A summary of this committee meeting is not yet available.
PROVINCIAL & LOCAL GOVERNMENT PORTFOLIO & SELECT COMMITTEES: JOINT MEETING
2 October 2001
COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES BILL: HEARINGS
Chaiperson: Mr Y Carrim
Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill [B62-2001]
Afrikanerbond (Appendix 1)
MWU Solidarity (Appendix 2)
Designer: Curriculum For Religious Studies (Appendix 3)
South African Hindu Maha Srbha (Appendix 4)
Jewish Board of Deputies (Appendix 5)
South African Council of Churches (Appendix 6)
Foundation for National Minorities (Appendix 7)
The submissions indicated general support for the Bill and the formation of the Commission. The prevailing concern was the Commission's apparent lack of power to protect the cultural, religious and linguistic rights of communities. The concern was that the watchdog of community rights should have as much bark as bite. Another concern was the procedure for the appointment of members of the Commission. The fact that the Minister appoints a selection panel that would shortlist possible candidates for the Commission, rather than the parliamentary committee doing this, was criticised.
The Mine Workers Union suggested various amendments to existing labour relations provisions in order to give full effect to Section 185 of the Constitution and further the rights of minority communities. The Hindu Maha Sabha urged the inclusion of Hindu language, culture and history in the school curriculum as a legitimate examination subject. Umqondisi Mthetho called for the Commission to instigate a spirited drive to promote African culture, language and values and proposed amendments to the current Bill to assist the Commission in achieving this goal. The National Khoisan Consultative Conference questioned whether the culture, language and history of the Khoisan people would be effectively protected and promoted under the current Bill and suggested means of reform. Ms Soni-Armien called for the instruction of an African language in schools and hoped that the Bill would effect this. She suggested that the Bill would also have to play a vital role in protecting and promoting cultural, linguistic and religious pluralism in South Africa. The South African Council of Churches endorsed the framework of the proposed Bill but took issue with its handling of the objects and powers of the commission, the appointment of commissioners and "cultural or other councils". The National Heritage and Cultural Studies Forum also took issue with the Bill's provisions on the objects and functions of the Commission.
The Chairperson noted that due to the great number of oral submissions, discussion at regular intervals rather than after each presentation would be the format during this hearing.
Congress of Marginalised Languages of South Africa
Mr M Nemavhandu stated that he had been in the forefront in the drafting of the Bill. It was felt that it was high time that cultural, religious and linguistic communities' rights are to be protected by law. However true this may be, the concern was over how the Commission was going to protect these rights in practice. The Bill does not address that.
He noted that the powers and functions of the Commission as set out in the Bill only touch on the issue. It was also felt that the Bill does not properly define concepts referred to in the Bill. For example, religion is not properly defined in the Bill. It only seems to include the major faiths such as Christianity, Hinduism and Islam but no mention is made of indigenous African faith religions.
A further concern was that the Bill clearly requires the Commission to monitor, investigate, advise and report on cultural, religious and such activities but once again does not provide for how it is to be done. Mr Nemavhandu emphasised that he does support the Bill even though it has these shortcomings. He called on the media to encourage the promotion of marginalised groups, as they are an endemic part of the cultural diversity of South Africa.
African Independent Churches Development Programme
Rev S Moliswa presented his organisation's vision and commitment to the promotion of africanness in South Africa. Its mission is to promote the development of religious, cultural linguistic activities in South Africa with its guiding principle being the teachings of the Bible. The African Independent Churches were formed in 1889. Even in earlier times tribalism and ethnicism played a major role in the development of churches in South Africa. The aim of the African Independent Churches Development Programme is to capacitate the African Independent Churches so as to promote morality and peace in Africa.
The African Independent Churches wholeheartedly supports the objects of the Bill. The Commission could be an important tool in bringing together various communities to enter into dialogue on relevant issues.
Northern Amandebele National Organisation
Mr L Molomo noted his organisation was established in 1960 with the aim of promoting the development of the Northern Amandebele language, culture, traditions and customs. The organisation fully supports the objects of the Bill due to the very nature of the marginalisation of the Northern Amandebele people in the past. He gave a breakdown of their efforts in trying to revive the use of the Northern Amandebele language. The Bill would go a long way in promoting the goals of the organisation. The statutory formation of the Commission would also give greater impetus to the efforts of marginalised communities who are trying to promote their cultures and languages. The organisation therefore gave their unconditional support to the Bill.
Northern Cape Khoisan Council
Mr B van Staden stated that contrary to popular belief, the Khoisan people are not extinct but have always been victims of marginalisation. The Council supports the objects of the Bill but has concerns relating to the Commission. He referred to Section 181 of the Constitution dealing with the establishment of state institutions like the Commission. The provisions in Clauses 181(2), 181(3) and 181(4) provide for the protection of independence, the guarantee of administrative assistance and the preservation of autonomy of these institutions. However no provision has been made in the Bill to give effect to these provisions which was of great concern to the Council.
Dr B Shabane
Dr B Shabane informed the committee that even though he is an employee of the Pan South African Languages Board (PANSALB), he is making a presentation in his personal capacity.
The presentation was delayed briefly as discussion ensued over the fact that Dr Shabane wanted to make the presentation in his mother tongue, Zulu. The Chairperson fully understood the reasons for this but stated that it would create problems due to the unavailability of interpreters. Dr Shabane insisted that parliamentary rules allow for submissions to be made in any of the eleven official languages and that the unavailability of interpreters at the meeting does not detract from his right to exercise this option. The Chair consequently ruled that presenters may present in whatever language they choose even though discussion may be limited as not everybody present will comprehend. Dr Shabane agreed to present in English for obvious practical reasons.
Dr Shabane fully supported the objectives of the Bill but was sceptical whether the formation of the Commission would guarantee meeting those objectives. He felt that there were already organisations in place such as PANSALB performing the functions of the Commission. It was felt that there would be a duplication of functions and a waste of public funds.
Dr Shabane strongly felt that language is the custodian of all other rights (cultural rights, religious rights etc). Practical measures need to be put in place for the recognition of indigenous languages in South Africa. He was dismayed by the fact that even though there are eleven official languages in South Africa they have not been made part and parcel of the public domain. His wanting to present in Zulu was a perfect example. A possible step forward would be the drafting of language charters as countries abroad have adopted. Pilot projects could be initiated in certain provinces and these could be used as models for adoption in other provinces. Notwithstanding his reservations on the Commission, Dr Shabane concluded by reiterating his support for the objects of the Bill.
Mr P Smith (IFP) asked Dr Shabane to clarify what functions are duplicated by existing organisations and an ANC member asked Dr Shabane to clarify his concerns.
Dr Shabane replied that his concern was that the Commission would performing functions already performed by other orgnisations. The Commission should rather concentrate on issues that other oraganisations like PANSALB and the Human Rights Commission are not able to concentrate on. The issue of students having the choice of writing exams in their mother tongue was one such possibility that the Commission could look at.
Ms G Borman (DP) asked Rev Moliswa if he supports the Bill? Rev Moliswa said that he did.
The Chair summarised the issues as follows:
(a) What is the composition of the Commission? An important aspect of the Commission should be its impartiality.
(b) The function of the Commission should be differentiated from the functions of similar organisations. The focus of the Commission should be on the protection of constitutional rights.
In reply to Mr D Oliphant (ANC) asking for clarity on the concerns of the Khoisan, Mr van Staden's said that the Khoisan are concerned that the Bill does not reflect what is provided for in Chapter 9 of the Constitution. He emphasised that the Khoisan do not enjoy any support either at provincial or national level. The Bill is therefore the Khoisan's last ditch attempt at getting some sort of recognition as a community. If the Bill does not reflect what is provided for in Chapter 9 of the Constitution, it would not offer any real protection to marginalised communities.
