Procedure for Private Members' Proposals; Multilingualism Draft Bill: briefing

Meeting report

MEMBERS' AND PROVINCIAL LEGISLATIVE PROPOSALS SELECT COMMITTEE
19 April 2000
PROCEDURE FOR PRIVATE MEMBERS' LEGISLATIVE PROPOSALS; PROMOTION OF MULTILINGUALISM BILL: BRIEFING

Documents handed out:
Bills Initiated by NCOP Members - Procedure and Rules (Appendix 1)
Memorandum on the Promotion of Mutilingualism Bill (Appendix 2)
NCOP Rules

Chairperson: Mr PA Matthee

SUMMARY
The committee was briefed by the Chief Parliamentary Law Advisor on the procedure for NCOP members or provincial legislatures introducing legislative proposals in the NCOP (as laid down in the Rules of the NCOP).

The Promotion of Multilingualism Bill, a legislative proposal submitted by Mr A van Niekerk (Chief Whip NNP), is aimed at giving effect to the constitutional provisions on multilingualism. The Bill proposes that the policy of national government institutions on multilingualism be based on a principle that at least four categories of languages shall be used so as to promote the parity of esteem in written and oral communications by government. In implementing the policy government has to consider factors such as usage, practicability, expense, regional circumstances, and where necessary preferences and needs of the community. The Minister of Arts, Culture, Science and Technology has to investigate and report on the implementation of multilingualism policy in non-state institutions that provide a service to the public, the tourism industry, trade and industry, the public broadcasting media, and emergency services. The Minister is also responsible for Certain mechanisms are proposed for application by the Minister to promote effective implementation of multilingualism in the public sector.

MINUTES
Rules and Procedure for Private Members' Legislative Proposals
Mr Anton Meyer, Chief Parliamentary Law Advisor, stated that Rules 147 to 150 of the Rules of the NCOP provide for the composition as well as the functions and decisions of a Committee on Members' Legislative Proposals.

He said that Section 73(4) of the Constitution and Rules 163 and 178 of Rules of NCOP provide that any committee or member of the Council may introduce a Bill in the NCOP. He said this in not interpreted as an absolute right for a member to introduce a Bill as they can only do so with the permission of the Council.

Procedure for Introduction of Legislative Proposals (Rule 178)
Rule 178 requires a member intending to introduce a section 76(2) Bill (or legislative proposal) in the Council in an individual capacity to prepare a memorandum setting out: particulars, the object and financial implications, of the proposed legislation. This memorandum has to be submitted to the Chairperson of the NCOP.

Referral of Proposals to Committee (Rule 179)
Rule 179 requires the Chairperson to refer the memorandum to the Committee on Members' Legislative Proposals. The Committee must consult with the relevant select committee, and if after such consultation the Committee finds that the Bill has significant financial implications, it must request the Chair of the NCOP to refer the member's memorandum to the appropriate select committee for a report on the financial implications of the proposal.

Various factors have to be taken into account by the Committee including the select committee report if any. The Committee must recommend that permission either be given to the member to proceed with the Bill, or refused. If the Committee recommends that the Bill be proceeded with, it may comment on desirability of the proposal; recommend Council's approval of Bill in principle; or recommend that permission be given subject to conditions.

Council's Consideration of Proposal (Rule 180)
Rule 180 provides for the memorandum and recommendation of the Committee, including any views of a select committee, to be sent to all the provincial legislatures. Each province has one vote and voting mandates would be required. The memorandum has to be placed on the Order Paper for a decision in terms of section 65 (1) of the Constitution.

Council's Options (Rule 180(2))
In terms of Rule 180(2) the Council has discretion to give permission that the proposal be proceeded with, refer the proposal back to the Committee or select committee for a further report, or refuse permission to proceed.

Preparation of Draft Bill (Rule 181)
If the Council gives permission that the proposal be proceeded with, the member concerned must prepare a draft bill and memorandum on the objects of the bill and official translation. The member must consult the JTM for advice on classification of the Bill. Rule 181(2) requires the Secretary to Parliament to reimburse a member for reasonable expenses incurred in drafting the Bill, with the prior approval of the Chairperson of the Council.

