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[2016] ZASCA 11
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Lourens v Speaker of the National Assembly of Parliament and Others (20827/2014) [2016] ZASCA 11; [2016] 2 All SA 340 (SCA) (10 March 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20827/2014
In
the matter between:
CORNELIUS JOHANNES
ALEXANDER LOURENS
APPELLANT
and
THE SPEAKER OF THE
NATIONAL ASSEMBLY
OF PARLIAMENT OF THE
REPUBLIC OF SOUTH
AFRICA
FIRST RESPONDENT
THE CHAIRPERSON OF THE
NATIONAL
COUNCIL OF PROVINCES
OF PARLIAMENT
OF THE REPUBLIC OF
SOUTH AFRICA
SECOND
RESPONDENT
THE MINISTER OF ARTS
AND CULTURE
THIRD RESPONDENT
THE PAN SOUTH AFRICAN
LANGUAGE BOARD
FOURTH RESPONDENT
Neutral
Citation:
Lourens
v Speaker of the National Assembly of Parliament
(20827/2014)
[2016] ZASCA 11 (10 March 2016)
Coram:
Lewis,
Ponnan and Seriti JJA and Fourie and Plasket AJJA
Heard:
18
February 2016
Delivered:
10
March 2016
Summary:
The
Rules and practice of Parliament and its failure, and that of the
Minister of Arts and Culture, to publish all statutes in all
official
languages does not constitute unfair discrimination in terms of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000
.
ORDER
On
appeal from:
The
Equality Court, Western Cape, Cape Town (Griesel J sitting as court
of first instance): judgment reported
sub
nom Lourens v Speaker of the National Assembly & others
2015 (1) SA 618
(EqC).
The
appeal is dismissed.
JUDGMENT
Lewis
JA (Ponnan and Seriti JJA and Fourie and Plasket AJJA
concurring)
[1]
The appellant, Mr C J A Lourens, practises as an attorney in Brits,
North West Province. He is Afrikaans-speaking. He believes
that the
current practice of Parliament in relation to the language used for
legislation, and the rules of Parliament in this regard,
amount to
unfair discrimination against him in that Bills are introduced into
Parliament invariably in English, are published in
English, and that
the official text that is sent to the President for signature is
also, invariably, in English only. This, he
contends, unfairly
discriminates against all non-English speaking people in the country.
The 11 official languages of the country
are set out as such in s 6
of the Constitution, and the failure to translate all Acts of
Parliament into those languages, contends
Mr Lourens, amounts to
unfair language discrimination in terms of the Promotion of Equality
and Prevention of Unfair Discrimination
Act 4 of 2000 (the Equality
Act).
[2]
Accordingly, he brought proceedings in the Equality Court, sitting in
the Western Cape, claiming various orders, some in the
alternative,
against the Speaker of the National Assembly and the Chairperson of
the National Council of Provinces (collectively
referred to as
Parliament) and the Minister of Arts and Culture. He cited the Pan
South African Language Board as a respondent
but sought no relief as
against it. (The Board does not feature in the appeal and so I shall
not refer to it as one of the respondents.)
[3]
I shall not refer to all the orders sought at first instance. It
appears from the judgment of Griesel J, sitting as the Equality
Court, that the order that Mr Lourens pursued before him was a
declaration that the respondents are guilty of conduct that amounts
to unfair language discrimination in that they fail to publish all
national legislation in all the official languages of the Republic
of
South Africa.
[4]
The Equality Court dismissed the application but granted leave to
appeal to this court, not because an appeal would enjoy reasonable
prospects of success, but because the issues raised are ‘important
constitutional questions of national importance’
which deserve
the attention of this court. This, Griesel J said, was a compelling
reason why the appeal should be heard in terms
of s 17(1)
(a)
(ii)
of the
Superior Courts Act 10 of 2013
.
