Western Cape People’s Bill: MPL Marais briefing

Meeting report

The Chairperson requested a moment of silence for quiet reflection. Thereafter, it was confirmed there was a quorum.

Western Cape People’s Bill [B4-2023]: briefing
Mr Peter Marais (FF+) presented the Bill saying it seeks to access the benefits and universally recognised rights of all people all over the world to self-determination, concretising it into South African law as it applies to the Western Cape specifically. This Bill hoped to start the process of activating section 235 of the Constitution and the International Covenant on Civil and Political Rights of peoples and minorities, which was already ratified by the South African government on 10 December 1998. The Bill got its name from the Western Cape Constitution, which said, “We, the People of the Western Cape”, in contrast to South African Constitution which read, “We, the people of South Africa.” In accordance with customary international law and the Constitution, the people of the Western Cape shall be entitled to exercise the right to self-determination and to provide for matters incidental thereto.

The Western Cape is a region where there were successive waves of immigrants arriving. For that reason, when drafting the Western Cape Constitution, as the only province in South Africa with its own constitution, three groups were recognised in terms of language, which was Afrikaans, English, and isiXhosa. The majority of people in the Western Cape spoke Afrikaans, unlike in other provinces, and the Western Cape was happy to associate with Afrikaans. Minority groups are disproportionately imbalanced in the Western Cape – it is not the case where one group rules and dominates others. As the protection of minority rights is an established principle of constitutional democracy and international law, there is no reason why the Western Cape should not access the benefit of self-determination.

The current government system substantially prevents the people of the Western Cape from being governed according to their democratic will and therefore precludes them from effectively exercising their right to self-determination. There was thus a need to provide democratic mechanisms to allow the people of the Western Cape to be governed according to their democratic will. The Western Cape people expressed in consecutive elections that they are different to other provinces. The people of the Western Cape wish to be recognised as being distinct from the people of South Africa as a whole, which will empower the people of the Western Cape to effectively exercise their right to self-determination.

The purpose of this Bill is to give effect to the spheres of government doctrine provided for in the Constitution. No government in South Africa is subordinate to another – all are by right entitled to determine their own affairs within the competence conferred upon them by the Constitution and within the framework of the provincial constitution. In the Western Cape, the people were religious people, musical people who loved singing Afrikaans liedjies, and sea-loving people. The Western Cape was distinct and everybody wanted to come to the Cape.

The sources of international law provided for in article 38(1) of the Statute of the International Court of Justice of 1946, which the ANC agreed to. The African Charter on Human and Peoples’ Rights was also ratified by South Africa on 9 July 1996, which stated that all peoples have the right to exist and that their right to self-determination is unquestionable and inalienable, and that they can freely pursue economic and social development according to the policy they have freely chosen. The Western Cape must thus be able to freely choose its own policies and not be dominated by a national majority that they never elected. The International Covenant on Civil and Political Rights was ratified by South Africa. The International Covenant on Economic, Social and Cultural Rights was also ratified by South Africa on 12 January 2015, which stated that all people have the right to self-determination, by virtue of which they can freely determine their political status and freely pursue economic, social, and cultural development.

The people of the Western Cape therefore recognised and identified that the Western Cape people shall be recognised as unique with their own culturally, linguistic, and ideologically distinct values. That is what this Bill is all about – accessing rights that already exist in the Constitution and internationally recognised in international covenant and laws. The Western Cape’s right to self-determination is not dependent on the discretion of a minister at national level but is based on both the Constitution and international conventions and law. It is a right which seeks recognition.

[See the video recording for detail].

