South African Languages Bill: Department of Arts and Culture briefing

Arts and Culture

15 November 2011
Chairperson: Ms T Sunduza (ANC)
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Meeting Summary

The Department of Arts and Culture (DAC) introduced the South African Languages Bill to the Committee. This Bill sought to answer the Court’s order, in the matter of Lourens v President of South Africa and others, that within two years (by 16 March 2012) government must pass legislation that gave effect to section 6 of the South African Constitution, which established the official languages of South Africa and called for protection and advancement of all, whilst placing obligations on the Minister of Art and Culture to provide legislation and other measures to regulate and monitor the use of the official languages. In 2003, Cabinet had approved the National Languages Policy Framework and Implementation Plan, which provided for the promulgation of the South African Languages Act, which was to regulate and monitor the use of official languages by government. A Bill was presented in 2004, but was not approved and the DAC was asked to consult further, and to try to find a way to give effect to this by non-legislative means. Whilst the DAC was in the process of doing so, and was holding consultation with other structures that promoted the use of official languages, the Lourens court application was brought and portions of the application were upheld. This Bill would provide for the regulation and monitoring of the use of official languages by national government for government purposes, the adoption of policies and the establishment and functioning of language units. The presentation outlined the various clauses in the bill. It was stressed that the purpose was not only to promote language but also to provide  access to services. It would apply across national and provincial departments and entities. Departments were required to choose at least two “working languages” to enable them to plan more effectively and appropriately for multilingualism.

Members asked what criteria would be used to choose those languages, asked what was presently preventing departments from merely choosing English and Afrikaans and suggested that at least one African language should perhaps be a requirement. They asked what would be done if a person sought to do business in a language that had not been chosen, and were still concerned that there were no compliance mechanisms, despite the fact that the DAC had advised it wanted to use a “carrot and stick” approach. Members wondered about the implementation, and asked several questions about how it would be implemented, the costs of implementation, where the language units would be established, and whether promotion of language and improvement of service delivery would result. It was noted that demand would be determined in consultation with people in the provinces. Members also questioned why the Bill was not made applicable to local government, as that was where issues of service delivery arose. They noted the DAC’s comments that departments would have to work with local government. Questions of budgeting were raised several times by the DAC, and Members noted this and agreed that it was important, but must be weighed up against the ultimate costs of lack of service delivery. They felt that the wording of the clauses around exemption was too vague, and said it must be revised.

Meeting report

South African Languages Bill: Department of Arts and Culture briefing
Mr Sibusiso Xaba, Director General, Department of Arts and Culture, outlined the background to the South African Languages Bill (the Bill), noting that it drew upon the Constitution’s section 6, which established eleven official languages in South Africa, and called for the protection and advancement of all these languages. The Minister of Arts and Culture had an obligation to provide legislation and other measures to regulate and monitor the use of the official languages.

In 2003 the Cabinet approved the National Languages Policy Framework and Implementation Plan, which provided for the promulgation of the South African Languages Act, which should regulate and monitor the use of official languages by government. In 2004 the Department of Arts and Culture (DAC or the Department) submitted the Bill to Parliament, but it was not approved. The DAC was asked to explore non legislative alternatives, and the DAC had then consulted with the Departments of Justice and Constitutional Development (DOJ), Department of Basic Education (as it was now known) and the Department of Health (DOH). Since 2004, it had been exploring non legislative measures, including this consultation, specifically with  a view to improving the use of languages in courts, and the implementation of the Human Technology (HLT) projects in conjunction with the Council for Scientific and Industrial Research (CSIR). The DAC had identified various structures that promoted the use of official languages such as the Pan South African Languages Board (PanSALB), the Provincial Languages Committee, the National Lexicography Unit and Hansard .

Mr Xaba noted that all of this was done in order to respond to the suggestion that non-legislative measures be found to promote language. However, in the case Lourens v the President of the Republic of South Africa, Mr Lourens had brought a matter before the High Court to test whether government had complied with its obligation to finalise and promulgate a National Language Act, as required by the Constitution. The relief sought, as well as the order of the court, was fully set out and explained (see slides 7, 8 and 9 of attached presentation). Although the Court found that there was no constitutional obligation to do all of what Mr Lourens had sought, the Court did agree with him on some points. In particular, the Court had then ordered the Minister of Arts and Culture to comply with section 6 of the Constitution, within two years from the date of the court order. The DAC, in order to comply with this order, had then drafted the National Languages Bill of 2010. Mr Xaba emphasised that the two-year deadline date was 16 March 2012, by which the Bill would have to be promulgated.

