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15 March 2023 | Story Prof Theodorus du Plessis | Photo Supplied
Prof Theodorus du Plessis is from the Department of South African Sign Language and Deaf Studies at the University of the Free State (UFS)

 

Opinion article by Prof Theodorus du Plessis, Department of South African Sign Language and Deaf Studies, University of the Free State.

The South African public initially had until 30 June 2022 to respond to the Constitution Eighteenth Amendment Bill, B1 – 2023, but the date was later moved to 25 February 2023. With this bill, the Minister of Justice and Constitutional Development intends to amend section 6 (1) of the constitution in such a way that South African Sign Language (SASL) is added to the list of 11 existing official languages. 

The intended amendment changes the current constitutional status of SASL from a language recognised (albeit by implication) in section 6(5) in terms of the Pan South African Language Board (PanSALB), to a language that is part of the state’s language mandate. The constitution specifically tasks PanSALB with the development and promotion of three language groups, namely the official languages, the non-Bantu indigenous click languages (in the constitution illogically mentioned as the “Khoi, Nama and San languages”) and “sign language” (note, not SASL in particular). The amendment therefore means that PanSALB’s language mandate is now limited to only two groups of languages: the official languages (with SASL as the 12th) and the mentioned click languages. The third group, which is represented by the generic term ‘sign language’, obviously falls away. 

Intended constitutional amendment significantly expands SASL’s status

Incidentally, PanSALB takes its mandate in relation to SASL seriously, as evidenced by the establishment of the SASL National Language Board in 2002 in terms of the Pan South African Language Board Act, 1995 (as amended in 1999) – this is in addition to similar language bodies for each of the official languages, the click languages, and the so-called heritage languages (Hindi, French, etc.). The SASL Charter published in 2020 – so far, the only language charter for any of the languages that form part of PanSALB’s language mandate – is another telling example.

It is otherwise noteworthy that the intended constitutional amendment now significantly expands SASL’s (still not by name) status – already recognised since 1996 – as the official language for the purpose of learning at a public school in terms of the South African Schools Act. This law talks about “a recognised sign language”. According to the Department of Basic Education's 2002 revised National Curriculum Statement for Home Language, PanSALB is responsible for such recognition. In principle and, of course, subject to the restrictions and conditions of articles 6(2)-6(4) of the constitution, SASL can now be used as a language of state administration in addition to the existing 11 official languages – this is in accordance with the Organisation for Economic Cooperation and Development's (OECD) definition of what an official language is and must do. 

The intended amendment also changes the exceptional status that SASL enjoys in terms of the Use of Official Languages Act, 2012 (UOLA); in fact, a status not enjoyed by the official languages. This act requires state entities to develop a language policy that must prescribe how official languages will be used to effectively communicate with the public; note – without being specific. Their policies must, however, also prescribe how effective communication will be with a member of the public who chooses SASL (this time by name) as their preferred language! UOLA therefore grants a right to a user of SASL that a user of an official language does not enjoy. In fact, UOLA goes even further by granting a similar right to a member of the public who prefers a non-official language as a preferred language, for example Portuguese or Swahili. The intended amendment to the constitutional status of SASL means that this outstanding privilege of SASL (and for that matter probably also of the unofficial languages) will have to be removed from UOLA. 

What shines through, is that SASL, in addition to the admittedly lesser form of constitutional recognition, already enjoys exceptional recognition in other legislation – legislation that we can classify as language legislation. One must, however, remember that many of the users of SASL are not only part of a linguistic minority, but as persons with a hearing impairment are also included in the community of persons with a disability. Legislation relating to this minority also gives recognition to SASL, albeit sometimes indirectly by referring to the rights of persons with hearing impairments.

Legislation relating to labour matters, such as the Equal Employment Act 2010, serves as a telling example of this. Regulations arising from the latter require, among other things, that an employer must provide an interpreting service to employees with a hearing impairment – this amounts to the ‘official’ use of SASL within the workplace, even if it is not the official language of the relevant institution. 

This immediately makes one wonder why it is necessary to make SASL the 12th official language? In his invitation to the public to comment on the proposed amendment to the legislation, the Minister of Justice presents several arguments as to why empowerment is essential. This entails that officialisation will lead to the cultural acceptance of SASL and of the relevant community, promote substantive equality, and prevent unfair discrimination on the basis of disability. Obvious arguments that have little to do with the typical functions of an official language are, for example, the language of laws and regulations, government records, official forms (for example in relation to birth registrations), written communication between and within government institutions, or the spoken language of government officials in the performance of their official duties. The Minister's arguments seem to be largely moralistic in nature and rather relate to the symbolic value of an official language and not to its functional value.

