Draft National Language Policy Bill; Promotion of Multilingualism Proposal; Proposed Amendments to SANSALB Act

NCOP Petitions and Executive Undertakings

13 September 2000

Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

DRAFT NATIONAL LANGUAGE POLICY BILL; PROMOTION OF MULTILINGUALISM PROPOSAL AND AMENDMENTS TO THE PANSALB ACT

MEMBERS & PROVINCIAL LEGISLATIVE PROPOSALS SELECT COMMITTEE ; EDUCATION AND RECREATION SELECT COMMITTEE: JOINT MEETING
13 September 2000
PROMOTION OF MULTILINGUALISM PROPOSAL AND AMENDMENTS TO THE PANSALB ACT

Documents handed out:
Letter from Mr Vicky Beukes to the Committee clerk.
Memo from Van Niekerk on proposed amendments to the PANSALB Act (Appendix 1)
Memo from Van Niekerk on the Promotion of Multilingualism Bill (Appendix 2)
Response from Department of Arts, Culture, Science and Technology (Appendix 3)

Chairperson: Mr P Matthee (NNP)

SUMMARY
After finalisation of the National Language Policy Bill, the draft bill, together with the comments received from the various departments, will be forwarded to the Committee by the Department of Arts, Culture, Science and Technology. Time frames for the drafting of the bill will also be furnished within two weeks. PANSALB indicated a broad consensus with the language policy, although they had certain specific observations which are to be raised with the Committee once the policy and bill are available. Mr Van Niekerk (NNP) asked for permission from the Committee to draft an alternative proposal in the form of the Promotion of Multilingualism Bill, but this matter was also deferred. Broad amendments to the PANSALB Act were proposed and considered, the major point of amendment being enforcement mechanisms for PANSALB. These amendments are to be considered more fully at subsequent Committee meetings.

MINUTES
Briefing team: Advocate Christa Roodt, the senior legal advisor to the Pan South African Language Board (PANSALB), Mr M.B. Kumalo, Chairman of the board of PANSALB, Mr V. Beukes of the Department of Arts, Culture, Science and Technology and Dr Umkulisi, the Director of the National Language Services.

Progress report from the Department of Arts, Culture, Science and Technology on the Draft National Language Policy Bill
Mr Matthee indicated that at the last meeting of the Committee the Department had said they were busy with the drafting of the National Language Policy Bill. A letter from Mr Beukes informed the Committee that copies of the draft would be made available after approval by the Minister and the matter had therefore been postponed awaiting this information from the Department. Mr Beukes was invited to comment on the Department's progress in this regard.

Mr Beukes replied that the Department was still at the consulting stage and that the draft has been finalised and will be forwarded to all of the relevant departments. Comments have been received on the new South African Language Bill, and the Bill has therefore been kept back until the concerns raised by the Departments can be addressed, after which the Bill will be forwarded to Cabinet, which is expected to occur this year.

Mr Van Niekerk reminded the Committee that at the last meeting the Department had indicated that they were going to announce the new National Language Policy on Heritage Day (24 September) and said that it seemed that this would no longer be the case given the progress on the policy. Dr Umkulisi replied that the Department had placed time frames on the formulation of the National Language Policy but that the process of receiving comments from the Departments had delayed them. The Minister will announce the idea of the policy on Heritage Day but will not release the policy document.

Mr Van Niekerk asked to know what the Department's new time frames are. He said that when the proposal was presented the committee delayed awaiting the information promised in the letter from Mr Beukes, and this information has still not been received. Mr Van Niekerk again reminded the Committee that the Department, on 17 May, had stated that the draft bill was to be given to the Minister for presentation to Cabinet. This year's programme has no time slot for the bill indicating that it will certainly not be dealt with this year. Dr Umkulisi replied that new time frames could not be given until they were informed of the result of discussions at Cabinet. Mr Matthee asked if time frames could be given to the Committee in two weeks time, as they needed to know how to proceed. After consultation between Dr Umkulisi and Mr Beukes, Mr Beukes replied that the Department would inform the Committee of the new time frames in a letter within two weeks as Cabinet was meeting the following week. Mr Kgware (Northern Cape, ANC) said that the work done by the Department to date was tremendous and that while the Bill is in Cabinet's hands there is nothing that can be done. He felt that the Committee should appreciate what has been done so far, and is happy that the process had advanced this far.

Mr Van Niekerk was satisfied with the Department's offer of a letter within two weeks. He noted that the delay in the process was due to the fact that not all the Departments had commented on the draft bill and asked how many departments had not responded and which ones. He was concerned that if key departments had failed to respond the process could still be substantially delayed. Mr Beukes replied that a full audit of the comments received would be necessary to answer the question. Such an audit would be performed and the comments on the Bill and the policy published in the letter to be sent to the Committee.

