Carmel Ricard wrote a scathing column in the Weekender in which she quoted at length from a judgment handed down by then acting judge Muzi Wilfred Mkhize SC, who has been tipped to become the next National Director of Public Prosecutions. The judgment contains some shocking (and it must be said, some hilariously), incomprehensible tidbits that would make Julius Malema blush. Money quote:
Rejecting a claim by the accused, Mkhize said their version “bothers on stupidity”. Elsewhere, having dismissed their “stupid” version of events, he notes that the six accused were “appealing witnesses”.
It’s not just that the judgment is incomprehensible — there’s also precious little legal reasoning evident in the 19 pages. Who would compile a judgment of this quality? Not someone fit to be a judge: it shows neither respect nor aptitude for the position.
I must say the tone of the column made me feel uneasy. Perhaps because I am not a first language English speaker myself and sometimes get my tenses mixed up as well, I felt a bit sorry for Adv Mkhize. Was this kind of mocking of a senior Advocate not perhaps a kind of thinly veiled racism? I am on record as saying that the ethically challenged Mkhize would be the worst possible candidate for head of the NDPP, but should one not be a bit sensitive to cultural differences when one reads judgments by individuals whose first language is not English?
After reading the judgment in its entirety I must say Ricard does have a point – although her gleeful exposure of Mkhize still leaves me uncomfortable. It is not (only) the fact that the judgment is incoherent and at places incomprehensible. It is that it utterly lacks legal reasoning. For example, there was a trial within a trial to establish whether the confessions of the accused should be admissible as evidence. After dealing with the evidence the “reasoning” on which the decision about this rather important aspect rests, reads as follows:
After listening to the evidence it is ordered that the statements made by accused 1,2,3,4,6 & 7 to the commissioned officers or magistrate were made freely & voluntarily with accused in their sound & sober senses having not been influence there to here to such statements are admissible as evidence against the accused persons.
Where is the reasoning? Later on when the acting judge rejects the evidence of the accused he writes:
The version by the accused 1,2,3,4 & 5 give that know nothing about the housebreaking at Boxer cash & carry, that they did not see the green bag in the vehicle driven by accused 1 whilst they were passengers bothers on stupidity and it is rejected as a lie, the accused according to the evidence were almost caught committing crime red handed.
How can one “almost” be caught committing the crime red handed? What is clear from the judgment – even if one looks past the embarrassing English and the incoherence, is that underneath all that there is not a very sharp legal mind at work. Clearly this man is not fit and proper to be the head of the prosecuting authority in South Africa? That should have perhaps been the focus of Ricard’s column, not the weird English used by the potential next head of the NDPP.
Or maybe I am just hyper sensitive?
Meanwhile President Kgalema Motlanthe has said a rather wise thing, namely that the JSC might have to get involved in the appointment of the head of the NPA – just like judge Chris Nicholson suggested. Will this not go some way to address the argument of principle sometimes used by Jacob Zuma and his supporters (when it suits them) that the NDPP cannot be independent because he is appointed by the President?
Perhaps the same process as that used when appointing jduges to the Constitutional Court could be followed, where several names are sent to the President by the JSC who has to choose one of that names. Such a process will strike the right balance between the fact that the head of the NDPP must implement the prosecutions policies of the government of the day on the one hand, while acting without fear, favour or prejudice on the other.
Maybe the NPA act can be amended before Vusi Pikoli is replaced? Then maybe we can get a competent and credible person to head the prosecuting authority. Come to think, such a person could be… er…. Vusi Pikoli. One thing is sure Adv Mkhize would not make any shortlist of the JSC.
“Meanwhile President Kgalema Motlanthe has said a rather wise thing, namely that the JSC might have to get involved in the appointment of the head of the NPA – just like judge Chris Nicholson suggested. Will this not go some way to address the argument of principle sometimes used by Jacob Zuma and his supporters (when it suits them) that the NDPP cannot be independent because he is appointed by the President?”
Yes – I agree entirely. But as far as I understand this is the way it is done in other countries i..e the president appoints the AG for example ?
I have to admit Motlanthe is without a doubt the only person in the ANC that has his head screwed on straight. I welcome his approach and admitting the process is rather flawed in appointing a new head for the NPA I think thats very brave and clear thinking from his part.
