INFORMATION SERVICES: RESEARCH

Room No. 911, Regis House, Adderley Street, Cape Town, 8000

Chris Sibanyoni, Telephone: (021) 403-8144; Fax: 403-8118

e-mail address: msibanyoni@parliament.gov.za

 

15 October 2001

SUMMARY OF THE PUBLIC SUBMISSIONS: COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES BILL [B62—2001]

HELD ON TUESDAY, 02 OCTOBER 2001,

OLD ASSEMBLY CHAMBER, PARLIAMENT, CAPE TOWN

CONTENTS

1. List of Submissions

2. General Concerns

3. Interpretation and Administration of the Act

4. Status and objects of the Commission

5. Composition of the Commission

6. Functions of the Commission

7. National Consultative Conference

8. Cultural or other Councils

9. Miscellaneous Matters

 

List of included submissions

Abbreviation used

African Independent Churches Development Programme

AICDP

Afrikaner Freedom Foundation, Orania

AFF

Baphuthi Language and Cultural Development Programme

BLCDP

Christelike National Forum

CNF

Congress of Marginalised Languages of South Africa

CMLSA

Designer Curriculum for Religious Studies

Soni Amin

Die Afrikanerbond

Afrikanerbond

Federasie van Afrikaanse Kultuurvereniginge

FAK

Foundation for National Minorities

FNM

Groep van 63

G63

Human Rights Committee of South Africa

HRC

KZN Provincial language Board Committee

KZNPLBC

Mine Workers Union Solidarity

MWU

National Council of Khoi Chiefs of South Africa

NCKC

National Heritage and Cultural Studies Centre

NHCSC

National KhoiSan Consultative Conference

NKSCC

Northern Amandebele National Organisation

NANO

Northern Cape Khoi and San Indigenous Council and House of the Qriqua

NCKC & HQ

Rastafarai National Council

RNC

South African Council of Churches

SACC

South African Hindu Maha Sabha

HMS

South African Human Rights Commission

SAHRC

South African Jewish Board of Deputies

SAJBD

The Afrikaner Development Cooperative Incorporated

AOK

Umqondisi Mthetho/Intsika Yenkcubeko Yesizwe

UM

Western Cape Cultural Commission

Lombard

General Concerns

This section includes comments that cover more than one section of the Bill, as well as those which are not already accommodated in an existing section of the Bill. These comments are on:

  1. Definitions.
  2. Administration of the Act.
  3. Overlap of functions.
  4. Constitutional issues.
  5. Powers and functions of the Commission.
  6. Powers and functions of Councils.
  7. Indigenous languages.
  8. Implementation and absence of necessary legislation.
  9. Other issues.

 

Definitions:

Community

Main Communities

Broadly representative

Other Councils

  • What defines a community? (SACC)
  • Define main communities? (SAHRC).
  • What meaning is to be given to "broadly representative"? (SAJBD).
  • What constitute an "other" Council? (SACC, KZNPLBC)

Administration of the Act

Need for the Act to be administered by the President or Deputy President not a Minister. The scope of the Bill is much wider than the Portfolio of a single Minister (FNM).

Overlap of functions with that of other institutions

  • There is an unnecessary overlap in functions and powers (HRC).
  • Some of the duties and powers envisaged in the Bill already exist in some form or another in the Pan South African Language Board (PANSALB) Act, e.g. PANSALB "is charged with promoting respect for all languages used in communities as well as used for religious purposes" (HRC).
  • "The powers, objectives, functions and duties of the [Commission for Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities], fall within the broad section 184 mandate of the SAHRC.

Constitutional issues

  • Add the principle of "independence" as per section 181(2) of the Constitution (FNM; SAHRC; SACC).
  • The Bill is unconstitutional, because it allows the interference of the executive in the process of appointing the Chairperson and selecting members of the Commission (AOK).
  • The way the Bill is formulated allows the interference of State in the internal affairs of ethnic or cultural communities by exercising a discretion to "recommend" to a community the establishment of a Council (FNM).
  • Consequently, there is a concern that the Bill could be used by the Commission to refuse to recognise a Council (FNM; CNF).
  • In South African law (including the Constitution) community rights do not enjoy explicit protection as rights of communities…[thus] the Commission cannot be established and begin to function in the absence of community rights (G63).
  • Re-interpret individual rights to free association, expression, education, language and culture, also …[as] rights vesting in cultural, religious and linguistic communities (G63).