Comments by PANSALB on the Draft National Language Policy Bill
Mr Kumalo presented PANSALB's comments to the Committee. He said that while PANSALB agreed generally with the Bill they had certain observations to make. The language policy divides all eleven languages into four categories, coupling certain of them together. PANSALB was unhappy with the coupling of Tshivenda and Xitsonga into one language group as these languages have been the most marginalised in South Africa, and need independent development. Similarly, in Mpumalanga the siSwati and isiNdebele languages are grouped together in the Nguni language group and neither language will find an independent position at national level if left together. The same is true of the coupling of Sesotho and Setswana in the Free State. PANSALB therefore proposes changes to the four language categories contained in the language policy, although it is happy for English and Afrikaans to remain grouped together as both are European languages, neither of which has been marginalised. Mr Kumalo said that PANSALB also had 14 specific suggestions to improve the Bill.

Mr Lever (North-West, DP) interjected stating that while he would like to hear what Mr Kumalo had to say Members would not be able to appreciate his comments without having a copy of the final draft on the National Language Policy in South Africa before them. Mr Matthee agreed with Mr Lever and said that hearing of PANSALB's specific comments on the Bill should be postponed until such time as the Bill is made available, and that these comments should be directed to the Department.

Comments by Mr Van Niekerk on the Promotion of Multilingualism Proposal
Mr Van Niekerk began by saying that it was a pity that the Committee had not received the draft bill as promised in the letter from the Department and that there were problems getting feedback from the Minister. Mr Matthee interrupted Mr Van Niekerk to indicate that the National Language Policy was given in the submission of Mr Beukes and asked whether Mr Kumalo would like to continue, but Mr Beukes pointed out that the submission was only a comment on the policy, and not the policy document itself.

Mr Van Niekerk continued, agreeing with PANSALB that problems existed with the coupling of languages as proposed by the language policy from the Department. He said that he had spoken to the Minister who had agreed that this Committee and the National Council of Provinces (NCOP) should place an alternative on the table in cooperation with the Ministerial Advisory Committee. Mr Van Niekerk said that he had a broad outline of an alternative that would marry the two proposals. He asked the Committee to recognise the work of the Department and the input from PANSALB and the other departments, but also to recognise other processes that could assist in getting a bill to Parliament as quickly as possible. Considering that the Department was experiencing difficulties meeting the deadlines he considered it essential that this Committee and the NCOP take the initiative in advancing a proposal. Mr Matthee thanked Mr Van Niekerk, but expressed a need to move on and suggested he liase with the Department outside of the meeting in this regard.

An ANC member asked whether Mr Kumalo could not summarise for the Committee the 14 specific suggestions so that the members would already have them in mind when next the matter is heard. Mr Sulliman (Northern Cape, ANC) suggested against the Member's request, as the comments were meant more for the Department than the Committee. He said that once the Bill has been tabled in Parliament this Committee would have an opportunity to consider PANSALB's input on the Bill and the Committee should therefore wait. Mr Kgware (Northern Cape, ANC) agreed with Mr Sulliman, but said that Mr Kumalo's information was vital and should be communicated to this committee at some stage of the process.

Mr Van Niekerk noted that Mr Kumalo had said that PANSALB agree in principle with what was on the table and requested to know whether this was a decision by the Board of PANSALB. Mr Matthee asked whether the discussion could rather be deferred as it had been agreed that Mr Kumalo's comments would be heard at a later stage. Mr Van Niekerk indicated his dissatisfaction with this decision, but indicated that the meeting could proceed.

Briefing by Mr Van Niekerk on Proposals to amend the PANSALB Act
Mr Van Niekerk congratulated PANSALB on the work that had been done with the Bloemfontein Municipality, the Municipality agreeing to multilingual billing without recourse to legal action. But he stated that shortcomings exist in the PANSALB Act, the most notable shortcoming being in the area of the protection of language rights. PANSALB currently do not have the power to have their recommendations and decisions practically implemented. Item B of Mr Van Niekerk's memorandum suggests amendments to provide for enforcement mechanisms for PANSALB, and the Department is proposing nothing similar to this. This lack of enforcement mechanisms undermines PANSALB's status and detracts from its role as a Constitutional institution.

Mr Lever (North West, DP) asked whether proposed section 12(1)(c)(ii) of Mr Van Niekerk's amendments was not rather broad. If the damage referred to was actual damage, on what basis would this be assessed? Mr Lever commented that it seemed more like punitive damages, which are not part of the South African legal tradition. He also wished to know who would set the limit on such damages if they were indeed punitive.

Mr Lever further pointed out that 12(1)(c)(vi) seemed to be merely a duplication of 12(1)(c)(ii), and that the final part of 12(2) seemed to be a power that courts currently enjoy. Mr Lever questioned criminalising contravention of the Act, as proposed by s13. He was of the opinion that an interdict would be sufficient to ensure enforcement, and that the penalties listed in s14 (namely a R5000 fine or 12 months imprisonment) were not balanced against each other. Mr Van Niekerk responded to Mr Lever saying that these were not final amendments and were merely proposed amendments. Mr Van Niekerk stated that he was merely seeking permission from this Committee to draft final amendments, and once this permission has been given details can be discussed. Mr Matthee asked whether Mr Van Niekerk was nevertheless in a position to reply to the specific comments of Mr Lever. Mr Lever agreed, stating that as specific proposals had been placed before the Committee they were entitled to have discussion on them. Mr Kgware warned against losing the focus of the meeting. He said that the proposals had also been referred to the Select Committee on Education and Recreation for discussion at a meeting on Monday and he was happy to have Mr Lever attend the Monday meeting to discuss the proposals there.