[5]
Mr Lourens argued on appeal that this court should not only find and
declare that the respondents unfairly discriminate against
him and
other non-English speakers, but that we should also issue an order
requiring Parliament and the Minister to take steps
to comply with
their obligation to publish all national legislation in all 11
official languages within a reasonable period.
Language
provisions in previous dispensations and under the Constitution
[6]
As the Constitutional Court said in
In Re Certification of the
Constitution of the Republic of South Africa,
1996
1996 (4) SA
744
(CC)
[1996] ZACC 26
para 209: ‘Language is a sensitive
issue in South Africa.’ Prior to the interim Constitution
taking effect, there were
two official languages in the country,
Afrikaans and English. The importance of the official status of
language is reflected in
the enactment, when the Union of South
Africa was created, of the South Africa Act of 1909, which provided
in s 137:
‘
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.’
[7]
When the Union became a Republic in 1961, s 108 of the Republic of
South Africa Constitution Act 32 of 1961 provided:
‘
Equality
of official languages
(1)
English and Afrikaans shall be the official languages of the
Republic, and shall be treated on a footing of equality, and possess
and enjoy equal freedom, rights and privileges.
(2)
All records, journals and proceedings of Parliament shall be kept in
both the official languages, and all Bills, Acts and notices
of
general public importance or interest issued by the Government of the
Republic shall be in both the official languages.’
The
latter provision was repeated in s 89 of the Republic of South Africa
Constitution Act 110 of 1983.
[8]
The final text of s 6 of the 1996 Constitution stands in stark
contrast. It accords 11 languages official status, recognizes
the
historically diminished status of indigenous languages, acknowledges
the importance of several others and exhorts the development
of all.
The full text of s 6 reads:
‘
6
Languages
(1)
The official languages of the Republic are Sepedi, Sesotho, Setswana,
siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele,
isiXhosa and isiZulu.
(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
[my emphasis].
(b)
Municipalities
must take into account the language usage and preferences of their
residents.
(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
[my emphasis].
(5) 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.’
[9]
In the first
Certification
judgment (above) the court considered challenges to the exclusion of
certain languages from the status of being official from s
6. The
court said (para 210) that it was the responsibility of the
Constitutional Assembly to determine the grant of official status
to
languages, and that Constitutional Principle XI – ‘The
diversity of language and culture shall be acknowledged and
protected, and conditions for their promotion shall be encouraged’
– required the Constitution only to protect diversity
of
languages and not the status of any particular one. Section 6, said
the court, was directed at fostering linguistic diversity
and was
compliant with the principle that formed part of the basis of the
social pact that resulted in the Constitution.
[10]
The court said also (para 212) that an objection to s 6 on the ground
that it resulted in the diminution of status of the Afrikaans
language, because it was only one of 11 official languages, could not
be sustained. It was accorded the same status as all the
languages
regarded as official.
[11]
The section does indeed encourage protection of many languages and
accords 11 the status of being official. At the heart of
Mr Lourens’
contention is the question of what is meant by ‘official’.
One must accord it some meaning, he argues,
and the only one that is
consistent with fair language treatment is that all conduct of
government, including Acts of Parliament,
must be in all 11
languages. That would accord with the language provisions in the
earlier constitutions.
[12]
But, as I have said, that is not what s 6 provides for: on the
contrary it expressly allows government at national and provincial
level to act in a minimum of two of the official languages: s 6(3).
Thus, one must accept that the Constitutional Assembly intended
that
not all official languages have to be employed in the process of
government. The text of s 6 says so expressly.
[13]
How then can conduct that is constitutionally compliant amount to
discrimination, let alone unfair discrimination? Before turning
to s
9 of the Constitution that deals with equality, and to the provisions
of the Equality Act, it is useful to set out the provisions
of the
Constitution that govern the processes of Parliament and the
enactment of statutes, and then the joint rules of Parliament
that
deal with its use of language.