Discussion
Mr T Klaas (EFF) said that he did not support this Bill. Firstly, the person that the FF+ had sent to present this Bill did not exactly speak about the Bill but spoke about Afrikaans and that they knew this was a rainbow nation country. When Mr Marais talked about Afrikaans, it was clear that he wanted the Western Cape to go back to square one where they wanted to have a province with their own language for the many people residing in that province. Secondly, if this Bill was for the Western Cape, why was Mr Marais always specifying a certain individual race? Now, Mr Marais wanted the Western Cape to be a state of certain individual people. The state that Mr Marais is talking about is not a true reflection of a rainbow nation. Mr Marais was sent to locate the Western Cape as a state. The FF+ want to locate the Western Cape as a country. This would cause people to leave the Western Cape because they would not be able to remain if it were to negate that the laws that they had fought and died for so they be abolished and not used anymore. Yes, it could be said that the Western Cape is covenant state but when it came to languages and race, it meant that the FF+ wanted to put their own state within another state and wanted to build a country within another country. He could not even dwell too much on this. However, honestly, the FF+ had to consult. When Mr Marais talked about this, what does it mean? Why does Mr Marais want only Afrikaans? Is it possible that it is the rainbow nation country that Mr Marais is talking about or only a certain race? How can South Africa base a state of race?

The Chairperson referred to the statistics Mr Marais produced that Afrikaans was the most widespread language used in the province. What is that based on? Can the Committee get some more information on from where that statistic came? Secondly, are we talking about self-determination with a view towards independence? What exactly is the goal of this Bill? He was unsure he fully understand that even though he had read the impact in the objects of the Bill

Mr G Bosman (DA) followed up asking what Mr Marais is asking with this piece of legislation. He had given the Bill a cursory read, and some items there were already enshrined in both the provincial constitution as well as the national Constitution. He asked Mr Marais to expand on the objectives of this Bill, and what he was asking this Committee to do.

Mr G Pretorius (DA) said he would not go into semantics, but when he read the Bill he read about independence, self-determination, and provincial autonomy. Those are three institutional concepts but he was not sure that these three [30:44 – 30:49 inaudible].

FF+ response
Mr Marais said that the answers to some questions were actually all in the Bill. He got the impression that Members did not read the Bill. Members came here hoping to get something to latch onto because anybody who read the Bill would not ask him what the Bill was about. He had never heard such a thing. He told Mr Pretorius that what the Bill is about was in the preamble to the Bill. If one read the Bill, you would know what it was about from the preamble to the Bill which said, “To formally record the will of the people of the Western Cape”, first of all, “to be identified as people who then, in accordance with customary international law, the injunctions of which are affirmed in the South African Constitution, shall be entitled to exercise their right to self-determination and to provide for matters incidental thereto.” Now, anybody who knew something about constitutional law and international law would know what the definition of self-determination was. He had expected Members to come to this meeting knowing what self-determination meant, and that he did not have to explain it. After World War II, a lot of countries under colonial rule broke away from the colonialists and they wanted to rule over themselves. Some became independent and some became self-governing, others sought federations and that battle was still going on.

The United Nations gave recognition to people not to be dominated minorities and not to be dominated by ethnic cultural majorities. People had the right to determine their own future, hence the word “self-determination”. The Soviet Union was also seen breaking up into 15 countries. India was seen breaking away from England as they wanted self-determination. Pakistan was seen breaking away from India, and Bangladesh from Pakistan. That was one form of self-determination but there were other forms. It could be regional self-determination. It could be trust areas, trust groups, like the Transvaal groups which South Africa had, which were missionary stations. Those people had the right to claim back their land which was held in trust on their behalf. They had the right to determine if they wanted to live under the municipality, if the government must hold their land in trust, or if the land must be assigned to them. Already that process was busy, as the ANC was busy with that process. He was speaking to the national Minister of Agriculture, Land Reform and Rural Development, Ms Thoko Didiza, and Deputy Minister, Mr Mcebisi Skwatsha, all the time about it. They were having referendums in all those 23 former missionary stations, which was now Transvaal land, asking them what form of self-determination they wanted. Were Members in this Committee so ill-informed as not to know that it was already ongoing? Self-determination was not necessarily secession – it was only one form.

