THE USE OF LANGUAGE IN THE COURTS

Under the Constitution, South African courts function in terms of national legislation.Footnote ³¹ This implies that the rules and procedures applicable in court must be provided for by national legislation.Footnote ³² National legislation governing court practice in both the high and lower courts regulates the use of language in the courts, albeit only to a limited extent. The Uniform Rules of the High Court (Uniform Rules) provide that, “[w]here evidence in any proceedings is given in any language with which the court or a party or his representative is not sufficiently conversant, such evidence shall be interpreted by a competent interpreter”.Footnote ³³

Under the Magistrates’ Courts Act:

In addition, this act accommodates the use of “either of the languages” during court proceedings.Footnote ³⁵ The provision is still couched in terms of the original position, which recognized the existence of only two official languages. The author submits, however, that such implication and connotation is easily over-come by a teleological mode of interpretation, which essentially entails a more extensive approach. The latter fundamentally takes into account in its assessment all other surrounding legislation and circumstances. To this extent the provision must be read to include all the official languages of the day.Footnote ³⁶

The provisions of the Magistrates’ Courts Act apparently apply specifically to court proceedings only, whereas the Uniform Rules refer to tribunal proceedings in general.Footnote ³⁷ In the case of criminal proceedings, the Constitution recognizes the right of an accused person to be “tried in a language which he understands”.Footnote ³⁸

The use of language, even in ordinary discourse, is often a source of controversy and rancour, particularly when viewed from a historical context that is characterized by deep political, social and cultural fissures, as is the case in point. The harmonization of language policy is, therefore, a crucial element in the bridging of the resultant schisms.

The emotional sensitivities that underlie the use, and by extension choice, of language, as well as the consequences of an unclear language policy were outlined succinctly in Matemane v Magistrate, Alberton (Matemane), a pre-constitutional judgment, where Heher J stated that, “[t]he power, if it exists, to direct the choice of language used in the courts touches sensitive chords. Unless there is clarity as to the rights and duties of litigants, of accused persons, legal practitioners (including prosecutors) and judicial officers, the image of the judicial process in the public perception can only suffer harm”.Footnote ³⁹

The preamble of the Constitution expresses in broad terms the aspiration to provide an inclusive milieu in which a populace that is “united in … diversity” hopes to “heal the divisions of the past”. To this extent, a “recogni[tion of] the injustices of our past” substantially envisages transition towards an approach to language policy that is acutely cognisant of past practices, and is informed by the desire to advance to a more egalitarian arrangement. This is the most obvious pointer yet of language's pivotal position in the construction of a pluralistic framework, which intrinsically yearns for inclusivity against the backdrop of a fractured edifice.

The Constitution's vision of harmonizing language may be viewed from two perspectives. It is characterized, on the one hand, as an attempt to “to unify and homogenise life, yet also to throw together and tolerate diversity”.Footnote ⁴⁰ On the other hand, the question of language use cannot be separated from aspects of politics, power, domination and ideology.Footnote ⁴¹ These are crucial, if not decisive, determinants, which in some respects touch on broader questions of socio-cultural policy.Footnote ⁴²

It may be argued in this respect that the Constitution's explicit recognition of cultural diversityFootnote ⁴³ serves as a bulwark against linguistic or cultural domination, whether perceived or otherwise. Hence, at a political level language is recognized as a “formal statement of equality”.Footnote ⁴⁴

In the same vein, while the Constitution expresses the recognition of language in terms of equity and parity of esteem, the mantra per se is not as clear and compelling as the principle of equality itself.Footnote ⁴⁵ In other words, it merely implies a non-binding obligation on the part of the state to treat all languages equally.Footnote ⁴⁶

The concept of plurality in modern society is not as easily explained as it is currently expressed in constitutional creed. Although it represents, in principle, the ideal of parity, it does not always necessarily represent “a diversity of equals”Footnote ⁴⁷ in the greater scheme of things. Competing for primacy of place, especially in official discourse, is almost always inevitable in a multi-lingual environment that aims to harmonize and unify disparate socio-cultural aspirations.

We approaches the issue of parity by using the concepts of complementarity, displacement and equivalence: “[l]inguistic equivalence refers to a situation where one language is claimed to be on par with another. Linguistic displacement refers to a competitive situation where the presence of one language is seen to lead to the elimination of another. Finally, linguistic complementarity is where various languages are treated as serving different and non-overlapping functions so that there is no competition between them”.Footnote ⁴⁸

Hence, cognisance has to be taken of the notion that, where a language is retained under competitive conditions, the potential for the maintenance of ethnocentric attitudes and objectives cannot be discounted.Footnote ⁴⁹ Here, the author submits, lies the Constitution's Achilles’ Heel, when addressing the question of language use in general and the equality of language use in particular.

