SA Languages Bill [B23-2011]: briefing by Department of Arts and Culture on amendments

Meeting report

Department of Arts and Culture Presentation: South African Bills Amendments
Mr Sbu Xaba, Director-General, DAC, stated that the tracked changes presented in the document were to allow for those present to easily follow the amendments.

Ms Doris Tshepe, Director of Cheadle Thompson & Haysom Inc, presented the Department’s response to the submissions given in the previous meeting. 

Long Title of the Bill
Ms Tshepe stated that the state law advisor had been happy with the amendments made within the document. She then highlighted that there had been an agreement that the long title used would remain- ‘South African Languages Bill’

Preamble
Ms Doris Tshepe explained that the changes arose from the submissions to the Committee and now spoke to the Constitution as well what the Bill was trying to do in terms of obligations required in section 6 of the Constitution. The new provision recognised that there was diminished use of some of the official languages and thus the state must take measures to remedy this. The Department was thus of the view that the preamble dealt with notion of giving context to people’s desires.
Agreement on Sections
The Department proposed that the section on Compliance be removed and that compliance be dealt with under section 9 on monitoring and reporting
Clause 4: Language Policy
A new subsection 4 (2)(b) was inserted in this clause. This provision specified that there must be at least three official languages and that at least two must be ‘indigenous languages’. Previous discussions had led to the notion that the term ‘indigenous languages’ was broad and so to remedy this problem it was stated that the language in question must be seen as having historically diminished use and that is what (b) seeks to tackle.

Sign Language
Clause 4 (2)(d) was introduced to remedy the issue of sign language not being an official South African language and allowed for its use within the government sphere, it served as a means of making sure government used it.

Clause 6: Functions of national language unit
Ms Tshepe mentioned that in terms of the original structure of the Bill, the provisions inserted in clause 6 (2) were regulated in section 8(d), section 9 on monitoring and compliance and section 11. These sections had therefore been removed.
Clause 9: Monitoring of and reporting on official language use
Ms Tshepe said that an amendment had been made to ensure that reports must not only be submitted to the Minister but also to the Pan South African Language Board (PanSALB).

Error on Pg 13 of document
Ms Tshepe informed Members about the slight error in page 13 as the formatting had affected  the numbering and said that (2)  must end at the words ‘section 7’ What was after that must then become (3) and what was labeled (3) must be then labeled (4). This error was due to the track changes.

Ms Tshepe concluded that these were the amendments made to the bill which were in line with the submissions made last week and the Chairperson then asked honorable members to deliberate on the matters.

Discussion
Dr A Lotriet (DA) sought clarity from the presenter about clause 4 (1). She recalled that in a written submission the Law Society of South Africa stated that to give the Minister another 18 months was in direct contravention of the court order.

Ms Tshepe replied that according to the court order the Minister was to comply with section 6 (4) of the Constitution through legislative means and this is what the Department sought to do through this Bill. The adoption of language policies must go through a process and the Bill must go through that process. She explained that the Bill would be in place within the stipulated time and thus the 18-month period was not in contravention of the order.

Dr Lotriet referred to clause 4 (2) and argued that the term ‘historically disadvantaged language’ could effectively write out Afrikaans from any language policy due to its place within history. She suggested that it should be stipulated that only one of the official languages be of historically disadvantaged nature in order not to exclude Afrikaans.

Mr D Mavunda (ANC) supported the issues raised by Dr Lotriet stating that when one looked at the current wording Afrikaans was not one of the languages that could be used. He also stated that the language would run into trouble in provinces such as Western Cape. He warned against creating new problems whilst attempting to address the old ones. He suggested changing the number of historically diminished languages from two to one.

The Chairperson stated that she was not averse to Afrikaans but wanted to avoid a situation where the status quo would remain. The goal was, in fact, to promote African languages. Everyone could argue that their own language was being diminished but the question was how was this should be addressed.

Dr Lotriet replied that it was not about promoting one language above another but that the wording created the possibility for exclusion. The current phrasing had the possibility of exclusion. Dr Lotriet reminded those present that she had been the one to initially raise the notion that departments could default to English and Afrikaans which wouldn’t be right. That was why it was stipulated a department must use at least three languages there however need to be constitutional. She argued that her statement was not for the promotion of Afrikaans at the expense of other languages but if one was to have the wording remain as it was this would prevent certain languages being used. There had been, in turn, a need to change the wording in such a way that it did not bring about constitutional problems. It would be ideal to have all 11 but the reality was that there were constraints. If one was to see it phrased as it was now English would be default choice and if a department could only manage three languages then it must choose between Afrikaans and English and there in lied the problem of exclusion.

The Chairperson in turn asked if the honorable Dr Lotriet had any suggestions on the wording.

