Foreign accused face drastic cuts in language help
In a bid to curtail spiraling costs, the department of justice is proposing that the number of languages for which court interpreters are provided be slashed to just the 12 official languages, French and Portuguese.
It emerged this week that the department had in the past three financial years spent nearly R176m on procuring interpretation services for foreigners who say they do not understand English or any other local language.
The move is likely to meet resistance from local NGOs that advocate for the rights of immigrants.
The director-general of the department of justice, Doctor Mashabane, told the justice portfolio committee this week some foreign nationals who fell foul of the justice system claimed in court that they did not understand proceedings.
The department says the millions of rands spent on securing interpreters could better be spent on ensuring access to courts for victims of crime.
Mashabane said the department was drafting a proposal to amend the law to limit the number of foreign languages catered for.
The deputy DG responsible for court administration, Charles Mohalaba, told the Sunday Times that since 1994 courts have been accommodating foreigners who “allege” they do not understand English or any of the other official languages.
Foreign language services or interpreters would be procured for them in a language that they understand and/or “choose to understand”, even if it is an obscure dialect from a small geographic area of their country of origin.
“Sometimes, such dialects or languages are not the recognised or formal languages in the courts of the countries of origin, and therefore the government of South Africa is giving persons of foreign origin more language rights in South Africa than they have in their own country,” said Mohalaba.
Section 35(3)(k) of the constitution provides that every accused person has a right to a fair trial, which includes the right to be tried in a language the person understands or, if that is not practicable, to have the proceedings interpreted in that language.
“This specific section does not provide for interpretation into an accused person’s home language, preferred language or language of origin, but interpretation in a language that person understands,” the deputy DG said.
“The person’s official language of the country of origin, would most probably, except in certain narrow circumstances, be the language that that person, would understand.”
The need to find an interpreter has led to enormous backlogs in the courts. Sometimes the department has to find an interpreter in the country that the accused comes from. Mohalaba said the R175.7m spent on interpreters over the past three years included air fares and accommodation for such language experts.
In April this year, prosecutors in the trial of Ukraine-born Igor Russol, who is co-accused alongside Mark Lifman, Jerome Booysen and 11 others for murder, wanted to separate his trial because no Russian interpreter was available. News24 reported that at the 11th hour Russol said he could understand English, and did not need an interpreter.
The department says it has obtained legal opinion from the chief state law adviser about amending the section of the Magistrates’ Courts Act that deals with an accused’s right to an interpreter.
In the meantime the department has proposed:
● That an accused has access to an interpreter conversant in one of the official South African languages or two additional languages of the Southern African Development Community, namely French and Portuguese, “to be able to understand and follow the court proceedings against him or her“; and
● The judiciary will investigate if a foreign defendant or litigant can understand any of these languages sufficiently to follow court proceedings.
Mbekezeli Benjamin, a legal researcher and advocacy officer at Judges Matter, said the constitutional right to be tried in a language an accused understands was one of the vital protections of the right to a fair trial.
“Like many constitutional rights, it may come at some expense to the state, and the state is obligated to foot this bill,” he said.
“Either way you look at it, the state’s failure to provide proper interpretation in a language people understand leads to an injustice that manifests in two ways: innocent people will be sent to jail without a clue of why, or perpetrators of serious crimes will walk free, as they would not have received a fair trial and thus have their convictions set aside on appeal.”
Benjamin said the department’s current policy of flying in an interpreter from a foreign country where necessary was commendable.
“However, to move from that situation to what is proposed in the policy, which is providing interpretation in only the official South African languages together with French and Portuguese is extreme.”
Benjamin said South Africa has a large Somali refugee population who could be jeopardised by the proposed changes because many of them spoke only Arabic, Somali or Oromo.