Multilingualism Draft Bill

MEMBERS' LEGISLATIVE PROPOSALS SELECT COMMITTEE; EDUCATION AND RECREATION SELECT COMMITTEE: JOINT MEETING
10 May 2000
PROMOTION OF MULTILINGUALISM BILL: BRIEFING BY MR VAN NIEKERK AND THE DEPARTMENT OF ARTS, CULTURE, SCIENCE AND TECHNOLOGY

Document handed out:
Promotion of Multilingualism Bill (Appendix 1)

Chairpersons: Mr P Matthee and Mr DM Kgware

SUMMARY
The Department of Arts, Culture, Science and Technology said the initiative taken by Mr van Niekerk is to be lauded, however, the Department has already undergone a comprehensive process aimed at formulating a national language policy, plan and legislation. The commitment of the Minister of Arts, Culture and Technology to promoting all the official languages in South Africa was reiterated. The draft legislation that has been as a result of this process substantially cover the proposal on Multilingualism by Mr van Niekerk. A brief comparison of similarities between the Department's draft National Language Policy Bill and the proposal initiated by Mr van Niekerk was offered. Advocate Buekes pointed out that the Department addresses all the concerns raised by Mr van Niekerk and, if any are left out, could easily be incorporated into the legislation planned by the Department.

MINUTES
Mr van Niekerk on Proposed Multilingualism Bill
Mr van Niekerk, Language Ombudsman in the NCOP, said that he has made the proposal available in four languages: English, Afrikaans, Setswana and isiZulu. He stated that the proposal carried three sections: the motivation part, the details of the Bill, and the financial implications of the Bill. The Bill was not born out of a confrontational approach, but out of a desire to execute the Constitutional provisions. Section 62 of the Constitution of South Africa provides that the government should make an end to one or two language dominance.

It has been reported that the Pan South African Language Board received about 80 complaints concerning unreasonable use of languages in the government departments. Still up to now there is no Act that enables the Minister of Arts, Culture, Science and Technology to take steps in pursuance of multilingualism. There has to be an emphasis on national norms and standards to guide the departments on use of language.

Continuing to give English prominence would result in more problems in promoting multilingualism in the so-called "high places" and as a result constitutional rights of language communities will remain unrealised.

The document before the committee deals with objects of the proposed legislation. One would ask why a need for legislation on multilingualism if it is provided for in the Constitution? The answer is that the Constitution provides for what should happen and not how it should be done, thus the legislation is needed for the "how" part. For instance, the Pan South African Language body is provided for in the Constitution, but how it should function was not provided for until the Pan South African Language Bill was considered.

Under the section of Multilingual Policy, Mr van Niekerk proposed that a new (e) be inserted to provide for the development of official South African languages at a technical level, and that the current (e) be (f). He stated that at the Language Indaba, held in KwaZulu-Natal, it was felt that South Africa is lagging behind on the development of languages at a technical level and this matter cannot be postponed any longer.

Private enterprise works on incentives, and promotion of multilingualism might be recognised as one of the factors to be considered in giving tax incentives to business. The NCOP must be prominent in the promotion of multilingualism because of its history of involvement in languages, and it had brought the Pan South African Language Board into existence.

The four language categories mentioned in the proposal are merely the beginning. Whenever there were controversies with various departments there was no national framework which they could gage their policies. Establishment of a mechanism to promote the Pan South African Language Board to a clearing position in matters of language policy is also proposed.

Some studies by Dr C Louw of the University of Western Cape, indicate that there is a relation between the lack of mother tongue education in early education and bad results at a higher level. A language of record has to be adopted in all departments with interpretations being made available when needed. More emphasis should be on sign language.

Under the heading of "Responsibility for Implementation" another (e) is proposed, the current one to be (f), to provide for the establishment of a language monitoring institute which would be an extension of the Pan South Africa Language Board, as a step to prevent misinterpretation and aid implementation.

It has been found in countries such as Canada and Australia that monolingualism can be more expensive, especially when looking at indirect costs. Other factors to be considered are disloyalty caused by uncertainty, misinterpretation due to language barriers, people being inhibited from giving opinion on legislation or a business idea because of language; such costs have to be carefully looked at.

A proposal is made that provinces be sensitised about the process taking place in the NCOP involving multilingualism.

