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Published online by Cambridge University Press: 21 February 2018
The South African Constitution recognizes the use of 11 official languages within “provincial” and “national” government on the basis of “parity of esteem”. However, it does not specifically refer to the recognition and use of language in tribunals. Any perceived attribution is couched in generic terms that are open to interpretation, as evidenced in the cases of Matomela, Damoyi and Pienaar. The employment of a single language policy in court proceedings, as advocated in Matomela and Damoyi is probably the most sensible, pragmatic and plausible language policy imaginable. Such a position would be desirable to ensure speedier and simpler proceedings. However, it would, as argued in Pienaar, not only accord primacy and prominence to a single language, but would operate contrary to the spirit of plurality, multilingualism and inclusivity, which forms the bedrock of the current constitutional dispensation. Meanwhile, the dominance of English and (to a lesser extent) Afrikaans continues almost unabated, despite the principles of inclusivity championed by the Constitution.
B Iuris, LLB, LLM, LLD. Senior lecturer, College of Law, University of South Africa.
1 South Africa Act 1909, art 137.
2 Official languages of the Union Act 1925, art 2.
3 Id, art 1.
4 Afrikaans is widely considered to be a Dutch dialect. See R v West London Youth Court, Ex Parte N [2000] 1 All ER 823 at 826; Ex Parte Marx Et Uxor (1) 1936 CPD 483.
5 Republic of South Africa Constitution Act 1961, art 108(1).
6 Marais v Mdowen 1919 OPD 34 at 35; S v Opperman (1969) 3 All SA 237 T.
7 Strydom, H and Pretorius, L “On the directives concerning language in the new South African Constitution” in Deprez, K and Plessis, T Du (eds) Studies in Language Policy in South Africa: Multiligualism and Government (2000, Van Schaik) 105Google Scholar.
8 Chweu v Pretoria Technical College [1994] 8 BLLR 52 (IC) (Chweu) at 56; S v Damoyi [2003] JOL 12306 (C) (Damoyi), para 8; S v Matomela 1998 (3) BCLR 339 (Ck) (Matomela) at 342.
9 Matomela, ibid.
10 Constitution of the Republic of South Africa 1996.
11 Id, sec 6(1). The 11 languages are Afrikaans, English, isiNdebele, Sepedi, Sesotho, Setswana, siSwati, Tshivenda, isiXhosa, Xitsonga and isiZulu.
12 Id, sec 6(5)(a).
13 Id, sec 6(5)(b)(i).
14 Id, sec 6(5)(a)(i).
15 Id, sec 5(b)(ii).
16 Id, sec 5(b)(ii).
17 Id, sec 6(3)(a).
18 Act 12 of 2012, sec 2.
19 The Constitution, secs 30 and 31(1)(a).
20 Id, sec 30.
21 Ibid.
22 Matomela, above at note 8 at 342.
23 The Constitution, sec 31.
24 Kalantzis, M, Cope, B and Slade, D Minority Languages and Dominant Culture: Issues of Education, Assessment and Social Equity (1989, Falmer Press) at 3Google Scholar.
25 The Constitution, sec 31.
26 Id, sec 30.
27 Kalantzis et al Minority Languages, above at note 24 at 2.
28 Adejunmobi, M Vernacular Palaver: Imaginations of the Local and Non-Native Languages in West Africa (2004, Multilingual Matters) at 2CrossRefGoogle Scholar.
29 Wei, L “Dimensions of bilingualism” in Wei, L (ed) The Bilingualism Reader (2000, Psychology Press) 3 at 12Google Scholar.
30 Ibid.
31 Ibid.
32 The Constitution, sec 171.
33 Uniform Rules of the High Court 1965, rule 61(1).
34 Magistrates’ Courts Act 32 of 1944, sec 6(2).
35 Id, sec 6(1).
36 Van Loggerenberg, DE The Civil Practice of the Magistrates’ Courts in South Africa: Vol I (10th ed, 2012, Juta) sec 6Google Scholar.
37 Therefore, the court's submission in Chweu, above at note 8 at 53, that the Constitution does not make explicit provision for the use of languages in labour tribunals, is incorrect in the context of the Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution), under which the case was decided.
38 The Constitution, sec 35(3)(k).
39 1991 (4) SA 613 (W) at 619.