Notice and Publication of Draft Bill in Government Gazette (Rules 181(1)(c) and 186)
The member must give notice in the Government Gazette of intention to introduce the Bill. The member may publish in the Gazette either an explanatory summary of the Bill or the draft Bill itself.

Introduction of the Bill
The member has to submit the Bill to the Chairperson of the Council, together with a supporting memorandum complying with rule 188(1)(c). The cover page must contain a reference to the member introducing the Bill, that is the person in charge of the Bill as defined in rule 1. This has to be accompanied by a statement that the Bill is introduced with Council's permission.

Promotion of Multilingualism Bill
Mr A van Niekerk (NNP) presented the memorandum on his legislative proposal to the Committee.

The Chairperson, Mr Matthee, stated that the Committee would decide on the Bill soon after recess. A meeting would be held with the relevant select committee and the Department of Arts, Culture, Science and Technology would be invited to hear their views regarding the Bill. A decision would be taken on whether to advertise for further input on the proposed Bill.

As motivation, he stated that the proposed legislation arises out of the need to give form to the constitutional duty to promulgate legislation regulating and monitoring the state's use of official languages. The purpose of Section 6 of the Constitution is to end the domination of one or two languages in South Africa, to develop the nine indigenous languages and to promote respect for each other's language.

The proposed legislation is aimed at ending the uncertainty in the public and private sectors regarding the implementation of the multi-lingualism policy by providing national norms and standards. The proposed legislation will establish guidelines to deal with complaints to support PANSALB's decisions. Up to now PANSALB have dealt with more than 80 complaints against State institutions over unfair language requirements or policy decisions.
The legislation is also an opportunity for the Departments of Arts, Culture, Science and Technology to work with the Committee to speedily and thoroughly develop a comprehensive Act on multi-lingualism for South Africa, thereby filling the current gap of statutory guidelines to promote multi-lingualism.

Appendix 1:
BILLS INITIATED BY NCOP MEMBERS

1. COMMITTEE ON MEMBERS' LEGISLATIVE PROPOSALS (Rules 147 - 150)
* Composition
* Chairperson
* Functions
* Decisions

2. INITIATION OF LEGISLATION
Any member may introduce a Bill in the Council, with the permission of the Council (section 73(4) of the Constitution, NCOP rules 1 63 and 1 78).

3. LEGISLATIVE PROPOSALS (Rule 178)
* Memorandum setting out -
- particulars
- objects
- financial implications

* Submit memorandum to Chairperson

4. REFERRAL TO COMMITTEE (Rule 179)
4.1 Chairperson refers memorandum to Committee on Members' Legislative Proposals.

4.2 Committee must consult with relevant select committee.

4.3 If significant financial implications - Committee requests Chairperson to refer to appropriate select committee for a report.

4.4 Committee must recommend
* permission to proceed
or
* permission be refused,

4.5 Committee may -
* comment on desirability of proposal
* recommend approval in principle
* recommend conditions.

5. COUNCIL'S CONSIDERATION OF PROPOSAL (Rule 180)
* Memorandum and Committee's recommendation sent to all provincial legislatures
* On Order Paper for decision

6. COUNCIL'S OPTIONS (Rule 180(2))
* Permission to proceed with the proposal
* refer back to Committee
* refer to select committee concerned
* refuse permission to proceed.

7. PREPARATION OF DRAFT BILL (Rule 181)
* Member prepares draft bill and memorandum on objects (and official translation).
* Member consults JTM on classification of Bill.
* Secretary to Parliament reimburses member for reasonable expenses incurred with prior approval of Chairperson.

8. NOTICE IN GOVERNMENT GAZETTE (Rules 181(1)(c) and 186)
* Member gives notice in Gazette of intention to introduce Bill.
* Member publishes in Gazette, either explanatory summary of Bill or the draft Bill itself.

9. INTRODUCTION OF BILL
* Member submits Bill to Chairperson, together with a supporting memorandum complying with rule 188(1)(c).

* Cover page must contain:
- reference to member introducing Bill (that is the person in charge of the Bill - see definition in rule 1).
- statement that Bill introduced with Council's permission.

Appendix 2:
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.