South African Languages Bill [B23-2011]: Deliberations

Meeting report

South African Languages Bill [B23-2011]: Deliberations
The Chairperson stated, by way of introduction, that people should be, and were, able to speak a language of their choice. She noted the presence of representatives from the Department  of Arts and Culture (DAC) the Western Cape Provincial Department, the media, Parliamentary Legal Services, the  Pan South African Languages Board (PanSALB) provincial office, Language Services for all 11 languages, and the State Law Advisors.

She noted that it was clear, from the budget vote presentations, that the issue of language was very important as it dealt with personal pride as well as heritage and identity. The Committee had made it clear that it would never destroy any language, including Afrikaans, since all were noted in the  Constitution as official languages. She appreciated the submissions that were continuing to come through from the public. She also needed to make the Committee aware of the letter that came from the Office of the House Chair, but noted that it was not important to circulate it, and stressed that the rumour that the Committee was trying to destroy Afrikaans was not true, and was merely divisive. Afrikaaners were a part of South Africa, and Afrikaans was an indigenous language.  as well. This Committee’s work was to ensure that the nation was united, and so anything to do with nation building was brought to this Committee.

The Chairperson also wanted to clarify that there were not two legal opinions, as one newspaper had reported, but in fact there were differing views from Committee Members. She had asked for the two advocates to be excused and noted that Ms Zuraya Adhikarie, Chief Parliamentary Legal Adviser, had taken the issue more emotionally than legally. Members of Parliament had been present when the legal team was unable to give an answer on whether the Bill was constitutional or not, and this matter was clarified by the Office of the Speaker.

The Chairperson was aware that there were issues around clause 4, but she emphasised again that no language would be excluded.

Mr N Van den Berg (DA) reminded the Committee that the DA’s stance on the matters had been presented on 28 February, and he asked if it could be stated again.

The Chairperson asked that the changes first be presented, and the submission could be made when the Committee reached the clauses that were relevant to that submission.

Proposals on clauses
Mr Sibusiso Xaba, Director General, Department of Arts and Culture, stated there were two documents circulated to Members. The first was the original version of the South African Languages Bill (the Bill) and the second was a document that tracked the changes, which was the document he would use to brief the Committee (the Document). He noted that there would be a focus on clause 4.

Ms Doris Tshepe, Director, Cheadle Thompson & Haysom, member of the drafting team, indicated that she would focus on clauses 4(2)(b) and 4(3), which remained an issue of contention. The previous proposal had read: ‘must identify at least three official languages that the national department, national public entity or national public enterprise will use for government purposes; provided that at least two of the official languages identified must be indigenous languages of historically diminished use and status’.

It had now been proposed that the clause 4(2)(b) remain as is, up to the word “purposes” so it should then read: ‘must identify at least three official languages that the national department, national public entity or national public enterprise will use for government purposes.’  It would end there. Then, a new subclause 4(3) would be added, to read: ‘ In identifying at least three official languages as contemplated in subsection (2)(b), a national public entity or national public enterprise must take into account its obligation to take practical and positive measures to elevate the status and advance the use of indigenous languages of historically diminished use and status, in accordance with section 6(2) of the Constitution’. She asked that this be considered by the Committee.

The Chairperson asked about the other changes.

Ms Tshepe said her understanding had been that all other changes had been agreed to already. This was the only latest change that had been made.

Mr Malusi Ncolo, Senior State Law Adviser, Office of the Chief State Law Adviser, confirmed that this was the position held at the last meeting. However, he noted that the A-list on the Bill contained an erroneous reference to a sub-clause (4), and told Members that it was intended that the clause end with subclause (3).

Discussion
The Chairperson asked whether the name of the Bill had been noted, during their last attendance, as “Use of South African Language Bill”.

Ms Tshepe replied that the name was still noted, on that occasion, as “The South African Languages Bill” but a change in title, to “Use of South African Languages Bill” had been proposed. She reiterated that what were now contained in the Document were the changes that were proposed at that time. The only change noted in the current Document was in relation to clause 4.

Mr P Ntshiqela (COPE) stated that what had been presented in the meeting regarding the three languages was “the truth, but not the exact truth”.  He agreed on the point about the three languages. However, he was not sure whether this had been formally debated and voted upon.

Mr L Khoarai (ANC) stated that his own proposal was to have the phrase “three previously disadvantaged languages” included.  

Mr S Ntapane (UDM) agreed with what had now been presented by the legal team. Everything else ha been agreed upon and the only matter of contention that remained, after the last meeting, was clause 4(2)(b), and particularly how the matter of using indigenous languages that were previously of diminished status should be constructed. He suggested that there was no need to waste time on matters that had been agreed upon. He was happy with the way the amendments were being presented. He had voted in favour of stating three languages in the previous meeting; as a compromise to the original suggestion that he made for four.

