2019 Annual Report Card on Cultural, Religious and Language Rights
Introduction
For centuries the central theme of South Africa’s history has been interaction and conflict between the many cultural, ethnic and linguistic groups that arrived in, and occupied, South Africa during the past two thousand years.
The history is long and troubled: it includes the impact of southward migrating Bantu peoples 1500 years ago on the Koi and the San; the arrival of the Dutch in 1652 and their subjugation of the Koi and San of the Cape; the convulsions of the Mfecane that were unleashed by the Zulu king, Shaka; the wars between the Voortrekkers and the Zulus, the Basuto and the Pedi; the imposition of colonial rule by the British and their conquest of the Xhosas, the Zulus and the Afrikaners between 1806 and 1902. It includes the establishment of the Union of South Africa; 84 years of white domination and apartheid; and the struggle against apartheid that reached its climax in the 1980s.
Finally, it includes the constitutional negotiations between 1990 and 1996 that were aimed at establishing “an undivided South Africa with one nation sharing a common citizenship, patriotism and loyalty, pursuing amidst our diversity, freedom, equality and security for all irrespective of race, colour, sex or creed; a country free from apartheid or any other form of discrimination or domination.” The constitution of this new society would, among other goals, acknowledge “the diversity of languages, cultures and religions of the people of South Africa”.
The Constitutional Negotiations
The accommodation of diversity was one of the central themes in the constitutional negotiations that led to the adoption of the 1993 and 1996 constitutions. In essence, two of the most significant parties – the National Party and the Inkatha Freedom Party – were deeply concerned over the manner in which minority cultures, languages and traditions would be protected and accommodated in the new constitution. To this end the constitution included strong guarantees for all South Africa’s cultural and linguistic communities.
Language rights were regarded as so important that they were dealt with separately from Bill of Rights as one of the foundational provisions of the Constitution. The constitution also recognised the right of people to use their cultures, and most importantly, the right to education in the language of their choice in public educational institutions.
The authors of the Constitution were fully aware of the crucial importance of ‘healing the divisions of the past’ and of uniting South Africans on the basis of foundational values. Indeed, in their efforts to promote multiculturalism, they laudably went further than even the most advanced international conventions on the rights of minorities – as is evident from Annexure … which provides information on such conventions.
THE ANNUAL REPORT CARD ON CULTURAL, RELIGIOUS AND LINGUISTIC RIGHTS
Because of the critical role that positive inter-community relations will continue to play in ensuring peace, stability and the long-term success of South Africa, the Foundation has decided to launch an annual ’Report Card’ on Cultural, Religious and Linguistic Rights.
The purposes of this study, in the form of a scorecard, will be to assess the degree to which we are succeeding in assuring and promoting the rights of our cultural, religious and linguistic communities in accordance with the Constitution.
The constitutional rights and provisions that we shall consider include the following:
- Section 6 (1) – Official languages
- Section 6(2) – Development of indigenous languages
- Section 6(3)(a) – Use of official languages by municipalities
- Section 6 (3)(b) – Use of official languages by national and provincial governments
- Section 6 (4) – Regulation official languages and parity of esteem
- Section 6 (5) – The Pan-South African Language Board
- Section 15 – Freedom of religion, belief and opinion
- Section 29 (2) – Education in the official language of choice
- Section 29 (3) – The right to establish independent educational institutions
- Section 30 – The right to use the language and participate in the culture of choice
- Section 31 – The rights of cultural, religious and linguistic communities
- Section 185 – Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities
- Section 235 – Self-determination
Our methodology will be to examine the degree to which these rights are being observed in practice with particular reference to legislation, executive action and court judgements. In our assessment we will be guided, in particular, by the cultural, religious and language provisions in the South African Constitution.
We will allocate a grade to each of the items that we consider, ranging from 1 for excellent observation of the right; 2 for better than adequate observation of the right; 3 for rights that are beginning to give cause for concern; 4 for rights that are under serious threat; and 5 where the rights are no longer being observed at all.
REPORT CARD ON THE OBSERVATION OF THE CULTURAL, RELIGIOUS AND LINGUISTIC RIGHTS IN THE SOUTH AFRICAN CONSTITUTION
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6.1 | South Africa’s Official Languages SCORE: 4
“The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.” Section 3 (10) of the 1993 (Interim) Constitution(f) required “the non-diminution of rights relating to language and the status of languages existing at the commencement of this Constitution.”
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The constitutional recognition of the official status of 11 South African languages has little or no content in reality. Little has been done to establish these languages as official languages of communication. Increasingly, English has become the sole de facto official language.
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Application to have SA Sign Language Declared an Official Language
In February 2017, the Deaf Federation of South Africa (“Deafsa”) requested Parliament’s constitutional review committee to review sections 6 (1) and 6(5)(a) of the Constitution to include South African Sign Language (“SASL”) as the twelfth official language of South Africa. Deafsa stated that they represented around one million deaf and hard hearing people in South Africa for whom sign language was a first language. According to Stats SA data (2011) relied on by Deafsa there are 45 deaf schools and 18600 learners in South Africa that use sign language as a language of learning and teaching. Parliament’s constitutional review committee recommended that formalities should be made by Parliament to ensure amendment of the Constitution in this regard.
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6.2 | Promotion of Indigenous Languages SCORE: 3
“Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages.”
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Mother Tongue Education
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Afrikaans as an indigenous language?
