Is it not strange – as a writer asks in an interesting piece in The Herald newspaper – that 14 years after the advent of democracy in South Africa, “the language spoken in our courtrooms still resembles the apartheid era and in no way does it reflect the demographics of this country”?
While witnesses and accused persons can testify in one of the eleven official languages and can rely on the services of a translator when doing so (as Jacob Zuma did to great effect in his rape trial) lawyers, magistrates and judges may speak only English and Afrikaans (with less and less Afrikaans being spoken). This happens even when all the parties before the court speaks a first language other than English or Afrikaans.
Does this not make a mockery of the provisions of the Constitution that recognises that the official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu? And what does it say about the much bandied about need for transformation of the legal system in South Africa?
The problem is that our Constitution is as clear as mud on the issue of language rights. Trying to strike a compromise between what is practical and what is ethically demanded, it contains a rather muddled provision that in effect allows for English to be treated as more equal than the other ten official languages (as George Orwell might have said).
Section 6 of the Constitution recognises “the historically diminished use and status of the indigenous languages of our people”, and places a duty on the state to “take practical and positive measures to elevate the status and advance the use of these languages”.
This is a rather broad injunction and it is not so clear exactly what practical steps should be taken by the state to give effect to it. Section 6 does seem to give some clues on what would be required when it states that both the national and provincial governments “may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned” – which normally means that because of the expense involved in using other languages English wins out.
At the heart of the language provision in the Constitution is an understanding (as stated in section 6(4) of the Constitution) that “all official languages must enjoy parity of esteem and must be treated equitably”. This does not mean that all languages must be treated equally or even that all the dominant languages in a region must be treated equally. It only means that they must be treated fairly “taking into account usage, practicality, expense, regional circumstances”.
But because English is such a dominant language and because it is also the aspirational language of most people in our country, even second language speakers of English often do not insist on fair treatment for their indigenous language. English is seen as the language of money and status and often amongst lawyers and magistrates and judges (as well as most others in the professional classes) this means that it is taken for granted that everyone will speak English and if they cannot or will not speak it well, that they are stupid.
The water is further muddied by the fact that the only South Africans who actively promote and fight for their indigenous language are white and Afrikaans and often do so in ways that seem to have more to do with a disappointment about the loss of power and status and with racism than with a genuine concern for the indigenous languages of South Africa.
Maybe it is time for people who do not speak English (or Afrikaans) to put pressure on the government to deal more pro-actively with the language issue and to develop a language policy for our courts. Perhaps this policy could allow for regional differences as suggested by the Constitution. This would mean, for example, that in the Western Cape lawyers and magistrate and judges would be allowed to speak not only English and Afrikaans but also Xhosa in court and to draft documents in any of these languages.
Lawyers trained in the Western Cape could then be required to take a non-English language course of at least one of the other two regional languages to qualify as lawyers. This would not be very popular with white lawyers I would imagine, but if we want to start somewhere to respect the language diversity of South Africa, we will have to be forced to do it.
As someone who has twice started taking Xhosa lesson only to abandon them, I know I will probably not learn the other language of my region unless I am forced to. So what we need is a bit of government intervention to force us to do the right thing – otherwise everyone will just revert to English.
Prof – your proposal is not workable. Firstly, it would promote a strict kind of regionalism with profound repercussions – what would the language spoken in the Constitutional Court be, and what would happen to a Western Cape schooled lawyer, or witness, in the Freestate? Secondly, it is totally impossible to train all presiding officers (judges and magistrates) and lawyers to speak all the (official) languages spoken in their jurisdictions, even if they are forced to – I think all eleven languages are widely spoken in Gauteng. The whole problem with the system is that it is the presiding officers who want the proceedings to be in a language that they are comfortable with, with good reason – they have to make informed decisions of law and, almmost invariably, their decisions will be tainted if the evidence and legal arguments were not heard and the judgments not given in the mother tongue of the presiding officer. The other problem with the system is that the people (remember that court cases must be open to the publiic so that justice can be seen to be done) do not follow the court proceedings. So what happens now when the presiding officer, the witnesses, the accused and the prosecutor and defence lawyer all speak the same language, e.g., Afrikaans or Engliish, while the majority of people in the galery are only fluent in Sepedi or Setswana? (The people of Skielik complained, with good reason, because they could not follow the court proceedings.) A third, even more worrying problem that we have already encountered, is that the so-called transformation targets (which only focus on colour and gender, not on language) have often led to lawyers being appointed by the Legal Aid Board that can barely speak English and only one African language, but then that language is not the language often spoken by the people of that area. (In a specific case that I had to deal with, all three the accused opted for legal aid representation, the one was Afrikaans [coloured], the one English [Indian] and one Xitsonga [black], while the lawyer could only speak Seswathi and a little English.) The same happens where presiding officers are appointed to specific areas to reflect the demography (which, as we know only focuses on colour and gender, but not on language andd culture of the area). Often judges cannot understand the idiom in either English and/or Afrikaans when dealing with appeal matters. The presiding regional magistrate in Springbok speaks IsiXhosa, and a little English, while Namakwaland is predominantly Afrikaans. Chaos exist in the courts I tell you. The best solution would be to upgrade our interpretation services, where proper interpreters are hired (and not paid peanuts), and that they should not, like is now the case, only be utilized to interpret for the benefit of the presiding officers, but for all parties and the public involved. Often that would result in more than one interpreter being used in a single case, but that is the only solution I see to the problem. Otherwise, it would in the end only lead to a ‘Babelse verwarring’, which I think we can do without.
