Constitution Eighteenth Amendment Bill: DoJ&CD response to public submissions

Meeting report

The Chairperson welcomed everyone.

Apologies were noted.

Briefing by the Department of Justice and Constitutional Development (DoJ&CD)

Adv Tsietsi Sebelemetja, Office of the Director-General, DoJ&CD, stated that the 58 public comments had been forwarded to the Department. The Department had summarised the essence of the comments. The majority was in support of the Bill and were “eagerly awaiting” the amendment. There are some that have concerns but were in support and the Department’s response to these are included in the presentation.

Ms Regomoditswe Baloyi, State Law Advisor, DoJ&CD, took the Committee through the comments. Most of the comments were in support of the amendment. Almost all commentators noted that the recognition of South African Sign Language (SASL) as a 12th official language, would empower the deaf community, promote the inclusion of the deaf community and those who are hard of hearing in society. It would also improve access to social services, education, healthcare and the likes.

One comment said that SASL should be used in the workplace as well. The amendment of SASL as an official language was promoted on the basis that each department would make funds available to implement the amendment.

Another comment was from Mr Mlungisi Zwane. He noted that isiZulu, as used by the deaf and hard of hearing community in KwaZulu-Natal (KZN), both in speech and writing, had its Zulu culture, traditions, history, identity, and values, as well as clan names and praises. In his comment, he noted that ULimi lomQhwebo lwesiZulu (LQZ), was the home language of some users, as opposed to SASL, which was mostly English. The Department noted the comment, and the position regarding the comment of the Pan South African Language Board (PanSALB). The Department agreed that SL was not a universal language, acknowledged that each country had its own SL, and regions had dialects, much like many languages spoken all over the world. The Department was of the view that those comments did not necessarily necessitate changes to the Bill as it currently stood. That would be a matter to take forward in the development of a language once the amendment passed.

There was another comment received from C Lourens, of Lourens & Schwartz Attorneys Inc. The comment supported the amendment, but made a few comments. Those comments included: The factual position that English was the only official language, and that Government failed to actualise African languages’ official status via section 6(2) of the Constitution. A further comment suggested the adoption of a charter for SL with a few adjustments as a charter in terms of section 2(34) of the Constitution. That charter would give real content to the linguistic human rights and language rights of SASL users. The Department recognised that all official languages enjoyed parity of esteem, and there was no one official language that was seen to be above another. Further, PanSALB was constitutionally mandated to promote and create conditions for the development and use of all official languages. The development of a charter was not a matter to be addressed in the Amendment Bill, but it could be a secondary issue that was taken forward once the amendment passed.

There was also another comment from Professor (Prof) Theodorus du Plessis from the Department of South African Sign Language and Deaf Studies, University of the Free State (UFS). The professor noted that the officialisation of SASL would change little about the position of South Africa's community with hearing loss. He went on to say that there were already 11 official languages. That was more than the international norm of a maximum of three official languages. Practically speaking, it was an impracticable ideal in a country with many challenges. Adding a twelfth language to the picture and thinking it was workable bordered on “wishful thinking”. South Africa did not manage to make the 11 official languages work already. The committee that considered the request to officialise SASL (although it took them more than ten years) unfortunately did not properly investigate the desirability, especially the workability of this minority language as an additional official language. The officialisation of SASL is not the appropriate response to the acute distress of the community with hearing loss on various fronts, and that it does in fact create false expectations among this community about the status of a twelfth official language in South Africa. The request for the officialisation of SASL can be dealt with more effectively by the drafting of a separate language law for SASL in the same vein as was recently done for Dutch Sign Language (NGT) in the Netherlands. The Department noted the concerns raised. However, it was its view that the PanSALB is constitutionally mandated to promote and create the conditions for the development of all official languages and other languages recognised in section 6(5) of the Constitution. The recognition of SASL as an official language is a step towards realising the rights of persons who are hard of hearing to equal enjoyment of rights and human dignity. It will promote inclusion, substantive equality, and prevent or eliminate unfair discrimination on the grounds of disability.

(See Presentation)

Discussion
Dr W Newhoudt-Druchen (ANC) said it was a pity that the Department did not show its summary at the beginning of the presentation. Because the network was not good the previous week, she wanted to go back to Mr Zwane’s presentation from the previous week. She had mentioned to him that Members knew there were different dialects, and that there might be different dialects in the various deaf schools, and regional dialects. Members were saying to him that all of those dialects were incorporated into SASL. The dialects were acknowledged and respected as regional dialects. For all the time that the deaf community had been lobbying for SASL to become an official language, it had always taken dialects into account.

She observed that Prof du Plessis said that he was not speaking on behalf of UFS during the public hearings. Because she was struggling with her network, she thought that he was speaking on behalf of UFS. He clarified that he was not speaking on behalf of UFS. He was retired, so he was not speaking on behalf of UFS. She knew that the Department of SASL and Deaf Studies at UFS had been lobbying for SASL to become an official language. It had already started last year with promoting SL and teaching SL classes. She was surprised that Prof du Plessis, who was associated with UFS, but seemingly presenting the opposite view to UFS. The deaf community had lobbied for many years to make SASL an official language.