In Gelyke Kanse and others v The Chairman of the Senate of the Stellenbosch University and others Gelyke Kanse argued that section 6(2) of the Constitution places a constitutional obligation on the University of Stellenbosch, as an organ of State to take “practical and positive measures” to ensure that the Afrikaans language was advanced and not to diminish its use.
The Court dismissed this argument on the basis that the Afrikaans language – which received much state support during apartheid – did not qualify as an “indigenous language” and could not rely on section 6 (2) of the Constitution. However, in Gelyke Kanse and Others v Chairperson of the Senate of the University of Stellenbosch Chief Justice Mogoeng observed that “With all that done and dusted, it needs be said that Afrikaans is indeed an African language, our historic pride to be treasured by all citizens. Its existence precedes colonialism. And its subsequent development with the appropriately enriching infusion of terms from Dutch or any other European language and the unjust attempt to impose it on others, do not at all affect its original African DNA.”
In the same judgment Cameron J also noted that “… Gelyke Kanse rightly insisted on Afrikaans’s indigeneity[60] and that it was entitled anyhow under section 6(4) to “parity of esteem” as an official language, and hence that it “must be treated equitably”.
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6 (3) a, b | The Use of Official Languages by National and Provincial Governments SCORE: 4
“The national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages.”
“Municipalities must take into account the language usage and preferences of their residents.”
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6 (4) | Legislation to Regulate and Monitor the Use of all Official Languages. SCORE: 3
“The national government and provincial governments, by legislative and other measures, must regulate and monitor their use of official languages.”
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“No, many national departments still experience capacity problems with elementary stages of complying with the Act. For example, most of them do not have language policies and those that have are experiencing implementation challenges….”
“the Minister must, on an annual basis, table a report in the National Assembly on the status and use of official languages by national government for government purposes and on any exemption granted to a national public entity and a national public enterprise in terms of section 12.”
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6 (4) | Parity of Esteem for All Official Languages. SCORE: 4
“Without detracting from the provisions of subsection (2), all official languages must enjoy parity of esteem and must be treated equitably.”
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“The level of development attained by the Afrikaans language is in demonstrable ways connected to aspects of history of colonial-settler domination and particularly in its latter phases to the dominant position of a sector of the Afrikaans-speaking communities in the apartheid order. Afrikaans became the language most closely associated with the formalisation and execution of apartheid. To a great proportion of South Africans it probably calls up first and foremost associations of discrimination, oppression and systematic humiliation of others. These associations understandably often affect the approaches people take to the role and future of Afrikaans. That history of association with racism and racially based practices is often one that Afrikaans-speaking communities will have to confront and deal with.”
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6(5) | The Pan-South African Language Board SCORE:4
“A Pan South African Language Board established by national legislation must— (a) promote, and create conditions for, the development and use of— (i) all official languages; (ii) the Khoi, Nama and San languages; and (iii) sign language; and (b) promote and ensure respect for— (i) all languages commonly used by communities in South Africa, including German, Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu and Urdu; and (ii) Arabic, Hebrew, Sanskrit and other languages used for religious purposes in South Africa.
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15 (1) | Freedom of conscience, religion, thought, belief and opinion. SCORE:1
“(1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion. (3) (a) This section does not prevent legislation recognising— (i) marriages concluded under any tradition, or a system of religious, personal or family law; or (ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion. (b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.”
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South Africans enjoy freedom of religion and conscience. Although South Africa is a secular country, the overwhelming majority of its citizens are religious.
Religion remains a powerful source and force of identity and cultural expression the world over and this is no different in South Africa, where despite being a largely Christian country, the religious freedoms of all are guaranteed in the Constitution. Freedom of conscience, religion, belief and opinion are guaranteed by S 15 of the Constitution. (Please see Annexure B on the religions to which South Africans are affiliated)
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Same-Sex Marriage
Constitutional foundations for freedom of choice have been amplified over the years by legislation that has responded to the interest of groups who felt discriminated against. This includes the Civil Union Act, which came into effect in November 2006. The legalization of same-sex marriages and the legal designation of religious marriage offices without religious restriction, was significant in promoting the principle of non-discrimination.
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Pagan Rights/ Witchcraft
n 2007, the South African Pagan Rights Alliance and the Traditional Healers Organization made submission to the South African Law Reform Commission to review the constitutionality of the Witchcraft Suppression Act of 1957 which criminalized knowledge and practice of witchcraft in addition to accusations against others of practicing such. The SA Law Commission reviewed submissions from interested parties and agreed that by making it illegal to identify as a witch, the Suppression of Witchcraft Suppression Act of 1957 was in violation of the constitutional right to freedom of religion guaranteed in S 15. The Minister of Justice and Constitutional Development subsequently approved a review project by the SALRC to review witchcraft legislation in March 2010.
In its issue paper released in February 2016, the SALRC recommended, in sum that the Witchcraft Suppression Act be declared unconstitutional and that witchcraft as a religious belief system and or religion be legally permissible.
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The Commercialisation of Religion
In 2016/2017 the CRL Rights Commission examined the Commercialisation of Religion & Abuse of People’s Belief System to investigate “the commercialisation of religion and the abuse of people’s belief systems in terms of when these institutions are being run, how are they being run, where is their funding going into, who collects how much and what do they do with the money, where does the money eventually go to, what are the governing principles that are there”. The report elicited widespread criticism in the parliamentary portfolio Committee on Cooperative Governance and Traditional Affairs in October 2017. The CRL Commission’s approach was criticized for being disproportionate and unnecessary because abuses could be addressed under existing laws. This was inconsistent with the constitutional guarantee in respect of freedom of religion and the duty of the state to create an enabling environment for religious freedom.
