COURTS SHOULD PRO­MOTE ALL An ap­par­ent de­ci­sion to make English the only lan­guage of record in SA’s high courts will have grave im­pli­ca­tions for ac­cess to jus­tice

CityPress - - Voices & Careers -

On April 16, the Sun­day Times re­ported that the heads of courts had de­cided to make English the only of­fi­cial lan­guage of record in South African high courts. The heads of courts are all judges pres­i­dent of the di­vi­sions of the high courts un­der the chair­man­ship of Chief Jus­tice Mo­go­eng Mo­go­eng. Cor­re­spon­dence was sent to the of­fice of the chief jus­tice on April 21, ask­ing for an ex­pla­na­tion on how such a de­ci­sion was made and on what au­thor­ity. To date, we have not re­ceived a re­sponse, hence our de­ci­sion to write this open let­ter.

Ac­cord­ing to sub­sec­tion 8(3)(b) and sub­sec­tion 8(6) of the Su­pe­rior Courts Act, the chief jus­tice is not con­ferred with the pow­ers that de­ter­mine the lan­guage of record in South African high courts, re­gard­less of whether or not the chief jus­tice en­joyed the ma­jor­ity of sup­port from the heads of courts as re­quired by sec­tion 8(5) (a).

It is alarm­ing that this al­leged de­ci­sion was made pub­lic in a na­tional newspaper. How­ever, it failed to ap­pear in the Govern­ment Gazette, ac­cord­ing to our re­search. This sug­gests that there was no con­sti­tu­tional or leg­isla­tive au­thor­ity en­abling the chief jus­tice to change the lan­guage of record in high courts and that such a de­ci­sion can only be made by the ex­ec­u­tive, sub­ject to Par­lia­ment’s over­sight.

Ac­cord­ing to the Con­sti­tu­tion, the state must take prac­ti­cal and pos­i­tive mea­sures to el­e­vate the sta­tus and ad­vance the use of African lan­guages. Fur­ther­more, all of­fi­cial lan­guages must en­joy par­ity of es­teem. These are the pro­vi­sions that you, as chief jus­tice, along with the heads of courts, must en­force and pro­tect. In this light, we ques­tion how hav­ing English as the sole of­fi­cial lan­guage of record el­e­vates the sta­tus of African lan­guages, and re­verses their his­tor­i­cally di­min­ished use.

The al­leged de­ci­sion in­stead el­e­vates English to a su­per­of­fi­cial lan­guage, con­trary to con­sti­tu­tional pro­vi­sions and, in do­ing so, un­der­mines the rule of law.

The al­leged de­ci­sion tran­si­tions from a de facto bilin­gual lan­guage of record to a mono­lin­gual po­si­tion. This weak­ens the ar­gu­ment for a lin­guis­ti­cally in­clu­sive le­gal sys­tem and un­der­mines the prin­ci­ples of lin­guis­tic di­ver­sity and the ba­sic right of ac­cess to courts, as pro­tected in the Con­sti­tu­tion. It in­ter alia com­pounds the cost for African lan­guage mother-tongue­s­peak­ing civil lit­i­gants whose tri­als are pro­longed be­cause of the in­volve­ment of in­ter­preters and, pos­si­bly, trans­la­tion ser­vices.

More­over, we ques­tion how this de­ci­sion is con­sti­tu­tion­ally sound, with re­gards to an ac­cused per­son’s lan­guage right. We firmly be­lieve the al­leged de­ci­sion dis­crim­i­nates un­fairly against ac­cused per­sons on grounds of lan­guage, in terms of sec­tion 9(3) of the Con­sti­tu­tion and the Pro­mo­tion of Equal­ity and Preven­tion of Un­fair Dis­crim­i­na­tion Act, with spe­cific ref­er­ence to the re­quire­ment to pro­mote di­ver­sity.

We ques­tion why no pub­lic par­tic­i­pa­tion or mean­ing­ful en­gage­ment was un­der­taken re­gard­ing us­ing English as the sole of­fi­cial lan­guage of record. What mo­ti­vated the de­ci­sion and whose in­ter­ests does this serve? It is our opinion that this is not to the ben­e­fit of lin­guis­tic in­clu­siv­ity and the pro­mo­tion of mul­ti­lin­gual­ism, but rather an ex­clu­sion­ary de­ci­sion that hin­ders ac­cess to jus­tice.

