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A language act for South Africa? The role of sociolinguistic principles in the analysis of language legislation

Theodorus du Plessis - 2010-11-11

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A language act for South Africa? The role of sociolinguistic principles in the analysis of language legislation1

1. Introduction

A central or national language act for South Africa is currently a topical issue, as a result of the summons that was served by an attorney from Brits, one Cornelus Lourens, on 14 August 2009, in an endeavour to enforce the promulgation of the South African Languages Bill (SALB)2 (DAC 2003b) (Lourens vs The President of the Republic of South Africa and others, 2009). The intended South African Languages Act would thereby become the South African version of a national language act. If Lourens’s application is successful and the SALB is promulgated as an act, this will be the first time that South Africa will have a national language act.3

In many countries with inequitable language dispensations, a national language act is regarded as one of the core legislative mechanisms for the regulation of the use of the official languages. Such a language act often comprises the pre-eminent legal mechanism aimed at bringing about a form of official language equity. Canada’s renowned Bill 101 of the Charter of the French Language (Government of Quebec 1977) is regarded as a type of model of a national language act (cf Grin 1991:193; Schmid, Zepa and Snipe 2004:232) and is indeed considered to be a successful form of intervention (Larrivée 2003; Foucher 2007:57; Turi 2009:128). The same view prevails, to a varying extent, with regard to the role of national language acts in other countries and regions, including Catalonia (Roller 2002:278–83), Scotland (Dunbar 2005), Wales (Huws 2006:159), Serbia (Korhecz 2008:475) and the former Soviet and Eastern Bloc states (Schlyter 1998; Pavlenko 2008a; Garibova and Asgavora 2009).

Lourens’s action implicitly proceeded from the standpoint that a national language act could also play a decisive role in South Africa in the creation of a new official language dispensation: one that would move away from the statutory bilingualism of the past, while also curbing the growing dominance of English. By implication, a specific expectation thus exists regarding the role of a national language act in the transformation of the South African language landscape as a whole.

The fact that such an expectation is not necessarily unrealistic can be seen in the case of other countries where a high premium is placed on the role of a national language act as a central legal mechanism in the remodelling of an undesirable language dispensation. Rarely is this role so well illustrated as in the case of the transition of the Baltic states to post-Soviet-controlled societies. Their national state language acts largely contributed to the replacement of the imperial language, Russian, with their respective national languages as the dominant languages of the reinstated independent states. The Baltic case is particularly interesting from a South African perspective, since these states are also pursuing a specific transformation agenda, and the remodelling of a former oppressive language dispensation – as we have had in South Africa – is regarded as a national priority. See Hogan-Brun, Ozolins, Ramonienė and Rannut (2008, 2009) for a pertinent, recent summary, as well as Hogan-Brun (2007) and Hogan-Brun (2008) for the specific implications for education in this regard.

A similar finding was made by Pavlenko (2008a:300) in respect of most of the post-Soviet states, namely that a national language act is one of the important factors in the establishment of a new language regime in these countries. Her findings are supported by those of Ozolins (1999), among others. Also compare the various contributions in the recently published volume on language reformation in the states concerned, of which she is the editor (Pavlenko 2008b).

Some of these states are so committed to the upliftment of the respective national languages that some provisions in their language acts even tend towards the extreme. Ozolins (2003), for example, discusses the critical reaction of the European organisations to the language acts of the Baltic states, which contain such stringent provisions for the reinstatement of the national language that they are deemed to be discriminatory towards the Russian minorities. Simon and Kontra (2000) in turn show how successive Slovakian language acts have become increasingly oppressive. As a matter of fact, Slovakia’s recently enacted language act contains measures that tend towards the draconian, with a view to benefiting the formerly disadvantaged national language. The country was subjected to severe criticism from various quarters as a result of that particular language act, which was promulgated on 1 September 2009. Its neighbour, Hungary, is convinced that this new language act discriminates against the Hungarian minority of Slovakia (Associated Press 2009).

Criticism of the language acts and other legislation of the post-Soviet states, which favour the national language at all costs (thus effectively leading to the marginalisation of those who were formerly in power), is thus not excluded. Nevertheless, scholars are generally in agreement that a relative degree of success is being achieved with the promulgation of a national language act in these countries. In the case of the Baltic states, for example, Hogan-Brun et al (2008:611) summarise such successes as follows:

In terms of actual language use, facility and attitudes, the Baltic states have:

  • been able to radically alter their streetscapes and townscapes in signage;
  • brought about a steady and continuing increase of proficiency in the national languages among non-titular nationals;
  • witnessed largely positive attitudes to their language policy developing in the non-titular populations;
  • started to effect a transition to a significant proportion of teaching in the national languages in minority secondary schools;
  • brought about a virtually total proficiency in the national language in the service sector;
  • refined national language teaching and language testing for adults to a world standard;
  • significantly entrenched their languages in the structures of the EU.

In their assessment of these successes, these authors identify four critical factors:

  1. Language acts as distributors of power: The language acts have contributed to the mobilisation of groups, where language interests are relevant precisely because the language issue actually also encompasses a power struggle.
  2. The propagandistic, as well as the implementational objectives of language acts: Although implementation was ultimately also important, the mere promulgation of the language acts simultaneously became a signal and a symbol of a change of regime.
  3. Visible signs of a new language policy: Concrete changes were brought about by changes to public signs, the transmission of public information in the national languages, and new language requirements with regard to the appointment of employees.
  4. Language requirements rather than ethnic criteria: National identity and survival were placed above ethnic identity. No ethnic precedent was incorporated into legislation. However, the introduction of new language requirements was one of the significant indications of a changed language regime.4

Hogan-Brun et al (2008:611) base their analysis largely on Maurais’s (1991, 1997) sociolinguistic principles of language legislation. In separate publications, Maurais identifies two sets of such principles: principles that have a bearing on the context of language legislation (Maurais 1991) and principles that have a bearing on the role of language legislation (Maurais 1997). His initial set of principles focus more on the content of language legislation, while the second set of principles elaborate on this content, but also include some contextual aspects. The assessment of Hogan-Brun et al (2008:611) links up with both sets of principles, but ultimately leans more strongly towards the second group. However, both sets of principles are important when a critical analysis of language legislation is envisaged, whether in terms of content or context, since these principles ultimately serve as a basis for a comparative study of the language legislation of different regions.

Taking Maurais’s sociolinguistic principles of language legislation as a point of departure, the aim of this article is to carry out a content analysis of the SALB as an envisaged national language act for South Africa. An analysis conducted on this basis could answer questions relating to the potential value of the ultimate South African Languages Act as a central legal mechanism for the fulfilment of the constitutional mandate of both the national government and the provincial governments to “regulate and monitor their use of official languages through legislative and other measures”, as stipulated by Section 6(4) of the South African Constitution (RSA 1996a).

2. National language acts and language legislation

2.1 Definition

A national language act is a very specific form of language legislation. According to Turi’s (1993:5–6, 8) original definition, language legislation is generally aimed at legally determining and establishing the status and use of designated languages by means of legal obligations and rights; in other words, “legal regulations concerning language”. In many cases, such regulations occur in the form of language provisions contained in legislation which does not necessarily deal primarily with the status and use of designated languages – for example, in a country’s constitution, or in legislation concerning education, the administration of justice, the media, etc. However, in cases where an entire act is completely devoted to regulations concerning the status and use of designated languages, such an act can be typified as a national language act.

The language acts of countries such as Canada (Canada 1985) and Ireland (Republic of Ireland 2003), as well as those of regions such as Wales (Welsh Language Act 1993), Quebec (QOLA 1974) and others, are typical examples of such national language acts. A complete record of these language acts, and also of language legislation in general, is available in a database of the Mercator Organisation, an institution that focuses on language legislation and language rights (Mercator 2010).

The striking aspect of the language acts under discussion here is that they contain legal regulations concerning the status and use of the official languages of the regions concerned. In such cases, the language legislation is geared towards the creation of a form of official language equity, as observed in the case of, among others, Canada and Ireland. In numerous cases, the status and use of national minority languages are regulated. Examples of such languages are the Welsh language in the case of Wales, French in the case of Quebec, etc. Similar regulation occurs in the Baltic states, as well as in other Eastern Bloc countries, but in these cases, it is aimed specifically at the upliftment of the formerly marginalised national languages. The importance of a national language act in the creation of a changed language dispensation should therefore not be underestimated.

