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Heads of Court ruling on English questioned

Chief Justice Mogoeng Mogoeng has announced that the Heads of Court have recommended the sole use of English for the court record.

This has ignited a language controversy for the South African judiciary.

The Heads of Court's decision was made in April at a meeting to address court efficiency. The public has reacted four months later, after the decision was effected.

There are fears that this decision will trample on the constitutionally enshrined rights of people who aren’t English speakers in the country, where all eleven official languages are recognised by the courts.

That’s according to legal expert Saber Jazbhay, who says translators are still used in court proceedings to assist people whose first language isn’t English. He says the decision can help with certainty and consistency in the court record.

"However, if the rule is English or nothing then it will offend many rights under our Constitution," he warned.

The chief justice cited the need for efficiency in the processes of the judiciary as the reason for the choice of a singular language which all court officials understand. The issue of a single language for the court record has remained unresolved by the South African judiciary.

South African courts use the Case Flow Management system to manage efficiency during their proceedings.

A number of magistrates and other role players compiled The Practical Guide for Court and Case Flow Management for South African Lower Courts which is now used by the courts.

Other judiciaries across the world have also had to address the issue of official legal languages. In India, which is home to more than 4,000 languages, English is used.

In an article on judiciaries using multiple languages, Isabelle Bambust, a law researcher at Ghent University, compares South Africa with Belgium.

"Because of the different language areas in Belgium, the principle of territoriality reigns. A second Belgian principle is the extreme belief in procedural monolinguism."

The clauses in South Africa's Constitution, which could possibly be cited as part of a challenge to the Heads of Court decision, are sections 32 and 33 which deal with just administration and access to courts respectively.

In the S v Damoyi 2003 review judgment, Judge James Yekiso of the Western Cape High Court paid considerable attention to the issue. In the case, court proceedings in Bishop Lavis were held in isiXhosa to avoid further postponements due to the continual unavailability of an interpreter.

International Court of Justice

ICJ in the Hague, full bench.

On the day of the ruling the magistrate, state prosecutor and the accused were all isiXhosa speakers. The proceedings were recorded in isiXhosa and the magistrate found the accused guilty beyond reasonable doubt after the court applied its mind to the case.

In considering the case, the judge said: "In a covering letter addressed to the review judge, the magistrate explains that tremendous problems were experienced in having the portion of the record in which the evidence was recorded in isiXhosa transcribed, resulting in a delay in the transcription of the record."

In his review judgment, Judge Yekiso upheld the guilty verdict, saying justice had been served in the trial. He, however, emphasised the importance of addressing the issue of the parity of languages in court proceedings.

A key concern is procedural fairness in light of a possible conflict with section 34 of the Bill of Rights, which deals with the right to a fair public hearing. The section also mentions the use of other impartial tribunals or forums.

Professor Magnus Killander, of the Centre for Human Rights attached to the University of Pretoria, says there are a number of international human rights instruments available.

“For victims of human rights violations in South Africa, international human rights treaties provide an avenue for redress when they have exhausted local remedies, ie taken the case to the highest possible court.”

Available options in Africa include non-binding forums such as the African Commission on Human and Peoples' Rights or the United Nations Human Rights Committee.

"Nationals of some SADC states (such as Malawi and Tanzania) can approach the African Court on Human and Peoples' Rights which adopts binding judgments directly after exhausting local remedies," Killander added.

The African Court of Human and People’s Rights is currently hearing a case between the Ogiek people of Mau Forest in Kenya and the Kenyan government.

The relief sought by the Ogiek is the termination of an eviction order issued by the Kenyan Forestry Service. The Ogiek language is not well known outside of the region and that could well influence the way the trial is conducted and concluded.

Another international tribunal where relief can be sought is the International Court of Justice (ICJ) at The Hague. However, it too has experienced major problems with regard to language.

In 2002, during the trial of Slobodan Milosevic, who was charged with war crimes, interpreters were unable to follow the former Serbian leader’s line of questioning of a witness. It was thought that he was using purposely complex language and thought constructions in order to confound the court process.

Among the pending cases of the ICJ is the matter in which Indian national Kulbhushan Sudhir Jadhav was arrested, tried, convicted and sentenced to death by Pakistani authorities.

During the request for provisional measures on May 18, Judge President Ronny Abraham said: "Pakistan shall take all measures at its disposal to ensure that Jadhav is not executed pending the final decision in these proceedings, and shall inform the court of all the measures taken in implementation of the present order.”

The International Court of Justice is the primary judicial organ used by the United Nations to settle disputes. As such, it faces a complex list of languages which require translation and which potentially impact on the processes leading to the delivery of justice.

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