The right to language in court: A language right or a communication right? H.J. Lubbe University of the Free State, Bloemfontein, South Africa.

Introduction

About a year ago a report appeared in the South African print media (Ngalwa 2007) under the heading "Language policy in courts in the dock". It highlighted the fact that of the eleven official languages in South Africa only two, English and Afrikaans, remain the languages of record in the country's courts, while the other languages are translated by court interpreters. In comparison with language rights in the education system, which are continually debated, both in South Africa (Heugh 2002, Malherbe 2004, Webb 2006, Webb 2007) and internationally (Skutnabb-Kangas 2000, Skutnabb-Kangas 2002), language rights in the judiciary receives relatively little attention. In this contribution some arguments offered for the "trail" on the language policy in courts will be discussed. Especially with reference to court cases in South African and Canadian judicature, the importance of language in the right of an accused to a fair trial, will be commented on. In the first section of the contribution a short historical overview of the language requirements relating to the South African judiciary will be given, followed by a discussion of the two main arguments, viz. the right to language use in court is a communication right versus the view that it is a language right.

Historical overview of the language requirements in the judiciary

Although the southern tip of Africa immemorially was inhabited by the San and Khoi people, and although Portuguese navigators passed the Cape of Storms in the fifteenth century, the permanent settlement by Westerners began in 1652 with the arrival of the Dutch. The colony remained Dutch till the beginning of the nineteenth

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century. In this period Dutch was the only official and cultural language, thus also of the judiciary. England conquered the Colony and settled permanently in 1806. A proclamation promulgated in 1822 made English from 1 January 1827 the only language in the courts (Eybers 1918:23). In 1910 the Union of South Africa was proclaimed. Section 137 of the South African law No 9 of 1909 entrenched the position of the two official languages, English and Dutch, out of which Afrikaans developed. In line with the policy of separate development the Constitution of 1983, No 110, also granted official status to two indigenous African languages in the so-called Bantustans. In 1994, after a process of "indringende" (in-depth) negotiations the first democratic election took place, and the first democratic constitution, the so-called Interim Constitution (Act No. 200 of 1993), followed by the final Constitution (Act No. 108 of 1996), was implemented. The acceptance of the principle of the constitutional supremacy in the Interim as well as the Final Constitution brought a most significant development to the South African legal system (Malherbe 1998:86). According to this principle the constitution became the supreme law, in contrast to the previous system in which the political system was dominated by parliamentary sovereignty, a principle characteristic of the Westminster system, and took over after the British occupation. The power to test parliamentary legislation against the provisions of the constitution was conferred to the courts. An important consequence of the endorsement of the principle of constitutional supremacy is that the positivist outlook of the South African courts in the past has been replaced by a normative approach (Malherbe 1998:87). The courts do not apply the laws strictly as they were laid down by Parliament, but consider them in the light of the norms and values of the constitution. In the next section the language stipulations of the (final) Constitution, also those relating to the judiciary, will be supplied.

Language stipulations of the Constitution

The language stipulations appear in section 6 of chapter 1 of the Constitution, Founding Provisions. Section 6(1) gives a list of the eleven official languages. Granting 378

official status to a language implies, inter alia, that an individual can use the language in his/her interaction with the government, thus also in a court of law (Currie 1998:37.337.4). Recognizing the historically diminished use and status of the nine indigenous languages, section 6(2) states that the state "must take practical and positive measures to elevate the status and advance the use of these languages". Section 6(3) determines the use of languages for the national government, the nine provincial governments and municipalities. Criteria to take into consideration implementing a language policy are "usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned". At least two official languages are the minimum. Section 6(4) states that "all official languages must enjoy parity of esteem and must be treated equitably", while section 6(5) makes provision for the establishment by national legislation of a Pan South African Language Board (PanSALB) to promote, and create conditions for the development and use of, inter alia, all of the official languages. Chapter two of the Constitution, Bill of Rights, contains several references to the protection and use of language, e.g. in education (section 29(2)), in cultural, religious and linguistic communities (sections 30, 31), and in assuring a fair trial (section 35(3), specifically 35(3) (k)):

Every accused person has a right to a fair trial, which includes the right to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language.