Ms C Lobe (ANC) was concerned that Dr Shabane as a PANSALB employee was mainly trying to champion the cause of the Zulu language.
Dr Shabane said that he was making representations in his personal capacity as a Zulu. However he had genuine concern for other African languages as well. He said that the perception that some African languages suppress minor African languages is a total fallacy.
Ms E Lombard
Ms Lombard took the opportunity to deliver her presentation in her mother tongue, Afrikaans. She did however translate important points into English. She noted that she had been involved in the drafting of the Western Cape Cultural Commission and Cultural Council Act (No 14 of 1998) and noted that there were similarities between the Bill and that Act.
Her major concern was the procedure for the appointment of members of the Commission. The fact that a Minister appoints a selection panel that would shortlist possible candidates for the Commission was unacceptable to her. The normal procedure is that selection panels for candidates for commissions are generally appointed by parliamentary committees. She suggested that the Portfolio Committee on Provincial and Local Government should appoint the selection panel. It was a vote of no confidence in the Portfolio Committee by providing in the Bill that the Minister appoints the selection panel.
It was also suggested that provision be made in the Bill for cultural organisations to make application to the Commission for registration. In the event that applications are successful and registration is granted, provision should also be made in the Bill for the powers that registered cultural organisations would enjoy.
Foundation for National Minorities
Dr Chris Landman stated that self-determination in terms of ethnicity is a step in the wrong direction. He pointed out that some of his fellow Afrikaner organisations would definitely not share the same sentiments. Dr Landman did however feel that the Commission would have a positive influence on the promotion of cultural, religious and language rights. All that is needed is for the independence of the Council to be strengthened and its composition to be representative, giving due regard to the expertise of members.
Dr Landman recommended that the Commission should only recognise community councils if they exist in the context of the Constitution. Also the Commission should have the power to recommend to government that certain aspects of control should devolve upon community councils themselves. This would include the ability of community councils to apply for funding themselves to promote their communities.
Group of 63
Mr J Malan stated that the group comprises of intellectuals whose work is aimed at promoting democracy. Mr Malan was quick to point out that even though the group comprises primarily of Afrikaners, it tries to address the interests of other groups as well. The group accepts that the aim of the Commission is the protection of cultural, religious and linguistic rights of communities. Of great concern to the group was that other than Sections 185 and 186 of the Constitution setting out the functions and composition of the Commission, no mention is made elsewhere in the Constitution of the protection of community rights. Mr Malan felt it disappointing that the constitutional dispensation in South Africa did not provide for the concept of community rights. It was however pointed out that international law does provide for individual rights to be fledged out to include community rights. South Africa being a signatory to many international conventions should take heed of international arrangements. Mr Malan felt that individual rights in the Constitution should include community rights. He suggested that community rights should specifically be provided for in the Bill. The point was made that government should not interfere in the economic activities of communities. Furthermore in the event that any other piece of legislation is contrary to the provisions of the Bill, the provisions of the Bill should take precedence.
Federasie van Afrikaanse Kultuurvereniginge (FAK)
Mr H de Wet noted that FAK is a transparent non-political non-governmental organisation established in 1929 with the aim of promoting the Afrikaans language and culture.
Mr de Wet stated that the FAK had certain concerns over the Bill. It was felt that the powers and functions of the Commission as set out in the Bill have been vastly reduced from what it had been in previous drafts. In previous drafts the Commission had the power to make recommendations, now it does not. It is therefore recommended that the Commission be given more extensive powers. It was pointed out that the Bill does not provide anything more than what is stated in the Constitution. How is it then to protect the rights of communities?
The FAK also notes that the Bill is relatively silent on the funding of the Commission. Particulars of funding should be included in the Bill. In conclusion, Mr de Wet stated that the Bill should be adapted to be more representative of the community councils that they are to represent.
National Council of Khoi Chiefs of SA
Dr Boesak stated that the Khoi had great expectations about the formation of the Commission. He had complete confidence that the Commission would embody the protection of the cultural, religious and linguistic rights of communities. The effect would be a greater emphasis on nation building in the spirit of African Renaissance. However Dr Boesak did note certain reservations about the Bill's provisions dealing with the powers of the Commission as the Commission's powers were limited. If it is to perform the functions it is supposed to, the powers allocated to it would have to be more extensive.
Mr C Boshoff stated that their organisation has been involved in constitutional matters for the last ten years with their focus area being the Afrikaaner cultural community. He highlighted some of their concerns on the Bill:
- the involvement of the President and the Minister in the appointment of the Commission's members is one-sided.
- the powers of the Commission seemed to be of an academic nature as opposed to it having force and effect.
- the delegation of powers should also be provided for in the Bill.
- the criteria that community councils would have to comply with in order to be recognised, should be clearly set out in the Bill.
Mr C Aucamp (AEB) alerted Ms Lombard to the fact that where commissions are appointed by Parliament, the possibility exists that party politics could come into play, thereby influencing the appointments.
Ms Lombard nevertheless felt that the Portfolio Committee should have a hand in the appointments to the Commission.
In answer to Mr L Diale (ANC) asking what he means when he says that the powers of the Commission have been reduced, Mr de Wet stated that in the current draft of the Bill there is mention of power but that he felt it not to be real power. He pointed out that previous drafts of the Bill had provided the Commission with greater powers.
Mr Uys (ANC) was unsure as to why Group 63 was concerned about Afrikaans becoming a marginalised language. He noted that it was the most commonly used language in South Africa.
Mr G Oliphant (ANC) agreed with Mr Uys, noting that it is one of the official languages afforded constitutional protection and asking how this in any way has been denied?
Mr Malan reacted that the fact that Afrikaans enjoys constitutional protection does not mean that it is given the due regard in practice. This is exactly why the Commission should be bestowed with proper powers to protect languages.
Mr Sithole (ANC) asked how Group 63 was able to compare the international context with the South African context.
Mr Malan stated that international practice of the treatment of minorities under the United Nations is seen as the same as in South Africa.
Mine Workers Union - MWU Solidarity
Mr Hermann stated that the primary aim of the MWU is to effectively protect the rights of the members of this minority organization, as the current dispensation does not adequately accommodate these concerns. He continued that a commission should be established in order to effectively consider the legitimate rights of members of the minority community.
Mr Labuschagne continued that in order to solve the present problems with conflict and tension stemming from ethnic, cultural or religious diversity, the Bill had to accommodate all groups equally in the political dispensation. He found support for this concern in Article 19 of the African Charter for Human and Peoples Rights.
He stated that there are three primary means by which the aims and spirit of section 185 of the Constitution could be effected: by protecting the right of freedom of association; by not discriminating against minority groups, especially labour relations and by delegating decision-making on matters affecting a specific community to that particular community.
Mr Lauschagne stated that in order to realise the aims of such a commission, the following powers should be vested in the Afrikaans community:
- the right to maintain state and private schools in areas with a large enough Afrikaans contingency;
- the right to maintain Afrikaans tertiary education institutions;
- the right to ensure the public image of all municipal areas in these Afrikaans communities should not be overwhelmingly English;
- the right to state-supported Afrikaans media facilities.
He claimed that currently minority communities in the labour and economic fields are deprived of equal opportunity and protection. He suggested that as far as issues of representation, closed and agency shop agreements and bargaining council thresholds, as well as certain provisions of the Employment Equity Act and the NEDLAC provisions, the minority contingency is not afforded adequate protection against coercion and abuse. He urged the amendment of these provisions so that the proposed commission may effectively execute its functions.
The Chair thanked the MWU but requested that oral and written submissions should deal with specific problems with the Bill and steer clear of generalized or vague proposals.
