SA Language Practitioners' Council Bill [B14-2013]: Department's responses to public submissions

Meeting report

South African Language Practitioners’ Council Bill: Department of Arts and Culture responses to public submissions
Mr Sibusiso Xaba, Director General, Department of Arts and Culture, said that 23 public comments on the Bill were made, and that the Department of Arts and Culture (DAC or the Department) had taken them fully into consideration and made an analysis, and the responses would now be presented. He noted that although the Department would not go through the Bill clause by clause, it would propose changes to the Bill in some thematic areas, as well as commenting on those submissions with which the Department did not agree.

Mr Given Mditshwa, Deputy Director: Legal Services, Department of Arts and Culture, said that his presentation would briefly discuss the constitutional mandate and context within which the Bill was, summarise the public concerns and the Department’s response.

He noted that the Bill sought to establish a juristic person, to be known as the South African Language Practitioners’ Council (the Council), in terms of the National Language Policy Framework, 2003. This legislation would facilitate effective implementation of the constitutional obligations towards multilingualism. All South Africans would be able to use the official languages of their choice as a matter of right within a range of contexts, as contemplated in the Use of Official Languages Act, No 12 of 2012, promulgated in the previous year. This aimed to ensure  equal access to information, knowledge, education, government services and programmes. The Bill also sought to regulate language practitioners and ensure that they were accredited, registered and offered their services in a professional manner. This, in turn, would professionalise and elevate the status of all languages and the associated services that were rendered by language practitioners.

Mr Mditshwa gave a brief background to the Bill, noting that section 6 of the Constitution provided the principal legal framework for multilingualism. Being conscious of the challenges involved in the efficient management of multilingualism, Cabinet had approved a National Language Policy Framework (NLPF) in 2003, and government was to adopt an implementation plan. As part of the phasing in process in implementing the NLPF, the Department had set up a National Language Forum (NLF), whose membership consisted of national, provincial and local representatives of government, as well members of the Pan South African Language Board (PanSALB) to monitor the implementation process and to drive advocacy campaigns. Thirteen NLF meetings had been held so far. The Use of Official Languages Act No.12 of 2012 had been promulgated. It provided for the adoption of language policies and the establishment of national language units in national departments of government, national public enterprises and entities, contained provisions around powers and functions of national language units as well as intergovernmental forums on language use.

In practice, however, there were still no services actually being delivered for the language practitioners needed in the work of language units, since there was neither a legislative instrument nor a service delivery vehicle to accredit language practitioners (who included interpreters, translators, editors, terminologists, lexicographers, document designers and human language technologists), their registration, nor to regulate the language profession by scrutinising and maintaining standards, protecting language professionals and the interests of members of the public. The current Bill was therefore drawn. In brief, he summarised the main purposes of the Bill as establishing the South African Language Practitioners’ Council, determining the objects, powers, duties and functions of the South African Language Practitioners’ Council, regulating the training of language practitioners, providing for the control of the accreditation and registration of language practitioners, and ancillary matters. Although not yet specifically stated, it was envisaged that this Bill would apply to all language practitioners in the Republic. An express provision to this effect was to be inserted in the Bill.

Mr Mditshwa said that Clause 1 provided for definitions in the Bill. Clauses 2 to 4 provided for the establishment of a juristic person for the protection and promotion of language practice in the Republic, namely the South African Language Practitioners’ Council. The functions of the Council were, amongst others, to develop and implement a framework for the accreditation of language practitioners at all levels. He reiterated that a clause would be inserted stating that a new clause would specify that the Bill applied to all language practitioners in the Republic. Clauses 5 to 14 dealt with the composition and membership of the Board. The Board consisted of at least eight but not more than 12 members appointed by the Minister. This chapter sought to provide for disqualification from membership of Board, declaration of financial and other interests of Board members, term of office of Board members, vacation of office, remuneration of members, meetings of the Board, establishment of committees of the Board and co-opting of Board Members. Clauses 15 to 18 sought to provide for the appointment of the Chief Executive Officer, functions of the Chief Executive Officer, resignation and removal of the Chief Executive Officer. This chapter also dealt with the appointment of staff of the Council.