One more provision is of importance for our argument, viz. section 6(1) of the Magistrates Courts Act, No. 32 of 1944:

Either of the official languages may be used at any stage of the proceedings in any court and the evidence shall be recorded in the language so used.

The two official languages here referred to were English and Afrikaans. With this background information we can discuss, on the basis of judgments in criminal cases in South African courts, the two opposing views regarding the right to language use in court, viz. the right is a communication right versus the right is a language/human right. 379

A communication right

In a magistrate court in the province Kwazulu-Natal a Zulu speaking accused, who happens to be a school teacher, was charged with stealing a motor vehicle. When arranged, he requested that his trial be conducted in isiZulu, one of the official languages listed in section 6(1) of the Constitution. The application was denied and the magistrate directed that the trial would continue in English or Afrikaans. The accused then sought a review of the application by the High Court (Mthethwa vs De Bruin 1998). The Judge-President of the division of the High Court upholds the sentence of the magistrate court and decides (beslis) that section 35(3)(k) does not give an accused, who understands English or Afrikaans, the right to have a trial conducted in the language of his choice. Although 98% of the cases in that magistrate court involved isiZulu speaking defendants, the practicalities of the situation suggest that it would be impossible to conduct trials in isiZulu. Some of these practical considerations are the fact that only 4 out of 37 regional magistrates, 81 out of 256 prosecutors, and one out of 22 judges in the region have isiZulu as their home language. The only right the accused has is to be tried in a language which he understands, or, if that is not practicable, to have the proceedings interpreted in that language. A qualification in the sentence leaves a glimpse of hope that in future indigenous languages may play a greater role. The Court points out circumstances "as they obtain in this province at present", thus in future circumstances may change. The criterion of practicality also plays an important role in a case heard two months later in the High Court in Bisho in the Eastern Cape (S vs Matomela 1998). In a magistrates court an accused was charged for failing to comply with a maintenance order. In the court the magistrate, the prosecutor and the accused all spoke isiXhosa. Due to a shortage of interpreters at the time, and because further delaying the matter would be detrimental to the accused as well as the complainant, the magistrate conducted the trial in isiXhosa. When the case came before the High Court on automatic review the Judge requested an explanation as to why the record was completely in isiXhosa. The reasons the magistrate given were based on section 6(1), which listed isiXhosa as one of the official languages, read with sections 6(2) and 6(4). Taking into account the diminished use and status of isiXhosa the magistrate relied on the imperative that practical measures must be taken to advance the use of isiXhosa, and that all official languages 380

must enjoy parity of esteem and be treated equitably. He also relied on section 35(3) (k) as it gives the right to be tried in a language which the accused understands, in this case isiXhosa. As no prejudice would be caused to anyone in court at that moment if isiXhosa was used, a trial in isiXhosa was permitted. The Judge found the reasons fair and reasonable in the circumstances. However, because he anticipated that such instances will occur more frequently in the future, creating practical problems (translation, costs, tydsverloop) he suggested, in obiter, that the Department of Justice adopt a sole language of record for the court system. Such a language should be one which can be understood by all court officials irrespective of mother tongue. Although it was not explicitly stated, it was clear that English was implied. The implicit suggestion was made explicit in another case (S vs Damoyi 2004). As was the case in S vs Matomela (1998) the magistrate found itself with a lack of interpreters for a case that had already been postponed several times. Rather than postpone it again in order to wait for an interpreter it was conducted in isiXhosa, the language all of the judicial officers present were proficient in. In the High Court of the Cape Provincial Division the Judge agreed with the finding in S vs Matomela (1998) that the use of an indigenous language was constitutional and that the proceedings had been in accordance with justice. The delays that were caused to the review court because of the difficulties in transcribing the record in isiXhosa into English, however, were a cause of dissatisfaction to the Judge. Because of matters of practicality he propagated a sole language of record for courts:

The solution to problems such as the one raised in this matter could be the introduction of one language of record in court proceedings [...] such a course would not only be economical but would be in the best interest of justice. After all, English already is a language used in international commerce and international transactions are concluded exclusively in the English language (S vs Damoyi 2004 par 18).

Comment on these findings will be given later. Suffice to say that these findings reflect the view that the right to use a preferred language in court is a communication right.