South African Hindu Maha Sabha
Mr R Kallideen, General Secretary: SAHMS, commended the government on finally effecting the sentiments in the preamble of the constitution by calling for the establishment of a commission to promote the spiritual and cultural interests of communities. He stated that SAHMS is firmly committed to the protection of all religions, as well as the rights of the minority. He suggested that mother tongue instruction should be provided at school level and if the child is denied this necessity, the child's culture and religion are denied as well. He consequently suggested that time should be allocated in the school-timetable for Hindu religious education with tests and examinations based on a set syllabus; the syllabus must incorporate the culture, history and religious tenets of the Hindu faith; such religious instruction must be freely available to all scholars.
Mr Kallideen continued that the SAHMS is hopeful that the proposed commission will be established as soon as possible and that it will be equipped with sufficient powers to ensure their above concerns are accommodated. These concerns were in accordance with the aims and spirit of the Constitution in encouraging the recognition of languages like the Hindu tongue, and not only the further entrenchment of the English and Afrikaans languages.
Mr Kallideen called for state support in a concerted effort to include Indian music in the proposed revised school syllabus. The syllabus should include the basic principles and history of Indian music and dance; adequate finances for the teaching of Indian music and dance should be provided by the state; qualified teachers should be employed to teach these classes; and examinations should be set on these classes.
Mr Kallideen concluded the presentation by inviting any and all constructive dialogue to ensure the establishment of the proposed commission.
The Chair informed the Committee that there would be no presentation from the Jewish Board of Deputies as it was a Jewish religious holiday. The Muslim Judicial Council had also been invited to make oral representations but they had said that they had nothing more to add to their written submission.
Adv L Mpumlwana stated that it was a noble step taken by Parliament in calling for the establishment of the proposed commission. He noted that it is the objective of the Constitution to heal the problems caused by the tumultuous past by demanding unity, respect and dignity for all South Africans. He questioned, however, whether the proposed commission would be afforded sufficient power to achieve its aims.
Adv Mpumlwana suggested that the problem currently facing South African society is that European culture and values are being actively promoted at the expense of African culture, its indigenous languages and values. He called on the commission to be aggressive in its endeavours to reverse these inconsistencies, and urged for thorough research into - as well as the vehement promotion of the African language, culture and values. He noted that in 1948 a spirited national effort was made to dethrone English as the predominant language in South Africa and to proudly announce Afrikaans as its worthy successor. He urged for a similar effort to be undertaken to promote the richness and value of the African language, its history and values.
He considered it a "disgrace" that approximately 13 to 15 foreign European tongues are currently being taught in schools, whereas indigenous cultures, rich in African values and history are allowed to "waste away" without most South Africans ever appreciating them. He called for the teaching of African languages at Grade 1 level as it is South Africa's own culture and language, and foreign languages are of much lesser relevance.
Addressing specific problems with the Bill, he proposed that the word "may" in Clause 21(1) be substituted with "must", and in Clause 24(1), the word "may" must be replaced with "shall". He submitted that the Bill fails to specify exactly how its policies are to be implemented in order to achieve its objectives, and that more financial support is required to improve the status of underdeveloped languages and cultures.
Mr Labuschagne's statements about representation issues in the Labour Relations Act (LRA) were questioned and it was suggested that the definition of "representative trade union" in Section 11 of that Act did sufficiently accommodate the rights and interests of all employees.
Mr Labuschagne replied that the MWU insists upon more protection for minority interests via the proposed commission, particularly on the representation issue in the LRA. Certain provisions in the LRA limit the rights of the members of minority communities because all the collective bargaining processes involve threshold requirements that these minorities are unable to satisfy. Thus they and their interests are consequently excluded from such processes. This violates the constitutional promise in Section 23.
Mr Mulder (FF) noted that Mr Kallideen had said that the proliferation of the Hindu language was dependent on school teaching. He asked to what extent the Hindu language's struggle for recognition could be attributed to the community's seeming failure to speak the language in the home rather than the lack of instruction at school level.
Ms C Lobe (ANC) asked Mr Kallideen whether the SAHMS supported the Hindu religious instruction alone at school level, or whether it supports the instruction of all (lesser) recognized religions in South Africa. She asked if this language is currently being spoken in the community or whether its inclusion in a school syllabus would constitute the language's "reintroduction" into South African society.
Mr Kallideen replied that before 1984 the Hindu language was not regarded as a legitimate examination subject and South African schools were not compelled to include it in the syllabus. The state required that at least 13 Hindu scholars be interested in such instruction, or it would not be offered. He stated that the language is indeed being actively spoken in the community, but regretfully there are currently not enough teachers as well as an effective inspectorate to promote this suggestion. The SAHMS was in favour of the instruction of all religions at school, that could perhaps be offered at different times on the school time-table.
Ms Soni-Armien, a designer of the curriculum for religious studies, informed the committee that indeed a syllabus committee has been established and that it has decided that all religions will be taught at school level.
The Chair reminded all present that it is not the aim of the proposed commission to champion the interests and rights of the minority alone, but rather of the majority and minority alike. He stated further that the commission would protect and further the cultural, linguistic and religious rights of all in the pursuance of a wider nation-building process. He suggested that in making decisions and executing their duties, the members of the proposed commission must consider the following; - the definition of "community";
- those seeking protection must of necessity have pre-existing rights that the commission can enforce and protect;
- the issue of individual and collective rights;
- international law can only be relied upon by those seeking justice if there is "no room" for expressing one's own rights (for instance, in a non-democratic state);
- the powers and functions of the commission must be exercised in accordance with the Constitution;
- the powers and functions of cultural councils have to be considered.
National Khoisan Consultative Conference (NKCC)
Mr C Le Fleur stated that the primary objective of the NKCC is to protect the cultural, linguistic and religious concerns of the Khoisan people. He noted that its written submission was not ready but would be made available as soon as possible.
Mr Le Fleur pointed out certain proposals in the Bill dealing with the restoration and proliferation of the Khoisan culture and language. He requested clarity on whether the Khoisan people would be regarded as a "main cultural group" in Clause 3(3), as recent history shows that the Khoisan people have far too often been "bypassed ".
He voiced his support for the proliferation of the spoken language of the Khoisan people, as it has now become largely marginalized despite its vital importance in achieving the aims in Clause 4 of the Bill. He called on the proposed committee to include the Khoisan people in its scope and decision-making and to protect and further their rights. He urged for the insertion of "rebuilding" in the name of the commission in order to avoid any future marginalisation of the Khoisan culture and language. He assured all present that the Khoisan language and culture was not on the brink of extinction, but that it was indeed alive and well but in desperate need of rebuilding.
Mr Le Fleur concluded by calling on the proposed commission to assist the NKCC in restoring the dignity of the Khoisan culture and language.
Religious Studies curriculum designer
Ms Soni-Armien insisted that it is important to have officials on the proposed commission who believe that what is in the best interests of their own religion, culture or language is also the best for the language, culture or religion of their fellow South Africans. South Africa is a highly diversified nation and all its people need to be allowed the freedom of expression which the proposed commission sets out to achieve.
She considered it "sickening" that of the 35 South African institutions surveyed in compiling the revised curriculum for religious studies, none currently teach in an African language. She noted that English is the language of instruction in 100% of the schools surveyed, and more teach a European language than Zulu, the latter being the most widely spoken language in this country.
Ms Soni-Armien expressed her horror of the events of September 11 in the United States, and said that it would have to be a primary objective of the proposed commission to promote and protect cultural, religious and linguistic pluralism in South Africa.
Ms Soni-Armien then briefly highlighted her concerns with the Bill (see written submission).
South African Council of Churches
Rev M Tsele welcomed the Bill and its efforts to consolidate a culture of tolerance, democracy and human rights. The SACC broadly endorses the "architecture and provisions" of the Bill, but that issue had to be taken with the following:
- the objects and powers of the proposed commission;
- the procedure for the nomination of commissioners;
- the conditions for the termination of a commissioner's membership;
- the definition and regulation of "cultural or other councils".
Rev Tsele referred the Committee to the SACC's written submission for detail on these concerns.