Clause 19 empowered the Minister to determine a Code of Conduct for language practitioners and to issue policy directives to the Board. The Minister must, by notice in the Gazette, and after consultation with the Board, determine a Code of Conduct for language practitioners. Clauses 20 to 21 provided the procedure for application for accreditation of language practitioners and the issuing of accreditation certificates by the Council. Any person seeking accreditation must apply for this under the procedures set out in the Bill. Clauses 22 to 24 dealt with funding and financial management of the Council. This chapter also sought to provide for the audit of the financial statements of the Council by the Auditor-General. In terms of clause 24 the Board must table a report on the activities of the Council in Parliament.

Clauses 25 to 33 deal with keeping of registers, removal and restoration to the register and ancillary matters. Clause 28 provided for a right of appeal to the Minister by a person who was aggrieved by a decision of the Council. Clauses 34 to 42 set out the general provisions on security of confidential information held by the Council, dissolution of the Council, use of the name of the Council, delegations, regulations, transitional provisions, offences, penalties and commencement and short title.

Mr Mditshwa gave a summary of the concerns arising from submissions made by the public to Committee and the Department’s responses. The Committee received 23 written submissions and had held public hearings on 20 and 21 August 2013.  The comments that had been received from members of the public on the Bill could be summarised as follows:

Name of the Institution
He said the concern had been raised that the Bill should perhaps be called the “South African Language Professionals’ Bill” or the “South African Language Practice Professionals’ Bill”.
The Department did not have any objection to the proposed names.

Definitions and consistency in the use of terminology
It had been suggested that certain definitions be added, others could be limited or extended. Some suggestions were that the term “language practitioner” should be substituted for the term “language practice professional”. The Department was requested to ensure that there was proper consistency in the use of terminology throughout the Bill, such as more consistent references to ethics or conduct, or to language industry and language profession. The Department agreed that it would review the definitions and implement appropriate corrective action to maintain consistency in the use of terminology.

Application of the Bill
As indicated earlier, the Department conceded that it would specifically insert a provision that the Bill applied to all language practitioners (language practice professionals) as defined in the Bill, in South Africa.

Composition of the Council
Many submissions were concerned about the overwhelming representation of government on the Council, as opposed to stakeholders in the industry. Certain institutions requested to have permanent representation to the Council because of their inclusive representation of the language practitioners. A request had been made that the Department specify the various categories of the language profession where they would source representation to the Council, rather than merely saying the ‘language industry’, thus distinguishing between the various branches, such as translation services, interpretation and others.

The Department’s response was that it would review the composition of the Council. However, it was not in agreement with certain institutions having permanent seats in the Council, for the simple reason that organisations evolved over time. In any event, the Department had made provision for language stakeholder representation which catered for those respective institutions or organisations. It was agreeable to specifying the various categories of language practitioners in the definition clauses rather than in the clauses dealing with composition of the Board.  

Prerogative to designate a Chairperson of the Board and Deputy Chairperson
Mr Mditshwa said that a concern had been raised that this should be left to the Board members themselves, and not the Minister. The practice in state funded institutions had been that the Minister should choose the Chairperson, either in, or after consultation with the Board. The Department would amend the Bill to state that the Minister must choose these officials “in consultation with” the Board.

Pan South African Language Board
It had been submitted that the Council should exclude the Pan South African Language Board (“PanSALB”) from its composition as PanSALB had its own mandate. The Department, however, pointed out that whilst the Bill did not purport to duplicate the functions of PANSALB, language matters did speak directly to the PanSALB mandate. For this reason, it believed that PanSALB representation would be invaluable to the Council, formed an integral part of what the Board sought to achieve, and would provide seamless integration and progress monitoring of language matters.

Appeal
It had been submitted that the Council itself should provide for an appeal mechanism, rather than the Minister. The Department was of the view that because the Council would take the first decision, the appeal more correctly lay to a different body.

Special accreditation
It had been submitted that the Bill did not provide for special accreditation. However, the Department pointed out that detail on the manner, form and timeframes for submitting applications for special accreditation would be provided for in Regulations. These, for instance, could relate to accreditation for those who had qualified by experience only, or who were retired professions.

Separate and specific Code of Conduct
It had been suggested that the Bill must contain separate and specific Code of Conducts applicable to the various categories of language practitioners. The Department was of the view that would not be practical to have a Code of Conduct for each category individually. It was, however, prepared to look at the various existing codes adopted by various institutions and choose the best practice, taking into account practicality.

