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[2014] ZAEQC 2
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Lourens v Speaker of the National Assembly and Others (EC08/12) [2014] ZAEQC 2; 2015 (1) SA 618 (EqC) (17 September 2014)
IN
THE EQUALITY COURT
(HIGH
COURT, CAPE TOWN)
Case No EC08/12
DATE: 17
SEPTEMBER 2014
In
the matter between:
CORNELIUS
JOHANNES ALEXANDER
LOURENS
...................................
Applicant
And
SPEAKER
OF THE NATIONAL ASSEMBLY
.....................................
First
Respondent
CHAIR
OF THE NATIONAL COUNCIL
OF
PROVINCES
............................................................................
Second
Respondent
MINISTER
OF ARTS AND CULTURE
.............................................
Third
Respondent
PAN
SOUTH AFRICAN LANGUAGE BOARD
.............................
Fourth
Respondent
Court:
griesel J
Heard:
18, 19 August 2014
Delivered:
17 September 2014
JUDGMENT
Griesel
J:
Introduction
[1]
In
Ex
parte Gauteng Provincial Legislature: In re School Education Bill of
1995 (Gauteng)
,
[1]
Kriegler J observed:
‘
Taal
– en by name die behoud van Afrikaans – ontlok
diepgewortelde emosie.’
[2]
The present application is an illustration
of this phenomenon. However, this matter cannot be decided on the
basis of emotion, no
matter how deep-rooted. The answer must,
instead, be sought in the provisions of the Constitution of the
Republic of South Africa,
1996 (‘the Constitution’), and
the Promotion of Equality and Prevention of Unfair Discrimination
Act, 4 of 2000
(‘the Equality Act’ or simply ‘the
Act’).
[3]
The applicant in this matter, an
Afrikaans-speaking attorney from Brits in the North West Province,
has launched proceedings in
the Equality Court against the Speaker of
the National Assembly (first respondent), the Chair of the National
Council of Provinces
(second respondent), the Minister of Arts and
Culture (third respondent) and the Pan South African Language Board
(fourth respondent).
For convenience I shall refer to the first
respondent as ‘the Speaker’, to the first and second
respondents collectively
as ‘Parliament’ and to the third
respondent as ‘the Minister’.
[4]
The applicant’s complaint is that
national legislation promulgated by Parliament is not published in
all eleven official languages,
thereby undermining the
official status of the official languages (other than English) and
effectively elevating English to
the status of ‘super official
language’.
[5]
The relief originally claimed was
formulated as follows:
‘
1.1
Dat bevind word dat die Eerste en Tweede Respondent, alternatiewelik
Derde Respondent, alternatiewelik Respondente gesamentlik
en
afsonderlik, onbillike taaldiskriminasie pleeg.
1.2 Dat die huidige
praktyk van die Parlement van die Republiek van Suid-Afrika, soos
vervat in Gesamentlike Reëls 220, 221
en 222, onbillike
taaldiskriminasie daarstel, alternatiewelik toelaat dat
onbillike taaldiskriminasie gepleeg word en in die
hand werk.
1.3 Die
nie-publisering van alle wetgewing, die amptelike status van die
amptelike tale, soos vervat in sub-artikel 6(1) van die
Grondwet
ondermyn en onbillike taal diskriminasie daarstel, alternatiewelik
daartoe aanleiding gee.
2. Alternatiewelik:
die nie-publisering van wetgewing in sodanige aantal amptelike tale
of in sodanige maksimum amptelike
tale as waarin die wetgewing
wat redelikerwys gepubliseer moes word, behoudens rasionele
objektiewe gronde vir die keuse van
publisering daarvan, onbillike
taaldiskriminasie daarstel.
3. ʼn Lasgewing
dat Eerste en Tweede Respondent binne ʼn redelike tyd, soos deur
die Agbare Hof bepaal te word, van hoogstens
6 (ses) maande die
Parlement se reglement ooreenkomstig die gees en letter van die
Grondwet te bring deur wetgewing binne ʼn
bepaalde redelike tyd
in al 11 (elf) amptelike tale te laat publiseer en dit te sertifiseer
as korrek om in howe gebruik te kan
word.