But the bigger problem is that the Minister's arguments seem to make a connection between the rights contained in the constitution's Bill of Rights and the country's official languages, which almost make the enjoyment of these rights subject to official language status. This is noted where he argues that the empowerment of SASL will have an effect on the realisation of the right to equality in article 9 of the Charter. This way of thinking is rather strange for two reasons – firstly, since two of the five subsections under this clause do not directly relate to language, and secondly, since the reference to language in section 9(3) (and through cross-reference in the two remaining articles) relate to a linguistic human right – this is a type of universal language right that a person enjoys regardless of the status of the person's language. The universal linguistic human right contained in article 9 is that the state may not unfairly discriminate against anyone on one or more grounds, including culture and language. Markedly, this provision refers neither to a citizen nor to an official language, which implies that any person with a hearing impairment already enjoys the relevant language right regardless of whether SASL is an official language or not. 

In fact, the only linguistic human right of the Charter that is indeed linked to an official language, is your right to education in an official language(s) of your choice as contained in article 29. Wisely, legislature already made it possible in 1996 for a person with a hearing impairment to also enjoy this linguistic human right. The rest of the linguistic human rights contained in the Charter do not relate to official languages, namely the right to use your language of choice in non-official language domains (section 30), the right not to restrict the use of your language within the community in which you participate (section 31), the right to be tried in the language that an accused person understands or to have the proceedings interpreted in such a language (section 35), the right to receive information regarding arrest and detention in a language that an accused person understands (also article 35), and the right to self-determination by a community that shares a common language (article 235). Therefore, a person with a hearing impairment who prefers SASL as their preferred language, just like a hearing person who prefers a spoken language as their preferred language, already has a claim to all these linguistic human rights, even if that language is not recognised as an official language. 

Officialising SASL will have no significant effect on any linguistic human rights

In short, officialising SASL will in principle have no significant effect on any of the linguistic human rights in the Bill of Rights, because persons with hearing impairment already enjoy these rights. If the Minister is of the opinion that they do not enjoy these rights and he therefore wants to make a constitutional amendment, this means – strictly speaking – that there is a systemic problem somewhere that should be investigated. Put simply, what is needed is not necessarily additional legal intervention but rather law enforcement. What is needed is for the state to make it possible for persons with hearing impairments to enjoy their linguistic human rights. More implementation – not more legislation – is what is needed now. 

What we learn from this case, is that there are misplaced expectations about what an official language can or should mean to you as a person. A first lesson is that all persons enjoy the same linguistic human rights and that these rights, except for education, are not linked to official languages. A second lesson is that if your language is indeed an official language, you have very few claims to specific language rights in this language, simply because of the legal restrictions that the state does not necessarily háve to use more than three official languages. At most, you can only hope that you will at least be able to get along more or less with one of the three chosen languages at any given time. A third lesson is that because of its exceptional status, SASL is not subject to this restriction and that users of SASL therefore have a right to language choice in terms of interaction with the state, which speakers of the official languages do not enjoy. A fourth lesson is that, for the sake of fairness, SASL will have to give up this status as soon as the language becomes official, which will actually disadvantage this minority.

Why is it unnecessary to make SASL an official language?

So, why is it unnecessary to make SASL an official language? Within the current dispensation, this will merely grant symbolic recognition to the language, which will not necessarily grant more rights to persons with hearing impairment than they currently already enjoy. Apart from their claim to exactly the same linguistic human rights as hearing people, persons who choose SASL as their preferred language enjoy the exceptional right that state entities must respect this choice, a right that hearing citizens do not enjoy. Instead of creating false expectations about the implications of the officialisation of SASL among the hearing-impaired community, the state should instead make this community aware of the rights that they already enjoy in terms of existing legislation and, above all, fulfil its duty towards this community by ensuring that these rights are realisable. One's fear is that the obsession with the officialisation of SASL will end up being just another smokescreen for neglect of duty by the state. 

News Archive

Open letter from Prof Jonathan Jansen to all UFS students
2014-02-22

Dear Students of the University of the Free State

In the past four years there has emerged a new consensus on the three campuses of the University of the Free State (UFS) about the things that divide us – such as racism, sexism and homophobia. Students and campus leaders have worked hard to develop this new consensus in residences and in the open spaces on campus. There can be no doubt that new bonds of friendship have developed across the markers of race, ethnicity, class, religion and sexual orientation. I bear witness to these new solidarities every day on the campus.