2.2 Importance of language acts and language legislation

Dunbar (in Williams 2008:174) puts forward four reasons why language legislation is important. In this regard he is specifically referring to “language laws”, or language acts. If it is effectively implemented and managed, a language act can:

  1. bring about changes in the linguistic behaviour of the organisations to which it is applicable
  2. bring about changes in the linguistic behaviour of the minority-language speakers themselves
  3. enable speakers of the minority language to take action when shortcomings arise in respect of implementation
  4. create a normative environment which makes it possible for the behaviour of responsible institutions to be exposed to public censure.

Shohamy (2006:59-60) attributes the importance of language legislation to the sanctions and penalties contained in such legislation, which can ultimately ensure that policy is carried out. However, she points out that the typical, stringently prescriptive nature of a language act often constrains people to behave in a certain way, whereby civil liberties are obviously restricted. She also points out that the existence of a language act does not necessarily imply that people will slavishly comply with all its provisions. Nevertheless, it is undeniable that there are concrete cases where a language act has indeed brought about a turning point in the language dispensation – as Williams (2008:262) aptly remarks in respect of the Welsh case: “(t)he Welsh Language Act 1993 has inaugurated a new era in language policy and planning.” Studies of such relative success stories show that a variety of factors contribute to this success, but that the language act as such nevertheless plays a cardinal role.

2.3 Successes

Among other factors, the success of the Baltic language situation has been ascribed to what Hogan-Brun et al (2009:75) call the legislative apparatus. In this case, the legislative apparatus includes primary as well as secondary language legislation (Du Plessis 2003). According to Hogan-Brun et al (2009:75), primary language legislation includes a language act and additional language legislation (specific acts on citizenship and education containing language provisions). Secondary language legislation, in other words language legislation that is created by the executive pillar of government, includes regulations, ordinances and strategic documents that regulate the status and use of the designated languages in specific domains and within society in general. The Baltic language acts provide the integrated legal framework for the realisation of a form of coherent language intervention. On the basis of their analysis of the situation in Azerbaijan, Garibova and Asgavora (2009:209–10) also point, by implication, to the importance of such coherence, particularly with a view to the implementation of the provisions of a language act, an action that they describe as the “follow-up on laws”, which could thus also include additional language legislation. It would thus be a mistake to attribute the success of the Baltic states and other regions solely and exclusively to a national language act. The coherence of such an act with consequential legislation is of cardinal importance; but the national language act remains central.

The value of the national language act as a separate means of intervention should thus not simply be disregarded. The fact remains that it was through the promulgation of new state language acts after the resumption of independence that the language hierarchy of the Soviet period was overturned. In addition, through these language acts a complex process aimed at the re-establishment of the national languages was initiated, as already indicated. Criticism from Europe regarding the language legislation of these countries is mostly aimed precisely at their national language acts. This merely serves as further confirmation of the centrality of these acts within the language dispensation. The national language act thus lays down the foundation upon which further language legislation can be built.

2.4 Principles

Interest in comparative language legislation (Turi 1993:6) is increasing as the phenomenon of legal intervention as a language policy mechanism (Shohamy 2006:59) continues to spread throughout the world. Comparative studies approach language legislation from different disciplinary angles, including a sociolinguistic (Maurais 1991), a legal (Turi 1993) and a linguistic perspective (Kibbee 1998).

Maurais’s (1991) sociolinguistic approach to comparative language legislation entails the identification of principles that underlie different language acts, thereby facilitating a comparative study. He points out that a superficial, quantitatively oriented comparison of different language acts can be misleading. Considered from a purely quantitative point of view, Quebec’s exceptionally detailed Charter of the French Language (QOLA 1974), for example, seems much more comprehensive than the language acts of the Baltic states. However, if one approaches the comparison from Maurais’s sociolinguistic perspective and identifies the fields of language use that are regulated, it becomes clear that the language acts concerned are similar, to a large extent, in terms of their contents. In cases where such a comparison does, in fact, reveal differences, these differences are usually more related to the degree of completeness with which the respective language acts aim to regulate a particular field of language use. Such differences are highly significant, and provide an indication of the unique language-planning priorities of the particular region, but probably also reflect specific language-ideological notions.

Maurais (1991) ultimately identifies five sociolinguistic principles that underlie language legislation. According to him, language legislation should refer to at least the following core issues, or contain provisions in respect thereof:

  1. the proclamation of an official language
  2. the issue of the language of cohesion
  3. the language of communication with customers and citizens
  4. the language of education
  5. linguistic aspects of immigration.

It is clear that the last three principles have a bearing on the regulation of language use in specific official domains, of which Maurais identifies three as being central: governmental communication, education and citizenship. The first two principles, on the other hand, can be classified as underlying or fundamental principles in language legislation. The former group of domain-oriented principles therefore seem to be more technical in nature, while the latter group are actually more ideological. These initial five principles are largely relevant to the content or structuring of language legislation.

Maurais (1997) elaborates on his original views and formulates further sociolinguistic principles with regard to legal interventions in a language dispensation. He does so on the basis of his analysis of the Quebec language situation. These seven principles differ conceptually from the previous ones to a large extent, since they refer more particularly to the context of language legislation:

  1. The necessity for prior sociolinguistic description. Although sociolinguistic descriptions are generally important, Maurais is of the opinion that official language surveys and investigations in particular can play an important role in the formulation of objectives for language policy in general, but specifically for language legislation. He provides Canadian examples of such influential surveys. The survey conducted by the Pan-South African Language Board in 2001 (PanSALB 2001) could be regarded as the South African equivalent of such a sociolinguistic description.
  1. The necessity for state intervention. Particularly when language legislation is aimed at bringing about change on a large scale, the state must play a prominent role through the formulation of rules and regulations that can be controlled and monitored. The establishment of a statutory supervisory body, such as the Canadian Commissioner of Official Languages, the Welsh Language Board (Williams 2008:265) and other similar institutions, plays a central role in this regard. It is enlightening that section 3(5) of the South African Constitution also makes provision for a similar body in the form of PanSALB  (RSA 1993).
  1. The need for visible change. In Maurais’s opinion, because language is actually an abstraction, visible manifestations of changes to the language dispensation are of great importance to the general public. In the case of Quebec, such changes are visible on public signs (the French text is prominent), in terminology in the workplace (with English being replaced by French), and in school enrolments (conducted in French with increasing frequency). Several other authors are in agreement with regard to the importance of visible changes. As already indicated above, visible changes are playing a decisive role in changes in the Baltic states (Hogan-Brun et al 2008:615). Coulmas (2005:3) refers to the “visible hand” of “administrated language”.
  1. Domains of non-intervention. According to Maurais, it is important that intervention should be limited to the domains over which the state exercises control.
  1. Special status of bilingualism. In Maurais’s view, the distinction between individual bilingualism and institutional or statutory bilingualism is of cardinal importance. The former should be promoted in a multilingual country, but the latter should be controlled or managed. If this does not happen, an inequitable situation of language competition arises, which does not benefit the subordinate language or languages.
  1. The need to build consensus. For Maurais, it is important that broad consensus should be reached in respect of the objectives of a new language dispensation. Where the relevant issue is the elevation of a disadvantaged language, this would boil down to a need for the population also to make a contribution; for example, it is necessary for immigrants to ensure that they acquire the favoured language, and send their children to schools that use the concerned language; and they should also support efforts by the state to promote the language, etc.
  1. The role of the time factor in language planning. In conclusion, Maurais is of the opinion that it is important to bear in mind that changes do not happen immediately – and in particular, that real changes take some time to filter through effectively. It would be dangerous to concentrate on short-term changes. Measures such as the replacement of street and place names fall into this category. As far as he is concerned, there are no short cuts. As a result, attention should be focused particularly on changes that are likely to reduce uncertainty about the future of the favoured language. Moreover, monitoring should comprise an integral component of the overall language planning project.

Turi (1993), on the other hand, approaches comparative language legislation from a legal perspective. He formulates a few legal principles on the basis of which language legislation can be compared. The subject of a language act is one such principle; in other words, the fact that rules are made for people and groups of people, for example minority groups, and not for the sake of a language: Who, and not what, is protected or acknowledged or favoured by the legislation? A second principle is that of the decisiveness of the language legislation, in other words the nature of the sanctions that underlie the legislation, as a result of which it will, or will not, be juridically approached as public legislation. A third principle is related to the demarcation of language rights – the distinction that is drawn between official and non-official rights; the degree of language freedom, for example the restriction, or non-restriction, of the permitted use of a minority language; etc.

