South African Languages Bill [B23-2011]: Minister & Department of Arts & Culture Response to Submissions

Meeting report

The Chairperson expressed disappointment that the Department of Arts and Culture’s (DAC) legal team had left during the public hearings the previous week. In addition the submission of the response document was late. The rules of Parliament dictate that documents should be submitted at least a week before the meeting.

Mr S Ntapane (UDM) said that he has seen the response document for the first time only at the meeting. The Committee had to read the document and understand first before it was presented.

Dr A Lotriet (DA) agreed with Mr Ntapane but urged that the Committee continue due to time constraints, the Committee could reserve its comments.

Ms L Moss (ANC) said that although the Committee was disappointed with the late submission from the DAC, they should continue with the presentation.

Mr Sibusiso Xaba, DAC Director General, apologised but said that the public hearings ended on Wednesday and on Thursday and Friday there was to be a Cabinet Legotla and the DAC would not be able to consult with the Minister. The DAC legal team had to leave the public hearings due to logistical reasons.

Ms P Duncan (DA) said that the apology should have been an apology without any ‘buts’. The Committee accepted the apology but not the excuses.

Department of Arts and Culture Director General Comments
Mr Sibusiso Xaba, DAC Director General, said that language was about identity and how people viewed themselves. There were however many issues concerning language such as multilingualism. These issues had to be taken into consideration where the drafting of legislation was concerned; the Constitution however should be the point of departure. Legislation as well as other government interventions should be used in order to promote, preserve and develop all official languages. It was important to note that there was already legislation in place that dealt with some of the issues raised during the public hearings. Multilingualism was already dealt with by the Pan South African Language Board Act (PanSALB) for instance. This Bill was concerned with the use of languages for government purposes specifically at national level. One of the comments often repeated about the 2003 Bill was that it should be preferred. However the 2003 Bill was broad and all encompassing whereas the current Bill was specifically about government interaction with citizens via the use of language. It was also important to take into consideration practicability which was provided for in the Constitution. The DAC could either adopt a broad and all encompassing Bill that may not be implementable or a specific Bill that would be a first step towards opening more doors.

The DAC was of the view that the latter option should be selected as a starting step towards developing language use in government. On the issue of provinces it should be noted that there were two provinces that had a language Bill as well as the fact that all provinces already had a language policy in place. The National Language Forum (NLF) coordinated the use of languages at provincial level. Other provinces were in the process of promulgating their own language acts. The point of departure for purposes of the Bill was the provision of the use of at least two official languages by the Constitution. The use of all eleven official languages was ideal however right now it may not be practical. The cost factor was also going to pose a problem. It was important to note that all the languages should be treated equitably however the department was not of the view that all official languages could be used equally all the time as this may not be practical.

Department of Arts and Culture Response to Submissions on South African Languages Bill
Ms Doris Tshefe, DAC Legal Services, explained the constitutional mandate of the DAC under Section 6 of the Constitution as well as the entire Bill as it was drafted. This was the context within which the Bill was to be understood. It was important to note that the Bill was giving effect to Section 6 of the Constitution (see paragraph 4 of the response document). The purpose of the Bill was to provide for the regulation of the use of languages by government. The Bill applied to national public entities, departments and national public enterprises. There was concurrent competence between national and provincial government on languages particularly where the provincial legislative competence was concerned. The DAC wanted to include sign language under a language policy which also had to contain a complaints mechanism. The exemption clause in the Bill gave the Minister of Arts and Culture powers to exempt a particular public entity from establishing a language unit however an official had to still be appointed to deal with language policy within that particular department. The Minister was also empowered to consult with PanSALB on the drafting of the regulations. The Bill provided for a minimum of two official languages not that only two official languages should be used. The DAC was of the view that 18 months was a reasonable period within which departments should adopt the national language policy. The role of PanSALB as well as those of the national language units was important to understand. The national language units were important and augmented government’s monitoring of its use of official languages. PanSALB on the other hand monitored the use of official languages and it also developed them. The Bill did not take away PanSALB’s powers in this regard. The Bill also did not duplicate PanSALB’s powers.

In terms of marshalling compliance there was PanSALB, Parliament as well as the courts as a matter of last resort. The DAC would consider the amendment of Clause 4(2)(a) to include the use of three official languages, two of which had to be indigenous languages with historically diminished use. The issue of sign language and how those citizens who used it were to be assisted at a particular department had to be specified in the official language policy of such a department.

Discussion
The Chairperson said that the DAC’s responses did not do the public submissions much justice. The DAC spoke more about the Bill as opposed to the submissions. Paragraph 7.5 was a concern as PanSALB was dysfunctional, they could not even provide a proper account of their finances to Parliament and now to provide that the National Language Unit (NLU) must report to them, was suicide. Could there be clarification on Paragraph 7.2, how were the issues raised during the public hearings to be addressed in the regulations? Under Paragraph 6.1.2 why was English still included?