General comment
The Department reiterated that some of the concerns raised in public submissions, like prescribed fees, categories and levels of accreditation, would be addressed through the promulgation of regulations under clause 40 of the Bill. In line with legislation regulating other professions, the Department believed that the salaries of language practitioners should be dictated by the profession itself, and not legislation.

Discussion
Designation of chairperson and deputy chairperson of Board
Ms H van Schalkwyk (DA) asked for clarity on the designation of Chairperson and Deputy Chairperson of Board, pointing out that PanSALB was able to choose its own officials, and therefore it made sense for this Council to be brought in line.
 
Mr D Mavunda (ANC) said that the Department clearly still was in favour of the Executive, in the person of the Minister, choosing the Board Chair and Deputy Chairpersons. He asked for clarity on what “in consultation” meant and if it was a generally understood term.

Mr Mditshwa agreed that whilst the PanSALB Act allowed the Board to choose its own Chairperson, this Act was under review and the general feeling was that since these institutions were funded, the Department should have some control over their running. He told Members that “in consultation” meant that the Board would effectively discuss their preferences and then inform the Minister, and the reason for “in consultation” was to try to reach consensus.

Mr Xaba added that the PanSALB Act contained detailed provisions for appointment and it was quite an onerous process. The Department still maintained that it was preferable to have a Ministerial appointment, in consultation with the Council. If the appointment was left to the Council alone, the Council could equally choose to remove the Chairperson, which could be disruptive, and this was mitigated by Ministerial appointment.

Name of institution
Mr Mavunda noted the debate surrounding the name, but said the Department did not seem to have a clear view.

Mr Mditshwa replied that the Department did not see a particular distinction between a language professional and a language practice professional, so it held no strong view on any of the names. The definition would ensure that the elements were captured.

Mr Mavunda said that there was a need to opt for one or the other name.

Mr Mditshwa replied that the name of the Council would be the South African Language Practitioners Council, but when there was some disagreement expressed by Members, Mr Xaba suggested that the main content of the Bill should first be finalised, then the name settled.

Time frames
Ms T Nwamitwa-Shilubana (ANC) said she had not heard anything on the time frames for the Bill, which was of concern to her since the Bill had first been drafted in 1999.

Mr Xaba replied that once the Bill was approved implementation would begin quite soon.  

Ms M Morutoa (ANC) replied that the question had not been answered properly. She said that Mr Xaba had to be more specific about the time frames.

Mr Xaba replied that his hope was that the Bill could be finalised by end-September and referred to the House for passing.

Ms Morutoa was concerned about the Parliamentary programme and wondered if the Committee could complete the Bill this year.

The Chairperson said that there was no final answer on that, and all the Committee could do was continue.

Special accreditation
Mr D Mavunda (ANC) said it had been agreed upon in principle that those with prior experience, or retired professions, could be accredited, but what the Department proposed seemed to be limited to prior experience only. This needed to be clarified.

Mr Mditshwa replied that originally, when the Bill was conceived, it made provision only for those with degrees or formal qualifications allowing them to practise. It was agreed now that provision be included for those with experience but perhaps no formal qualifications, but this detail would be in regulations, as provided for in clause 2 of the Bill. The years of experience and other details would be set for the special accreditation category. The Committee would also need to decide whether retired practitioners should be catered for in the Bill, or regulations, and whether the years of experience should be stipulated in the Bill.

Dr Mbulelo Jokweni, Chief Director: National Languages Services, Department of Arts and Culture, replied that the purpose of the Bill was to bring about a credible Council, so it was not so much about prescribing in the Bill whether a person was considered to be a professional or had formal qualifications. It was the Council that was to set the standard for people who were to be accredited and registered. Some of the concerns raised (such as the position of those who had a great deal of experience but no formal training) would be tackled, but at a later stage. The Council was to set the standards, and for that reason it was important to set up a credible Council.

Dr Joyce Sukumane, Director:  Language Planning, Department of Arts and Culture, replied that the Bill would of necessity speak to who was a language practitioner, as distinct, say from a teacher, and because the Bill spoke to specific tasks, it would have to define who was regarded as a practitioner.

