Sepedi versus Sesotho sa Leboa debate

Constitutional Review Committee

02 June 2011
Chairperson: Adv S P Holomisa and Mr B Mnguni (ANC, Free State)
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Meeting Summary

In 2007 the Committee had received a submission challenging the designation of Sepedi as an official language in terms of section 6(1) of the Constitution. According to the submission Sesotho sa Leboa was the correct designation of the official language as was the case in the Interim Constitution. Under the Final Constitution the official languages were at odds with the Interim Constitution, the difference being that Sepedi was then designated an official language instead of Sesotho sa Leboa. The understanding was that there was no intention to change what was designated in the Interim Constitution, but there was an error in translation in that the word was changed but it had not been the intention to change the meaning. The Committee considered several options, and it was agreed to call in people involved in the drawing up the Constitution to explain the reason for the discrepancy in the different translations.

The Committee Report on Venice and Strasbourg Study Tour and Committee 2010 Annual Report were adopted.

Meeting report

Debate on Sepedi versus Sesotho sa Leboa
In 2007 the Committee received a submission challenging the designation of Sepedi as an official language in terms of section 6(1) of the Constitution. According to the submission Sesotho sa Leboa was the correct designation of the official language as was the case in the Interim Constitution.

Ms Sueanne Isaac (Parliamentary Legal Advisor) briefed the Committee on her legal opinion. Under the Interim Constitution language rights were captured in section 3. The official languages were Afrikaans, English, isiNdebele, Sesotho sa Leboa, Sesotho, siSwati, Xitsonga, Setswana, Tshivenda, isiXhosa and isiZulu. What must be noted was under the Interim Constitution, Sesotho sa Leboa was designated as an official language and not Sepedi.

Section 3 set out various duties of the State and the consequences stemming from the official languages. The Interim Constitution also provided various protections for rights under Chapter 3.

In drafting the Final Constitution, the Constitutional Assembly was bound by Constitutional Principles, and the relevant Constitutional Principle relating to language was Constitutional Principle X1, which said that “The diversity of language and culture shall be adhered to by legislative organs at all levels of government.”

Under the Final Constitution the official languages were at odds with the Interim Constitution, the difference being that Sepedi was then designated an official language instead of Sepedi sa Leboa.

Section 6 set out various duties of the State in terms of official languages, and Section 6(2) placed special emphasis on promoting indigenous languages. Section 6(3) allowed for reasonable variations of official languages. In a particular province, that province had the right to choose at least two languages for the purpose of government. Relevant to that was Limpopo province had passed the Limpopo Province Act, which recognised Sepedi as the official language for that province.

Section 6(4) spoke about national government and provincial legislatures taking measures to monitor the implementation of official languages, and Section 6(5) established the Pan South African Language Board, the aim of which was to promote and protect languages.

The Bill of Rights provided various protections for languages. Sections 9(3) and 9(4) prevented discrimination on the basis of language. Section 30 provided that everyone had the right to speak the language of their choice; and section 31(1) provided that persons belonging to a linguistic community may not be denied the right to speak the language and to form linguistic associations. However, those rights may only be practiced if they did not contravene section 36 on the Limitation of Rights. Section 29(2) provided that a person had the right to receive an education in the official language of their choice, where practical.

Section 35, while not necessarily protecting languages, allowed for an accused person to have a trial in the language of their choice.

Section 6 of the Constitution dealt with the status of official languages whilst the Bill of Rights protected all languages in South Africa. The issue that arose was what were the consequences of designating an official language? From various commentators it was clear that there was no definition of what an official language was. Currie commented that:

An official language was understood to mean a language used in the business of government – legislative, executive and judicial. No immediate or practical consequences followed from the mere declaration of a language as an official language. Legal content was given to an official language through policy and through regulation. It was only through policy and implementation that the language was used as an official language and became the language of government. The language could be used in a court of law, in communication of government, on public notices, and in government reports. The fact that language had status that referred to its legal position as opposed to the rights of the users. Because the language had official status the speakers of that language did not require any additional rights as to any other person in South Africa. It would not be practical for government to have all documents in the language of all South Africans.

The Bill of Rights protected all languages on an equal basis. In the certification judgement the Court noted that and said the aim of Section 6 was to ensure linguistic diversity while Section 30 protected the rights of all communities in South Africa.