Federal autonomy was another form of self-determination. People in a province or state determined their own future, their own laws, their own rights. He referred to the 51 American states, Germany, Belgium, the canton system in Switzerland, and even India. These were all places that had decided that the majority ethnic cultural group had no right to dominate the minority groups; that each minority with their own culture, language, and lifestyle, should have the final say over their affairs and not be dominated by the dominant group. That was self-determination. He thought Members would come to the Committee fully informed. He had never spoken about Afrikaans being the only language. He thought that even Mr Klaas had never read this Bill. The FF+ had said that all three languages had equal status in the Western Cape – English, Afrikaans, and isiXhosa. He was surprised that Members could serve on this Committee and had not even have read this Bill.

Further discussion
The Chairperson asked Mr Marais to answer his question on what the stats were based.

Mr Marais said that it was Statistics South Africa (StatsSA) which was the South African statistics department. He thought that the Chairperson might just inquire from Stats SA if what he was saying was true or not because it said that Afrikaans is the most widely spoken language in the Western Cape. Members could go to Bonteheuwel, Elsies River, Mitchell’s Plain, Atlantis, Mannenberg, or Delft and ask the people there what language they spoke. The majority of people in the Western Cape were coloured communities. Members could go to Bo Kaap and see what language they spoke – Afrikaans. He did not even need stats to tell him that.

Mr Bosman said that contrary to what Mr Marais was saying, some Members had actually read this Bill and they had also received quite a lot of correspondence from the advocacy group set up to advance the specific agenda. In the preamble to the Bill, it said that the Bill wanted to formally record the will of the people. Now what information does the Committee have that there is a formal record of the will of the people of the Western Cape for this piece of legislation? What type of research was done to identify what their will is? He also asked Mr Marais to talk to the Committee specifically on the sections that were already covered in the South African Constitution as well as the Western Cape Provincial Constitution. Is the Committee not duplicating aspects that are already in the supreme law?

Mr Marais said that formally meant it was written and was proof of the will of the people. That could only happen if there was going to be a referendum. It did not say in the preamble that they had already recorded the will. The Bill intended to formally record the will. The FF+ had a good idea of what that will was because they had done their own research but they wanted to formalise it. There was no better way to formalise people support than in an election – then it was formal. Formal recognition and recording meant the DA should call a referendum on self-determination. The Western Cape Provincial Constitution made provision for the Premier to call a referendum to formally record the will of the people on self-determination.

Mr Klaas said that he did not understand why Mr Marais had said that Members did not read the Bill. The Bill was with the Committee and Members were attending to the Bill. The fact of the matter was that the Bill needed the Western Cape to be on its own in the country. The FF+ wanted this thing to be implemented and it had no support.

Mr Klaas said that Mr Marais was first supposed to go on the ground and come with the views of the people - as he had been asked. Mr Marais had to prove to the Committee that the FF+ had done public hearings because this Bill came from the party. It did not come from the government. Mr Marais was supposed to bring evidence to the Committee. He cannot just come and say he knew because he had experience of leading for a long time. The Committee was not talking about the experience of leading, they were talking about what language Mr Marais preferred, which was the language that brought damage in the country.

Legal Advisor Comments on Section 235 of Constitution
Adv Andre Le Roux, WCPP Senior Legal Advisor, said it was a bit unusual for legal advisors to speak in the introductory briefing. Section 235 of the Constitution on Self-determination read, “The rights of the South African people as a whole to self-determination as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right to self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.” The Bill was concerned with self-determination , in fact, that term appeared 33 times in the Bill and the Memorandum on the Objects. Everybody here would agree that the purpose or subject matter of the Bill to provide for self-determination.

Now what the Constitution provided was that when it came to self-determination, this was something to be determined by national legislation. Contrary to what was being asserted in the Bill and the Memorandum on the Objects, self-determination was clearly not an exclusive provincial legislative competence. That was quite clear from section 235. In fact, section 235 made it very clear that self-determination was a national legislative competence.

One could have a long conversation about constitutional interpretation. However, one would deal with interpretation if there was ambiguity in the legal text and there was more than one reasonable interpretation. Firstly, he did not think that there was any ambiguity in what section 235 said textually. It was very clear that the Constitution said self-determination must be determined by national legislation. It said it clearly and explicitly – even if one were to look at the purposive interpretation approach, as the Constitutional Court would encourage the Committee to do. The Constitutional Court would also tell the Committee to look at the Constitution as a whole. It was quite evident what the Constitution was saying in section 235. It therefore seemed that this Bill was in the wrong legislature.