4. Alternatiewelik:
om die Eerste, Tweede en Derde Respondent te verplig om wetgewing
binne ʼn redelik tyd, maar nie later
as 12 (twaalf) maande na die
bevel van hierdie Agbare Hof nie, wetgewing [sic] te finaliseer om
die publisering van alle wetgewing
van al die 11 (elf) amptelike tale
of sodanige maksimum amptelike tale as waarin die wetgewing
redelikerwys gepubliseer moes
word, behoudens rasionele
objektiewe gronde vir die keuse van publisering daarvan, kragtens
Artikel 9(2) van die Grondwet te publiseer
wat nie onbillik
taaldiskrimineerend van aard mag wees nie en wat die objektiewe
rasionele gronde, waaronder dié soos vermeld
in sub-artikel
6(3)(a) van die Grondwet moes uitspel.
5. Koste van die
saak aan die Applikant; en verdere en/of alternatiewe regshulp om
enige bevel, wat die Agbare Hof ingevolge Artikel
21 van Wet 4 van
2000 in die omstandighede mag goed vind, te gelas.’
[6]
During argument before me, the relief was
narrowed down considerably on behalf of the applicant, without
abandoning any of
the relief originally claimed. In essence, what the
applicant is seeking is an order finding ‘
dat
die Eerste, Tweede en Derde respondente onbillike taaldiskriminasie
pleeg deur te versuim om alle Nasionale wetgewing in
al die amptelike
tale van die Republiek van Suid-Afrika amptelik te publiseer’.
[7]
In considering the applicant’s
contentions, I shall first briefly discuss the historical background
pertaining to the constitutional
protection of language rights under
previous regimes. Thereafter, the relevant provisions of the
Constitution will be referred
to, followed by the Parliamentary
process in promulgating national legislation, before considering the
allegations of unfair discrimination
against the background of the
Equality Act and the respondents’ answers thereto.
Historical
background
[8]
The
applicant’s claims herein must be viewed in their historical
context, although it is not necessary for purposes of this
judgment
to give a comprehensive overview of the position.
[2]
Suffice it to point out that, as a result of the compromise agreement
reached at the National Convention of 1909, s 137 of
the South
Africa Act, 1909, was adopted, which provided that –
‘
both
the English and Dutch languages shall be official languages of the
Union, and shall be treated on a footing of equality, and
possess and
enjoy equal freedom, rights and privileges; all records, journals,
and proceedings of Parliament shall be kept in both
languages, and
all Bills, Acts and notices of general public importance or interest
issued by the Government of the Union shall
be in both languages’.
[9]
The
same dispensation was maintained when South Africa became a Republic
in 1961
[3]
and in 1983, when the
new ‘Tri-cameral’ Constitution was introduced.
[4]
[10]
The language provisions of the Interim
Constitution of 1993 were a bold attempt to end the linguistic
discrimination practised by
previous governments by giving
official recognition to nine indigenous languages, in addition to the
two pre-existing official
languages. Those provisions eventually
formed the basis for s 6 of the final Constitution.
Section
6 of the Constitution
[11]
Section
6 is the cornerstone of the Constitution’s approach to language
rights.
[5]
Section 6(1) provides
that the official languages of the Republic are Sepedi, Sesotho,
Setswana, siSwati, Tshivenda, Xitsonga,
Afrikaans, English,
isiNdebele, isiXhosa and isiZulu.
[6]
Thus, it entrenches all eleven languages as ‘official
languages’ without according pre-eminence to any of them and
without defining what is meant by ‘official’ language or
describing what consequences (if any) flow from such designation.
[7]
[12]
Sub-sections 6(2), (3)(a) and (4) provide:
‘
(2)
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.
(3)(a) 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.
(4) The national
government and provincial governments, by legislative and other
measures, must regulate and monitor their use of
official languages.
Without detracting from the provisions of subsection (2), all
official languages must enjoy parity of esteem
and must be treated
equitably.’
Parliamentary
process
[13]
The
Parliamentary process for the adoption of legislation is regulated by
the provisions of ss 75 and 76 of the Constitution.
In a
nutshell, they provide that when the National Assembly passes a Bill,
it must be referred to the National Council of Provinces.