Dunbar’s (2005) comparison of the Gaelic Language (Scotland) Act 2005 with the Welsh Language Act 1993 touches on a further legal principle relating to language legislation, namely that of legal instruments. Apart from the fact that a specific piece of legislation is a legal instrument in its own right, the legitimisation of additional legal instruments concerning language comprises a core element of language legislation. In his comparison of the above-mentioned two language acts, Dunbar (2005:472–9) points out three such legal instruments that are found in both acts: the creation of a statutory language body – in the Scottish case, the Bòrd na Gàidhlig, and in the case of Wales, the Bwrdd yr Iaith Gymraeg; the requirement of a (national) language plan for the respective languages; and, related to this requirement, in the case of the Welsh Language Act, the preparation of language plans, or “language schemes", for these languages by public authorities. For example, the Scottish Language Board can issue a directive to any public institution to prepare a language plan in order to promote the use of Gaelic, and may even attach a deadline to the directive. The same applies to the Welsh Language Board. It is clear that in the case of both Gaelic and Welsh, the creation of a statutory language body comprises a central legal instrument. The same is true of the Baltic states, where language legislation also makes provision for the creation of statutory language institutions: the Estonian Language Board, the Latvian State Language Centre and the Lithuanian State Commission for the Lithuanian language. These institutions must ensure that the language legislation in their respective countries is implemented and maintained (cf Hogan-Brun et al 2008:545-9).

Kibbee (1998) offers a more linguistic perspective on language legislation, but does not formulate linguistic principles as such; rather, he points out shortcomings that occur in legislation that is based on specific juridical assumptions regarding the phenomenon of language. These include the assumption that the distinction between languages (and dialects) is clear-cut and easily discernible, for example the distinction between Standard English and Black English; that a direct correlation exists between the word and the subject that is signified, for example mother tonguelanguage proficiency, etc; that absolutely accurate translations are always possible; and that the vocabulary of a language contains a unique cultural perspective that ultimately becomes a unifying factor, for example in the case of education in minority languages, mother-tongue education, etc. He problematises these assumptions and points out the necessity for synchronising legal principles and linguistic principles. From a comparative perspective, attention could be accorded to the type of linguistic terminology that is found in language legislation, as well as to the types of definitions and explanations that accompany the particular legislation.

On the basis of the foregoing we can now develop a typology of principles of language legislation which can serve as a basis for an analysis of language legislation, whether comparative or otherwise (Table 1).

Table 1: Typology of principles of language legislation

3. Application

We can now test this typology on the basis of three well-known and relatively successful national language acts: the Welsh, the Canadian and the Baltic language acts.

The first Welsh language act was published in 1967 (cf Welsh Language Act 1993), the first Canadian language act in 1969 (cf Canada 1969), the first new-generation Baltic language acts in 1989 (Grin 1991:191), and the first true post-Soviet language acts of the three states in 1995 in the case of Estonia and Latvia and in 1999 in the case of Lithuania (Hogan-Brun et al 2009:75). The language acts of the Baltic states are largely similar. Therefore the language act of Estonia will be regarded as representative of all three.

For purposes of the comparison, the latest language acts of the three regions will be taken as a point of departure.

The three selected language acts are representative of three types of language-related challenges, namely the upliftment of a national minority language in the case of Wales, the reinstatement of a national language in the case of Estonia (and the other two Baltic states), and the establishment of official bilingualism in the case of Canada. The case of Quebec would represent a further category, but will not be dealt with here.

In the ensuing paragraphs a concise overview of the contents of the three selected language acts will be provided, followed by an assessment on the basis of our typology of principles of language legislation. The comparison will be made only in terms of the structural principles.

The three language acts differ structurally.

The Welsh language act (Welsh Language Act 1993) contains a total of 37 sections that are distributed over the three main parts of the act. Part I contains provisions of the Welsh Language Board; Part II deals with provisions concerning the so-called Welsh “language schemes”; and Part III deals with sundry matters, including the use of the Welsh language in legal proceedings and for statutory names, as well as language visibility in Welsh – for example, directives regarding statutory names, Welsh on forms, etc, and the use of Welsh in the business sector. Parts I and II constitute the core of the language act. As a matter of fact, in the preamble to the act, the establishment of a board that will be responsible for the promotion and use of the Welsh language and for the employment of language schemes for this purpose, is specified as an objective of the act. Public institutions must register language schemes with the Board in order to indicate how language equity will be achieved with regard to the use of Welsh. The Welsh Language Board, the Bwrdd yr laith Gymraeg, thus serves as the central language watchdog, supported by language schemes.

The Canadian language act (Canada 1985) is much more comprehensive and also more diversified. This act contains 110 sections distributed among a total of 14 parts. Part I deals with parliamentary proceedings, Part II with legislative and other instruments, Part III with legal administration, Part IV with communication with, and services to, the public, Part V with the languages of the workplace, Part VI with participation by English and French speakers, Part VII with the promotion of these two languages, Part IX with Canada’s Commissioner of Official Languages, Part X with court remedies, Part XI with general provisions, Part XII with related amendments, Part XIII with consequential amendments, and Part XIV with transitional measures, the revocation of specific acts and the coming into effect of the act. The preamble to the act specifies that the act was compiled in order to give concrete shape to the statutory bilingualism for which provision is made in the country’s constitution, and in order to help create the necessary circumstances for citizens to be able to exercise these rights. Similarly to the Welsh act, a considerable part of this act is devoted to Canada’s language watchdog. The extensive provisions on language equity in the various official language domains are a further striking characteristic of the Canadian language act.

The Estonian language act (RT 1995) is the shortest of the three acts, and contains 30 sections distributed among six chapters. Chapter 1 deals with general provisions regarding officiality, the scope of the act, the language of government administration, language rights, regulations with regard to language requirements and language testing, and provisions concerning Estonia’s Language Inspectorate and Language Officers; chapter 2 focuses on regulations concerning the use of foreign languages by government agencies and local government; chapter 3 deals with the use of the language(s) of national minorities, such as the Russian minority, in their cultural autonomous bodies; chapter 4 focuses on the use of languages in other areas, including the right to information in the Estonian language; chapter 5 deals with regulations for names and information, including regulations relating to language visibility in the national language and in the audiovisual media; a sub-chapter, 5.1, deals with violations of language rights; and chapter 6 deals with final provisions, mostly pertaining to the revocation of former acts . A striking aspect of this language act is that, as in the previous two cases, it also provides for the establishment of a language watchdog. The largest part of chapter 1 is dedicated to this aspect: the powers of the Language Inspectorate are specified, and particulars regarding the powers of its Language Officers are stipulated in this chapter. In contrast to the other two acts, no preamble, as such, is included in the English text of the language act. However, the first provision of chapter 1 does, in fact, indicate that the country has only one official language, namely the Estonian language. From the provisions it can be inferred that the act is chiefly focused on regulations pertaining to this factor, but that provision is also made for the status of national minority languages and foreign languages in the country.

At first glance, the Canadian language act thus appears to be more comprehensive, but if the sociolinguistic principles of language legislation are kept in mind, it is clear that the three acts display particular similarities.

In terms of content, all three acts contain explicit fundamental principles that can be directly linked to the greater (national) ideals for the language dispensation of each country. In the case of Wales, the fundamental principles are essentially focused on the promotion and use of the Welsh language as the national minority language, within a framework of official bilingualism. The former is given prominence, however. In the Canadian case, the main issue is that of language equity for the two official languages, French and English, within the context of the constitutional provisions in respect thereof. In Estonia, the promotion and elevation of the Estonian language is explicitly given prominence as the national priority. The Estonian language act promotes official monolingualism as the unifying factor, in contrast to the other two acts , which promote official bilingualism. It is striking that each country’s language act follows national language priorities.

As far as the principles of official language use are concerned, the three language acts differ only in terms of detail and comprehensiveness. The Canadian language act contains by far the greatest number of detailed provisions concerning official language use. The Estonian language act contains fewer such provisions, while the Welsh language act contains the fewest. Nevertheless, all three acts explicitly demarcate the domains of official language use in which the official language dispensation must be realised in practice as a matter of primary concern.

A further striking similarity between all three acts is the fact that while language use in the private domain is also touched on, the provisions concerning the official domains are given prominence.