National Heritage and Cultural Studies Forum (NHCSF)
Professor T Sirayi stated that the recognition indigenous African heritage and culture is long overdue and that it would indeed be a challenge for the proposed commission to successfully achieve its objectives. The NHCSF's main problems with the Bill were with the objectives and functions of the commission and the proposed national consultative conference. The objectives of the proposed commission should be amended to include the protection and "preservation" of these rights. If not amended, he argued that the cultural, linguistic and religious rights of other communities would continue to be marginalized.
He suggested that the proposed function (c) of the Bill be split into two separate functions, as the function of the commission seems to be one of assisting and co-ordinating the collection of research rather than the active and direct compiling of such databases. There are already institutions and organizations that specialize in compiling such data and the commission would seem to be duplicating their work to achieve its objectives.
Further a strategic and concrete business plan has to be set out to deal with the national consultative conference proposed by the Bill.
Ms Lobe asked Prof Sirayi to explain the NHCSF problem with the proposed functions of commission in the current Bill. She then questioned Ms Soni-Armien's suggestion for provincial commissions and their effectiveness in assisting the chief commission in achieving its objectives.
Mr Le Roux questioned Ms Soni-Armien's expectation that commissioners be totally neutral in their decision-making, as the Bill's requirement of impartiality and individuality would suffice.
Mr Mulder asked Ms Soni-Armien who is responsible for formulating and implementing the policy regarding the instruction of an African language in schools. He then responded to the Chair's earlier statement regarding the use of international law by stating that the Constitution, in Sections 234 to 235 or thereabouts, encourages a reliance on international law.
Ms Soni-Armien responded to Ms Lobe that this just a suggestion. In answer to Mr Mulder's question, she said she was not sure who is responsible for the policy, but that the official(s) concerned should be multi-lingual and in full support of the protection and promotion of all South African languages. With regard to Mr Le Roux's concern, she said that she did not in fact insist on complete neutrality, but that the officials must consider everyone's situation and position in the same manner and should be able to represent the interests of a wide variety of South Africans.
Professor Sirayi answered Ms Lobe's concern by stating that he did not imply that the proposed commission will not be involved in the research, but that a "duplication of efforts" must be avoided at all costs. He continued that the commission could employ the services of competent institutions that may be currently assembling such research or specialize in this field, and the two bodies could thus work together towards a more expeditious end.
The meeting was adjourned.
Commentary by the Afrikanerbond on the Commission for the Promotion and
Protection of the Rights of Cultural Religious and Linguistic Communities Bill,
I. The long expected tabling of this Bill, which is to establish the last of the "state institutions supporting constitutional democracy" in terms of Chapter 9 of the Constitution, is welcomed.
2. Having gone through a long process of preparation, involving many interested persons and institutions, the Bill would appear to be well conceived and technically of a high standard.
3. In order to promote the quality and practicability of the Bill further, we wish to offer the following comments for consideration by the Portfolio Committee:
Ad clause 6: we wish to suggest that the qualifications for membership of the Commission should include a proven record of involvement in and understanding of the cultural, religious or linguistic activities of one or more of the communities concerned. We furthermore feel that it is important that the work of the Commission should be immunised from politics in order to avoid any detraction from its legitimacy. It is therefore suggested that a provision be added here or elsewhere in the Bill, which would disqualify a person from membership if such person is an office bearer of a political party or becomes a member of a politically elected body in any sphere of government.
Ad clause 18: Due to the complexity of its tasks, we consider it important that the Commission be empowered to enhance its capacity to achieve its objects by recruiting members of civil society to serve on its committees. Clause 18 restricts committee membership to members and staff of the Commission.
Ad clause 21: In order to avoid the Commission becoming merely a symbolic token, it is suggested that the powers set out in clause 21 are not substantial enough. At least the Commission should have the authority not only to bring matters of concern to the attention of appropriate authorities, but also to make recommendations to such authorities and requiring a response from such authorities.
Ad Part 8: The provisions on cultural and other councils fall short of determining the nature and functions of such councils. The eventual Act should provide the Commission with some guidelines for the recognition of such councils, such as that they should be properly constituted and regulated by constitutions, should have legitimate support from the cultural or other group that they claim to represent, should not purport to represent the interests of a section of the community which is represented by another council or institution, and must have appropriate managerial and financial capacity to perform their functions. The Bill also does not provide recognised councils with powers and functions. This is considered to be important for the purposes of rendering the mechanism of councils to be sufficiently attractive to inspire wide participation in the promotion of the objects of the Commission.
4.We are willing to appear before the Portfolio Committee to elaborate the above comments and suggestions.
Comment on the draft bill in terms of article 185 of the Constitution
MWU Solidarity is the largest independent trade union in South Africa with a membership of 101 000 The union sees itself as a broad although not exclusive. Afrikaans organisation and is without doubt the largest Afrikaans organisation in South Africa. Even more remarkable is the fact that its membership increased from 51 000 to 101 000 members in less than four years. This growth is an obvious indication of a community who felt the need to organise itself as an institution in order to ensure it a measure of protection. Viewed in this light, the establishment of a commission who would protect and promote the rights of this community would be an accurate interpretation of its sentiments. This debate is; therefore, exceedingly essential in order that account may be taken of the legitimate rights of the community. Our contribution should, therefore, be seen as a positive effort to ensure that a democracy is established in South Africa that not only protects rights in South Africa but is also in line with modern democracies all over the world.
The criterion that should be applied in judging the relevant bill is articles 185 and 186 of the Constitution of the Republic of South Africa, 108 of 1996.
At the same time it should be kept in mind that successful nation building in a cultural, linguistic and religious heterogeneous set-up like South Africa can only be achieved if all communities are effectively accommodated. When that is the case, communities experience themselves truly at home within the South African nation and feel that they owe real loyalty towards the country.
The draft bill is also considered against the background of an international situation wherein most tension and conflict stem from ethnic, cultural or religious diversity. This state of affairs shows clearly how important it is for peace that all groups are accommodated co-equally in the political dispensation.
The necessity of an equal and just dispensation for groups should also be seen against the background of the emergence of provisions of international and regional law that aim at the promotion of inter-group peace and stability. As an example article 19 of the African Charter for Human and Peoples Rights may be referred to. It stipulates:
"All peoples shall be equal, they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of one people by another."
The comment following on this is based largely on article 185 of the Constitution because this stipulation and sub article (1) thereof is the fundamental stipulation regarding the relevant commission.
3. The distinctiveness of the rights in terms of article 185
It is of the utmost importance that there should be clarity regarding the nature of the rights that article 185 seeks to protect. The Commission to be established in terms of the said article is the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. The first intent of the Commission, as stipulated in article 185 (1)(a) is in accordance with this. It stipulates that the purpose of the Commission is to promote respect for the rights of such communities.
The unique nature of the stipulation lies in the fact that the cultural, linguistic and religious communities are elevated to the status of corporate subjects/legal personalities, i.e. to the legitimate possessors of rights. It is in this regard that article 185 differs qualitatively from Chapter 2 of the Constitution, the Bill of Fundamental Rights. The Bill only provides for the constitutional rights of individuals. In accordance with the stipulations of Chapter 2 individuals are regularly the claimants and beneficiaries of the rights contained therein. Also the rights of Chapter 2 pertaining to culture and language are indisputably individual rights. Article 30 stipulates that everybody has the right to use the language of his choice and to participate in the cultural life of his choice. Article 31 tries to protect certain rights of persons who belong to cultural, language and religious communities. The common factor in these two stipulations and other rights in Chapter 2, is that it only protects the rights of individuals.
Article I 85 (l)(a) of the Constitution, on the contrary, tasks the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities with the duty to promote the rights of these communities. The premise of the stipulation, as is also clear from the heading of the article, is that cultural, linguistic and religious communities are in fact the possessors of rights. The intent of Article 185 is, therefore, that apart from individuals, the communities referred to are corporate subjects in terms of the Constitution.
