South African Languages Bill must ensure parity of esteem of all official languages

March 1st, 2012

By Barbara Whittle

The Law Society of South Africa’s (LSSA’s) response to the South African Languages Bill – submitted at the end of November 2011 – was based on the premise that all 11 languages have official status in the Constitution and should be respected by parliament in all its legislation. The LSSA stressed in its submissions that all 11 official languages should be appreciated, and that the Bill should ensure that they have parity of esteem and are treated equitably through all the spheres of national government. To achieve this, the LSSA urged that the Bill should regulate the use of all official languages in the administration of justice, it should include a provision in regard to the municipalities, the publication of legislation and also include a method of coordination between the national government and the provinces.

The LSSA pointed out that, as it stood, the Bill was a legislative form of judicial deference and did not comply with s 6(4) of the Constitution’s compulsory requirement to regulate and monitor the use of official languages. The Bill did not provide clear guidelines for policy makers in the application of the multilingual dispensation contemplated in the Constitution, nor did it provide objective criteria or guidelines against which the language policy of the national government could be tested.

The LSSA noted that, although South Africa, with its 11 official languages, may be regarded as sui generis, a comparison between different countries’ language dispensations, such as Belgium, Ethiopia, Spain, India and Canada, would have been useful. Various jurisdictions have adopted the principles of territoriality and personality in dealing with language disputes and competing linguistic demands. These principles, according to the LSSA, should have been used to make the application of the Bill more practical. However, the Bill was silent as to how, when, which and on what basis official languages will be used. The principles of territoriality and personality should be used in combination, namely for or the protection on a geographical basis and, where this is not possible, the personality principle.

The LSSA pointed out that for national governmental purposes, a national language policy required only two official languages in terms of s 6(3)(a) of the Constitution. However, the Constitution also made it clear that national government should work towards a policy for more rather than fewer languages, which the Bill failed to do.

Although many departments may not need a specialised language policy, some of the departments, for instance the Department of Basic Education and the Department of Higher Education and Training, and, more specifically, the Department of Justice and Constitutional Development, would require a language policy.

The LSSA proposed that the language demography of the country should be taken into account in respect of the national government’s official language policy. This should include guidelines in the Bill denoting that national government departments in ‘geographical language areas’ should use the languages in that area. Provision should also be made that the appointment of personnel and the delivery of proper services in accordance with s 195 of the Constitution can best be carried out in the language of the people and of the area. These principles should be inserted in the Bill in order to avoid arbitrary decisions by the national government.

The LSSA raised its concern at the lack of enforcement mechanisms in the Bill. As it stood, the Bill required a member of the public to approach the court through an application to compel (mandamus) if he was of the view that the national government did not respect his language rights. This was a costly exercise requiring the services of specialised lawyers. The LSSA pointed out that the field of language rights was a very specialised one. The development of skills and jurisprudence in regard to language rights, more so in the light of the challenge to make a success of a dispensation with 11 official languages, required an easy and accessible complaints and enforcement mechanism. The average citizen should be able to file a complaint and enforce his rights without incurring legal costs. Scarce resources should be used to develop languages in a coordinated way, and a complaints mechanism and the resolution of complaints required attention in the Bill.

As regards the legal environment, the LSSA stressed that language was not part of adjudication, but that it was the vehicle through which adjudication takes place and is communicated. The argument that a group that speaks a specific language chooses not to use its language, for instance in court, is unconstitutional and a constitutional amendment would be required to formally effect a waiver of these rights.

The LSSA recommended that consideration should be given to appointing judges with a specific language proficiency in a specific geographical area. In terms of rs 37 and 25 of the High Court and magistrates’ courts rules respectively, the language to be used in the courts can be determined and allocated to such judges. This would promote access to affordable justice as trials would be expedited without the need for translators and interpreters.

There have been developments as regards legal vocabulary in languages other than English. However, according to the LSSA, these languages can be developed and access to justice promoted, only through the expeditious finalisation of court matters, when the complainant, prosecutor, defendant and magistrate – preferably the attorney too – use the local language. The development of tribal courts and the recording of decisions in their own languages, the recording of lower and, later also, higher court decisions in other languages, should be promoted.

A panel should be established to scrutinise reportable judgments to determine which cases should be translated into official languages, either in whole or in part, to promote parity of esteem and equitable treatment of the official languages.

The LSSA said parliament should be compelled to publish legislation – preferably in all 11 languages – within a specified time period. Progressive translation of legislation and the choice of languages should be determined by specific guidelines, for instance by taking into account communities that may use the legislation. As an example, legislation in regard to tribal authorities should be translated immediately into all the indigenous languages. Commercial legislation should be translated into English, Afrikaans, isiZulu and one of the SeSotho languages, as well as in Isivenda and Xitsonga.

Compiled by Barbara Whittle, communication manager, Law Society of South Africa,

This article was first published in De Rebus in 2012 (March) DR 10.

De Rebus