C.L. v. South Africa

The author of the communication is C.L., a national of South Africa born in 1961. The author claims that the State party has failed to comply with its obligations under articles 2, 14, 26 and 27 of the Covenant by not taking the necessary legislative and other measures for the translation of national legislation into all the official languages of the State party. The Optional Protocol entered into force for the State party on 28 November 2002. The author is not represented by counsel.

The author claims that the State party’s failure to take necessary legislative and other measures for the translation of national legislation into all official languages enumerated in section 6 (1) of the Constitution of South Africa amounts to a violation of articles 2, 14, 26 and 27 of the Covenant. He also claims that, by allowing an arbitrary and selective legislative language practice, the State party is discriminating against non-English language communities, such as the Afrikaans language community, of which the author is a member. He further claims that said discrimination is not based on reasonable and objective criteria and does not aim at achieving a purpose that is legitimate under the Covenant.

The author claims that the State party has failed to comply with its obligations under article 2 (1) and (2) of the Covenant by failing to: (a) provide for the translation of national legislation in all official languages; and (b) demonstrate that its practice regarding the translation of national legislation is necessary and proportionate to the pursuit of a legitimate aim.

The author claims that the arbitrary and selective approach used by the State party regarding the translation of national legislation amounts to discrimination on the basis of language in violation of article 26 of the Covenant.

The author notes that he is a lawyer and has a large Afrikaans-speaking client base. He claims that the State party’s refusal to translate legislation interferes with and restricts his professional ability to effectively represent some of his clients before the courts, because he is forced to use the English version of legislation and is therefore discriminated against on the basis of language, resulting in a violation of article 14 of the Covenant. Furthermore, he claims that his clients are placed in a disadvantaged position because they are prevented from reading legislation in any language other than English.

The author claims that the arbitrary and discriminatory translation practice of the State party has unjustifiably restricted or prevented the maintenance and further development of the official status of Afrikaans, which he claims constitutes a violation of article 27 of the Covenant.

The author claims that the State party has failed to provide an effective remedy to address the language discrimination and implement measures to avoid continuing violations of the language rights of the author in violation of article 2 (3) of the Covenant.

The author requests the Committee to direct the State party to comply with its obligations under the Covenant through the adoption of effective legislative and other measures that will ensure the expeditious translation of all new national legislation in all official languages within five years of its enactment and to prioritize past general core legislation with a view to having such legislation translated into all official languages within a period of five years.

On 19 December 2018, the State party submitted its observations on admissibility and the merits of the communication. It notes that, in his complaint, the author has referred to a number of proceedings before the domestic courts, but it argues that he has not referred to all relevant findings of said proceedings. The State party refers to the judgment of the Equality Court of 17 September 2014⁴ and it notes that the Court specifically ruled that, even though it may be accepted (or “assumed”), without deciding in favour of the complainant, that the non-publication of national legislation in all official languages did indeed amount to discrimination on a prohibited ground, as contemplated by section 13 (2) (a) of the Promotion of Equality and Prevention of Unfair Discrimination Act, the fundamental question was whether the State party had discharged the onus of proving that such discrimination was fair.⁵ The State party also notes that the Equality Court consequently found that “the inevitable conclusion is that, to the extent that the practice of publishing national legislation in only two official languages may be discriminatory, such discrimination is fair”.⁶ The State party further notes that that judgment was upheld on appeal, and it argues that, being a citizen of the State party, the author is bound by said judgments.

4. Equality Court of Cape Town, L. v. Speaker of the National Assembly and others, Case No. EC08/12, Judgment, 17 September 2014. ↩
5. Ibid., para. 27. ↩
6. Ibid., para. 29. In its judgment, the Equality Court concluded that there was no constitutional or statutory duty to publish all national legislation in all official languages, nor to translate all national legislation into all official languages. It noted that the Constitution permits the use by the national and provincial governments of any particular official languages for the purpose of government, provided that they use at least two official languages. It concluded that, to the extent that publication of legislation in only two official languages may be discriminatory, such discrimination was fair as contemplated by section 13 (2) (b) (ii) of the Promotion of Equality and Prevention of Unfair Discrimination Act. ↩

The State party notes that the author’s argument that section 6 of the Constitution requires that the authorities of the State party publish all national legislation in all the official languages of the State party is an incorrect interpretation of the section in question. It also notes that, as confirmed by the national courts in domestic proceedings, section 6 (3) (a) of the Constitution only provides that the national Government and each provincial government must use at least two official languages. The State party further notes that section 4 of the Use of Official Languages Act provides that every national department must adopt a language policy and identify three official languages that it will use for government purposes. It notes that that Act goes further than the Constitution but, again, does not require the use of all official languages.

