Promotion of Multilingualism Bill; Pansalb Amendment Bill

Meeting report

PRIVATE MEMBERS LEGISLATIVE PROPOSAL AND SPECIAL PETITIONS STANDING COMMITTEE
18 September 2002
PROMOTION OF MULTILINGUALISM BILL; PANSALB AMENDMENT BILL

Chairperson: Mr P Matthee (NNP)

Relevant documents
Memorandum by Dr van Niekerk on Pan South African Language Board Amendment Bill (Appendix 1)
Memorandum by Dr van Niekerk on Promotion of Multilingualism Bill (Appendix 2)
Minutes of meeting of 13 September 2000 (includes proposed amendments as first tabled in 2000 and response by Department)

PANSALB delegates: Prof C Marivate, M Khumalo, H Strydom, S Sambo
Department of Arts and Culture: AM Beukes, JL Beukes

SUMMARY
The Committee met to reconsider the legislative proposals of Dr van Niekerk (Federal Alliance). These proposals dealt with language issues and the Pan South African Language Board. At the end of 2000, the Committee had decided that in light of the undertaking given by the Department of Arts and Culture that it was going to bring its on comprehensive bill dealing with language issues, the Committee would hold back on the matter to give the Department a chance to do so. The Department of Arts and Culture had failed to do so in the past two years and the Committee was disturbed that the process had taken so long.

The Department assured the Committee that the memo containing the language policy was awaiting Cabinet approval. Once approved, the Minister would ensure its translation into legislation. The Department acknowledged that the process of finalising language policy had taken a long time but they were working as fast as possible. The department had gone to great lengths to consult as widely as possible. The Minister believed that this was necessary owing to the sensitive nature of language policy.

The Chair requested that the Department submit in writing its exact position on the matter of Mr Van Niekerk's proposals within two weeks. PANSALB was also given two weeks to submit its position.

MINUTES
The Chair noted that only a few members were present as several committees were sitting at the same time, and members were attending other committees.

Promotion of Multilingualism Bill / Pan South African Language Board Amendment Bill
The Chair commented that Mr Van Niekerk had proposed these Bills which he noted had been before the Committee for a very long time. The last time the committee had sat on the matter, it had been decided that in light of the undertaking given by the Department, they would hold back on the matter to give the Department a chance to bring its own bill. Unfortunately, that has not been done. Mr Van Niekerk now proposed to put this bill back on the agenda.

Mr Van Niekerk addressed the Committee. He noted that his memorandum had been tabled towards the end of 2000. In March 2001 this committee had recommended that permission be given for the legislative proposal, subject to research being done on it. The Constitution has been complied with. The Minister of Arts and Culture, Mr Ben Ngubane, had been asked if he had received the proposed amendments. His answer had been to confirm the receipt of the proposals and to state that they were looking at them. They were yet to meet and discuss them. The Minister later said that there was no amendment planned on the Act. Therefore the requested amendment on this matter had failed to materialise.

The Chair asked where Pan South African Language Board (PANSALB) stood in relation to the issue.

Prof C Marivate of PANSALB stated that they had not prepared anything regarding the particulars of the current proposed legislation because they had only received the document that morning. They were therefore not in a position to give it attention. PANSALB said that it is aware of the proposed amendments as first tabled in 2000. They are therefore in a position to react to this document dated from 2000. Regarding the proposed amendments, the following sections are problematic in the PANSALB Amendment Bill proposal:
- Section 12(1)(a)
PANSALB said that although it appreciates the effort to empower it, this proposal will have the effect of dis-empowering it. In terms of the agreement between Department of Arts and Culture (DAC), DAC is meant to work on policy whereas PANSALB is to work on implementation. Therefore rather than a matter being referred to the Portfolio Committee, it must be referred to PANSALB.
- Section 12(1)(c)(vi)
PANSALB said that Mr Van Niekerk must explain why there is a repetition. It did not seem necessary.
- B The Objects of the Proposed Amendments
PANSALB said it is not clear which institutions are being referred to.