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15 (2) | Religious observances at state or state-aided institutions. SCORE:1
“Religious observances may be conducted at state or state-aided institutions, provided that— (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary.”
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In June, 2017, the Johannesburg High Court – in response to a case brought by The Organisation for Religious education and Democracy against six schools and the National Society for School Governing Bodies – ruled that religion could be practised at schools but not by schools. Judge Willem van der Linde ruled that whereas religious observances may be conducted at state or state-aided institutions “we have however also found at the level of principle that neither a school governing body nor a public school may lawfully hold out that it subscribes to only a single particular religion to the exclusion of others.”
The Basic Education Laws Amendment Bill requires that public schools must take into account the diverse cultural beliefs and religious observances of the learners at the school and makes provision for an exemption clause, making it possible to exempt learners, upon application, from complying with the code of conduct or certain provisions thereof, on just cause shown.
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29 (2) | EDUCATION IN THE OFFICIAL LANGUAGE OF CHOICE IN PUBLIC EDUCATIONAL INSTITUTIONS SCORE:4
“Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account— (a) equity; (b) practicability; and (c) the need to redress the results of past racially discriminatory laws and practices.”
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Introduction
Despite the internationally acknowledged importance of receiving the first six years of schooling in the child’s mother tongue, little progress has been made in achieving this in South Africa. Most black children receive the first three years of their education in their mother tongue but shift in the fourth year of school to English – often as a result of
Despite its pedagogical advantages there seems to be little demand among black South Africans for mother tongue education either at school or university levels. English appears, overwhelmingly, to be the language of choice for most black South Africans, Asians and whites English-speakers. It is only the Afrikaans-speaking communities that had developed schools and universities capable of teaching in a language other than English. It is accordingly they who are most concerned about preserving their right under section 29 (2) to education in the language of their choice (Afrikaans). This right is under extreme pressure – both at higher education and in schools.
Afrikaans is now used as a medium of education at 10% of South Africa’s 25 000 schools – with 5% providing Afrikaans on a single medium basis. However, it is clear that the ANC is ideologically opposed to the continuation of single-medium Afrikaans schools. Panyaza Lesufi, the Gauteng MEC for Education recently said that “economically and educationally the country cannot afford single-medium schools (i.e. Afrikaans schools)”.
The Education Laws Amendment Bill The new Education Laws Amendment Bill makes provision, inter alia, for the Head of the provincial education department to overrule the language policies adopted by School Governing Bodies. The Bill fails to set out the determinative factors according to which the HoD will approve the language policies. It can be expected that single medium Afrikaans schools will experience increasing pressure to become dual medium Afrikaans/English schools. There are doubts that Afrikaans can in the long run be maintained as a language of education in a dual medium environment because of the well-know tendency for dominant languages eventually to eclipse regional languages in such situations.
Afrikaans at University Level Neither are prospects for Afrikaans at university level much better. Afrikaans is being, or has been, eclipsed at the six universities at which it was formerly the only – or dominant – medium of tuition.
In terms of section 27 (2) of the Higher Education Act, the Council of Public Higher Education institutions, in concurrence with the Senate of the relevant institution, must determine the institution’s language policy. The policy must, however, also comply with the Language Policy for Higher Education, which the Minister of Higher Education published in November 2002 (LPHE). The LPHE recognises Afrikaans as a national resource and supports its retention as a medium of academic expression. However, it was opposed to the idea of single-medium Afrikaans universities: “The notion of Afrikaans universities runs counter to the end goal of a transformed higher education system, which as indicated in the National Plan for Higher Education (NPHE), is the creation of higher education institutions whose identity and cultural orientation is neither black nor white, English or Afrikaans-speaking, but unabashedly and unashamedly South African.”
“The legal standard of reasonableness, which of necessity involves consideration of constitutional norms, including equity, redress, desegregation and non-racialism. The factual criterion is practicability, which is concerned with resource constraints and the feasibility of adopting a particular language policy. It follows in my view, that even if a language policy is practical because there are no resource constraints to its implementation, it may not be reasonable to implement because it offends constitutional norms. The policy would therefore not meet the reasonably practicable standard.”
“The level of development attained by the Afrikaans language is in demonstrable ways connected to aspects of history of colonial-settler domination and particularly in its latter phases to the dominant position of a sector of the Afrikaansspeaking communities in the apartheid order. Afrikaans became the language most closely associated with the formalisation and execution of apartheid. To a great proportion of South Africans it probably calls up first and foremost associations of discrimination, oppression and systematic humiliation of others. These associations understandably often affect the approaches people take to the role and future of Afrikaans. That history of association with racism and racially based practices is often one that Afrikaans-speaking communities will have to confront and deal with.”
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Section 29 (2) again came under scrutiny in the Constitutional Court in October 2019 in Gelyke Kanse and Others v Chairperson of the Senate of the University of Stellenbosch.