> it would promote a strict kind of regionalism with profound repercussions
Are some of these repercussions not also good repercussions? If more South African lawyers spoke at least one indigenous or one other indigenous language it would increase understanding of each others customs and culture.
Regional linguistics in the legal profession is not such a bad thing either. It’s better IMO to have regions that specialize in languages next to English than have only one non African language of public and legal discourse.
To really develop a language its not enough to only translate it, judges & lawyers must be able to think, read and argue in it. It’s essential for the language to develop.
Wessel, I agree, but only to an extent. I, for one, am fluent in two African languages besides English and Afrikaans, but that has never been enough because I am daily confronted with other official languages that I do not understand or speak. In the Western Cape, Northern Cape and Kwa-Zulu-Natal, that might not pose a problem, but in almost every other Province of SA, the mastery of one or two indigenous languages is simply not enough as I have indicated in some of the examples above. Once again, with the kind of regionalsim promoted by the requirement that lawyers should learn at least one indigenous language besides Afrikaans and/or English, one would have a great problem in Gauteng, Mpumalanga and Limpopo. Problem is, many (if not most) presiding officers are older than 40 years, and at a time of (after)life that the ability to learn foreign languages is almost non-existent, even under force or threat of force. Foreign languages are only wholly (naturally) acquired between the ages of 0-7 years; and, easily between 7-13 years; but, thereafter it becomes quite difficult. The older one gets (20 years or older), the more difficult it becomes to an extent (probably 25years>) where it becomes almost impossible to learn more than a basic few words and phrases, which is not enough to deal with the difficulties encountered in legal practice in a cosmopolitan area. It is in the schools that basic tuition in the African language(-s) most prevalently spoken in the region is necessary to develop all (official) langauges on an equitable basis. But then again, transformation targets on deploying lawyers (i.e., those employed by the Legal Aid Board), prosecutors and magistrates/judges in SA tend to focus onlly on colour (race) and gender, while language and culture are mostly neglected. This is where the problem presents itself – a Zulu judge in the TPD being unable to properly hear an appeal in a case that was heard in English or Afrikaans; a Venda magistrate in Mpumalanga being unable to adjudicate a case where the accused and the witnesses are Afrikaansspeaking; an Afrikaansspeaking magistrate, who is fluent in English and Zulu and Shangaan, in Limpopo being unable to try a case where the parties are all Sipedi-speaking; a legal aid lawyer (Swasi-speaking) in Mpumalanga being unable to properly consult with Afrikaans-, English- and Sipedi-speaking clients; and, unable to properly follow evidence and cross-examine witnesses who elect to speak one of the mentioned three languages, etc. The problem goes much wider than merely requiring lawyers to learn one or two indigenous languages besides their mother-tounge, and I still think it can only be solved by stepping up the interpretation services in SA.
Nina bangasethla,
Mina ngokubona kwami kumele singavume
li ukuthi kube khona ulimi olukhonya ngendlela eyenza ezinye izilimi zifidibale.
I agree entirely with what you say, Anonymouse. The only solution seems to be to bring on the interpretors. In the meantime, children whose mother-tongue is not a universal language such as English should be taught it from a relatively early age, say 10 years. Black South African parents are generally only too keen for their children to learn English at the earliest opportunity, and with good reason. But this is discouraged by the authorities, possibly because of a cultural/political bias.
The other day, someone argued on the Cape Times’s Letters page that as an employer he favoured workers from Malawi “because they can communicate efficiently in a universal language”. He could not employ “those who come from my home town, East London, once recognised as the cradle of multilingualism in South Africa, as these days, sadly, most cannot communicate in anything but their own limited vernacular”, and that “whoever argues against this reality is entirely lacking in pragmatism”. Quite.
Anyone who fails to understand what Khosi has said (and I include myself), has standing to argue for the use of indigenous languages in official SA discourse.
Sorry, for “anyone” read “no-one.”
Sorry, Michael, I don’t quite get what you’re saying there. Is it at all possible for you to express yourself a little more simply?
In the absence of a translation of what Khosi has stated above, allow me to paraphrase for those who do not understand (and, Khosi, please correct me if I am wrong):
“All those above,
In my opinion (view) we may (should) not (never) allow one language to be treated above (preferential to) the others.”
Khosi, this time around, I, for one, agree with you; and, I’m sure Prof De Vos and all the others above will also agree with that sentiment of yours. That does however not solve the problems that we ecounter in practice today (and it does not seem as if they will be solved in the foreseeable future unless suitable interpreters are employed) – see my above comments and that of Clara’s. Any suggestions?
silly
no help at all
silly
no logic at all