The endoglossic language policy adopted in South Africa somehow supinely exhibits all of Wee's delineations. However, while linguistic parity is an undisputed article of faith that is arduously championed by the Constitution, it is only fair and pragmatic to accept that the mere assertion of equivalence may not always equate to parallelism, nor is it sufficient to achieve equity.Footnote ⁵⁰ Thus, raising the status of a language is not necessarily analogous to its advancement.Footnote ⁵¹

The question of linguistic displacement is, however, more potent and real in the present context and circumstances. Giving equal recognition to previously disadvantaged languages has inadvertently ensured that native South African languages,Footnote ⁵² which were perennially and automatically imbued with a quality of “essentialised-inferiority”,Footnote ⁵³ continue to struggle for recognition and survival, despite express textual affirmation in the Constitution.

While Afrikaans is subjectively viewed in some quarters as an “instrument of apartheid and oppression”,Footnote ⁵⁴ the English language somehow escapes any pejorative labelling, despite its own controversial history as a vehicle for the hegemonic and acculturation purposes of successive English governments during the colonial era.Footnote ⁵⁵ Instead, it inexplicably assumes a liberatory and somewhat virtuous aura, no less because of its wide use among anti-apartheid activists.Footnote ⁵⁶ Consequently, the acceptance and use of English is almost unassailable as the “political” language of choice.Footnote ⁵⁷ This has prompted rumblings about the “de facto hegemony of English” at the expense of the other official languages.Footnote ⁵⁸

Needless to say, these suppositions are not entirely far-fetched. The implementation of a single language policy, which would enthrone English as the primary medium for official discourse, would carry two potentially negative and unpalatable consequences. At a subjective and specific level, it would signal the diminution of Afrikaans from its pedestal as an official language, which hitherto had enjoyed pride of place alongside English. More generally, confirmation of all the other official languages as facilitatory tools of official communication would become a fait accompli. This, of course, is premised on supposedly pragmatic considerations, which portray the English language as a benevolently universal, and therefore accessible, vehicle of communication accepted by all.

The essence of the content of the Constitution and ancillary legislation strongly implies the retention of the contingent of official languages for different functions and purposes. While the functions of traditionally marginalized languages are, to a large extent, recognized merely at a “cultural” level, English (and Afrikaans, to a lesser extent, until relatively recently) is preponderantly utilized for intellectual and technical purposes. Hence, its acceptance, status and recognition as the indisputable symbol of intellectual authority.

The practice (of elevating English) is fundamentally premised on the lack of standardization of indigenous languages, coupled with the absence from these languages of expressive technical vocabulary.Footnote ⁵⁹ These are perennial arguments that apparently define the internal contradictions of the previously marginalized native languages and ultimately serve as a convenient alibi for their non-advancement.

However, South Africa is not unique in this regard. In many parts of the world, English enjoys association with prestige and economic power.Footnote ⁶⁰ In some instances English, although not an official language, serves as an “inter-ethnic lingua franca”, which has pragmatic rather than cultural value.Footnote ⁶¹ Such endowments are not lost in the South African context and apply, the author submits, with equal measure.

In the recent past the use and recognition of only two official languages presented minimal challenges in practice in the context of tribunal proceedings. National legislation, as already noted, provided for the accommodation of native South African languages in the context of tribunal proceedings, with the aid and facilitation of translation Thus, in the vast majority of cases, it was (and still is) native languages (namely, Sepedi, Sesotho, Setswana, isi-Swati, Tshivenda, Xitsonga, isi-Ndebele, isi-Xhosa and isi-Zulu) that required translation into either English or Afrikaans in court settings. Thus, native South African languages provided, in the instance of tribunals, only a facilitatory role, which neither overlapped nor competed with the principal languages of record, either for supremacy or parity. This situation has remained virtually the same, despite their current official status, which catapulted these languages from relative obscurity onto a supposedly level playing field.

Given practical and pragmatic considerations, the use of a single official language is most desirable.Footnote ⁶² In most instances it is undoubtedly the most practical option.Footnote ⁶³ The application of a single language policy is particularly satisfactory in circumstances where all the participants in a hearing are proficient in the language of record. The most apparent and obvious advantage in this regard is the symmetrical and uninterrupted relaying of information between participants in the legal proceeding.

While the logic of a single language policy is only too self-evident, its utilitarian logic cannot be regarded as the only solution to uninterrupted tribunal discourse. Ordinarily, the previous dual language policy sometimes delivered unhindered procedural interaction, which in turn resulted in the speedy resolution of disputes. However, the arrangement was not without its own flaws, spawned by unexpected technical glitches.Footnote ⁶⁴

The question of language use in official discourse underwent limited, yet decisive, metamorphosis from the advent of South Africa's Interim ConstitutionFootnote ⁶⁵ to the present day. An evaluation of the provisions that relate to language, more specifically its use in general and official discourse, reveals a perilous struggle to arrive at a lasting, workable and generally acceptable solution. In the final analysis, it is important to discuss the Interim Constitution, in order to provide context to the supposed lacunae in the Constitution itself.

A BRIEF EXEGESIS OF THE DEVELOPMENT OF LANGUAGE POLICY IN THE CONSTITUTIONAL ERA

The Interim Constitution contained important provisions regarding the use of language, which, the author submits, did not necessarily crystallize into the provisions of the final Constitution. This state of affairs left intractable lacunae in the final dispensation, which, in some instances, entrenched rather than resolved the schisms that existed in official language use and discourse.