Ms Botha (Free State, DP) asked whether PANSALB were expected to provide a general or a specific answer to the proposed amendments of Mr Van Niekerk as detailed proposals had been presented, although Mr Van Niekerk had said that they were general proposals. Mr Matthee said he hoped PANSALB could make a general response and asked for comment from Mr Kumalo. Mr Sulliman interjected saying that from a process point of view the Committee should be given time to study Mr Van Niekerk's proposals and they could be discussed later. Mr Matthee agreed to this suggestion.

Advocate Roodt replied for PANSALB. She noted that the PANSALB Act did not state whether PANSALB had juristic personality, unlike the Human Rights Council (HRC) Act where juristic personality was specifically legislated. Legal practitioners can interpret this silence of the Act in different ways and the Act should therefore be amended to make it clear that PANSALB is a juristic person. Mr Beukes said that the Department broadly supports PANSALB's view on the enforcement of decisions and that criminalisation could be an appropriate means of ensuring enforcement. Conciliation, mediation and arbitration are currently provided for in the Act and have proved unsuccessful.

Mr Matthee asked the Department whether they could not be more detailed in their reply as they could not be called to every meeting of the Committee. Mr Beukes said that the South African Language Bill makes provision for interdicts and court orders as it was essential to give PANSALB the power to enforce its decisions. Any suggestions that could improve the position of PANSALB would be considered by the Department including Mr Van Niekerk's proposed amendments to the PANSALB Act. Amendments to the PANSALB Act would be discussed at a later stage.

Advocate Roodt added that PANSALB would support two remedies: firstly a declaratory order from a court (which is covered by Mr Van Niekerk's proposals) and secondly an order for specific enforcement. PANSALB would not support a claim for punitive damages as these are not part of the South African legal tradition. The imbalance in penalties complained of by Mr Lever could be read as minimum and maximum penalties rather than as equal alternatives. Mr Lever again questioned the proposal of Mr Van Niekerk to criminalise infringements of the PANSALB Act as this would pose a large burden and cost on the criminal justice system. The PANSALB Act was not drafted with criminal sanctions in mind, and criminalisation can not be introduced without a full cost accounting analysis being performed. Mr Van Niekerk said that the financial implications would be noted.

Mr Matthee pointed out to Mr Beukes specific amendments had been proposed to the PANSALB Act. Ms. Botha, on a point of order, asked why Mr Matthee was entering into specifics if it had been agreed that these were merely guidelines. Mr Matthee replied that seen as the Department was present and had presented detailed proposals their comments could be heard now. The Committee could, together with Mr Van Niekerk, discuss them in further detail at another meeting, but the Department was not as easily called back. Mr Beukes said that the amendments were proposals from PANSALB and not from the Department or the Minister. The submission is not a draft bill and was not prepared as a draft bill and has not been prepared by the State law advisors. The submission is the result of an informal referral to PANSALB and is not the final comments of the Department. Mr Van Niekerk, on a point of clarity, asked whether Mr Beukes was saying that the Department had delegated their investigation of the proposals to PANSALB and that this submission was published by the Department but was not the Department's recommendations. Mr Beukes again said that the Department broadly supported the proposals, but not in entirety and that the Department wished to formalise the draft before commenting.

Mr Lever asked PANSALB about the two forms of remedy that they support. When Advocate Roodt spoke of specific enforcement was she referring to the contractual remedy or to an order in terms of s12(1)(c)(v) of Mr Van Niekerk's proposals. Advocate Roodt confirmed the latter saying she meant specific enforcement in terms of a judicial order to comply with PANSALB's instructions. Mr Lever stated that under South African common law remedies exist if court orders are infringed or disobeyed and that criminal charges or punitive damages are not necessary. Advocate Roodt confirmed that this was so.

Mr Maloyi (North-West, ANC) said that he was confused as to what the Committee was currently doing. He said that the Committee had not been presented with draft bills, but only with suggestions. He stated that the Department was meant to complete the process and then refer the bill to the relevant Committee. He asked whether time was not being wasted on this discussion as no details had been referred to the Committee. He proposed that the meeting be closed until such time as the Bill is referred to a Committee. Mr Matthee replied that the correct process was that proposals for legislation are brought to this Committee. The Committee would hear the views, consult with the relevant committee and then decide whether the member has permission to proceed with drafting a bill. Mr Kwgare asked if members of the Committee could be supplied with copies of the PANSALB Act to aid discussion at future meetings, and this was agreed to by Mr Matthee. Mr Matthee again asked if PANSALB and the Department could be fuller in their comments. They were unable to do so and Mr Matthee excused PANSALB and the Department from the meeting.

Workshop proposed on how to deal with Legislative Proposals
Mr Matthee suggested to the Committee that a strategy is needed for dealing with legislative proposals from the NCOP and members who are not legally trained, for whom the process can be particularly difficult and onerous. At this stage Mr Van Niekerk left the meeting. Mr Matthee pointed out that the process can be particularly complex and members need to know that they are able to bring legislative proposals from the provinces to the national level. He asked whether the Committee would support the idea of a workshop for the members of the Committee and the NCOP with addresses by the State Law Advisors on how to bring legislative proposals to the Committee. He also proposed the compilation of a practical guidebook for the NCOP and Provincial members.

