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;

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-

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.

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