Powers and functions of the Commission

  • Bill needs to emphasise protection over promotion.
  • Re-instate powers of mediation and conflict resolution, which have consistently been included in earlier drafts (SACC).
  • Need for the Commission "to have the power, on request of a registered cultural or other council to recommend to the Deputy-President that certain tasks affecting the specific community exclusively and directly, and that are presently being administered by the state, be devolved to the Council…" (CNF).

Powers and functions of Councils

  • Concern that the Bill does not include powers and functions of cultural and other Councils (AFF; Lombard; FAK).
  • Cultural and other Councils should have exclusive powers over the following cultural goods of a community: education on all levels; religious issues; safety; economic empowerment and ancillary local municipal powers (FNM; CNF; FAK; AFF; Lombard).

Indigenous languages

  • Bill should provide guidelines for the media, especially SABC TV, to stop marginalising indigenous languages (CMLSA).
  • Education institutions/schools need to be encouraged to contribute to promoting the use of indigenous and other languages, such as Tamil and sign languages, through school syllabuses/syllabi (CMLSA, SAHMS, Adv. Mpumlwana).

Implementation and Absence of necessary legislation

  • Bill is not clear on how the mission/objectives will be carried out (CMLSA; UM).
  • Need to provide concrete procedures to enforce promotion and protection of rights.
  • Need for a relevant legislation that backs up the Commission, e.g. the Equality Act which backs up the SAHRC.

Other issues

  • Need for cultural and other Councils to be established on national, provincial and local levels.
  • Concern that the Bill does not have a uniform set of recognition criteria to decide whether or not a Council should be recognised by the Commission (Afrikanerbond; SACC).
  • Concern that "the clause recommended by the Technical Committee that an office bearer of a political party is not allegeable to the ranks of the Commission was left out" (FNM).
  • Need for communities, including African independent churches to be united and educated about the Constitution and the Commission (AICDP).
  • Bill to provide for the empowerment of communities (Lombard).
  • Need to apply targeted approaches to promote cultural and language communities, otherwise equality will never be achieved (UM).
  • Bill needs to recommend to the Commission the type of research (which include historical origins of language) to be conducted and how it should be carried out (CMLSA; UM; Prof Sirayi).
  • Need to exempt Rastafarians from criminal charges for using ganja/marijuana.
  • "The Commission must not become a vehicle simply for the protection of the narrow interests of on community or another, but must promote peace, tolerance, and cooperation among all communities on the basis of equality, non-discrimination and free association" (SACC).

Title

  • Should include "rebuilding" for the Commission to assist in rebuilding the almost extinct cultures like that of Khoisans (NKCC).
 

Part 1: Interpretation and Administration of Act

Definitions

 

  • Define "community" (WCCC; SACC).

Administration of the Act:

 

Clause 2

 

 

 

 

 

 

 

 

  • Substitute "Deputy-President" for "a member of the Cabinet designated by the President." The "scope of this Act reaches much wider than the portfolio of a single Minister. It will become attenuated [weakened] if allocated to e.g. the Minister of Arts and Culture" (CNF; FNM).
  • "all other sections referring to ‘the Minister’, be replaced accordingly" (CNF; FNM).
  • "Is this [provision] applicable to all chapter 9 Institutions?" (FF).