The
Council, in turn, must pass the Bill; or pass the Bill subject to
amendments proposed by it; or reject the Bill. If the Council
passes
the Bill without proposing amendments, the Bill must be submitted to
the President for assent. A Bill assented to and signed
by the
President becomes an Act of Parliament, must be published promptly,
and takes effect when published or on a date determined
in terms of
the Act.
[8]
[14]
The process preceding the adoption of a
Bill is regulated by the Joint Rules of Parliament, more particularly
rules 220, 221 and
222:
‘
220.
Language requirement for Bills
(1) A Bill
introduced in either the Assembly or the Council must be in one of
the official languages. The Bill in the language in
which it is
introduced will be the official text for purposes of parliamentary
proceedings.
(2) The official
text of the bill must be translated into at least one of the other
official languages and the translation must
be received by Parliament
at least three days before the formal consideration of the bill by
the House in which it was introduced.
(3) The cover page
of a Bill must specify which language version is —
(a)
the official text; and
(b)
an official translation.
(4) In parliamentary
proceedings only the official text of a bill is considered, but the
Secretary must ensure that all amendments
to the official text are
reflected in the official translation or translations before the
official text is sent to the President
for assent.
221.
Referral of Bills to President for assent
When
the official text of the Bill is sent to the President for assent it
must be accompanied by the official translation or translations.
222.
Subsequent amendments
(1) If an Act passed
after the adoption of joint rule 220 is amended, the official text of
the amendment Bill amending that Act
may be in any of the official
languages.
(2) If the official
text of the Bill is not in the same language as the signed text of
the Act that is being amended, then one of
the official translations
of the Bill must be in the language of the signed text.’
Equality
Act
[15]
The
fact that the present application has been brought in terms of the
Equality Act has certain consequences. As pointed out by
the
Constitutional Court in
MEC
for Education, KZN v Pillay
:
[9]
‘
[C]laims
brought under the Equality Act must be considered within the four
corners of that Act. This court has held in the context
of both
administrative and labour law that a litigant cannot circumvent
legislation enacted to give effect to a constitutional
right by
attempting to rely directly on the constitutional right. To do so
would be to “fail to recognise the important task
conferred
upon the legislature by the Constitution to respect, protect,
promote and fulfil the rights in the Bill of Rights”.
The same
principle applies to the Equality Act. Absent a direct challenge to
the Act, courts must assume that the Equality Act
is consistent with
the Constitution and claims must be decided within its margins.’
[16]
Consistent with this approach, it is
accordingly to the provisions of the Equality Act, and not to s 9
of the Constitution,
that one must turn in order to evaluate the
applicant’s claim. As mentioned earlier, the applicant has
sought to bring himself
within the four corners of the Equality Act
by claiming that he is being unfairly discriminated against on the
basis of language.
[17]
In this regard, the Equality Act defines
‘discrimination’ as –
‘
any
act or omission, including a policy, law, rule, practice, condition
or situation which directly or indirectly
(a)
imposes burdens, obligations or disadvantage on; or
(b)
withholds benefits, opportunities or advantages from,
any
person on one or more of the
prohibited
grounds
.’
[10]
[emphasis added]
[18]
‘
Prohibited
grounds’, in turn, are defined so as to include,
inter
alia
,
‘language.’
[11]
[19]
Section 6 of the Act contains the wide,
over-arching prohibition against discrimination: ‘Neither the
State nor any person
may unfairly discriminate against any
person.’
[20]
Section 13, dealing with ‘Burden of
Proof’ provides:
‘
(1)
If the complainant makes out a
prima
facie
case of discrimination
(a)
the respondent must prove, on the facts before the court, that the
discrimination did not take place as alleged; or
(b)
the respondent must prove that the conduct is not based on one or
more of the prohibited grounds.
(2)
If the discrimination did take place –
(a)
on a ground in paragraph (a) of the definition of ‘prohibited
grounds’, then it is unfair, unless the respondent
proves that
the discrimination is fair.’