On the question of the practical use of languages, the Interim Constitution was more direct and expansive. Accordingly, a person had the right, not only to “use”, but also to be “addressed” in the “language of his or [her] choice” at the nationalFootnote ⁶⁶ and provincialFootnote ⁶⁷ level of government.Footnote ⁶⁸ This arrangement was, however, restricted to the 11 recognized official languages.Footnote ⁶⁹

The reason for this provision being abandoned in the final dispensation is somewhat self-evident. Its transfer into a court setting would essentially entail, by one interpretation, the right to have evidence translated into one's own language and, by another, the right to demand proceedings themselves in one's own language. While the argument on the latter point might sound fractious and impractical for the most part, a closer assessment of the court's analysis in S v Pienaar (Pienaar)Footnote ⁷⁰ reveals an argument in favour of that approach.

The absence of a level playing-field is discernible from the couching of the provision that relates specifically to the use of language in court. Under the constitutional Bill of Rights: “[e]very 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”.Footnote ⁷¹

The wording and implications in the corresponding interim provision are similar, save for the phrase “failing this, to have the proceedings interpreted to him or her”,Footnote ⁷² in place of the words “if that is not practicable, to have the proceedings interpreted in that language” in the new provision. The author submits that this implies divergent connotations to the provision as a whole. While the two provisions appear, at first sight, to denote the same purpose, meaning and consequence, this is not necessarily the case.

The interim provision had vastly more expansive allusions, which fundamentally implied wider application of the provision. The Constitutional Assembly's apparent intention in this regard, as implied by the provision, appears unequivocally to have been for the provision to be activated upon the “failure” to try the accused in the language most accessible to him or her. Consequently, the proceedings would have had to be conducted in any other language, just as long as they could be translated for the accused. The provision had a further significant implication. The translation had to be in a language that the accused understood fully, and not only partially.Footnote ⁷³

Crucially, however, while the interim provision centred on the “interpretation of the proceedings”, the final provision is essentially premised on the “interpretation of the language” of choice of the defendant. This crucial difference came starkly to the fore in Mthethwa v De Bruin,Footnote ⁷⁴ where the court, in interpreting section 35(3)(k) of the Constitution, concluded that the provision does not accord an accused person the right to have their trial conducted in a language of his or her choice.Footnote ⁷⁵ The import of the provision merely confers the right to be tried in a language that he or she understands.Footnote ⁷⁶ The court maintained, in this regard, that the unfairness of any discrimination complained against regarding the choice of language had to be judged on the basis of practical considerations,Footnote ⁷⁷ being the feasibility or otherwise of conducting the trial in the language envisaged. The position regarding the translation of proceedings is apparently further supported by the Magistrates’ Courts Act, which envisages the recording of evidence in the official language that was used.Footnote ⁷⁸ Thus the proceedings would have to be conducted in the accused's language of choice. In other words, the court would have had to be conversant with the language preferred by the accused. The author submits that, at an elementary and simplistic level, the policy envisaged by section 35(3)(k) essentially implies the prerogative to be able to follow proceedings in a language “preferred” by the litigant. For practical and pragmatic reasons, the preferred language is often the litigant's or witness's first language.Footnote ⁷⁹ Thus, in the context of the current Constitution, which guarantees the parity of status of the official recognized languages, it is somewhat anomalous to require a party to establish the veracity of their claim to be unable to use one or other language instead of the one that is “generally used or preferred”.Footnote ⁸⁰

“Interpretation of the proceedings” would, therefore entail translation from a language not understood by the court and the accused into the language of record, as it were. The author submits that the analysis in Pienaar Footnote ⁸¹ on this aspect accords with this line of reasoning. According to this approach, the most rational course of action is to proceed in a language that is not only practicable in the circumstances, but also suitable for all the participants involved in the process. When taken to its logical conclusion, this exegesis renders the courts’ submissions in Matomela and Damoyi moot and ineffectual.

What also seems to be a linguistic discrepancy in section 35(3)(k) is the phrase, “interpreted in that language” (emphasis added). While the most sensible implication of this is for one language to be translated into another, the phraseology seems to suggest a different meaning altogether. Interpretation “in” the language in question somehow implies confusion regarding the language to which reference is being made. The wording somewhat creates the unseemly and improbable implication of translation into the same language that is being referred to in the first place.

The author submits in this regard that the connotation that is conveyed by the wording seems more in harmony with the Constitutional Assembly's apparent intention in the Interim Constitution, namely to have the proceedings, rather than the language, translated. However, the intention of the provision can only make sense if it implies translation “into” a language other than the one referred to in the first place.

The interim provisions also provided for the prohibition of the use of language for the purpose of exploitation, domination and division.Footnote ⁸² In addition, the provision relating to languages left no doubt as to the promotion of multilingualism. To this extent, the aspiration for this was expressly catered for.Footnote ⁸³ Clearly, these provisions were aimed at fostering sensitivity, respect and appreciation among all persons and their respective languages of choice.Footnote ⁸⁴ Hence, the author submits in the context of section 3(9)(c) of the Interim Constitution that the elevation of one or more language at the expense of others implicitly insinuates the prevention of “domination” of one language by another. Consequently, the inclusion of an equivalent provision in the Constitution itself would have made it almost impossible to avoid such a conclusion. Hence, the promotion of a single language policy that advocates the elevation of one language above the rest, is arguably rendered unworkable under such arrangement.