The Chairperson’s understanding was that Prof du Plessis was presenting in a personal capacity. If he was speaking on behalf of UFS, he would have mentioned the university. He was allowed to have views that were different from that of the institution.

Ms N Maseko-Jele (ANC) wanted the Department to clarify some aspects of SASL since she did not have much information on SASL. Based on the presentations, the Committee was talking about SASL, and Dr Newhoudt-Druchen had said that SASL considered the dialects, which related to Mr Zwane’s concerns. What was being officialised – was it English as a sign language? She agreed with the idea that SASL had to be officialised. The Department mentioned that the matters of developing other languages lay with the PanSALB. Up to where things were, at the point where SASL was being made official, what was being made official? The Department was saying that various issues would be sorted after the passing of the Bill. What had been happening to delay the issues, to the point where people such as Mr Zwane were unhappy about not having their dialect taken to a level where they were satisfied? How were the views of Mr Zwane and other commenters going to be incorporated? Perhaps that was where the answer might be. Her question also related to incorporating the views presented by Prof du Plessis, which advocated for a Language Charter more than making SASL a 12th official language. As far as Ms Maseko-Jele understood, the signs of SASL predominantly talked to English more than other languages.

Ms Y Yako (EFF) observed that the Committee spoke about how long the Bill had been coming, how unfortunate that was, and how it needed to expedite the Bill. The Department spoke of other layers of law that perhaps needed to be added to the Bill – had the Department thought of that? It would not be effective for the Committee to put out a Bill making SASL an official language if it was not going to fully cover everyone who would benefit from it. What were those laws? What were the loopholes that the Committee, as those legislating the Bill, needed to be aware of, to avoid passing a law that would not benefit those it was supposed to benefit?

Dr Newhoudt-Druchen responded to Ms Maseko-Jele. Before 1994, probably 30 or 40 years before 1994, deaf schools were set up in South Africa. There were 42 schools for deaf children. She was talking about the major schools: There was a school in Worcester, De La Bat School, which originally used British SL (BSL). BSL used the two-handed alphabet, then as time went on, the school started using the one-handed alphabet. St Vincent School for the Deaf was in Gauteng, and there was Fulton School for the Deaf in KZN. The schools were predominantly white schools, and in the past also used BSL. There was a school in Hammanskraal, Dominican School for the Deaf, which was set up by Irish nuns, who then brought Irish Sign Language (ISL) with them. Those languages had developed and changed over time from the original languages that were brought to South Africa. Mr Zwane went to a school in Durban, V.N. Naik School for the Deaf, during apartheid. Nobody wanted to assist that school with SL. The predominantly white schools did not want to implement SL. The principal and deputy principal went to the University of Gallaudet, which was her alma mater, and learned American Sign Language (ASL). Those teachers brought back ASL, and that was what they taught in the school. Today, ASL as used in VN School is completely different to the ASL used today. All of those languages were not the same as the original. BSL in Britain and what people used in VN School was completely different today. All of the languages that had developed in the schools had now developed to become SASL after 1994 when there was freedom of movement. The children could integrate more and interact more. As children interacted, the language developed even further. There was nothing like Afrikaans Sign Language or English Sign Language. There were regional dialects, as Mr Zwane said (e.g. LQZ). The dialect of LQZ was also within SASL. There had been requests for many years for SASL to be an official language. In the Constitution, SASL was recognised as a SL, but it needed to be what the deaf and hard of hearing community had been advocating for, which was that SASL be recognised as an official language. What Prof du Plessis was proposing was different from what the deaf community wanted, because SASL becoming an official language gave it the status of an official language, and not just another language. She hoped that Ms Maseko-Jele had gained some clarity, despite Ms Newhoudt-Druchen having to explain things quickly.

Ms Christine Silkstone, Committee Content Advisor, asked if there were consequential amendments the Department foresaw from the Bill.

Adv Sebelemetja built on what Dr Newhoudt-Druchen was saying and used the example of Sepedi, also known as Northern Sotho. There were different dialects within the language itself, but there was more of a common language that was studied in schools. The development of SASL came through a number of years, up to the point where South Africa had its own specific language. PanSALB had been given the responsibility via the Constitution to develop all languages. SASL was one of the languages which it would have to continue to develop to make sure that the recognition was not simply just to say that it was recognised.

With the submission by Prof du Plessis, the Department had recognised that he was a professor, but not that he was representing UFS.

In reply to Ms Yako, Adv Sebelemetja said that the issue of the charter was mentioned in the comment, and not necessarily in the Department's response, and it did not think that there was still a layer that needed to be built into the Bill, in order to incorporate sign language. If the Constitution was amended as is, South Africa would be recognising SASL. The issue of development was something that was dealt with separately by the responsible body, PanSALB.