IM sure Zuma would disagree as the ANC is prepared to contemplate the most unsuitable candidate for the job, as long as he can be expected to do the ruling party’s bidding. It’s a case of choosing malleability over merit and compliance over competence.
Having the JSC involved can only be – will simply justful
As for Adv Mkhize he will be a constitutional crises in the making.
The most galling aspect of Zuma’s campaign to avoid justice is the way in which he and the ANC have undermined the Constitution and its institutions in the interests of self-preservation.
Ad hoc ANC chair to determine Vusi’s fate, a former legal adviser of Zuma to head the NPA is such a blatant attack on the constitution and rape of power.
The President shouldnt have the sole prerogative to appoint the the head of the NPA, since this undermines the constitutionally entrenched principle of the separation of powers, plan and simple and shows good leadership from the President to advocate this.
Harms would probably spontaneously combust if this lot reached him on appeal…….
I must say that Mkhize’s commonsense approach does seem attractive – cut through all the multi-million dollar legal ducking and weaving we see with the likes of Hlope, Zuma, King, Motata – just plainly state that they have all been caught almost red handed, are lying, and are clearly guilty as sin. Works like a bomb as long as you are not the accused.
ozoneblue // Feb 9, 2009 at 9:54 am
yes you are correct example the President of the US appoints the head of the FBI but the process is flawed unless the government of a country is really mature to have a president to appoint someone without fear, favour or prejudice.
However south africa is not as mature yet and something like a body similer to the JSC or the JSC appoints a head of the NPA will be a step towards maturity.
chris mcdaniel @ 10:07 am
“unless the government of a country is really mature to have a president to appoint someone without fear, favour or prejudice.”
You are funny sometime and really think us Africans are stupid and /or live in an international media deprived black hole. How about Bush appointing Republican/”conservative”/right-wing judges to the supreme court. Not to mention John David Ashcroft. LOL.
Ozoneblue – I don’t think we should take the USA under Bush as our standard to be measured against. Us Africans could aim a bit higher.
Prof,
I do not see racism in this one. I think the Learned Judge could have done better had he revised his judgment. Period. He did not obviously do so. I do not think he is challenged in terms of English grammar. We need to understand the role played by judgments in a common law system.
Expats allowed to vote!!
http://www.news24.com/News24/South_Africa/Politics/0,,2-7-12_2466623,00.html
Peter @ 11:47 am
I didn’t say we should – I’m just pointing out that the legislation around the appointment of the NDPP is in line with what is happening elsewhere.
I’m not sure that appointing the NDPP through a screening process by the JSC is going to install confidence either. As I have pointed out on the Hlope thread it does appear that even the CC judges themselves had little confidence that the JSC could act fairly, transparently and appropriately against Hlope’s alleged misconduct – thus resorting to a sort of “whistle blowing” strategy by prematurely issuing statements to the media.
ozoneblue // Feb 9, 2009 at 11:21 am
no idiot, (can I please slap him?) just you, and only you, why you even post here you offer nothing constructive….was actually talking about your democracy is very new here thats why not mature yet, easy to be undermined and can be easly corrupted and was actually giving a compliment to Motlanthe on his approach to the NPA
Peter // Feb 9, 2009 at 11:47 am
you right africans can aim much higher thats why it baffles me why you want to vote Zuma in?
Can someone please explain how Zuma and the ANC has undermined the constitution of the country?
Thomas @ 12:56
Good question Thomas. But please remember if you tell a lie often enough everybody will start believing it – especially when they so desperately want to believe it.
@pierre
not thinly veiled racism more of a shock and humour towards the status of this man and the sloppy quality of his judgment.
You need to remember this kind of mocking i would imagin comes direct from what Mkhize said that the postion of the head of the NPA is beneath him.
So i concur with the Ricord the size of Mkhize ego matched with his ability to judge is rather a joke.
Thomas @ 12:56
You can start with the recall of Mbeki in the wake of Nicholson’s judgment.
If you believe in Nicholsons judgment then you will beieve in political meddling through the NPA which becomes a constitutional crises.
If you believe in Harms’s judgement then the recall of Mbeki was unconstitutional, hense another crises.