40 Kalantzis et al Minority Languages, above at note 24 at 10.
41 Id at 8. Ndhlovu, F The Politics of Language and Nation Building in Zimbabwe (2009, Peter Lang) at 35Google Scholar.
42 Kalantzis et al, id at 3.
43 The Constitution, sec 31.
44 Kalantzis et al Minority Languages, above at note 24 at 10.
45 Strydom and Pretorius “On the directives”, above at note 7 at 106.
46 Ibid.
47 Kalantzis et al Minority Languages, above at note 24 at 8.
48 Wee, L “Prescribing pastoral and pragmatic orientations: Challenges for language policy” in Percy, C and Davidson, MC (eds) The Languages of Nation: Attitudes and Norms (2012, Multilingual Matters) 63 at 68Google Scholar.
49 Hertzler, JO A Sociology of Language (1965, Random House) at 251Google Scholar.
50 Strydom and Pretorius “On the directives”, above at note 7 at 106.
51 Id at 108.
52 For the purposes of this discussion, the author decided to adopt the term “native South African language”. This differentiates “native” languages as traditionally spoken by black Africans, from Afrikaans. The latter is arguably native to South Africa, despite its Dutch origins. The author submits that the descriptions in this article are not necessarily technically accurate; they are, at best, an artificial description of aspects that are not meant for the present discussion.
53 Kapoor, D and Shizha, E (ed) Indigenous Knowledge and Learning in Asia / Pacific and Africa: Perspectives on Development, Education, and Culture (2010, Palgrave Macmillan) at 5CrossRefGoogle Scholar.
54 NE Nxumalo “The status and role of minority African languages in South Africa's new and democratic language policy” (unpublished doctoral thesis, University of Limpopo, 2000) at 122. It is a somewhat unfortunate characterization when it is considered that the opposition was intrinsically “political” rather than “cultural”. The absence of “ill-feeling” against Afrikaans (at 122) and its use and infusion into the wider matrix of South African languages is further testimony to its importance in the discourse of language policy.
55 Id at 86–98.
56 Strydom and Pretorius “On the directives”, above at note 7 at 108.
57 Ibid.
58 Id at 104.
59 Nhlapo, J Bantu Babel: Will the Bantu Languages Live? (1944, African Bookman) at 5Google Scholar.
60 L Wee “Prescribing pastoral”, above at note 48 at 69.
61 Id at 73.
62 Damoyi, above at note 8, para 11; Matomela, above at note 8 at 342.
63 Ibid.
64 In Geidel v Bosman 1963 (4) SA 253 (T) the charges had been drawn and put to the accused in English, his first language. He pleaded in the same language. The evidence of the two state witnesses was presented in Afrikaans, whereupon they were cross-examined by the accused's attorney in the same language. The attorney then applied for the discharge of the accused and the case was postponed. All the proceedings up until then were conducted in Afrikaans. On resumption, the prosecutor opposed the application for discharge. He stated that he would argue in English for the benefit of the accused. Thereafter all argument, including the attorney's reply, was in English. The accused was subsequently convicted of the charges. The appeal court rejected his contention on review, that he had been unable to follow the evidence of the state witnesses, as he had not understood Afrikaans.
65 Constitution of the Republic of South Africa Act 200 of 1993.
66 Id, sec 3(3).
67 Id, sec 3(6).
68 Id, sec 3.
69 Ibid.
70 2000 (7) BCLR 800 (NC).
71 The Constitution, sec 35(3)(k) (emphasis added).
72 The Interim Constitution, sec 25(3)(i).
73 S v Ngubane 1995 (1) BCLR 121 (T) at 122.
74 1998 (3) BCLR 336 (N). In this case the defendant, when arraigned in the regional court, requested that the trial be conducted in isi-Zulu, which is one of the official languages under sec 6(1) of the Constitution. The regional magistrate directed the trial to proceed in either English or Afrikaans. The defendant approached the High Court seeking a review and reversal of the magistrate's order to refuse the trial to be conducted in isi-Zulu as unlawful and unconstitutional. It also transpired that the defendant, a teacher by profession, “understood English”, and yet preferred the use of isi-Zulu as the language of record. According to the defendant's contention, the interpreter would only be employed in the case of non-isi-Zulu speaking witnesses.
75 Id at 338.
76 Ibid.
77 Id at 337.
78 Magistrates’ Courts Act, sec 6(1).
79 Mthethwa v De Bruin, above at note 74; Marais v Mdowen, above at note 6.
80 In Marais v Mdowen, id, the defendants admitted service of the summons, but contended that they had not understood its contents, as it was drawn up in only one of the official languages, namely English. It is surmised, in the absence of any indication to the contrary, that the defendants were apparently of an Afrikaans-speaking background. The court held that the veracity of any claim of the inability to understand an official language had first to be determined on the basis of an inquiry by the court before any ruling could be made on the re-opening of the case. The onus lay with the defendants to prove that they could not understand English. They would have to undergo cross-examination on that point.