Lastly, both the interimFootnote ⁸⁵ and finalFootnote ⁸⁶ provisions essentially recognized the phenomenon of regional differentiation in the application of language policy. The author submits that this approach is, in essence, a double-edged sword, which fosters the spirit of plurality and multilingualism, while at the same time entrenching a divisive provincialism, based on language and (to an extent) exclusionary ethno-centricity.

While the rationale behind the delineation is somewhat understandable, given the spread of usage that was spawned by exclusionary segregation, the policy nonetheless inadvertently perpetuates separatist exclusion, which had come to characterize grand apartheid at its zenith.

THE RIGHT TO USE ONE'S LANGUAGE OF CHOICE: COURTS AT THE CROSS-ROADS

The cases of Matomela, Pienaar and Damoyi represent a peculiar situation in which the question of language use in court fell to be considered.Footnote ⁸⁷ The author submits that most of the findings of the courts in these cases raised further questions, rather than providing much-needed solutions to the most pressing issues surrounding language usage in the courts.

In Matomela, the court observed and lamented the absence of national legislation, as mandated by section 171 of the Constitution, which governs the use of language in court.Footnote ⁸⁸ According to the court, this unsatisfactory state of affairs necessitated the implementation of legislation that would foster the translation of court proceedings, subject to the Constitution.Footnote ⁸⁹

In its analysis of the legislative landscape, the court glaringly omitted any mention of the Magistrates’ Courts Act and the Uniform Rules as current and applicable national legislation regulating the use of language in court proceedings. In the past, the legislation in question had patently been meant to facilitate the flow of information in court proceedings, and in tribunals in general, in circumstances where litigation could be impeded by a lack of proficiency in either of the two recognized official languages at the time.

In the past, the facilitation implied that the language of record in any court proceedings would be either English or Afrikaans, regardless of the language spoken by any of the parties involved in the proceedings. Subsequently, the use, in procedural discourse, of one of the two official languages, even by presiding officers who were fluent in a native South African language, became a normalized and standard practice. Consequently, communication, even with fellow native language speakers in the language of record, became the norm, even in circumstances where all the parties could, and indeed would have been able to, communicate in the same native language.Footnote ⁹⁰

The promulgation of the provisions of the Uniform Rules and the Magistrates’ Courts Act probably did not envisage the current status quo, where over-arching inclusivity is the source of the current conundrum. In principle and in practice, the legislation served essentially as a facilitatory tool to the existing procedural edifice of the time. It was, to a large extent, tailored to deal with potential procedural log-jams that could be occasioned by the (inadequate) flow of information resulting from misconceptions of language between participants. Probably the most potent and obvious criticism of the legislation concerned its role in the relegation and entrenchment of native South African languages to third class status, as informed by the socio-cultural-political order of the day. However, its efficacy as the guarantor, at the very least, of a modicum of procedural fairness to every witness can hardly be underestimated.Footnote ⁹¹

To this extent, the author submits that the existing legislation still serves the same purpose as in the pre-constitutional era. Therefore, in the absence of any other prevailing legislation, the Uniform Rules and the Magistrates’ Courts Act provide the most viable guide to the approach to language use within the ambit of the Constitution.

In principle, the current constitutional provisions regarding the use and recognition of languages are fundamentally broad. Consequently, they are open to various interpretational perspectives, which are inadvertently calculated to serve, in some instances, narrow and insular interests. Thus, the author submits that relevant provisions of the Uniform Rules and the Magistrates’ Courts Act remain, in essence, the only legislative point of departure from which to regulate the use of language in the courts. To this end, the relevant constitutional provisions that relate to language use may be advanced by a teleological mode of interpretation, which would, in essence, require an extensive approach. Such an approach would, in effect, make sense of the provisions of the Magistrates’ Courts Act and Uniform Rules within the current constitutional dispensation.

Inconsistency and ambiguity are also to be found in the court's interpretation of section 35(3)(k) in Matomela. While on the one hand conceding the undisputed status of isi-Xhosa as an official language worthy of consideration and recognition, the court considers it implicitly undesirable for cases to be conducted in this language in future.Footnote ⁹² This argument is proffered despite the unavoidable events and circumstances that had culminated in the resultant consequences.