Ms P Duncan (DA) supported the response and asked for further discussions on the points Dr Lotriet had raised. She explained that what she understood it as a matter of rephrasing the paragraph, Afrikaans had merely been an example as it stood where it did in grander scheme of languages. She stated the Bill put an obligation on the state to make sure that multilingualism was promoted and the Minister had under taken to take this matter seriously. She questioned how the Committee was going to communicate to the people outside if it did not promote all 11 languages. She also stated that there had been a problem in that the Committee had still gotten submissions from the Department with no translation and MPs and Department needed to set an example.

Ms J Tshabalala (ANC) asked what was really meant by the term ‘exclusion’. She stated that some languages must not be promoted over the official indigenous languages. She went on to explain that the Bill clearly stated that provinces must be in charge of their own implementation and thus had the freedom to include what languages they saw fit. She however sought to emphasise that at a national level the goal was to promote previously disadvantaged languages.  She also sought to highlight that this should have been taken to the public in the spirit of ‘promoting indigenous languages’ and not as a means of attacking Afrikaans. The idea of three languages had not been a limiting one and this must be kept in mind by all involved.

Ms F Mushwana (ANC) added that in clause 4 (b) the wording was ‘at least’ which did not mean that one needed to stop there as it gave a chance to do more. People were scared their languages would disappear but no mention was made of this anywhere.  As a nation there was a need to move on and this Bill sought to cover everyone. What it did not do was exclude some or state that some would be sidelined. The Bill needed to be put in place and it was long no overdue.

Ms M Morutoa (ANC) stated that she had encountered people who felt that the democratic government continued to discriminate on language issues and were unhappy with the prospect of departments choosing only two languages. Such a policy left people feeling dissatisfied.

Ms Mushwana argued for the need for a paradigm shift as there were groups in the past that were disadvantaged and there was, in turn,  a need to correct this. She argued that the section should have been kept in its current phrasing that included the notion of two ‘historically diminished languages.  Lastly, she said that if there was not a paradigm shift there would have been an inability to move forward.

Mr Xaba replied that in an ideal world this Bill would say all government departments must use all 11 official languages however the reality was that it was not possible not only financially but also due to a lack of skills. There were simply not enough trained language professionals to provide that sort of service.  The use of technical terminology used in government had no translation in African languages; therefore units were currently in the process of developing the various languages. At the moment the National Languages Unit was working on developing the terminology for HIV/Aids. This was, he emphasised, another hindrance to utilising all 11 official languages.

Mr Xaba also mentioned that there was a need to utilise means other than legislation in order to promote other languages. He suggested other means which included the development of dictionaries and technologies as well as the use of language units in every department.

Ms agreed with the Director-General as there was a need to develop languages to the point one could make a parliamentary speech or conduct one’s self in an official capacity in an African language. She identified this lack of capacity within African languages as one of the key problems in promoting indigenous languages.
 
Mr Xaba stated that the aim of the language policy was not to exclude any language but there was a particular process that must be followed in order to accommodate the needs of everyone and this was the same for sign language as well. The issue of language was an emotive one as it encompassed ideas of identity and culture and had a strong historical context.

Mr Xaba stated that that there was a need to give bias to those languages that had been previously disadvantaged and that is what the wording sought to do. In giving that kind of bias the Department said three languages but if departments had been willing to take on all languages then so be it. The promotion of all languages was a national issue and even though provinces had control one could not give into that level of regional bias as they were policy issues.

This notion of being a policy issue was supported by Ms Tshepe who stated that the notion of at least two historically diminished languages did not restrain, but allowed for more languages. The section in itself is not unconstitutional but the execution of the section and the choices that were made may become unconstitutional. There had thus been a move away from perpetuating the dominance of English and Afrikaans and thus picking one or two was not a legal issue but a policy issue.

Ms Zuraya Adhikarie, Chief Legal Advisor in Parliament, stated that issues of impracticality and the like could have been solved by increasing the number of official languages that departments had to use from three to four. She argued that this, however, was a policy decision. The other means of remedy was to make it merely three (or four) languages without mention of whether they were indigenous. Indigenous languages would be protected due to the fact nine out of the 11 languages were ingenious. There would be no need to qualify the statement.

Ms Duncan supported the proposal for four instead of three languages for various reasons- the first being that this would further the promotion of multilingualism. She also identified this as an emotive issue and was under the impression that those present saw English and Afrikaans as a problem, which was unconstitutional. It was important to recognise that the government had been manipulated into using English all the time and that the exclusion of other languages was a very real possibility. After 17 years into the new democracy there had been a realisation that 9 languages had been neglected and there was a need to promote them.

The Chairperson replied that there was a problem of dominance even within African languages most notably of isiZulu and Sesotho. The goal was to move away from dominance of any language and the promotion of all.

