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.