Cultural, religious & linguistic human rights: briefing by Cultural, Religious & Linguistic Rights Commission (CRLRC) & Pan South African Language Board (PanSALB)

Meeting report

Cultural, Religious and Linguistic Rights Commission (CRLRC) briefing on impact of ignorance of cultural, religious and linguistic rights and practices on access to legal services and justice
Ms Thoko Mkhwanazi-Xaluva, CRLRC Chairperson, noted that the third CRL Rights Commission was inaugurated in April 2014. The mandate of the Commission was to promote and protect the rights of cultural, religious and linguistic communities in support of Constitutional democracy. The Commission had to make recommendations to the appropriate organ of State regarding legislation that impacted on the rights of cultural, religious and linguistic communities. The Commission had to assist in the development of strategies that facilitated participation of such communities in nation building.

The Commission would increase the body of knowledge on indigenous matters to inform national policy positions. Key strategic areas were initiation schools, ukuthwala, ukuhlolwa, ukungenwa; diminished heritage; language marginalisation; reclaiming of indigenous oral history; animal slaughter legislation; grave recycling and demolition; the treatment of people accused of witchcraft; access to sacred sites, and the use of language in the workplace, courts and in education. Questions South Africans needed to ask themselves were whose culture and religion informed laws and access to legal services and justice, and whose language ideology permeated the legal process (especially in the context of insufficient human resources for interpreting and translation? There were indigenous customs and practices with respect to foster care, virginity testing and African beer brewing that were hampered by the law, and people were being criminalised. Challenges were inequality and related intolerance; racial discrimination, and Eurocentric legislation.

Discussion
The Chairperson remarked that South Africa was not an outpost to Europe. The country was an African state. Institutions that should advance democracy were merely lamenting this state of affairs. Parliament was the highest legislative body, yet there had been no reports on the kind of challenges the Commission had pointed out. The Constitution recognised shared languages. The Constitution had been certified by the Constitutional Court, and the language matter was referred to PanSALB. There was confusion about language in Limpopo, about whether the language used was sePedi or North Sotho. There was nothing to guide lawmakers.

The Chairperson asked what cremation meant to ordinary people in KZN. There was grave recycling, with dead bodies of unrelated people placed in graves. It was a religious matter to the people involved. In the local tradition, there was a figure named Thobela who resembled Jesus. He was a king who ruled on earth and then ascended to heaven. He would return. He gave instruction that men had to be circumcised. Circumcision was therefore a religious matter. Magaliesberg was in fact named after the rain goddess Mohale. There was a rain queen named Modjadji, who was responsible for rain making. It was part of religion. People’s beliefs were not being respected. Ramadaan and Christmas were recognised and acknowledged, but the rain-making month of October was not generally acknowledged. The question is: who are being legislated for?

The Chairperson continued that there were customs like Ukuthwala and Ukugenwa, where families came together and arranged for the brother of a deceased to look after the widow and her children. The custom of Ukuthwala had fallen into some disrepute, but the tradition demanded that the woman be brought in at night in a decent manner. But customs were being compromised because people had become Westernised. African activities were being criminalised.

The Chairperson remarked that no one would consider demolishing a mosque or Mount Moria in Jerusalem, because there was gold underneath the streets. Yet sites sacred to African people were demolished for mining to take place. Equality had been made subject to the financial interests of the West. In KZN thousands of women had openly defied the law about virginity testing, in front of the law makers. Their position was that the Constitution did not give birth to children. If things continued in that way, there would come a day when people would no longer vote. There could be a military government in five years, because civil government failed to respect tradition and religion. Swift and radical action was needed. There were tribes in South Africa in the seventeenth century that were ruled by women. It was not necessary for women to ask for their rights. The Question was why PanSALB had waited 20 years to prioritise local languages.

Pan South African Language Board (PanSALB) on impact of ignorance of linguistic human rights on access to legal services and justice
Mr Mbulungeni Madiba, Chairperson, noted that the mandate of PanSALB was to promote and create conditions for the development and use of all official languages, including the Khoi, Nama and San languages. The Board was mandated to investigate any alleged violation of language rights, and to summon any persons to give evidence before it. In terms of the Constitution all official languages had to enjoy parity of esteem. It also prescribed that every accused person had the right to be tried in a language that the accused understood.