Regarding the author’s claims under articles 2 and 26 of the Covenant, the State party affirms that a wide range of provisions in the Constitution provide for non-discrimination and equality and are supported further by an array of legislation providing, in greater detail, the normative and institutional framework for the protection of this right in the State party. It notes that jurisprudence in the State party on non-discrimination and equality makes a distinction between fair discrimination and unfair discrimination. Only the latter is prohibited. Unfair discrimination is held to have an unfair impact that impairs to a significant extent the fundamental dignity of a complainant, namely, discrimination based on one of the grounds listed in section 9 of the Constitution, which includes race, gender, sex, ethnic or social origin, sexual orientation, disability, religion, culture and language. If a discriminatory law or action is designed to achieve a worthy and important societal goal, it may make fair what would otherwise be unfair.⁷ The State party argues that insofar as the author submits that the State party has unfairly discriminated against him – and the users of the other languages – such an argument goes beyond the final and definitive judgments of the highest courts of South Africa.

7. The State party refers to the judgments of the Constitutional Court in: Harksen v. Lane No and others, Case No. CCT 9/97, Judgment, 7 October 1997; S v. Ntuli, Case No. CCT 17/95, Judgment, 8 December 1995; and President of the Republic of South Africa and another v. Hugo, Case No. 11/96, Judgment, 18 April 1997. ↩

The State party notes the author’s claims under article 14 and argues that nothing prevents him from engaging court-appointed interpreters to assist during his consultations. Moreover, it argues that the fact that not all legislative acts are translated into Afrikaans does not amount to unfair discrimination under domestic law. The State party also notes the author’s claims under article 27 of the Covenant and it reiterates its submission that, under applicable domestic law, there is no requirement to translate all legislative acts into all official languages.⁸

8. The State party refers to: Supreme Court of Appeal, L. v. Speaker of the National Assembly of Parliament and others, Case No. 20827/2014, Judgment, 10 March 2016, in which the Court noted that: “On the contrary – the Constitution itself requires that acts of government, including the passing of acts of Parliament, be conducted in only two of the official languages. Thus the Constitution itself would be guilty of unfair discrimination on [the appellant’s] argument, which is plainly absurd.” ↩

On 31 January 2019, the author submitted his comments on the State party’s observations. He notes the submission of the State party in which it affirmed that, as a citizen of the State party, he is bound by the decisions delivered by its courts. He also notes that that argument would make the State party’s ratification of the Optional Protocol devoid of any meaning. He further notes the State party’s argument that, under applicable domestic law, there is no requirement to translate all legislative acts into all official languages. He argues that the granting of official status to the 11 languages listed in the Constitution causes their use by State authorities to be compulsory, and he reiterates his argument that the translation practice in relation to national legislation adopted by the State party constitutes unfair discrimination on the basis of language. He argues that the State party in its observations has failed to respond to the central issue of his complaint, namely that its translation practices are arbitrary and selective and lead to discriminatory consequences in violation of its obligations under the Covenant.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol to the Covenant.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the author’s claim that he has exhausted all effective domestic remedies available to him. In the absence of any objection by the State party in that connection, the Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.

The Committee notes the author’s claims that the State party’s failure to take the necessary legislative and other measures for the translation and publication of national legislation in all official languages amounts to a violation of articles 2, 14, 26 and 27 of the Covenant. It understands the author’s claims under article 2 to be raised in conjunction with his claims under articles 14, 26 and 27 of the Covenant.

The Committee notes the author’s claim that the State party’s failure to translate domestic legislation interferes with and restricts his professional ability to effectively represent some of his clients before domestic courts, in violation of article 14 of the Covenant. The Committee also notes his claim that the State party has violated his rights under article 26 of the Covenant by failing to provide for the translation of national legislation into all official languages of the State party, as well as his claim that the alleged arbitrary and discriminatory translation practice of the State party has unjustifiably restricted or prevented the maintenance and further development of the official status of Afrikaans, in violation of article 27 of the Covenant. The Committee further notes, however, that, although the author has provided general information in support of his claims, he has not provided any specific information or argumentation to substantiate said claims. He has not provided any specific information either as to how he or his clients have been personally adversely affected by the alleged failure of the State party to translate national legislation. In the absence of such information, the Committee therefore finds his claims under articles 14, 26 and 27, read alone and in conjunction with article 2, of the Covenant inadmissible for lack of sufficient substantiation under article 2 of the Optional Protocol.⁹

9. See, for example, Tatyana v. Poland (CCPR/C/101/D/1517/2006 and CCPR/C/101/D/1517/2006/Corr.1), paras. 6.4, 6.5 and 9.6. ↩

The Committee therefore decides: (a) That the communication is inadmissible under article 2 of the Optional Protocol;