Use of Official Languages Bill [B23B-2011]: deliberations and finalisation

Meeting report

The lengthy absence of the chairperson, Ms Makgate was noted, although this week she had attendedat a funeral. She had been absent for three weeks without tendering an apology.  Ms N Madadla (ANC) was elected Acting Chairperson. The meeting was notable for the absence of eight committee members.
The Acting Chairperson began by stating that the framework on the tagging mechanism was too difficult for Members to understand.  The summary should be in simple, accessible and understandable language.

Dr Barbara Loots, Parliamentary Legal Advisor, apologised for the language of the Bill, but said the starting point with tagging was well established, so the Joint Tagging Mechanism (JTM) had been duly employed by Advocate Gordon.  The advocate had provided the JTM with constitutional considerations and had attempted to give the case a basis in law.  As the Constitutional Court had changed the test for tagging there was a need to look at the provisions of the Bill to see if they substantially affected the schedule 4 obligation that section 6 of the Constitution gave for both national and provincial governments to maintain language rights. Section 6 specifically conferred legislative competence to the provinces and nothing in the Bill infringed on that competence.  At a national level, the Bill would make it easier for rendering services and that was why the JTM should be a section 75 Bill – an ordinary bill with no effect on the provinces - according to Advocate Gordon.

Mr Malusi Ncolo, Senior State Legal Advisor, said they were no longer using the same test and it was thus important to make sure that if the provisions were affecting the provinces, the substantial measures test would be employed.  Responding to the confusion expressed by Members, he said that the provisions of the Bill made no reference to provincial or local institutions of state.

Ms M Boroto (ANC, Mpumalanga) agreed with this view and stated that the national government communicated with the provinces, but this was not the only way communication would cascade down.  She proposed that the committee accept the tagging as it was, and the explanation of the Bill as a section 75 Bill - meaning it was an ordinary Bill with no effect on the provinces.

Mr W Faber (DA, Northern Cape) said he had pursued an independent legal opinion, and this was in opposition to that of the State Legal Advisor.  He believed the Bill would take away authority from the provinces and it was the committee’s due right as an NCOP committee to stand up for the provinces.  Different provinces used different languages and therefore this should not be a national issue.  He firmly believed the provinces should have a say and strongly suggested that the Bill be looked at again and re-tagged.

Mr S Plaatjie (COPE, North West) said that the use of official languages by the national government was mainly for communication and correspondence with citizens.  However, if one narrowed oneself to three languages, what then happened if one had to communicate with a province where those languages were not majority languages?  He then asked if Section 6.4 of the Constitution did not suggest concurrent functions at both levels of government.

Dr Loots said that nothing in the Bill prevented provinces from legislating to give effect to their own provincial mandates, and that the Bill did not speak to provincial competence. The Bill was subject to the Constitution and had to take into consideration usage, regional circumstances, and practical application. The Bill said at least three languages must be employed with due regard to the constitutional requirement to take into consideration regional differences, as the Bill could not be interpreted in a vacuum.

In regards to concurrency, the schedule 4 considerations were a very important issue but were left unqualified.   This allowed for flexibility, as the context and implementation at the national level would be broader, while any future provincial legislation could elaborate on local issues. It was not intended to take away or limit the provinces in any instance. The application of the Bill had to take due regard of the standards set by the Constitution.  Future problems would not necessarily involve the legislation, but the practical application by officials. It was noted that the Bill allowed for complaints, but it was impossible to prevent problems with application.

Mr Ncolo noted that the Use of Official Languages Bill did not prohibit any province from legislating on language policy, as long as it did not contradict the national Bill.  Clause 4 stated that if a particular language was not available in a given department, then that department had to have a policy to attend to the needs of the person making an application whose language was not in use. For example, in the Western Cape, there had to be provision for translation of documents within a given period of time for languages not widely spoken there.  
Mr Faber disagreed, saying the issue was about the individual interpretation of the law.  This could differ greatly as to how it would actually be applied.   He was deeply concerned that provinces were being disenfranchised.

Mr M de Villiers (DA, Western Cape), referring to clause 6.1a, mentioned that the national language unit had to advise the Minister on language strategy and on the establishment of language units.  He wondered what the criteria for the Department of Arts and Culture (DAC) on these decisions would be. Were there certain obligations within the DAC?

Dr Mbulelo Jokweni, Acting Deputy Director General, DAC, said that this was mainly encompassed under clause 5b, which made sure language units were properly resourced to provide adequate functionality.

On clause 8d, Mr De Villiers raised the issue of problems with the Pan South Africa Language Board (PanSALB), the governing body responsible for language maintenance in the country, and wondered who then could adequately oversee that the Bill was being implemented according to schedule. How could the recommendations be enforced?

Ms Mncube said there was a need to pass the Bill so that even if the composition were altered, the structure should remain. She noted that people in organisations like PanSALB came and went, but legislation had to be the backbone moving forward.

Ms R Rasmeni (ANC, North West) said each and every Bill or Act had regulations that had been developed out of the initial legislation.

Mr Plaatjie expressed concern over the regulation of minority languages, and asked what the impact of this Bill would be on minority languages in terms of use and functions?

Ms Mncube said the provision of the complaint mechanism covered this issue.
Mr Ncolo responded that clause 4 described the policies that would be adopted in future, while 4.2d stated that the minister had to describe how the national public entity would effectively communicate with members of the public.  By implication, this meant that if one’s language was not among the languages chosen by the province, the policy had to explain how that would be addressed and services provided.
Mr Plaatjie said there was a need to understand the impact of the Bill for those people who spoke a non-preferred language, and asked what inconvenience the policy held for them.

Mr Ncolo responded that this policy had not yet been adopted and there was an assumption that DAC would come back to Parliament to flesh it out, as the Bill was currently meant only as a framework.

On clause 12.1, Mr De Villiers believed that there was no correlation between the Bill and the Public Management Finance Act (PMFA), referring to the exemption clause where the Minister, of his own accord, could issue an exemption to a public entity at the national level.

Ms Joyce Sukumane, Director: Language Planning and Development, DAC, noted that clause 12.1 said the Minister, through the application by a public entity listed in the PMFA in schedule 3a or 3b, gazetted the exemption of the national public entity.

A Member noted that in clause 7, it was stated that every department and entity had to establish a language unit.   The entity, as scheduled in 3a or 3b in the PMFA, could apply for exemption not to form a language unit.  If the minister gave an exemption, the entity then had to assign a senior employee to perform the functions of the unit.

Mr Ncolo observed there had been extensive discussion with the Department on this issue. Some entities had small numbers of employees or small budgets. That was why there could be an exemption, as there would be no budget to provide a language unit, in which case a senior employee had to be responsible for the same functions as a language unit.

Mr Plaatjie asked for more details on which entities, by size or composition, could be exempt from forming a language unit.

A Member pointed out that clauses 5 and 6 were talking about a national language unit within the Department of Arts and Culture to oversee other national units, and thus did not decide for the provinces. Likewise, clause 12 did not refer to the provinces, but to departments forming language units.

Dr Loots said it would have helped the committee if the legal advisors had printed out the schedule 3 which dealt with national entities and business enterprises, as subsections “a” and “b” were national, and had no provincial application.

After clarifying all clauses within the Bill for all members, and agreeing to the clauses, the Chairwoman announced that the Committee had agreed to the finalisation of the Bill.

The meeting was adjourned.