Was there a way for any community to compel Parliament to recognise their language as an official language? During the certification process, a group of people objected to the fact that the Indian language was not recognised as an official language and the courts made it clear that granting official language status was solely the responsibility of the Constitutional Assembly at that time, that responsibility solely rested with Parliament.

Ms Isaac concluded that that it was for Parliament to make a decision as to whether it was practical and whether it was reflective of society.

Discussion
Dr Oriani-Ambrosini said the Committee was grappling with the question that if the Committee decided that the Constitution should be changed for any reason, what would happen to the existing official languages, could they be classified? There were vested rights under the Constitution. The Legal Advisor had referred to the principles of the Constitution; the status the communities enjoyed was a matter of constitutional policy. It might not be the right thing for the Committee to classify something that had been, rightly or wrongly, elevated to the status of an official language.

Dr Oriani-Ambrosini had spoken to those who had been involved at the time. The understanding was that there was no intention to change what was designated in the Interim Constitution, but there was an error in translation in that the word was changed but it was not the intention to change the meaning.

Mr Mnguni said the Legal Advisor had been invited to give some background but it was not intended to take a decision in that meeting.

Mr Swart agreed with Dr Oriani-Ambrosini in terms of constitutional interpretation. The key was the issue of the translation of the languages. The English version had Sepedi; all the other versions had Sesotho sa Leboa. The crux of legal opinion should relate to an error in translation. Whilst the opinion was helpful, he differed on two aspects. Paragraph 8 said that Sesotho sa Leboa was no longer designated as an official language and was replaced by Sepedi. That was in the English version. The other versions retained Sesotho sa Leboa so it was not correct to say that Sesotho sa Leboa was no longer designated, it was only designated so in the English language. What could assist the Legal Advisor’s argument on that score was that the English translation was the definitive translation. That excluded the fact that in the other translations Sesotho sa Leboa was there and had vested rights, which was something to be very mindful of when considering that basic error took place in the translation. Mr Swart’s suggestion last time was to add the translations of both sides so they would not be taken away from anyone. A possible way forward would be to add Sesotho sa Leboa to Sepedi in the English version, and in the other translation to add Sepedi. That would be vesting the rights of both languages.

A Member noted that the Legal Advisor indicated that having an official language was not actually such a huge thing, but for the people on the ground it was. Sepedi was part of Sesotho sa Leboa, which was why people were confused, and why Sesotho sa Leboa was recognised in the Interim Constitution. Thereafter the Limpopo Legislature changed it to Sepedi. That needed to be corrected because it went straight to the issue of the Traditional Leaders and King Sekukune to be the leader of the Bapedi Tribe as the language was Sepedi. Those who did not speak Sepedi spoke Sekubedu and Sepulana and would feel offended in that regard. The Legal Unit must help the Committee as it would cause confusion.

Ms B Mncube (ANC, Gauteng) said the Committee was not taking a decision at this meeting and that decision, when taken, should not only be based on what the Legal Advisor had presented.

Mr N Koornhof (COPE) found the fact that it was unclear why the Constitutional Assembly decided to remove Sesotho sa Leboa as an official language and designate Sepedi as such, to be the crux. He suggested calling the chairperson, Cyril Ramaphosa, Leon Wessels, Rolf Meyer and all those that were still alive to tell the Committee why they did that and whether it was a mistake, or whether it was a political decision at the time. The Committee had heard everything in terms of Sepedi and Sesotho sa Leboa and could not take that decision. If it was a mistake, then fine. The only solution was to ask why they did that. Listening to all the evidence maybe Sesotho sa Leboa’s case was stronger than that of Sepedi. He suggested either that or what Mr Swart had suggested which was state it as: Sesotho sa Leboa/Sepedi.

Adv Gaum said it was for Parliament to decide how to amend or not to amend the Constitution. In his view the relevant Constitutional Principle in this case was not at all conclusive. It was a broad principle and as far as he could recall the Constitutional Principle did not really have any status here, the Constitutional Court had expressed itself on that matter.
 
Adv Gaum agreed with Dr Koornhof that the Committee must first get clarity as to what exactly happened.