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A language right

A dramatic shift from the gathering jurisprudence surrounding section 35(3) (k) came to the fore in S vs Pienaar (2000). Pienaar, an Afrikaans speaking accused who could not speak or understand English, faced drug charges and was sentenced in a magistrate court accordingly. During the trial Pienaar asked that counsel, assigned by Government, withdraw because she only spoke and understood English. The reviewing Judge in the Northern Cape Division found that, because the accused's right to a legal representative with whom he could communicate in his own language, whether directly or through the services of an interpreter, was not properly explained to the accused, this failure resulted in a breach of his right to a fair trial. The accused's defense had thus not been properly examined and the conviction and sentence were set aside. In arguing for the point of view that it is a fundamental right for an accused not only to be represented by legal representation, provided by government, but to be represented by legal representation with whom he could communicate in Afrikaans, the Court referred to Canadian jurisprudence, especially to the Beaulac case (R vs Beaulac (1999)). Beaulac, accused of murder in the first degree, requested the court in British Columbia to be heard by a judge and a jury who could speak his tongue, French. The request is rejected because the accused understands English. After several subsequent appeals the case served before the highest Canadian court, the Supreme Court. The Supreme Court, per judge Bastarache, determined that the language choice of an accused "is a substantive right and not a procedural one that can be interfered with" (as quoted by Labuschagne 2000:519, Strydom 2001:110; also cf. S vs Pienaar 2000: par 710). A second important ruling of the Canadian Supreme Court was that language rights in all cases must "be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada" (as quoted by Foucher 2007:64). Language rights are not negative or passive rights, and can only be practiced if the channels are provided. Actually, there rests an obligation on the Canadian government to redress previous injustices:

[T]he right should be construed remedially, in recognition of previous injustices that have gone unredressed and which have required the 382

entrenchment of protection for minority language rights (Reference re Public Schools Act 1993, as quoted by S v Pienaar 2000 par 8).

The importance of language rights for the practice of the own culture (kultuurbeoefening) is constantly stressed by the Supreme Court. In Ford v Quebec (1998), quoted with approval by Judge Bastarache, it is stated:

Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one's choice. Language is not merely a means or medium of expression; it colors the content and meaning of expression. It is, as the preamble of the Charter of the French Language itself indicates, a means by which a people may express its cultural identity. It is also the means by which the individual expresses his or her personal identity and sense of individuality (S v Pienaar 2000: par.8; stressing by Judge Bastarache).

In the light of these and other pronouncements by the Canadian Supreme Court the Court in the Northern Cape Division was of the opinion that in the Canadian Supreme Court the right priorities got the attention. The importance of language, the protection of minority languages, and the development by the government and rectification (regstelling) of language neglect (taalmiskenning) of the past is prioritized. In contrast to the previous dealt cases where practical considerations was used to plead against multilingualism in courts, in the case under discussion demographic information was used in order to argue for multilingualism, specifically for Afrikaans. Because 72% of all cases in the Northern Cape are conducted in Afrikaans against 14,8% in Tswana, 8,8% in isiXhosa and only 1,4% in English, and because a huge percentage of the population does not understand English, it can not be argued that a hearing in Afrikaans is not practical. Accumulative appointment of English speaking magistrates and public prosecutors by the Department of Justice leads to a situation whereby the public is alienated from the courts' processes. The community is verontrief for the sake of an individual. This situation is against the Department of Justice's aim to make the courts more accessible for the community (S v Pienaar 2000 par 14, 27).

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To reach a decision of the central question, namely whether the accused has the right on legal representation with whom he can communicate in his language of choice, in this case Afrikaans, whether directly or through the services of an interpreter, the court took the following articles into consideration (S v Pienaar 2000 par 23-26): 

Article 6(1) of the Magistrates Courts Act, No 32 of 1944, which stipulates that English and Afrikaans may be used at any stage in any court;



Article 6(1) of the Constitution which lists Afrikaans as one of the official languages;



Article 6(2) of the Constitution which implies that the exclusive promotion of English and the advancement of its status by government contradicts the stipulation according to which the status of the indigenous languages must be elevated and their use be advanced;



Article 6(3) of the Constitution: The enforcement of English on speakers of Afrikaans in the courts of the Northern Cape contradicts each of the criteria to be taken into consideration implementing a language policy;



Article 6(4) of the Constitution forbids the elevation of English as sole official language of the court as such a step would contradict the stipulation that "all official languages must enjoy parity of esteem and must be treated equitably".

