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  • Die Taalsekretariaat
  • Doelstelling
  • SUBMISSION ON THE COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES BILL


    By

    DIE TAALSEKRETARIAAT


    To

    PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE.


    Executive Summary.


    Die Taalsekretariaat respectfully submit that the introduction of the Bill be suspended for at least two years. Our main concerns are that there are considerable overlapping between the proposed Bill and PANSALB legislation and the powers and functions of other Constitutional Institutions. The overlapping concerns issues of principle, and if the Proposed Bill is enacted, it will have a serious detrimental effect on all existing structures of state and non governmental organisations involved in promoting the status and use of the indigenous languages in South Africa. The enactment of the Bill will be contra productive in achieving the Objectives set out for the Commission and will further cloud the issue of legal certainty. The enactment should be suspended until the proposed South African Languages Bill becomes law. The government is addressed to face up to its constitutional obligations to promote multilingualism and to protect and enhance the status of the indigenous languages as a vital element in furthering constitutional democracy in South Africa.

    A.T. van der Walt. Chief Executive Officer Taalsekretariaat.
    Date 7 October 2001.
    Tel. 021-8872713 Fax. 021-8872710 Cel. 0824626480.
    Herold Street 15 Stellenbosch 7600.

    Introduction.

    Die Taalsekretariaat is a non-governmental organisation and a statutory Trust, governed by a Board of Trustees and funded from the private sector. The main objectives of the Trust are to promote the status and Constitutional rights of the indigenous languages of South Africa. It is our conviction that empowerment and constitutional democracy starts with the recognition of a first language of choice in all spheres of life. In the furtherance of its objectives Die Taalsekretariaat is involved in various educational projects, especially in previously marginalized communities, to introduce and sustain first language instruction. Other projects of note are the facilitation of language rights with the central and local government, financial contributions to a political dictionary with the ultimate aim being to make political terminology accessible in all eleven official languages of South Africa, and the financial support of students and academics in the realm of linguistics. Plans are in an advanced stage to launch a multilingual project in schools in the in the Western Cape.

    I have been given a mandate by the Trustees to present this submission to your Portfolio Committee.

    A.T. van der Walt. Chief Executive Officer.
    Tel 021-8872713 Fax. 021-8872710 Cell. 0824626480
    Herold Street 15 Stellenbosch 7600.

    1.  A Socio-Political Perspective.

    In terms of our Constitution, it is the responsibility of government to enhance, protect and enforce the civil rights of subjects and respect the rights of self-defined communities in terms of language, religion and culture. The government is thus obliged to observe the constitutional provisions relating to spontaneous and self-defined communal rights. The proposed COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES BILL is an example of legislation whereby government attempts to create an environment within which diverse cultural, religious and linguistic communities can survive. It is within the broad defines of the Constitution of the Republic of South-Africa, and a statutory framework created in terms thereof, that communal rights such as culture, religion and language must be respected, protected, and advanced.

    There is a plethora of academic opinions regarding the definition and impact of language, religion and culture on human behaviour. We submit in this presentation that these forms of human expression represent the very fibre and essence of human existence. Religion, culture and language are the conceptualisation of how humans experience and interpret reality and transcendental forces. These forms of human expression represent the armour within which communities experience basic human needs such as pain and pleasure; security and sin; empowerment and empathy. It is the predisposition of a particular culture that instils meaning to virginity and divinity. Religion, language and culture can unleash the most destructive forms of oppression, or elevate man to the pinnacle of expression, and the ultimate in human creativity.

    If government fails in its obligation to provide equitable and legitimate structures to cultivate and enforce the communal rights of communities, such a neglect will most certainly give rise to a feeling of deprivation in such communities. Past experience, backed by scientific evidence in the analysis of international conflicts, has proven that neglect by governments in the granting of credence to self-determination of minorities within the confines of the State, will inevitably lead to alienation, deprivation and conflict, thus seriously undermining the sovereignty of the State and the legitimacy of the Constitution. To quote but one authority on the subject:

    “ Culture assists us in differentiating between different communities. The concept has a role in most searches for an authentic identity. It remains a potentially powerful mobilising force in national and international conflict. In fact, the difficulties of intercultural understanding and the over-emphasis on ’cultural nationalism’ have kindled, and continue to kindle war within and between states” Rood: P1 Introduction.

    South-Africa as a multi-cultural society of different and exclusive religious, cultural and linguistic communities is a likely candidate for communal and group related conflict if the government does not provide a save haven within which communal rights can be exercised and protected.


    2.    Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill. (The Commission)

    The Bill is to introduce “a state institution supporting constitutional democracy” in terms of Chapter 9 of the Constitution of South-Africa. Other institutions created in terms of Chapter 9 are The South-African Human Rights Commission (HRC), the Commission on Gender Equality (CGE), the Public Protector, The Independent Broadcasting Authority, The Electoral Commission and the Auditor General.