Cadre deployment, an essential component of ANC policy, undermines the basic values and principles governing public administration in the Constitution as provided for in section 195(1) (I)
Gwede Mantache deployment of cadre is justyfied “ spoils of war”,
Mr Jacob Zuma, is on record as having declared that the ANC is more important than the Constitution.
“counter-revolutionary agenda” is an insult to the judicary as they are the watch dogs or gate keepers of the constitution
Prof De Vos, on a seperate issue, the lawres of JG Zuma have submitted papers at Constitutional Court. The papers are posted at the Friends of JZ website. I went through them and found that nothing has changed in the main from papers they submitted to both Court of First Instance and SCA. They just modified them a bit, but i still believe they have a high prospects of success. What is your take this time around?
The mocking of this man’s language has nothing to do with racism.
English is a world-language (just like Chinese and Spanish.) English is the lingua franca of our country.
If you cannot speak or write in correct English in South Africa, you should not be in law, education, etc ad infinitum.
You should go and work on a farm or building site, where language skills are not considered sine qua non.
Kgale, if I have some time I’ll have a look at the papers. Its on my to do list! On the undermining of the Constitution a few examples: (i) Manto went on TV and said she would not obey the CC judgment on ARVs; (ii) Gwede Mantashe said that judges of the Constitutional Court are counter-revolutionaries; (iii) Pikoli was illegally instructed not to arrest Selebi and then suspended thus interfering with his constitutionally guaranteed independence; (iv) Julius Malema threatened the judiciary on several occasions. There has also been many examples of the ANC respecting the Constitution and defending it. In this they are better than Cheyney and Bush, say, but worst than Merckel or Festus Mogae.
I must admit that I caught the same whiff of racism about that article – there are always better ways of saying things. The fact remains that Mkhize AJ did not cover himself in glory with that judgment and does not appear to be a very conscientious lawyer. I’d be hugely embarassed if I were him.
Herman – I think you’ve said it right.
Herman Lategan @ 1:56 pm
“If you cannot speak or write in correct English in South Africa, you should not be in law, education, etc ad infinitum.”
Oh really – and just whose version of English would that be ? Would that be Oxford English, American English, Australian English, Nigerian English or South African English?
Luckily, if all else fails, we can also communicate in Zulu or kitchen Dutch ?
O3blue – But what happens when you then have a judge hearing an appeal who cannot properly speak or understand Zulu or Afrikaans (kitchen-Dutch)?
Anonymouse @ 2:54 pm
My comment was more or less directed at Herman’s snobbish, elitist reference to “correct English”. Even “world languages” changes and mutates with time inline with indigenous influences where it is adopted.
I found quite an interesting departure point for a separation of powers debate.
“In many countries, the prosecutor’s administration is directly subordinate to the executive branch (e.g the US Attorney General is a member of the President’s cabinet). This relationship theoretically, and in some cases practically, leads to situations where the public accuser will either falsely charge people (in Putin’s Russia), or refuse to charge arrested persons at all, to keep them in protracted legal limbo, if that serves political aims. Many thinkers feel such outcomes are incompatible with basic human rights and constitutional ideals.
In a smaller number of countries, the hierarchy of prosecutors are installed with the same – such as Brazil – or nearly the same liberties which the judges traditionally enjoy. They’re only responsible to the parliament, and the chief prosecutor is usually elected for a long period (seven years typically), or even a lifetime. In terms of political theory, this would mean the independent prosecution becomes the fourth column in the architecture of power separation, besides the legislative, executive and judicial branches.”
en.wikipedia.org/wiki/Prosecution#Institutional_independence
OK, yes there was certainly a whiff of racism about the article, but, for a judge, it is absolutely imperative that he be able to accurately communicate in the language he chooses. What bothered me more than that whiff of racism was the clear arrogance of someone trying to use words that they clearly did not understand. The man is arrogant, and trying to appear to be pompous, and educated (beyond what he does know). I am absolutely certain that he could have communicated exactly what he did with a vocabulary that he had complete command of, and done so accurately and concisely–instead, he choose to use a vocabulary of which he did not have a complete command. That suggests arrogance and carelessness.
We all know people (in any language) who try to impress others by using a vocabulary that they think is impressive. Clearly what we have here is someone who is more interested in trying to impress others than in trying to be accurate and communicate clearly. And any judge needs to be able to communicate clearly. And you do not need to be an expert in a language to do so. That tells you a great deal about this mans priorities.