Constitutional
provisions regulating Parliament and the passage of legislation
[14]
Chapter 4 of the Constitution regulates the way in which Parliament
is constituted, and its obligations. Section 42 sets out
the
composition of Parliament; s 42(3) provides that the
National Assembly is elected to represent the people and ensure
democratic government under the Constitution by providing a
national forum for ‘public consideration of issues, by
passing
legislation and by scrutinizing and overseeing executive action’.
The National Council of Provinces participates
in those processes,
and considers issues affecting the provinces: s 42(4).
[15]
Section 43 provides that the legislative authority of the national
sphere of government is vested in Parliament. Section 44
confers
various legislative powers on Parliament, and s 44(4) provides that,
when exercising its legislative authority, Parliament
is bound only
by the Constitution and must act in accordance with, and within the
limits of, the Constitution.
[16]
Section 75 of the Constitution regulates the way in which a bill
passed in the National Assembly must be referred to the National
Council of Provinces and s 76 regulates the processes to be adopted
by the Council. Section 81 provides that a Bill becomes law
only when
assented to and signed by the President. The President bears the
obligation to publish the Act promptly and determine
when it takes
effect, unless the Act stipulates when it will come into force. (The
President’s role in the process of making
legislation is
discussed fully in
Minister
of Environmental Affairs & another v Aquarius Platinum (SA) (Pty)
Ltd & others
[2016
ZACC] 4
, paras 6, 10, 15, 33 and 34).) Section 81 is silent on any
obligation imposed on the President to see to the publication of Acts
in any official language other than the one in which the Bill is
introduced in Parliament. The signed copy of an Act is conclusive
evidence of its provisions and after publication must be entrusted to
the Constitutional Court for safekeeping (s 82). It is thus
not
Parliament’s duty to publish legislation, let alone translate
it. And once a Bill has been sent to the President, and
he assents
and signs it, Parliament’s obligations in respect of it come to
an end.
The
language provisions in the joint rules of Parliament
[17]
The joint rules of Parliament reflect the Constitutional
requirements. They are as follow:
220
Language requirements 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 [my emphasis].
(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 formal consideration
of the
bill by the House in which it was introduced [my emphasis].
(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.’
Parliamentary
practice
[18]
It appears that of late Parliament has been in breach of its own
rules and of s 6(3) of the Constitution. A report admitted
into
evidence by an expert witness, Mr K Pauw, adduced by Mr Lourens,
shows that many of the Acts of Parliament passed since 1996
have been
published in only one language – English. Similarly, amendments
to Acts, even those the signed version of which
was in Afrikaans,
have been amended in English only.
[19]
The language of Parliament is, on the whole, English. In his
answering affidavit in the Equality Court application, the erstwhile
Speaker of the National Assembly, Mr M Sisulu, explained that English
is the only language that all members of Parliament understand.
The
language in which a Bill is introduced in Parliament determines the
way in which it is processed. Invariably, Bills are introduced
in
English since that is the language which all members understand.
Although the rules provide that a text in another language
must also
be provided before formal consideration of a Bill, that seldom
occurs. The Speaker maintained that members may nonetheless
speak in
any of the official languages and also sign language. Interpreting
services are provided.
[20]
The importance of the right to use the official language of one’s
choice is emphasized by the principle that any member
of the National
Assembly may introduce a Bill. That principle was affirmed by the
Constitutional Court in
Oriani-Ambrosini
v Sisulu, Speaker of the National Assembly
2012 (6) SA 588
(CC)
[2012] ZACC 27
, especially para 46.
[21]
Parliament, the Speaker acknowledged, should do more to advance the
use of official languages other than English, but was constrained
by
resources and time limits. The evidence of another expert, adduced by
the Minister, Professor E Meintjes, advised that there
are simply not
enough trained translaters to do what Mr Lourens requires.
Universities in the country do not produce sufficient
graduates in
translating to do the work that would be required by Parliament. A
fortiori, there would not be sufficient translators
for the
provincial legislatures, and the municipalities that would have the
same obligations imposed on them, if Mr Lourens’
contentions
are correct. But since there is no legal requirement that this be
done, the practical difficulties, which seem insurmountable,
need not
be addressed.