Lastly, the inclusion of a separate set of regulations pertaining to the visibility of the official languages, ie the use of the official languages in the public domain, is also a common characteristic of the three acts. The Canadian and Estonian language acts also contain regulations pertaining to the official languages in the context of the services that are to be rendered to the public. Language testing is one of the aspects that enjoy prominence in the Estonian case. It is noteworthy that all three acts accord so much attention to the principle of official language use. This is an indication of the importance of the explicit regulation of official languages in the core domains of language use.

One of the prominent characteristics of all three acts is the strong emphasis on principles relating to legal instruments. A striking similarity in terms of the types of instruments is the fact that each of the three acts makes provision for a statutory institution that is responsible for carrying through the provisions of the language act: a Welsh Language Board and Welsh Language Schemes in the first instance; a Commissioner of Official Languages in the second instance; and a Language Inspectorate with Language Officers in the third instance. In comparison with the instruments that feature in the other two acts, the Welsh Language Schemes are unique. Legal remedies are also employed in all three cases, and strikingly comprehensive regulations are spelt out in respect thereof. Lastly, public reporting is also employed as a further instrument in all three cases. A statutory language watchdog thus stands out as one of the important principles for legal instruments, and also offers adequate supportive measures, as indicated by the Language Schemes (Wales) and Language Officers (Estonia). In addition, adequate legal remedies and publicisation also comprise essential components of a successful national language act.

The comparison of the three countries’ language acts on the basis of our typology of principles of language legislation shows that the contents of a national language act are more important than its extensiveness. By undertaking a study of the contents of successful language acts it is possible to learn a great deal about the structure of a suitable language act. It is ultimately also important to take contextual variables into account, since the language priorities of countries naturally differ. Owing to the extent of language legislation elsewhere in the world, it is thus unnecessary to reinvent the wheel with regard to the contents of a language act. It can therefore be assumed that the compilers of the SALB did, indeed, take cognisance of the practices of other countries where national language acts are being successfully implemented.

4. The South African Languages Bill

Comparatively little material focusing on the SALB has as yet appeared in academic publications. Some authors have, in fact, mentioned the bill in publications featuring an overview of language policy development in South Africa; but no in-depth analysis has been undertaken to date.

Apart from brief references to the SALB some authors have, in fact, provided short overviews, as well as concise comments pertaining to the bill. Desai (2001:326–8), for example, provides a valuable review of the early stage of the bill’s development, conducted under the leadership of the ministerial advisory panel. Beukes’s (2004) review places the development of the bill within the broader context of language policy development at national level in South Africa. Desai (2001:327) refers to the particular panel’s preference for a full rotation system for official language use, which would include four language groups; but she also indicates how this proposal was watered down – owing to political sensitivities – to the current semi-rotation system involving six official language groups. Beukes (2004) also refers concisely to this shift, as well as to the official calculation of expenses that was undertaken for both rotation systems. In her overview Desai (2001:327–8) discusses some of the sentiments that were manifested during the Second Language Indaba (NLS 2001), including that of Zulu nationalism and the consequent opposition to the inclusion of a Nguni grouping within the rotation system. An important aspect of her review is the emphasis that she places on the importance, to PanSALB, of the envisaged language act, and the fact that it could facilitate the Board’s monitoring function, because the act would create a clear framework for language policy development (Desai 2001:328).

Roodt (2006:54) concurs with Desai. She argues, in a similar vein, that the language act is essential because it contains criteria against which PanSALB would be able to exercise its monitoring function within the public service.

Alexander (2005:13) puts forward a strongly worded argument regarding the importance of language legislation, and specifically of the SALB as a policy framework within which the official languages could function: “We have an opportunity through existing legislation. We need the force of law.”

Probably for this very reason Roodt (2006:54) points out the legal implications of the delays relating to the promulgation of the act. According to Desai (2001:327), the bill was already supposed to have served before Parliament in 2001, while, as will become clear in the overview that follows, it was published for the first time only in 2003, for comment – three years later, and three years before Roodt’s critique was published. She argues that the delay relating to the promulgation of the act caused a gap to arise in the legislative framework pertaining to the use of the official languages. In this proverbial vacuum, according to Roodt (2006:54), the language provisions of the Constitution had meanwhile been interpreted in a somewhat liberal manner: “[O]rgans of state and state departments continue to have a margin of appreciation to interpret the language clauses ...”. The ultimate outcome is that, in reality, PanSALB has been neutralised, and cannot function properly.

Incidentally, Mwaniki (2004:311) also expresses criticism against the delay in the promulgation of the act, which he finds to be “not excusable”. He ascribes this tardiness to “levity on the part of politicians”.

In this regard, Alexander (2004:122) writes: “[I]t is extremely unlikely that of their own accord, the political leadership in the ruling circles will take decisive steps in the direction of closing the yawning gap between exemplary policy documents and real-life practice.” On a somewhat cynical note, he foresees that South Africa will follow the same route that has been taken by the rest of the continent where African languages are spoken.

Kamper (2006:85), on the other hand, attributes the delay to unenthusiastic government departments, while Beukes (2006:3–4) expresses the belief that a possible overlapping of the bill with the PanSALB act may be responsible for the delay.

Kamper (2006:78) raises a question that has not been broached by any other author: he finds that the bill lacks decisiveness. According to him, the bill does not contain a sufficient number of explicit directives concerning corrective action: “[N]o mention is made of any real power to impose corrective actions in the case of language policy transgressions.”

Although these authors do, in fact, discuss aspects of the bill, and although the non-promulgation of the SALB forms an important focal point of their discussions, no in-depth analysis of the bill in its entirety has been presented. Such an analysis will be attempted in the following paragraphs.

4.1 Background

The SALB is the end result of a language policy process that originated with the Language Plan Task Group (LANGTAG) during the early years of the post-apartheid state. This task group, appointed by the then Minister of Arts, Culture, Science and Technology, was formed in order to develop a language plan for South Africa which could serve as a point of departure for the establishment of norms and standards for language policy. The findings of the task group were released in the form of a report on 8 August 1996 (DACST 1996) after a consultative conference had been held during June of the same year. According to the government department concerned, LANGTAG’s recommendations would be implemented from 1999 as “(s)trategies and measures for the promotion of multilingualism” (DACST 1998b:25). These comprised intentions that were noted in important draft documents that had already been doing the rounds since 1998, but which had been made available to role-players in the language domain in a selective manner, namely A Language Plan for South Africa. Preparing for a multilingual future (DACST 1998a), the Draft White Paper on Language (DACST 1999a) and the Language Plan for South Africa. The Promotion and Implementation of Multilingualism (DACST 1999b). As such, these documents represent earlier concrete efforts to develop norms and standards for language policy in post-apartheid South Africa, as well as to establish national language priorities. These draft documents would ultimately form a basis for the development of the National Language Policy Framework (NLPF) (DAC 2002c), South Africa’s official national language policy document, which was approved by the Cabinet in February 2003 (DAC 2005:8).

From the earlier draft documents mentioned above, an official discussion document ultimately developed, entitled Language Policy and Plan for South Africa (LPPSA) (DAC 2000). In the announcement of the release of this new language plan, Xulu (2001:3) referred to an earlier version − most probably DACST 1998a, which had apparently already been discussed in February 1998 during a consultative workshop in Pretoria. Xulu (2001:3) also mentioned that the Minister of Arts, Culture, Science and Technology had appointed an advisory panel in 1999, led by Neville Alexander, in order to finalise the language plan as a draft document, with a view to the discussion thereof during the so-called Second Language Indaba that was to be held in Durban during March 2000 (NLS 2001). According to Desai (2001:326) this panel, called the Advisory Panel on Language Policy to the Minister of Arts, Culture, Science and Technology, was appointed in November 1999. During the Indaba concerned, Alexander himself led a discussion of the language plan on behalf of the advisory panel (Alexander 2001, DAC 2000).

On the basis of an earlier version of the SALB, entitled The Language Policy for South Africa Bill, 2000 (DACST 2000), it is clear that this Language Indaba was the first occasion on which the bill had been discussed with the public (NLS 2001:86–114). From the introductory announcement relating to that bill, it appears that the above-mentioned Ministerial Advisory Panel also played a part in the finalisation of this document (Beukes 2001:86, 113–4). In addition, it also seems that public hearings concerning the bill were envisaged. In her afterword to the Indaba, Mkhulisi (2001:159) anticipated the submission of the bill to the Minister for his consideration by the end of May 2000. Desai (2001:327) confirms that this submission did indeed occur by means of a memorandum, and that the Minister was advised to follow the legislative route. In addition, according to Mkhulisi (2001:159), plans were also afoot to submit the bill to the Cabinet before the end of 2000, after which the relevant parliamentary portfolio committee would organise public hearings in connection with the bill. Incidentally, according to her, the intention was to introduce both the bill and the 2000 Language Plan on Heritage Day (24 September) of that same year.

