South Africa: Possible infringement of language rights: OPINION

Tue Jan 30 12:55:23 UTC 2007

Ex Parte:Centre For Constitutional Rights - Possible infringement of
language rights: Members of SAPS, Western Cape January 29

O P I N I O N

W.G. BURGER S.C.
S.A. JORDAAN S.C.
CHAMBERS
CAPE TOWN
13 SEPTEMBER 2006

1. We have been briefed by the Centre for Constitutional Rights to give an
opinion regarding the possible infringement of the language rights of
Afrikaans speaking members of the Police Service in the Western Cape.

2. The Provincial Commissioner of the Western Cape and the Area
Commissioner of the Boland area have laid down a language policy to be
followed by all members of the police service in the Western Cape. We
shall refer to this as the provincial policy. The provincial policy, in
short, amounts to the obligatory use of English, to the exclusion of
Afrikaans, in all types of internal communication. This raises two
questions. The first, more limited, question is whether such a policy is
invalid because it is inconsistent with the current national language
policy laid down by the National Commissioner in Standing Order 201 of
1994 and confirmed in a circular dated 18 September 2003. The second, more
general, question is whether the provincial policy laid down for the
Western Cape infringes the constitutional language rights of individual
Afrikaans speaking members of the police service.
3. We consider first the possible conflict with Standing Order 201. The
relevant part of the Standing Order reads as follows:

201.2. English and/or Afrikaans shall be used for communication within the
SA Police whenever efficient communication might be jeopardized because of
the lack of proficiency of any person concerned in any other official
language.
 SO 201.1. replaced by FO(G) 9/1994

201.3 Whenever a written submission or any other document is received
which demands further reporting, the further reporting shall be in the
same official language as that used in the original document, unless this
would jeopardize efficient communication, in which case it shall be either
in English or Afrikaans.
SO 201.3. replaced by FO(G) 9/1994

The circular dated 18 September 2003 says the following in paragraph 6.1
(with underlining by us):

6.1. All interim arrangements with regard to language policy and language
use that deviate from Standing Order (General) 201 must be revoked
immediately. This includes the use of English as the only medium of
communication in instances where such a approach is not effective. SO(G)
201, which applies at present must be complied with until the new language
policy comes into operation. Problems in complying with SO(G) 201 and any
deviations from SO(G) 201 must be reported in writing to the SAPS Language
Planner, Snr Supt (Dr) Calteaux at calteauxk at spas.org.za, or facsimile
(012) 393-5002/5425. She will help clarify the present language policy and
provide assistance in finding workable solutions to language  challenges.

4. The passages quoted above make it clear that the object is to have
effective communication and that the choice of one or other language in
any given situation must depend on the need for effective communication.
In terms of this policy there can be no absolute prohibition on the use of
one or other language or, to put it the other way round, an obligation to
use only one particular language in all situations is expressly ruled out.

5. It is against this background that we have to consider the provincial
policy that has been laid down for the Western Cape and Boland. This
policy has been developed in a number of circulars. For ease of reference,
and in order not to burden this opinion with numerous quotations, we annex
these circulars as listed below in chronological order:

A. Circular from the Provincial Commissioner : Western Cape dated 14
August 2001;

B. Circular from the Deputy Provincial Commissioner : Western Cape dated
25 August 2003;

C. Circular from the Provincial Commissioner : Western Cape dated 20
October 2003;

D. Circular from the Assistant Area Commissioner : Boland dated 2 January
2004;

E. Circular from the Provincial Commander : Rapid Response dated 30 August
2004;

F. Circular from the Deputy Area Commissioner : Boland dated 22 November
2004;

G. Circular from the Area Commissioner : Boland dated 4 January 2005;

H. Circular from the Area Commissioner : Boland dated 17 January 2005;

I. E-mail from the Deputy Area Commissioner : Boland dated 11 August 2006.

 PLEASE NOTE: These annexures are available on request. Please contact the
CFCR if you want to read these documents.

6. The striking feature of each of the annexures is that they all require
the use of English, to the total exclusion of Afrikaans, in the situations
referred to in the annexures. The gist of these instructions can be
summarised. Only English, and not Afrikaans, is to be used in the
following situations:

Annexures A, B and C: all correspondence directed to the office of the
Deputy Provincial Com-missioner; all circulars for general information;
all press releases.
 (An Afrikaans translation may accom-pany the English original)

Annexure D: training of student constables.

Annexure E: all communication by radio.
 (Use of Afrikaans explicitly forbidden in all circumstances even between
Afrikaans speaking members).

Annexure F: all correspondence.

Annexure G: CSC registers.

Annexure H: reaffirms all the above and now (for the first time) threatens
disciplinary measures if the policy is not adhered to.

Annexure I: all official registers. Anyone using Afrikaans is to be
disciplined.