The same sentiment was expressed in Damoyi,Footnote ⁹³ where the court concluded that section 6 of the Magistrates’ Courts Act had been superseded by section 6 of the Constitution. Accordingly, reliance on the provisions of section 6 of the Magistrates’ Courts Act (which supported the premise that the accused had a right to be tried in the Afrikaans language in this instance) did not conform with the provisions of section 6 of the Constitution.Footnote ⁹⁴ In Matomela, the court also seemed oblivious to the fact that the trial court had not experienced any practical or logistical problems (other than, of course the obvious lack of a qualified interpreter) during the trial proceedings, which could have rendered the continuation of the trial virtually impossible.Footnote ⁹⁵ This, the author further submits, would have been in keeping with the letter and the spirit of the Constitution, which is essentially based on promoting diversity and poly-lingualism. Instead, the court took into consideration potential post facto hypothetical challenges that are bound to arise from the monolingual use of a native South African language in an entire court proceeding.Footnote ⁹⁶ To this end the court pointed out the “enormous costs” that could be incurred from the translation of evidence in cases that are presented for appeal and review after being heard originally in a language other than English.Footnote ⁹⁷ Such eventuality is further characterized by the court as “inconvenient and time-consuming”.Footnote ⁹⁸

In its summing up, the court considered that the situation would have been rendered “untenable” if the accused's legal representative had not been proficient in isi-Xhosa.Footnote ⁹⁹ Accordingly, this conundrum is likely to be further amplified where a case comes before an appellate or review court, where the language proficiency is other than the native South African language used in the original proceedings.Footnote ¹⁰⁰ In essence, the court's conclusion in this regard ignored the provision of the Magistrates’ Courts Act requiring the proceedings to be “recorded in the language so used”.Footnote ¹⁰¹

The author submits that this factor alone should have been adequate to alert and inform the court as to the viability, feasibility and desirability of conducting proceedings in any other official language, whenever the circumstances allowed, or even dictated. The court, however, held the view that challenges regarding the use of language in court could only be addressed by the adoption of a single language of record, “which can be understood by all court officials irrespective of mother tongue”.Footnote ¹⁰²

Notably, the court proffered the point of a single language policy without necessarily committing itself to a recommendation on the language of choice to be adopted in the circumstances. However, implicit in the court's reasoning is the suggestion of the use of a common language of record other than any of the native South African languages. The subtle and subliminal undercurrent of the argument in favour a single language “understood by all” obfuscates the court's intention, which, the author submits, is the entrenchment of (at the very least) English, as the official language of record.

In the same vein, the use and understanding of a single language for communication in court was not always possible, even in the context of the original dual official language policy. This is obviated by the fact that, while potentially attractive, the understanding of a particular language by a sizable population of speakers does not necessarily equate to proficiency. This principle was articulated by Heher AJ in Matemane:

While this statement was made against the background of the use of language by a legal representative in the context of the previous dual official language arrangement, the author submits that it purveys the same message in the context of the general use of language in court. The potency of the comments is accentuated by the backdrop of the current constitutional milieu, in which language rights are not only confined to legislative enactment, but have also acquired basic constitutional protection.

Basically, all native language speaking law practitioners in South Africa generally undergo their legal studies, and indeed legal training, in the English language. This is despite the fact that most of them are to some extent pluri-lingual.Footnote ¹⁰⁴ On the other hand, Afrikaans is still firmly entrenched as a language of record and is still the preferred medium of record of some witnesses and practitioners.Footnote ¹⁰⁵ In the same vein, whereas under the pre-constitutional dispensation presiding officers were “presumed to know the two official languages of the country”,Footnote ¹⁰⁶ the same cannot realistically be expected in the present context.

The court in Damoyi agreed in principle with the position in Matomela on the desirability of a single language policy for the courts. However, in this instance, the court was more candid in its anointment of English as the preferred official language of choice, best suited to relieve the stalemate. Its use in “international transactions” and “predominance in international politics, commerce and industry” naturally marked, fortified and consecrated English as the premium medium of discourse for South African courts.Footnote ¹⁰⁷

In Pienaar the preferred use of former official languages was contextualized as falling within the realm of “purely practical considerations”, despite the legislators’ obvious desire to promote the use of native South African languages.Footnote ¹⁰⁸ The exclusive use of Afrikaans and English was justified as a temporary measure that, through evolution, would probably see the two languages being “supplemented” by the use of native languages.Footnote ¹⁰⁹ This would hopefully culminate in the “equitable” use of all official languages, irrespective of regional affiliation.Footnote ¹¹⁰ Nevertheless, reasons justifying the retention of a dual language policy were explained as follows: the first factor to be considered is the tedious and long-winded nature of translated evidence,Footnote ¹¹¹ the inevitable consequence of which is the lengthening of court proceedings.Footnote ¹¹² The latter has potentially prohibitive cost implications, including seriously negative consequences for the general infrastructure of the courts, and the speedy and timeous finalization of cases.Footnote ¹¹³ Secondly, the court attacked the quality of translated evidence as unreliable and generally “second-best”.Footnote ¹¹⁴ Accordingly, the quality control of such evidence is only feasible in circumstances where the court is conversant with the language from which the evidence is being translated.Footnote ¹¹⁵

It is, however, worth noting at this point that, while communicative efficiency is desirable, it is not by any means the only decisive factor in the debate surrounding the efficacy of employing interpretation: “[t]he overriding consideration in cases where an accused does not speak or understand the language used by the court is to ensure that injustice is not done, even where this causes inconvenience or takes up additional time”.Footnote ¹¹⁶ In addition, “[p]ractical considerations cannot be put on the same level as the constitutional commitment to the promotion of language equity diversity and development. Therefore, no body of state may approach section 6 with the sole motive of finding loopholes in it, simply to justify its lack of commitment to multilingualism”.Footnote ¹¹⁷

The view of the court in Pienaar, especially on the question of the quality of evidence that is assessed by courts, implies the subliminal and uncomfortable suggestion that the quality of evidence that is generally assessed by courts in the majority of cases where translation is relied upon to relay information, tends to be of dubious quality. Consequently, such evidence is inadequate at best, and unreliable at worst. Fundamentally, the acceptance of such evidence has the unpalatable potential to produce iniquitous and unjust results and consequences. This is evidently worrisome, especially considering that adjudication in South African courts generally takes place over translated evidence.