Regarding the Promotion of Multilingualism Bill:
- PANSALB objects to the Responsibility for Implementation section. They referred to the argument they had raised earlier that in terms of the agreement between DAC and themselves, they were responsible for implementation. The proposal would therefore disempower them. Point 3(b) and (c) must be amended so that PANSALB is empowered in terms of implementation and not DAC. Point 4 also disempowers them. The Minister should engage in this matter.

Mr Vicky Beukes from the Department of Arts and Culture commented that they did not have any objections except that Mr Van Niekerk should have linked the heading with the proposed bill on Language Plan and Policy. This empowers PANSALB to a greater extent. Therefore they would be happy if there is a link in this matter. With regard to Mechanisms for the Promotion of Multilingualism, he noted that Point 1(b), a body for the accreditation of translators and interpreters, already exists.

A committee member pointed out that the National Policy on Language had come to a standstill since 1995. The 1999 Language Bill had also ended nowhere. There had been no discussion between themselves and PANSALB on the bill. Senior personnel knew nothing of the bill. There should be a decision on the matter.

In reply, the Department of Arts and Culture noted that the Cultural Laws Amendment Act had been passed last year and that it had been decided to delay the language policy issue. The Minister had considered the van Niekerk proposals. DAC and PANSALB had discussed the amendments and documentation to that effect is available. The process of finalising language policy has taken a long time and the department acknowledges that. The department assures the Committee that they have gone to great lengths to consult as widely as possible on the issue. The Minister is confident that this was necessary owing to the sensitive nature of language policy.

Mr van Niekerk pointed out that at the moment the Committee was dealing with two separate issues and that it was necessary to split them.

The Chair agreed with this but added that it would seem PANSALB and the DAC had dealt with both proposals as one bill. He asked for clarity on the matter.

PANSALB stated that the Language Plan policy document formed the basis for the South African Languages Bill (SALB). Once that Bill has been passed, it would contain the aspects of the Languages Plan policy. It was pointed out that the proposed amendments only deal with a limited aspect, that is, enforceability.

Prof Marivate said on a point of clarification that in 2000 there was not a board in place at PANSALB. People who had attended meetings with the Committee were PANSALB members of staff. The discussions do not mean they had reached a decision.

The Department of Arts and Culture proposed as a way forward that the Cabinet memo will be dealt with in the normal process. Once approved, the Minister will deal with the issue of translating the policy as stated in the Cabinet memo into legislation - which will be the South African Languages Bill. The Minister is keen to have it done as soon as possible. They will consult with all the relevant parties.

One committee member agreed that the proposal had been long on the table and nothing had happened. The way forward is to wait for the process by the department to take its course. The department had said that the process takes long. The member suggested that they respect that.

Another member complained that it is not clear when and where they are going to see clarity on the matter nor is it clear what process is being followed. They are wasting their time because the proposals they make are not taken seriously. "This committee needs an explanation from the Minister"

The Department of Arts and Culture said that the proposals by Mr Van Niekerk were submitted to the Minister and he is still considering them. He is still currently going through the process with the Cultural Laws Amendment Bill. This is not to say that this is not important but it is because they are currently looking at a number of amendments. Mr Beukes assured the committee that the matter was being dealt with as fast as is possible.

Mr Van Niekerk insisted that each proposal must be dealt with separately. This process is taking too long. More than a year later the proposals are yet to be incorporated in a bill that is yet to be drafted. This is going to take another year or two at least. This matter is too urgent.

The Chair said that it appears that the proposals by PANSALB are specifically not discussed in the SALB and that they will come later. Is this the position? Secondly, in March 2001, a decision was taken that Mr Van Niekerk should go ahead because the process is very long, should he still go ahead? It is a point of concern that more than a year later the Committee is still talking about a matter that is yet to be acted on. The Committee needs clarity.

The Department stressed that the forthcoming SALB will be a watershed period in managing language policy in the country. The Minister wants in principle approval on the proposal for the language policy plan. The minute Cabinet approves it, the policy will be translated into legislation. The Minister has said all the related proposals should be put on hold until this is done.