Gelyke Kanse (GK) appealed directly to the Constitutional Court to set aside the Western Cape High Court’s above-mentioned judgement in Gelyke Kanse and others v The Chairman of the Senate of the Stellenbosch University and others [ 2017] – and in effect to find that the University’s 2016 Language Policy was unconstitutional. The judgement, noted that, unlike the situation at the University of the Free State, Stellenbosch University “had by no means abolished Afrikaans.” It also noted that, also unlike the situation at UFS, “some students seeking tuition in Afrikaans are brown.” “Here, unlike at the University of the Free State, the University by no means abolished Afrikaans. Also dissimilar is that some students seeking tuition in Afrikaans are brown. This means that racial segregation of the kind at issue in AfriForum CC is not a feature. Nevertheless, the University’s evidence indicates that dual medium classes with interpreting from Afrikaans to English peripheralise and stigmatise black students not conversant in Afrikaans. That, together with the non-prohibitive but significant cost of upscaling to full parallelism means that sustaining the 2014 Language Policy was not reasonably practicable for the University.” The Court accepted, without hearing any other testimony, the University’s assessment that the provision of parallel medium tuition would amount to R640 million in infrastructure and R78 million per annum thereafter and would necessitate a 20% increase in fees. It concluded that such costs breached the “reasonable practicability” requirement in section 29(2) and dismissed GK’s application. In his concurring judgement, Froneman J expressed concern over the impact of the judgement on the Coloured community: “The evidence before us shows that Afrikaans is the home language of a significant proportion of brown people in the Western Cape (and also the Northern Cape). It also shows that they are predominantly working-class people and that many of them are not proficient in English. Statistically they are the smallest of all population groups proceeding to tertiary education. Poverty means that it is more difficult for them than for most even to aspire to tertiary education. And if they do get that far, they have only one university to go to in the Western Cape where Afrikaans may be chosen as a medium of instruction.’ Now, when they arrive at Stellenbosch, they will find that their choice of medium of instruction is not as comprehensive as those more privileged students who choose English. The grim message that seems to be sent to this segment of extremely marginalised brown people, is that, if they are be accommodated, they need to grow out of poverty and learn English fast. “There is something deeply disturbing and wrong about this. What are the comparative numbers of this segment of brown people in contradistinction to those black Africans who felt or were excluded by the application of dual medium instruction at Stellenbosch University?” Froneman J also referred to the centrality of language as a bearer of culture and human identity:
“Without your own language, culture is lost, a sense of self is lost. And once that happens, diversity is lost. We will lose the belief set out in the Preamble of the Constitution ‘that South Africa belongs to all who live in it, united in our diversity’”.
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29 (3) | Everyone has the right to establish and maintain, at their own expense, independent educational institutions. SCORE: 2
“Everyone has the right to establish and maintain, at their own expense, independent educational institutions that— (a) do not discriminate on the basis of race; (b) are registered with the state; and (c) maintain standards that are not inferior to standards at comparable public educational institutions. Chapter 2: Bill of Rights 13 (4) Subsection (3) does not preclude state subsidies for independent educational institutions.”
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This right appears to be accepted. There are numerous private schools that cater to the religious, language and cultural preferences of South Africa’s various communities.
However, in November, 2014, in response to the establishment of ‘Akademia’, a private Afrikaans medium university by Solidarity, Minister Blade Nzimande said that there was no place for a private university in which Afrikaans is the only language. He said that such an Afrikaans university would be exclusive by shutting out other students.”
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30 | The right to use the language and to participate in the cultural life of one’s choice. SCORE: 1
“Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.”
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30 &
31((1)(a) Language
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The right of persons to use the language of their choice. SCORE: 3
“Everyone has the right to use the language … of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.”
“Persons belonging to a …. linguistic community may not be denied the right, with other members of that community— (a) to … use their language; and (b) to form, join and maintain …Religious and linguistic associations and other organs of civil society. (2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.”
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The SABC broadcasts services radio and TV services which cater to the needs of all South Africa’s 11 language groups as well as the diversity of the country’s cultures. In addition to the SABC, there are numerous private and
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In Gelyke Kanse and Others v Chairperson of the Senate of the University of Stellenbosch in the Constitutional Court in October 2019, Froneman J quoted Ngũgĩ wa Thiong’o – a world-renowned Kenyan writer, and Breyten Breytenbach, a leading writer of Afrikaans literature and poetry – in emphasizing the centrality of language to culture and identity:
Ngũgĩ wa Thiong’o: “Language as communication and as culture are then products of each other. Communication creates culture: culture is a means of communication. Language carries culture, and culture carries, particularly through orature and literature, the entire body of values by which we come to perceive ourselves and our place in the world. How people perceive themselves and affects how they look at their culture, at their places politics and at the social production of wealth, at their entire relationship to nature and to other beings. Language is thus inseparable from ourselves as a community of human beings with a specific form and character, a specific history, a specific relationship to the world.” Breyten Breytenbach: “Taal is mens en mens is taal. Afrikaans is die lewende en veranderende en andersmakende uitvloeisel van uiteenlopende en by tye botsende geskiedenisse. Hierdie diverse oorspronge gekenmerk deur aanpassing, verowering, onderdrukking, oorlewing, weerstand en omvorming – afkomstig uit Europese dialekte, Maleis, Portugees, seemanstaal, Khoi tale, Arabiese Afrikaans, die Koran en die Bybel, die howe en kerke en kombuise en wingerde en fabrieke – het gemaak dat Afrikaans ‘n unieke hibridisering vergestalt as Kreoolse taal wat by uitstek die verwoording is van die komplekse wêreld waarin ons beweeg.”
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There is no restriction on the right of people belonging to a language community to use their language in private, social and community contexts.
However, as is pointed out in section 6 (b), (c) and (d) above the right of South Africans of all language groups – except those with English as their home language – to use their own language in communication with the courts, government departments and SOEs is limited by the degree to which these state institutions fail to carry out their responsibilities in terms of the Use of Official Languages Act.
The ability of South Africans to use their languages of choice in public education institutions is similarly limited by the failure of government and education institutions to provide education in the language of their choice in terms of section 29 (2) of the Constitution. (Please see section 29(2) above).