The court's argument in this regard is further rationalized by the phenomenon of the steady increase in native language speaking presiding officers on the bench, whose home languages are invariably one or other of the official (native South African) languages.Footnote ¹¹⁸ This development is positive, according to the court, because of its potential for diversifying the adjudication process.Footnote ¹¹⁹ In other words, the fact that more and more presiding officers are conversant with, or are native speakers of, the newly inserted official languages is likely to accelerate the use of these languages in court. However, Matomela and Damoyi prove that such a notion is most unfavourable, presumably among the interpreters whose direct interests and proficiency the practice is supposed to serve.

Inevitably, the necessary condition for the ability to discern, and consequently assess and where necessary correct, inconsistencies in the translation of the interpreted language, lies principally in the ability to understand the source language accurately.Footnote ¹²⁰

However, the knowledge of a native South African language by a presiding officer who is native to the country cannot be generally presumed. Neither is knowledge of the language of one's original ethnic group to be assumed from obvious features of identification, such as name or geographical origin. Thus, it is not uncommon for a person belonging to a specific ethnic group not to be conversant in the language of his or her supposed origins.Footnote ¹²¹ Hence, the problem for the presiding officer cannot necessarily be remedied by incisive knowledge and understanding of the language in question, but by means of other quality control measures that are relatively independent of the presiding officer.Footnote ¹²²

These aspects regarding the desirability and feasibility of a single language policy are, admittedly, not entirely without merit. However, the submission regarding the prolonged nature of court proceedings, the quality of the relayed information and the attendant expense, while reasonable, conveniently ignores the prevailing state of affairs in the courts, in particular that evidence in the majority of criminal cases in South African courts, is still translated into the language of record, which is usually Afrikaans or English. This is despite the recurrent debates on language use and policy in the courts. The principle applies equally to accused persons and to witnesses, as well as to all other participants in the proceedings.

The same principle applies to the submission that translation for review or appeal purposes, in the case where the entire case was heard in a native language, will be rendered almost unworkable. In principle there appears on the face of it to be no impediment to the notion of the translation of transcripts from one language to another. In any case, the Uniform RulesFootnote ¹²³ provide for translation from one language to another. Thus, a possible solution to the quandary might be to expand and adapt the current provisions to include the translation of transcripts from the lower to the higher courts for the purposes of appeal and review.

The inconvenience, delay and additional expense that accompany the translation of proceedings when cases are referred for review and appeal, is cited as a factor that ostensibly vitiates against holding an entire court proceeding in a native language.Footnote ¹²⁴ This would ordinarily be the case where a presiding officer on the subsequent appeal or review tribunal is not proficient in the native language.Footnote ¹²⁵ The argument, though viable on the face of it, is not supported by any empirical evidence and data, which suggests that the translation of transcripts would be impossible, or even unworkable. Instead, the court makes unsubstantiated assumptions and findings that problems are likely to occur in this regard. On the other hand, while expense and time are quantifiable considerations that should merit consideration in the general compendium of truth-seeking, they should not be allowed to determine the overall administration of justice in individual cases.

This principle was elucidated by the Supreme Court of Canada in Tran v The Queen as follows: “[t]he overriding consideration in cases where the accused does not speak or understand the language spoken by the court is to ensure that injustice is not done, even where this causes inconvenience or takes up additional time”.Footnote ¹²⁶

Generally, the symmetrical flow of information in proceedings where more than one language is required for communication is a tedious and time-consuming exercise.Footnote ¹²⁷ This factor is obviated by the premise that the compilation of evidence is, by its very nature, usually an onerous exercise both logistically and economically. Depending on the nature, length and other variables of the individual case, the conduct of a trial may occasionally exert unbearable and immeasurable strain on the resources at the disposal of the authorities. However, the discharge of evidence cannot be dispensed with on the mere supposition of structural inadequacies, whether factual or otherwise. Instead, deficiencies of this nature can best be addressed by the implementation of other practical measures.Footnote ¹²⁸ In the final analysis, the recording of evidence in this fashion is meant to ensure, despite structural deficits, that justice is not only done, but is also seen to be done.

The author submits, in this regard, that the legislature can easily solve the problem in the long term by investing more resources in the training of interpreters and translators. This exercise, while initially seeming to be expensive, ambitious and overtly simplistic, can only serve to enhance the constitutional imperatives of equality, plurality and multilingualism. Otherwise, the much-vaunted “parity of esteem” of official languages remains but a hollow promise, unlikely ever to be fulfilled.