The Chairperson stated that when legislation was created, there was no need to be apologetic of pushing  transformation, but at the same time other feelings and views must be considered. The Afrikaaner community said it felt it was being marginalised, and it was surprising that no representatives were present today. This community had argued that a person would prefer to write a document in English or Afrikaans.

Ms H Van Schalkwyk (DA) said she thought the wording was very acceptable. It was necessary to choose between languages and it was now the mandate of the provinces to choose those languages that were most relevant to the province.

Mr Van Den Berg said that the Committee’s discussions previously had highlighted the point that people should not become too emotional, and there had been a very emotional letter received. As much as he personally had a passion for Afrikaans, he recognised that other people had passions for their own languages. Legislation made during apartheid had limited people’s rights and he thought it important to create space for every language in South Africa. The DA fought for use of all languages in South Africa, and believed that never again should language be allowed to be repressed. He thought it acceptable to make mention of “three languages” – although ideally he agreed that it should be increased to four – and this would make it easier for the provinces. For example, in the Eastern Cape, it would have been good for Pondo to be moved up, as it had been previously been over-shadowed by IsiXhosa. This would also have given the opportunity for more languages to be used, and more freedom for mother tongue speakers. He stated that all languages needed to be promoted and more opportunities could be given to provinces to promote languages.

Mr Van Den Berg was thankful that the wording that he had considered unconstitutional had been dropped from the Bill. He was also appreciative of the good discussions between the political parties, and said this Committee could give direction to Parliament as to how committees could function. Members were not present to make political gains, but had demonstrated that they cared about cultures and languages. This legislation would put no language in danger. It would also serve to appease the people. He himself had not consciously chosen to speak Afrikaans, but had “consumed” it from his parents and grandparents, along with the food and drink that they gave him. He was sure the Committee would make the right decision.

Ms L Moss (ANC) noted the point that people should try to avoid getting emotional, but said that sometimes the truth, rather than emotions, were being expressed. What had happened, had happened, and whilst there was a need to forgive, there was no need to forget. She hoped that this Bill would take the country forward. Whilst both her parents had spoken isiXhosa, she had been forced to learn and use Afrikaans at school.

Ms Moss suggested, on the wording, that the phrase “at least” or “minimum” be inserted before the numbers of languages, to make the legislation more flexible, and easier to interpret.

The Chairperson said that the legal team used set and acceptable legal terminology, and urged the Committee to be realistic. When people read the phrase “at least three” they would view this as the maximum, and there were concerns about budget constraints. She agreed with Ms Moss’s proposal to use the word “minimum”, which, to a lay person, would suggest that at least three languages be identified, and to go forward from there.

Ms Tshepe replied that the phrase “at least” was chosen on the basis of the Constitutional interpretation, since regard was had to section 6(4) of the Constitution. The drafters were trying to ensure consistency with the Constitution, and to avoid litigation around interpretation.

Advocate Anthea Gordon, Parliamentary Legal Advisor, noted that she had arrived late in the process, had not been involved in the actual drafting, but had been asked to look at the contentions around clause 4, in light of section 6(3) of the Constitution. This section required that drafters commence with a minimum of two languages, as this was the benchmark. She stressed that section 6 of the Constitution was not a right, but an obligation, and was a founding provision. She was not sure of exactly what debate had taken place already, but noted that essentially this was an obligation on government, both national and provincial. The Bill was a section 75 Bill, and essentially regulated the national sphere although the impact may be felt in any place where a national department was housed. She thought it would have been incorrect to speak of provinces and three languages. She stressed that the Constitution referred to “two languages at least” which was both a precise and legal term. This Bill would impact on South Africa, and should be seen as a living document. Words that might confuse people should not be used, and in her view the word “minimum” would answer any “mathematical queries”.

Adv Gordon noted that clause 4(2) began with a verb, and that set out what a department was required to do. She acknowledged the need to put aside emotion when dealing with legislation that would impact on South Africans. She understood that there was a need for a number to be stated, to ensure that the issue was taken seriously, but if the human element took languages seriously, then there might not be a need to insert a number. From a Constitutional point of view, she believed that there would still be compliance with the Constitution, whether the word “three” was inserted or not, but this was a policy decision for the Committee.

The Chairperson said one of the mistakes was that there had been a focus on provinces rather than the national sphere, although the provinces would be taking this further. The problem with not naming numbers was that this could well lead to the situation where only English and Afrikaans would be used in practice.

