The Act, promulgated on 2 May 2013, was adopted to regulate the use of official languages by national government as required by section 6 of the Constitution and required all national departments, national public entities and national public enterprises to adopt official language policies within 18 months of commencement of the Act.
However, in a recent briefing to the parliamentary Portfolio Committee on Arts and Culture, the Department of Arts and Culture (DAC) indicated that not a single national department and only a handful national entities and enterprises had complied with the Act by 2 November 2014 – the deadline for implementation.
Section 6 of the Constitution provides for 11 official languages. This section also recognises the diminished use and status of indigenous languages and requires the State to take “practical and positive measures” to elevate the status, but also advance the use of indigenous languages. Nonetheless, section 6(4) requires all official languages to enjoy “parity of esteem and be treated equitably” and for the national government to regulate and monitor its use of official languages by legislative and other measures in order to ensure the former.
The Act is such a legislative measure, with the objective to regulate and monitor the use of official languages for government purposes by national government; to promote parity of esteem and equitable treatment of official languages; to facilitate equitable access to services and information of national government; and to promote good language management by national government for efficient public service administration and to meet the needs of the public.
As such, the Act requires national departments, entities and enterprise to adopt a language policy in which, among others, they must identify at least three official languages to be used for government purposes. It also requires them to stipulate how official languages will be used, amongst other, in effectively communicating with the public, official notices, government publications and inter- and intra-governmental communications. More importantly, the Act requires these organs of State to describe in their respective policies how they will effectively communicate with members of the public whose language of choice is not one of the three official languages selected by the particular department, entity or enterprise.
The Minister is responsible for monitoring the use of official languages by the national government, national public entities and national public enterprises. Accordingly, every national department, national public entity and national public enterprise must submit a report to the Minister and to the Pan South African Language Board (PanSALB) annually on the activities of its language unit; implementation of its language policy; and any complaints received regarding its use of official languages and the manner in which these complaints were handled. In turn, 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. However, it is clear from the DAC’s recent briefing to Parliament that most national organs of State have not been taking this Act seriously.
In his defence, the Minister of Arts and Culture, Nathi Mthethwa, said he was deeply concerned about the slow implementation of this law. Hence, in terms of the Act, he extended the deadline for language policies to be adopted to 2 May 2015, subject to the conditions that he receives a status report from each department, entity and enterprise by 30 January 2015; that language policies are gazetted for public comment by 31 March 2015; and that all language policies be adopted by 2 May 2015. The Minister also warned that failure to comply will be seen as “government failing to implement its own regulations.“ In addition, he noted that “lack of adherence to the Act will result in audit queries as it will be regarded by the Auditor General of South Africa (AGSA) as non-compliance to government legislation and regulations.”
Apart from the Minister’s obvious responsibilities in terms of the Act, the Portfolio Committee on Arts and Culture has a crucial role to play in this matter. Parliament has a duty to ensure that the National Executive and all national organs of State remain accountable to it – especially in relation to non-compliance with the Constitution and legislation. Any further failure by organs of State to comply with the Act or the Minister’s revised timelines and deadline, should see the Portfolio Committee taking firm action against the relevant organs of State and the Ministers responsible.
The importance of language is obvious. It reflects the diversity of South Africa; it speaks to recognition of the past and acknowledgement of a unified future in which South Africa belongs to everyone who lives in it. Language, in context of organs of State, directly relates to responsive and transparent public administration, to effective service delivery and to access to information. In fact, the use of official languages by organs of State is such an important matter that the drafters of the Constitution deemed it necessary to include it under the foundational provisions of the Constitution. The failure by national organs of State to comply with the Act thus not only impacts on effective service delivery, but effectively violates a foundational provision of the Constitution.
By Adv Johan Kruger, Director: Centre for Constitutional Rights