LANGUAGE IN SOUTH AFRICAN COURTS: TALK IS NOT CHEAP

The right to a fair trial in South Africa is entrenched in section 35(3) of our Constitution and includes - very importantly - section 35(3)(k) which assures the right to be tried in a language that the accused person understands. This is essential to enable those charged with crimes to defend themselves adequately and answer properly to any charges levied against them by the State.

The protection of this right in South African constitutional jurisprudence follows international legal principle. For example, Article 14(3)(a) of the International Covenant on Civil and Political Rights provides that in the determination of any criminal charge  everyone shall be entitled "to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him".

Our Constitution also goes further - in keeping with international legal and human rights standards - that if those who are charged with crimes do not understand the language in which their case is being tried, they have the right to have the proceedings interpreted into a language they do understand. This means that judicial authorities in South Africa must provide adequate interpreters and translators throughout the hierarchy of our court system in order to give effect to this right.

This is important specifically in light of the fact that South Africa has 11 official languages, as well as a diverse range of communities. Two recent cases - both of them alarming, considering the constitutional imperatives concerning language use in our courts - illustrate that proper access to justice may depend on the consistent implementation of this right.

In the first case a woman was incarcerated for five days because a magistrate of the Johannesburg Specialised Commercial Crimes Court allegedly refused to hear her bail application in Afrikaans. According to media reports, Annalize du Plessis appeared before magistrate Hasina Habib for fraud. In papers before the North Gauteng High Court, Du Plessis alleges that the magistrate did not allow her legal representative to address him in Afrikaans or thereafter afford her the opportunity to translate the founding affidavit of her bail application. As a result, the North Gauteng High Court granted Du Plessis permission to institute a R600 000 damages claim against the magistrate, as well as the Minister of Correctional Services.

The magistrate's conduct clearly disregards the right of the accused in casu to a fair trial, and also breaches the oath he took  to uphold the Constitution in terms of section 174(8) and Schedule 2(6)(3) of the Constitution (as well as the Magistrates Courts Act 32 of 1944 as amended). The wording of the oath - or affirmation - is the following: "I do hereby swear/solemnly affirm that in my capacity as a judicial officer I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law."

This conduct by the magistrate - aside from the damages suit - possibly renders whatever verdict he reaches in the matter reviewable, in terms of the Criminal Procedure Act 51 of 1977.

The second case occurred in the Eastern Cape High Court in Port Elizabeth. At least 16 State witnesses who testified in a murder trial will have to be recalled because the interpretation of their original evidence in court was not up to standard. Reports indicate that during the course of the trial the three accused in the matter - all isiXhosa speakers - raised their concern over the quality of the interpretation of certain evidence given by State witnesses. After the complaint the chief interpreter of the court (acting as inspector of interpreters) confirmed that  not only was the translation of the evidence not up to standard, the witnesses were also not properly sworn in by the interpreter. 

Quite apart from the quality of the evidence, the fact that the witnesses were not properly sworn in has the legal effect that the testimony they gave in court does not constitute evidence.

In terms of Rule 68 of the Rules of the Magistrates Courts, every interpreter takes the following oath of office: "I, do hereby swear - or truly affirm - that whenever I may be called upon to perform the functions of an interpreter in any proceedings in any magistrate's court I shall truly and correctly to the best of my knowledge and ability interpret from the language I may be called upon to interpret into an official language of the Republic of South Africa and vice versa."

Similarly, this conduct by the interpreter possibly renders the matter reviewable in terms of the Criminal Procedure Act 51 of 1977 and the Magistrates Court Rules.

This problem in our courts has been further highlighted by recent reports from the South African Translator's Union confirming that "we are sitting with overburdened court rolls and inadequate interpretive services [that] aggravate the situation and lead to poorer judgments." The Law Society of the Northern Provinces has also stressed that the problem lies with the quality of the interpretations, especially in criminal cases where evidence of a technical nature is not interpreted correctly. 

Where a trial is conducted in a language an accused does not understand, the need for an interpreter is obvious. In the matter of S v Ndala the Cape Provincial Division (as it then was) reiterated that "the provision for an interpreter required a sound and faithful (‘juis en getrou') translation" and that "the very necessity for an interpreter arose because the linguistic competence of the court and the accused did not coincide."

Whatever the outcome of these matters and the present situation, the Constitution is unambiguous: The right to a fair trial in South Africa includes the right to be tried in a language that the accused person understands. All those involved in the multicultural administration of criminal justice in South Africa - from the Department of Justice and Constitutional Development, which is responsible for the provision of interpreters, to the judges and magistrates who preside over our courts - should afford this important principle the respect it deserves.

Issued by the FW de Klerk Foundation, January 29 2013. To sign up to the Foundation's free newsletter click here.