Language submissions: overview

Constitutional Review Committee

09 October 2020
Chairperson: Mr E Mthethwa (ANC, KZN); Dr M Motshekga (ANC)
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Meeting Summary

The Committee had received 58 public submissions in 2020. In this virtual meeting, the Committee Content Advisor gave an overview of past and present submissions requesting official language recognition for a specific language as provided for in Section 6 of the Constitution. Only one submission was received in 2020 proposing the recognition of Khilovedu as an official language. It was recommended that a legal opinion be obtained on this.

The Content Advisor explained what had been achieved by the Fifth Parliament Committee involving previous submissions on the Khilovedu, Nama, Khoi, San languages. The Fifth Parliament had also approved the desirability that Sign Language be added as a 12th official language in Section 6 of the Constitution. A constitutional amendment had not yet been effected by the Justice Portfolio Committee.

The Committee requested that the Content Advisor follow up with the Table staff of Parliament to ensure this happens as there was unanimous agreement at this meeting to make Sign Language an official language as soon as possible. Members raised concerns about the role of the Committee when the Constitution had established PanSALB to develop indigenous languages in South Africa. PanSALB would be called in to account. There were questions about whether the Committee should directly request submissions from the Khoi, Nama and San who may not be aware of the Constitutional Review Committee's request for public submissions. The Committee recognised its responsibility to ensure that minority languages are developed and protected. Other concerns were that language experts do not have an understanding of the history of the people and their languages. This raised questions about the value of their inputs.

Meeting report

Mr E Mthethwa (ANC, KZN), Co-Chairperson, said that the Committee would deliberate on language submissions proposing the recognition of Sign Language and Khilovedu as official South African languages and on the status and development of other indigenous languages.

Language Submissions: Overview
Ms Sisanda Sipamla, Committee Content Advisor, noted the Joint Committee on Constitutional Review (JCCR) is established in terms of Section 41 and Section 45(1)(c) of the Constitution. The Committee is also governed by Joint Rule 102(2) which requires the Committee to annually, before 1 May, invite public submissions for 30 days on any constitutional matter. The Committee must review the submissions and must take into account the proposals and make recommendations. The Committee received 58 public submissions for the 2020 year cycle.

This Committee only makes pronouncements on the desirability of proposed amendments to the Constitution – it is empowered only to undergo and initial review that acts as a feasibility assessment. This process assesses whether or not it would be favourable to ultimately amend the Constitution.

This report focuses on those public submissions that deal with official language recognition. Languages form part of Chapter 1 of the Constitution which comprises of the founding provisions of the Constitution. Section 6 pertains to languages that are recognised and used by communities in South Africa. Section 6(1) lists the 11 official languages. This is the bone of contention for these submissions which want other languages to appear in Section 6(1).

Ms Sipamla noted that Section 6(5) establishes the Pan South African Language Board (PanSALB) to promote, and create conditions for, the development and use of all official languages; the Khoi, Nama and San languages; and sign language.

In 2016, the JCCR adopted a report recommending that South African Sign Language be given official language status and Parliament passed this resolution. It is important to note that it is now within the prerogative of Parliament to allocate this matter to the appropriate Committee for processing the necessary Constitutional Amendment to give effect to the identification of South African Sign Language as the 12th official language under section 6(1) of Constitution.

On 17 February 2017, in response to submissions, the Department of Arts and Culture, the Commission on the Promotion and Protection of the Rights of Cultural, Religious, and Linguistic Communities (CRL Rights Commission) and PanSALB briefed the JCCR on the status of progress of the development of South African Sign Language, Khilovedu, Khoi, Nama and San languages. The Committee requested the stakeholders work together and return with a collaborative road map detailing the conditions created for the development and use of indigenous languages based on submissions to the Committee requesting official language recognition under Section 6(1) of the Constitution. The Fifth Parliament dissolved before these matters were resolved.

In 2020, the Committee received a submission submitted by SK Khutso on behalf of Valodagoma, a non profit organisation, advocating for Khilovedu to be officially recognised. The Committee did not receive any submissions in 2020 on the recognition of the Nama, Khoi, San and Swahili languages as official languages. It is advisable for the Committee to consult PanSALB on progress made in developing the languages.

It is recommended that the Committee consider consulting directly with submitters so that it can get more clarity on their submissions. This must be taken together with legal advice where necessary to ensure the Committee makes an informed decision on the favourability of making a recommendation for a language to be made an official language.

Dr M Motshekga (ANC), Co-Chairperson, asked if Legal Services could clarify if the Committee can intervene on behalf of the Khoi and Nama who are the most disadvantaged and may not be aware of this process. The overview is a good document that will be able to take the Committee forward. Legal Services must also advise according to the Constitution and Parliament Rules if the Committee can take notice of the fact that the African Union has recognised Kiswahili an official language. The presidents in the SADC regions have adopted a resolution that Kiswahili be an official language in the SADC region. Namibia and Zimbabwe are already teaching Kiswahili so that there is a common language within the SADC region.