    In this submission due cognisance has been taken of the fact that the “Commission for the Promotion and Protection of the Rights of Cultural, Linguistic and Religious Communities” is the result of negotiations which gave birth to the Constitution of South-Africa. It was on the insistence of a sector of the Afrikaans speaking community that provision was made for the creation of the Commission in the Constitution.

    It is our considered opinion to submit and respectfully request your Portfolio Committee not to proceed with the enactment of the proposed Bill and to suspend the introduction thereof for at least 2 years. The reasons for our stance, which will be argued in more detail below, are as follows:

      2.1  There is considerable overlapping of the powers and functions of the Commission with other Institutions of State such as the Human Rights Commission and statutory created bodies such as PANSALB and the proposed South-African Languages Bill, which in effect relegate the Commission in its present format to a sideline institution without real power and substance.


    3.   Overlapping of Functions and Powers.

    There is a symbiotic relationship between state-created institutions and legislation, which provide for the protection of language and cultural rights of the diverse communities in South Africa. This symbiotic relationship is to be found in the Constitution itself, Human Rights Commission (HRC), the PANSALB Act, the proposed South-African Languages Bill, the Commission, the Department of Arts Culture Science and Technology (DACST) and the nine language Committees operating in each province. To use but one example of the overlapping functions dealing with language:

  • HRC- to run information programmes promoting the linguistic rights of communities as contained in the bill of rights;
  • PANSALB- to create an environment where the use of languages in South Africa can actively be promoted, to engender respect between languages, to promote conditions for the development and use of the previously marginalized languages, and to monitor language violations;
  • DACST- to promote and facilitate as an organ of state, the diverse languages of South-Africa,
  • South-African Languages Bill, Draft 17 May 2000- to provide an enabling framework for promoting South Africa’s linguistic diversity and encouraging respect for language rights within the framework of building and consolidating a united, democratic South African nation, taking into account the broad acceptance of linguistic diversity, social justice, the principle of equal access to public services and programmes, respect for language rights and the establishment of language services at all levels of government, the powers and functions of such services, and matters connected thereto;
  • Objects of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.

      Art.4 (1)(a) To promote respect for and to further the protection of the rights of cultural, religious and linguistic communities;

      4. (1)(b) to promote and develop peace, friendship, humanity, tolerance and national unity among and within cultural, religious and linguistic communities on the basis of equality, non-discrimination and free association;

  • 4. (1)(c) to foster mutual respect among cultural, religious and linguistic communities; …
  • Western Cape Provincial Language Act 13 of 1998.

    Clause 13.(1)(a) to monitor the use of Afrikaans, English and isiXhosa by the Western Cape Legislature….
    [Editor note: should isiXhosa not be Xhosa in an English document?]
    13(1) (d) to advance the principle of multilingualism

    13(1) (e) to actively promote the development of the previously marginalized languages&bnsp;…

    Serious overlapping exists between the investigative powers of the Commission in the Draft Bill and PANSALB.

    In art. 21(1)(c) the Commission is empowered to:

    “ monitor, investigate ………….. advise and report on any issue concerning the rights of cultural, religious and linguistic communities;”

    To quote Dr. H.C. Rood, regarded as a leading authority in South Africa on cultural, religious and linguistic rights:

    “ The investigation of alleged language rights violations is an integral part to PANSALB’S functions. ……… all matters related to language rights, be they on an individual or on a group basis, are the responsibility of PANSALB. The proposed bill ought to steer clear of provisions concerning the investigation of language violations, unless those violations-

  • earmark certain types of complaints for investigation by the Commission, or
  • effectively support or fill gaps in the investigation procedures of PANSALB.

    Currently the proposed Bill does neither.” Rood: P267.

    The overlapping of powers and functions with other institutions of state is addressed in the proposed Bill. Art 22(2) regulates that:

    “ The Commission must co-operate with other Constitutional institutions and organs of state where the functions of the Commission overlap with those of such other Constitutional institutions or organs of state.”

    Whilst recognising the principle of overlapping, this provision in the Bill relegates the Commission to a marshalling yard between constitutional institutions and organs of state. There are no linguistic issues that are not covered in either the PANSALB legislation or the proposed South African Languages Bill. Instead of promoting “ respect for and [to] further the protection of the rights of cultural, religious and linguistic communities”, the enactment of the Commission will achieve quite the opposite, viz. frustration, alienation and ultimately conflict between the diverse communities of South Africa.

