Considering an appropriate language policy for judicial proceedings in South Africa
ABSTRACT
This article considers the most appropriate policy for language use, more in particular the use of the official languages in South African courts. The point of the departure is that the courts are in the service of the public, and not the other way around. Hence the arrangements regarding the use of languages have to be such that they best account for the particular needs of all South Africa’s communities. In addition such arrangements have to give effect to the rights of everyone appearing in the courts as parties, witnesses and accused persons; effectively promote the smooth administration of justice and protect and advance the indigenous languages.
Against this backdrop the constitutional provisions pertinent to the present matter, namely sections 6(2), section 35(3)(k) in relation to criminal matters, and section 34 pertaining to civil litigation, are analysed. Relevant legislative provisions are also referred to and case law discussed. This leads to the conclusion that the use of English as the only language of record would severely obstruct effective access to justice. Such obstruction would be to the detriment mostly of indigent people who lack the means to overcome the language barrier between themselves and an English-speaking court by acquiring legal representation (in criminal cases) and of legal representation and interpreting services (in civil cases).
Conversely, the increased use of the indigenous official languages as languages of record is bound to promote effective and equal access to justice for all members of society. The transformation of the judiciary which has the effect of an increasing number of first language speakers of the indigenous African languages being appointed to the bench and elsewhere in the legal sector, facilitates the increased use of these languages. Various proposals are made on how the official languages may be used within various linguistic settings in the courts.
Against this backdrop the constitutional provisions pertinent to the present matter, namely sections 6(2), section 35(3)(k) in relation to criminal matters, and section 34 pertaining to civil litigation, are analysed. Relevant legislative provisions are also referred to and case law discussed. This leads to the conclusion that the use of English as the only language of record would severely obstruct effective access to justice. Such obstruction would be to the detriment mostly of indigent people who lack the means to overcome the language barrier between themselves and an English-speaking court by acquiring legal representation (in criminal cases) and of legal representation and interpreting services (in civil cases).
Conversely, the increased use of the indigenous official languages as languages of record is bound to promote effective and equal access to justice for all members of society. The transformation of the judiciary which has the effect of an increasing number of first language speakers of the indigenous African languages being appointed to the bench and elsewhere in the legal sector, facilitates the increased use of these languages. Various proposals are made on how the official languages may be used within various linguistic settings in the courts.