Of course, the Commission cannot fulfil its assignment to promote respect for these rights if it is not clear in advance exactly what the nature of the relevant communities is. Precisely obtaining clarity about this ought to be the primary task of the Commission, because in the absence of such clarity the Commission is a commission without a function and the necessity to proceed with the law goes by the board.
It goes without saying that the rights, which are potentially contained in the collectiveness of a community as, intended in article 185, differ fundamentally from the rights of individuals (as intended in Chapter 2). There is not the slightest indication in the present draft bill that it seriously addresses the particular corporate body of the rights of communities and it therefore fails specifically for that reason to give effect to article 185.
4. Ways to give effect to article 185
The most obvious ways that rights can be given meaningfully to cultural, linguistic and religious communities are:
· to protect the right of freedom of association and at the same time to protect groupings within the spheres of culture, politics, culture and economics and to prevent the state from encroaching upon those freedoms;
· not to discriminate against smaller groups because other groups have the advantage of numerical majority;
· to delegate the decision making authority with regard to matters specific to each community to that particular community. The decision-making power concerning the interests particular to the group, therefore is vested in the community as a whole. This is in accordance with article 185, which, as pointed out already, envisages community rights instead of individual rights.
Only when these rights have been established, can the Commission proceed meaningfully with its allotted task, viz., to promote respect for those rights.
· A cultural community is the most comprehensive of the three communities with which the Commission will deal because the interests of a cultural community include a variety of needs and interests, possibly also linguistic and religious aspects. Consequently the only way in which rights can be accorded to such a cultural community is to identity all the interests particular to the relevant cultural community and to transfer the decision making power to it.
· The most basic interest of each cultural community is for it to be placed in such a position that it can ensure its own survival and the cultural products and assets particular to it. Specifically in the case of the Afrikaners as a community the need is experienced intensely that measures be instituted to protect their language and communal lifestyle. The purpose of that is to ensure that:
-Afrikaans may prosper instead of being smothered in an unfriendly linguistic environment;
-Their culture may be freely bequeathed to future generations and to prevent cultural migration from happening to the detriment of Afrikaans and the advantage of English
-The integrity of the Afrikaans community in general and the variety of communities countrywide can be protected in order to ensure the continued vital existence of such communities.
In view of realising the above mentioned aims powers like the following should be vested autonomously in the Afrikaans community:
· The right to maintain state and private schools wherever there are a substantial number of Afrikaans speakers and to control access to them in order to ensure that the Afrikaans character is maintained. This competency naturally does not include the right to discriminate on the basis of race.
· The right to maintain Afrikaans tertiary educational institutions (universities, teachers colleges and technikons) and to exercise control over them.
· The right to ensure that the public image of all those municipal areas with a substantial number of Afrikaans speakers should not be totally English by ensuring that a stipulated minimum percentage commercial activities in terms of advertisements and otherwise are in Afrikaans. The same rights should also be accorded to other linguistic communities, should they so desire.
· The right to state supported Afrikaans language electronic media facilities and the accompanying Afrikaans community control over them.
5. The position of minority communities in the economic and labour fields
The economic and labour world is intricately interwoven with the linguistic and cultural factor. This is obvious from the following exposition:
The experience of MWU Solidarity is that the right of freedom of association and the right to participate freely on an equal basis in the economic traffic are being impeded to an increasing extent by legislative measures. Economically these measures effect the Afrikaans minority in particular in an unjust discriminatory manner. Employees as well as employers are disadvantaged hereby.
It is theoretically possible for a community to organise themselves in the labour field into an institution like trade union but because of the fact that it is a minority community they are deprived of numerous rights by labour legislation. Some examples are:
5.1. The Labour Relations Law, 66 of 1995
The most important limitations are found in chapter 3 of the law where organising rights are accorded only to a representative trade union. Being representative is determined by the achievement of specific thresholds that imply that a community who does not constitute a prescribed minimum percentage in the workplace is deprived of their organising rights in the workplace. Thresholds can be determined by the majority, which means that the fate of the minority community is at the mercy of the majority. The majority may conclude collective agreements that affect the specific needs of the minority.
5.1.2 Agency shop agreements
An agency shop agreement may be concluded between the majority union and the employer that will in effect compel the members of a linguistic community that forms a minority in the workplace to pay an agency fee because they are members of a minority community and do not belong to the majority community. This often works to the serious disadvantage of the members of the minority linguistic community who have economic needs particular to them and that cannot be dealt with by the union consisting of the majority. In such a situation it is essential that minority communities are organised in a union of their own. If not, the members of the minority community are for all practical purposes excluded from effective collective bargaining.
5.1.3 Closed shop agreements
If two thirds of the workers in a workplace vote in favour of a closed shop agreement, members of a minority community will be forced to join the majority union. Members of a minority community who, as mentioned above, often have particular needs that should be dealt with by a minority union, are once again placed in a position where their interests cannot be served in the collective bargaining process.
5.1.4 Bargaining councils
If a community who forms a union do not meet the stipulated thresholds it will be allowed to sit in a bargaining council of a relevant sector or area. The community is thus debarred from concluding collective agreements. Again, this constitutes structural discrimination against members of the minority community.
5.2 Employment Equity Act 55 of 1998
The Employment Equity Act impedes a union of a specific cultural community from reflecting the personnel composition of his community. This boils down to a serious encroachment on the right of freedom of association. It becomes impossible for minorities with specific needs to organise themselves and participate effectively in collective bargaining. The demand for representative composition in effect boils down to a flagrant impairment of minorities to the advantage of the majority. The specific targets imposed by the law can also erode the union's membership basis. The injustice is exacerbated by the fact that the law also prevents the community from establishing new undertakings since the same targets are also demanded for new ventures.
Thresholds imposed for participation in Nedlac and the ruling that only union federations may participate in Nedlac activities make it impossible for a minority community to participate in Nedlac consultation and decision-making. This means that issues having a socio-economic impact on the minority community can be discussed without the community having any say therein.
5.4 The Promotion of Equality and the Elimination of Unjust Discrimination Act, 4 of 2000.
The demand for representative composition is the underlying principle on which this law is based. The law is exceptionally comprehensive and binds all persons, including individuals, legal personalities as well as societies without corporate existence. The law has the effect of making it impossible for legal personalities, business undertakings, societies and clubs and similar private associations of people from minority communities to function because such groupings consisting of members of minority communities cannot comply with the demand for representative composition.
The grip in which minorities are held by labour legislation is extended to all spheres of society by this law.
The above-mentioned state of affairs poses unjustifiable discrimination against minorities and especially against the Afrikaans minority. It is a direct result of the fact that minority communities are subjected to the will of the majority and of the fact that there are no measures in place to protect minority communities against this structural impairment.
MWU Solidarity expects that a Commission like the one under discussion who has to look after the rights of cultural, linguistic and religious communities should precisely give protection against these ways in which minorities are disadvantaged.
Unfortunately the draft bill makes no provision for the essential protection of minorities against this sort of detrimental treatment. For this reason the draft bill should be extensively reviewed so that the essential protective measures can be incorporated.
It should be accomplished by, inter alia, inserting provisions into the present draft wherein it is clearly spelled out that communities should be treated on an equal basis and that no measure should be ratified that infringes on the right of freedom of association and freedom of participation in the socio-economic and political traffic of communities. The Commission should function as an independent institution who has to promote constitutional democracy, have extensive powers to monitor government actions in order to ensure that the measures discussed above and that disadvantage minority communities, are not passed and where they do exist they should be speedily phased out. The draft bill should be amended accordingly. In this manner substance can be given to the community rights to which article 185 refers.
Should amendments like these not be incorporated into the law, the Commission will be simply useless and there is then no reason to proceed with the legislation.