The ability of South Africans – except those with English as their home language – to use their own language in their places of employment and in commercial transactions is, in the same way, limited by the almost universal use of English in the business sector – to the exclusion of all other official languages.
A 2010 study by Dorrit Posel and Jochen Zeller of the University of KwaZulu-Natal on the self-assessed proficiency of South Africans from different population groups in their own language and in English revealed the following:
From this is emerges that self-assessed ability in the home language is predictably and significantly higher in all population groups (except the English-speaking Indian community) than proficiency in English. It also emerges that approximately 32% of black South Africans and 27% of Coloureds do not read and write English well or not at all.
The increasingly unilingual environment in government, education and business present these South Africans with serious disadvantages in important aspects of their daily lives and may negatively affect their equal access to some of the rights in the Bill of Rights. This also is true to a lesser extent for the approximately 25% of Black South Africans and Coloureds whose command of English is only “fair”.
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30,
31(1) (a) Culture |
The right of persons to participate in, and enjoy, the culture of their choice SCORE:3
“Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.”
“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, practise their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. (2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.”
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There are disturbing indications that the current debate on “whiteness” and “colonialism” is closing down the cultural space of white Afrikaans and English-speaking South Africans:
A central element of The Rhodes Must Fall movement is the rejection of Eurocentric culture – i.e. the culture of the European-descended minorities in South Africa). It describes itself as “a collective of students and staff members mobilising for direct action against the reality of institutional racism at the University of Cape Town.” It sees the fall of Rhodes “as symbolic for the inevitable fall of white supremacy and privilege on the campus..”
“The current (UCT) curriculum dehumanizes black students.” “We study all these dead white men who presided over our oppression… Our own thinking as Africans has been undermined. We must have our own education from our own continent. We cannot be decolonized by white people who colonized us. Eurocentrism does not serve our interests culturally, socially, economically…. For decolonized education to be introduced, the existing system must be overthrown and the people it is designed to serve must define it themselves.” Rhodes-Must-Fall activist, Athabile Nonxuba In the course of the protests – which spread to universities throughout South Africa – students occupied university offices; chanted “One Settler, One Bullet” and attacked and or destroyed symbols of “white culture”, including the statue of Cecil John Rhodes and Jan Smuts and burned paintings, mostly of white people.
Following a visit to Singapore in 2017 Western Cape premier Helen Zille tweeted “For those claiming legacy of colonialism was ONLY negative, think of our independent judiciary, transport infrastructure, piped water etc.” The tweet elicited an avalanche of furious criticism – much of it from her own party: Phumzile Van Damme, DA spokesperson, insisted that “Colonialism was a crime against humanity. There isn’t a single aspect of it that can be said to be positive or beneficial to Africans.”
In October 2016 leading intellectual and Vice-Chancellor of the University of Johannesburg, Prof Njabulo Ndbele, stated bluntly that the time had come “to recognise that the norm of human presence in South Africa is ‘black’. That recognition is central to understanding where real agency for shaping the future of South Africa is overwhelmingly located, and that ‘blackness’ becomes so normal it ceases to exist.” He speculated on the need for whites to abandon their cultural identities and asked what was expected of them: “is it remorse, guilt, identification as Africans, adopting Bafana Bafana, moving from white suburbs to the townships, giving away a portion of their wealth in some way (whose accumulation is fundamentally questionable historically on moral and ethical grounds), adopting African names, learning African languages, transferring their skills?”
This approach was also evident in the 2016 judgement of the Constitutional Court in City of Tshwane Metropolitan Municipality v AfriForum regarding the renaming of streets in Pretoria. The judgment has far-reaching implications for the rights of white South Africans in terms of sections 30 and 31 and raises serious questions regarding South Africa’s future as a society that honours the diversity of all its communities. As Judges Cameron and Froneman observed in their dissenting judgment, “the implication that may be drawn from the first judgment is that any reliance by white South Africans, particularly white Afrikaner people, on a cultural tradition founded in history, finds no recognition in the Constitution, because that history is inevitably rooted in oppression”. In his separate judgement, Judge Jafta, asked “How the unquestionably transformative Constitution can be expected to recognise cultural traditions rooted in the racist past? The answer must be, if there is such expectation, that it is misplaced.” He added that “racist and oppressive cultural traditions have no place in our constitutional order, even though they may exist in history. In contrast, such traditions belong in the dustbins of history where they ought to be buried.” “This” he concluded, “is a clear indication that any claim to the enjoyment of culture may not include an entitlement to racist and oppressive cultural traditions of the colonial and apartheid era.”
Since, virtually everything that whites did before 1994 could in one way or another be associated with “the colonial and cultural traditions of the colonial and apartheid era” the effect of this would be to deprive white South Africans of most of their culture and history with far-reaching implications for their right to human dignity and equality;
Despite the inclusionary nature of the South African Constitution and the acknowledgement that “South Africa belongs to all who live in it, united in our diversity”, there is very little effort on the part of the national government to accommodate minorities in national symbols and in the national identity (with the exception of the national flag and the national anthem). Heroes from minority cultures – and historic commemorations important to minorities – receive little or no recognition in national festivals or ceremonies.
On the contrary, the history and identity of the white minorities are routinely denigrated by national leaders as manifestations of ‘colonialism’ and no ‘respect is shown to those who have worked to build and develop our country’ as required in the Preamble to the Constitution. All this is based on an entirely one-sided – and routinely repeated – analysis of South Africa’s complex history.
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31(1)(a) | The right of people belonging to a CRL community to practise their religion SCORE: 1
“ (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, practise their religion and use their language…. “(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.