O3blue – Yes. Here one should also remember that, even in the Uk the separation of powers doctrine has not always been properly observed, especially by the House of Lords, which has hitherto simultaneously been part of the legislature, the executive and the judicial authority. The House of Lords (‘legislature section’) is an anachronistic remnant from the Middle Ages, which is not elected, but stems from views of aristocracy and nobility that are naught reconcilable with modern thoughts of democracy. Furthermore, the Judicial Committee of the House of Lords (the ‘Law Lords section’) was until April 2006 headed by the Lord Chancellor (the Lord sitting ‘on the Woolsack’), who was at the same time ex officio the Minister of Justice in the UK and, therefore, part of the executive. There are however moves to correct this untenable situation. In April 2006, the office of Lord Chancellor was replaced with the first Lord Chief Justice of the UK. The House of Lords will in October 2009 cease to fulfill a judicial function as the highest British Judicial Authority, and will be replaced by a true High Court (Supreme Court), whose members will be appointed by an independent judicial service commission. There also seems to be a move in England to have the legislature section of the House of Lords elected; or, to replace it with an elected body of senators. See A van Wyk “Doodsklok kan ná 700 jaar vir House of Lords lui” (26 June 2007) Beeld: Sake24 at p 10.
Quite aside – The following part of the quote just reminded me of something: ‘Elsewhere, having dismissed their “stupid” version of events, he notes that the six accused were “appealing witnesses”.’
I once had the laugh of a lifetime when, in a Notice of Appeal directed against one of my judgments, the sentence I imposed was begrudged as “shockingly appropriate in the circumstances”.
I get irritated when English scholars correct me for not using English correctly and then don’t have the courage to correct an Afrikaans speaking person.
Thomas – I’d have the courage to do that. Who are you referring to?
The fact remains, when you have to struggle to understand a judgement because they grammar, syntax and vocabulary are so garbled, it is cause for concern. It’s not only in the judiciary though – one of my doctor friends once saw a patient who was in “pretend labour” instead of “preterm labour”. Funny now, but those mistakes can get quite serious.
In any event, if English is the language in which judges are required to communicate, one would imagine that it would be a pre-requiste to be fluent in it. While english is varied, there are still minimum standards which make it understandable. I would expect Judges to be able to get that much right at least? I dunno, but if I went into an interview with a CV that contained errors like that, I’d get laughed straight back out the door again. Is there a reason we should hold black judges to a standard below what is acceptable to be able to adequately perform their duties?
In any event, the most important issue here is the fact that there is a dearth of any legal reasoning (at least in the portions quoted above). The accused were guilty because…well, obviously they did it? If I got found guilty on that basis, I’d just about have a heart attack. As if that’s not bad enough, this is the man touted to be the next NDPP? And then the ANC wonders why nobody actually believes that it’s because he’ll be a good, independent, effective NDPP, so much as a jobs-for-pals you-scratch-my-back-I’ll-scratch-yours scenario?
Come on, things are starting to get even more out of hand here. I’d pretty much be willing to bet money that if it happens, either the charges are dropped outright, or evidence “goes missing” or something to that effect (talking about JZ).
Absurd.
Ozone and Anon:
that isn’t necessarily a separation of powers argument, but rather an argument for a distinction between administration and policy.
Usually this is done by having a distinction between an appointed group of policy setting individuals who report to elected officials (or are elected officials), and then a professional civil service who actually administer the laws, prosecute the cases, etc. These individuals are supposed to be insulated from political pressure by having secure jobs, and are not supposed to be appointed to thier positions based on political concerns.
I must agree with Professor De Vos and others here, Adv Mkhise should at least get basics of English correct. However, I still dont agree with the speculation that Mkhise SC is the man likely to be the next NDPP, it is just rumour mongering that has UNFORTUNATELY become normal these days. I suspect that if the ANC, or rather,if we, the ANC have our way Ngoako Ramatlhodi will be next NDPP. Now, what do you say to that?….(out of the topic) Prof why were you not on the Election Debate panel there at UWC man? I know you would have robustly grilled all politicians there. Thats a good quality you have there, even if I sometimes think you are biased, still that takes away no due credit to you….