On the other hand, the submission in Pienaar on the need for “practical considerations” in the approach to language policy in the courts, in the light of prevailing circumstances, is not entirely devoid of merit. However, the professed pragmatic approach would, in the final analysis, simply imply further entrenchment of the original official languages, if the issue is not tackled with courage, fortitude and determination.

In Matomela, constitutional language rights were unabatedly interpreted independent of any other existing language policy. The court further implied a lacuna in the law, with which the legislature is not cognisant, and that essentially nullifies the operation of sections 6(1) and 35(3)(k) of the Constitution unless a single language policy is adopted for the courts.Footnote ¹²⁹ The argument is emphasized further by the assertion that, “[t]he Constitution as it presently stands entitles people of the same language group to conduct the whole case in their language only providing it is one of the official languages”.Footnote ¹³⁰

This line of reasoning, while inherently fallacious, also ignores the existence, purport and aims of ancillary legislation on the use of languages during court proceedings. In other words, the supposed loop-hole in the Constitution is necessarily supplemented by the provisions of the Uniform Rules and the Magistrates’ Courts Act which, the author submits, encompass most, if not all, of the contingent circumstances that might arise. Therefore, even in the factual circumstances of Matomela and Damoyi, a witness who is not conversant in isi-Xhosa, but is only proficient in English or any of the other official (or unofficial) languages, would still be accommodated under these provisions.

Even in the context of the original dual language policy, it had clearly never been the legislators’ intention to allow the presentation of evidence only in a single language. Multilingualism being a fact of life, and socio-culturally a reality even then, obviously dictated an accommodation of sorts for the marginalized languages. Such an approach would not only be unreasonable in the vast majority of cases, but also impractical. The author therefore submits that a proper consideration of these provisions by the court would in fact have demonstrated consonance and convergence with the Constitution in this regard.

Under normal circumstances, the advantages of a single language policy are inexorably self-evident. In this context, however, a well-balanced and less pragmatic approach is not only required, but also demanded. Such a policy is bound to lead to conceptions (or misconceptions, depending on the perspective) that threaten the underlying constitutional democratic ethos, which is supposed to serve as a foundation for all law-making. A single language policy in the South African context cannot escape the general imputation of an “undemocratic” pursuit, which denies and undermines the country's multi-linguistic demographics and pluralistic diversity.Footnote ¹³¹ The practice also possesses the inherent potential (inadvertently) to exclude rather than include other groups, which in itself implicitly carries a “destructive and disempowering effect”.Footnote ¹³²

The cases of Damoyi and Matomela presented an exceedingly golden and unparalleled opportunity to demonstrate and test the constitutional canon of the “parity of esteem” regarding the status and use of official languages. The choice (express in the former and implicit in the latter) of English within a single language set-up, on the basis of its “international” pedigree and flavour, while apparently “pragmatic”, essentially represents a colossal step backwards in the recognition of language rights, and multiculturalism in general. The irrelevance of English's pragmatism is obviated by the prevailing circumstances in the two cases, which dictated and necessitated the use of a local (official) language. Hence, the characterization in Pienaar by Buys J's of the court's arguments in this regard as “colonial and elitist” is apposite in the circumstances.Footnote ¹³³

The cosmopolitan nature, influence and reach of the English language can neither be ignored nor wished away. Its immersion into the fabric of South African society, politics and culture is, without doubt, firmly embedded. However, the use of English in court proceedings must, wherever applicable, be dictated not only by considerations of practicality, practicability and probity, but also considerations of constitutional imperative. In a nutshell, an overly simplistic approach to the conundrum must be avoided at all times.

The court in Pienaar on one hand ostensibly adopted a centrist approach, which espouses the virtues of multiculturalism and inclusivity in relation to language use, while on the other subtly advocated a sub rosa [clandestine] arrangement that, for “practical purposes”, entrenches the old order of a dual official language policy. This is despite the court's condemnation of the apparent advancement of English at the expense of the other official languages.Footnote ¹³⁴

To this end, the court in Pienaar substantially argues in defence of the use of languages, ostensibly on the basis of provincialism.Footnote ¹³⁵ In other words, the extent of the use of a language must be almost entirely dependent on the prevalence of its use within a particular region.Footnote ¹³⁶ Hence, the preponderant use of Afrikaans in the Northern Cape as the dominant medium of discourse in everyday life weighed heavily in favour of its use in court proceedings.Footnote ¹³⁷ In its re-iteration of this point, the court criticised the appointment of English speaking presiding officers and Legal Aid Board legal personnel to a province (the Northern Cape) that, according to the court, is predominantly Afrikaans-speaking.Footnote ¹³⁸ This practice may potentially lead to prolonged proceedings because of the need to translate from Afrikaans to English and vice-versa.Footnote ¹³⁹ It is, however, worth noting that the court's assertions in this regard are not necessarily averse to the constitutional dictates in relation to the regional delineation of language use.Footnote ¹⁴⁰ The argument, while purportedly plausible, is not without inherent contradictions. The provincial use of language in the fashion suggested by the court must, if at all agreeable, be premised on the existence of quantifiable statistics (and, by its own admission, the court's quantitative analysis was necessarily “not a scientific sample”).Footnote ¹⁴¹