 

 

 

 

 

 

 

 

 

Part 2: Status and Objects of Commission

Clause 3

 

Clause 4(1)(a) and (b)

 

 

 

[Clause 4(1)(e)]

 

[Clause 4(1)(f)]

 

[Clause 4(1)(g)]

 

 

 

 

[Clause 4(1)(h)]

  • Add the principle of "the independence of the Commission to the status of the Commission" (FNM) "as per section 181(2) of the Constitution" (SAHRC; NCKC and QH).
  • These paragraphs are similar to "section 3 of the Pansalb Act 59 1995 which requires the Pansalb to…promote respect for and ensure the creation of conditions for the development and for the promotion of equal use and enjoyment of all the official South African languages, the prevention of the use of any language for the purposes of exploitation, domination and division, the promotion of multi-lingualism" (HRC; KZNPLBC).
  • Add a new paragraph: "the Commission shall be entitled to make recommendations of Constitutional amendments in respect to the furtherance of the other objectives and establishment of practical systems to implement these objectives" (AOK).
  • Add a new paragraph: "the Commission should be also be allowed, without interference, to make recommendations for the enactment of legislation to give effect to the objectives" (AOK).
  • Add a new paragraph: "to make recommendations on the establishment of justice and reparation for past transgressions perpetrated by colonial powers against communities. Any recommendations made by the Commission must be heard by the President and must carry authority akin to a resolution of Parliament, as a forerunner to a Cultural Senate to be instated later on along the lines of the Irish Senate created in terms of the Irish Constitution" (AOK).
  • Add a new paragraph: "to create a mechanism for preservation of community types (NHCSC).

 

 

 

 

 

 

Part 3: Composition and Membership of Commission

Part 3

 

Clause 5(1)

 

Clause 5(2)(b)

Clause 5(3)(a)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Clause 5(3)(c)]

 

Clause 6

 

 

Clause 7

 

 

 

 

[Clause 7(1)(a)]

Clause 7(1)(c)

 

[Clause 7(2)(c)]

 

Clause 7(3)

 

 

 

 

 

 

 

 

 

 

 

 

 

Clause 8(1)

 

 

 

 

 

 

 

 

[Clause 12(3)]

[Clause 12(3)(a)]

[Clause 12(3)(b)]

[Clause 12(3)(c)]

 

 

Clause 13

 

 

 

Clause 14

Clause 14(2)

  • "should be preceded by a part and by sections on the identification and recognition of Cultural, Religious and Linguistic Communities on national, provincial and local levels" (AFF; FAK)
  • "The President must only be able to appoint the Chairperson and members once all of the known communities in South Africa have been consulted, including various organisations within each community" (AOK).
  • "Why should it be possible for the President to ‘reduce the number’?" (Amin).
  • The Commission "should comprise mostly of the cultural groups concerned, with few Government officials as facilitator, to make the total number of not less than 17 Commissioners" (BLCDP).
  • "The demographic size and disperse of a community should not detrimentally affect its representation on the Commission" (AOK).
  • "The priority should be given to those previously marginalised groups, e.g Baphuti (BLCDP).
  • "The Commissioners, whose number will only be between 11 and 17 cannot be ‘representatives’ of all such [or main] Communities" (SAJBD).
  • Define "broadly representative" (SAJBD).
  • "The criteria for selection of …‘main communities’ should be spelt out" (SAJBD; AFF), and "some…thought on what this [main communities] actually means will be required" (SAHRC).
  • "the possibility of establishing "Sub-Commission" be explored, being a Sub-Commission for cultural communities, and another for religious communities, and a third for linguistic communities. Each Sub-Commission should be required to propose candidates for selection to the main Commission" (SAJBD).
  • Add new paragraph on "Also including at least two experts on the rights of language, religious and cultural communities within a pluralistic community" (CNF).
  • "the qualifications for membership of the Commission should include a proven record of involvement in and understanding of the cultural, religious or linguistic activities of one or more of the communities concerned" (Afrikanerbond).
  • "Each main community or group of communities should elect its representative on the commission, or…nominate for membership and appoint the members of a representative selection panel" (AFF).
  • This clause as it stands is "one-sided because the selection and appointment rest with the Minister and the President…" Consequently, it "does not serve to limit or check the power of the majority over the minorities…" (AFF).
  • Add a new paragraph that will give due regard "to the expertise of the members of the Commission" (FNM).
  • Add "Standing Committee (or Portfolio Committee) to appoint selection panel" (WCCC; FF).
  • "…fair-mindedness, wisdom and understanding…is vague and subjective" (WCCC).
  • Add a new paragraph: "details about the nominee’s knowledge and/or experience regarding the rights of language, religious and cultural communities within a pluralistic community" (CNF).
  • "If the Panel consists of people who command public respect for their fair-mindedness, wisdom and understanding of issues, there should be no reason why the President should be expected to personally [select] the members himself." This is interference from the executive and opens the Commission to direct political interference…" (AOK).
  • "This provision deserves further consideration. If individuals are to be invited to nominate Commissioners, then the phrase ‘within the cultural, religious and linguistic communities of South Africa’ is superfluous; presumably every individual in South Africa is in some cultural, religious or linguistic community."
  • "If on the other hand, the objective is to ensure that the candidates proposed have connections with…some organised cultural, religious or linguistic group in South Africa, then nominations should not be solicited from individuals…the latter approach would also discourage the public from deluging [overwhelming] the selection panel with unsuitable nominees" (SACC).