Dr Oriani-Ambrosini said the Committee was trying to achieve clarity as to what the options were from a legal viewpoint. The first issue was interpreting the constitutional intention. Did they use the wrong word meaning something different? The Committee had gone beyond the word to look at factual evidence. He summated the type of different translation that Mr Swart referred to was that at the time some people felt that the word used was wrong and did not reflect the intention and took it upon themselves to correct what they thought was a mistake in the translation. That mistranslation was evidence of what was the understanding of the constitutional intention at the time. The Constitution was written in English and translated into other languages. It was a mistranslation. The only relevance of the mistranslation was whether it was basically right and within the spirit of the Constitution. There were three options:

- To collect all the evidence, which was a courageous option, and as a Committee issue a resolution that the Constitution was incorrectly written, and the original English version was the correct interpretation. That would pave the way for the Constitutional Court and the Constitutional Court would take cognisance and may reach the same conclusion.

- To recommend amendment of the Constitution in either changing two languages, which would remain eleven, which would be politically difficult because there was the issue of one official language becoming no longer an official language, or increasing the number of official languages from eleven to twelve, which would be even more politically difficult because there were a lot of languages that would then want to become official languages.

- The other option was to do nothing.

Ms M Dikgale (ANC, Limpopo) cautioned not to divide the people. Whatever decision the Committee took must put the two groups together, the Sepedi dialect speaking people and the other dialect-speaking people, because Sepedi was not a language it was a dialect. The books used in the schools were not changed into the Sepedi dialect. If Sepedi was deleted and it went back to Sesotho sa Leboa, people would fight. At the public hearing, the Sepedi people said they were ready to go to jail.

Mr Swart said the Committee needed the Wisdom of Solomon. He suggested asking the Legal Advisor to look into the matter. He agreed with the issue of obtaining evidence of what the intention was at the time. Both languages were in the Constitution, in different translations. The definitive section that said the English was definitive created a problem. To him the other languages were still there, Sesotho sa Leboa was in the other translation. He suggested asking the Legal Advisor what would be the implications if one were to put in Sepedi/Sesotho sa Leboa, indicating in the English text what was in the other text as well, not giving an additional right, but what was purely reflected in the different translations, and indicating in the English translation as to what was in the Interim Constitution as well. It was not adding another language but purely what was in the different translations of the Constitution.

Dr A Lotriet (DA) sympathised with the proposal made by Mr Swart. That would compromise the issue because it was extremely difficult once a community obtained a specific language status, taking it away could have serious consequences. She suggested considering a compromise proposal that would indicate that it was Sesotho sa Leboa/Sepedi (either or). Whereas how would that affect the status of the other dialects that fell within Sesotho sa Leboa? The Committee would be elevating one dialect above the others, which could open the door for others to ask for the same way. One should look at a more creative way of indicating that it was Sesotho sa Leboa including Sepedi and not use a slash.

Ms Mncube thought the Wisdom of Solomon would be to take the views of the people and to take a decision that would still hold the status of Parliament. She did not agree that the slash was not adding anything, it did add. The books were still in Northern Sotho, but officially used Sepedi. Written books and the language in schools and/or universities were where it said not Sepedi. The slash would be confusing. Schools and universities, and also interpreters, would choose the language.

Dr Oriani-Ambrosini agreed with Ms Mncube. The Swart option was appealing, by putting in a stroke, one would not need to amend the Constitution but just make a technical correction. It could be discussed that one was a language, one was a dialect to the language, but whatever the status between the two of them (the one deriving from the other or being more important than the other), they were different. There was one Constitution that made one decision; the translation was erroneous. If the Committee was not happy with those facts then it needed to correct them. Either the word in the Constitution was erroneous because it did not reflect the intention or, by amending the Constitution (by changing the one to the other or changing the official number of languages as well). Appealing as Mr Swart’s option was, it was not an option politically.

Adv Gaum said there was another option, and that was to say Sesotho sa Leboa (including Sepedi). That would be seen as clearly stating that Sepedi was a dialect of Sesotho sa Leboa. He thought that would be better than the slash option, which could be understood as making another language.

Ms Isaac commented on aspects of the legal opinion.

When the Constitution was drafted, in Section 6 it had to comply with the constitutional principles and Principle X1 was relevant. Now that the Constitution had been certified, that principle was no longer applicable. The Constitution was a final document and did not have to comply with anything else, so in making any further decision regarding a language – it was a policy decision with no rights to anything else that had to be complied with. Regarding the error in translation, the English text was the official text and therefore the English text was used.