Mr Xaba then tabled the Bill and explained its contents. It would provide for the regulation and monitoring of the use of official languages by national government for government purposes. It would also provide for the adoption of language policies, as well as the establishment and functions of language units. The provisions of the various clauses of the Bill were outlined (see attached presentation, slides 10 to 17).

There were three key principles, which were the promotion of use of language, access to information and services, and good language management by government departments. He stressed that the Bill not only sought to promote the use of languages for the sake of the languages themselves, but also sought to give people better access to services. The application of the Bill would be critical, as it not only applied to the work of DAC but to every government department and entity. Previously, and in the absence of this Bill, anybody could approach any department in any language. However, the Bill should be able to make the ad hoc costs more manageable, and would allow departments to plan more effectively and appropriately for multilingualism.

The Chairperson questioned what criteria would be used to identify the two “working” languages for working within government. She noted that, for example, in Limpopo, five languages were in common use, and she asked what would be done about minority groups.

Ms F Mushwana (ANC) echoed these concerns.

Ms Mushwana also asked for clarity on slide 12, and bullet two, asking what would happen if someone approached government seeking to work in a language that was not named as one of the official languages.

Mr Anil Singh, Director: Legal Services, Department of Arts and Culture, said that provinces would be looking at which languages dominated business dealings in their province. The previous proposals had looked to the notion of rotating languages, but this had led to English being overly-utilised and the DAC was trying to address this matter. The idea was to give effect to minority languages in the provinces, by looking at which languages, for practical purposes, were in most common use.

Dr A Lotriet (DA) questioned the terms of the Bill and asked whether it included any mechanisms to enforce compliance by various departments. Dr Lotriet thought that if there were none, then it would be difficult to enforce.

Mr Singh responded that the idea was that everyone would have a duty to advance multilingualism, as a constitutional obligation. The DAC would consider using a “carrot and stick” approach to compliance. However, it would be difficult to introduce punitive measures, and the DAC would seek to encourage compliance rather than punish departments for their failure to comply.

Ms Joyce Sukumane, Director: Language Services, Department of Arts and Culture, added that the dominant language of the area would be the one spoken by the majority of people within a region. The choice of the languages would carry budgetary implications, as clearly a department or government entity could not afford to cater to all languages. The nature of the business of government must also be taken into account. The demographics of languages would be considered.

Ms Sukumane responded to questions asked specifically about Limpopo, stating that departments would have to consult with the people in those areas, to decide what languages government would be using, by looking at the demand. There might also be other languages that were not amongst South Africa’s official languages, such as French or another African language, and government would have to draw a plan of action. She also distinguished between government communicating with the people, and government doing ‘government business’. It was concluded that few governments could afford to implement their policy in more than two languages.

The Chairperson raised concerns about this point, stating all business that government did involved the people, and there was a problem in trying to draw a distinction between communicating to the people and doing government business. Every department should speak to all people. She also noted that perhaps consideration should be given to making it mandatory that one of the languages was an ‘African language’ as in every province, bar KwaZulu Natal (KZN), English and Afrikaans would always be present. These were realities that needed to be raised and addressed. The Chairperson stated that even during public hearings people called for English and Afrikaans, so the Bill should perhaps for this reason specify that at least one African language must be chosen.

Mr D Mavunda (ANC) agreed, expressing the view that the Bill was merely reinforcing the status quo. He asked if departmental documents would be translated into all languages, as there seemed to be no constitutional obligation to do so.

The Chairperson emphasised that all language groups except English speakers said that when they felt that they were prejudiced when attending Parliamentary hearings, as they were unable to express themselves as well in English as in their own languages. People had nonetheless been asked to make presentations in English. It would not be cost effective to implement languages in areas that did not use that language - for example making Xhosa a working language in the Northern Cape.

Dr Lotriet questioned whether the Bill was really promoting multilingualism, as departments, if told that they must only adopt two languages, may fall back on Afrikaans and English, thus not necessarily promoting the dominant language.

