Address by the Public Protector, Adv. Busisiwe Mkhwebane, during the commemoration of Human Rights Month at Mngqesha Great Place in the Eastern Cape.
Programme Directors, Mr. Aubrey Mdazana and Nkosi Toyise
Her Majesty, the Queen; Noloyiso Sandile;
Representatives of fellow Chapter Nine institutions;
A special greeting to the Human Rights Commission, which organized this event;
The Public Protector Team;
Members of the media;
Ladies and gentlemen;
We are here to commemorate Human Rights Month. As you know, March 21 is an important day in the calendar of South Africa. It is a day on which we remember the multitudes of anti-pass laws protesters who were mowed down by apartheid police 59 years ago in what is known as the Sharpville Massacre. About 69 people were killed and a further 180 injured on that day.
This month, we join the rest of the country to remember those who lost their lives and to say to them that their efforts were not in vain. We thank them for, through their sacrifices, here we are enjoying a constitutional democratic dispensation.
In honour of all those who fought for the liberation of the oppressed during apartheid and the rights we enjoy today, the democratic dispensation took a decision to declare March 21 Human Rights Day.
This particular commemoration focuses on one of the fundamental rights that we enjoy today; that is the right to use the language of our choice.
It was the late former President, Nelson Mandela, who once said that when you speak to the next person in a language other than theirs, the message goes to their heads. Only when you conversed with them in their mother tongue, he said, the message goes straight to their hearts.
He was right. Language is a very important tool for communication, for understanding and for relations between us as people. But it is much more than that. It is a means of identity, heritage and the cornerstone of our culture, customs and traditions. This is why languages ought to be preserved.
This is why when our sister Chapter Nine institution, the South African Human Rights Commission extended an invite to my office to form part of this commemoration, I did not even think twice. Communicating with people in their mother tongue is very close to my heart and forms the core of my vision for the institution. I will touch on this later on.
This Human Rights Month commemoration is aptly themed: “The Year of Indigenous Languages: Promoting and Respecting a Human Rights Culture”. This is important because, here in South Africa, language is a human rights matter. I will come back to this point, too, later on.
The theme is in line with the United Nations’ call from as far back as December 2016 for this year, 2019, to be declared the International Year of Indigenous Languages. The nations of the world as Represented in the UN General Assembly made this call in recognition of the risk of extinction as faced by a number of indigenous languages across the globe.
According to the UN, there are 7 000 languages spoken and 370 million indigenous people worldwide. There are 90 countries with indigenous communities, 5000 different indigenous cultures. But the most disturbing statistic is that as much as 2 608 languages are in danger of extinction. This reality has forced world leaders to act and declare this year The Year of Indigenous Languages. The aim is to raise awareness about the danger of losing these languages.
As I said earlier, the issue of language is a Human Rights matter here in South Africa. The Bill of Rights enshrines the right for each of us to use our languages without being discriminated against. The Constitution, under the Right to Equality, provides that:
“9(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
“9(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
“9(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”
The right to language and culture is protected under section 30, where the Constitution provides that: “Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision in the Bill of Rights”.
Further, section 31 (1) and (2), which focus on the rights of cultural, religious and linguistic communities, provides that:
“(1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of the community-
a) to enjoy their culture, practice their religion and use their language; and
b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society
“(2) The rights in in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.”
And, of course, you have section 181, 184 and 185, which establish the South African Human Rights Commission and the Commission on the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, and bestow powers to these institutions to deal with any violations of these fundamental rights.
It is also as a result of these constitutional provisions that we have the Pan South African Language Board also known as PanSALB.
Last year I toured the country as part of my annual stakeholder dialogue, through which I seek to maintain relations with stakeholders with a view to seeing to it that we sing from the same hymn book.
One of the things I had to do in each province was visit institutions of higher learning to dialogue with students. Among the issues that came up at least two of those institutions in as many provinces, was allegations of discrimination on the basis of language. We resolved to join forces with the South African Human Rights Commission to get to the bottom of those complaints.
A few years ago, my office dealt with dealt with a complaint in the Western Cape’s Matzikama Local Municipality. An IsiXhosa-speaking resident complained that the municipality had failed to develop a language policy that took into account the interests of IsiXhosa and English-speaking residents.
The complainant also alleged that the municipality had effectively maintained a unilingual approach in that is consistently communicated exclusively in Afrikaans to the detriment of the other two official languages.
The investigation revealed that the municipality had not developed a language policy despite the obvious need to. It was further revealed that the municipality failed for years to address the situation in relation to equitable use of language. As a result, minority linguistic communities felt marginalized.
The municipality was directed to take urgent steps to diversify its communication to include all three official languages; develop a comprehensive language policy after consulting PanSALB and residents; and ensure that its staff complement is made up of people who are proficient to serve in Afrikaans, IsiXhosa and English. It was also directed to ensure that all official languages in the province enjoy parity of esteem and must be treated equitably.