He did not think there was any question that the right of self-determination was recognised in section 235. It was quite clear that self-determination must be determined in national legislation. In that sense, he would suggest that this province or any other province does not have the legislative competence to make a law on self-determination. The Constitution makes it quite clear that that must be determined by national legislation.

Discussion
Mr Bosman wanted to go back to his earlier question on the will of the people and Mr Marais responded that it was the will of the people. Was Mr Marais speaking on behalf of his political party, because the FF+ received 1.6% of the vote in the 2019 general election. He would hardly consider that the will of the people. He thought that the Committee might need in its resolutions to ask for a specific legal opinion on the Bill based on what Adv Le Roux had informed Members, because they did need this Bill to fall within the functional areas of exclusive competence of the Provincial Legislature for the Committee to make any decisions on it.

FF+ response
Mr Marais said that he had wanted to give the FF+ Western Cape Provincial Leader a chance but the questions were so simplistic that he was going to give it a go. First of all, the FF+ did not disagree with Adv Le Roux otherwise they would not have referred to section 235. A first-year law student could have picked up that it must be determined by national legislation. But if the FF+ could first convince the national legislature that the will of the people in a referendum determined that they want self-determination and to be recognised as a people, only then would that kick in and they would approach national government to ask to pass such legislation. It was obvious. Nobody needed to tell the FF+ that it must be determined by national law – they knew. That was why they had written it in the Bill. Section 235 said it must be determined by national legislation, but it did not wipe out the right of people who have a common culture and language to self-determination. Section 235 just said what the process would be to achieve it.

So the FF+ agreed that it must be by national legislation, but they first had to set it in motion by proving that it was the will of the people to have self-determination. Mr Bosman kept on harping on about the will of the people. Mr Marais read out: “To formally”, not guessing, “record the will of the people of the Western Cape to be identified as a people.” The FF+ wanted to record that so the question in the referendum would become a record of what that will was. Mr Bosman spoke about how many votes the FF+ got. Mr Bosman forgot that the DA did not get 51% vote in the metros in Gauteng but only through the coalition of parties. Mr Bosman should not bring numbers into account here. The will of the people was not expressed through one political party alone. The will of the people could also be expressed through the will of five or six parties who had the same will.

Mr Bosman said that before the Committee drifted off this topic, he wanted clarity on the documentation that Mr Marais had earlier accused Members of not reading. In 5.4 of the Memorandum, it said that provincial election results had established majority public support for increased provincial autonomy. However, Mr Marais was now saying that the Committee should not take provincial election results into account. He was confused by that because, in the purest technical terms, a general election was a referendum. The people expressed their will for the political party that they chose to run the specific province. He must not insult the voters or insult Members when they were trying to engage. As a follow up question, on the consultation on the Bill prior to its introduction, the Memorandum said that the Western Cape Premier and the Western Cape government were invited to give input into the Bill from its conception. Can Mr Marais perhaps share what that input was from the Western Cape government and Premier?

FF+ response
Dr Cornelius Petrus Mulder, FF+ Western Cape Provincial Leader, said that he would try to assist to bring some clarity on some of the questions put to Mr Marais. First of all, he wanted to say from his side that he thought it was historic and very important that the Committee today dealt with a Bill such as this, because he would like to believe that the representatives in the Western Cape Parliament were there because they were looking out for and representing the will of the people of the Western Cape. That was what they were supposed to do.

Now when it came to this Bill, Mr Klaas had referred to the whole question of Afrikaans. He did not know why he was doing that because the Bill was quite clear. It was not a question of Afrikaans and creating self-determination for Afrikaans. It specifically referred to the languages recognised by the Western Cape Constitution. So it was not a question of Afrikaans or not Afrikaans. It may be interesting to note that the majority of Afrikaans speakers in South Africa were not white people – but be that as it may. The percentages came from StatsSA. It was common knowledge that the majority of speakers in the Western Cape had Afrikaans as their home language.