The development and implementation of community rights like those expounded above, provides the basis for achieving the aims determined in article 185. viz., the promotion of nation building. The key to meaningful democracy and nation building lies in the acknowledgement and accommodation of each and every community within South Africa.
· every community is accommodated by way of decision making powers with regard to issues that affect it intimately
· and the Commission is endowed with powers to protect communities against the damaging majority force majeure explained in point 4 above
then such communities can be expected also to be true and loyal to the constitutional dispensation. Without it, the ideal of nation building and democracy is unattainable.
DESIGNER CURRICULUM FOR RELIGIOUS STUDIES
I am a South African who lived in the Boston area between September 1991 and June
1993 while studying there. Life is so complicated and such a rush that one gets absorbed
into it and gives little thought to what is really important. A tragedy as magnanimous and
horrendous as that which struck the USA, on the 11th of September, makes one say, "stop
the world, I wish to think." It is time to take stock of one's life and goals.
I am deeply sorry for one of the greatest catastrophes humanity had to endure. We thought that the twentieth century was bad enough and that nothing could be worse. How wrong! I feel deeply for the sorrow that my many American friends must be experiencing. The loss of life and the horror of looking for body parts this week is unimaginable. When I heard that the plane left from Boston, I thought, "God! I hope none of the people I know were on it!" Perhaps that is selfish! I should feel and hurt for everyone that suffered and I do but the first reaction was for those I know. It was a way of connecting to the tragedy.
While these are acts that only sick and twisted and tortured minds can dream up, they call for a response. However, it is important that the response is a responsible one. Should the USA act as callously as the terrorists have done and march in to attack innocent people who have no say in what decisions their governments take, then they are no better than the cowards who attacked the World Trade Centre. We need to ensure that we stand together as communities to join hands to conquer terrorism when its ugly tentacles refuse to honour human life, God and morality itself. It reminds us that we cannot force our interpretation of morality on people. All we can do is respect human rights, individual or group.
The response to terror attack is one of the greatest challenges of our century. It was supposed to be the century of globalisation and the information superhighway.
Instead we have to contend with fear of what the response can be to pluralism not only in America but in the world at large. We have to ensure that it does not become an excuse for racists, fundamentalists and other left wing organisations to reign terror on the world that is peace loving. It should not be an excuse to promote racism, elitism, xenophobia and exclusivism and fundamentalism in religion. This does not mean one must turn the other cheek, but that one must not attack the innocent and contribute to loss of innocent life. I dread to think what it may lead to. May God guide our leaders, our citizens and may every one of us make a thoughtful response.
In the light of the terror attacks in the USA and whatever response the USA makes, the proposed Bill for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and the Commission will have to play a very important role in nation building. Nation building does not get easier and calls for people who will respond with sense and sensibility to such acts despite the insensibility and horror. In the light of the attacks our government needs to stop dragging its feet with regard to the Bill and giving effect to the BILL sooner than possible.
Part 3 Composition of Commission
2 (b) Why should it be possible for the President to "reduce the number"? It is a very important Commission, we have nine provinces, Eleven official languages and a number of heritage languages, at least seven predominant world views/ religions including secularism, why should we talk about reducing the number of members on the Commission? I would call for the maximum number to be in place.
Filling of vacancies:
(2) It is important that about half the members should continue with the new commission each term. This would ensure continuity. It takes time for newcomers to be oriented to what has been happening.
15.1 "The chairperson ...must convene a meeting 3Odays after the receipt of a request." This is a long time.
"The request must be signed by the majority of the members to convene a meeting." If one has to wait for about ten people in different parts of South Africa to sign a document to request a meeting you are placing undue constraints.
I would like some clarity on
no (3) "The Commission may confirm, vary or revoke any decision taken in consequence of a delegation or assignment, but no variations or revocation of a decision may detract from any rights that may have accrued as a result of the decision.
Which decision: the first or the revocation of the decision? I would like some examples to illustrate what was envisaged here.
How can one accept the rights accrued from a decision that is revoked?
During the provincial hearings people had urged that provincial mechanisms should be in place to facilitate requests from various communities.
(1) Nothing has been done to facilitate this.
(2) Instead of leaving it entirely to the whim of the chairperson there should be a suggestion that the meetings rotate from province to province and have open days for communities to make oral presentations. In this way we can take the Commission to the people.
SOUTH AFRICAN HINDU MAHA SRBHA
THE NATIONAL BODY FOR HINDUS IN THE REPUBLIC OF SOUTH AFRICA
it is heartening that the State is now giving meaning to the provisions of the preamble of our Constitution with regard to cultural/ religious/linguistic matters in the various communities.
The Hindu community of South Africa, an integral part of our South African nation, has been in South Africa for more than one hundred and forty years. At last the opportunity has arisen for the State to make pro-active/positive interventions/provisions for the promotion of the community's cultural and spiritual interests.
Religion links the Hindus to the very essence of their existence, their relationship with the Creator. Whilst there is religious freedom, there is no structural and progressive educational effort in this field. Legal provisions: are either lacking-such as recognition of Hindu marriages, or often religious rights of Hindus are challenged by non-Hindus with regard to hoisting of holy flags, erection of prayer rooms etc. Religion for the Hindu is something that unites him/her with all humanity. It is sad to hear/see that his/her religion become perceived as a decisive factor. In the present state of the world it is absolutely necessary to nurture and exploit the positive community and world-building elements of religion. It is hoped that the Commission would be able to facilitate and advance this process.
As a religious organisation we subscribe to the recognition of all religions and the protection of minority rights in South Africa.
We suggest that:
I. Time should be allocated on the school timetable for Hindu religious education.
2. There must be tests and examinations based on a set syllabus.
3. The syllabus must equip the child with the scriptures and principles of Hinduism.
4. Religious education should be open to all pupils.
The trials and tribulations of the industry Hindu labourers were expressed in their various languages - viz; Tamil, Hindi, Telugu and Urdu. University of Durban-Westville (UDW) was only tertiary institution offering Indian Languages but these departments were closed. It is heartening to note efforts are being made at UDW to resuscitate these studies at postgraduate Ievel in 2002. A very apt statement on page 28 of the Mail & Guardian of 24 August 2001 in an article on languages by Hamilton Wende will put the language issues in perspective:
"Language is the thread we take with us into the labyrinth of the world. It is our guide through the shifting Iayers of pain and beautyâ€¦..for a language to die is an obliteration of centuries of human memory."
Tremendous planning and consulting were done in KZN with regard to Indian Languages in schools, before and after May 1994. The results have only shown retrogression or diminution of the rights of children of Hindu origin (and others) desirous of learning an Indian language. It is fervently hoped that this commission is established soon with sufficient powers to ensure that the lndian Languages are retained. Nothing less is expected from the enlightened democratic constitution of our country.
It is believed that the only vehicle of culture is its language. We propose that every child must learn his/her language and the onus lies in parents, teachers, lawmakers and administrators to ensure that. languages are taught to our children.
The present constitution has taken cognisance of 11 official languages, including English and Afrikaans, the entrenched languages. Provision is also provided for respect and encouragement for languages that are not designated official languages. We regard that Tamil, Hindi, Gujarati and Telugu be taught at schools and that community-based organisations be subsidised for the promotion of these languages. Sanskrit should also be given a place as a subject in the curriculum.
The cultural field seems to be well served by performing arts such as dance, music and theatre. Appropriate State support could ensure access to more people as well as enhancement of quality. We submit that:
1. Indian music be a component of the general music syllabus taught in a school.
2. The syllabus must include basic principles and the history of Indian music and dance.
3. The Department of Education and Culture make funds available to organisations for the teaching of Indian music and dance.