[22]
As indicated at the outset, Mr Lourens limited the relief he claimed
in the Equality Court to an order that the failure to
translate
legislation into all official languages amounts to unfair
discrimination. On appeal he argued that the court should also
make
an order that Parliament comply with the obligation he contends for
within a reasonable period. I shall deal briefly with
the equality
challenge, and then with the structural order that he seeks, which
Griesel J held was res judicata.
The
equality challenge
[23]
Section 9 of the Constitution is the fundamental provision from which
to start. It reads:
‘
Equality
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative
and
other measures designed to protect or advance persons, or categories
of persons, disadvantaged by unfair discrimination may
be taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender,
sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth.
(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3).
National
legislation must be enacted to prevent or prohibit unfair
discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection (3)
is unfair unless it is established that the discrimination
is fair.’
[24]
The provisions of the Equality Act give effect to the fundamental
right to equality protected by the Constitution. It is for
Mr
Lourens, as complainant, to make out a prima facie case of
discrimination on the ground of language. Discrimination is defined
in the Act 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’. The definition
of prohibited grounds of
discrimination includes language discrimination (subsection 1(a)).
[25]
Section 13(1) of the Equality Act places the burden of proving
language discrimination on the complainant. It reads:
‘
(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;
.
. . .’
[26]
I need not decide whether the conduct of Parliament and the Minister,
in so far as it was constitutionally compliant, amounts
to
discrimination. The parties did not argue that it was not
discriminatory: indeed counsel for Parliament said that he would be
hard-pressed to argue that Mr Lourens and others in his position were
not placed at a disadvantage. Assuming (as the Equality Court
did)
that the practice of passing Bills in Parliament in English only is
discriminatory as against the speakers of other official
languages,
Parliament and the Minister argued that it was not unfair.
[27]
Section 14 of the Equality Act sets out the tests for fairness.
‘
Determination
of fairness or unfairness
(1)
It is not unfair discrimination to take measures designed to protect
or advance persons or categories of persons disadvantaged
by unfair
discrimination or the members of such groups or categories of
persons.
(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;
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.’
[28]
Griesel J in the Equality Court found that the practice of Parliament
in using English as the language for the passing of bills
was not
unfair. The Constitution itself requires only that all official
languages be treated equitably and accorded parity of esteem.
As Iain
Currie states in
Constitutional Law of South Africa
ed Woolman
et al (2 ed original service 12-05):
‘”
Equitable”
treatment is clearly not the same as “equal” treatment.
Equitable treatment is treatment that is just
and fair in the
circumstances. Those circumstances include a history of official
denigration and neglect of indigenous languages.
Equity may therefore
require that the languages that s 6(2) [of the Constitution]
terms “historically diminished”
in use and status receive
particular attention from and support from the state. It might mean
that historically undiminished languages
(ie, English and Afrikaans)
are treated with relative inattention.’
Currie
points out that there is no hard and fast requirement that the
national or provincial government use more than two languages
for the
purpose of government.
[29]
Mr Lourens did submit that Parliament did not constitute government.
But he was hard-pressed to explain this submission given
the very
terms of the Constitution dealing with the vesting of the legislative
arm of government in Parliament: ss 42 and 43 of
the Constitution. As
for the use, in s 6(4) of the Constitution of the words ‘parity
of esteem’, Currie (ibid) says
that the phrase ‘probably
has little legal significance’. Parity, he states, is ‘possible
only where there is
a legal prescription that the official languages
are treated equally’. There is not. On the contrary – the
Constitution
itself requires that acts of government, including the
passing of Acts of Parliament, be conducted in only two of the
official
languages. Thus the Constitution itself would be guilty of
unfair discrimination on Mr Lourens’ argument, which is plainly
absurd.