Regarding the feelings of the people who spoke Sepedi and Sesotho sa Leboa, Ms Isaac said the Members were well versed with the issues and to what the situation was on the ground. From a legal perspective, there was no right or no way to compel Parliament to make their language official. Other groups would also want their language to be made official. If Parliament decided to make a policy decision that was fine, but it could not be compelled to do so. It was up to Parliament and the process was determined in the Constitution. Once an amendment was effected it became part of the Constitution. Those who spoke Sepedi could not argue that their rights had been violated once their language no longer had official status if the correct process was followed.

Adv Holomisa said if it were not for the fact of the confusion created by the manner in which the various Constitutions had designated a language, the Interim Constitution said Sesotho sa Leboa and the Final Constitution said the same then there would not be that problem. But the English, which was the official version of the Constitution, and the Zulu version stated Sepedi as the official language, while others said Sesotho sa Leboa. It became relevant for the Committee to understand what went wrong, if anything went wrong, and why there was the discrepancy. He supported the Koornhof suggestion to call on those who were in charge of the Constitution-making process to throw some light on this important issue. In essence the Constitution said that people were free to choose their own languages, but people wanted to see their language in writing. The Committee also had to be conscious that there were other similar situations such as in the Eastern Cape where not only Xhosa was spoken. The Constitution had to take a stand, but the problem was the stand was confused, it said Sesotho sa Leboa and then it said Sepedi.

Adv Gaum added that in addition to people such as Cyril Ramaphosa, there were also other people involved, such as subcommittees and people who dealt with language, that could possibly be in a better position, and he suggested finding out who those people were.

Mr Mnguni said the Committee had paved the way forward, to look back as to what happened, and have the input of people on the ground, and the input of the Legal Advisor. During the public hearings with the Chiefs and the professors, there was a person, who said he was involved with the Constitution, that person should be recalled to explain.

Mr Mnguni wrapped up that all those mentioned would be invited and the matter discussed at a further meeting. Persons to be invited were Mr Cyril Ramaphosa, Mr Leon Wessels, and Mr Hassan Mohamed.

Ms Mncube added the subcommittee on language, the subcommittees of the Constitution, translators, and to attach names and positions as to whom they represented.

Adv Gaum proposed asking where to find the names of the people who dealt with the Constitution directly in the subcommittees, to call them beforehand to ask them to assist with other names of people directly involved so that they could testify.

Mr Mnguni agreed with Adv Gaum and that those people be invited to a meeting.

Committee Report on Study Tour to Venice and Strasbourg
Adv Holomisa referred to the highlighted section under section 2, the terms of reference the Committee had asked to be included:

- To check the different procedures which other member stated followed when amending their constitutions;
- To establish whether there were African countries which were members of the Venice Commission.

Adv Holomisa also stressed the amendment under section 3:

In addition, the CRC met with Mr O’Boyle, the Registrar of the European Court of Human Rights. He addressed the Committee on the European Convention on Human Rights and its importance in the protection of human rights and fundamental freedoms in Europe. He updated the Committee on the establishment and activities of the European Court of Human Rights. Information was given on the composition of the Court, practice and procedure in relation to lodging applications, the registration and processing of cases, legal representation, publicity and access to information, the relationship with other courts, as well as the execution of judgements. The Committee was also informed about the role of the Registry in the adjudication of cases lodged by individuals and how the Court dealt with backlogs.

It was agreed that a bracket be removed after ‘the activities of the European Court of Human Rights’.

Mr Swart said he had raised that previously as an omission and was satisfied with that paragraph.

Proposed by Adv H Gaum (ANC), seconded by Ms J Sosibo (ANC), the report was adopted.

Committee Annual Report January – November 2010
The Committee Annual Report, which had been discussed previously and corrections made to it, was adopted.

Adoption of minutes
The minutes of the committee meetings held on 12 November 2010 and 18 March 2011 were adopted with amendments.

Announcement
Mr Mnguni announced that the meeting scheduled for 17 June was postponed because of Youth Day on 16 June and Members would be in their constituencies.

The meeting was adjourned.

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