7. This provincial policy is obviously in clear conflict with Standing
Order 201, read with the circular of 18 September 2003, which have
expressly laid down that the exclusive use of English is to be
discontinued and that the use of a particular language is to depend on the
circumstances of each case. The consequence of such a conflict is that
Standing Order 201 prevails over the provincial policy. Section 26 of the
South African Police Service Act (No. 68 of 1995) provides:

26. (1) Provincial Commissioners may issue orders and instructions which
are not inconsistent with this Act or the National Orders and
Instruc-tions.

 .
 (3) If any Provincial Order or Instruction is inconsistent with a
National Order or Instruc-tion, the National Order or Instruction shall
prevail.

8. The provincial and area commanders are of course well aware of Standing
Order 201. In Annexure C of 20 October 2003 the surprising statement is
made that the provincial policy as laid down in annexures A, B and C is
not in conflict with Standing Order 201. To say that this statement is
surprising is putting it mildly. The conflict is glaring.

9. On the first question then, our conclusion is inevitable that the
provincial policy which insists on the use of English in all circumstances
is invalid, that Standing Order 201 prevails and that the use of one or
other language is therefore to be regulated according to Standing Order
201.

10. As regards the second question, the relevant sections of the
Constitution have the following provisions regarding language rights:

9. (1) ..

(2) ..

(3) The State may not unfairly discriminate directly or indirectly against
anyone on one or more grounds including  language ;

(4) No person may unfairly discriminate directly 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;.

30. Everyone has the right to use the language and to participate in the
culture of their choice, but no one exercising these rights may do so in a
manner incon-sistent with any provisions of the Bill of Rights.

11. The position under the Constitution is therefore that the authori-ties
may discriminate against the use of one or other language, provided the
discrimination is fair and the onus of justifying such discrimination
rests on the authority concerned. Applying this criterion to the use of
language by the police, it can safely be assumed that literary or cultural
values are of minor importance and that effective communication is the
prime objective. Com-munication between the public and the police and
between members of the police force must be as accurate, effective and
mutually comprehensible as possible.
>>From this it follows that the provincial policy of forbidding the use of
Afrikaans could only be justified constitutionally if it could be shown
that the exclusive use of English will enhance the overall effectiveness
of communication to such an extent as to render the suppression of
Afrikaans fair. It therefore becomes necessary to consider the
circumstances surrounding the formulation and imposition of the provincial
policy.

12. A perusal of Annexures A to I shows that the only rationale that is
offered for the provincial policy is enunciated in Annexures E and H. It
is said that Xhosa speaking members of the force are not proficient in
Afrikaans and that English would thus be the better medium of
communication. Accepting this to be sound in communications involving
Xhosa speaking members, we cannot accept this also to be the case in
communications between Afrikaans speaking members. It can also not be
relevant for written correspondence directed to the administrative
head-quarters (Annexures A, B, C and F) or the training of constables
(Annexure D). In other words, what may be suitable in a particular case
cannot be simply expanded to cover all cases.

13. The rationale for the exclusion of Afrikaans could be more persuasive
if a majority of the police in the Western Cape and Boland were Xhosas.
The evidence at our disposal however suggests otherwise. We have been
briefed with a summary of an internal climate poll conducted by the
auditors firm KPMG among all members of the Western Cape police force in
early 2003. The object of the poll was to test the effect of the
organisational environment on the daily work, function, perfor-mance and
welfare of police personnel. According to the summary 44% of the members
responded to the questionnaire. Of the respondents 48% were white, 42%
coloured and 9% black. For 76% the home language was Afrikaans, 13%
English and 8% Xhosa. In response to a question which language the
respondents preferred to use at work, 73% preferred Afrikaans, 21%
English, 4% Afrikaans and English and only 1% Xhosa. On the basis of these
data it is difficult if not impossible to conceive that the total
suppression of the use of Afrikaans could be constitutionally fair by
promoting effective communication. In-deed, the provincial policy appears
to be so irrational as to suggest that the true intention is simply to
suppress the use of Afrikaans.

14. A full and authoritative decision on the constitutional aspect would
require a consideration of more comprehensive data than those contained in
KPMGs summary, but on the facts available to us we are of the view that
the provincial policy is an uncon-stitutional violation of the language
rights of the Afrikaans speak-ing members of the Western Cape police
force.
 ________________
 W.G. BURGER S.C.
 ________________
 S.A JORDAAN S.C.
CHAMBERS
CAPE TOWN
13 SEPTEMBER 2006

http://www.cfcr.org.za/?p=153

***********************************************************************************

N.b.: Listing on the lgpolicy-list is merely intended as a service to its members
and implies neither approval, confirmation nor agreement by the owner or sponsor of
the list as to the veracity of a message's contents. Members who disagree with a
message are encouraged to post a rebuttal.

***********************************************************************************