[30]
So too, the
Use of Official Languages Act 12 of 2012
, enacted in
order to provide for the regulation and monitoring of the official
languages by national government, does not require
that government
acts be in all 11 official languages.
Section 2
, which sets out the
objects of the Act, provides in s 2
(b)
that one object is to ‘promote parity of esteem and equitable
treatment of official languages of the Republic’. Section
4
requires that every national department (national government
comprising departments and national entities) must adopt a language
policy and identify three official languages that it will use for
government purposes. It accordingly goes further than does the
Constitution. But the Act does not require the use of all official
languages. That statute would also amount to unfair discrimination
against the eight other language speakers on Mr Lourens’
argument. Again, the conclusion would be absurd.
[31]
I must thus conclude that in so far as Parliament and the National
Government do not pass Bills, and enact them, in all official
languages, they are not guilty of unfair discrimination.
An
order that Parliament translate all statutes within a reasonable time
period
[32]
Mr Lourens asked that this court grant an order compelling Parliament
to translate all statutes into all official languages
within a
reasonable period. That would, of course, be what Parliament
and government should aspire to do. But it is obviously
not open to
any court to compel parties to perform any obligations which they do
not have. This court has no power to grant the
order sought. In
any event, it would be the duty of government, and not Parliament, to
translate statutes, as has already
been held by Du Plessis J in
Lourens
v President van die Republiek van Suid-Afrika en andere
2013 (1) SA 499
(GNP). Griesel J held, in the Equality Court, that
the order sought was res judicata. It did not matter that Mr Lourens
made a
claim under the Equality Act: the same legal principles have
to be applied in order to determine whether Parliament has a duty to
translate national legislation. I agree with that finding.
Section
31(2)(b) of the Equality Act
[33]
Tellingly, the Equality Act itself requires that the Minister ‘must
make the Act available in all official languages
within a period of
two years after the commencement of this Act’. Had it been
Parliament’s duty, or the Minister’s
duty, to translate
all Acts into the other ten official languages this provision would
be superfluous, and a court does not lightly
regard provisions of
statutes as purposeless.
Parliament’s
oversight function
[34]
Section 42(3) of the Constitution imposes on the National Assembly
the duty to scrutinize and oversee executive action. Mr
Lourens
argues on appeal that even if it is not Parliament’s duty to
translate all statutes into the other official languages,
it is
required to ensure that the Executive performs its duties. Parliament
argues that this issue was not traversed before the
Equality Court
and was not raised by Mr Lourens in his papers. Mr Lourens has filed
numerous pages showing that it was indeed raised
by his counsel
before that court. In my view that is of no consequence. The point is
bad anyway. The Minister does not have the
obligation to perform the
function that Mr Lourens suggests he does. It is true that the
National Government may now have the duty,
by virtue of
s 4
of the
Use of Official Languages Act, to
ensure publication of statutes in
three official languages. The duty is not imposed directly, but the
requirement that each national
department adopt a language policy
that identifies the three official languages that it will use,
perhaps implies that. Even
if there is such a duty it would not
satisfy Mr Lourens.
[35]
As I have said, Parliament has failed to comply with its own rules
relating to language and has not given effect yet to
s 4
of the
Use
of Official Languages Act. That
should be remedied. But Mr
Lourens’ appeal must fail. The respondents, rightly so, do not
ask for the costs of the appeal.
The
appeal is dismissed.
_______________________
C H Lewis
Judge
of Appeal
APPEARANCES
Appellant:
C J A Lourens
Instructed
by:
Lourens Attorneys, Brits
c/o Heyns & Partners,
Cape Town
Symington & De Kok,
Bloemfontein
For
First and Second Respondents:
I Jamie SC
(with him A Coetzee)
Instructed
by:
State Attorney, Cape Town
State Attorney,
Bloemfontein
For
Third Respondent:
W Trengove SC (with him S Budlender)
Instructed
by:
Cheadle Thompson & Haysom Inc,
Braamfontein
Webber Attorneys,
Bloemfontein