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31 (1) b | Persons belonging to a CRL community may not be denied the right to form, join and maintain CRL associations. SCORE: 1
(1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community— …. (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society “(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.
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This right is also generally enjoyed. There are numerous cultural, religious and welfare organisations that serve all South Africa’s communities.
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185
(1)a |
The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (The CRL Commission) SCORE: 3
(1) The primary objects of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities are— (a) to promote respect for the rights of cultural, religious and linguistic communities; (b) to promote and develop peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association; and (c) to recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils for a community or communities in South Africa. (2) The Commission has the power, as regulated by national legislation, necessary to achieve its primary objects, including the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning the rights of cultural, religious and linguistic communities. (3) The Commission may report any matter which falls within its powers and functions to the South African Human Rights Commission for investigation. (4) The Commission has the additional powers and functions prescribed by national legislation.
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Although the CRLC has been active in the following areas it has never been regarded by threatened minorities as their champion – but rather as another exponent of views and programmes of the majority.
It has done little to address the concerns of cultural and language minorities regarding threats to their languages and cultures. Neither has it been able to “recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils for a community or for communities in South Africa”.
In June 2014 the CDL Commission released a report on public hearings on initiation schools in South Africa. There had been a spate of deaths during initiation ceremonies, with 401 and 18 deaths in respectively in the Eastern Cape and Limpopo Provinces from 2008-2013, while 67 initiates died in Mpumalanga from 2008-2014. The report acknowledges initiation ceremonies such as Ulwaluka, Koma and Lebello are important rights of passage and confer certain privileges and responsibilities but they must be carried out with respect to the law. It was suggested that bodies such as COGTA, SAPS, Department of Social Development and Department of Health need to get involved to remedy the situation.
Between October 2015-March 2016 CRLC undertook a fact-finding mission across 9 South African to address concerns over the commercialization of religious activities and institutions. In October 2017, 18 religious groups made presentations to Parliament about the CRLC’s report in this regard. Most of the groups agreed that the issues being raised by the CRLC are serious but believed that it was unconstitutional and beyond the mandate of the CRLC to try to control religious affairs. They insisted the CRLC was supposed to act in a capacity to monitor, protect and promote religious rights and should not try to regulate religious affairs in the same way countries like China, Russia and India do. There was also a complaint of Christian bias in the consultations and that enough structures were already operating to address the issues mentioned in the report.
In April 2016 the CRLC endorsed the South African Charter of Religious Rights and Freedoms.
In September 2016 the CRLC condemned the treatment which black pupils were receiving as a result of school codes of conduct which did not take into account their language, cultural identity, hair and beliefs.
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235 | The Right to Self-determination SCORE: 5
“The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.”
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The following provision was included at the last minute in the 1993 Interim Constitution as one of the immutable principles (No XXXIV) that would frame the final Constitution:
“1. This Schedule and the recognition therein of the right of the South African people as a whole to self-determination, shall not be construed as precluding, within the framework of the said right, constitutional provision for a notion of the right to self-determination by any community sharing a common cultural and language heritage, whether in a territorial entity within the Republic or in any other recognised way. 2. The Constitution may give expression to any particular form of self- determination provided there is substantial proven support within the community concerned for such a form of self-determination. 3. If a territorial entity referred to in paragraph 1 is established in terms of this Constitution before the new constitutional text is adopted, the new Constitution shall entrench the continuation of such territorial entity, including its structures, powers and functions.”
In fact, the ANC never had any intention of giving any recognition to this provision of the Constitution. It admits that it cynically manipulated the negotiations and presented positions and offers that it had no intention of fulfilling:
“Among the tactical options the ANC was compelled to consider was that of accommodating the demand for a Volks chamber on the part of the White ultra-right. I submit that it would be utterly wrong to interpret this as some form of recognition of the right to self-determination on the part of the Afrikaners. “ Firstly this would violate every precept of international law as it has evolved since 1945, and would also run counter to the ANC’s own conception of self- determination. How then do we view our acceptance of the Volks chamber? “The example of the Volks chamber serves to highlight a concession that is most glaringly inconsistent with both the democratic foundations of the South African constitution and the tradition to which the ANC has always adhered. There are a number of others, perhaps less jarring, which had to be made at the time as a means of smoothing the transition. It is however of paramount importance that we assess whether these were temporary arrangements which should not be allowed to congeal into a status quo or were regarded as options that could become permanent.
The existence of Orania, geographically located near the Gariep Dam could be construed as a form of self-determination. Essentially, it is a farm on which a number of Afrikaners built a town and are living according to their own cultural values. It is generally tolerated (also by the ANC government), but mainstream of Afrikaners have no wish or intention to live there.
