Use of Official Languages Bill (SA Languages Bill) [B23-2011]: debate reopened on Clause 4

Meeting report

Mr N van den Berg (DA) asked whether, as per the agenda, there would only be half an hour for the consideration and adoption of the Bill.

The Chairperson said that the Committee would finish as and when needed and the agenda had merely been made for formality purposes.

Ms L Moss (ANC) said that it would not be a major problem for the meeting to run over schedule.

The Chairperson said that although Clause 4 had been debated and voted on at the previous meeting, she would reopened the debate on it as she was a democratic chair. She had chosen to reopen the issue as members had agreed on all the clauses but that one, and she had a submission to make on it.

The Chairperson stated that it had come to her attention that one of the Members of Parliament in the previous meeting was not in fact a member of the Committee. However a quorum had still been reached the previous week during the voting. Although it was not important it was still an issue that the Chairperson thought she should raise. She also thanked Members for being a part of this Committee.

The Chairperson said that she wanted to dispel the view that Afrikaans was being harmed by the Bill. The reality was that Afrikaans was spoken more than English. Various people also had views that their language would be sidelined. She also asked staff members who took the issue personally to recuse themselves as there had been strange complaints from members of staff. These members had been sending the message that Afrikaans was being killed within the Committee. There had been incorrect information spread about the Chairperson. If staff members felt that this issue was personal to them then they should recuse themselves. She did not want her name ‘dragged through the mud’ as some said she was destroying Afrikaans.

The Chair said that she had decided that the Committee would not adopt the proposed amendments but go through them clause by clause and have broader consultation on Clause 4 as some were not happy. It also turned out that speakers of indigenous languages were not happy either as some were wondering about which indigenous ones would be left of “two of the official languages identified must be indigenous languages of historically diminished use and status”. Even indigenous language speakers had had this fear, it was not just Afrikaans speakers. Many felt Zulu and Sesotho would be prioritised. These were issues that needed to be discussed.

The Chair stated that there were translators present at the meeting and thus Members could speak whatever language they wanted.

Mr van den Berg spoke in Afrikaans [translation provided on 14/3/12]

The Chairperson said that from a legal perspective Clause 4 was considered constitutional. The Committee was however going to flag the clause and seek broader consultation. She reiterated that the Bill would not be adopted in the current meeting. Despite this, the Committee should through the Bill clause by clause. As a chairperson she was saying that the Committee would seek broader consultation and look to even further advice. Everyone wanted one’s language to be treated equally and it was not only Afrikaans fighting for survival. Even other language speakers were asking which languages would be prioritised. She said she would allow a few more speakers then close on the issue as there was still the rest of the Bill to comment on.

Ms Moss spoke in Afrikaans [translation provided on 14/3/12]

The Chairperson raised the issue of an email that had been sent from within Parliament to the Afrikaner Board that stated that the Committee Chairperson was ‘killing Afrikaans’. She said she wanted the email circulated.

The Chairperson questioned where the Director General was.

Dr C Mulder (FFP) spoke in Afrikaans [translation provided on 14/3/12]

The Chairperson said the fact that many indigenous languages present did not have a translator illustrated the point that some languages were struggling to survive. There were many languages, especially languages from Limpopo, that were being marginalised. This had been a notion that everyone was trying to change even within African communities. The Chairperson wanted to move on from Clause 4 and suggested again that broader consultation was sought on this clause.

Ms T Tshabalala (ANC) said that the aim of the Bill was not to oust any language but enhance governmental communication. South Africa was working from a background where all branches of government dealt in English and Afrikaans. It was faced with a situation where there needed to be an enhancement of all official languages. Those present did not need to be emotional but should tackle the matter as far as their mandate was concerned. There had been a vote on the matter and that was the reality. However people had begun to be manipulative and speak of one another’s policies, which meant that the point was being missed. When people spoke about nation building, they needed to be careful as nation building was about meeting each other halfway. One should not bring one’s personal emotional issues into it. The ongoing arguments and debates had not taken the Committee forward.

Mr S Ntapane (UDM) said it had been a pity that the Committee could not discuss Clause 4 as this was where the contention had been. The Committee seemed to agree on all the other clauses. Those present needed to be careful not to miss the chance to discuss this issue. There were many languages and it was thus a pity “we did not deal with Clause 4”. His contention was that there were so many languages and these needed to be developed and this was a chance to develop these languages. He asked those present to remember he was the first to suggest a change to four languages. It was not acceptable to say that the government did not have the capacity as languages within the country needed to be developed. If the Bill were to say at ‘least four languages’ it would alleviate some of the problems being faced now. To say three languages and stipulate that two must be historically diminished languages would exclude Afrikaans. This was a fact whether the Committee liked it or not. He argued that English would always be present within the government sphere as there was no department or entity that would say they would not use English. If the Bill was made to state four languages, one could fix this problem. He warned against creating problems when trying to find solutions.