Dr Lotriet said that the Bill has been drafted to comply with the court order and not to promote multilingualism and address the language issue in South Africa. An example of this was Paragraph 6.1.3, this was a big flaw. The Bill did not mention what would happen if there was no compliance, PanSALB was weak and it was not everybody who could afford to go to court. What of the poorest of the poor? Paragraph 7.1 stated that ‘the Bill was not the appropriate mechanism to address multilingualism’. This was exactly what the Bill was supposed to do. The response of the DAC was not up to standard.

Ms F Mushwana (ANC) said that the 18 month period stipulated in the Bill for the implementation was adequate.

Mr Ntapane said that he was also concerned with Paragraph 7.1.

Ms Moss said that the Committee did not have far to go before the next elections, the 18 month period was long and might overlap with the remaining term of the Committee. The Committee had to leave a legacy and ensure that all mechanisms and policies were up and running during the 18 month implementation period before the next elections.

Ms Duncan said that it was strange that PanSALB had given a better submission than the DAC. This was not acceptable on the part of the Department. It was important that when government communicated to its people, it did so in a language they understood. It was understandable that there may well be serious cost factors involved with the inclusion of all eleven official languages.

The Chairperson said that she understood that the DAC was one of the least funded departments, however costs should not hamper social change.

Mr Paul Mashatile, Minister of the DAC, said that he agreed that the issue of multilingualism was very important. The role of promoting multilingualism had to be played by PanSALB in addition to promoting, preserving and developing languages. The PanSALB Act was broad as opposed to the Bill. The reason why the 2003 Bill was withdrawn was because Cabinet was of the view that other measures besides legislation had to be used to promote languages, this was how language units came about. The Department wanted to provide for the use of an indigenous language whose use was historically diminished. A national department in the Eastern Cape or Limpopo would surely not choose English and Afrikaans as their two official languages, they would probably use Tshivenda and Xhosa as well. It was clear that Members did not want to leave this to chance and the drafters would look into tightening these provisions. The main issue was that national departments had to move beyond English and Afrikaans only. Since the PanSALB Act promoted multilingualism, the Bill could not do the same thing as this would cause duplication. The reporting of the NLU to PanSALB was because the latter had an over arching oversight role that included the enforcement of the Constitution. If necessary PanSALB could be strengthened. The issue of costs had to be considered, the drafters of the Constitution had taken this into account under Section 6. If departments wanted to use more than two languages as provided for by the Bill and they could afford it; they could do so.

The DAC would have to look at the submissions more carefully but one had to tread carefully as the Pan SALB Act was broad. PanSALB had to be re-looked at as it was also currently not functioning properly. The current Languages Bill was aimed at providing a beginning which would eventually lead to the promotion, use and development of all official languages. Once the Bill was deliberated on, Members could make amendments and this would enrich the process started by the Department.

Dr Joe Phaahla, Deputy Minister of Arts and Culture, said that the drafters would have to re-draft Clause 4 to provide for the minimum use of three languages, two of which had to be indigenous. The Bill was secondary in terms of promoting multilingualism; the primary piece of legislation on this matter was the PanSALB Act. The drafters should look at drafting guiding principles that would link the two pieces of legislation and give effect to PanSALB.

Ms Tshefe said that the Department was not proposing that English be included. Part of the response document was a summary of the suggestions made by the public during the hearings.

Ms Duncan asked the Minister how he felt about English. Was this going to be the number one language in terms of promotion.

Mr D Mavunda (ANC) asked if the process of passing this legislation was in line with satisfying the court order.

The Chairperson added that the Committee should not take shortcuts on this matter. Members were worried about PanSALB, despite its legislated powers, hence the worry also expressed by the public during the hearings.

Minister Mashatile said that English would not receive first preference, the Bill provided that there should be parity of esteem for all official languages. The languages that have historically been diminished as a result of being underused had to have first preference. The court order had specified that Section 6 of the Constitution had to be complied with. The process was now in Parliament.

Dr Lotriet said that the submission from PanSALB had useful suggestions about the regulations for the functioning of the language units. This had to be considered by the Department when the regulations were being drafted.

Ms Duncan said that the Minister was not specific. If two or more languages were going to be suggested in the Bill, which languages should be selected and in what order of preference. Was the Bill not going to guide the provinces on what provincial legislation on languages should look like?

Minister Mashatile replied that the Bill made provision for the languages to be used, it was the departments that would select which ones to use, taking into consideration multilingualism, population demographics etc.

Mr Xaba said that as soon as the Bill was passed, then the regulations would be drafted taking into consideration the submissions made during the public hearings as well as from PanSALB.

Ms Moss said that the Committee would make its recommendations in due time.

The Chairperson recommended that the Department should make the necessary changes. The Committee would consider these and add its own if necessary.

Mr Xaba said that the proposed amendments from the Department would be forwarded the following week.

The Chairperson adjourned the meeting.