But the argument was not about a specific language. It was about accommodating the recognised languages as part of the whole concept of self-determination. He would think that the Western Cape Provincial Parliament would be very supportive that the will of the people of the Western Cape be assisted to be expressed. This Bill did not say that it represented the will. It said there should be a formal process where the will of the people of the Western Cape could give expression because of such a bill. He did not think there was any doubt as he did not hear anybody say that. There was acceptance of the fact that the peoples of the Western Cape did exist. He thought that was the reality. If one looked at the situation in South Africa – nine provinces and only one had passed a provincial constitution. Only one. The other eight provinces did not think it was necessary to have their own constitution. Perhaps his colleagues would not see it that way, but the mere fact that the Western Cape was able to pass such a constitution and that it was certified by the Constitutional Court was already an expression of self-determination.

Secondly, Mr Bosman referred to 5.4 which said that provisional election results have established majority public support for increased provincial autonomy. He thought that was correct because in the last provincial elections, the DA won the election was very strongly in favour of provincial autonomy. He remembered the posters “Own policing, Own rail services”. So, it was a factual statement that the majority of the population was in favour of at least autonomy. Autonomy was also a form of self-determination.

It was suggested that perhaps the FF+ should get a legal opinion. His view on legal opinions was exactly what it said – it was an opinion. If legal opinions were the final word, there would not be court cases.

On the points made by Adv Le Roux, Section 235 is not the provision that this Bill relied on. If one looked at the documentation, it did not say that the FF+ called on section 235. It referred to the fact that self-determination as a principle was recognised in the Constitution, but the emphasis was placed on international law and all the covenants that were being signed by government that had become part of our law on the exercise of the right to self-determination.

Then the other question was about what this was about. Is this about an independent state? Is this about secession? Nowhere in this Bill does it refer to any of those things. It rightly refers to the right to self-determination. If one did a study about self-determination, one would find that there were different forms of self-determination. It could be regional autonomy; it could be cultural decisions. If one looked at the Western Cape Constitution, it already made provision for that kind of self-determination. However, surely if one was interested in the will of the people of the Western Cape, then it would be up to the people in the Western Cape to express how far they would like to go or not go in terms of self-determination.

So the object of the Bill was quite clear. The preamble was quite clear saying it was necessary to record the will of the people. The Bill did not say what the will was, but there had to be a mechanism to record the will of the people to be identified as a people. Perhaps the Committee could express if they or do not see the people of the Western Cape as a people? The Western Cape Constitution recognised that. There was a clear indication that the Western Cape called its legislature a parliament and its members were members of parliament whereas the other eight provinces called it a legislature and members of the legislature. Unlike the South African Constitution where South Africa had 11 and now 12 officially recognised languages, the Western Cape Constitution spoke about three recognised languages. It seemed it was talking about the people here had opted for different mechanisms and structures. Then the Bill's preamble referred to “in accordance with customary international law, the injunctions of which are affirmed in the South African Constitution.” It then said what should come from this, “they should be entitled to exercise the right to self-determination and to provide for matters incidental thereto.” That was what the Bill was about.

He thought the question was if the Western Cape Parliament, who in its Constitution recognised the people of the Western Cape, see the Western Cape people as a people? Or does the Western Cape Parliament want to send a message to the people of the Western Cape that they do not recognise them as a people in their own right? If they said that the people of the Western Cape were a people and did not deny that. If they recognised that right, the people of the Western Cape were entitled to self-determination. The will of the people of the Western Cape would express the contents of what that self-determination meant. Then the majority could come along and say, “No, we do not want secession. We do not want a separate state. But we want federalism, or we want autonomy.” The ruling party in the Western Cape currently pushed the question of autonomy very strongly. A Bill was brought recently to the same Committee on more powers for the Western Cape. That was a form of self-determination.