    As for the protection and promotion of the rights of cultural and religious communities, there are ample provisions in the Constitution to protect these rights:

    Section 31 states that-

      Cultural, Religious and Linguistic Communities

      1.   Persons belonging to a cultural, religious or linguistic community may not be denied the right with other members of that community.

        (a)   to enjoy their culture, practice their religion and use their language; and

        (b)to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.


    It is possible to protect linguistic rights only when confined to the relationship between state and citizen, and the relevant provisions in the Constitution. However it is not possible to protect religious and cultural rights in law. To question the validity of this state of affairs, one only has to ask the following: what remedies will be available to cultural and religious communities if their rights are violated?

    The overlapping of the objectives, powers and functions of statutory institutions are in principle undesirable and contributes to legal uncertainty, frustration and disrespect for the rule of law. Overlapping of the functions and powers of institutions dealing with linguistic, religious or cultural issues should be avoided. It is evident that there is considerable overlapping in the powers and functions of institutions dealing with linguistic issues. This state of affairs creates legal uncertainty and confusion amongst the various role-players, be it language practitioners, project managers, constitutional institutions or organs of state. The present institutional environment is not conducive to the advancement of language rights or the improvement of the status of the previously marginalized black languages of South Africa. It is a matter of grave concern that we as South Africans, seven years into the new dispensation, still have no legislation on the statute to regulate and protect the official languages. There are no remedial mechanisms in place to effectively monitor language violations. In a certain sense no legislation, bar the Constitutional provisions, is preferable to the present environment, where a number of institutions are mandated to protect, promote and monitor language rights, but at ground level and amongst institutions of state expectation has turned into frustrations.

    It is our sincere belief that the enactment of the proposed Bill will not solve any problems in this phase of the development of our democratic dispensation. It will further complicate the issues and will ultimately lead to an increase in the tension between cultural, religious and linguistic communities, instead of its aim” to promote respect for and further the protection of the rights of cultural, religious and linguistic communities”.

    We respectfully submit that:

    1. The only way in which religious and cultural self-determination can be achieved in the social and political sense, is where a community has full political self-determination over a geographically defined and constitutionally recognised territory;
    2. The converse of the argument is also true, if such a territory does not exist; it only increases the responsibility of government to create effective legal structures to deal with the violation of language rights, and to uphold the constitutional provisions of freedom of religion and freedom of cultural association.


    Conclusion.

    With due recognition to the potentially disruptive forces that are inherently part of a multi-cultural society, especially a society in transition such as ours, it is our conviction that the enactment of the proposed Bill will be counter-productive to achieving peace, friendship, humanity and tolerance, among and within cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association.

    We therefore argue against the enactment of the Bill and propose the suspension of the Bill for twenty-four months. In any event, this Bill should not be introduced prior to the enactment of the proposed South African Language Bill. The Bill could then possibly be reintroduced after a comprehensive process of public participation.


    What we need now is a diligent, conscientious and committed effort from government to face up to its Constitutional obligations and:

    • Recommit themselves to the letter and spirit of the bill of Rights as contained in our Constitution; more specifically the right of a citizen to speak the language of his choice, and the right of each and every citizen to receive education in the language of his choice, including tertiary education. We are not implying that government is not committed to these rights. However government must make resources available and implement policies, in order to realise these rights that are inherently the very foundation upon which constitutional democracy is based. The lack of policies and resources in this regard is tantamount to disregard of the provisions in the Bill of rights or the Constitution.

    • Recognise the pivotal role of PANSALB and its future role in the promotion and protection of the diverse and marginalized black languages in South Africa. More specifically, to review the remedies available to PANSALB to effectively police language violations as a matter of the utmost urgency. It does not auger well, or reflect a commitment to the Bill of Rights, on the part of government when the full compliment of the Board of PANSALB has to date not yet been appointed. The term of office of the previous Board expired in March 2001; therefore in practice the Board is non-existent.

    • Strengthen the structures of the provincial language committees and institute national language bodies. More specifically, the functions of these bodies should be to promote the status and use of the indigenous languages and to provide or facilitate translation and interpretation services in each community. Multilingualism cannot survive if it is not supported by an infrastructure of translation and interpretation services.

    • Demonstrate the courage of commitment to Art. 6 of the Constitution and introduce a South-African Languages Bill.

    What we don’t need at this point is the enactment of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill, which will be counter-productive in its operation due to the overlapping with existing structures. These deficiencies will render the Commission a cosmetic artefact.

    We pray that the Almighty may guide you in your deliberations and decisions.


    Reference: Rood. H.C. Legal Aspects of the Protection of Cultural Heritage.

    Thesis submitted in the fulfilment of the requirements for the degree
    DOCTOR LEGUM in the Faculty of Law, University Orange Free State
    October 2000. Promoter Prof. H.A. Strydom.

    boontoe


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