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MEMBERS' AND PROVINCIAL LEGISLATIVE PROPOSALS STANDING COMMITTEE
27 November 2003
VAN NIEKERK'S COMMISSION FOR PROMOTION & PROTECTION OF RIGHTS OF CULTURAL, RELIGIOUS & LINGUISTIC COMMUNITIES AMENDMENT BILL: CONSIDERATION
Chairperson: Mr P Matthee (NNP)[KZN]
Document handed out:
Memorandum on proposed amendments to the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act 19 of 2002 (Appendix)
Previous minute on this proposal: 12 Sep 2003 Van Niekerk's Commission for Promotion & Protection of Rights of Cultural, Religious & Linguistic Communities Amendment Bill
The Committee having received a proposal from Mr A Van Niekerk to amend the provisions of the Commission for Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act met to consider the proposal. It felt that further consultation on this matter still need to be conducted and thus mandated its Chairperson and Mr B Mkhaliphi to conduct such consultation and thereafter report back at the first meeting of 2004.
The Chair noted that this is still a consultative meeting of the Committee in terms of Rule 171(2) and as such the Committee would not take any decision on the matter.
Mr A Van Niekerk (NNP)[NC} explained that one the functions of this proposed Commission would be to act as a watchdog on behalf of traditional leaders and thus ensure that their cultural, religious and linguistic communities' rights are protected at all costs.
The Chair proposed that the Committee should mandate Mr B Mkhaliphi (ANC)[Mpumalanga] and himself to make further consultation in this regard and thereafter report back to the Committee in its first meeting next year.
Mr Mkhaliphi said that, without taking anything away from the proposal made by the Chair, the Committee should note the concerns that he registered in the previous Committee meeting regarding this proposed amendment. Amongst the concerns that he had raised was the timing of the proposal amendments since he believe that they are not necessary at this stage as the proposed Commission is still in its evolution stage and the plans to establish it are in the pipeline. Notwithstanding this, he felt that it is important that every member should support the initiatives made by other members and therefore commended Mr Van Niekerk on this initiative.
The Chair then thanked his colleagues for their support through the year, the committee secretariat for their hard work and the media on its monitoring function as such keeps the members on their toes at all the times.
The meeting was adjourned.
MEMORANDUM BY MR VAN NIEKERK
The purpose of this memorandum is to obtain the permission of the National Council of Provinces in terms of rule 163(1) to initiate legislation.
The memorandum sets out:
a) Particulars of the proposed legislation
b) The objects of the proposed legislation
c) The financial implications for the state
1. Particulars of the proposed amendments to Act No.19 of 2002 (Commission for the Promotion and Protection of the Rights of CuItural, Religious and Linguistic Communities Act)
As the above Act does not have any provision to enable the Commission to enforce any of the recommendations, amendments to this effect is proposed.
- To afford the Commission in the "Act on the Promotion and Protection of the rights of Linguistic, Cultural and Religious Communities" more effective powers as envisaged by the South African Constitution as set out in Section 185
- To involve the relevant parliamentary committees in the activities and establishment of the Commission.
The financial implications for the State
Name of member: Adriaan E Van Niekerk
Date: 24 July 2003
PARTICULARS OF THE PROPOSED AMENDMENTS TO ACT NO.19 OF 2002
(COMMISSION FOR THE PROMOTION AND PROTECTION OF THE
RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES
1. If any reasonable endeavour fails and provided that the Commission is of the view that there are good reasons to address the matter further, the Commission shall assist the complainant or other persons adversely affected to secure redress by -
1.1 Referral of the matter, with an instruction, to the organ of state against which the complaint was lodged;
1.2 Instructing that the organ of state against which the complaint was
lodged provide the complainant with financial or other assistance with a view to redressing any damage;
1.3 Providing, in its sole discretion, the complainant with financial or other assistance to redress any damage; or
1.4 Making arrangements for or providing the complainant with financial or other assistance to enable the community to obtain relief from any
other organ of state or a court of law.
2. Any organ of state affected by instructions in terms of the above subparagraphs (1) and (ii) of subsection 7 of this section must execute the instructions given.
3. The Commission shall inform the complainant of its decisions and, in a case where the Commission has decided to take no action, it shall inform the complainant of the reasons for such decision.
4. If within a reasonable time after the Commission has published a finding that a language, religious, or cultural right of a community has been violated, policy or practice has been violated, adequate and appropriate action has not, in the opinion of the Commission, been taken thereon, the Commission may -
4.1 Submit its findings to the Parliamentary Committees in Parliament responsible for matters concerning this Act for consideration and the taking of appropriate steps to secure compliance with the Commission's findings;
4.2 Refer the matter to -
4.2.1 The Public Protector if the non compliance with the Commission's findings relates to any impropriety on the part of an official or an organ of state;
4.2.2 The South African Human Rights Commission -
(a) if the non-compliance with the Commission's findings involves the violation of a human right as protected in terms of Chapter 2 of the Constitution; or
(b) if there are reasonable grounds to believe that the complainant has been threatened, intimidated or discriminated against due to involvement in lodging a complaint, a finding or other involvement in an investigation under this Act.
