[lg policy] South Africa: Speaking in tongues in our courts

[Harold Schiffman]

Speaking in tongues in our courts
Nov 21, 2010 12:00 AM|

A specific aspect of our legal system that has become problematic is
the official language of the courts. In theory, we have
multilingualism, but in many courts the de facto language is English.
This is unsatisfactory.


    " The proceedings were conducted in English, although Sepedi is an
official language. Speaking in their vernacular would have made more
sense "

Let me explain what I mean. I once had a peculiar experience in a
magistrate's court. My matter was on the roll and I sat in court
waiting for it to be called while other matters were attended to. In
court was a Sepedi-speaking prosecutor, magistrate, accused and legal
representative of the accused. Strangely, the proceedings were
conducted in English, although Sepedi is an official language of South
Africa. The proceedings were frustratingly slow, because everything
had to be translated for the accused. Speaking in their vernacular
would have made more sense.

Another absurdity is the way that language rights are sometimes
manipulated to frustrate another party. A Pretoria attorney appeared
in a civil court in a matter in which all the pleadings were in
English when suddenly the attorney of the opposing party insisted on
presenting his case in Afrikaans. The annoyed attorney wrote to the
Department of Justice for direction regarding language policy, and
there was an undertaking to do so in April this year. Unfortunately,
nothing has been forthcoming.

In terms of Section 35(3)(k) of the Bill of Rights, everyone tried for
an offence has the right to have the proceedings translated into
his/her native tongue. Interestingly, there is no specific mention of
whether the legal representative has a right to use his/her home
language. This right is inferred from other sections of the Bill of
Rights. However, it is also trite law that no right is absolute and
that it can be limited where it is reasonable and justifiable, as
contemplated in section 36 of the constitution.

Isn't it also reasonable and justifiable to limit language rights in
the interests of justice? At this stage, the debate on the language
policy of the courts is divided into two factions. There is the
Anglophile group that wants English to be the sole language for the
sake of accessibility. Then there is the multilingual group,
spearheaded by prominent Afrikaners, to preserve home languages.

In my opinion, if either policy becomes official, it will be a sad day
for SA justice. Both stances are extremes that only result in
absurdity and injustice. But what is the solution to this complicated
problem? I would propose a third, practical middle way. The official
language of court documents (including pleadings) should be in English
and the proceedings should also be conducted in English, which is
clearly the lingua franca of the new SA, as most South Africans have
at least some understanding of it.

This would ensure that the justice system is mutually intelligible to
most South Africans and should be standard policy in court. However,
when all the court officials and the accused have the same home
language, that should be the language of the proceedings. Critics
might point out that this would cause a problem with court records, as
another person might not be conversant with that language. But there
is an easy solution to that problem: by translating court records into
English.

Granted, it would be costly, but I think the benefits far outweigh the
disadvantages. Firstly, it would create employment. This policy would
afford many South Africans the opportunity to study towards becoming
translators. They would be sure of employment because the demand would
be great. The Department of Justice could provide bursaries for these
studies. Secondly, it would encourage the study of African languages,
which has received little attention in the past. Many tertiary
institutions have dwindling numbers of students of African languages,
and some departments have even had to close. This policy would
rejuvenate the study of these languages and ensure their survival.

It is a simple solution to a difficult problem. Language policy is
obviously an emotional topic for many and should always be treated
with the necessary sensitivity. However, I hope South Africans will
look beyond their differences and approach the problem with the
necessary pragmatism. It is, after all, in the interests of justice.

Labuschagne is a non-practising attorney working for the Law Society
of the Northern Province. He is also a part-time lecturer at the SA
Law School. This article was written in his personal capacity

http://www.timeslive.co.za/sundaytimes/article773994.ece/Speaking-in-tongues-in-our-courts?service=print

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