On the basis of information provided during the official release of the NLPF by the Minister of Arts, Culture, Science and Technology at a breakfast event on 3 December 2002, we know that the LPPSA was ultimately replaced by the NLPF (DAC 2002a, 2002b). The document that was put forward as the final document is dated 13 November 2002 (DAC 2002c).

Thereafter, the SALB was referred to again only on 18 March 2003, in the answer provided by the then Deputy President, Jacob Zuma, in the National Council of Provinces to a question pertaining to the bill that was posed by AE van Niekerk of the New National Party (NNP). In response to the question as to whether any legislation concerning the new language policy was envisaged, the Deputy President replied that the NLPF would be incorporated into legislation, in practice, “as the SA Languages Act”, and that the act concerned would be submitted to Parliament before the end of the year (The Presidency 2003b).

Corroboration of the Deputy President’s reply can be found in the implementation plan of the NLPF, namely the Implementation Plan: National Language Policy Framework (IP), dated 10 April 2003 (DAC 2003a). Under the heading “Objective”, the Department declares its aspiration to get the SA Languages Act approved by Parliament. Listed under “Activity” is the plan to submit the bill to the Cabinet and to consult with the relevant portfolio committee with a view to the tabling of the bill in Parliament. Among the “Performance Indicators” cited in this regard are: approval by the Cabinet, approval by the portfolio committee, and the tabling of the bill as such. The department concerned is identified as the responsible institution and deadlines are indicated for each step of the process. It was envisaged that the bill would be tabled during August 2003. The IP is an internal policy document aimed at assisting the DAC in the implementation of the NLPF (Ministry 2003).

The official bill, the SA Languages Bill, was finally released for public scrutiny on 30 May 2003, when it was published in the Government Gazette for comment by the public (DAC 2003b) – a step that is not pertinently indicated in the IP. DAC’s website indicates 23 November 2000 as the date of finalisation of the bill (DACST 2000), while the Government Gazette indicates the date as 24 April 2003. The title of the bill had thus changed markedly since the Second Language Indaba.

On 12 June 2003 the Department of Arts, Culture, Science and Technology presented a national consultative conference in Benoni. During this event the NLPF’s operationalisation plan, the IP, also came up for discussion. However, according to the official websites this document is still available only in draft form.

According to the relevant minister, the implementation document had already been discussed on two earlier occasions (DAC 2002b); but no particulars are provided. In the Deputy President’s speech, delivered during a banquet function, the conference was announced as the National Consultative Conference on the National Language Policy Framework (The Presidency 2003a). From the relevant minister’s opening address, however, it would seem that consultations regarding the draft language bill was the main objective of the conference. As a matter of fact, he repeatedly emphasised the importance of the bill during his speech. His concluding appeal summarises his standpoint in this regard in a striking manner: “Taking the language policy, our plans for implementation and the advantages of multilingualism into account, please assist us in making sure that the SA Languages Bill is a true legal reflection of our intentions so that this piece of legislation indeed becomes the cornerstone for well-managed multilingualism in South Africa” (Ministry 2003).

The next official reference to the SALB is found in the Strategic Plan of the new Department of Arts and Culture (DAC) for 2004–2007. Interestingly enough, an envisaged outcome anticipated in this document is that the bill would be debated in Parliament between 2004 and 2007 (DAC 2004:12). This approach is in line with the envisaged objectives broached during the Second Language Indaba referred to earlier on.

During the same year, the SALB was discussed during a meeting of the so-called National Language Forum (NLF) on 14 and 15 October 2004 (NLF 2004). The NLF is a consultative structure for language matters that was constituted in accordance with the NLPF, and which meets more or less annually. The bill formed a prominent point of discussion during this meeting. From the minutes of the meeting it appears that the bill had indeed been considered by the Cabinet, but that it had been rejected and referred back. A portion of the minutes of this meeting is quoted below (the original numbering has also been retained):

2.3.2 The South African Languages Bill

Mr X Mfaxa reported on the Bill's progress.

  1. The Bill had been rejected by the Cabinet Committee and the Social and Economic Cluster Committee, since there were questions about the following:
    1. Readiness to implement the act;
    2. gaps in the legislation that might leave government open to legal action;
    3. the cost of implementation; and
    4. possible action by the Afrikaans community.
  1. Steps to be taken by DAC
    1. There would have to be more consultation with cluster committees, MINMEC, Ministers, etc. Many of the role-players had changed after the elections, and it was important to have face-to-face discussions with them about the Bill.
    2. The LRDCs and LUs would have to communicate with language communities about the importance of multilingualism.
    3. DAC would submit the amended memorandum to Cabinet early in 2005.
    4. NLF members should focus on developing their language policies, since provincial legislation would have to follow the national act.

No discussion is recorded in the minutes. From discussion point no 2(5) (sic) it must be inferred that proposals concerning further amendments to the SALB were, in fact, considered; however, no documentation in this regard is available in the public domain.

Further on in the minutes the issue of the SALB is raised again. Once again, the section of the minutes pertaining to the relevant point of discussion is quoted verbatim:

2.4.1 Plans of the National Language Service
The following were listed as priorities by the NLS:

  1. The SA Languages Bill [own emphasis]
  2. A Language Code of Conduct for the Public Service
  3. The SALPC Bill
  4. Capacity building, e.g. bursary schemes
  5. The establishment of LUs and a national HLT facility (in cooperation with the National Research Foundation)
  6. The promotion and development of literature for the official African languages
  7. The implementation of the TISSA project
  8. The development of orthographies, spelling and editing rules for the official African languages
  9. The coordination of terminology work
  10. The planning and coordination of translation and editing
  11. The development of an interpreting policy and the setting up of infrastructure.

Priority 1 confirms that follow-up work concerning the SALB was, in fact, envisaged. The other priorities are also listed here for the sake of completeness, but are not necessarily relevant to the present discussion.

However, since 2004 the SALB has not been mentioned again in official documents of the DAC. In the Department’s amended strategic plan for 2005–2010, for example, the bill no longer features at all as part of the objectives and outcomes (cf DAC 2005). Successive plans subsequently made available also make no mention of developments concerning the SALB (cf DAC 2007, 2008).

Apparently, nothing came of the follow-up work that was envisaged during the NLF meeting of October 2004. From documentation submitted by Cornelus Lourens for the court case of 8 March 2010, it is clear that the Cabinet ultimately took a final decision to withdraw the SALB completely (Lourens vs The President of the Republic of South Africa and others 2010). This decision was taken on 25 July 2007, and reads as follows: “The Minister of Arts and Culture must consult further with the Minister of Justice and Constitutional Development with a view to exploring alternative non-legislative ways of dealing with the matter and to assess the intended and unintended consequences of the various options. The bill should not be forwarded to parliament as a bill and it will have to be removed from the Portfolio Committee of Arts and Culture programme as a bill.”

This decision confirms that a change of outlook occurred and that the NLPF is now regarded as a “non-legislative” alternative to the SALB. In terms of the approach to language legislation followed in this article the NLPF can indeed be regarded as a legislative mechanism – although it admittedly comprises  supplementary legislation, in other words, legislation published by the executive authority (Du Plessis 2009). It is self-evident that the decisiveness of the NLPF is diminished, since it was not passed as legislation by Parliament. Thus, it cannot be regarded as a typical national language act in terms of the narrow definition provided earlier on in this article.

Although a more in-depth investigation into the pros and cons of the SALB could probably bring further perspectives to the fore, it can safely be assumed at this stage that the NLPF has indeed replaced the SALB as a legislative mechanism. It would thus appear that what has actually transpired is precisely the opposite of what the Deputy President intended to convey in his answer in the National Council of Provinces in 2003. His full answer was worded as follows: “(2) It is envisaged that the National Language Policy Framework will be embodied in legislation as the SA Languages act, which will be tabled in Parliament before the end of the year” (The Presidency 2003b).