81 Above at note 70. The case in point was a criminal review. From the facts, it appeared that an Afrikaans-speaking accused, who desired to exercise the right to have legal representation, was duly provided, at state expense, with an attorney from the Legal Aid Board. The attorney spoke English, but could not speak any Afrikaans. At the commencement of the trial the attorney sought and was granted leave to withdraw as the accused's legal representative, because of the language barrier. The accused then indicated that he would dispense with the attorney's services and conduct his own defence. The matter proceeded and the accused was convicted and sentenced. The court held, in the final analysis that, in the circumstances of the case, the predominance of Afrikaans in the Northern Cape had, in effect, necessitated the “practicability” of conducting the trial in Afrikaans. The accused's right to a fair trial essentially included the right to be tried in Afrikaans. Thus, the accused had not received the fair trial to which he was entitled. The right to a fair trial also included the right to be provided with representation by a legal practitioner who could communicate with the accused in the accused's own language of choice, either directly or through the medium of an interpreter. The magistrate's failure to explain these rights properly to the accused therefore constituted a denial of the accused's right to legal representation. The result was the denial of a fair trial, and the conviction and sentence were set aside.
82 The Interim Constitution, sec 3(9)(c).
83 Id, sec 3(9)(d).
84 Chweu, above at note 8 at 57.
85 Interim Constitution, sec 3(4).
86 The Constitution, sec 6(3)(a).
87 The facts in Matomela and Damoyi are strikingly similar. In both instances, the proceedings had been conducted and recorded in isi-Xhosa, the mother tongue of the presiding officer and all the parties involved in the case. It appeared that no interpreter was available on the day of the trial. Rather than postpone the matter, a decision was taken to conduct the trial in isi-Xhosa. The trial courts in both cases had considered this course to be justified by circumstances of necessity. Furthermore, it was argued that the action had, in any event, been in accordance with the spirit of the provisions of sections 6 and 35(3)(k) of the Constitution. In both cases, the court on review considered the reasons given for adopting the course of conducting the proceedings in isi-Xhosa to be cogent, and the convictions and sentences were confirmed.
88 Above at note 8 at 342.
89 Ibid.
90 In S v Moloi [2006] JOL 16617 (O), para 32, the court held that, in practice, the use of an interpreter is superfluous where the magistrate is fluent in the language of the accused. In this case, the magistrate had employed the services of an interpreter when he could easily have dispensed with them. In the circumstances, the use of translation was attributed to practical matters, probably relating to the fact that the standard forms used were only available in English or Afrikaans, the official languages at the time.
91 There is, of course, something to be said about the standardization and contextualization of the received message, as well as power relations relating to the hierarchical status of languages and the relaying of messages. That, however, does not fall within the purview of this article.
92 Above at note 8 at 342.
93 Above at note 8, para 17.
94 Ibid.
95 Above at note 8 at 342.
96 Ibid.
97 Ibid.
98 Ibid.
99 Id at 341.
100 Id at 342.
101 Magistrates’ Courts Act, sec 6(1).
102 Matomela, above at note 8 at 342.
103 Above at note 39 at 619.
104 On the African continent, language use for persons of indigenous origin follows an almost identical pattern. The author submits that this reflects, to a large extent, the South African landscape. Batibo, H Language Decline and Death in Africa: Causes, Consequences and Challenges (2005, Multilingual Matters)CrossRefGoogle Scholar enunciates (at 17) a so called triglossic structure model that sketches the language vista: “Usually, at the top we find an ex-colonial language (English, French or Portuguese) holding official status and used as the language of higher education (in some cases the entire educational system), science and technology and official government business. Such a language tends to monopolize all the secondary or high-level domains and is therefore the most prestigious. Then at the middle level we find a major indigenous language serving as a lingua franca. Such a language would normally be demographically dominant and socio-economically prestigious. Last, at the lowest level we find a minority language, which normally has few speakers and is socio-economically marginalised.” However, this situation does not necessarily reflect the status quo in South Africa. Nevertheless, there are sufficient similarities, with a few divergences. First, pluri-lingualism in this context denotes, in some instances, the “knowledge” and “use” of at least three indigenous languages. Secondly, the use of Afrikaans (the status of Afrikaans as a language “indigenous” to Africa is somewhat debatable) is not only confined to non-indigenous language speakers, but is used and spoken, as a former official language, by indigenous language speakers as well.