Ms Thompson (Kwazulu-Natal, ANC) was happy with the suggestion as she said she had been unsure during this meeting as to what the correct process was. Mr Lever also expressed whole-hearted support. Mr Maloyi also agreed. Mr Matthee asked for any suggestions in this regard to be given within a week.

The meeting was adjourned.

Appendix 1:
Memorandum from Mr A Van Niekerk on proposed amendments to the PANSALB Act
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 must1 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, ~vhether 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 is respectfully requested to deal with the matter in accordance with the provisions of Rule 179 of the Council's Rules.

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 the following subsections before the present sub-section (6) of Section

11 and re-number sub-sections (6) and (7) accordingly-

'-'(6) Recommendations flowing from the stipulations of subparagraphs (1) and (ii) of paragraph (b) of subsection 5 of this section must be executed by the relevant state organs

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 violated1 adequate and appropriate action has not, in the opinion of the Board1 been taken thereon, the Board may -

(a) transmit its findings to the Portfolio Committee i~ 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 (1)(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.

Insert a new section 13 which reads as follows -OFFENCES

A person is guilty of an offence is he/she fails to comply with the provisions of Section 11 (iv) of the PANSALB Act.

Insert a new section 14 which reads as follows -PENALTIES
Any person convicted of a failure to comply with Section 11 (iv) of the PANSALB Act maybe sentenced to a fine of R5,000-00 or imprisonment for a period not exceeding 12 months.

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 ~ 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

It is hereby notified that the introduction of a Bill will take place in terms of Section P 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 is 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

Promotion of Multilingualism Bill

To provide for the promotion of multilingualism in South Africa; to give effect to the provisions of the Constitution on multilingualism and to provide for a regulatory framework for the imp-emendation of a national policy on language diversity, social justice, equal access to public services and programmes, and respect for language rights, and to regulate matters connected therewith.

PREAMBLE

WHEREAS section 6 of the Constitution of the Republic of South Africa provides for eleven official languages;

AND WHEREAS the national and provincial government are obliged to take legislative and other measures to regulate and monitor the use of the official languages:

AND WHEREAS boa governments must determine the language use and preferences of their residents:

AND WHEREAS all official languages must enjoy parity of esteem and be treated equitably;

AND WHEREAS the Bill of Rights (Chapter 2 of the Constitution) entrenches language rights with regard to education, culture, religion and the administration of justice,

IT HAS become necessary to regulate the following matters by means OT national legislation.

MULTILINGUAL POLICY

1. It is hereby declared that the policy of the South African government is to

(a) recognize multilingualism as a reflection of the cultural diversity of the South African population and to adopt measures for the promotion thereof;

b) recognize that language forms an integral part of person's identity;

c) promote individual empowerment through the equitable use of the official language and to ensure that all South Africans enjoy the freedom to exercise their language rights.

(d) ensure equal access no public services and programmes and to information;

(e) provide for the learning of South African languages by all South Africans with a view to promote national unity through the recognition of diversity.

RESPONSIBILITY FOR IMPLEMENTATION

1. The responsibility for the implementation of a policy on multilingualism shall reside with the Department of Arts, Culture. Science and Technology;

2. The responsible Minister shall promote a co-ordinating approach to the implementation of the policy with due consideration of the constitutional provisions on co-operative government in Chapter 3 of the Constitution;

3. The Minister shall take such measures as he/she deems necessary for the implementation of the policy, and without detracting form the generality of the aforegoing.

(a) Assist individuals, organizations and institutions that promote multilingualism;

(b) undertake research into the promotion of multilingualism;

(c) involve the business community and other private institutions in the implementation of the policy on all levels of society where appropriate and practicable;

(d) undertake and support projects and programmes for the promotion of muitlingualism;

conclude agreement with private or public institutions to facilitate the implementation of muitilingualism.

RESPONSIBILITY FOR IMPLEMENTATION
1. The responsibility for the implementation of a policy on multilingualism shall reside with the Department of Arts, Culture, Science and Technology;

2. The responsible minister shall promote a co-ordinating approach to the implementation of the policy with due consideration of the constitutional provisions on co-operative government in Chapter 3 of he Constitution;

3.The Minister shall take such measures as he/she deems necessary for the implementation of the policy, and without detracting form the generality of the aforegoing
(a) assist individuals, organizations and institutions hat promote multilingualism;
(b) undertake research into the promotion of multilingualism;
(c) involve; he business community and other private institutions in the implementation of the policy on all levels of society where appropriate and practical
(d) undertake arid support projects and programmes for the promotion of multilingualism
(e) conclude agreements with private or public institutions to facilitate the; implementation of muItilingualism

4. The Minister may appoint an advisory committee, which must advise the Minister on matters in connection with the implementation of this Act or any other relevant matter.

5 The implementation of the Act and any report that is submitted in terms thereof must be reviewed on an annual bee a by a Parliamentary Committee designated for this purpose.