The Department did not foresee any consequential amendments.

On Mr Zwane’s comment, recognising dialects would affect all other languages because there were dialects in all of the other 11 official languages. The Department’s view was that there was no need to make consequential amendments or any amendments to the Bill as it stood currently.

Members were satisfied with the Department’s responses. The Chairperson then suggested adopting the report on the Amendment Bill the following day.

There were no objections.

Adv G Breytenbach (DA) said that she had to take the Bill to her caucus, but she did not think there would be any objections.

Ms Yako also had to take the Bill to her caucus and did not foresee any objections.

The Chairperson asked if it was correct for the Committee to adopt the report on Friday 17 March, so that the Committee could have Thursday to get proper mandates from the parties. Members agreed to adopt the report on Friday. After the Committee had dealt with the issue of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) exemption certificate, then it would deal with the Committee report on Friday.

The Chairperson thanked the Department and the deaf and hard of hearing community for their participation throughout the Bill process, and for attending today’s meeting. The Committee would finalise the Bill on Friday, and it would then be ready to be debated in the House. He observed that a two-thirds majority was needed to amend the Constitution.

Adoption of Committee Minutes

18 November 2022
The minutes were adopted without amendment.

23 November 2022
The minutes were adopted without amendment.

25 November 2022
The minutes were adopted without amendment.

29 November 2022
The minutes were adopted without amendment.

30 November 2022
Dr Newhoudt-Druchen asked to correct point five (Other business), at the first bullet point. She asked “sign language” to be changed to “South African Sign Language”.

The minutes were adopted with the amendment.

12 December 2022
Dr Newhoudt-Druchen asked to correct point 3.4 on page two, to say “the Department of Mineral Resources and Energy is doing [...]”.

The minutes were adopted with the amendment.

27 January 2023
The minutes were adopted without amendment.

31 January 2023
The minutes were adopted without amendment.

1 February 2023
The minutes were adopted without amendment.

8 February 2023
Dr Newhoudt-Druchen noted that in the discussion, the last sentence did not make sense: “As the PPSA would not be a going concern without additional funds, the matter of the PPSA’s baseline would be discussed.”

The Chairperson clarified that “going concern” was an accounting term. Not being a going concern meant that one was technically insolvent.

Mr Vhonani Ramaano, Committee Secretary, said that the Chairperson was correct. He reformulated the sentence to read: “The PPSA would not be a going concern without additional funds.”

The minutes were adopted with the amendment.

10 Feb 2023
The minutes were adopted without amendment.

17 Feb 2023
The minutes were adopted without amendment.

21 Feb 2023
The minutes were adopted without amendment.

28 Feb 2023
Dr Newhoudt-Druchen had a correction under Adoption of Agenda, but saw that it was already corrected.

The minutes were adopted with the amendment.

1 March 2023
The minutes were adopted without amendment.

2 March 2023
The minutes were adopted without amendment.

7 March 2023
Dr Newhoudt-Druchen had a correction: Under point 2.1, it should be “Deaf Federation of South Africa”. Under point 3.3, at the third bullet point, on the second line, “the” was a mistake.

The minutes were adopted with the amendment.

8 March 2023
The minutes were adopted without amendment.

Other Committee Business

On Wednesday, 15 March, the Committee would hear the responses to the Maintenance Amendment Bill by the DoJ&CD. It would also adopt the Committee report on legal practice regulations.

It had the adoption of the report on the Constitution Eighteenth Amendment Bill on Friday, 17 March. It also had the briefing on the RICA certificate of exemption.

On Tuesday, 28 March, the Committee had an oversight visit to Mafikeng Rooigrand Correctional Centre and North West High Court in the North West province. The North West Judge President had confirmed that he would meet with the Committee. Mr Ramaano was still waiting for confirmation from Judge President Mlambo.

The Committee was supposed to meet with the Chief Justice on Friday, 31 March. The Office of the Chief Justice proposed two dates – 26 April and 5 May. The Committee recommended 5 May to meet with the Chief Justice. The Committee would have wanted to go through the oversight report because the state of infrastructure would be clear in the report, and the Chief Justice would probably raise that point. The Chairperson asked the Committee Secretary to communicate the choice of date with the Speaker’s Office and the Office of the Chief Justice.

Members brought logistical issues to the attention of the Committee: Specifically, commitments that fell on the dates of the oversight visit, and from where they would be flying into North West province. The Committee had had to change the date of its oversight visit because of commitments in Parliament that were mandatory to attend.

Mr J Engelbrecht (DA) asked to be sent an itinerary. He would be in Gauteng at the time of the oversight visit.

The Chairperson observed that the Members who were also part of the Committee on the Section 194 Enquiry would also be sitting, which could affect the oversight visit programme.

The meeting was adjourned.