[21]
Section 14(2) provides:
‘
(2)
In determining whether the respondent has proved that the
discrimination is fair, the following must be taken into account:
(a)
the context;
(b)
the factors referred to in subsection (3);
(c)
whether the discrimination reasonably and justifiably differentiates
between persons according to objectively determinable criteria,
intrinsic to the activity concerned.
(3)
The factors referred to in subsection 2(b) include the following:
(a)
whether the discrimination impairs or is likely to impair human
dignity;
(b)
the impact or likely impact of the discrimination on the
complainant;
(c)
the position of the complainant in society and whether he or she
suffers from patterns of disadvantage or belongs to a group
that
suffers from such patterns of disadvantage;
(d)
the nature and extent of the discrimination;
(e)
whether the discrimination is systemic in nature;
(f)
whether the discrimination has a legitimate purpose;
(g)
whether and to what extent the discrimination achieves its purpose;
(h)
whether there are less restrictive and less disadvantageous means to
achieve the purpose;
(i) whether and to
what extent the Respondent has taken such steps as being reasonable
in the circumstances to
(i)
address the disadvantage which arises from or is related to one or
more of the prohibited grounds; or
(ii)
accommodate diversity.’
Parliament’s
defence
[22]
Parliament’s position, as articulated
by the Speaker in his answering affidavit, is that while it supports,
as a matter of
principle, the objective of ensuring that all
legislation, including pre-existing legislation, is translated into
each of the official
languages, there is no constitutional or
legislative obligation on it to translate legislation into all
official languages. That
obligation, if there is one, arises
subsequent to the conclusion of the parliamentary process of
enacting legislation. Legislation
only becomes such when the
President assents to and signs a Bill that has been submitted to him
after
approval by Parliament. By that point, Parliament’s legislative
functions in terms of the Constitution have come to an end.
[23]
A
similar argument to the one raised by the applicant herein was dealt
with and rejected by the North Gauteng High Court in
Lourens 1
,
[12]
in which the present applicant,
inter
alia
,
sought an order directing Parliament to cause all legislation to be
published in all official languages. In rejecting the applicant’s
contentions in that regard, Du Plessis J held as follows:
‘
In
bede 3 vra die applikant ’n bevel wat die parlement gelas om
“alle wetgewing in alle amptelike tale te laat publiseer”.
Die bevel word terugwerkend tot 1996 gevra.
.
. .
Die
getuienis voor die hof toon dat die parlementêre reëls
vereis dat wetsontwerpe in twee amptelike tale voorberei
word.
Een van die wetsontwerpe moet in Engels wees. [
Comment:
This requirement does not appear in the Joint Rules.
]
As die parlement die wetsontwerp goedkeur, word dit vir bekragtiging
en ondertekening aan die President voorgelê. Die wetgewende
proses word dan afgesluit ingevolge artikel 81 van die Grondwet wat
bepaal:
‘’
n
Wetsontwerp wat deur die President bekragtig en onderteken is, word
’n Wet van die Parlement, moet onverwyld gepubliseer
word, en
tree in werking by die publikasie daarvan of op ’n datum
ingevolge die Wet bepaal.’
Uit
sowel art 81 as 82 is dit duidelik dat slegs een wetsontwerp, en nie
meerdere vertalings daarvan nie, aan die President voorgelê
word. Artikel 82 bepaal:
‘
Die
ondertekende eksemplaar van ’n Parlementswet is afdoende bewys
van die bepalings van daardie Wet en moet na die publikasie
daarvan
vir veilige bewaring aan die Konstitusionele Hof toevertrou word.’
Die
applikant voer nie aan dat wetsontwerpe in al 11 tale vertaal moet
word nie. Wat hy in bede 3 vra is dat die parlement gelas
moet word
om die getekende eksemplaar van elke wet in alle amptelike tale te
vertaal. Ek aanvaar in die guns van die applikant
dat landswette in
al die amptelike tale vertaal moet word. Die vraag is egter of die
applikant korrek is dat die parlement die
plig het om dit te doen.