PANSALB commented that the crucial element of the SALB is the rotation clause, without which it cannot go on.

The Chair said that they must skip the issue of rotation at this point and that can be discussed later. The main concern is the amendments and when these are going to be discussed.

The Chair requested that the department submit in writing its exact position on the matter of Mr Van Niekerk's proposals within two weeks. PANSALB was also given two weeks to submit its position. After these have been received, Mr Van Niekerk will submit his position.

In closing Mr Van Niekerk pointed out that the Language Bill has been coming since 1995. He emphasised that if the rotation principle is not accepted, there will be a problem because there is no Plan B. The committee must continue with a Plan B, because as it stands, the delay means that English is becoming the language of South Africa - and it is not.

Appendix 1:
Memorandum by Dr van Niekerk on Pan South African Language Board Amendment Bill

MEMORANDUM
It is hereby notified that the introduction of a Bill will take place in terms of section 73(4) read with section 76(2) of the Constitution. In terms of Rule 178 of the Rules of the National Council of Provinces a member must, for the purpose of obtaining permission for such an introduction, submit a memorandum to the Council which contains the following -
· Particulars of the proposed legislation,
· The objects of the proposed legislation, and
· An indication of the financial implications of the proposed Legislation, and, if so, whether the implications may be a determining factor in the consideration of the legislation
With a view to comply with these requirements the requested information is set out below and the Honourable Chairperson of the Council respectfully requested to deal with the matter in accordance with the provisions of Rule 179 of the Council's Rules.

A. PARTICULARS OF THE PROPOSED LEGISLATION

The following amendments to the Pan South African Language Board Act 1995 (Act No.59 of 1995) are proposed -Insert a new section 12 which reads as follows -

Other remedies
12(1) If within a reasonable time after a finding by the Board that a language right, policy or practice has been violated, adequate and appropriate action has not, in the opinion of the Board been taken thereon, the Board may
(a) transmit its findings to the Portfolio Committee in the National Assembly responsible for matters concerning this Act for an investigation of the matter and the taking of steps to secure compliance with the Board's findings;
(b) refer the matter to -
(i) the Public Protector if the non-compliance with the Board's findings relates to any impropriety of an official or functionary;
(ii) the Human Rights Commission if the non-compliance with the Board's findings involves a human right in Chapter 2 of the Constitution, or when there are reasonable grounds to believe that the complainant has been threatened or intimidated or made the object of discrimination because of the complaint or other involvement in any investigation under this Act.
(c) with the consent of the complainant apply to a Court for an
appropriate remedy, including -
(i) an interim order or interdict;
(ii) an order for the payment of any damages;
(iii) an order for the implementation of special measures to address the situation complained of;
(iv) an- order requiring the respondent to undergo an audit of language policies and practices;
(v) an order to comply with the findings of he Board;
(vi) an order for the payment of damages.

(2) Where. in an application in terms of subsection (4)(c} the Court is of the opinion that an official, a functionary or an organ of state has -
(a) acted out of willful disregard for the findings of the Board;
(b) obstructed the implementation of the Board's findings; or
(c) failed to give adequate reasons for the non-compliance with the Board's findings,
the Court shall order that costs be awarded to the applicant.

B. THE OBJECTS OF THE PROPOSED Amendments
Since practice has shown that the findings of the Pan South African Language Board are easily ignored in view of a lack of enforcement mechanisms, the proposed amendments aim at strengthening the powers of the Board. It is also in the interest of constitutionalism that organs of state, public officials and other institutions are made aware of the fact that there disregard for findings by institutions created by the constitution cannot be tolerated in a constitutional state.

C. FINANCIAL IMPLICATIONS
Since the proposed legislation merely deals with amendments to existing legislation financial implications need not be dealt with in terms of Rule

Appendix 2:
Memorandum by Dr van Niekerk on Promotion of Multilingualism Bill

MEMORANDUM