The plan was abandoned in due course, since the NLPF ultimately came to be regarded as an adequate legislative mechanism. This becomes abundantly clear on the basis of an address delivered by the first ANC minister of the new DAC, Pallo Jordan, on 21 June 2006 regarding his department’s promotion of the African languages (Ministry 2006). He referred specifically to the department’s plans of action over the following three years (2006–2009), including the NLPF. However, it is noteworthy that in this address the action plans for the NLPF are formulated in the typical wording of the legislative directive of Section 6(4) of the 1996 Constitution:

The programme of action entails the following pivotal projects:
* The establishment of nine Language Research and Development Centres for African languages. The purpose is to decentralise language development and locate it close to communities that speak those languages.
* The South African Language Practitioners Bill to regulate and professionalise language work. 
* The National Language Policy Framework (NLPF) of 2003 to regulate the use of all official languages in government institutions and to promote multilingualism.
* The establishment of the National Language Forum (NLF) across all three tiers of government to bring together language workers within government.
* The Department of Arts and Culture’s national language service which continues to offer translation and editing services to all national government departments.
* The establishment of the Human Language Technologies Unit (HLTU) within the Department to facilitate communications between citizens and information systems in people’s own languages. This will entail the co-ordination, development and production of technical vocabularies (terminologies) by the Department to promote the use of all official languages in all the fields and domains of study including mathematics, science and technology. During 2005 the Department of Arts and Culture (DAC) launched nine of these at a ceremony in Boksburg. (Ministry 2006 – own emphasis)

This shift within government circles actually took place unobserved, and it is not possible to obtain an official standpoint in this regard in public documents. It would thus appear that the abandonment of the bill coincided with the appointment of an ANC minister in the DAC, in the person of Pallo Jordan, in 2004. This was also the year during which this new department was formed (DAC 2006). Up until this point, the relevant portfolio had always been allocated to a senior member of an opposition party. Further investigation into this matter should definitely yield additional perspectives.

For the sake of convenience, the developments regarding the SALB are summarised below, in tabular form:

Date Development of events
June 1996 National consultative conference of the Language Plan Task Group (LANGTAG)
August 1996 LANGTAG report, Final report of the Language Plan Task Group (LANGTAG)
February 1998 Consultative workshop in Pretoria regarding A Language Plan for South Africa. Preparing for a multilingual future
November 1999 Appointment of the Advisory Panel for Language Policy of the Minister of Arts, Culture, Science and Technology
March 2000

Second Language Indaba, Durban

Release of the Language Policy and Plan for South Africa

Release of the Language Policy for South Africa Bill

2000 Memorandum of the advisory panel to the Minister of Arts, Culture, Science and Technology concerning the Language Policy for South Africa Bill
December 2002 Release of the National Language Policy Framework (NLPF)
March 2003 Deputy President Zuma announces in the National Council of Provinces that the NLPF will be incorporated in actual legislation as the SA Languages Act, and that the act concerned will be submitted to Parliament before the end of the year.
April 2003 The Implementation Plan: National Language Policy Framework (IP) declares the Department’s intention to get the SA Languages act approved by Parliament.
May 2003 Publication of the South African Languages Bill (SALB) in the Government Gazette for comments by the public
June 2003

Consultative Benoni conference, National Multilingual Consultative Conference

Release of the NLPF’s operationalisation plan, the Implementation Plan: National Language Policy Framework

Discussion of the SALB, described by the Minister of Arts, Culture, Science and Technology as a "cornerstone of well-organised multilingualism in South Africa"

March 2004 Department of Arts and Culture: Strategic Plan 2004–2007 stipulates that the bill must be debated in Parliament between 2004 and 2007.
October 2004 Meeting of the National Language Forum, during which it transpires that the Cabinet has rejected the bill and referred it back
July 2007
Cabinet decision that the SALB is to be withdrawn from the legislative process.

Table 2: Summary of the most important developments concerning the SALB

4.2 Contents

The discussion that follows is based on the version of the SALB that was published on 30 May 2003 in the Government Gazette for comment (cf DAC 2003b).

The contents of the SALB include the items listed below. For the sake of convenience, the page numbers of the relevant Government Gazette are indicated next to the titles of the respective sections. The bill is not available in Afrikaans or any of the other official languages:

South African Languages Bill (Revised and final draft 24 April 2003)
Preamble (p 30)

  1. Definitions (31)
  2. Objectives (32)
  3. Guiding principles (33)
  4. Application and interpretation (34)
  5. Language policy (35)
  6. Language units (36)
  7. Powers and functions of language units (37)
  8. Development of indigenous languages and South African Sign Language(s) (38)
  9. Co-operation (38)
  10. Reports (39)
  11. Remedies (40)
  12. Regulations (42)
  13. Short title and coming into effect (42).

In terms of the principles of language legislation discussed above, Sections 2–4 and 9 fall under fundamental principles, Sections 5 and 8 fall under principles of official language use, while Sections 6 and 7 and 10–12 fall under principles pertaining to instruments. The ensuing discussion will adhere to this classification. Cross-references relate to the 1996 Constitution (RSA 1996a). All other references pertain to the SALB.

4.3 Fundamental principles

The SALB contains two cardinal sets of fundamental principles: objectives of the legislation, and a number of guiding principles.

The main objective of the bill (Section 2(d)) is to put a regulatory framework in place for the facilitation of the effective implementation of the constitutional obligations relating to multilingualism. Two further objectives are linked to this one: Section 2(a), to give effect to the “letter and spirit” of Section 6 of the Constitution, and Section 2(b), to promote the equal use of the official languages. Together, these objectives are related largely to the overall pursuit of official multilingualism, albeit that the concept official multilingualism remains vague and undefined in the bill. A third objective stands somewhat apart from these, since it is aimed at enabling South Africans to use the official language(s) of their choice, “as a matter of right” (Section 2(c)). The only explicit right relating to the use of an official language that is found in the South African Constitution is related to the choice of the medium of instruction in education, as set out in Section 29(2) of the Constitution. The objective concerned is probably based on the assumption that a multilingual dispensation entails implicit rights relating to language choice.

A number of guiding principles are also spelt out, on the clear understanding that they mostly have a bearing on government institutions. These guiding principles link up with the overall objective of promoting official multilingualism; and, as in the previous case, they do not build on the constitutional directive regarding the monitoring and regulation of the use of the official languages by the state. Nevertheless, the guidelines do create a framework for dealing with language, within which the aspiration for official multilingualism can be realised.

The guidelines contain language promotion principles and language management principles. The former include the promotion of linguistic diversity and language tolerance (Section 3(1)(a)), the use of the indigenous languages (Section 3(1)(b)) and the acquisition of South African languages. The latter include mechanisms to ensure participatory multilingualism (Section 3(1)(e)), inter-governmental co-operation (Section 3(1)(f)) and the promotion of solidarity-oriented language rights (Section 3(1)(c)).

The matter of application and interpretation is the theme of a third set of underlying principles contained in the SALB. Section 4 explicitly states that the envisaged language act is absolutely binding on the state and other public institutions, and that any interpretation thereof must be made in terms of the Constitution and the SALB’s own objectives (Section 2). In addition, the relevant section stipulates that the envisaged language act shall be given preference in cases where inconsistent language provisions occur in other legislation. These provisions in the SALB are aimed at ensuring that the envisaged language act will indeed become a national language act.

A final fundamental principle relates to co-operation. Section 9 contains a few provisions in this regard. The regulations formulated therein are aimed specifically at eliminating the duplication of functions, with particular reference to the possible duplication of the activities of PanSALB. In accordance with Section 8 of its act, PanSALB also fulfils a monitoring function with a view to the recognition of language rights and the carrying out of language policy (cf PanSALB 2001).

4.4 Principles relating to the use of official languages

Section 5 of the SALB actually constitutes the core of the envisaged language act. In this section, more specific details addressing the question of what is meant by official multilingualism are provided, and more definite provisions regarding the use of official languages are formulated.

Two specific provisions are prominent in this regard, one pertaining to official language domains and the other to the rotation of official languages. As far as the official language domains are concerned, the SALB identifies the legislative, executive and judicial domains, at both national and provincial level, as targeted domains for the implementation of the envisaged – and somewhat controversial – rotation system (Section 5(5)). The intention is that at least six official languages should be used in written documentation within these domains, while the relevant minister would even be vested with the authority to classify the appropriate documentation (Section 5(6)). As far as the rotation system is concerned, the SALB stipulates that at least six official languages should always be used for written purposes within these domains. Four of the six designated languages should always be present, while the other two should be designated, on a rotational basis, from two language groups, as indicated in Section 5(3):

(3)(a) The languages referred to in subsection (2) are –
(i) Tshivenda
(ii) Xitsonga
(iii) Afrikaans
(iv) English
(v) At least one from the Nguni group (isiNdebele, isiXhosa, isiZulu and siSwati)
(vi) At least one from the Sotho group (Sepedi, Sesotho, Setswana).