The earnestness of the Legislature to promote all the official languages becomes clear in section 6(5) of the Constitution where provision is made for the establishment of a statutory watch-dog, PanSALB, which, inter alia, must advance the development of all the official languages. Conscious of the realities in a multilingual South Africa and the resultant practical problems the Legislature made in section 35(3) (k) provisions for a developmental and transitional period (S vs Pienaar 2000 par. 28-31). Only where it is not practical to conduct a hearing in a particular official language the hearing can be interpreted in the language of the accused. Article 35(3) (k) can never be interpreted in such a way that it restricts the stipulations of article 6(1) of the Magistrates Courts Act and article 6(1) of the Constitution. There rests an obligation according to article 6 on government, specifically the Department of Justice, to ensure that those languages which are predominant in a certain region are developed so that they eventually enjoy parity of esteem and are treated equitably. 384

Language right and linguistic human right

In the second half of the previous century in the international debate on the status of ethnolinguistic minorities, now defined not only in terms of numbers, but also in terms of influence and a certain degree of historical continuity (Braën 1987:7-9, Hamel 1997:6) the protection of the language rights of minorities became increasingly associated with the concept fundamental human right. This concept is underwritten by internationally known sociolinguists and educationalists (Skutnabb-Kangas & Cummins (Eds) 1988, Skutnabb-Kangas 1995, Skutnabb-Kangas et al. (Eds) 1995, Paulston 1997, Kontra et al. (Eds) 1999, Skutnabb-Kangas 2000, 2002). Supporters of the view that the free choice of any minority language must be seen as a basic human right proceed on the assumption that language is an essence of life, and that language "plays a critical role in defining individual identity, culture and community membership (Coulombe 1993:140), a view endorsed by the Canadian Supreme Court as earlier indicated. Where as a linguistic human right is universal and exists independently of state interference a language right, which refers to both individual and group rights, is recognized / not recognized, and guaranteed/not guaranteed, by a particular state. Especially group rights necessitate interference on the part of a state. A linguistic laissez-faire attitude leaves minority groups vulnerable to hegemonic favoritism. In spite of the recognition of eleven official languages and the provisions indicating that all of the official languages should receive "parity of esteem" and be treated "equitably" (section 6(4) of the Constitution), it soon becomes apparent that in practice forces are at work to undermine the status of all of the languages with the exception of English which now even occupies a hegemonic position in public life. The purpose of language rights is to defend official language minority rights, and to assure the equal status of the official languages. Language rights have not to be confused with the right to a fair trial, a universal right. The stipulation of section 35(3) (k) is such a right, specifically a communicative right. Where it is not practicable that the accused be tried in a language that he/she understands the section stipulates that the proceedings being interpreted in that language. Efforts to introduce one language in courts would not only be unconstitutional and therefore invalid, but would prevent the majority of accused from having a fair trial in a language that they understand, apparently not the intention of section 35(3)(k). The 385

prevention of the accused persons to have a fair trial furthermore would have accompanying far-reaching social effects. Because all parties concerned, e.g. families and friends, are also excluded, they would not understand the justice system and would be alienated from the processes of the court. The result would be that, in spite of the democratic changes since 1994, minority rule in the legal process continues. Without acknowledgement and implementation of the diversity in South Africa nation-building will stay a myth, and the so-called rainbow nation becomes politically and culturally monochrome.

Conclusion

The Constitution, which recognizes eleven official languages, is clear on the issue of language rights. While witnesses and the accused can testify in any of the eleven official languages or rely on the services of a translator when doing so, lawyers, magistrates and judges may speak only English and Afrikaans, even when all parties before the court speak a first language other than English or Afrikaans. In spite of huge practical problems all the official languages should in court procedures enjoy equal status and every citizen given the right to express themselves in the language of their choice (the present system also poses huge practical problems, cf. Malan 1998). The right for everyone to use any of the official languages in court is more than a communication right, it is a fundamental human right. To use only English and Afrikaans as official languages for all practical purposes in courts, to the exclusion of all other official languages is, according to the Judge President of the Cape High Court, "unfortunate, unconstitutional and untenable", and "a painful reminder of our past, of which all right-thinking South Africans should be ashamed" (Hlophe 2000:696).

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