 

  • "The Commission, upon majority vote, should elect the Chairperson. If the President takes on this role, the executive, will be interfering in matters where the communities themselves should have control." (AOK).
  • "…why the President could also appoint any other person who merely meets the requirements of section 6 of the Bill but having not gone through the procedure for appointment of members of the Commission in terms of section 7" (SAHRC).
  • "…the Chairperson should be appointed amongst current Commissioners or amongst persons who have been selected by the selection panel as provided by section 7 of the Bill" (SAHRC).
  • Reinstate subsection: "A member shall be regarded as having resigned if that member—"
  • Reinstate paragraph: "Accepts a seat in the National Assembly, the National Council of Provinces, a provincial legislature or a municipal council;"
  • Reinstate paragraph: "Accepts an appointment as an office bearer of a political party; or"
  • Reinstate paragraph: "holds any position contemplated in subsection (a) or (b) at the time of his or her appointment as a member of the Commission and fails to resign that position within 30 days of having been appointed as a member of the Commission" (SACC).
  • Commission members and the Chairperson "should only be removable by way of a majority vote of the Commission members (notwithstanding any serious criminality transgressions)…This will improve the chances of Commission members behaving impartially once appointed" (AOK).
  • "Vacancies should be filled by the Commission itself upon a compiling of a list of candidates and taking a majority vote thereon" (AOK).
  • "Half the members should continue with the commission each term. This would ensure continuity" (Amin).

 

 

Part 4: Operation of the Commission

Clause 15(1)

Clause 18(1)

 

 

Clause 18(2)(c)

Clause 19(3)

Clause 20

  • 30 days "…is a long time" (Amin).
  • "This clause restricts committee membership to members and staff of the Commission…it is important that the Commission be empowered to enhance its capacity to achieve its objects by recruiting members of civil society to serve on its committee" (Afrikanersbond; SAHRC).
  • "A member should only be removed from a committee by due process of law".
  • "How can one accept the rights accrued from a decision that is revoked?" (Amin).
  • "The Commission should have its own Secretariat comprised of a proportionately representative cross section of cultural groups. Otherwise it would be easy to strangle it through sublimation into a larger state Department" (AOK).

 

 

Part 5: Functions of Commission

Clause 21

 

 

 

Clause 21(1)

 

 

 

Clause 21(1)(c)

 

Clause 21(1)(e)

[Clause 21(1)(f)]

[Clause 21(1)(g)]

 

[Clause 21(1)(h)]

 

 

Clause 22(2)

 

Clause 23

 