The earlier version of the bill, which was discussed during the Second Language Indaba in Durban, worked consistently with four language groups, namely a Nguni group, a Sotho group, a “minority language group", Tshivenda/Xitsonga, and a "Germanic group", English/Afrikaans (DACST 2000). Actually, the later (2003) version of the bill contains a watered-down, semi-rotation system which, strictly speaking, boils down to an inequitable way of dealing with the official languages.

It is important to note that the NLPF contains the same directives regarding rotation (cf DAC 2002c).

Nevertheless, Section 5(2) of the SALB stipulates that this semi-rotation system should be used only in cases where it is not feasible to provide government documents in all 11 official languages. However, both regulations are further moderated by the fact that, in any case, a government institution can escape these obligations by following a motivated alternative policy “in the interest of effective governance or communication”.

The development of the indigenous languages of South Africa, as well as South African Sign Language(s), forms a final principle pertaining to the use of official languages. Section 8 of the bill contains a directive to the minister to put measures in place in accordance with this. Specific directives include the identification of areas of priority, supporting existing structures involved in development, starting up new structures and programmes for the languages concerned, and providing support to cross-border development projects.

As a footnote, however, it should be borne in mind that South African Sign Language enjoys “official” status only within the educational context, as determined by Section 6(4) of the South African Schools Act: “6.(4) A recognised Sign Language has the status of an official language for purposes of learning at a public school” (RSA 1996b).

4.5 Principles pertaining to instruments

Apart from the proposed introduction of the semi-rotation system for the official languages, as discussed above, the references to an important legal instrument in the form of Language Units are a second outstanding characteristic of the SALB. Section 6 of the bill stipulates that such units should be established within five years, while Section 7 contains provisions regarding their powers and functions. The intention is that the Language Units should be established in all the government departments, as well as in the provinces (in accordance with their own language legislation).

Considerable powers are assigned to the Language Units. Firstly, they are accorded an implementation function. This is realised through the facilitation and monitoring of the implementation of regulations (Section 7(a)), as well as through the establishment of “effective and positive” measures for the implementation of national language policy (Section 7(b)), particularly with regard to internal and external communication – both written and oral. Secondly, an evaluation function is accorded to these Units. They are tasked with conducting language surveys and audits in order to assess the suitability of existing policy and practice, with a view to corrective recommendations. Thirdly, they have a dissemination function. The Language Units are expected to inform the public about the contents and implementation of language policy within the state. Fourthly, they are generally expected to carry out any other actions that may be necessary in order to fulfil their mandate.

In addition to the Language Units, a number of remedies constitute a second important legislative instrument put forward by the SALB. Section 11 of the bill contains a set of six provisions in this regard. Any person or institution may approach the court in order to obtain an appropriate remedy in cases involving the (alleged) violation of a language right or language policy or language practice (sic). Such violation must have a bearing on non-compliance with obligations contained in the bill and/or the NLPF, and/or on cases of non-compliance with PanSALB’s recommendations, decisions and findings.

Regulations, the normal and logical outcome of any legislation, constitute the third instrument specifically mentioned in the SALB. Although the reference to this instrument in the bill could be regarded as somewhat superfluous, its inclusion is, in fact, meaningful. Section 12 of the bill contains provisions in this regard. Firstly, as in the case of other legislation, the relevant minister may promulgate any regulations in terms of the envisaged legislation. Secondly, the minister may also promulgate, as a very specific regulation, a language code of conduct for government officials. Thirdly, the minister may institute any other mechanisms, by means of regulations, in order to ensure the effective enforcement of the bill. The minister is restricted in the promulgation of regulations only by virtue of the fact that all the regulations, and specifically those with financial implications, must be devised in consultation with the appropriate role-players.

Reporting is a fourth legislative instrument that is envisaged. Section 10 of the bill stipulates that reports should respectively be submitted to Parliament by departmental Language Units, and to the provincial legislatures and the National Council of Provinces by provincial Language Units; or alternatively, such reports may be submitted to PanSALB. The crux of the provisions concerned lies in the obligation that falls on all institutions on which the reports have a bearing, to take account of the contents thereof when further implementation measures are to be introduced (Section 10(3)).

Apart from the fact that the regulations pertaining to reporting ensure proper public disclosure and transparency, the instrument is further reinforced by specific requirements relating to reporting. Reports must be submitted concerning the fulfilment of the obligations that are imposed by the legislation concerned, and also regarding the nature of language-related complaints by the public, as well as problems experienced, and corrective action taken, in respect of the implementation of the legislation concerned. In addition, recommendations are to be made, where necessary, and any other relevant matters regarding the promotion of (official) multilingualism must be addressed.

5. Discussion

The SALB thus contains several of the main elements of a language act as encompassed in the sociolinguistic principles of language legislation considered in this article.

Admittedly, some of the core fundamental principles are somewhat vaguely worded, and a clear and specified commitment to official multilingualism is lacking. Nevertheless, multilingualism is generally upheld as a national ideal; and ideals in respect of the acquisition of indigenous languages are even put forward.

A striking deficiency, however, is that the nature of the official language dispensation is not clearly defined. The language acts of the Baltic States, by comparison, are much more explicit in this regard. In all three cases, official monolingualism is pursued, and monolingualism is linked to the upliftment of the national languages. In those regions the new official monolingual dispensation implicitly replaces the official bilingual dispensation of the Russian era. In the case of these states, official monolingualism is thus aimed at entrenching the status of the previously marginalised languages (cf Hogan-Brun et al 2009:75). In the South African case, a movement away from statutory bilingualism – the predominant principle that applied under the previous dispensation – is apparently taking place (Du Plessis 2009), along with a shift towards a new official language dispensation in which the formerly marginalised official languages have effectively become the national languages of priority. Any definition of official multilingualism – a concept that is currently absent from the bill – should thus, in terms of Du Plessis’s (2004) argument, include a third language from this category of languages, in addition to English and Afrikaans. "Official trilingualism" would be a more  accurate description of the situation regarding official languages.

A further drawback in the stated objectives is the absence of a direct link between language legislation and the monitoring and regulation of the state’s use of the official languages, as required by Section 6(4) of the Constitution. Instead, the regulation of multilingualism is identified as an objective – although this objective is not explicitly mentioned in the Constitution.

With regard to the principles of official language use, the cardinal domains of language use (legislative, executive and judicial) are indeed delineated, and the employment of official languages within these domains is, in fact, specified. These are domains that are linked, in part, to the principle of communication with the citizenry. The formula proposed for the semi-rotation system appears to be unfeasible. Considering that it was already difficult enough to maintain bilingualism in the previous dispensation, the goal of a six-language multilingual dispensation is even more unattainable. Semi-rotation appears to be largely in conflict with the feasible type of language dispensation that is presupposed in the constitutional language provisions. Any realistic interpretation of the language provisions of the Constitution is hardly likely to arrive at the conclusion that absolute multilingualism, encompassing 11 languages – or, for that matter, six languages – is envisioned in these provisions (cf Pretorius 1999). Furthermore, the utilisation of the languages concerned in the respective domains appears to be limited to written communication in any case.

A problematic aspect of the demarcation of domains is the conspicuous absence of the core domains that are central to, for example, the Baltic language legislation, namely communication with the citizenry, the language of education and linguistic aspects of immigration. The SALB does not succeed in offering directives for any of these domains. Particularly striking is the absence of directives concerning official-language visibility – one of the core elements of the success of the Baltic language acts, as indicated at the beginning of this article. The importance of the acquisition of the official languages could also have been stated in a more explicit and prescriptive manner. Instead, language acquisition is merely advocated as something that should be encouraged. Language requirements for obtaining citizenship are also absent.