Mr Surty (ANC) cautioned that it would not be proper for the Committees to circulate the proposal to the provinces as the rules do not allow that.

The Department's Position on the Proposed Multilingualism Bill
Dr A Beukes, Head: Language Planning, Department of Arts, Culture, Science and Technology, stated that their presence in the meeting was to explain the Minister's position regarding the proposal. She said the Minister is firmly committed to promoting all languages in South Africa and particularly official languages. He is also firmly committed to promoting previously marginalised languages.

What the Minister has done is devised a language policy and plan for South Africa. The process started late in 1997 when a language task group was set up to advise the Minister on how to go about devising the language policy. This process was to be a consultative process. The task group submitted its report to the Minister, which was used as a nucleus around which to draft a policy and plan for language. The Department was then instructed to devise a language plan for South Africa. Representatives from all departments, the Pan South African Language Board, language organisations, the Department of Education, the Public Service Commission and Administration Department were invited to make comments. This culminated in a draft policy. The Minister established a six-member panel in November 1999, which met in December 1999 and came up with a draft. The content of the draft was debated in the Language Indaba by about 130 delegates.

A language policy draft Bill was then proposed. Through the Bill it is envisaged to provide for matters such as a regulatory body on accreditation of interpreters and language practitioners. Also envisaged are the following:
- to facilitate implementation of the language policy;
- a language code of conduct for public service;
- to determine which languages are used where, and by whom;
- to investigate the possibility of setting up a telephone interpretation service in South Africa (a trial telephone interpretation service was approved by Cabinet, which CSIR assisted in).

After a two-year consultation period, the Pan South African Language Board formally handed the process to the Department. The Minister has required the advisory panel to finalise the draft language policy Bill. The panel will meet with the law advisors. The Minister wants to take the proposals to Cabinet as soon as possible. Public hearings are planned for August 2000.

Advocate V Beukes, Head: Legal Services, Department of Arts, Culture, Science and Technology said that the Department commends the initiative taken by Mr van Niekerk. The Department has, however, already gone through an extensive process of drafting and consulting on the draft National Language Policy and Plan, the draft National Language Policy Bill, and the draft Language Practitioner's Bill. The Bill submitted by Mr van Niekerk is essentially the same in content as the Bill proposed by the Department.

A copy of the Bill could not be made available due to the fact that it was still to be submitted to the Minister responsible for language. The following similar aspects of Mr van Niekerk's proposal and that of the Department were pointed out:
The Preamble;
The objects and guiding principles;
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 draft Bill also provides for the following aspects:
- 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 Languages Service Units;
- The development of African Languages and Sign Language;
- Co-operation;
- Accreditation of Translators, Interpreters, Language Editors, Terminologists and Lexicographers.
The aim is to promote equal use of languages and enable use of language of choice where practicable. In addition, the Department seeks to provide a regulatory framework for institutionalising multilingualism.

Mr Beukes also pointed out that all the other concerns that Mr van Niekerk raised in his proposal could be considered and easily included in the Departmental Bill.

Discussion
Mr PG Qokweni (UDM) asked how multilingualism is to be treated, whether it means that each person should speak their language and others expected to understand, or that someone should be able to speak and understand all the official languages in South Africa.

A.) Mr van Niekerk said it would be wonderful if everybody would be able to speak and understand all the official languages, but unfortunately it is not so. Perhaps the Minister of Education's proposal on a third language requirement for school children would address this. He stated that what his proposal envisages is development of all official languages in South Africa in terms of the Constitution and that at least four languages be promoted as a start off point.

A question was asked on whether it is expected, according to multilingualism, that in any public office one should be served in one's own language.

A.) Mr van Niekerk said his view is that there should be a language of record and that translations be made available in other languages on request.

Mrs Ntlabathi suggested that the use of a common language, something like Fanakalo which was used in the mines, be explored.

A.) Mr van Niekerk said he could not comment on the use of Fanakalo, but that he would like to see the promotion and respect of all the languages in South Africa.

Mr Qokweni wanted to find out what criteria had been used to determine which languages among the eleven official languages to begin with?

A.) Mr van Niekerk said a debate would still occur to decide this matter.

Regarding a reference to four language categories, why is it that English and Afrikaans, which are European languages, are both included in the proposal?