4. Qualified teachers be engaged to conduct classes.
5. Examinations must also be set.
This Commission could also lay down policy and guidelines with regard to the rights of Hindus concerning dress, ornaments, dietary requirements etc. in schools, hospitals and other public institutions, as long as these do not impinge on the standards of public safety and the rights of others.
The twenty-first century is the century of the African continent and all the people who live on it. The glorious African renaissance will be enhanced if all the flowers of this earth, indigenous as well as exotic, are enabled to blossom and beautify the environment. This is the task and challenge to the Commission.
The South African Hindu Maha Sabha is willing to participate in further dialogue and cooperate in other ways to make the Commission a reality and to promote its work.
Jewish Board of Deputies
28 September 2001
Re: Rights of Cultural, Religious and Linguistic Communities Bill
I thank you â€¦.for all your efforts in trying to arrange a special verbal hearing for us. However, that won't be necessary as all we will be doing is making written submissions.
Please see below our submissions:
My Board feels that the procedure for the selection of members of the Commission needs to be reconsidered in the light of the following:
There are very many Communities whose rights the legislation is intended to promote and protect.
Clearly, the Commissioners, whose number will only be between 11 and 17 cannot be "representatives" of all such Communities.
However, section 5(3)(a) of the Bill proposes that the Commission must be "broadly representative of the main cultural, religious and linguistic communities in South Africa".
The first question that immediately arises is what meaning is to be given to the words "broadly representative", and the second question is what communities are to be regarded as "mainâ€¦communities". Is the criterion to be demographic numbers, or if not, what criteria are to be applied?
Clearly, the Bill suggests that the Commissioners will be representatives of "the mainâ€¦communities". However, inevitably, the first concern of anyone who "represents" a community is to look after the interests of that particular community. This could present a problem for the Commission, particularly if the issue under consideration by the Commission is a conflict between the communities.
My Board considers that the criteria for selection of communities as "main communities" should be spelt out in the proposed legislation, so that the public can know what is envisaged and can make representations before the legislation is put to the vote in Parliament.
My Board feels that the criteria will probably not satisfy all communities, but an attempt should be made to satisfy as many communities as possible, or assuage as many feelings of resentment as possible, for, otherwise, the legislation could become a source of contention, rather than legislation that will promote and protect the rights of communities.
Such contentions could be aggravated by controversy in regard to the Commission's choice of councils, to which financial assistance may be granted by the Commission in terms of section 37(2).
My Board suggests that the possibility of establishing "Sub-Commissions" be explored, being a Sub-Commission for cultural communities, and another for religious communities, and a third for linguistic communities, and that each Sub-Commission should be required to propose candidates for selection to the main Commission.
With kind regards
South African Council of Churches
Public Policy Liaison Unit
Submission on Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill (B62 - 2001)
The SACC welcomes the Bill and, in particular, the decision to allow the Commission to convene national consultative conferences on an occasional, rather than an annual, basis. At the same time, we raise concerns about several aspects of the Bill, including the powers of the Commission, the process for nominating Commissioners, the conditions for termination of a Commissioner's membership, and the definition and regulation of "cultural or other councils".
1.1 The South African Council of Churches (SACC) is the facilitating body for a fellowship of 24 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.
1.2 We welcome the publication of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill (hereafter, "the Bill") and extend our thanks to members of the Department who have worked diligently on the emerging legislation over the past three years. The Bill satisfies one of the last outstanding legislative obligations imposed by South Africa's new constitution and represents a further step in our collective efforts to consolidate a culture of tolerence, democracy and human rights.
1.3 The SACC has taken part in the two national consultative conferences on the implementation of sections 181-186 of the Constitution, held on consecutive Heritage Days in 1998 and 1999. We have also made submissions on two earlier drafts of the current Bill (11 September 1998 and 5 May 2000). We note with appreciation that many of the recommendations that we made in those submissions have been addressed in the Bill.
1.4 We broadly endorse the architecture and provisions of the Bill. In particular, we applaud the fiscally-responsible decision to allow for occasional, rather than annual, national consultative conferences. We also support, with certain reservations, the proposal to establish a selection panel to review nominations to the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (hereafter, "the Commission") and to develop a short list of candidates.
1.5 At the same time, we urge the Portfolio Committee to give further consideration to several aspects of the Bill, including:
The objects and powers of the Commission;
The nomination of Commissioners;
The conditions for termination of a Commissioner's membership;
The definition and regulation of "cultural or other councils".
2.0 Objects and powers of the Commission
2.1 The emphasis of Commission's work should be on fostering mutual understanding of and respect for our nation's many cultural, religious and linguistic communities so that all will value our diversity as a source of national pride, creativity and strength. The Commission must not become a vehicle simply for the protection of the narrow interests of one community or another, but must promote peace, tolerance, and cooperation among all communities on the basis of equality, non-discrimination and free association. We therefore believe that section 4 delineates the Commission's objects appropriately.
2.2 Section 21 details the powers available to the Commission to pursue these objects. These include: research (including data collection and compilation and investigatory powers), education (including responsibility for reporting and public information and education campaigns), and advocacy (including lobbying and advisory roles). The Commission is also authorised to "facilitate the full and active participation of cultural, religious and linguistic communities in nation building in South Africa".
2.4 Missing from this list, however, are the powers of mediation and conflict resolution which have consistently been included in earlier drafts. In its first submission on the draft bill in September 1998, the SACC argued:
Mediation should not be limited to intervening in active disputes, but should also involve establishing and maintaining channels of communication that can help to identify and defuse incipient conflict. The Commission should have the power and the capacity to mediate:
in intra-groups conflicts, where a group's own adjudication structures are non-existent, inappropriate, or detrimental to a party's constitutional rights;
in inter-group conflicts, where other state adjudication structures are inappropriate;
in conflicts between a particular group and the government; and
in other situations of social tension where mediation may serve a useful role.
Generally, intervention by the Commission should be at the request of both (or all) parties to a dispute, although in certain cases--such as those involving violation of the constitutional rights of one party--the Commission may intervene at the request of one of the parties. The Commission should encourage inter-group communication and joint problem solving by facilitating inter-faith and cross-cultural fora and activities. Finally, it should monitor potentially volatile situations with an eye to identifying strategies and opportunities for diminishing tensions and heading off violence.
We continue to believe that the Commission should be explicitly empowered to play a role in mediating disputes and facilitating the resolution of conflicts in situations where other institutions are either unavailable or inappropriate.
3.0 Appointment of Commissioners
3.1 Section 7 of the Bill establishes a procedure for the appointment of Commissioners. It introduces a new step in the process that was absent from earlier drafts: the appointment by the Minister of a selection panel to review the nominations received and to develop a short list of candidates to be forwarded to the President for his or her consideration.
3.2 Section 7(1)(a) states that all "organisations and individuals within the cultural, religious and linguistic communities of South Africa" must be invited to nominate eligible individuals to serve as Commissioners. We suggest that this provision deserves further consideration. If individuals are to be invited to nominate Commissioners, then the phrase "within the cultural, religious and linguistic communities of South Africa" is superfluous; presumably every individual in South Africa is in some cultural, religious or linguistic community. If, on the other hand, the objective is to ensure that the candidates proposed have connections with-or at least enjoy the support of-some organised cultural, religious or linguistic group in South Africa, then nominations should not be solicited from individuals. We believe that the latter approach would also discourage the public from deluging the selection panel with unsuitable nominees.
4.0 Termination of membership
4.1 Earlier versions of section 12 of the Bill stipulated that a Commissioner would be regarded as having resigned from the Commission if she or he accepted a nomination to a national, provincial or local legislative body or was appointed as an office bearer in a political party. (Alternatively, if a Commissioner held any of these offices at the time of her or his appointment, the person was to have 30 days in which to resign such office.)