However, if one wanted to be successful, they first needed to recognise that such a people did exist. The Committee should perhaps start there. He thanked the Chairperson for the opportunity. It was a very important and historical day that the Western Cape as a province was discussing this issue. On section 235, when the Constitutional Court certified the Constitution, the point it made was that the drafters of the Constitution had decided to keep self-determination open. That was why section 235 was framed in that fashion. The Constitutional Court, in its judgment, said that it was kept open by the political side of the whole process, because it was something that could be addressed or should be addressed through a political process going into the future.

Cape Independence Advocacy Group (CIAG) comments
Mr Phil Craig, CIAG spokesperson, said that Dr Mulder had provided a lot of clarification. However, he would just reiterate some answers to questions very simply. This was a very simple Bill and the Committee must not try to overcomplicate it. There were really only three components of this Bill. First, that a Western Cape people exist. While people may have different views there was the constitutional reality that the very first line of the Western Cape Constitution said, “We, the People of the Western Cape…” So, constitutionally, the Western Cape people existed.

Second, as a people they were entitled to self-determination. How? This was because it was known that the South African Parliament post-1994 had on three separate occasions ratified the right that all people had the right to self-determination and that included the Western Cape people. Those two things were just constitutional. This Bill was not changing anything there. It was just highlighting that these two constitutional realities existed. There were a Western Cape people and they had a right to self-determination.

Third, what this Bill then did was ask the Western Cape people through its elected Western Cape Parliament, if they wanted to exercise that right to self-determination. Here came a lot of questions about what the purpose of the Bill was. The purpose of this Bill was to establish if the Western Cape people wanted to exercise or not the right to self-determination.

The Committee had to understand what self-determination meant. Self-determination, when stripping away everything, simply meant: Do the people of the Western Cape want to be able to make decisions for themselves? Or are they willing to forego that right and accept decisions made by the South African people as a whole as an alternative? That was what the Committee was deciding here. The Western Cape Parliament was deciding if it wanted to claim the right for the Western Cape people to make decisions for themselves, which may include taking control of the police, taking control of fixing the railway systems, and creating federalism. Did the Western Cape Parliament want to claim that control? Or did they want to continue in the current system, allowing the people of South Africa as a whole to make those decisions for them?

In the situation where the Western Cape was now, where for 30 years the majority of Western Cape voters had never once been governed by the national government they had voted for. Therefore, at present, the Western Cape people were not exercising the right to self-determination. The FF+ and CIAG would move that the Western Cape would be much better off if they exercised the right to self-determination. He would be totally amazed if the Western Cape governing party would vote down the right to self-determination, having been elected to try to exercise the right to self-determination – albeit in a different way. The essence of the Bill was these three things.

He referred to section 235 because he had heard the comments of Adv Le Roux. The Committee should go back to those international charters that South Africa had signed and, of course, the South African Constitution recognised international law. The right to self-determination was undeniable. It was a jus cogens right in international law, and it was inalienable. Therefore, there could not be a situation where South Africa decided the Western Cape people did not have a right to self-determination. Therefore, whether section 235 appeared in the Constitution or did not was actually irrelevant, because all people had a right to self-determination. South Africa had already ratified and sworn to uphold that right.

The Western Cape people had a right to self-determination, whether it appeared in section 235 or not. Clearly, if the Committee thought through it logically and put aside legal brains for a moment, it could not possibly be that the national parliament decided if the Western Cape people had self-determination. Then it would not be self-determination, it would be determination. Clearly, the Western Cape Parliament had to decide on behalf of the Western Cape people if it wanted to exercise self-determination. The role then when approaching national parliament was how that would get carried out. If one were to assume that the Western Cape people voted in favour of exercising self-determination by taking control of their own police force because they were not happy with the current arrangement, then they had to propose that Bill in the National Assembly and they would exercise this self-determination that they claimed provincially but would exercise it nationally.

He hoped that explained those three points: The Western Cape people were a people, they had a right to self-determination, and what this Bill asked was if the Western Cape Parliament wanted to claim that right on behalf of the Western Cape people or if they wanted to continue to cede that right to the people of South Africa as a whole.