  • "The powers of mediation and conflict resolution" are missing (SACC).
  • "The Commission should have the powers to give effect to the" [new paragraphs 4(1)(e)(f) and (g) (AOK).
  • "The Commission should have the authority not only to bring matters of concern…but also to make recommendations" (FAK)
  • Replace "may" with "must" or "shall" to express power and obligation (NCKC & HQ; UM).
  • This clause "…has been reduced to merely a symbolic token" (FAK; AFF).
  • "The Commission can only make a substantial changes if the necessary legislation, marking the boundaries within which the Commission can operate, is in place…e.g. the Equality Act that backs up the Commission for Human Rights" (CNF).
  • Add "facilitate research and work with bodies already dealing with a particular function or responsibility" (NHCSC).
  • Should also "make recommendations to such authorities and to require response from such authorities (Afrikanerbond).
  • Add new paragraph: "initiate relevant legislation that will enhance the protection and promotion of the rights of language, cultural and religious communities" (CNF).
  • Add new paragraph: "make recommendations regarding possible constitutional amendments that will promote and protect the rights of language, cultural and religious communities" (CNF).
  • Add new paragraph: "the Commission must study the contents of and make recommendations about the ratification of international treaties and resolutions on the rights of groups and communities" (CNF).
  • This clause recognises "the unnecessary overlap in functions and powers could have been avoided by allocating precise obligations to the SAHRC and other bodies" (HRC).
  • "Why the Commission should have these powers of investigation… is it a judicial commission of inquiry?" (AOK).

 

 

 

Part 6: National Consultative Conference

Clause 24(1)

 

 

Clause 26(1)(b)

  • Replace "may" with "must once a year" (CNF;UM; FF).
  • Delete this provision, it "has the effect of undermining the independence of the Commission" (SAHRC; FF; CNF).
  • "Communities should decide their own representatives" (FF).

 

 

 

 

 

Part 8: Cultural or Other Councils

Clause 36

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Clause 36(1)]

 

 

 

[Clause 36(1)(i)]

[Clause 36(1)(ii)]

[Clause 36(2)]

[Clause 36(3)]

 

 

 

 

Clause 37

Clause 37(1)

 

 

 

 

 

 

 

 

 

[Clause 37(2)]

 

 

 

 

 

 

 

 

 

 

 

 

[Clause 37(2)(a)]

 

[Clause 37(2)(b)]

[Clause 37(3)]

 

 

 

[Clause 38]

 

 

[Clause 38(1)]

[Clause 38(1)(a)]

[Clause 38(1)(b)]

 

[Clause 38(1)(c)]

[Clause 38(1)(d)]

 

[Clause 38(2)]

 