4. The Minister may appoint an advisory committee, which must advise the Minister on matters in connection with the implementation of this Act or any other relevant matter.

5. A parliamentary Committee designated for this purpose must review the implementation of the Act and any report that is submitted in terms thereof on an annual basis.

NATIONAL GOVERNMENT

1(a) The policy of national government institutions on multilingualism shall be based on the principle that at least four categories of languages shall be used in such a way as to promote the parity of esteem in accordance to clause 6 (2) in written and oral communications by government;

(b) The implementation of this principle must take place in connection with core specific aspects of government activities in the exercise of legislative, executive and judicial functions, which aspects must be determined by a national policy on multilingualism.

2. With due regard to the provisions in the previous paragraph, national government institutions must formulate and adopt a language policy on the following matters to give effect to the provisions in clause 6 of the Constitution of the Republic of South Africa-

(a) internal oral communications within and different departments and sections;

(b) Internal written communications within and between different departments and sections;

(d) legislative and related publications, including Hansard;

(e) Government reports of national importance.

3. In the implementation of the above policy, government must take into consideration the following factors: usage, practicability, expense, regional circumstances and where necessary the preferences and needs of the community. The consideration of these factors may not be done in such a way that the implementation of the constitutional provisions on multilingualism is prevented or undermined.

PROVINCIAL AND LOCAL GOVERNMENTS

1. The provisions contained in the previous paragraphs dealing with national government, apply mutatis mutandis to provincial and local government.

2. Without derogating from the previous provision -

(a) Provincial governments must take into consideration regional circumstances in determining the use of languages on provincial government level;

(b) local government must adopt measures for the fulfillment of their constitutional obligation to determine and take into consideration the language use and preferences of their residents.

EDUCATION

1. Any policy which is aimed at the implementation of section 29 of the Constitution with regard to the choice of language must be preceded by an investigation into -

(a) the provision of mother tongue education;

(b) the provision of multilingual education in institutions where it is practicable and where the need for such a practice has been identified.

ADMINISTRATION OF JUSTICE

1. Pa implementation of multilingualism in the different sectors of the administration of justice is the primary responsibility of the Departments OT Justice and Correctional Services.

2. The performance of this function by the relevant departments must be preceded by an investigation into the implications of such a policy for an effective administration of justice service.

OTHER SECTORS

1. The Minister must undertake an investigation into and report on the implementation of a multilingual policy in -

(a) non-state institutions that provide a service to the public;

(b) the tourism industry;

(d) the public broadcasting media, and

(e) emergency services.

MECHANISMS FOR THE PROMOTION OF MULTILINGUALISM

1. For the effective implementation of multilingualism in the public sector, the Minister may, by regulation or any other appropriate measure, establish, regulate and co-ordinate the following -

(a) Language units in government departments at national, provincial and local level;

(b) A body for the accreditation of translators and interpreters;

Appendix 3:
DEPARTMENT OF ARTS, CULTURE, SCIENCE & TECHNOLOGY
FROM: MR VICKY BEUKES
HEAD: LEGAL SERVICES DACST

PRESENTED TO PRIVATE MEMBERS AND PROVINCIAL LEGISLATIVE PROPOSALS SELECT COMMITTEE MEETING

13 SEPTEMBER 2000

The Promotion of Multilingualism Bill, 2000
The Department supports the initiative taken by the member. However, the Department has already gone through an extensive process of drafting an consulting on the National Language Policy and Plan and the Language Practitioners Council Draft Bill. The Draft Bill submitted by the Membe essentially the same content as the draft bill proposed by the Department.

Comparatively speaking the following aspects of the private members bill covered by the Department's draft Bill:
- the Preamble
- Section 1 The Multilingual Policy
- The responsibility for the Implementation
- The responsibility of National, Provincial and Local Government
- Mechanisms for the Promotion of Multilingualism

The Departmental draft Bill also provides for the following:
- Guidelines to all organs of State for the use of languages
- A Rotational formula for maximising use of all official languages
- The recognition or establishment of Language Service Units
- Development of African Languages and Sign Language
- Cooperation
- Public Media
- Accreditation of Translators, Interpreters, Language Editors, Terminologists and Lexicographers

The Pan South African Language Board Amendment Bill, 2000
- Clause 11 should read as follows:

"(6) Any organ of state affected by recommendations in terms 0 subparagraph (i) and (ii) of subsection 5 of this section must execute the recommendations made."

- Clause 12 should be changed in accordance with the following:
· clause 12(1)(c)(i) should read "an interim or final interdict";
· clause 12(1)(c )(iv), concerning an audit of language policies or practices must stipulate who will undertake such an audit. Furthermore, a court should be able to give an order that PANSALB may investigate the research or the survey on which a language policy is based
· keep clause 12(2) as a permissive statement, i.e. "The court may give an order for costs in favour of the Applicant".

National Language Policy of South Africa
- The Language Policy and Plan aims to
(a) propose an enabling framework for promoting South Africa's linguistic diversity and encouraging respect for language rights within the policy framework of building and consolidating a united democratic South African nation;

(b)set out a coherent language policy and implementation plan in the parameters of the Constitution and in concert with broad social planning and transformation in South Africa incorporating the broad acceptance of linguistic diversity, social justice, the principle ol equal access to public services and programmes, and respect for language rights.