Ek
het daarop gewys dat die wetgewende proses afgesluit word met een
eksemplaar van die wet. Dit is daardie eksemplaar wat, as die
applikant korrek is, vertaal moet word in die ander 10 amptelike
tale. Mnr Pelser [
counsel for the
applicant
] kon my nie op ’n
grondwetlike bepaling of ’n ander regsreël wys wat die
vertaalverpligting op die Parlement lê
nie. Trouens, in die lig
daarvan dat die wetgewende proses afgesluit word wanneer die
President die wetsontwerp wat voorgelê
word bekragtig en
onderteken, dui daarop dat die parlement se werk dan afgehandel
is en dat die verpligting om die getekende
wet te vertaal eerder op
die uitvoerende gesag rus.’
[24]
The applicant suggests that this statement
of law is
obiter
.
I disagree. The applicant sought relief against Parliament in that
case, as it does here, to the effect that Parliament was obliged
to
translate all legislation into all of the official languages. That
relief was rejected. The
question as to
Parliament’s translation duty is therefore
res
judicata.
The fact that the present
matter is brought in the Equality Court, as suggested by the
applicant, does not detract from the fact
that the same legal
principles have to be applied in order to decide whether or not
Parliament has a duty to translate national
legislation.
I
in any event respectfully agree with the approach and reasoning
adopted by the learned judge in that case.
[25]
A second line of attack adopted by the
applicant was his contention that Parliament’s present
practice, as encapsulated
in Joint Rules 220, 221 and 222,
constitutes unfair language discrimination. Parliament’s
defence to this complaint
will be considered in the next section.
Unfair
discrimination
[26]
The discrimination on which the applicant
relies, is the fact that the eleven official languages are not
treated equally in as much
as all national legislation is not
published in all official languages. This argument raises interesting
questions as to the meaning
of ‘official language’ and
the consequences that flow from such status. It also raises the
question as to the meaning
of ‘discrimination’, as
defined in s 1(viii), more particularly the question whether the
non-publication of national
legislation in all official languages
does in fact amount to discrimination.
[27]
In the view that I take of the matter, it
is not necessary for present purposes to give a final answer to these
questions. Instead,
I shall assume, without deciding, in favour of
the applicant that the non-publication of national legislation in all
official languages
does indeed amount to ‘discrimination’
on a ‘prohibited ground’, as contemplated by s 13(2)(a)
of
the Equality Act. This raises the more fundamental question
as to whether the respondents have discharged the onus of proving
that such discrimination is fair.
[28]
The applicant’s argument proceeds
from the premise that, because there are eleven official languages,
all those languages
must always and for all purposes be treated
equally. However, this is not what the Constitution provides. If
equal treatment
of all official languages for all purposes were
intended, one would have expected to find a clear provision to that
effect, similar
in content to the emphatic and unambiguous provisions
of s 137 of the South Africa Act, 1909, quoted above. Instead,
s 6(4)
of the Constitution simply provides that ‘all
official languages must enjoy parity of esteem and must be treated
equitably
’
(my emphasis).
[29]
Furthermore,
the Constitution does not require the simultaneous and equal use of
all
eleven languages for all purposes. On the contrary, the Constitution
permits the use by the national government and provincial
governments of
any
particular official languages ‘for the purposes of government’,
provided that they ‘must use at least two official
languages’.
[13]
Leaving
aside for the moment the question whether legislation forms part of
the ‘purposes of government’, the fact
is that the
Constitution expressly permits the use of only two official languages
for certain purposes, thereby sanctioning (by
necessary implication)
‘discrimination’ against the other nine
official languages. This raises the question,
to which the applicant
has been unable to furnish a persuasive answer, as to why the
position should be different when it comes
to national legislation.
The inevitable conclusion is that, to the extent that the practice of
publishing national legislation
in only two official languages may be
discriminatory, such discrimination is fair.
[30]
With regard to applicant’s attack
against the Joint Rules of Parliament (para 1.2 of the notice of
motion), the Speaker has
provided a comprehensive explanation as to
why English is used as the predominant language in which Parliament
conducts its business,
particularly its legislative function:
‘
English
is the
de facto
language in which Parliament conducts its business, and in particular
exercises its legislative function. The reason for
this is
twofold:
·
All parliamentarians understand English and
can converse and participate in the work of Parliament, in that
language. This is not
the case with any of the other official
languages. Given the above facts, it would be impractical, if not
impossible, to use any
other language to the same, or even similar,
extent.