I did not read any racism in that article.
If Mkhize had not shown interest in the NDPP position, Carmel would not have gone after him. I believe Carmel would have gone after anyone who was tipped to be appointed by Zuma (we know Zuma is dying to get his case quashed) as the NDPP be s/he a Mkhize or a Van der Merwe.
One question though: How did Mkhize get to be an advocate, let alone SC?
Nombuso Dlamini @ 12:23 am
“One question though: How did Mkhize get to be an advocate, let alone SC?”
That is an important question. As you know it is OK for some to launch viscous attacks on the judiciary as when it suits them and then hypocritically turn around an accuse their political enemies of doing the same.
See for example in the Hlope case http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20071017062416953C504222
So while the integrity of the JSC for example is continuously undermined with colonial/racist stereotypes such as our African judges’ inabilities and shortcomings in dealing with “correct English” – on the other hand we are told that we should respect and trust our judiciary.
This reminds me of the pleadings I once received from a senior attorney practising in Umtata. Pleadings were riddled with grammar and spelling errors worse than in Mkhize AJ’s judgment. I gave my colleague a benefit of the doubt – thinking that the secretary messed up and my collegaue did not have time to proof-read the papers. I gave him a courtesy call and alerted him to the errors in his papers. He arrogantly told me of his lengthy experience and that he knew what he was doing. Fortunately for him, he briefed an advocate to argue the matter and it is the advocate, not him, who received harsh tongue-lashing from the judge! But he did not get away scot-free because he was ordered to pay half of the costs de bonis propriis.
I still want to believe that something went horribly wrong between Mkhize AJ and his secretary / dictaphone! To me this judgment appears to be a raw draft which was not meant to be a final document. However, he has to take the blame for negligently signing a draft document without reading same.
As I was reading that judgment I could not help but wonder if this was just the “first draft” that gets typed by the secretary/typist before it goes up to the judge for his signature? The document (at least the one I read) was not signed by the AJ. Maybe I’m just trying so hard to defend the obvious but maybe the “draft” was leaked to the media for the specific purpose of discrediting the poor guy. Conspiracy theory? Maybe, but surely the guy would never have been a silk with writing skills like those, let alone an AJ.
Mzo, as per my post just above yours, I share your sentiments on this being a ‘draft’. Without subscribing to your suggested conspiracy theory, I think AJ ‘signed’ the judgment without proof-reading same. I do not think that SAFLII would publish an unsigned court document-unless of course they are party to the ‘conspiracy’!
PM suggested some people try to “impress” using fancy language, others try to be mister smartypants and refer to yet another as snobbish….
It is not certain where the word “snob” comes from, but ive read it may come from the latin expression “sine nobilis” abbreviated s.nob. and afterwards written as only one word “snob”
No Ozone….don’t suggest Herman is without nobility, he was very correct in what he said
I only learn on this blog that english is the requisite language for judgments. That is the last arrogance I am prepared to listen to or read from a alleged scholar of law or an aspirant student of law.
Judgments can be written in any of the official languages! . I will write in indeginous african languages when I become a judge to escape the bogus language purists who are prepared to go to any length to assert their agenda to oppose necnessary change!
Here is a great example of misunderstanding English!!
Two men boarded a bus. They sit down and engage in an animated conversation.
The lady sitting next to them ignores them at first, but her attention is galvanized when she hears one of them say the following:
“Emma come first. Den I come. Den two asses come together. I come once-a-more! . Two asses, they come together again. I come again and pee twice. Then I come one lasta time.”
The lady can’t take this any more, “You foul-mouthed sex obsessed pig,” she retorted indignantly. “In this
country we don’t speak aloud in public places about our sex lives”.
“Hey, coola down lady,” said the man.
“Who talkin’abouta sex? I’m a justa tellin’ my frienda how to spell ‘Mississippi’.”
Ishmael I agree with you and it is unconstitutional but hold your horses:
Your government still needs to finalise and promulgate a national language policy so that South Africans could be served by government departments, including the courts, in their own language. Unless this has been done yet?
So Far English is the language officially used by government departments.
However indigenous languages have suffered great historical neglect and are threatened with extinction which would be a tragidy if this happens
In criminal cases, the proceedings should be conducted in the language in which the parties are comfortable with.
for example If the accused, the prosecution and the magistrate for instance speak Zulu as their mother tongue, the case should be heard in that language.