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CONCLUSION
Score | Section | Description | Status |
1 | 15 | Freedom of religion, belief and opinion | Excellent observation |
1 | 31 (1)(b) | The right to form, join and maintain cultural, religious and linguistic associations | Excellent observation |
2 | 29(3) | The right to establish independent educational institutions | Adequately observed |
3 | 6(4) | Regulation official languages and parity of esteem | Cause for concern |
3 | 30 | The right to use the language of choice | Cause for concern |
3 | 30 | The right to participate in the culture of choice | Cause for concern |
3 | 31 | The rights of cultural, religious and linguistic communities | Cause for concern |
3 | 185 | Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities | Cause for concern |
4 | 6 (1) | Official languages | Under serious threat |
4 | 6(3) (b) | Use of official languages by national and provincial governments | Under serious threat |
4 | 6(5) | The Pan-South African Language Board | Under serious threat |
4 | 29(2) | Education in the official language of choice | Under serious threat |
5 | 6(2) | Development of indigenous languages | No longer observed |
* | 235 | Self-determination | Never tested |
What emerges from this assessment of the state of cultural, religious and language rights in South African is that – although South Africans enjoy religious freedom – the provisions included in the constitution to advance and protect cultural and language rights – are under extreme pressure. In particular –
- Few if any of the constitutional provisions requiring South Africa to recognise and use our diverse official languages have been honoured:
- English has, in practice, become the sole de facto official language;
- Little or nothing has been done to advance our indigenous languages;
- Failure to give proper recognition to the multilingual nature of South Africa and to implement the language provisions in the Constitution – particularly in government, education and the workplace – represents a serious disadvantage for the 32% of black, and 26% of Coloured South Africans who do not have an adequate command of English. It poses a significant disadvantage for the 25% of Black and Coloured South Africans whose command of English is only “fair”;
- The failure to provide mother tongue based multi-lingual education to learners’ whose home language is not English will according to international experts have an extremely negative impact on their education outcomes.
- Section 29(2) – which assures the right to education in the language of one’s choice at our schools and universities is under extreme pressure – with far-reaching implications for learners of all races from non-English-speaking homes all races.
- The failure to observe section 29(2) poses a particular threat to the right to education in th language of choice in public educational institutions for Coloured and white Afrikaans-speaking learners and students.
- The Afrikaans language is no longer treated by the state or by the courts with “parity of esteem”.
- The right of white South Africans to practise their culture is being eroded by the “Colonialism/apartheid” debate.
- The institutions created by the Constitution to promote South Africa’s languages, religious and cultural rights are not functioning effectively.
THE LANGUAGES OF SOUTH AFRICA
Language name | Speakers as a 1st language | ||
English | Endonym | Count | Of population |
Zulu | isiZulu | 11,587,374 | 22.7% |
Xhosa | isiXhosa | 8,154,258 | 16.0% |
Afrikaans | Afrikaans | 6,855,082 | 13.5% |
English | English | 4,892,623 | 9.6% |
Northern Sotho | Sesotho sa Leboa | 4,618,576 | 9.1% |
Tswana | Setswana | 4,067,248 | 8.0% |
Sesotho | Sesotho | 3,849,563 | 7.6% |
Tsonga | Xitsonga | 2,277,148 | 4.5% |
Swazi | siSwati | 1,297,046 | 2.5% |
Venda | Tshivenḓa | 1,209,388 | 2.4% |
Ndebele | isiNdebele | 1,090,223 | 2.1% |
SA Sign Language | 234,655 | 0.5% | |
Other languages | 828,258 | 1.6% | |
Total | 50,961,443 | 100.0% |
SOURCE: STATSSA 2011 CENSUS
THE RELIGIONS OF SOUTH AFRICA
Religious affiliation by province, 2015 | ||||||||
Province | Ancestral, tribal, other traditional African | Christian | Hindu | Jewish | Muslim | None/Do not know | Other | Total |
Eastern Cape | 8.6% | 83.5% | 0.1% | 0.0% | 0.4% | 7.2% | 0.2% | 100.0% |
Free State | 1.4% | 97.7% | 0.0% | 0.0% | 0.6% | 0.1% | 0.1% | 100.0% |
Gauteng | 2.3% | 87.1% | 0.8% | 0.6% | 2.4% | 6.4% | 0.6% | 100.0% |
KwaZulu-Natal | 12.3% | 78.5% | 3.3% | 0.1% | 2.0% | 3.3% | 0.5% | 100.0% |
Limpopo | 4.5% | 79.9% | 0.0% | 0.1% | 0.9% | 14.4% | 0.2% | 100.0% |
Mpumalanga | 4.0% | 93.2% | 0.1% | 0.0% | 0.8% | 1.5% | 0.4% | 100.0% |
North West | 3.0% | 93.3% | 0.1% | 0.0% | 1.5% | 2.1% | 0.1% | 100.1% |
Northern Cape | 0.0% | 98.4% | 0.0% | 0.1% | 0.9% | 0.3% | 0.3% | 100.0% |
Western Cape | 2.8% | 87.8% | 0.4% | 0.5% | 5.3% | 2.7% | 0.7% | 100.0% |
South Africa | 5.4% | 86.0% | 0.9% | 0.2% | 1.9% | 5.2% | 0.4% | 100.0% |
Source: Stats SA, General Household Survey 2015, Statistical release P0318, 2 June 2016,
Table 9, p31
a Proportions should add up horizontally but may not, owing to rounding.
INTERNATIONAL PROTECTION OF MINORITY CULTURAL, RELIGIOUS AND LANGUAGE RIGHTS
Introduction
The accommodation of cultural, ethnic, language and religious diversity is one of the principal challenges confronting states in the 21st century. Virtually all the 17 significant conflicts in the world during 2016 had their roots in the failure of societies to deal with religious, ethnic or linguistic diversity. There were no wars in 2016 between countries – although some internal conflicts such as those in Iraq, Syria and Afghanistan had been internationalization.
The accommodation of cultural, ethnic and religious minorities is widely recognized in international treaties and conventions as a key factor in assuring peace, stability, human rights and economic growth in countries with diverse populations. As the UN Development Programme pointed out in 2004
“Cultural liberty is a vital part of human development …. People want freedom to participate in society without having to slip off their chosen cultural moorings. States face an urgent challenge in responding to these demands. If handled well, greater recognition of identities will bring greater cultural diversity in society, enriching people’s lives. But there is also a great risk. These struggles over identity, if left unmanaged or poorly managed, can quickly become one of the greatest sources of instability within states and between them – and in so doing can trigger conflict that takes development backwards.”