- The strategic goals of the language policy are to:
· Promote the equitable use of the official languages;
· Support economic development through promoting multilingualism;
· Provide for the learning of South African languages by all South African citizens through promoting national unity and multiculturalism;
Develop the official African languages and Sign Language/s of South Africa;
· Build capacity in the field of language and technology for all South African languages;
· Provide for a regulatory framework for the effective management of the use of the official languages in the Public Service.

DISCUSSION
1 The Language Policy and Plan for South Africa contains the recommendations of the Advisory Panel on Language Policy to th Minister of Arts, Culture, Science and Technology. It is the product of protracted consultative process which started in 1995 with the

appointment of the Language Plan Task Group (LANGTAG). The first draft of the Language Policy and Plan was based on the Langtag recommendations and was prepared after further consultations and investigations.

2 In December 1999 the Minister appointed the Advisory Panel on Language Policy to prepare a Final Draft of the Language Policy and Plan for South Africa. The members are:
· Dr Neville Alexander, Head: PRAESA, University of Cape Town and former chairperson of LANGTAG
· Ms Zubeida Desai, chairperson of PANSALB (1999)
· Prof. Nhlanhla Maake, Department of African languages, University of the Witwatersrand
· Dr Langa Mathenjwa, chairperson of South African Geographical Names Council (SAGNC)
· Mr Dumisani Ntshangase, Juta Publishem
· Prof. Hennie Strydom, Department of Constitutional Law, University of the Orange Free State

3 Language policy
An operational mechanism is proposed in the form of the rotation of languages to ensure the equal treatment and parity of esteem of the languages concerned in accordance with section 6(3) of the Constitution.

All government structures, bodies supported by government and the private sector must use four categories of languages selected on a rotational basis, except in instances where -

(a) all eleven languages must be used; or
(b) the relevant organ of state or other institution can show that it is reasonably necessary to follow an alternative policy in the interest of effective governance or communication, i.e. the availability of documents in a particular language is essential for the stable and effective operations of government at any level. In such cases documents should be translated into the relevant language.

The categories of languages referred to above are -
(a) Nguni language group (isiNdebele, isiXhosa, isiZulu and siSwati);
(b) Sotho language group (Sepedi, Sesotho and Setswana);
(c) Tshivenda/Xitsonga; and
(d) Afrikaans/Eriglish.

International communication on the part of the government will be in English or the preferred language of the relevant country.

4 Implementation
The implementation plan of the Language Policy and Plan document suggests that -
4.1 Language units be established at national arid provincial level to deal with language issues of the specific department or province arising from this policy. These units would be involved with the implementation of language policy with regard to -
(i) intra- and inter-departmental oral communication in all spheres of government;
(ii) intra- and inter-departmental written communication in all spheres of government;
(iii) oral communication with the public;
(iv) written communication with the public, and
(v) international communication where applicable.

4.2 A Language Code of Conduct for Public Servants be implemented in order to render effective services to the public.
4.3 Language audits be conducted to facilitate informed decisions with regard to language policy.
4.4 Language awareness campaigns be run to raise the status of African languages and raise awareness on the role of language in society.
4.5 A South African Language Practitioners' Council be set up to accredit language practitioners and regulate the profession.
4.6 A Telephone Inlerpreting Service for South Africa (TISSA) be established to facilitate access to public services and programmes in the language of choice.
4.7 The African languages and Sign Language/s be developed by identifying priority areas and supporting existing structures and establishing new structures.
4.8 Appropriate technology be adapted and developed to facilitate the development arid use of South African languages.
4.9 The existing Language in Education Policy (LiEP) be finalised and implemented.
4.10 Adequate financial support be provided for the implementation of the language policy.

Draft SA Language Bill, 2000
The objects of the Act are -
(a) to give effect to the letter and spirit of section 6 of the Constitution;
(b) to promote the equitable use of the official languages of South Africa;
(c) to enable all South Africans to use the official languages of their choice as a matter of right within the range of contexts specified in the Act with a view to ensuring equal access to government services and programmes, and to knowledge and information;

BACKGROUND/ARRANGEMENT/DISCUSSION
The guiding principles of the Bill are the following:
(a) The promotion and accommodation of linguistic diversity must be pursued in accordance with the provisions of the Constitution and relevant international law;
(b) The marginalisation of indigenous languages and South African Sign Language must be progressively eliminated;
(c) The entrenchment of language equity and language rights must be pursued in such a way that national unity and democracy are promoted;
(d) The learning of South African languages, especially the indigenous languages, must be encouraged;
(e) Measures for the implementation of multilingualism must take into account the interests, needs and aspirations of all affected parties and their participation in language matters must be promoted;
(f) There must be intergovernmental co-ordination and harmonisation of policies, legislation and actions relating to the entrenchment and promotion of multilingualism.