Discussion
Mr Klaas said that the more the FF+ explained, the more he felt that they were really up to something. One, self-determination was also the part that said autonomy. When talking about autonomy, it meant one was led under one's own leadership. The FF+ wanted to do their own thing under its leadership. What does it mean for him and others as the Western Cape would be controlled by it rather than what they were currently under. That was when Mr Marais talked about language. Then they said they were not talking about one language but honestly, the South Africa parliament had sat down and taken a decision about 11 languages. Now, they were talking about specific languages that they wanted and were not talking about Afrikaans now. The FF+ wanted as the [1:10:53 inaudible] to lead the Western Cape. That was what they had said all the time, “let the people of the Western Cape do their own will”. That killed, for example, the ANC. They had given the ANC Youth League the autonomy. This was where Julius did not listen to the ANC because the ANC Youth League believed that they had their own right. In the Western Cape, the province differed with other provinces even with licence number plates. They differed with other provinces with payments. In other words, the FF+ wanted something that would make those who came from other provinces to the Western Cape not feel comfortable. The FF+ was speaking very nicely about the Bill but it was divisive.

When one divided one's own people, there would follow other people who wanted to create their own places and they also had their self-currency. If the Western Cape were to do that, one would see that currency. Mr Marais was now trying to take the power. The province had approved its constitution. The other provinces were just lazy not to do that because they would be same as the Western Cape. The FF+ said that it was not only Afrikaans. There were a lot of languages here, more specifically there were 11, if the FF+ wanted to deviate from the 11 languages, it was clear that it needed that determination to be done by national parliament. Even to approve the Western Cape Powers Bill had to be determined by national parliament. Now, if the Western Cape allowed that to happen, it would be clear the following day that they would see people running away from their own Western Cape and lying to people. In conclusion, the FF+ was speaking about this thing very nicely but it was divisive.

Mr Bosman said that by arguing that if Members as representatives of the people of the Western Cape did not support this Bill, that they agreed that the Western Cape was not a people was a false equivalence. He thought that the people of the Western Cape were very clear in their identity as people from the Western Cape and people who resided in the Western Cape. The Western Cape had various pieces of legislation that protected that cultural identity of the people of the Western Cape. They had a Western Cape Cultural Commission as well as the Western Cape Language Commission that protected, advocated and ensured that those rights were protected.

Mr Bosman also thought that arguing that devolution equalled independence was another form of false equivalence, because it did not. The Committee needed to be mindful of the fact that they were not the only representatives of the people of the Western Cape. The Western Cape was represented in the National Assembly by parliamentarians from the Western Cape. The people of the Western Cape were also represented in the NCOP through their representatives in the NCOP. If legislation on a referendum needed to be made, as the Constitution outlined in section 235, that was a national competence. It could be done and it could be argued for in that House.

The Committee also needed to be clear that Dr Mulder did not place much faith and value in legal opinions, but they were important tools that Members used to guide their decision making. As a way forward, he proposed that the Committee get a legal opinion from Parliamentary Legal Services on the constitutionality of this piece of legislation, as well as on if it was within its provincial powers to make this type of legislation.

FF+ closing remarks
Mr Marais said that his closing remark was not only to this Committee, but also to the people out there who were listening in on social media. The DA’s Western Cape Provincial Powers Bill, which they had tried to get through this same Committee, spoke to the devolution of powers now held by national Ministers to provincial Ministers, because the argument was that the provincial Ministers could do it more efficiently. They wanted those powers such as Police and Transport, because the Western Cape government could do a better job. That was subsidiarity – which was also a form of self-determination – determining one’s own quality of policing and own quality of transportation. He would find it very difficult if the DA now turned around and said “although we wanted more powers, we are not going to support self-determination suggested by the FF+" because they also wanted more powers. That would be difficult for the voters to swallow. All he wanted to say was that this Bill was simple. The FF+ wanted to access a right that already existed in the South African Constitution – the right to self-determination. They also wanted to access rights given to them by international conventions and law which the ANC government had already ratified. The FF+ did not have to convince or sell it to them. It was now time to allow those powers to be activated.