The report goes on to deal with – and dismiss – various myths relating to the management of intercommunal relations and concludes that “policies recognizing cultural identities and encouraging diversity to flourish do not result in fragmentation, conflict, weak development and authoritarian rule. Such policies are both viable, and necessary, for it is often the suppression of culturally identified groups that leads to tension.”
International Conventions
The obligation to respect language, culture and religious rights is articulated in a number of international treaties and legal frameworks.
- The 1948 Universal Declaration of Human Rights (UDHR) 1948 – ratified by South Africa in 1998;
- The International Convention on the Elimination of all Forms of Racial Discrimination, (CERD) 1966 – ratified by South Africa in 1998;
- The International Covenant on Civil and Political Rights (ICCPR), 1966 – ratified by South Africa in 1998;
- International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 – ratified by South Africa in 2015 ;
- The Council of Europe Framework for the Protection of National Minorities; (CEFPNM) 1992;
- The United Nations Declaration on the Rights of People Belonging to National or Ethnic, Religious and Cultural Minorities, (DRNERCM) 1992; and
- The European Charter for Regional and Minority Languages, (ECRML) 1992;
These international treaties and covenants endorse the following principles relating to the rights of ethnic, religious and cultural minorities:
- non-racialism and non-discrimination;
- equality between all citizens regardless of their racial, cultural or religious identities;
- the right to speak one’s language;
- the right to practise and develop one’s culture;
- freedom of religion;
- the right to education in the language of one’s choice in private institutions;
- appropriate inclusion in the broader national identity and participation in decision-making affecting minorities; and
- protection of minority rights by the courts and by impartial state institutions.
THE PROMOTION AND PROTECTION OF MINORITY CULTURAL, RELIGIOUS AND LINGUISTIC RIGHTS IN INTERNATIONAL CONVENTIONS AND IN THE SOUTH AFRICAN CONSTITUTION | |||||||||
CULTURAL, RELIGIOUS AND LINGUISTIC
RIGHTS |
Universal Declaration of Human Rights
1946 |
International Convention on the Elimination of all Forms of Racial Discrimination
1966 |
International Covenant on Civil and Political Rights
1966 |
International Covenant on Social, Economic and Cultural Rights, 1966 | Council of Europe Framework Convention for the Protection of National Minorities
1992 |
UN Declaration on the Rights of People Belonging to National or Ethnic, Religious and Cultural Minorities
1992 |
European Charter for Regional or Minority Languages
1992 |
South African Constitution
1996 |
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EQUALITY AND NON-DISCRIMINATION | |||||||||
1 | Equality of persons belonging to CRL communities | Art 1 | Art 5 | Art 4 | Art. 2 | Sections 1, 9 | |||
2 | Non-discrimination against people belonging to CRL communities | Arts 2, 7 | Art 2 | Arts 2, 26 | Art 2.2 | 2 Arts 4, 6 | Art. 2
Art. 15.2 |
Part II 2 | Sections 9(3),9(4) |
3 | Prohibition of Hate Speech | Art 4 | Art 20 | Art. 8.2 (e)
Art. 15.2 |
Section 16(2) | ||||
CULTURE, RELIGION AND LANGUAGE | |||||||||
4 | Recognition, promotion and use of national languages | Art 27 | Art 5, 9, 10 | Art. 11
Art. 13 |
Art 7.1 | Section 6 (1), (2), (5)
Section 30 |
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5 | Freedom of expression in minority languages
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Art 9 | Art. 13 | Art 7.1 | Section 16 | ||||
6 | Promotion and use of minority cultures | Art 22 | Art 5 | Art 27 | Art 15.1.(a) | Art 5 | Art 2.1 | Sections 30, 31 | |
7 | Freedom of religion | Art 18 | Art 8 | Art 2.2 | Section 15 | ||||
8 | Use of national languages in public TV and radio broadcasting | Art 9 | Art. 16.2 | Art 11 | Section 192, national legislation | ||||
EDUCATION | |||||||||
9 | State education in the language of choice at school | Art. 14
Art. 14.3 |
Section 29(2) | ||||||
10 | State education in the language of choice at university | Section 29(2) | |||||||
11 | The right of communities to private educational institutions | Art 13.4 | Art 13.1 | Section 29(3) | |||||
POLITICAL PARTICIPATION | |||||||||
12 | Right to Autonomy/Self-Determination | Art 1 | Art 1.1 | Art. 3
Art. 4 Art. 5 Art. 20 |
Section 235 | ||||
13 | Consultation with communities regarding policies affecting them | Art 15 | Art. 18
Art. 19 |
Part II 4 | Section 59 | ||||
Right to traditional lands | Art. 26 | Section 29 | |||||||
14 | Recognition or the role of traditional leaders | Art.20 | Sections 211, 212 | ||||||
15 | Institutions to protect and promote cultural, religious and linguistic rights | Sections 184, 185 | |||||||
PUBLIC ADMINISTRATION | |||||||||
16 | Use of the national languages in courts | Art 10.3 (limited) | Art 9 | National legislation | |||||
Recognition of traditional systems of justice | Art. 27 | Art 211 (3) | |||||||
17 | Use of national languages in public administration where numbers are sufficient | Art 10.2 | Art 10 | Section 6(3),(4) |