[lg policy] South Africa: Mother tongues test the justice system

[Harold Schiffman]

 Mother tongues test the justice system December 11 2014 at 06:24pm
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<http://www.iol.co.za/mercury/mother-tongues-test-the-justice-system-1.1794399#comments_start>
[image:
IOL pic sep10 justice scales file] Independent Media .

A magistrate has highlighted the difficulties of fixing a language policy
for South Africa’s courts, writes Carmel Rickard.

A magistrate who opted to conduct a case entirely in Zulu has highlighted
the difficulties of fixing a language policy for South Africa’s courts. But
it has also shed light on new steps to deal with the problem.

The magistrate, not named in the high court judgment that brought the
matter to light, works in Mahlabathini in northern KwaZulu-Natal.

He presided in the trial of Phathumuzi Damani, convicted him of assault and
gave him a suspended sentence. But when this case was sent to the High
Court in Pietermaritzburg on automatic review, it became far more
interesting.

As in all such review cases, the judges had to decide whether the
proceedings accorded with justice. In one line at the end of their
judgment, Judges Simon Ndlovu and Zaba Philip Nkosi made this
certification. The rest of the judgment was taken up with the fact that the
trial was conducted in Zulu.

Judge Ndlovu noted that it remained “uncertain” whether an accused or a
court could insist on a particular official language being used during
proceedings, or whether English or Afrikaans always had to be the official
language of record.

It’s a dilemma raised before. For example in 2003, Judge James Yekiso,
sitting in the High Court in Cape Town, also dealt with a matter on
automatic review from the magistrate’s court. In that case, no interpreters
were available to translate for an Xhosa-speaking accused.

As the prosecutor and magistrate were both also Xhosa speakers, however,
the case went ahead on the basis that everyone involved would speak this
language and no interpreters would be needed.

In his review of that case, Judge Yekiso commented on the delays and the
huge costs involved if an accused could demand that a trial be conducted in
a particular language.

Has anything changed in the 11 years since then?

The unnamed magistrate in this week’s case said he conducted the whole
trial in Zulu as it was the language of “99.9%” of accused in those courts
as well as the magistrate, the prosecutor, the complainant and Damani. In
addition, the constitution called for equality of all 11 official
languages.

Judge Ndlovu said it was a constitutional ideal for courts to operate in
the predominant language of an area, although it is still seemed
impracticable. But in preparing his judgment, he was given a report on a
pilot project started in 2008 by the government “to promote the use of
indigenous languages” in courts.

Among several difficulties experienced were that magistrates, prosecutors
and defence counsel found difficulty in “articulating legal terminology in
Zulu, including quotation from statues and legal precedents”.

Another difficulty, experienced first-hand by judges Ndlovu, Nkosi and
Yekiso, was the delays in transcribing court records into English for
review or appeal.

Faced with all these challenges, the pilot project came to a halt.

In June this year, however, the chief magistrates forum released a report
indicating that the director-general of the Department of Justice and
Constitutional Development had ordered that the “indigenous language
courts” be revived in all provinces.

Three months ago, the chief magistrates recommended that the chief justice
should also find out if the Department of Justice had provided proper
structures for “adequately and timeously’ transcribing and translating into
English, proceedings recorded in any of the nine indigenous languages.

Judge Ndlovu said efforts to reach the constitutional goal of parity
between all the languages was a noble idea, but that it should be done in a
way that didn’t cause delays.

Without structures in place for quickly transcribing court records, appeals
cases would inevitably be delayed with “dire consequences”.

Until these problems were sorted out, magistrates shouldn’t try to go it on
their own, he said.

* Carmel Rickard is a legal affairs specialist. Email carmelr at iafrica.com
or visit www.tradingplaces2night.co.za

http://www.iol.co.za/mercury/mother-tongues-test-the-justice-system-1.1794399#.VIsUJXt8PIU


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