The Chairperson said that quite a few people in the hearings had furthered the notion that it was time to get rid of English. They asked why could they not “dispel” English and have their own languages. People had argued that the continual use of English by everyone had created this problem.

Ms F Mushwana (ANC) said she was surprised as she thought this matter had already been voted on and was a closed issue. She suggested that if it was back on the table, the vote should happen again as it had done at the previous meeting. This was a serious concern as it seemed the Committee was going back and forth. She noted that no specific languages had been mentioned. There was only a decision on a clause but there was no mention of a language. There was in turn no need to debate something that had not been placed on the table.

Mr P Ntshiqela (COPE) said that the Committee was wasting time and had already finished this portion of work. There was other work that needed to be done. He said that this debate was taking the situation backwards and causing division.

Ms H Van Schalkwyk (DA) spoke in Afrikaans [translation provided on 14/3/12]

Ms T Lishivha (ANC) said that the Committee was going back and forth on this debate. She wanted to ask that previously disadvantaged groups such as the Tonga and Venda could use the same agreement as Afrikaans. However people had to remember there were 11 official languages. Transformation was not an event but a process and the amendment left this process open. The phrase ‘at least’ covered everything and gave the choice for a language. She proposed to move forward with the “three official languages”.

The Chairperson said she had deliberately opened up the discussion even though a decision had been taken the previous week. The issue raised was: was Clause 4 constitutional or not? Incorrect information had been given about the Committee, and it was important to decipher by whom this information had been conveyed and to whom it had been conveyed. The Chair had heard of people going to non-African members of the ANC and saying that “the Chairperson” was attacking Afrikaans and members were confused by the process. Thus in order to protect the Committee and Parliament, it was imperative that the clause was checked for constitutionality. She emphasised that the Committee will never be against Afrikaans. South Africa could not be held ransom by people who did not want to transform. She asked that if it was “at least” three, would people be offended if there was no Afrikaans or English but just African languages? There was still the issue of the dominance of Afrikaans as when one looked at the universities there were Afrikaans institutions and English institutions. In the past people had gone to university and learned in Afrikaans. The problem in terms of constitutionality, there would only be a problem if one said that Afrikaans should be got rid of. The country was still being transformed. There was a need for further consultation thus the clause did not need to be discussed at that very moment. Those present were getting extremely emotional and this was not the path to nation building.

Dr Mulder said he wanted to clarify that Afrikaans was not trying to keep anything to ransom. In terms of the previous meeting, it was not right to say there had been an agreement, there had only been a vote. The vote had emerged where the ANC had voted one way and everyone else had voted another way. The way to solve the problem of constitutionality was to move towards more languages rather than fewer languages. There was the argument that this could be solved by having another clause that said ‘departments should continue doing what they are doing’ and add they should have three or four previously disadvantaged languages. This would make the clause broader.

Ms Tshabalala said that the Committee was done and had concluded the issue and it was time to move on.

The Chairperson reiterated that there was a need for the Office of the Speaker to state whether this clause was constitutional or unconstitutional.

The Chairperson asked members of the media to please seek clarity rather than print ‘false things’. They were welcome to seek clarity from herself or any of the members present.

Mr van den Berg spoke in Afrikaans [translation provided on 14/3/12]

The Chairperson said there had been a vote however the Committee could not continue. She had sought legal advice from the Office of the Speaker as to whether the clause voted on was constitutional or unconstitutional.

A representative from the Office of the Speaker confirmed that Clause 4(2) was constitutional as it did not exclude any language. It was also illustrated that the Bill gave rise to section 6(4)(6) of the Constitution.

Dr Barbara Loots, Parliamentary Legal Advisor, said that the Parliamentary Legal Office had some concerns over the phrasing of the current Clause 4(2) and preferred the proposed re-wording presented at the previous meeting. The Office had been reading Section 6 conceptually and found that by saying “three” there was no limitation placed on the clause. The Office had had a problem with the negative phrasing of the first clause and Section 6 itself did not have any internal limitations.

The Chairperson said, with all the legal advice being given, she was confused as to whether the clause was constitutional or not.