This begs the question: when and how do we as the Public Protector get involved in such issues?
Along with the SAHRC and CRL Commission, the Public Protector is established in terms of section 181 of the Constitution, which provides that:
"1. The following state institutions strengthen constitutional democracy in the Republic:
a. The Public Protector.
b. The South African Human Rights Commission.
c. The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.
d. The Commission for Gender Equality.
e. The Auditor-General.
f. The Electoral Commission.
2. These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.
3. Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.
4. No person or organ of state may interfere with the functioning of these institutions.
5. These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year."
Taking a closer look at the Public Protector, Section 182 provides that:
“(1) The Public Protector has the power, as regulated by national legislation –
(a) To investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
(b) To report on that conduct; and
(c) To take appropriate remedial action
(2) The Public Protector has the additional powers and functions prescribed by national legislation.
(3) The Public Protector may not investigate court decisions.
(4) The Public Protector must be accessible to all persons and communities.
(5) Any report issued by the Public Protector must be open to the public unless exceptional circumstances, to be determined in terms of national legislation, require that a report be kept confidential.”
In line with the provision for additional powers and functions “prescribed by national legislation” as envisaged in 182(2), the Public Protector also has:
a) The power, in terms of the Public Protector Act, to investigate, conciliate, mediate, negotiate, advise or do anything necessary to resolve disputes and rectify maladministration in state affairs and related matters, including abuse of power, abuse of state resources, unethical conduct and corruption on own initiative or complaints;
b) The power to investigate and report on violations of the Executive Ethics Code under the Executive Members' Ethics Act;
c) The power to investigate allegations of corrupt activities as envisaged under the Prevention and Combating of Corrupt Activities Act;
d) The power to receive protected disclosures and serve as a safe haven for whistleblowers under the Protected Disclosures Act; and
e) The power to review the decisions of the National Home Builders Registration Council under the National Protection of Housing Measures Act.
In addition to the Constitution and these pieces of legislation, the Constitutional Court has said the following about the Public Protector:
“The Public Protector is … one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance.
“The tentacles of poverty run far, wide and deep in our nation. Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average citizen. For this reason, the fathers and mothers of our Constitution conceived of a way to give even to the poor and marginalised a voice, and teeth that would bite corruption and abuse excruciatingly.
“And that is the Public Protector. She is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath that impropriety and corruption by government officials are.”
Coming into office, two and a half years ago, and buoyed by this judgment, I vowed to go out of my way to see to it that the services of this office reach the grassroots. This, I said I will achieve through the 8-pillared Vision 2023. Those pillars are:
(1) Enhancing access to the services of the Public Protector;
(2) Using vernacular to improve our communication with the targeted audience;
(3) Expanding our footprint to be closer to the targeted communities;
(4) Leveraging stakeholder relations and formalizing those relationships in signed agreements;
(5) Empowering people to understand their rights and entitlements;
(6) Projecting an image of a safe haven for the poor and destitute;
(7) Encouraging organs of state to establish effective internal complaints resolution units; and
(8) Ultimately turning communities into being their own liberators.
To comply with the second pillar on the use of indigenous languages in our interactions with communities, we do a lot of things. First, all our Outreach Officers, whose duty it is to educate the public about our mandate and role, must speak the languages that are predominantly spoken in the areas they operate in.
Second, they must secure periodical slots on community radio, which use local languages, to spread the word about the Public Protector. They also distribute information brochures and newsletters, which are packaged in all 11 official languages. The brochures also come in braille and audio. This is the little we do to communicate to the public in their own languages.
Government, which we exist to hold to account, is required by law to also provide information to you as members of the public in the languages you understand. In the event, they discriminate against you must approach the SAHRC or the CRL Commission. If there is an aspect of maladministration to the issue as was the case in the Matzikama Local Municipality matter and is the case in the Universities we visited last year, we could also get involved.
I have a team of officials here who will share with you information pamphlets and newsletters that you can read at your own convenience to understand better what my office can do to help you and your community. In the newsletter, you will see real stories of the people we have helped.
Although we have only two offices in this province – in Bhisho and Mthatha, we are accessible through the internet on www.pprotect.org. Those of you who are on social media can access us on Twitter, Facebook and YouTube. We also run a mobile service through the Public Protector Outreach Clinics. You may also send us an email on email@example.com.
Make use of these but always remember to exhaust all other available remedies first and escalate to us as a complaints body of last resort. This will free our hands to deal with more systemic issues and also take up issues on own-initiative.
Let us use and be proud of our languages, our heritage and our culture. Let us converse and write more in these languages. Those are some of the ways in which we can preserve them and prevent them from being wiped out.
Adv. Busisiwe Mkhwebane
Public Protector of South Africa