Ms Nolitha Ntebe, Head of Linguistic Human Rights, continued that there were hindrances in that there was a lack of recognition of linguistic human rights. Forensic linguistics was a challenge. The police took statements from people in English or Afrikaans. The police would record what they presumed people to be saying. It was essential that statements to the police had to be made in a language that was understood. Only 25 percent of South Africans had English or Afrikaans as a first language. People were not aware of their language rights. African languages were idiomatic. When a person pleaded not guilty in a court, and the prosecutor asked that person to substantiate the plea, the context was lost. Pre-translation instructions were often negative. If isiXhosa speakers in Cape Town had understood what a “loo with a view” implied, they would have complained.

Ms Ntebe continued that isiXhosa speakers used the word “hai” (no) in a way that did not denote disagreement. That could cause misunderstanding in a court of law where it was taken to signify disagreement, and the person could be charged with perjury because what was said contradicted a written statement. The Linguistic Human Rights Tribunal was created to deal with such issues. But the Tribunal was not yet functional. It had been established in June 2013, and there was as yet no funding for proper complaints administration and management. Currently provincial councils were resolving issues. The Tribunal would base its research on complaints.

Discussion
The Chairperson remarked that there was confusion about where the baPedi were from. They were from Pretoria, but some were also from Botswana.

Ms Ntebe replied that fact-finding would be directly from the people. PanSALB was compelled to assist complainants. The PanSALB Act had to be revisited. The Tribunal had to be a biting dog, but there was no teeth without a budget.

The Chairperson remarked that PanSALB was not yet being concrete. The question was what had been done to make a difference. It had to be asked why there were so many educated people who did not know indigenous languages. They obtained degrees in Africa, without knowing an African language. One should consider withholding a degree if people do not know an African language. There had to be more sensitivity about diversity. There were many seSotho speakers in KZN. Likewise, it was assumed that everyone in the Eastern Cape were Xhosa, whereas some referred to themselves as Thembu or Pondo. He asked why PanSALB could not do what had to be done, without the Tribunal.

Ms K Lichfield-Tshabalala (EFF) remarked that there was cause for lament. The entities had to bring solutions. It was noted that the Board and the Commission had new members, but cultural, religious and language rights had to be protected. She had seen chakalaka advertised in Germany in 2006, but there was no acknowledgement of patent rights. No patent rights were paid to Africa. In Ermelo, Zulu was taught at school instead of Swati. Track had been lost of the people who called themselves amaHlubi. Private schools only taught in English and Afrikaans. Common English terms showed no understanding of local culture. The term “witchdoctor” ignored the fact that one was either a witch or a doctor. African culture was fused with religion. Challenges around the Eastern Cape Liquor Act had to be tackled. There were many issues but the entities were not coming with solutions. There were cross-cutting issues related to education and health. But the challenge was especially related to justice. A person had the right to an own culture and language.

Ms C Pilane-Majake (ANC) remarked that the entities had not said what was being done. Areas that overlapped with other mandates had to be identified. There were issues like gender equality that bordered on education and health. The entities had to pronounce on the contentious Traditional Courts Bill. The CRL Rights Commission mandate was nation building. There had to be cooperation with arts and culture and science in a cohesion building process. The question was whether the entities were responding to what South Africans were doing with their lives. There were habits of disrespect developing. A middle finger was publicly shown to the Deputy President. The question was who would give guidance, and who was to be the referee. In service delivery protests, the community was allowed to loot shops, and there was silence from every quarter. There had to be more action on the side of PanSALB and the CRLRC. Deliverables had to be shown.

The Chairperson remarked that the middle finger shown to the Deputy President had to speak to the public conscience. It could not be said in public what the gesture meant.

Mr B Bongo thanked the entities for good presentations. But it did not speak to what the Committee wanted to see. The middle finger episode was also a linguistic matter. What it said through gesture was against indigenous culture. Another meeting was needed. The entities had to say what their implementation plans were. Indigenous people were crying out about witchcraft. Cabinet had said that a law had to be drafted. People killed each other in Mpumalanga over this. There were people who advised against the legislation. The African understanding of witchcraft was different. Legislation had to protect people. Information had to be brought forward to base legislation on. Africans were not happy.

The Chairperson noted that he was from Kuroso. According to the English language he was a witch, but in fact his people were rainmakers. Magic could be used to create or destroy, but the law did not make that distinction. Laws were made for Africans by people who did not know African culture. Twenty years into democracy there was still a lack of legislation tailored to African tradition.