In its crudest form, the submission regarding the provincial use of languages somewhat harks back to the bantustanization of South African society, in a manner never envisaged by the framers of the Constitution. The latter's upholding of the regionalization of language use at provincial and national government level,Footnote ¹⁴² while ostensibly intended as a pragmatic tool that tacitly acknowledges the reality of pre-constitutional regionalism, unwittingly serves as a double-edged sword that may yet prove cumbersome in both operation and interpretation. In the same vein, the supposedly practical approach, which envisages the continued use of language according to pre-constitutional borders, intrinsically bodes ominously ill for the promotion of cross-cultural awareness, understanding and cohesion, which, the author submits, are sorely lacking in many respects of South African society.

The court's advancement of a practical approach in Pienaar essentially spells dire consequences for the envisaged equal treatment of the other nine official languages. At its most benign, the court's suggestion to refrain from the “impractical” use of 11 official languages in favour of the current languages of record, sounds reasonable. The rationality of the stance is made more palatable by the submission that such an arrangement would merely be part an evolutionary phase, which would in time achieve a semblance of equality of use across the board. At its worst, the recommendation proposes the unpleasant maintenance of the status quo. In the same vein, the apparent rejection of the predominance of English in favour of inclusivity belies the equivocal intention to maintain the threatened parity of esteem between English and Afrikaans, while continuing to denigrate the previously maligned official languages.

The court in Pienaar agrees with the notion expressed in Matomela that the translation of transcripts from one language to another would be a prohibitively costly exercise that must be avoided wherever possible.Footnote ¹⁴³ In this regard, the author submits that a broad approach, which seeks to advance the previously disadvantaged languages as far as possible, is more satisfactory at this stage. To this end, a somewhat more comprehensive option, encompassing the translation of evidence, is proposed as the most feasible approach to foster inclusivity. With this approach, encouragement should be given, wherever practicable, for court proceedings to be conducted exclusively in previously marginalised languages. In addition, the necessary material resources should be employed to ensure the proficient translation of the proceedings into the required source language. It is submitted that such an approach conforms with the constitutional injunction that grants parity of esteem to all 11 official languages.

Furthermore, the concern expressed in Pienaar regarding the projected prohibitive expense of translation from any of the previously maligned languages, and its potential to delay proceedings unduly, is not entirely without merit. However, the argument is as misplaced as it is unhelpful. Other than the obvious absence of reliable feasibility studies supporting the supposition regarding the expected cost of translation, the argument essentially ignores the importance of the advancement of justice, regardless of time constraints and expense, as expressed in Tran v The Queen.Footnote ¹⁴⁴ The hypothesis advanced in Pienaar sounds more unreasonable and short-sighted when considered against the history and background of the pre-constitutional approach to court proceedings in South Africa. Invariably, court proceedings during this period were characterised by exclusion, not only in procedural but also in substantive terms; exclusion by means of language was, by far, the most pivotal and conspicuous aspect of the unequal criminal justice system. To this extent, a litigant who was not proficient in any of the languages of record was, to a certain degree, always an outsider to the legal system that determined his or her judicial fate. Thus, the conduct of proceedings under a more familiar linguistic environment (other, of course, than proceedings that are facilitated through translation) would serve to advance the course of justice and inclusivity for all participants in the criminal justice system. Consequently, the translation of the proceedings is but an additional mechanism to advance inclusivity, one that, to some extent, also balances the scales of communication.

The virulent criticism in Pienaar of the quality of translated evidence seems to contradict its suggestion of a more inclusive approach. The court appears to implyFootnote ¹⁴⁵ that the process of translation should, in general, be dispensed with, in order to accommodate speedier and more proficient proceedings. This argument is justified on the basis of an (admittedly unscientific) demographic census that simply concludes that a certain percentage of language speakers are situated in a particular geographic location. Hence, court proceedings within such an area can be conducted without recourse to the use of translation.Footnote ¹⁴⁶ The implication of the court's argument, if pursued to its logical conclusion, is that the use, on a daily basis, of translation from a native South African language (which occurs in the overwhelming majority of cases, on a daily basis) is a tedious, expensive and impractical exercise that must be, at best, only tolerated and, at worst, abandoned.

In the final analysis, the court purportedly only argues against translating evidence when it would entail clarifying the meaning from Afrikaans (particularly in the Northern Cape) to any other language (including, the author submits, English). In that sense the Afrikaans language would, like the native South African languages, be reduced to a mere instrument of facilitation, thereby replacing its former status as a dominant language of discourse alongside English. The cases of Matomela and Damoyi on the one hand, and Pienaar on the other, may be interpreted as two sides of a coin. The former espouse the virtues of constitutionalism at the risk of undoing the edifice of pluralism, whereas the latter embraces pluralism only in so far as it serves to advance a narrow version of constitutionalism. In either instance, the court adroitly skirts around a socio-political mine-field reserved only for the bravest.