Mr Ntshiqela said the issue of the languages was a serious matter.  He was concerned that this Committee was still “nursing” the feelings of various people, particularly in relation to Afrikaans, despite the fact that the views of those whose languages were suppressed in the past were not at that stage taken into consideration. He believed the legislation, and not the Committee, had to address this point.

Ms Moss said she wanted to clarify that the Committee’s role would be one of oversight, and it was officials in government who were to implement the legislation.

Mr Van Den Berg addressed the Committee in Afrikaans.

Mr Mavunda cautioned that Members were now expressing their feelings and wishes. The Constitution should be the guiding framework, not personal views, otherwise the Committee would end up trying to convince each other on subjective, and not objective grounds.

Mr Mavunda said that the meaning of “minimum of “ had to be understood. This did not mean that languages would be compulsory, and more than two, or three, could be chosen. The protection of languages needed to be made clear and aligned to the Constitution, and any other debate was superfluous. It was quite easy to conclude the matter, if Members confined themselves to aligning the Bill and the Constitution. He urged Members to move on and conclude the matter.

Mr Ivan Myer, MEC for Cultural Affairs and Sport, Western Cape, congratulated the Chairperson on what she had said in the budget speech, and on the spirit in which she had conducted the meeting. It was the spirit in which matters were debated, and not the language of the debate, that was vital, and she had allowed for a spirit of language diversity.

The Chairperson urged the Committee to ask questions of those from Language Services.

Mr Meyer asked if it was intended that the national departments would be consulting provincial departments in the development of language policies.

Mr Xaba replied that the language dispensation comprised of different elements, and comprised both national and provincial legislation. There was no requirement for national departments to comply with a provincial law, and that was an important point as there had been some confusion around it in the past. This legislation would apply to national departments, national public entities and national public enterprises. The current Bill had no requirement for consultation with the provincial governments in the development of national language policies. However, it did provide for a variety of consultation processes, including the National Policy Forums, and there was also a specific general requirement for national government to consult with provinces.

Mr Meyer asked how the Bill would allow national departments in provinces to follow a symmetrical approach to the development of language policy.

Mr Xaba replied said the issue of symmetry was a tricky one. National departments were configured very differently. There were some departments that had offices in the various provinces, like the Department of Home Affairs. There were also departments that had provincial counterparts; for instance, the national Department of Arts and Culture was matched with provincial Departments of Sports and Arts and Culture in the provinces. There were very different configurations. In an ideal world, a system would be created where the provincial offices of national departments could use the languages of the provinces where they were located. However, this may not happen yet, with the result that a national department who had a presence in every province would be required to have the capacity to deal with all the official languages in all the various provinces. They might as well adopt all eleven official languages. Capacity and practical considerations made it difficult to operate within that environment. He stressed again that the DAC believed that there was sufficient room for consultation and cooperation for provincial departments, but  the legal responsibility lay with national departments, national public entities and national public enterprises to comply with the Bill, once passed into law.

Mr Ntapane wanted clarity on the words ‘its obligation’ in clause 4(3). He pointed out that the problem was that the majority of languages were not well-developed, and this clause appeared to be saying that the departments had to take into account their obligation to take practical and positive measures to elevate the status and advance the use of indigenous languages. However, he asked what exactly this “obligation” would mean.

The Chairperson suggested that this referred to the obligations set out in the Constitution.

Ms Tshepe replied that section 6(2) did not state the precise nature of the obligations, but rather created an obligation on government that something must be done.
 
Advocate Gordon reiterated that section 6 of the Constitution was worded not as a right but an obligation, emphasised by use of the word “must”.

The Chairperson noted that Members seemed to be in agreement, although she noted reservations of Mr Ntshiqela.

Mr Ntshiqela explained that he was only opposed to certain languages being given special treatment.

The Chairperson asked if the DA had a problem with clause 4, although she was aware that it wanted to raise some issues.

Mr Van Den Berg said the DA did not have a problem with the discussion. He thought that the DAC was right on the question of symmetry of approach. Although there was a need to make a decision on languages, he cautioned that budgets of provincial governments must be considered. Clearly, good communication between language users and government in any area was important, and a good provincial government would take this into account.

Ms Van Schalkwyk sought clarity whether, if a national department were to decide on three particular languages, these would then be the three languages to be used in all nine provinces.

Mr Xaba replied that if the Department of Labour, for instance, chose three languages, they would be the languages of business for that Department throughout the country.

Members began to debate this point between themselves.

Ms Tshepe clarified that if the Department were to choose three languages, they would also, in terms of section 6(3) of the Constitution, take into account regional needs. Although it would use three languages in provinces, it would look at the dynamic within the region to do that. Whatever language was chosen, in terms of the Bill, would also need to comply with other considerations.