The Act binds the state. When interpreting a provision of this Act, any person, court or tribunal must prefer any reasonable provision that is consistent with the objects of the Constitution and this Act over any alternative interpretation that is inconsistent with those objects. This Act takes precedence over inconsistent provisions of any other Act on language use, except the Constitution.

No provision of this Act must be construed in such a manner that the powers and functions or independence of -
(i) any state institution supporting constitutional democracy established in terms of section 181 of the Constitution or any other legislation, and
(ii) the Pan South African Language Board established in terms of the Pan South African Language Board Act, 1995 (Act No 59 of 1995),

are limited or undermined.

- Language policy
The application of the rotation of languages as operational mechanism of the language policy, as well as all measures taken in pursuance thereof, shall ensure the equal treatment and parity of esteem of the languages concerned in accordance with section 6(3) of the Constitution.

The national government must use four categories of languages selected on a rotational basis, except in instances where -.
(c) all eleven languages must be used; or
(d) the relevant organ of state or other institution can show that it is reasonably necessary to follow an alternative policy in the interest 0 effective governance or communication.

The categories of languages referred to above are -
Nguni group (isiNdebele, isiXhosa, isiZulu and siSwati);
Sotho group (Sepedi, Sesotho and Setswana);
Tshivenda/Xitsonga; and
Afrikaans/English.

The selection of any applicable number of languages in terms of section 5(2) of the Act shall apply to -
(a) legislative, executive and judicial activities of government in the national sphere taking into account all relevant factors, including usage, practicality, expense, provided that no less than four languages shall be used in the national sphere for the purpose of written communication in terms of section 5(6),
(b) legislative and executive functions on the provincial and local spheres, provided that regional and local circumstances shall receive due recognition in addition to the factors mentioned in section 5(5)(a);
(c) institutions referred to in section 4(1)(b) where applicable and provided that the nature, aims and activities of such an institution receive due recognition in determining an appropriate language policy.

Any alternative policy in terms of the rotation of languages shall be adopted and implemented in consultation with the Pan South African Language Board and comply with the provisions of section 6(3)(a) and 30 of the Constitution.

- Language units
Within three years after the commencement of this Act, a language unit must be established for each department of the national government and for each province.

Provincial governments shall take the necessary measures to support and strengthen the capacity of local governments to comply with the provisions of this Act and the constitutional provisions on language.

It is important to note that where an existing service on any level of government is already involved in language matters, the relevant department or province may assign such powers and functions to the service or unit as are necessary for the fulfilment of its obligations in terms of this Act and the Constitution.

A language unit shall have the powers and functions to -
(a) implement and monitor the implementation of regulations made in fulfilment of the obligations imposed by the Act;
(b) take effective and positive measures for the implementation of the national language policy as determined in section 5 of the Act in regard to the -
> intra- and inter-departmental oral communication in all spheres of government -
> intra- and inter-departmental written communication in all spheres of government;
> oral communication with the public;
> written communication with the public, and
> international communication where applicable.
(c) conduct language surveys and audits relevant to its sphere of activity with a view to assessing the appropriateness of its existing language policy and practice and to make recommendations for the improvement of the policy and practice;
(d) inform the public, through the effective dissemination of information, of the content and implementation of the language policy of the relevant organ of state;
(e) do all things incidental to or necessary for the proper fulfilment of the obligations referred to in paragraphs (a) to (d).

- Reports
A language unit shall report annually to -
(a) Parliament through the relevant department in the case of national departmental language unit;
(b) the provincial legislature concerned and the National Council of Provinces in the case of a provincial language unit;
(c) the Pan South African Language Board who may take any action provided for in section 8(1)(b) - (d) of the Pan South African Language Board Act, 1995 (Act No 59 of 1995).

- Regulations on a Language Code of Conduct for Public Servants
The Minister, in consultation with the relevant Parliamentary or other committees, may by notice in the Gazette, make regulations regarding a language code of conduct for public officials, after consultation with the Department of Public Service and Administration, and also regarding any matter which is required or permitted by the Act or that will ensure the effective enforcement of the Act.

- Development of the indigenous languages and Sign Language(s)
The Minister responsible for language matters shall take practical and positive measures for the development of the indigenous languages and South African Sign Language/s in particular to -
(a) identify priority areas for the development of these languages;
(b) support existing structures involved in the development of these languages;
(c) establish new structures and programmes for the development of these languages, and
(d) support cross-border projects for the development of these languages in the Southern African region.

ORGANISATIONAL AND PERSONNEL IMPLICATIONS
Within three years after the commencement of this Act a language unit for each department of the national government and for each province must be established.

FINANCIAL IMPLICATIONS
· Any appropriation of moneys for the implementation of this Act shall be done in such a manner that the progressive implementation of this Act is not undermined or unnecessary delayed and that all spheres of government receive adequate financial support for the progressive fulfilment of all obligations imposed by this Act and the Constitution.
· Provision should be made for the cost of establishing a language unit in each national government department and in each province. The cost of appointing a senior language practitioner is estimated at R145 000 per annum. Where an existing service at any level of government is already involved in language matters the relevant department or province may assign such powers and functions to the service or unit as are necessary for the fulfilment of its obligations in terms of this Act and the Constitution.