Mr Xaba replied that although he heard the Chairperson’s concerns he could not do away with the fact that the country had in fact been colonised and could not do away with English

Mr Xaba further pointed out that the use of three languages- two of which should be ingenious- was a good option and a move to four languages would be problematic for two reasons. Firstly, it could send the wrong message and secondly, asking departments to do more than Constitution required of them would be difficult from a resources and capacity point of view.

Ms Tshepe stated that the concern over regional issues was resolved if one was to look at 4 (2) (a) of the Bill as it took into consideration section 6 (3) of the Constitution which itself considered the regional level. To give special attention to the regional (as would be the case in stating Afrikaans was being excluded) would be taking it further than section 6 (3) required which one should be wary of.

Ms Zuraya Adhikarie agreed that S 6 (3) did allow one to take into account circumstances that included regional circumstances. She, however, argued that she did not think one could have two or three languages at a national level and then when it came to the regional level expect all languages to be promoted.  

Ms Tshepe replied that the regional authorities could not take prevalence over national. She further stressed that the section said that one must take all factors into account including regional issues.

A Member tackled the issue of sign language as covered in Section 4 (d) (ii) and stated that it must be amended to say that South African sign language must be used and not any sign language.

This suggestion was backed by Ms Tshepe who agreed that the mode of sign language used must, in fact, be South African sign language.

Dr Lotriet stated that there was a problem in terms of means of enforcement as there was the idea that the PanSALB Act would take care of this. The PanSALB Act was unable to do this because it was formed on the basis of the interim constitution and not the current one. One solution to this problem would have been to give a mandate to language ombudsman to solve any issues that arose.

Ms Morutoa agreed fully about the issue of the PanSALB Act’s inadequacy.

Mr Xaba addressed the question about the ombudsman. He pointed out that creating ombudsmen and tribunals would create damaging disputes and once the country went down that route it would create an environment where disputes prevailed over development. Thus the goal should be to create an environment where moving towards the promotion and use of ALL languages. This in turn led to the issue of ‘what do we want to do in this Bill”.

Dr Lotriet stated that there was a need to look at the PanSALB Act which was formed under the interim constitution and looked at the ways it coincided and fell short of the current constitution. The Act should be much more limited and focus on promotion of language not be a protection or rights issue

Mr Xaba stated that he was in agreement with Dr Lotriet about the inadequacies of the PanSALB Act. He stated that that there was currently a certain level of enforcement in terms of PanSALB Act and stated the Department would seek this year to look into better coordination between the Act and the Constitution. He said the Department acknowledged the problems of the PanSALB Act and was working with a committee to seek to address those problems without constructing a parallel enforcement structure. He stated that bringing about conflicts will take everyone back rather than forward.

Ms Doris Tshepe believed that there were mans to asses the Bill. In addition, she agreed with comments about the PanSALB Act which she stated would be able to effectively play the role once it had been revised.

Mr Mavanda argued that there should have been a provision to stipulate that there would be consequences if any provision is contravened. This would stop people doing as they please as most are willing to just go and defend themselves in the High Court. He argued that there must be a means to avert this sort of behavior as by the time the issue had reached the courts the damage has been done. If the Bill could have punitive measures and enforcement measures this would solve this problem and stop people enjoying contravening this kind of law with the use of special legal teams.

Mr P Nstiquela (ANC) sought clarification on certain provisions including Section 6 (a) and (4) (i) (d) as he could not understand what they were meant to convey. He also stated that Section 2 (d) was not very clear on how public entities or public enterprises would communicate what languages were to be used.

He also took issue with Section 6 in its entirety stating it did not make sense. He asked if what was being conveyed was that a national language unit must advise the Minister on policy and strategy relating to language units functioning.

Ms Tshepe responded to the queries made on provisions by stating that 1 b it is stipulated that the Department would liaise with language units and promote cooperation, that was what the section sought to ensure.
She further clarified that clause 4 (2) (d) stated that even though there should be a minimum of three languages the department must then state how it sought to provide someone with their language of choice. Thus even though a department has chosen three languages it must still promote other languages and that was what the provision sought to ensure. 

The Chairperson, upon hearing protests of some ANC members that there was no need for further discussion as the Bill was adequate and overdue, emphasised the need for the current discussion. There was a need to make sure that all was in place to avoid any regrets. This Bill had been the first step to fulfill the task of promoting all languages and needed to be done right.

Ms Morutoa agreed and stated that all those present were representatives and needed to bring about laws that benefited all South Africans. There was nothing wrong with debating matters.

The Chairperson ended the meeting by stating that it had been a very emotional today. She then reached the decision that the meeting scheduled for the following day was to be cancelled as a decision had been taken to redraft the document. It was not an official document and therefore it could not be scrutinised clause by clause. The Committee would instead reconvene on 15 February 2012.

The meeting was adjourned.