105 Pienaar, above note 70, para 14.
106 Ex parte Paraskevopoulos 1947 (1) SA 229 (O) at 231.
107 Above at note 8, para 18.
108 Above at note 70, para 28.
109 Ibid.
110 Ibid.
111 Id, para 18. See also Matomela, above at note 8 at 340 and Damoyi, above at note 8, para 1, in this regard.
112 Pienaar, above at note 70, para 18.
113 Ibid.
114 Id, para 20.
115 Ibid.
116 Tran v The Queen [1995] 23 CRR 2 (d) 32 at 45.
117 Strydom and Pretorius “On the directives”, above at note 7 at 114.
118 Pienaar, above at note 70, para 34. See also Matomela, above at note 8 at 342.
119 Pienaar, ibid.
120 Ex v Makubesi 1952 (2) SA 75 (T) at 78. The proper understanding of a language can be a somewhat testing endeavour, which requires circumspection in approach, as evidenced in S v Mpopo 1978 (2) SA 424 (A), where the presiding officer in the trial court believed that he had the measure of the language in question, such that he was qualified to draw certain decisive conclusions regarding a witness's evidence. The following findings were made on the demeanour of the accused in the course of the court's initial judgment, where the appellant was convicted of murder: “His evidence in the witness-box and his demeanour have been completely unsatisfactory. One of my assessors is a fluent Xhosa linguist, I myself understand the language sufficiently to follow the evidence and to form some impression of his demeanour and we are both satisfied that his demeanour was that of a lying witness.” However, upon being alerted to a glaring discrepancy in his perceived understanding of the source language, he commented as follows in his judgment when granting leave to appeal: “After the trial the Attorney-General drew my attention in Chambers to the fact that the references to being a Xhosa linguist, the assessor being a fluent Xhosa linguist and my understanding the language were inappropriate as the accused had given his evidence in Sotho. I confirmed this with the interpreter as I was somewhat puzzled because during the trial when the accused gave evidence, I had found myself able to follow the gist of his evidence. It may well be that this is due to the fact that the accused comes from the district which borders on an area occupied by the Hlubi tribe who are Xhosa-speaking and to some extent the Hlubi influence may have crept in. Be that as it may, I was under the impression that he had spoken Xhosa and I was apparently wrong in that impression, in so far as demeanour was judged by his use of language.”
121 Nxumalo “The status and role”, above at note 54 at 110.
122 Steele, GJ “Court interpreters in Canadian criminal law” (1991–92) 34 Criminal Law Quarterly 218 at 243Google Scholar proposes the use of three “controls” to improve the quality of translation: (i) concurrent controls, whereby two interpreters are used at the same time in order to spot discrepancies, and then to offer suggestions for correction; the “best” translation is then adopted for record purposes; (ii) post-hearing controls, in terms of which the record of the translation is reviewed and verified by another interpreter; and (iii) pre-hearing controls, which entail retention of a one-interpreter scheme, but with improvements to the interpreter's objective qualifications.
123 Rule 60.
124 Matomela, above at note 8 at 340.
125 Ibid.
126 Above at note 116 at 45.
127 The situation becomes more perilous and complicated where more than two languages are involved.
128 Steele “Court interpreters”, above at note 122.
129 Matomela, above at note 8 at 341.
130 Ibid.
131 Chweu, above at note 8 at 57.
132 Ibid.
133 Pienaar, above at note 70, para 34.
134 Id, para 26.
135 Id, paras 14–15.
136 Ibid.
137 Ibid.
138 Id, para 16.
139 Ibid.
140 The Constitution, sec 6(3).
141 Pienaar, above at note 70, para 14. The court estimated the percentile use of language in the Northern Cape to be: Afrikaans 72%, Setswana 14.8%, isi-Xhosa 8.8%, English 1.4% and others 0.6%. The court was also quick to stress the “unimportance” of these figures, at the expense of the general “tendency” of use. These observations are based arbitrarily on the court's “experience of the past 13 years in this Division.”
142 The Constitution, sec 6(3) and (4).
143 Pienaar, above at note 70, para 18.
144 Above at note 116.
145 Pienaar, above at note 70, paras 18–19.
146 The court (at para 19) concluded at the time that approximately 72% of the cases in the Northern Cape High Court Division were conducted in Afrikaans and a mere 1.4% in English. According to the court's calculations, 10–12% of the remaining cases required the use of interpreters. Therefore, the court concluded, these cases could be conducted in Setswana, because at least one of the judges within the division was Setswana-speaking. Needless to say, the court had not assessed whether all the litigants falling within this 10–12% of cases would be exclusively Setswana-speaking.
147 Kalantzis et al Minority Languages, above at note 24 at 13.
148 Ibid.