COMMUNICATION IMPLICATIONS
· A communication strategy will be required to raise awareness of the policy and publicise its implementation.

OTHER DEPARTMENTS/INSTITUTIONS/BODIES CONSULTED
· All national departments
· Language Indaba, 29 - 31 March 2000 (List is available).
· Pan South African Language Board

SA Language Practitioners Bill, 2000
The Bill proposes to establish the Language Practitioners' Council of South Africa; to provide to control over the training, accreditation, and registration of language practitioners; and to provide for matters incidental thereto

BACKGROUND
The objects of the Council are, in respect of language practitioners -
(a) to accredit;
(b) to register;
(c) to scrutinise and maintain standards; and
(d) to develop, implement, revise or amend a Code of Ethics to govern their conduct;
(e) protect their professional interests; and
(f) to protect the members of the public who make use of services provided by language practitioners.

· General powers of Council
The Council may-
(a) acquire, hire or dispose of property, borrow money on the security of the assets of the Council and accept and administer any trust or donation;
(b) consult and liaise with -
(i) SAQA in respect of the establishment of an ETQA in terms of the SAQA Act;
(ii) the Council for Higher Education in respect of specific training courses or programmes; and
(iii) the National Skills Authority in respect of skills development;
(d) promote and regulate professional liaison between registered professionals;
(e) promote liaison and co-ordination in the field of training and accreditation, both in the Republic and elsewhere, and to promote the standards of such training in the Republic;
(f) analyse and prioritise education and training needs in the language profession and make recommendations on the provision of such education and training;
(g) recognise accreditations of voluntary associations SAATI/AFRILEX),
(h) levy and recover fees from certain registered persons; and
(i) grant, refuse, ratify, withdraw accreditation.

· The Council must-
(a) determine strategic policy, and to make decisions in terms thereof, with regard to the Council and the registered professions, for matters such as finance, education, registration, accreditation, ethics and standards of professional conduct, disciplinary procedure, scope of the professions, professional matters and maintenance and development of professional competence;
(b) co-ordinate the activities of the Council established in terms of this Act;
(c) propose levels of competency testing and qualifications;
(d) monitor and audit achievements in terms of those standards and qualifications without itself being the provider of education and training;
(e) keep record of learning and registered language professionals;
(f) devise a manner of application for registration and consider applications for registration;
(g) to develop and implement the national system of registration for professional language practitioners;
(h) to develop and implement a framework for the accreditation of language practitioners at all levels;
(i) to develop, implement, enforce and revise the professional code of ethics governing the conduct of all registered language practitioners;
(j) perform any other developmental function on the provision of language services that may be required by the Minister;
(k) perform any other function aimed at the development of language professionals; and
(I) perform any other function necessary to attain the objectives of this Act.

Advise the Minister on-
(a) accreditation and competency levels in the language profession(s), to improve the provision and the quality of services rendered by language practitioners, through adequate education and training;
(b) standards, competency testing and accreditation in the language profession ~;
(c) relevant international standards;
(d) any matter falling within the scope of this Act.

Constitution of Council
The Council shall consist of the following members whom the Minister shall appoint-
(a) one person nominated by the department responsible for language;
(b) one person nominated by the Department of Justice;
(c) one person nominated by the Pan South African Language Council;
(d) one person nominated by the South African Qualifications Authority;
(e) one person nominated by the Council of Higher Education;
(f) six persons nominated by professional and other associations in the field of translation, interpreting, lexicography, terminology, language editing and law.
(2) Subject to the provisions of section 6, the members of the Council shall hold office for a period of five years, but shall be eligible for redesignation or reappointment for one more term.
(3) If any of the persons or bodies referred to in subsection (1) except the Minister, fails to make a designation or an appointment or to inform the registrar [in terms of subsection (3)] of the names of the persons to be designated or appointed by them, the Minister shall make the necessary designation or appointment, and any designation or appointment so made by the Minister shall be deemed to have been properly made in terms of the appropriate paragraph of subsection (1).
(4) The names of the members of the Council and the date of commencement Of their term of office shall be published by the registrar in the Gazette as soon as possible after the constitution of the Council.

ORGANISATIONAL AND PERSONNEL IMPLICATIONS
· Appointment of Registrar and Secretariat
(1) The executive functions of the Council must be performed by a Registrar appointed by the Director-General in terms of the Public Service Act, 1994 (Proclamation OS of 1994). [alternative: The executive functions of the Council must be performed by a registrar appointed by the Minister after consultation with the Council.]
(2) The registrar shall be a person with experience and expertise in matters relating to the functions of the Council.
(3) The registrar shall be appointed within 6 months after the Council has been constituted.
(4) The Minister may appoint an interim registrar for a period not exceeding 6 months.

(5) The Minister may appoint as many persons as he or she may reasonably determine to be necessary for administrative support and performance of the secretarial functions of the Council.

FINANCIAL IMPLICATIONS
· No new financial implications. Cost of the establishment of this structure will be covered within existing budgetary constraints.

OTHER DEPARTMENTS/INSTITUTIONS/BODIES CONSULTED
· All National Departments
· Language Indaba (List is available).
· SAQA
· PANSALB

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