South Africa: All languages equal but English (and Afrikaans?) more equal?

[Harold Schiffman]

All languages equal but English (and Afrikaans?) more equal?
Posted on April 30th, 2008 by Pierre De Vos

Is it not strange - as a writer asks in an interesting piece in The
Herald newspaper - that 14 years after the advent of democracy in
South Africa, "the language spoken in our courtrooms still resembles
the apartheid era and in no way does it reflect the demographics of
this country"? While witnesses and accused persons can testify in one
of the eleven official languages and can rely on the services of a
translator when doing so (as Jacob Zuma did to great effect in his
rape trial) lawyers, magistrates and judges may speak only English and
Afrikaans (with less and less Afrikaans being spoken). This happens
even when all the parties before the court speaks a first language
other than English or Afrikaans.

Does this not make a mockery of the provisions of the Constitution
that recognises that the official languages of the Republic are
Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans,
English, isiNdebele, isiXhosa and isiZulu? And what does it say about
the much bandied about need for transformation of the legal system in
South Africa? The problem is that our Constitution is as clear as mud
on the issue of language rights. Trying to strike a compromise between
what is practical and what is ethically demanded, it contains a rather
muddled provision that in effect allows for English to be treated as
more equal than the other ten official languages (as George Orwell
might have said). Section 6 of the Constitution recognises "the
historically diminished use and status of the indigenous languages of
our people", and places a duty on the state to "take practical and
positive measures to elevate the status and advance the use of these
languages".

This is a rather broad injunction and it is not so clear exactly what
practical steps should be taken by the state to give effect to it.
Section 6 does seem to give some clues on what would be required when
it states that both the national and provincial governments "may use
any particular official languages for the purposes of government,
taking into account usage, practicality, expense, regional
circumstances and the balance of the needs and preferences of the
population as a whole or in the province concerned" - which normally
means that because of the expense involved in using other languages
English wins out.

At the heart of the language provision in the Constitution is an
understanding (as stated in section 6(4) of the Constitution) that
"all official languages must enjoy parity of esteem and must be
treated equitably". This does not mean that all languages must be
treated equally or even that all the dominant languages in a region
must be treated equally. It only means that they must be treated
fairly "taking into account usage, practicality, expense, regional
circumstances". But because English is such a dominant language and
because it is also the aspirational language of most people in our
country, even second language speakers of English often do not insist
on fair treatment for their indigenous language. English is seen as
the language of money and status and often amongst lawyers and
magistrates and judges (as well as most others in the professional
classes) this means that it is taken for granted that everyone will
speak English and if they cannot or will not speak it well, that they
are stupid.

The water is further muddied by the fact that the only South Africans
who actively promote and fight for their indigenous language are white
and Afrikaans and often do so in ways that seem to have more to do
with a disappointment about the loss of power and status and with
racism than with a genuine concern for the indigenous languages of
South Africa. Maybe it is time for people who do not speak English (or
Afrikaans) to put pressure on the government to deal more pro-actively
with the language issue and to develop a language policy for our
courts. Perhaps this policy could allow for regional differences as
suggested by the Constitution. This would mean, for example, that in
the Western Cape lawyers and magistrate and judges would be allowed to
speak not only English and Afrikaans but also Xhosa in court and to
draft documents in any of these languages.

Lawyers trained in the Western Cape could then be required to take a
non-English language course of at least one of the other two regional
languages to qualify as lawyers. This would not be very popular with
white lawyers I would imagine, but if we want to start somewhere to
respect the language diversity of South Africa, we will have to be
forced to do it. As someone who has twice started taking Xhosa lesson
only to abandon them, I know I will probably not learn the other
language of my region unless I am forced to. So what we need is a bit
of government intervention to force us to do the right thing -
otherwise everyone will just revert to English.

http://constitutionallyspeaking.co.za/?p=530

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