Dr Mulder asked if he had understood Mr Bosman correctly as he did not want the Committee to take a decision on perhaps a misunderstanding. Did he understand Mr Bosman correctly to say that it was a fallacy to equate devolution with independence? Then he wanted to respond to that.

Mr Craig added that Mr Bosman did thankfully concede that there were a Western Cape people, clearly there was and they have a right to self-determination. If anyone were to argue that the Western Cape Parliament was not the correct place for the Western Cape people to exercise their right to self-determination, where on earth would it be? There was no other place that was specifically created in the Constitution to give voice to the Western Cape people. Clearly, the right to self-determination belonged within the Western Cape Parliament, because that was the elected assembly that exclusively represented the Western Cape people. If the Committee got to the point of a referendum on whatever issue, that only the Western Cape Premier was empowered to call a provincial referendum. Clearly self-determination in whichever form it was such as devolution, federalism, independence, belonged in the Western Cape Parliament.

Mr Gert Van Niekerk, FF+ Deputy Leader, wrapped up and referred to what Mr Klaas had stated. First and foremost, this Bill concerned the people of the Western Cape, not of the Republic of South Africa. Section 5 of the Western Cape Constitution pertained languages. For the purpose of provincial government the official languages, Afrikaans, English, and isiXhosa, were to be used. These languages enjoyed equal status. So, there was no “we, them, they”, there was only “us” in this. Further, if one looked at the preamble of this Western Cape People’s Bill, it clearly stated and gave recognition to all groups, such as Dutch, German, French, Malay, British, Xhosa, and other cultural groups. Then in line with the Western Cape Constitution, it gave recognition to Afrikaans, English and isiXhosa as the formal languages. As far as the stats were concerned, StatsSA stated that 49% of the people of the Western Cape spoke Afrikaans.

Mr Bosman said that he had never used the word “fallacy”. He has used the word “false equivalence”. He also had never said the WCPP did not have the exclusive rights to speak on behalf of the Western Cape people. However, the Committee firstly needed to acknowledge that they were all South African citizens. They were also people of the Western Cape and they could be both – many of them lived happily as both. The Committee needed to be very clear that South Africa was not a federal state. South Africa had a national legislative body; it had provincial legislative bodies and also local legislative bodies. The Committee needed to be very clear on that.

The Chairperson thanked everyone for their input.

Resolutions and Consideration of Bill
The Chairperson said that there was a proposal that the Committee request a legal opinion on the Bill. He asked if there was a support for this.

Mr Marais said that he would support that a legal opinion be sought. The Committee had done so with the Powers Bill so it was right that they do so with this Bill as well.

Mr Klaas seconded the legal opinion request as the Committee could not take a decision when there was dissatisfaction amongst Members.

The Chairperson asked for any further resolutions.

In reply to Mr Marais asking if Adv Van Niekerk was still in the meeting, the Chairperson said that he was not.

Mr Marais thanked the Committee. It was important that the Committee had discussed this because there were two bills and he referenced the DA’s Western Cape Provincial Powers Bill. The only thing now that stands in the way was that the Committee did not follow legal prescriptions and constitutional laws. He welcomed the Committee decision to refer the Bill to the legal advisors for comment. He would eagerly await that. He thanked the Chairperson for the way he had conducted this meeting, as well as those who had participated in the discussion. It was appreciated and welcomed.

Mr Johan Vermeulen, Procedural Officer, asked if there should be a timeframe for the request for a legal opinion.

Mr Bosman did not think that the Committee needed to give a timeframe. He thought that Adv Le Roux was quite studious in his approach and he would get back to the Committee as soon as it was ready.

The Chairperson agreed. He did not think that the Committee could give a timeframe for now. He would leave it in Adv Le Roux’s capable hands to furnish the Committee with the legal opinion.

The Committee meeting minutes of 28 July; 25 August; 1 , 15, 22 September 2023 were adopted as well as the Committee Quarterly Report (April – June 2023)

The Chairperson thanked Members for their attendance and discussion on the Bill and the meeting was adjourned.