A.) Mr van Niekerk said English and Afrikaans were only suggested as a side note, the memorandum has been made available in four language categories. The four language categories would only be a start, the intention is to promote all languages. A debate is still needed to determine which four languages to choose. This is only a proposal to promote a Bill.

Mr Sulliman (ANC) wanted to find out why the cost implications of the proposal have not been dealt with. Mr Surty said according to the rules there has to be a statement on financial implications of a proposal by a private member, why does Mr van Niekerk's proposal lack that?

A.) Mr van Niekerk stated that the proposal includes an indication that it would have financial implications, and he believes that this indication meets the rules as it states that this has to be dealt with in accordance with Rule 179(3) of the NCOP Rules.

If choosing a particular language group in the categories, would that not amount to discrimination, what would be the criteria?

A.) Mr van Niekerk said that the four language groups should be viewed as a beginning point and not as discrimination. There is a need to get the process going because it has to start somewhere and not all languages can be accommodated at once.

Of the 80 complaints received by Pan South African Language Board, could an indication be given which language group they were mostly from?

A.) Mr van Niekerk said most of the complaints were received from the Afrikaans language groups.

In a province like KwaZulu-Natal, where for instance there is a particular language of choice, should translations be readily available?

A.) Provinces should be able to determine their own language policy, same as local government should, and where there is a language of choice, translations should be able to be made available on request.

A member commented that it should be considered whether it is not "jumping the gun" to be considering a proposal of this nature while the Department of Arts, Culture, Science and Technology is involved in the process of formulating a language policy and legislation.

The meeting was adjourned.

Appendix 1:
Memorandum on Promotion of Multilingualism Bill
Submitted by Adriaan van Niekerk, NNP Chief Whip and Language Ombudsman in the NCOP

It is hereby notified that the introduction of a Bill will take place in terms of section 73(4) read with section 76(2) of the Constitution. In terms of Rule 178 of the Rules of the National Council of Provinces a member must, for the purpose of obtaining permission for such an introduction, submit a memorandum to the Council which contains the following -
· Particulars of the proposed legislation;
· The objects of the proposed legislation, and
· An indication of the financial implications of the proposed legislation, and, if so, whether the implications may be a determining factor in the consideration of the legislation.

With a view to comply with these requirements the requested information is set out below and the Honorable 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 implementation 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 governments are obliged to take legislative and other measures to regulate and monitor the use of the official languages;

AND WHEREAS local 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 of 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 a person's identity;
(c) promote individual empowerment through the equitable use of the official languages and to ensure that all South Africans enjoy the freedom to exercise their language rights;
(d) ensure equal access to 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 multilingualism;
(e) conclude agreements with private or public institutions to facilitate the implementation of multilingualism.

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 basis by a Parliamentary Committee designated for this purpose.

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 between different departments and sections;
(b) internal written communications within and between different departments and sections;
(c) external oral communications with members of the public;
(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 governments.
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 governments 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. The implementation of multilingualism in the different sectors of the administration of justice is the primary responsibility of the Departments of 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;
(c) trade and 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;
(c) A multilingual telephone service for the promotion of access to public services and programmes;
(d) Any other service or body which can contribute to the effective implementation of multilingualism.

B. THE OBJECTS OF THE PROPOSED LEGISLATION
The proposed legislation has the following objectives -
· To regulate and promote the fulfillment of the government's obligations in terms of section 6 of the Constitution by means of legislation;
· To provide for a legislative framework for the adoption of a national policy on multilingualism;
· To remove the current uncertainty with regard to the Constitution's language provisions and to provide for national norms and standards.

C. FINANCIAL IMPLICATIONS
The proposed legislation has financial implications, the extent of which has not been determined and it may be a matter that needs to be dealt with in terms of Rule 179(3).

However, it must be emphasized that financial considerations can not play a decisive role for the following reasons -
· In terms of section 2 of the Constitution, all obligations imposed by the Constitution must be fulfilled;
· In terms of section 6(3)(a) of the Constitution expense is merely one of the factors to be considered;
· The factors that must be considered in terms of section 6(3)(a) must be seen as having the function of limiting extreme demands or claims and can never be applied in such a manner that the actual implementation of section 6 becomes impossible or is undermined. The principle of constitutionalism in this regard requires that the obligation to implement and promote multilingualism must not be relegated to a mere symbolic status by assigning an overriding importance to the practical factors, or to use them in such a way that the obligations contained in section 6 are constantly circumvented.