Language Policy in the SA Judicial System

[Harold F. Schiffman]

Let Wind of Reform Howl Through SA's Jaded Courts

Business Day (Johannesburg)
OPINION
April 19, 2005
Posted to the web April 19, 2005

By Jacob Dlamini
Johannesburg

I WAS trained as a journalist when court reporting was still considered a
rite of passage for anyone starting out in the profession. You had to know
the different courts and the fascinating characters who populate our court
system.  There were the tedious high court judges you always had to strain
to hear speak, the pompous magistrates who seemed to delight in impressing
the accused with Latin phrases, the bigoted court officials who would
always give you the run-around, and the officious orderlies who would let
you borrow the docket in return for a newspaper.

Then there were the eccentric journalists and interpreters who provided
most of the colour and drama in court. You had to know them all. But it
was not all fun and games. There were the magistrates who could not hide
their contempt for the (mostly) poor men and women who appeared regularly
before them.  My favourite was a Johannesburg district magistrate who
decided, on the basis of the ethnicity of one young woman that, yes, she
must be guilty as charged of shoplifting. "I know you Swazis," said the
magistrate-turned-anthropologist. "You people steal."

The courts then were sad, depressing and dingy holes whose distinct smell
made me shudder at the thought of ever finding myself inside them as
anything other than a court reporter. I believe they have not changed much
in the 10 years since we gained our freedom. That, I believe, is one of
the reasons behind Justice Minister Brigitte Mabandla's attempts to speed
up the transformation of the judiciary.

She has introduced pieces of legislation - including the Superior Court
Bill and the Legal Practice Bill - and is working on a language policy for
our courts. I have read the Superior Court Bill and the accompanying
memorandum and my lay eyes do not see anything in there that would
remotely threaten the independence of the judiciary. The bill, says the
memorandum, seeks to bring the superior courts - the Constitutional Court,
Supreme Court of Appeals and high court - in line with chapter eight of
the constitution.

It also makes provision for the appointment of court managers, assistant
managers, registrars and assistant registrars to help run our courts while
our judges and magistrates get on with the business of dispensing justice.
Surely it is not the business of judges and magistrates to be worrying
about photocopiers that don't work and canteens whose food is not up to
scratch? In case anyone is worried about where these managers and
registrars would come from, the bill says these people shall be appointed
by the minister "on the request of, and in consultation with, the head of
the court concerned". This does not read to me as if the bill gives the
minister the power to impose managers on our judicial officers.

There is also a provision that seeks to make the financial administration
of our courts subject to the Public Finance Management Act. The bill makes
clear that the director-general of the justice department shall bear
responsibility for how courts spend the money allocated to them by
Parliament, which is, after all, a legitimate institution. I do not see
anything wrong with this. There are many institutions that get their
funding directly from Parliament and this does not compromise their
independence. I know that distrust of power is a healthy thing and that
not every initiative that comes from the state is a good thing. But you
need only hear some of the horror stories about our courts to see why we
need transformation.

There are courts that still maintain separate canteens for blacks and
whites. There are judges and magistrates who insist on using Afrikaans,
even when the interests of justice would be served by the use of another
language. These are some of the challenges that face our courts. Noble
ideas, such as judicial independence, cannot defend themselves. They need
people for their existence. You can get people to support such ideas only
by making people feel that the system is there to serve them.




--------------------------------------------------------------------------------
Copyright  2005 Business Day. All rights reserved. Distributed by
AllAfrica Global Media (allAfrica.com).
--------------------------------------------------------------------------------

http://allafrica.com/stories/printable/200504190319.html