The Chairperson noted that Mr Xaba had not expressed a legal opinion. Without meaning any offence to any other language, she noted that one of the issues that had been raised was that it was perhaps preferable to avoid using languages that had had a privileged status in the past – including isiXhosa and isiZulu. There was a need to try and promote some of the other languages as well. She urged the departments, when making proposals and considerations, to make a conscious effort to promote other official languages that had been oppressed in the past.


The Chairperson asked if the Committee Members were agreed on clause 4, although she stressed that this was not a formal vote.

All Members agreed.

Mr Van Den Berg said that he wished to raise a question about the role of the PanSALB, and noted that this body could not act as ombudsman within a province. If there was a problem with a specific language speaker, it could not handle that. The PanSALB legislation was founded on section 8 of the Interim Constitution, and he suggested that some of the sections were contrary to the final Constitution, and that what the Minister intended to do was incorrect. There was something in the PanSALB Act about promotion of rights, but nothing about enforcement of rights. The Committee and the legal advisors needed to look at this before naming PanSALB as the legal guardian for enforcing this legislation.

Mr Xaba replied that the issue of the ombudsman was answered in section 11(1) of the PanSALB Act, which stated that: “Any person acting on his or her own behalf, or any person, body of persons or institution acting on behalf of its members, or members of a language group, or any organ of state may lodge with the Board a complaint concerning any alleged violation or threatened violation of a language right, language policy or language practice.” In addition to this, section 11(5) also provided that: “The Board shall, after an investigation of the alleged violation in terms of subsection (4), and if it is of the view that there is substance in the allegation, by mediation or conciliation or negotiation, endeavour-
(i) to resolve and settle any dispute; or
(ii) to rectify any act or omission,
arising from or constituting a contravention or infringement of legislation or alleged contravention or infringement of legislation, language policy or language practice.”  

He said that this illustrated that dispute resolution mechanisms in relation to languages already existed. There may have been a difference in the function of the structure, but he did not believe that it was necessary to create an alternative, as this may lead to contradictions. There could be discussions on fixing the existing mechanisms, rather than creating new ones. .

Mr Ncolo agreed that creating a parallel structure would lead to problems.

The Chairperson said she understood the state of affairs in PanSALB, but it was not right to take away its constitutional obligation. She understood the concerns about its dysfunctionality, but urged that taxpayers’ money should not be spent on trying to create another structure.

Ms Moss said that the various aspects of the debate must be considered in turn. The Minister clearly needed to look at PanSALB. Proposals were put forward, and the Committee had to ensure that these were implemented, as highlighted in the budget debates. She agreed that parallel structures did not need to be created. The Committee must rather ensure that the correct things were being implemented, and to oversee the Minister’s implementation, in line with the Constitution.

Ms Van Schalkwyk agreed that there was not a need for two parallel bodies, but the question was who must show PanSALB what to do, and what the Committee’s responsibilities were around this.

Mr Van Den Berg clarified that he had raised the suggestion of an ombudsman because PanSALB was not working as it should. He appealed to the legal advisors to consider the PanSALB position, especially since it was mandated by the Interim Constitution, and since there seemed to be a need to amend section 6(5) of the PanSALB Act. It was necessary to ensure that the groundwork for PanSALB in terms of the new Bill was properly done

The Chairperson asked if the committee agreed on the clause, with the recommendations.

Members agreed.

The Chairperson indicated that the A list would not be done on this day, but Members and the legal advisors should go through their copies.

She expressed thanks to everyone for their input. All voices must be heard to ensure that South Africa was democratic. There was a challenge with the eleven official languages, and an outcry for what had been termed the “dialects” such as Nama and Khoi, which seemed to be dying as the older generation who used them ha passed on. It was important to attend to this as well.

It was important for the Department to strengthen its relations with provinces, and ensure that all provinces were assisted with provincial works. All policies must be implemented uniformly.

The Chairperson expressed thanks to all Members, and to the members of the public who participated in the process. This was not a section 76 Bill, so provincial public hearings would not be held, but public submissions were noted. She noted that there ha been a complaint that the Department of Home Affairs forms were printed only in English and Afrikaans at present, and said that there needed to be oversight of these kinds of issues.  

She thanked Language Services for its committed work. She urged that all South Africans should try to learn each other’s languages. She also expressed thanks to the State Law Advisors, the media, PanSALB, Parliamentary Monitoring Group, and all other people for attending. Finally, she noted her appreciation to the Minister and Deputy Minister and the office of the Speaker, Deputy Speaker and House Chair.

The meeting was adjourned.