Mr M Maila (ANC) remarked that the presentations were disappointing, but still necessary. PanSALB and the CRL Rights Commission had not indicated whether they were ready for radical transformation. The revelations of African religions were taken for granted. There was a commercialisation of circumcision. Medical doctors were performing it at a price.

The Chairperson pointed out that the Marula tree was celebrated as sacred in Limpopo. Someone had bottled it for commercial purposes.

Ms M Mothapo (ANC) said that the predecessors of the current Commission had come to Limpopo. Cultural rights institutions had been around for 19 years. Things had to be done right from now on. There was research done by four Judge Presidents that had to be taken note of. Cultural and religious rights had not to be approached as if it were business as usual. The entities had to show the reason for their existence. The Commission and the Board were major stakeholders in the promotion of cultural, religious and language rights. There had to be very concrete plans and programmes.

The Chairperson remarked that language was about the soul. To deny language was to deny the soul of those who used it. A country like China had more languages than South Africa. The 11 local languages should be fully recognised and promoted.

Mr W Horn (DA) remarked that there was a shared concern about value for money. The CRL Rights Commission had to have a five year plan to promote social cohesion, tolerance and respect. The Portfolio Committee was not responsible for funding. Seventy percent of the budget had been spent on salaries. Ideas were needed to foster a uniquely South African solution to issues related to multilinguality, cultural practices and customary law. The Constitution called for the development of customary law, but the Bill of Rights was very secular. There was a tension between the two. African culture was based in group activities. There had to be a balance between individual and group rights. The question was how to foster tolerance and unity in diversity.

The Chairperson noted that marriage law was based on the assumption that a man would be married to one woman in community of property. If a man was married to 15 women, and one of them wanted to divorce him, community of property became impossible to apply. He agreed with Mr Horn that individual rights had to be reconciled with collective rights. But there was bias towards looking at that with Western eyes. Women had to have a right to own land. He himself as a traditional man had to hold land in trust for the family. The land was communally owned. It was not right to divide that land because two individuals got divorced. The CRL Rights Commission was the custodian of custom and tradition, and had to address such issues. There had to be African solutions to African problems. He related the story of the man who travelled the world seeking the most beautiful woman, only to find that she was living next door. There had to be an agreement that black and white were all Africans, and solutions had to be found. The entities had to create new structures and new salaries.

Ms Lichfield-Tshabalala said that the dignity of African people had to be restored. African people were marginalised in the dominant discourse about Africa. Pre-colonial literature about Africa was scant. At UCT, African Studies was only a postgraduate one year course. It had to be possible to do a full degree course with African Studies as a major. The maintenance of royalty in Africa was seen as stupid, but in Europe it was still maintained. Under the current marriage law, when a man dies who had more than one wife, only the one who comes up with the marriage certificate had claims to his estate. The Justice Department had to be approached.

Ms Lichfield-Tshabalala continued that one had to ask why the African medical system was referred to as “alternative”. African medical solutions had to be brought to the table. Health and education had to be advised. The question was who was being paid for what in the Commission and the Board.

Ms Majake remarked that a report was needed on overlapping mandates. The pride of the nation lay with the Board and the Commission. If 70 percent of the budget went to salaries, there had to be accurate job descriptions. It had to be clear how staff was utilised. There had to be full reports on what was being delivered.

The Chairperson concluded that the Committee did not doubt the reasons for the existence of the Board and the Commission, but it was felt that they could do more. The dignity and soul of the people were at stake. There had to be visible achievements. It was understood that the Board and the Commission were new, but both had access to documentation. There had to be reports on actions taken. There had to be another meeting in the near future, and the two entities had to come with priority lists, not new structures. It had to be stated what could be achieved in five years. The entities reported to another committee, but the Justice Portfolio Committee represented Parliament, and had authority over what the entities did. There had to be radical change, and the Committee wanted to see radical steps taken. The question was whether different structures were talking to each other. The Committee had confidence in the Board and the Commission. He was glad to see that the CRL Rights Commission had a female Chairperson.

The Chairperson asked that a written report on duplication be provided. Stakeholders collaborated with, had to be noted. Work allocation had to be reported on. The Board and the Commission had to attend to matters issuing from the deliberations of the day.

The Chairperson adjourned the meeting.