4.2 This provision has been deleted from the Bill. We believe that it was a desirable mechanism to ensure the independence of the Commission and to minimise potential conflicts of interest. Consequently, we would urge the reinstatement of a slightly amended version of section 12(3), as it appeared in the fourth draft of the Bill:
A member shall be regarded as having resigned if that member --
accepts a seat in the National Assembly, the National Council of Provinces, a provincial legislature or a municipal council;
accepts an appointment as an office bearer of a political party; or
holds any position contemplated in subsection (a) or (b) at the time of his or her appointment as a member of the Commission and fails to resign that position within 30 days of having been appointed as a member of the Commission.
5.0 Cultural or other councils
5.1 Cultural councils can play an important role in promoting appreciation of and pride in our nation's rich and diverse heritage. Organs of state--and the Commission in particular--should create an environment conducive to the formation and activities of cultural councils and should encourage them to interact in a spirit of respect, co-operation and interdependence. It is less clear that statutory recognition of cultural councils is beneficial or even necessary to this process. However, section 185(1)(c) explicitly mandates the Commission "to recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council for a community or communities in South Africa". Thus, the Bill cannot be silent on this matter.
5.2 A number of problems with earlier drafts of the Bill have been resolved. First, the Bill clarifies the process by which a council is recognised, transferring the power to recognise councils from the national consultative conference to the Commission itself [sec. 37(1)]. This seems a much more workable and efficient system. The Bill also makes the benefits of securing recognition more obvious: a recognised council has the right to send up to two delegates to any national consultative conference [sec. 26(1)(c)] and to apply for state financial assistance [sec. 37(2)].
5.3 However, section 36 of the Bill leaves a number of important questions unresolved, including:
What defines a community? Are communities self-defining, or is it permissible to exclude people from a community if they do not meet certain criteria? Who decides?
What constitutes an "other" council? Might this involve the recognition of religious councils, such as the SACC, the Muslim Judicial Council, or the Jewish Board of Deputies? What objective criteria will be used in deciding whether or not a council should be recognised by the Commission? Should cultural and "other" councils be subject to a uniform set of recognition criteria?
5.4 We are unable to propose legislative solutions to these questions, but feel that they must be considered by the Portfolio Committee. We are especially conscious of the fact that immigration and social forces are constantly creating new communities within our borders. The test of what constitutes a community must therefore be open and flexible rather than closed and rigid. Furthermore, the Commission's work must facilitate the formation of identity and consciousness amongst these groups, enabling them to play an active role in building a strong, multi-cultural nation.
6.0 Accountability of councils
6.1 The state must require that cultural and other councils demonstrate respect for fundamental constitutional principles of tolerance, democracy, transparency, and accountability. Furthermore, if recognised councils are to be eligible to receive public funds, then the state has a duty to ensure that they operate in a manner consistent with principles of sound financial management. The state has already established a mechanism to promote public accountability and sound financial management among civil society organisations through the Non-Profit Organisations Act (Act No. 71 of 1997). We therefore propose that section 37(2) be amended to read:
The Commission or any other organ of state may provide financial assistance to a cultural or other council only if --
it is recognised in terms of subsection (1); and
it has been registered in terms of section 13(5) of the Non-Profit Organisations Act, 1997 (Act No. 71 of 1997) and complied with any other requirements imposed in terms of that Act.
This formulation has the added advantage of making the disbursal of public funds-rather than an application for funding-contingent on satisfaction of the relevant criteria.
2 October 2001
Commission for the promotion and protection of the rights of cultural, religious and linguistic communities Bill
By: Dr. Chris Landman
A critical analysis of the document 'Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill', in as much as it is warranted, by and large depends on an idea of State.
The idea of state that is subscribed to is intertwined with the question on how society should ideally be structured. There are four known principles underlying the organisational structure of different kinds of societies:
· a society governed by humanistic individualism (the model of liberalism)
· a society governed by collectivism ( the model of centralism)
· a society governed by pluralism (the model of separatism)
· a society governed by unity in diversity.
The purpose of this presentation is therefore, (a) to identify the idea of state that is subscribed to and (b) to apply that idea of state to the Draft Bill.
Unity in diversity
A society is advanced in this document which is structured according to unity in diversity. In the structuring of society according to unity in diversity, a distinction is made between:
· institutions of civil society according to private law (like structures of cultural, religious and language communities) and
· the state and institutions of state according to public law (of which the Commission is an example). Institutions of civil society enjoy internal self-determination according to the character of each specific institution of civil society.
Idea of state
The state and (sub)structures of the state which are political in nature are dependent on an idea of state, which is known as the material law state. The state and (sub)structures of the state utilise just laws to structure society in such a manner:
· that the internal self-determination of institutions of civil society are being honoured, respected and advanced;
· gives expression to all natural differentiations in society that may exist, such as community structures of culture and to different religious directions in society; and
· advances the general well-being and public justice of society as a whole and not only of a segment. The organisation of society according to unity in diversity stands in opposition to the structuring of society according to collectivism or liberalism.
Seen and judged within the context of our idea of state, it is self-evident that the proposed Commission, which is a structure of public law, can play a vital role to represent the interests of cultural and/or religious structures of communities in relation to (a) the different communities itself and (b) the state.
Evaluation of the Commission
Only those articles in the Draft Bill that warrant comment will now be dealt with, article to article, where applicable.
· Since the scope of the aspects of the Commission, as explained under Powers of the Commission (articles 21 and of the nature of the Councils (articles 31 and 38) are so wide and multi-faceted, it is not advisable that the act be administered by a specific member of the Cabinet (article 2), but instead by either the office of the President or the Deputy President. Should the recommendation be accepted, that would require that 'Minister' in the text be replaced by Deputy President.
· Regarding the status of the Commission and in view of the principle of self-determination of cultural, religious and linguistic communities, the principle of the of the Commission should be added to the Status of the Commission under article 3.
· Regarding the Composition of the Commission (part 3), it is recommended that the Commission be broadly representative (5(3) a] but that due regard also be given to the expertise of the members of the Commission, which would require an addition as [S5 (3) c].
Evaluation of the provision for Cultural and other Councils
As far as Cultural or other Councils are concerned (part 8) the emphasis should be placed on the right to self-determination of the Councils.
Article 36 as it stands is prescriptive and amounts to the interference of State in the internal affairs of ethnic or cultural communities by exercising a discretion to 'recommend' to a community the establishment of a council "if the establishment of such a council (be) conducive to peace, friendship, humanity, tolerance and national unity among and within the different communities in South Africa". In this regard the question should be asked whether this clause, as it stands, could not be used by the Commission under article 37 to refuse to recognise a Council?
Article 37 again, read together with article 36, subjects the recognition of a Commission to the qualification that a Council would be recognised if it "can assist the Commission in achieving its objectives?' This clause is, therefore, directly in conflict with the principle that structures of civil society enjoy self-determination from state interference.
Although one does not want to be prescriptive to a Council regarding its internal functions, it is nevertheless highly advisable that, in a multi-cultural society of different and exclusive religious directions the functions of state, which are closely interlinked with the mode of existence of particular cultural and/or religious communities, be devolved to the Communities and thus to the representative Councils.
It is consequently recommended that article 37 be rewritten as follows:
(1) The Commission may in writing recognise a cultural or other council on request from that council. (2) The Commission may on request of a Cultural or other Council recommend to government that certain functions of government pertaining to specific aspects closely related to a specific community, be devolved to the relevant Cultural or other Council
(3) A cultural or other council recognised in terms of subsection (1) and (2) may apply to the Commission or any other organ of state for administrative and/or financial assistance in the exercise of its functions and in promoting the ideals of the Commissions.
The Technical Committee painstakingly tried in its recommendation to government to establish the Commission as an independent body that would represent the interests of the various and different cultural and/or religious communities in an unbiased manner. It is noted that nowhere in the text is the independence of the Commission stressed. It is further observed that the clause recommended by the Technical Committee was left out and that an office bearer of a political party is not eligible to the ranks of the Commission.