·
The language in which a Bill is introduced
dictates the language in which it will be processed in Parliament.
Bills are invariably
introduced in English as the official text (for
presumably the same reasons as set out immediately above), and
eventually enacted
in the same language, with one of the other
official languages as the official translation. . . . [T]he
vast majority
of Bills are introduced by individual government
departments, and it is these departments under the auspices of their
respective
Ministers which choose both the language of the Bill as
also the language of the official translation.’
[31]
The Speaker accordingly submitted that, if
it were to be found that the predominant use of English in the
legislative process provided
for in Joint Rules 220, 221 and 222
constitutes discrimination for purposes of the Equality Act, then
Parliament has discharged
the burden of proof imposed upon it by
s 13(2)(a) of the Equality Act, read with the provisions of s
14(2) and s 14(3)
thereof, of proving that such discrimination
is fair. I agree with this submission.
Conclusion
[32]
To summarise:
(a)
There is no constitutional or statutory duty on any of the
respondents to publish all national legislation in all official
languages, nor to translate all national legislation into all
official languages. Where such a duty is imposed, it is done so
expressly,
eg in s 31(2)(b) of the Equality Act.
[14]
(b)
To the extent that publication of legislation in only two official
languages may be discriminatory, such discrimination is fair
as
contemplated by s 13(2)(b)(ii) of the Equality Act.
(c)
To the extent that the Joint Rules of Parliament, permitting the use
of only two official languages, may be discriminatory,
such
discrimination is fair as contemplated by s 13(2)(b)(ii) of the
Equality Act.
[33]
It follows that the application cannot
succeed. None of the respondents sought an order for costs against
the applicant. In the
result, the application is dismissed. No order
is made as to costs.
B
M Griesel
Judge
of the High Court
and
the Equality Court
[1]
[1996] ZACC 4
;
1996
(3) SA 165
;
1996 (4) BCLR 537
(CC) para 39. See also
Lourens
v President van die Republiek van Suid-Afrika & andere
2013 (1) SA 499
(GNP) para 2 (‘
Lourens 1’
).
[2]
See
in this regard,
inter
alia
,
Hahlo & Kahn
The
Union of South Africa – the Development of its Laws and
Constitution
(1960)
at p 125; Cheadle Davis & Haysom
South
African Constitutional Law – The Bill of Rights
(Issue
1) para 25.2.2; Woolman & others (eds)
Constitutional
Law of South Africa
[2nd ed, Original Service: 12-05] para 65.1; Julien Hofman ‘Official
Languages for a new South Africa: Art 5 of the ANC’s
Draft
Bill of Rights’ 1991
Stell
LR
328;
In
re School Education Bill of 1995 (Gauteng), supra,
n
1
paras
46 49, especially fn 11 (per Sachs J).
[3]
Republic
of South Africa Constitution Act, 32 of 1961, s 119.
[4]
Republic
of South Africa Constitution Act, 110 of 1983, s 99(2).
[5]
Cheadle
Davis & Haysom
op
cit
para
25.2.4.
[6]
According
to the 2011 census, isiZulu is the mother tongue of 22.7% of South
Africa’s population, followed by isiXhosa at
16%, Afrikaans at
13.5%, English at 9.6%, Sepedi at 9.1%, Setswana at 8% and Sesotho
at 7.6%. The remaining official languages
are spoken at home by less
than 5% of the population each. See
http://www.southafrica.info/about/people/language.htm
(accessed 14 September 2014).
[7]
Cheadle
Davis & Haysom
op
cit,
para 25.2.4.
[8]
Section
81.
[9]
[2007] ZACC 21
;
2008
(1) SA 474
(CC) para 40 (footnotes omitted).
[10]
Sec
1(viii).
[11]
Sec
1(xxii).
[12]
Supra,
n
1, at paras 16–20.
[13]
Section
6(3)(a).
[14]
‘
(2)
For purposes of giving full effect to this Act and making the Act as
accessible as possible –
(a)
. . .
(b)
the Minister must make the Act available in all official languages
in the prescribed manner within a period of two years after
the
commencement of this Act.’