Dr A Lotriet (DA) agreed with the presentation specifically on the sign language matter. She asked if Ms Sipamla could provide an update on Sesotho sa Leboa and Sepedi which was also raised in 2017. The Committee should also get clarity from PanSALB about the difference between an official language and a national language. It is important that not all national languages which maintain certain status are made official languages as this has great implications for legislation and other requirements.

Dr C Mulder (FF+) asked what does the term “official language” actually means? The current practical reality in South Africa is that only one language, English, is used officially of the 11 official languages. Legal Services must provide input about this concept because South Africans are not using all of the 11 official languages. Where is the Committee going with adding more languages when only one language is being used? Where will this process end because there are already so many regional and sub-regional dialects that are used but are not officially recognised. There is concern that the Committee is going in the wrong direction and that South Africa is ending up using English which is not in favour of some members.

Ms N Maseko-Jele (ANC) asked if the Committee had received Sign Language submissions. Sign Language is very important as the interests of people living with disabilities are being lost along the way. She wanted a response about national and regional official languages as Dr Motshekga.

Dr Motshekga replied to Dr Mulder’s concern about adding more official languages. What value is PanSALB going to add since the Constitutional Court referred the Khilovedu matter during the final Constitution drafting process to PanSALB in 1996 which has been unstable, lacking leadership, and has let the South African people down in discharging its mandate. What weight will the Committee be able to attach to a report from an organisation that has been unstable and unable to discharge its responsibilities for the past 25 years.

In response to calling languages dialects such as Khilovhedu being called a dialect of Sepedi, the people who deal with languages do not care about the history of this country. PanSALB has mistakenly lumped together and separated languages because of ignorance about the history of South Africa. People dealing with this must demonstrate their understanding and knowledge of the history of the people of South Africa. The languages that are recognised were recognised under Apartheid and were not languages that were disadvantaged by Apartheid. These languages also pre-existed colonialism in South Africa.

Dr Motshekga supported Ms Maseko’s concern about the importance of Sign Language. This issue should not still be up for deliberation as it is in use and clearly disadvantages many people when it is not recognised. Experts who review the submissions must understand that a language gives the expression of the soul of the people and should consider this in addition to the technical aspects that go into a report.

Mr T Mashele (ANC) welcomed the report by Ms Sipamla and recognised its value in crafting a way forward for the Committee. He supported Dr Motshekga’s point about deliberating on the recognition of Sign Language as this matter and the Khilovedu issue is far advanced. How should the Committee take this forward? How can this Committee step in and assist the interests of the Nama, Khoi and San communities? The Committee has a responsibility to assist people if they are disadvantaged. He supported the recommendations to consult and bring in experts. The core point is that this process must be sped up. There should be fewer consultations on Sign Language and Khilovedu and more focus on other languages that are not developed. It should be the Committee’s interest to develop and to make these languages official. Avoiding this will result in killing languages. The point is that as long as a language exists, the Committee has the responsibility to protect and promote it even if it is minority language.

Ms M Gondwe (DA) asked if the 58 submissions on constitutional amendments refer to the current financial year? How many of these submissions deal with recognition of languages? The 2017 briefing where stakeholders were required to collaborate and return with a roadmap on the language submissions, has there been follow up on this and is it still going to happen? What is the way forward with that process? On the desirability of Sign Language gaining official status and the prerogative of both Houses of Parliament to allocate this to the appropriate Committee, which Committee is being referred to in this instance? On Ms Sipamla's recommendation that the Khilovedu submission receive a legal opinion, what kind of legal opinion is being referred to here? She agreed that the recognition Sign of Language issue is long overdue.

Ms Gondwe asked for clarity on the reference to the Khoi, Nama and San in the report. Does this refer to the groupings or the languages because this is not the actual names of the languages. There must be clarity when referring to these groupings so that there is no confusion about the languages.

Ms Sipamla addressed Dr Lotriet’s question on why Sesotho sa Leboa was not referenced as an issue that had come through to the Committee previously. There was a difference of opinion on whether Northern Sesotho or Sepedi should be reflected in the Constitution. It was asserted that Sepedi was incorrectly reflected and that Sesotho sa Leboa should be reflected instead. This was not a matter that submitters were requesting for official language status, but rather the submission had requested that their language be reflected as Northern Sesotho instead of Sepedi. The Committee consulted extensively at the time and the experts advised that in the Sepedi version of the Constitution, the language is reflected correctly whereas in the English version of the Constitution, it is reflected in a different way. The matter was concluded. The submission had not been requesting official recognition of a language missing from Section 6(1).