4.2.3 In consultation with the complainant, apply to a Court for an appropriate remedy, including -
(a) an interim order;
(b) a declaratory order;
(c) an interlocutory order or interdict;
(d) an order for the payment of any damages;
(e) an order for the implementation of special measures to address the situation complained of;
(f) an order to comply with any provision of this Act, or a published finding, recommendation or decision of the Commission;
(g) an order that an appropriate amount must be set aside for the realisation of language, religious or cultural rights of the complainant.
5. Where the Commission is of the opinion that an official, an organ of state or an institution has -
(a) willfully disregarded or acted in contempt of the findings or decisions of the Commission; or
(b) frustrated the timeous and effective implementation of the findings or decisions of the Commission; or
(c) failed to give adequate reasons for the non-compliance or timeous compliance with the Commission's findings or decisions;
it may apply to the Court for an order of costs in its favour.
INTRODUCTION TO THE PRIVATE MEMBERS LEGISLATIVE PROPOSAL ON "ENFORCEMENT POWERS FOR THE 185 COMMISSION" - BY ADRIAAN E VAN NIEKERK (MP) AND LANGUAGE OMBUDSMAN ON FRIDAY 12 SEPTEMBER 2003
Thank you for the opportunity to introduce this long overdue proposal.
This proposal was envisaged on 12 June 2002 when we debated the Bill that established the Commission.
The Deputy Minister, in her reply to the debate said, and I quote from the
"I feel that the powers that are in the Bill are sufficient to get us started. We will await the private member's Bill which the honorable Van Niekerk referred to and again we will sit in this House and debate that."
According to the preamble to the Constitution, South Africa belongs to all that live in it, united in our diversity. In other words, within the process of nation building our diversity is not to be ignored, but to be utilised as a building block.
In accordance with this point of departure, the Constitution provides for 11 official languages in section 6 and for the right to use the language and participate in the culture of one's choice in section 30, to join with others for this purpose in section 31, to be educated in the language of one's choice, where practicable, in section 29(2) and to enjoy freedom of religion in section 15. Traditional leaders, indigenous law and systems of religious, personal and family law are recognised in sections 211, 212 and 15(3).
Provision has now been made for a commission to protect and promote the rights of cultural, religious and linguistic communities in terms of sections 185 and 186. The Constitution clearly recognised our diversity in these provisions and we have the responsibility to give effect to this point of departure in our legislation.
When we are engaged in this legislation establishing the section 185 commission, excessive restrictions on the commission in respect of its powers would be inconsistent with this point of departure. As a matter of fact, the more effective the powers of the commission, the better it will be able to contribute to the integration of our diversity into our nation-building efforts. The provisions of subsections 185(2) and (4) envisage the powers that will be conferred on the on the commission by this enabling legislation.
The argument was advanced in the select committee by the department that the section 185 commission is supposed to promote, rather than to protect the rights of cultural, religious and linguistic communities and therefore does not require powers to enforce its decisions. We agree that the emphasis should be on promotion, but, apart from the fact that one is not allowed to read the supreme Constitution as selectively as this, the argument is, in any case, based on the false assumption that in order to promote these rights, the commission does not require powers of enforcement. How will the commission be able to promote the rights effectively if it is unable to enforce its decisions?
It has also been alleged that such enforcement should be left to the Human Rights Commission as the proper institution to protect rights. This argument does not reflect the co-operative approach followed in the Constitution. The constitution-makers intended that the commission should focus on a particular aspect of human rights as mentioned, not to the exclusion of the Human Rights Commission's work, but complementing it. I have no doubt that the commission requires powers of enforcement in order to achieve its objectives and to strengthen our constitutional democracy.
The legitimacy of the commission will be undermined if it is unable to deliver real solutions to violations of the language, cultural or religious rights of communities. PanSALB is a very good example of exactly that. The enabling legislation may even be unconstitutional if it restricts the powers of the constitutional body. For these reasons it is essential to provide for effective powers for the commission.
We provided amendments that were declined on - to quote the hon Ralane, a member of the committee, "political grounds". I am sure that something else was meant.
We have tabled this private member's legislative proposal to come into effect as soon as possible and we hope that we will jointly be able to strengthen this Act before the commission starts its very important and reconciliatory work. We are prepared to work side by side with the Hon the Minister and the Department to achieve this.
The people of South Africa have waited a long time for the establishment of this commission and we are glad to see the birth of this instrument that will really contribute to nation building.
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