Dr Loots said that her Office was of the opinion that the clause was open to challenge, however in law there were many opinions. They could thus not safely say if the clause was or was not unconstitutional.

Mr Malusi Ncolo, State Law Advisor, said that the Department could safely say that the clause was constitutional as when one looked at the clause the “at least” meant a minimum.

The Chairperson said ‘thank you’ and that was all she had wanted to check.

Ms Tshabalala asked if the confirmation from the Office of the Speaker was enough or if more clarity would be sought. She also sought to emphasise that this decision to adopt the provision had not been one just by the ANC but other parties, such as COPE, had also supported the provision. She said there should be a reaffirmation of the decision taken the previous week and the Committee should move on from the matter.

Ms T Nwamitwa-Shilubana (ANC) said that the decision taken the previous week had been confirmed as being constitutional. What she wanted to confirm was the ‘at least’ in terms of the indigenous languages meant that in places where there was a need for it, more languages could be used.

Mr van den Berg spoke in Afrikaans [translation provided on 14/3/12]

Mr Sibusiso Xaba, DAC Director-General, said that he had been updated on the discussion (as he had arrived late due to illness) however it was not for him to comment on the constitutionality of the clause.
Mr Xaba said that he would like to ask the Committee to return to the amendment presented in the previous meeting as it was more constitutionally defensible. Even that one, the department would like to make a slight amendment. This amendment was in the new subclause 3, where it wanted to change the phrase to ‘in dealing with official languages, every national department’. This was a slight variation on what had been brought before.

The Chairperson asked if the Department was asking the Committee to revoke their previous decision.

Mr Xaba replied that that was the proposal he wanted to make.

Mr van den Berg spoke in Afrikaans [translation provided on 14/3/12]

The Chairperson said there was no need to include the media here, as the media was favourable to a certain part of society. She also requested that emotion not be incited within the Committee.

The Chairperson and Mr van den Berg proceeded to talk over each other for a short period of time.

Ms Moss said she was deployed by her party and the people of South Africa. In a previous meeting there had been a decision to allow the two legal teams to come up with a solution so the Committee could move forward, however they had not. Time and resources had been wasted and there was a programme that had not been kept to. She wished to express disappointment at the Department of Arts and Culture who had should lead by example.

The Chairperson said that the Director General had come up with more changes and sought the advice of members as to whether to continue or not.

Mr van den Berg spoke in Afrikaans [translation provided on 14/3/12]

The Chairperson was of the view that they could not continue as the Department was making members repeat themselves.

Ms Nwamitwa-Shilubana said when she looked at the proposed rewording, she found it to be an improvement as it did not give restrictions. She found the re-wording democratic.

The Chairperson said that emotions were high and asked for a few minutes alone with the members.

Short Recess whilst members spoke amongst themselves.

Upon returning to the Committee room, the Chairperson said that the Portfolio Committee wanted to express their disappointment as they had prioritised this Bill and the department had brought new amendments. There had been a decision made not to continue because the work currently being done had been clumsy and not representative of the public. The Committee had begun to go back and forth and this was not right. The Committee was disappointed and angry as all their efforts had been put into this endeavour.

Mr van den Berg spoke in Afrikaans [translation provided on 14/3/12]

Mr Xaba said he firstly wanted to apologise on behalf of the Department as it had not been their intention to manipulate the Committee. He sought to stress that the Bill was in the Committee’s hands and the Department could only make suggestions. It had not been the Departments intention to delay that. He also sought to stress that what was presented the previous week was not different from what was being presented today.

The Chairperson said she would not allow Mr Xaba to say anything further as the Committee was not happy. She asked if he would be ready by next week.

Mr Xaba confirmed he would be ready.

The Chairperson asked the advice of members as to whether the decision taken the previous week needed to be reviewed.

Ms Moss said that the previous week the Committee had taken a decision and this had been communicated to the people on the ground. There was a need to apologise to the public as there was a need to review the decision and come up with a new finding. She argued that this meeting had been a repeat of the previous week’s meeting and thus owed the public an apology.

The Chairperson said she would look into making a public apology and the date for the next meeting would be set later.

Mr Ntshiqela said he would not change his stance as he was of the impression that the matter had already been settled. Whether things were changed by the Department or not, his stance and that of his party would remain the same.

Ms H Msweli (IFP) said that her position remained the same.

The Chairperson confirmed that both IFP and COPE stance remained the same whether the Bill was changed or not. The stance was that two of the languages must be from a historically disadvantaged background. They also did not agree to the amendments.

The meeting was adjourned.