Nevertheless, the development of the indigenous languages, including the South African Sign Languages, features prominently as an element of the promotion of multilingualism within official language domains. Thus, the principle concerned is comparable to similar principles that are encountered in the Baltic language acts with regard to the reinstatement of their national languages. In the South African case, however, the issue in question is the expansion and development of the national priority languages, as well as the establishment of these languages at national level. This principle is aptly formulated in Section 3(2) of the 1993 Constitution (RSA 1993):

3. (2) Rights relating to language and the status of languages existing at the commencement of this Constitution shall not be diminished, and provision shall be made by an act of Parliament for rights relating to language and the status of languages existing only at regional level, to be extended nationally in accordance with the principles set out in subsection (9). (Own emphasis)

In the 1993 Constitution a balance between the retention of the status of existing official languages on the one hand and the enhancement of the status of the new official languages at national level on the other was set as a national objective – an objective in respect of which provisions could have been included in the SALB. The SALB is thus not explicit enough as far as the furtherance of the indigenous languages is concerned. Once again, the pursuit of official trilingualism as a principle could have obviated this dilemma. In view of this drawback, together with the inadequate definition of official multilingualism, the bill displays serious deficiencies as a national language act as far as the fulfilment of the first two sets of principles of language legislation are concerned.

As far as principles pertaining to instruments are concerned, the SALB fares well. An implementation mechanism is incorporated in the form of Language Units for government departments and provinces. These Language Units are vested with sufficient powers and, in conjunction with PanSALB, carry out functions that can undoubtedly be regarded as equivalent to those fulfilled by typical central state language institutions such as those of the Baltic states (cf Hogan-Brun et al 2009:79–83). The specified regulatory powers assigned to the relevant minister, together with the obligation of reporting, further reinforce the decisiveness of the SALB.

A problematic aspect relating to the first two elements, which came to the fore as early as during the Second Language Indaba, is the issue of the possible duplication of PanSALB’s functions (cf Beukes 2001:91–3). In terms of a comparison of the relevant provisions of the SALB with those contained in the language acts of other countries, such as the Baltic states, PanSALB more directly fits the description of a “language institution” that supervises the implementation of language policy, and also fulfils a monitoring function in respect thereof. It is self-evident that this role of a language watchdog, fulfilled by a (preferably autonomous) statutory institution with appropriate powers, holds definite advantages – including an impartial view of relevant matters, the proverbial “arm’s length” management of language matters, professional opinions, etc. The incorporation of the Language Units under the banner of PanSALB could have solved this problem and could actually have safeguarded the position of the relevant minister – his/her Cabinet colleagues might otherwise easily begin to suspect him/her of being obsessed with power, and of being driven by an over-zealous ambition to control the language agenda.

Despite the above-mentioned deficiencies, the foregoing analysis indicates that the ultimate language act that could arise from the SALB could definitely be regarded as a typical national language act. A considerable number of the core principles of language legislation are present in this first attempt at a South African language act. It thus comprises an important mechanism for the implementation of a new multilingual official language dispensation in South Africa, as Minister Ben Ngubane – the motivational force behind the legislation – aptly remarked at the time: “(T)he SA Languages Bill is a true legal reflection of our intentions so that this piece of legislation indeed becomes the cornerstone for well-managed multilingualism in South Africa” (Ministry 2003).

6. Conclusion

In this article an endeavour has been made to build on the work of Maurais (1991, 1997) – who originally began to develop sociolinguistic principles for language legislation – by incorporating further principles put forward by other authors. The extensive typology proposed appears to offer a useful basis for the description and, ultimately, also the comparison, of language legislation. The description of such legislation has been illustrated on the basis of an analysis of the SALB. The typology makes it possible, on the basis of particular principles, to expose strong and weak points in language legislation – an exercise which could prove useful to decision-makers. In addition, the typology also improves our understanding of the phenomenon of language legislation and its role as an intervention mechanism pertaining to language. What remains to be done entails the conducting of an in-depth comparative study, with the aim of examining South Africa’s envisaged language act together with the national language acts of other countries.

In addition, no detailed attention has been given in this article to the contextual principles of the typology of language legislation. A further investigation should bring additional perspectives in this regard to the fore, particularly in the light of the court case regarding the SALB which was referred to at the beginning of this article. For example, it would appear, from the preamble to the SALB, that significant shifts have occurred in the way of thinking of decision-makers in respect of the need for state intervention and accompanying legislation in the devising of a new multilingual dispensation for South Africa. Furthermore, on the basis of this overview, questions come to the fore regarding the degree of consensus that exists within government circles in respect of the contents of, and necessity for, language legislation for South Africa. There also seems to be a certain degree of consensus regarding the need for visible change in the language dispensation; but the factors discussed above suggest that in this regard, too, no fixed guidelines exist as yet.

Since success has been achieved with language legislation elsewhere in the world, the inevitable question arises as to the effect of the absence of a national language act for South Africa in the apparent shift towards a dispensation in which English is becoming a kind of “supra-official” language or, as Fessha (2009) suggests, “the unofficial official language”. The question also arises whether the promulgation of the SALB as a language act could indeed still bring about any changes to this state of affairs. This question is obviously relevant, given the fact that the NLPF contains many of the core elements of the SALB and has effectively replaced the latter as the draft language legislation. What drawbacks, then, are linked to the implementation of the NLPF which could be rectified by a language act? Questions such as these are relevant to language legislation as a language policy mechanism, and naturally warrant further investigation.

In conclusion, a question that has not as yet been adequately considered is: What has happened to the original momentum that so strongly characterised the language policy discourse in South Africa after 1994, in the quest for a new language dispensation? The overview presented above indicates that some traces of this momentum still remain, but it would appear that the original enthusiasm has waned perceptibly since the national language portfolio was taken over by an ANC minister. In any case, this implies that a change in the relevant discourse has occurred since then of which proper cognisance has not been taken as yet.

The way in which the standardisation of geographical names is being handled at national level offers a possible explanation for this altered discourse. It would appear that the upliftment of the national priority languages of South Africa is definitely considered to be of prime importance in this regard, hence the striving to replace ostensibly problematic names of geographic entities with “indigenous" names. However, as in the case of the Baltic states, this type of language upliftment effectively leads to new forms of official monolingualism. South Africa’s new geographical names, as well as those that have replaced previous names, ultimately remain essentially monolingual – with Ellisras becoming Lephalale, Nylstroom becoming Modimolle, etc. In this domain, too, there are thus no signs, as yet, of any active and orchestrated effort to establish official bi- or trilingualism by means of non-monolingual geographical names.
In the SALB court case Judge Du Plessis issued the following order:

The national government is declared to be in default, having failed to regulate and monitor its use of official languages by means of legislative and other measures in accordance with section 6(4) of the Constitution of the Republic of South Africa. (Lourens vs The President of the Republic of South Africa and others, Ruling 2010) (Own translation)

In addition, he ordered that the Minister of Arts and Culture should take corrective action in this regard within two years of the date of this order. Since he did not issue an order for the SALB to be promulgated as a national language act, the question arises as to which “legislative apparatus" could be activated by the relevant minister with a view to complying with the order. In the light of the foregoing, she would do well to take cognisance of the modus operandi followed by other countries which have achieved success with the establishment of new language regimes. These are countries that have recognised the value of a national language act as the central legal intervention. In addition to the symbolic importance of a national language act, such an act comprises legislation that can bring about visible changes in accordance with the national ideals of the country. Our analysis has indicated that the SALB, as a bill, does, in fact, largely fulfil the requirements of a national language act. The deficiencies present in the bill could be rectified by means of a new round of consultations. In this regard, too, South Africa could learn from other countries.

A case could thus be made for the reconsideration of the SALB as a national language act for South Africa in order to give effect to the constitutional directive to the government to regulate and monitor its use of official languages by means of legislative and other measures.


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1 There is no official Afrikaans title for the South African Languages Bill (SALB), since no Afrikaans version of the bill has been tabled, hence the use of the English title and abbreviation in the Afrikaans version of this article. Obviously, a South African language act thus also does not exist either. However, for the purposes of the discussion I provisionally used the name Suid-Afrikaanse Talewet, abbreviated SAT, in the Afrikaans version of this article.

2 There is no official Afrikaans title for the South African Languages Bill (SALB), since no Afrikaans version of the bill has been tabled, hence the use of the English title and abbreviation in the Afrikaans version of this article. Obviously, a South African language act thus also does not exist either. However, for the purposes of the discussion I provisionally used the name Suid-Afrikaanse Talewet, abbreviated SAT, in the Afrikaans version of this article.

3 In his ruling of 16 March 2010 the judge ultimately found that the adoption of a national language act was not a constitutional obligation. Nevertheless, he ordered the national government to regulate and monitor the use of the official languages by means of legislative and other measures (Lourens vs The President of the Republic of South Africa and others. Ruling 2010). The order obviously does not exclude the adoption of a national language act.

4 Chevrier’s (2003:146–8) assessment of the Quebec language legislation links up strongly with the last two factors.