Enter your keyword

The use of indigenous languages in the courts

The use of indigenous languages in the courts

The use of indigenous languages in the courts

When you are in a court in which the judge, the prosecutor, the accused, and the defence lawyer all speak isiXhosa, why should the proceedings be English? There are several answers to this, which are put forward in judgments and at the Judicial Service Commission, but they ring increasingly hollow.

The main argument is that the appeal record must be in a language which the appeal judges can read. The occasional lack of appeal judges who can speak Afrikaans, or the difficulty for appeal judges who don’t speak Afrikaans when they need to deal with an appeal in that language, is an issue which has been dealt with in the JSC. This certainly may have been a compelling argument regarding African languages 20 years ago, and perhaps even 10 years ago. However, given the work of the JSC in transforming the judiciary, there are many judges who are now able to deal with an appeal record in another language.

A second point made in the JSC by Judge President Hlophe is that the languages have not been developed sufficiently for use in court. Of course, waiting for such development may be a matter of waiting for Godot. Advocate Dali Mpofu suggested that we could be waiting forever if we waited for that. Languages that have been treated like hothouse flowers and developed at an unnaturally speedy pace, are French and Afrikaans. Those languages have had entire government departments attending to developing vernacular words for ‘television’ or ‘heteronormative’. However, is it necessary to develop such words? Can one not use the English where needed, or the even the German or whatever? If a witness starts talking about schadenfreude, it is not necessary to translate that.

A third problem may be in the transcription services available to the court. In S V Feni [2016 (2) SACR 581 (ECB)] the trial was run in isiXhosa, as no interpreter was available. The record then took two and a half years to wend its way to the registrar for an automatic review. This seems to have been a problem with transcription. This is an outsourced service and the requirement to be able to transcribe indigenous languages could well be one of the services required of the service provider.

In that decision by Judge Mbenenge he said, “It is quite plain that the government is still engaged in coordinating the process of elevating indigenous languages for use in courts. The process has not reached the stage where it could be said indigenous languages should be used in courts, even when the exigencies of a matter did not demand such use.”

If we accept that there may well not be enough judges who can deal with the vernacular, given the number of automatic reviews in criminal matters that the High Court has to deal with, would there be any other option? The one option is to translate appeals and reviews when the record is typed. Is that feasible in terms of costs and availability of translators?

However, with the transformation of the bench, there may well be the option of handing records in the vernacular to judges, without translation being needed. It may well be that we have reached a turning point on the costs of such an option, which needs to be considered.

What are your thoughts with regards to the use of indigenous languages in the courts? Share your opinion with us in the comments section below.

Comments (5)

  1. T. Mahlatsi
    Nov 21, 2017

    What are your views?

    I stand to be corrected, but let’s look at this from a constitutional perspective, the Republic of South Africa is founded on the values, amongst others the supremacy of the constitution and the rule of law and of course anything, inconsistent with it is invalid and its obligations must be imposed and fulfilled. [ Lol S v Makwanyane]

    The bill of rights is the cornerstone of Democracy as it enshrines the rights of all the people in our country and all organs of state must apply and promote.The question by Judge matters requires one to look at the following rights, Right to Equality (9), Access to the courts (34), Arrested, Detained and Accused persons (35) [LEVD and LCPR Students, revision time].

    When language is used in its non-official capacity it gives effect to the individual rights of litigants, accused and witnesses. That bears on their right of access to the courts. At least two constitutional rights, namely section 34 and 35(3), then find expression.

    Section 34 of the constitution provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. Does this justifies the fact failure for a trial or litigation to be conducted in a language understood by parties deprives the right to access to justice? [Adv. Bezuidenhout students clarity on access?]

    Section 35(3)(k) provides that every accused person has a right to a fair trial, which includes the right to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings
    interpreted into that language.

    The first argument in this article states that the appeal record must be in a language which the appeal judges can read, the question I am asking my self is, should not the appeal cases be JUDGE centered or do we take away the right to justice of parties to the interest of the judge?

    However, the question posed is somehow inconsistent. In an article by News24 dated 2017-09-29, Justice Mogoeng stated that English will be the only language of record in courts. Afriforum challenged the decision as they believed that the decision was one-sided and did not support the country’s multilingual nature.AfriForum said it lobbied for all the official languages, particularly Afrikaans The announcement by justice followed by this article shows the uncertainty of the of the former.

    The solution for this can only be at least making one indigenous language compulsory to substitute foreign languages like Latin and French in the Law curriculum or English ALONE should be used no any other language.

  2. Tshepang Mahlatsi
    Nov 21, 2017

    I stand to be corrected, but let’s look at this from a constitutional perspective, the Republic of South Africa is founded on the values, amongst others the supremacy of the constitution and the rule of law and of course anything, inconsistent with it is invalid and its obligations must be imposed and fulfilled.

    The bill of rights is the cornerstone of Democracy as it enshrines the rights of all the people in our country and all organs of state must apply and promote.The question by Judge matters requires one to look at the following rights, Right to Equality (9), Access to the courts (34), Arrested, Detained and Accused persons (35)

    When language is used in its non-official capacity it gives effect to the individual rights of litigants, accused and witnesses. That bears on their right of access to the courts. At least two constitutional rights, namely section 34 and 35(3), then find expression.

    Section 34 of the constitution provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. Does this justifies the fact failure for a trial or litigation to be conducted in a language understood by parties deprives the right to access to justice?

    Section 35(3)(k) provides that every accused person has a right to a fair trial, which includes the right to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings
    interpreted into that language.

    The first argument in this article states that the appeal record must be in a language which the appeal judges can read, the question I am asking my self is, should not the appeal cases be JUDGE centered or do we take away the right to justice of parties to the interest of the judge?

    However, the question posed is somehow inconsistent. In an article by News24 dated 2017-09-29, Justice Mogoeng stated that English will be the only language of record in courts. Afriforum challenged the decision as they believed that the decision was one-sided and did not support the country’s multilingual nature.AfriForum said it lobbied for all the official languages, particularly Afrikaans The announcement by justice followed by this article shows the uncertainty of the of the former.

    The solution for this can only be at least making one indigenous language compulsory to substitute foreign languages like Latin and French in the Law curriculum or English ALONE should be used no any other language.

  3. Terrence Marx
    Nov 23, 2017

    11 official languages in the courts has a delaying effect as was stated in the article about the Xhosa trial. If I were a judge, that record will have to be translated into English for me which would take another 2 years. The courts should settle on English as the official language purely because it is one of the universally languages spoken worldwide.

    One must not forget the sterling job done by court interpreters already in translating trials to English.

  4. T v Dyk
    Nov 27, 2017

    Does convenience for Judges trumps the multilinguism obligations in the constitution? I think not.

  5. Amish Gopie
    Dec 12, 2017

    As mentioned above English is a universal language. what i want to find out is why Europeans were so advanced as they spoke several languages, French, Italian, Spanish, Germans, Polish but lived in different countries where as non Europeans speak 15 to 100 languages in one country ….life will always baffle our minds!!!!

Post a Comment

Your email address will not be published.