The al­leged de­ci­sion to re­move Afrikaans (and, by im­pli­ca­tion, negate all African lan­guages) along­side English as a lan­guage of record is con­flicted in light of the dic­tum in the case of Ermelo (2010), where the Con­sti­tu­tional Court held that: “... when a learner al­ready en­joys the ben­e­fit of be­ing taught in an of­fi­cial lan­guage of choice, the state bears the neg­a­tive duty not to take away or di­min­ish the right with­out ap­pro­pri­ate jus­ti­fi­ca­tion”.

The same prin­ci­ple ap­plies to lit­i­gants. There­fore, on what grounds is this jus­ti­fi­able? Is it pos­si­bly based on the knee­jerk re­ac­tion of Afrikaans be­ing used as a tool of op­pres­sion and dis­crim­i­na­tion? If so, how do you jus­tify re­tain­ing English, a colo­nial lan­guage? And if it is an op­pres­sive sta­tus quo the hon­ourable chief jus­tice is try­ing to re­verse, why not el­e­vate the African lan­guages to lan­guages of record? This would be con­sti­tu­tional and trans­for­ma­tive.

Ac­cord­ing to the 2011 na­tional cen­sus, only 9.6% of the pop­u­la­tion speaks English as their mother tongue. We ques­tion whether Le­gal Aid SA’s lan­guage sur­vey last year, in which statis­tics proved that English was not the pri­mary spo­ken lan­guage in civil mat­ters across all prov­inces, was con­sid­ered. In fact, the pri­mary spo­ken lan­guages across the prov­inces for civil cases were recorded at 21% isiZulu, 20% Afrikaans and 16% isiXhosa. Sim­i­larly in crim­i­nal cases, for lit­i­gants, English was not the pri­mary lan­guage spo­ken by the ma­jor­ity of peo­ple in the nine prov­inces. The pri­mary spo­ken lan­guages in crim­i­nal mat­ters were 24% isiZulu, 22% Afrikaans and 20% isiXhosa.

The English pro­fi­ciency statis­tics in crim­i­nal cases il­lus­trate that, in all prov­inces, lit­i­gants’ pro­fi­ciency in un­der­stand­ing, speak­ing, read­ing and writ­ing English is ei­ther poor or sat­is­fac­tory. Were these statis­tics con­sid­ered and, if so, how is the al­leged de­ci­sion jus­ti­fi­able against these num­bers? Re­search has proven that mul­ti­lin­gual­ism is a re­source and that bud­getary con­straints are a red her­ring.

We are sug­gest­ing that the al­leged de­ci­sion is not trans­for­ma­tive and trans­par­ent, in line with the val­ues en­shrined in the Con­sti­tu­tion. We fur­ther sug­gest that a process of mean­ing­ful en­gage­ment and con­sul­ta­tion be un­der­taken with all rel­e­vant stake­hold­ers be­fore mak­ing a fi­nal rec­om­men­da­tion to the ex­ec­u­tive. Fur­ther­more, it is sug­gested that the of­fice of the hon­ourable chief jus­tice pre­pare a proper lan­guage man­age­ment plan for the var­i­ous high courts to ac­com­mo­date the use of the of­fi­cial lan­guages in the var­i­ous re­gions, in com­pli­ance with con­sti­tu­tional pre­scripts. It presently sug­gests a mis­in­formed top­down de­ci­sion, which ig­nores South Africa’s mul­ti­lin­gual re­al­ity. Za­keera Do­crat is a mas­ter’s stu­dent in African lan­guages at Rhodes Univer­sity; Pro­fes­sor Rus­sell H Kaschula chairs the In­tel­lec­tu­al­i­sa­tion of African Lan­guages, Mul­ti­lin­gual­ism and Ed­u­ca­tion at Rhodes Univer­sity; Cerneels JA Lourens is a di­rec­tor at Lourens At­tor­neys; Alana Bai­ley is deputy chief ex­ec­u­tive of AfriFo­rum; An­nelise de Vries is lan­guage plan­ning co­or­di­na­tor at AfriFo­rum; Pro­fes­sor Mon­wabisi K Ralar­ala is di­rec­tor of the Fun­dani Lan­guage Cen­tre at the Cape Penin­sula Univer­sity of Tech­nol­ogy



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