PanSALB must be approached by the Committee as the Constitution established this language board to develop and promote these languages. The Committee will be performing a form of oversight by following up on what this institution has done to promote languages such as the Khoi, Nama and San languages as referenced in Section 6(5)(a)(ii) of the Constitution.

The reason there needs to be a follow up with stakeholders is because the Department of Arts and Culture, the CRL Rights Commission and PanSALB briefed the previous Committee which took a decision to come back with a road map of how far these language developments have gone. PanSALB has some of the budget to do this work which the Constitution mandates it to do, but this work was not in sync and collaborated. At some point the stakeholders needed to work together to promote these languages, such as assisting with developing dictionaries of the languages, and to show the Committee its plan in getting the work done. It was not able to perform some of the work it was required to do but the Committee has stepped in to request that it goes back to the drawing board to show the Committee how it plans on promoting and developing these languages as mandated by the Constitution.

Before the Committee makes a pronouncement on desirability, it needs to be clear that it has engaged the necessary stakeholders and heard directly from the submitter to arrive at the decision of whether it is feasible for Khilovedu to be recommended as an official language. The legal opinion will assist the Committee in making the decision and to ensure that decision is informed by legal advice.

The 58 submissions in 2020 refer to the current financial year. This year, there were no other language submissions except for the Khilovedu submission.

The Sign Language matter was concluded by the Committee. The Committee’s work goes only as far as stating if it would be feasible for an amendment to be made to the Constitution. It was concluded in 2016. She was informed that this matter was at the Table but there was no clarity if this was the National Assembly or the National Council of Provinces (NCOP) Table. The Table is responsible for allocating the CRC’s recommendation to the Justice Portfolio Committee because it does the drafting of Constitutional Amendments. Parliament must make the decision to refer this to that Committee so that the public hearings process can kick in.

Further questions
Dr Motshekga raised a concern about the concept of experts as these people do not know the history of the people and their languages. PanSALB must be called in for compliance but there is concern about the value it will add as it has not been doing the work. On Khilovedu legal opinion, he suggested this is not only a legal opinion but that the experts who are brought in to address the Committee must demonstrate they have an understanding and knowledge of the communities referred to. Most of the experts are informed by processes derived from the Apartheid regime. Associating language with particular regions is a concern. This raises problems about neglecting the development of languages that are concentrated in one region.

Dr Mulder explained that only some members of this Committee are language practitioners or language experts. The PanSALB was established for this work. This Committee should not do the work of PanSALB to judge if particular languages are able to be recognised. In practice, there is a problem with Section 29 and the Committee should look into this. Sign language is the most used language after English in South Africa and must be recognised as an official language as soon as possible. It is important to ask what does "official language" in practice mean? There needs to be serious adjustments made to PanSALB to ensure this work is being done. The main concern is the practical reality that the emphasis is on English to the detriment of other indigenous languages in South Africa. It is the Committee’s responsibility to report and to get PanSALB functional in the interest of all indigenous languages in South Africa. PanSALB remains a huge problem.

Ms Maseko-Jele referred to the Sign Language matter being concluded. She proposed that Ms Sipamla follow up on this to ascertain where this matter is as it has not been heard in the Justice Portfolio Committee. Sign Language must be recognised and implemented from primary school level up to university level. There is a difference between officially recognised and officially used because Sign Language is not officially used in schools. This must be dealt with as soon as possible.

Dr Motshekga added that not recognising these languages affects children's progress in schools. The issue of Khilovedu and Sign Language was not raised in the four years that he worked in the Justice Portfolio Committee. He supported the request that Ms Sipamla follow up on this so the Committee can take this matter forward. The question of language is about the soul and the development of people. If this is delayed due to a dysfunctional government institution, it could amount to a crime against humanity, with due respect.

Mr Mthethwa asked Ms Sipamla if the Committee is allowed in terms of the Constitution to persuade the Nama, Khoi, and San to provide the Committee with a submission even though it has not been submitted.

Dr Motshekga responded to Mr Mthethwa that as Parliament, the Committee should have a responsibility to assist people who are unable to help themselves. Ms Sipamla was asked to obtain a legal view on this.

Ms Gondwe supported the suggestion that the Sign Language matter must be followed up as soon as possible. The Committee’s job should not end after it has indicated the constitutional amendment is desirable for Sign Language to be recognised as an official language. The Committee must see this work through to the point where Sign Language is officially recognised and officially used. She requested Dr Motshekga’s intervention to ensure that this becomes a reality by approaching the Chairperson of the Portfolio Committee of Justice. The Committee must ensure that this matter is allocated to that Committee. It is important for this Committee to strive for this matter to be concluded in its Legacy Report at the end of the Sixth Parliament.

Dr Motshekga proposed having a meeting the following week to address outstanding issues. These matters are urgent because of the work that some institutions have not done.

The Committee agreed. The Co-Chairpersons would draft the programme for the next meeting.

The meeting was adjourned.

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