Mr Xaba emphasised that this Bill would be only one of the instruments used to  promote multilingualism. There were other matters that government had been doing. There had to be a balance found between promoting multilingualism, and doing what was practical. There was work being done on other legislation to deal with issues of capacity, which could be  identified as a possible constraint. He stressed that this was not the first attempt at making interventions on the promotion of use of languages as entities. The Pan South African Board (PanSALB) was also seeking to achieve similar aims. However, this Bill was trying to place an obligation on government, so that the public could hold every department to that obligation when doing business. There was a need to consult with PanSALB, to try to achieve coherence. He was confident that the current addressing of problems at PanSALB would enable it to meet its obligations. He noted that in relation to language units, government had prioritised ten departments and had two established language units that dealt directly with the people.

Ms Sukumane stressed that budgetary considerations would be important, and for this reason it was necessary to decide who did, and who did not, need a language unit.

Mr Xaba emphasised that the National Language Service would also help the rest of government with translation services, as well as give assistance. Intergovernmental forums were to be established to aid the departments and link to the provinces.

Dr Lotriet questioned the terms of exemptions for departments from not complying with the Bill, as set out in clause 13. She argued that this clause seemed far too vague, and would allow many departments to be exempted. She sought clarification on how this would be addressed.

Ms Sukumane stated that the Legal Services unit of the DAC had also felt that the terms of exemption were vague. More detailed criteria would be stipulated. Although costings and budgeting within various departments was important, the DAC would not look lightly upon exemptions.

Ms M Morutoa (ANC) and the Chairperson questioned why national and provincial governments were mentioned, however local government was not.

Mr Singh replied to this that the Constitution placed obligations only on national and provincial governments but understood the importance of incorporating the local governments. The Bill was meant to be a guiding light for provinces that did not have their own language policy, but local government was still important, and the DAC would look into working with them. An Intergovernmental Cooperation Framework had been enacted. Cooperation with local government could be done outside of legislation.

Mr Xaba added that the Constitution did not make language policies obligatory for municipalities, but only for national and provincial government. The municipalities had only to take note of the provision in order to further its objectives.

The Chairperson stated that the DAC would be hard pressed to exclude local government in practice, as they were the ones who dealt with people on a day to day basis.

Ms L Moss (ANC) asked whether there would enough funding to implement the Bill.

Mr Xaba noted that government prioritised 10 departments and two language units were established that deal directly with the people. Once again, the issue of budgets was important in implementation, but the DAC was intending to establish which institutions were in need of a language unit.

The Chairperson also called for the Bill to be translated into the various languages. Although the Chairperson understood the costs, it was also emphasised that people did need access to their language of choice, so that public service delivery was not undermined.

Dr Lotriet stated that she understood that the costs of functioning in many languages was high, but the cost of not having service delivery due to not lack of understanding was also high.

Ms P Duncan (DA) expressed her concern that costs were often used as an excuse but it was not plausible when one had regard to the rampant wasteful expenditure in other areas, across the whole of government.

Mr Xaba noted that there was a need for departments to balance Constitutional obligations and the cost and practicality of promoting multilingualism. In an ideal situation any department would be able to do interdepartmental business within the department and with the public in all official languages, but this was simply not practical from a skills and cost point of view. He reiterated that departments would be asked to choose their languages, and here he pointed out that two languages was a minimum, and not a limit, but he thought that many might opt for only two languages. Multilingualism was not a new matter, as many departments already conducted themselves in more than one language.

Mr Singh stated that the department was busy translating the bill into all official languages.

Ms Duncan commented that, given the importance of this Bill and the time limits, she thought that the Minister of Arts and Culture should have been present. The Court order meant that the Bill must be enacted in a certain time. She also questioned why nothing had been done sooner to deal with the matter. She felt that it was irrelevant for the Committee to ask more questions at this stage, as instead public hearings should be held. She also thought that because it did not contain enforcement mechanisms, nor was linked to other enforcement legislation, it would not be strong enough. She commented that PanSALB was failing as an institution. Ms Duncan added that the DAC should not pass up on the opportunity to provide youth with skills, particularly given the current situation with youth unemployed. What the DAC had presented as “challenges” should rather be seen as opportunities for skills development.

Mr Xaba noted that there was indeed space for skills development and creating language practitioners.

The Chairperson stated that the Portfolio Committee and the DAC sought to transform society, and they would face challenges of the past. She noted that public hearings must be held to take the legislative process forward. The Committee had given its comment, and the advertisements calling for public submissions had been drafted. It was necessary to reach out also to South Africans who were unable to read and write. She noted that assistance was necessary from provincial government. The public hearings would be held, at the latest, in January.

The meeting was adjourned.



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