You chose a white student to head up the transformation portfolio on the SRC. You chose a black captain to head up the university’s first team in rugby. You chose a white “prime” as head of residence to lead a predominantly black men’s residence. You chose a South African woman of Indian descent as Rag Queen and last week, a black student from Cape Town as the men’s Rag winner—choices not possible and never made before in our campus history. Many of you have intimate friends who come from different social or cultural or religious backgrounds. You learn together, share rooms together, pray together and party together. In other words, in the day to day workings of this university campus, you have demonstrated to campus, city and country that we can overcome the lingering effects of racism and other maladies in this new generation. You have helped create a university community inclusive of people of diverse religions, abilities, class and sexual orientation.

I have said this repeatedly that from time to time this new consensus will be tested – when a minority of students, and they are a small and dwindling minority, still act as if these are the days of apartheid. And when that consensus is tested as it was this week, and as it will be tested in the future, only then we will be able to assess the strength and durability of our progress in creating a new South African campus culture of human togetherness based on respect, dignity and embrace.

The real test of our leadership, including student leadership, is how we respond when our transformation drive is threatened.

Let me say this: I have absolute faith in you, as students of this great university, to stand together in your condemnation of these vile acts of violence and to move together in your determination to maintain the momentum for the Human Project of the University of the Free State. We have come too far to allow a few criminals to derail what you have built together in recent years.

There will, no doubt, be unscrupulous people on all sides of the political spectrum wanting to milk this tragedy for their own narrow purposes. There will be false information, rumours and exaggerations by those who wish to inflame a bad situation to gain mileage for their agendas. That is inevitable in a country that is still so divided.

I ask you, through all of this, to keep perspective. Two or ten or even twenty students behaving badly do not represent 30,000 students; a minority of violent and hateful persons do not represent the ideals, ambitions and commitments of the majority. At the same time, let us be realistic – anyone who thinks you can drive transformation without resistance clearly does not understand the difficult process of change.

The events of the week remind us, however, that we still have a long road to walk in deepening social and academic transformation at our university. Yes, we have invested hundreds of hours in training and mentorship; we have created new structures – such as the Institute for Reconciliation and Social Justice – to capture the energy and imagination of students driving transformation; we have created many opportunities for students to study and travel on this and other continents to enable cross-cultural learning; we have established formal and informal opportunities to dialogue about difficult issues on and off campus between students and their leaders; and we crafted new curricula to enable teaching and learning on the big questions of our times.

But this is clearly not enough, and so I have decided on the following immediate next steps:
  1. We will meet for several hours next week to think about how we can deepen the transformation of our university after this terrible incident.

  2. We will arrange a University Assembly on the events of the past week so that we speak with one voice on human wrongs and to re-commit to human rights and we will continue with open forum discussions during the months to come.

  3. We will review the entire spectrum of programmes, from orientation to residence life to the undergraduate curriculum, to determine how effective our interventions really are in reaching all students with respect to basic issues of human rights.

  4. We will review our media and communications strategy to determine how far and deep our messages on human rights travel across all sectors of the university community. In this regard it is important that the campus be blanketed on a regular basis with our condemnation of human wrongs and our commitment to human rights.

  5. We will commission the Institute for Reconciliation and Social Justice to review the events of the past week and make recommendations on how we can improve the campus environment so that all students are protected from harm inside residences, classrooms and in open spaces of the campus.

  6. We will take the questions raised during this week into the academic community and to the general staff of the university so that all personnel also engage with our own roles and responsibilities with respect to campus transformations.

  7. We undertake to make annual report-backs on transformation to all stakeholders in public forums so that students and staff and external communities can track the progress of the university on matters of human rights on campus.

I wish to thank my staff for acting firmly as soon as this tragic event came to our attention. We worked through the night to find and identify the perpetrators. We traced the two students and immediately handed them to the police. They were expelled. And throughout this process we offered counselling and support to the victim of this violent act.

The two former students were expelled and will now face justice in the criminal courts. It is hoped that in the course of time they will come to their senses and seek restoration and reconciliation with the student they so callously harmed. They are not part of the university community anymore.

That is the kind of university we are.

Jonathan D Jansen
Vice-Chancellor and Rector
University of the Free State
20 February 2014

 
Note: The use of the word ‘campus’ refers to all three campuses of the UFS, namely the Bloemfontein Campus, South Campus and Qwaqwa Campus.

 

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