
Mr Olifant said that what appears to be the main concern of members is whether or not all the constituencies should be represented on the commission.
If one settles for the former, he said, this could result in an unwieldy commission comprising of more than 200 people. This was impractical and undesirable.
On the other hand, he added, should one settle for the latter case where you have a lean commission of eleven to seventeen members then there is the risk of being sued in the Constitutional Court for discrimination by those who legitimately feel that they have been left out.
Mr Olifant said that what appears to be members consensus’ is the fact that the commission should at best be reflective of cultural diversity but how was this to be achieved?
Mr Lyle (ANC) pointed out that the term ‘community’ itself was problematic to start with. He gave the example of many black people who speak no other language but Afrikaans yet they do not belong to the Afrikaans community. He said the current definition seems to have been tailor made to accommodate the white Afrikaans while failing to recognise this apparent cross-diversity.
Mr Smith said that it appears the definition is based on language and colour.
Mr Verwoerd (ANC) vehemently objected to the view taken by Lyle that seems to suggest that the colour was the only criteria envisioned here. It is not practical to separate colour and religion and added that it mattered pretty little that one was black, green or yellow. He noted that what was important was the fact that a person belonged to a given community and that any narrow talk around this reality should be avoided.
Rev. Goosen (ANC) said that people have a common way of living even where their culture has been diluted and this should be acknowledged. The Bill states clearly that no community should feel disempowered at any one point. The Bill was about protection of community rights.
The Chair said that one view is to look at why the commission was established in the first place. The question to ask, he said, was if it was necessary to select people with the technical expertise in the languages of the various communities or settle for people who come from that community with whom locals can identify.
He said that it might not be desirable to get experts to represent people since the latter would want to identify with their own local people. In his view, proper people representation was of paramount importance.
He added that language is distinguishable from cultural identity hence technical expertise in language is inadequate representation. He acknowledged the enormity of the issue and said that it cannot, in all fairness be resolved in the Committee sitting.
Mr Olifant said that it would be helpful to have a glimpse of what exactly the commission would do in order to be clear on the issue of representation.
The DG (Local Government) stepped in and acknowledged the fact that the issues here were indeed intractable. He said that while debating of the draft Bill one must take account of the fact that the drafters of section 185 of the Constitution were faced with the very same problem. He said that at that time there had been little consultation on the matter.
He said that the Department, at that time, raised questions as to the exact purport of section 185. He pointed out that sections 30 and 31 of the Constitution assists in the understanding of section 185 even though this may not be the best explanation but it was the best attempt there so far.
Section 31 offers a definition that throws more light on what a cultural commission is all about. He advised that as members grapple with the difficult task of definition, this section might be helpful in this regard. Section 185 could not be read in isolation from section 31 of the Constitution.
Section 184 of the Constitution deals with the Human Rights Commission and when this section is closely examined it seems the Human Rights Commission does some of the things the envisioned commission would be doing under the draft Bill.
The Director General was of the view that strict definition of these terms would be impossible. He noted, for instance, that section 235 of the Constitution is directed at a particular group of persons who are in need of territorial entity and yet section 185 refers to all South Africans.
He said section 185 was about people who have accepted to live together unlike section 235 which is exclusionist in application and the two are to that extent different. He advised that the spirit of the latter section should be avoided.
He said that what the Committee was doing was a delicate balancing act and this tends to create tensions which is unavoidable in a process like the present one especially given the background against which it is measured.
The DG added that there was no provision in law, which prescribed how a community should organise themselves and that such a provision would in any case be against the notion of personal freedom that is Constitutionally entrenched.
He said that members should tread carefully in the knowledge that the definition issue is pertinently tricky since it had the potential to exclude whole sections of communities, which is a recipe for agitation. He suggested that the Constitutional framework should inform the present effort since section 186(2)(a) & (b) had nothing to do with individuals representing constituencies and interests groups a situation if followed would turn up more than 200 members of the commission.
He added that the section only says that the composition of such a commission should be broadly representative of the social demographics of South Africa. The key requirement here was ‘composition’ and not sectoral interest groups.
The Department’s legal advisor said that on a technical level the Constitution offers the broad framework within which definition issues can be addressed. He advised that it must be an objective test to the effect that once the Commission has been established it can be said with a certain measure of satisfaction that the people on the commission are broadly representative.
He said further that this requirement should be seen as a benchmark for constituting the commission and added that in law practice gives substance to statutory provisions.
The Chair said that it is indeed important that one is careful about definitions. He added that prescriptive definitions that single out names are exclusionary and can be problematic. He said that the Committee should work within the framework of eleven to seventeen members of the commission.
While acknowledging remarks made by the DG, the Chair, nonetheless, insisted that it is crucial that there is some semblance of representativity. The question of representativity was purely a political issue and it goes to the root of the of people’s needs.
Mr Olifant said that the Department should look at the possibility of a broad-based representation to resolve the issue. The Bill alludes to a possibility of reducing the number of commissioners. How this would work out and at what stage?
The Chair said that it was important that one is positive about the issue of the commission and therefore questions to do with the size are very much relevant.
Mr Smith concurred with the Chair and said that the issue of representativity was central to the Bill. He proposed that all options be worked out and tabled so that the Committee can debate around them and that it may be necessary, barring the cost factor, to organise a conference to iron out and clarify these issues.
The Chair agreed with Mr Smith and said that, indeed, a conference may clarify these definitions.
The legal advisor said that where a nomination comes from a particular community it should be taken to amount to a broad representation.
Mr Verwoerd cautioned that the Bill has the potential to bring reconciliation among the communities but that if handled haphazardly could cause serious repercussions. He supported the idea of a conference, which he said would help ventilate some of the fears held by some people in this regard. He added that it was not proper for the committee to sit and decide this all-important issue on its own.
Ms Borman lamented that she was now more confused than when the deliberations commenced. She said that the thinking is that the commission is there to promote and protect the interests of communities but how could it be expected that such a commission would be representative of every conceivable interest group? A combination of experts and those with the feel of the community should easily make up the eleven to seventeen member commission.
The Chair said that the Committee was working on the basis of eleven to seventeen members. The Committee is addressing the issue of representivity in the narrow sense and that it was not looking at the Bill in a purely legal sense. He said that he is aware of the fact that regulations will cover other incidental matters.
Mr Smith asked for the motivation behind the Department’s choice of eleven to seventeen number to which the Department replied that it was working on the basis of the 11 official languages in the country.
Ms Borman said that a criterion was missing the theme of the Bill, which was to target those who are marginalised and not the main groups.
The legal advisor replied that the mandate of the commission is to look into the rights of all marginalised communities. He said that the idea was to have a small commission and spread out to smaller sub-committees at the provincial level.
Mr Smith insisted that the conference was an ideal investigative tool into these difficult issues.
The Chair said that he agreed to the idea of a conference but the issue of huge costs was a major consideration.
Ms Borman asked that members look at councils and where they fit in this whole process.
The Chair said that those issues would be addressed later in the Bill.
[PMG Ed note: The last hour and a half of this meeting was not minuted.]
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