However the main problem is this, that it is not viable that all 11 official languages be used in every office; therefore your government must look at the specific demographics.
Impracticable ? I concur.
11 official languages in each and every office would be a huge undertaking not to mention a horrendous one at that.
Yes we should endeavor to be more practical and less politically safe!!!
However wrt the issue of language what annoys me most is the Indelible Afrikaans judgments arising out of many courts, in most of our offices, gov depts ,our classrooms and better yet our universities where law is studied, yet we never take exception to that??? without any effort being made to appear being politically correct.
odd?? I align myself with the reasoning of the learned person above ” that the judge in question signed a judgment with out it being proof-read!!
You know mr Olmert that you share your name with the prime minister of Israel? Out of your comment above, you talk about our schools and courts and you are not exactly fond of Afrikaans, so you must be a South African?
Ehud Olmert // Feb 10, 2009 at 2:48 pm
On the issue of Afrikaans being used at Varsity and in judgments, I agree with you fully. We need to look at the practicalities and forget this political correctness and always wanting to nurse people’s feelings.
I remember when I was at Varsity, you find that you are preparing for your assignment or something only to find that the judgment that is on point is in Afrikaans. Is it fair to those students that do not understand Afrikaans that they only have to rely on the headnote?
Even now in practice, I have argued with colleagues who wanted to argue their (civil) cases in Court in Afrikaans because it is their “right to do so”. In those cases I’ve simplt said I will argue in my home language as well, which if course poses a problem because even the presiding officer does not understand Afrikaans. Sometimes you get pleadings and letters from colleagues in Afrikaans and you have to find someone to translate for you. But why? Again, I’ve responded in my home language to one colleague who refused to change hsi letters. Needless to say, we’ve been corresponding in English ever since.
My point is, Afrikaans speaking community should get over this idea that they are doing us (those of us who don’t understand Afrikaans) a favour when they use English because we are doing them a favour as well. English is not my first language, just like it is not theirs but it is just practical to use the language every lawyer will understand.
Friend?
Glad u were able to ascertain from my comment, that i am not fond of Afrikaans esp in view of the fact that i used the word annoyed. Equally Passable u were sharp enough to notice i share my name with the prime minister of israel, & “heil” from SA. but you should also note that I am not equally fond of the world either. wise?
>>>>>>>>>>>>>>>>>>
Mzo
I could not put the argument more proficiently, thank you.
Judgments for academic purposes should be in one language only English, esp in the legal fraternity , if not then i suggest it be translated in all official languages and not just in Afrikaans. Why is there this preferential adherence to Afrikaans in this country?
Considering it was forced on our students in the past and even today. Often i am whisked back to that product of the gutter education system i was forced to ingest,when i have to read a judgment in Afrikaans.
Ozoneblue, you are one of those people who think that speaking good English is elitist.
It is not.
It is my second language, but I have made a point of trying to speak and write in South African English as well as I can.
Xhosa, Zulu, or Afrikaans, mean nothing in world cities such as Sydney, London, Berlin, New York…
They are limited, parochial little patois utterances best to be spoken at home, but certainly not in the real world.
Sorry chum, but economically mute languages just don’t cut it in the global environment.
And this has nothing to do with being a snob, I’m just realistic.
If you don’t speak good English, you might as well go home and die gently.
Adios, au revoir, tot siens, good bye and molo songololo
The reality is that there needs to be a common language for official documents, and perhaps I am incorrect, but I would presume that most educated people (judges, lawyers, accountants, doctors, and so forth) can read and speak english passable english. I also think it acceptable that documents may be drafted in the mother tongue of whoever is drafting it, but there should be english translations, to make it accessible to the widest audience possible.
My lovely girlfriend is Afrikaans – as Afrikaans as they come. She didn’t speak english until 2005, when she transferred to Cape Town to work. When I met her in 2006, she spoke english as well as I did – it was simply an attitude she adopted, because she realised that, while Afrikaans is her mother tongue, and she is proud of her heritage, she needed to be able to speak english to get by in SA. It’s life, we need to deal with it.
