English as sole language in courts a constitutional crisis – VRA

Organisation says Mogoeng Mogoeng and his colleagues usurped legislative powers

Decision of the Chief Justice and the Heads of Court to impose English as the sole official language of record in the courts causes a constitutional crisis of the first order

9 October 2017

Chief Justice Mogoeng’s announcement on 29 September 2017 that English will henceforth be the sole language of record in our superior courts causes a constitutional crisis of the first order. Mogoeng and his colleagues disregard the fundamental principles of separation of powers. They usurped legislative powers which may only be exercised by the national legislature. Mogoeng also disqualified himself to act as judge in a dispute relating to this impugned decision. The decision also set a dreadful example of judicial violation of the Constitution by the Chief Justice and some of his colleagues, that is, by the very persons who are supposed to act as the guardians of the Constitution and the rule of law.

The Chief Justice’s announcement came against the backdrop of an instruction by judge president of the Western Cape, John Hlope, in April this year that only English would henceforth be allowed as the language of record in the High Court of the Western Cape. Hlophe’s instruction purported to have been made in pursuance of a 2015 resolution by the Heads of the High Courts under Mogoeng’s chairmanship (confirmed on 31 March 2017) to impose English as the sole language of record in South Africa’s superior courts. The announcement of 29 September was apparently precipitated by the open letter by prominent language activists from the Rhodes University, University of the Western Cape, AfriForum and Cerneels Lourens, published in City Press on 17 September 2017 (click here to read).

The VRA calls on the Chief Justice to withdraw the decision with immediate effect. The Chief Justice is also called upon to state on which legal – constitutional or legislative – authority the decision was taken in the first place. The VRA is of the opinion that there is in fact no basis for such decision and that it is therefore clearly ultra vires.
What makes the conduct of the Chief Justice even more deplorable is the surreptitious way in which the decision was made. It was made without the slightest vestige of prior consultation. Not even the Pan South African Language Board (PanSALB) was consulted.

Since the decision is patently unconstitutional, unjust and procedurally unfair, it is clearly not binding on any officer of court. No officer of court should therefore give effect to it. The decision is in fact nothing less than a flawed political mishap that blatantly impinges upon various provisions of the Constitution. It is deplorable that the Chief Justice, who should be the paragon of constitutional compliance, is in fact taking the lead in impinging upon the constitutional mandate to promote the use and status of the country’s indigenous languages. The decision is specifically harmful to Afrikaans which has a proven record of serving with distinction as a court language. It is difficult to escape from the impression that the decision is a premeditated ploy to downgrade the use and status of Afrikaans as a legal language.

Moreover, it is as harmful to the millions of speakers of the African languages, who are denied the prospect of access to justice in their own languages and the opportunity to develop the legal register of their languages.

The VRA is of the opinion that the Justice Portfolio Committee should urgently summon the Chief Justice to explain his decision. 

The VRA established a litigation committee in order to address the unconstitutional consequences of the impugned decision. Obviously the Chief Justice has disqualified himself to preside over a court in which the very subject of a dispute is his own impugned decision and that of some of his colleagues. Steps should therefore be taken to establish an ad hoc bench of retired justices that could adjudicate the case.

What the Chief Justice should have done in the first place, was to establish a proper system that allowed for the use of the various languages in such a way that the best interests of the public could be served (a responsibility that he should have performed under section 8 of the Superior Courts Act, 10 of 2013). That duty the Chief Justice clearly reneged on.

Issued by Koos Malan, Constitutional Law expert, VRA, 9 October 2017