  • "The Emphasis should be placed on the right to self-determination of the Councils" (FNM)."
  • This clause focuses "only on the promotion of peace, friendship, etc., while the protection and promotion of the rights of specific communities do not figure as motivation…Provision must be made for the devolution of certain functions that are currently exercised by the state, to the specific cultural or other Councils, with pro-rata financing by the state" (CNF; FAK).
  • The clause "is prescriptive and amounts to the interference of State in the internal affairs of ethnic or cultural communities by exercising a discretion to ‘recommend’ to a community the establishment of a Council" (FNM; CNF)
  • "What defines a community? Are communities self-defining, or is it permissible to exclude people from a community if they do not meet certain criteria? Who decides? (SACC)"
  • "Provide guidelines for recognising cultural or other Councils" (Afrikanerbond; SACC)
  • "What constitutes an "other" Councils?…What objective criteria will be used in deciding whether or not a Council should be recognised by the Commission? Should cultural and ‘other’ Councils be subject to a uniform set of recognition criteria? (SACC; KNZPLBC).
  • The Bill "…is left very vague in terms of process for application, qualification criteria and powers [and functions] of these cultural Councils. These Councils should have exclusive powers over the following cultural goods of a community: education on all levels; religious issues; safety; economic empowerment and ancillary local municipal powers" (AOK; Afrikanerbond).
  • Add a new subsection: "The Commission has the responsibility to recognise and register Cultural or other Councils of specific cultural, religious and language communities on request of those communities" (CNF, AFF’; FAK; FF).
  • "The community must convince the Commission that it has sufficient support among its members for such a Council…" (FAK).
  • Add a new subparagraph: "such Councils function according to the Constitution of South Africa;" (CNF).
  • Add a new subparagraph: "such Councils are representative of a specific definable cultural, religious or language community."
  • Add a new subsection: "The Commission has the power to assist certain communities in establishing Cultural or other Councils" (CNF).
  • Add a new subsection: "The Commission has the power, on request of a registered Cultural or other Council, to recommend to the Deputy-President that certain tasks affecting the specific community exclusively and directly, and that are presently being administered by the state, be devolved to the Council, on the condition that the Council can prove that it can function effectively and in accordance with the Constitution" (CNF).
  • "This clause is "in direct conflict with the principle that structures of civil society enjoy self-determination from State interference." (FNM).
  • "…a more clear-cut set of criteria should be established with the effect that a Council that fits the Bill, can be sure of recognition" (AFF).
  • For this reason change the clause to "The Commission may in writing recognise a cultural or other Council on request from that Council" (FNM).
  • Replace with: "Cultural or other Council, which is a voluntary association of persons based on the principle of freedom of association and which represents a cultural, linguistic or religious community, may apply to the Commission for registration and must furnish in the application such details required by the Commission as determined in the regulations (Lombard).
  • Replace with "A cultural or other Council recognised in terms of sub-section 36(1), may apply to the Commission or any other organ of State for financial assistance" (CNF).
  • Add new subsection: "The Commission may on request of a Cultural or other Council recommend to Government that certain functions of Government, pertaining to specific aspects closely related to a specific community, be devolved to the relevant Cultural or other Council" (FNM).
  • Replace with "A Cultural or other Council recognised in terms of sub-section 36(3)[above], will receive an amount equal to the pro-rata share of the specific national or provincial budget allocated for the exercising of these functions" (CNF).
  • "The State has already established a mechanism to promote public accountability and sound financial management among civil society organisations through the Non-Profit Organisations Act (Act No. 71 of 1997) " (SACC).
  • Change to: "The Commission may, in terms of subsection (1), register a Cultural or other Council that can assist the Commission in achieving its objects" (Lombard).
  • Add new paragraph: A Cultural or other Council "…is recognised in terms of subsection (1); and" (SACC).
  • Add a new paragraph: "It has been registered in terms of section 13(5) of the Non-Profit Organisations Act, 1997 (Act No. 71 of 1997) and complied with any other requirements imposed in terms of that Act (SACC).
  • Amend [37(2)] to read: "The Commission or any other organ of State may provide financial assistance to a cultural or other Council only if:"
  • Add new subsection by changing clause 37(2) to " A cultural or other Council recognised in terms of subsection (1) and (2) may apply to the Commission or any other organ of State for administrative an/or financial assistance in the exercise of its functions and in promoting the ideals of the Commission" (FNM).
  • Add new heading/clause under Part 8 "on the Powers and Functions of Cultural or other Councils or in a separate Act on Cultural or other Councils. "Monuments and museums, and community services like libraries, broadcasting and education should be specified" (AFF; Lombard; FAK).
  • Add a new subsection: "A registered Cultural or other Council may, inter alia, besides any other related powers and functions—" (Lombard).
  • Add a new paragraph: "preserve, promote and develop the cultural, language or religion of the community it represents;" (Lombard).
  • Add a new paragraph: "initiate the establishment of independent schools serving the community it represents, in accordance with national education policy and subsidies per capita by the relevant State organ;" (Lombard).
  • Add a new paragraph: "report to the Commission any matter relating to the constitutional and other rights of the community concerned; and" (Lombard).
  • Add a new paragraph: "report any cultural, linguistic or religious threat to the community it represents to the Commission for possible investigation and proposed solutions" (Lombard).
  • Add a new subsection: "A registered cultural or other Council may apply to the Commission or any other organ of State for financial assistance relating to the performance of the functions of the Council, as well as financial support for cultural, language or religion related projects, research and the holding of conferences" (Lombard).
 

Part 9: Miscellaneous Matters

Clause 39

  • "The regulations to be promulgated in terms of [this section] could" clarify the meaning of main cultural, religious and linguistic communities (SAHRC).