Mr Xaba agreed that the critical role of the Council was to monitor who was accredited and make sure that those accredited had the necessary qualifications, in accordance with the regulations, to practice as professionals.

Mr N van den Berg (DA) agreed, noting that the problem in the past was that non-professionals or those without the proper skills had been holding themselves out as practitioners.

Code of conduct
Mr D Mavunda (ANC) asked why the Department seemed to be opposed to having a Code of Conduct for each category of practitioner. .  

Mr van den Berg said that this issue must be carefully handled. The Board should not consist only of academics. Knowledge, rather than degrees, were required. There was a need to incorporate in the Bill “all the powers of the languages”. However, a person who was not an academic still had to be a profession, and it was not everyone who should be permitted to set themselves up as a language practitioner. The Council needed to be well guarded. It was important that the Committee set a good example in this Bill.

Considerations of submissions
Mr Mavunda said that the Department needed to state how it had considered the submissions and how decisions were reached.


The purposes of the Bill
Mr van den Berg asked who the ‘independent person’ would be, asking if this person would be from outside the language community. That person should be truly independent.

He said that the Language Practitioners Council would bring people closer to language. It was not meant to be a way to frighten people away, but should rather be seen as an instrument to advantage all languages and make all language speakers satisfied that their interests and profession would be promoted and represented. There was a need for all languages to be promoted, so all could be understood purely and correctly. The Bill would further promote multilingualism, as too often people failed to understand each other. This was a Bill that was important as people must recognise that attention was given to their language, that each language, and the information being conveyed in that language, was being clearly understood. A lack of communication could lead to misunderstandings.

Mr Mditshwa replied that the Department agreed that this was the essence of the Bill, to professionalise the profession and to ensure that language services were rendered in an efficient manner. There may even be training opportunities, as in other professions those practising in the field were able to offer services and training to those on the ground.

Composition of the Board
Ms van Schalkwyk questioned the concern that the Board was too heavily weighted with government representation.

Mr Xaba replied that the representation of government was being reviewed to achieve a better balance.

Salaries
Ms F Mushwana (ANC) said she had a concern that the profession, rather than the Bill, should dictate the salaries.

Removal of the Chief Executive
Mr P Ntshiqela (COPE) said he was happy with the provision for the appointment of the Chief Executive Officer, but asked about removal of this person, citing his concerns about the position in similar institutions in the past.

Mr Mditshwa replied that the Bill contained provisions in clause 17 around removal, including what would happen in the case of misconduct or poor performance, and labour relations would also dictate what should happen.

Constitutional mandate of languages
Ms M Morutoa (ANC) asked if paragraph 2.4 of the presentation was referring to the professional nature of the practitioners, and thought that a tighter definition for “professionalising” the language was needed.

Compensation
Ms Nwamitwa-Shilubana asked how those who could provide language services but were not ‘professionals in the field’ would be compensated, whether their salaries would be left to the market to decide, and what might happen to those who were perhaps not literate enough to participate in official meetings.

Mr Mditshwa replied that initially only qualified professionals were contemplated, because it was felt that when translations were done, they were done within context and translated correctly, and this would only be with the right meaning. The way to do this was by through regulation that ensured a person offered professional services. However, there was recognition that informal sector participants could also be recognised. He believed that salaries could not be prescribed and it came down to  negotiation.

The effect of different levels of government.
The Chairperson asked how far reaching the Bill would be in terms of provinces, and how this would affect the different levels of government.

Mr Mditshwa replied that it was incumbent to ensure that all work was of the highest standard and the provinces made sure the services were provided formally.

The Bill and education
The Chairperson said the Bill was silent on educators, especially at Basic Education level, and questioned if the Bill applied to them, and if they would need to be registered.

Mr Mditshwa replied if the Bill was to be extended to teachers then it needed to be extended to lawyers also, and he had not thought that this Bill was intended to cover teachers, although he could check with the legal advisors.

Mr Xaba added that the Bill was not seeking to cover everyone who “used” language, because that would include everyone, but rather to regulate those who used their language skills as part of their profession, such as editing, lexicography and the like. This was an important distinction. It sought to create a special profession of language practitioners, who would be held to a professional standard, in order to protect the public.

The meeting was adjourned.