I’m still worried about the lack of any cohesive legal argument in the judgement portions…but we’ve spent most of this thread arguing about the merits of english!? Am I missing the point here? This guy might be in charge of the NPA…if he was an astute legal mind but couldn’t speak proper english, he could take english lessons…but if he doesn’t know how to apply law…surely this is cause for concern?
Mr olmert & Mzo, a hostility to Afrikaans is understandable given the historical context of oppression, in the same historical context you must also understand the way law was introduced and practiced over the years and as such, you could understand that Afrikaans & English was the medium in which law was introduced in SA just like Roman law in latin was introduced in Dutch. Now we could constructively move on without wiping out the parts of history that we don’t agree with, thanks Ehud for niticing my sharpness.
Friend // Feb 11, 2009 at 9:29 am
I am not sure if your statement “a hostility to Afrikaans is understandable given the historical context of oppression” is meant to insuniate that I habour such hostility. If it does, I reject that. I have no problems with people using Afrikaans, or any other language for that matter as long as everyone can understand. However, I do have a problem when people use a language that cannot be understood by everyone whereas there is a common language that everyone understands.
My arguments extends to written judgments for the students and the legal fraternity at large. Why should someone who does not understand Afrikaans be prejudiced simply on that basis? I accept that there is little we can do about those judgments that are already in the law reports (short of translation – a nightmare on its own) but going forward, judgments should be in English because everyone understands the language (I hope).
Mzo I concur. 100%
Mzo, you will find the attempt by Hlophe JP and Zondi AJ to write a judgment in Xhosa. Sadly the chose to do it in a short judgment. see link
http://www.saflii.org//cgi-bin/disp.pl/za/cases/ZAWCHC/2004/33.html
Mzo has a strong point with which I agree!. It is totally naive to that suggest that everyone or at least a majority of south africans know English.
The country must assert a language policy which elevates our african languages to usage where justice affects us.
In the courts as well. I totally do not know afrikaans and rely on translation to study judgments in Afr. I only know english to little extent.
I write sophisticated N. Sotho which could live many scholars in intellectual orgasm! We must go that route and safe fellow africans who are in bad books of linguistic purists who equate language prowess with intellectuality or jurisprudential power!
I think insulting a judge for writing an originally foreign language poorly is too much arrogance. It is worst form of imperialism, cultural imperialism.
I care less about inferior complexity of those whose small minds do not permit knowledge of the fact that the superior languages are spoken by the elite and want to hide behind illusory sysmic obstacles to transformation.
It is very possible to write in Zulu and have all of us following want is going on. In any case if we are to look at geopolitical implications english and afrikaans will be written of our law journals.
The law journals are not written for narrow intellectual benefit of scholars and students. These are instruments for access to justice by members of society.
The majority is currently undermined and isolated by a minority that has the temerity to assess our intellect with an awfully wrong tool, language!
Even professors gleefully extract excitement to castigate a man of the law based on typographical errors. Did we fail to fathom the essence or kernel of the matters at issue?
We are really degenerating into a worthless discourse inspired by subliminal racist stereotypes masquarating as some high standard intellectual! I suggest that these professorial material must get down to writing their thoughts in an indeginous language and see if they will not falter big time!
I do not think you get to be a lawyer on the basis of your english or afrikaans. Certainly not. I did not become a lawyer on the basis of linguistic sophistication! basic and clear understanding of the law. Simple!
You can have all the sophistication you like, but it’s not going to transfer well if you don’t have sufficient language skills.
To the best of my knowledge, there is not a single N.Sotho, isiZulu or isiXhosa law textbook. If this is true, then surely there’s not a single person who could’ve studied law in N.Sotho, Zulu, isiXhosa or any of those?
This means the language issue is moot. If your law study material is in language X, then the fact remains that you need to be proficient in language X. In fact, Universities have language proficiency tests because you need to be proficient in the languages of instruction before you can study anything at an University. For the most part, the language of instruction in South Africa is English. The conclusion is that you need to be proficient in English before you study ANYTHING, let alone become a judge.
There’s no valid excuse for poor language and poor language use is not a valid excuse for anything.
Ishmael, that didn’t make a whole lot of sense…the practicality of the matter is, more people understand english, whether as a first, second, third or fourth language…to imply (I think this is what you’re doing) that we should use “african” languages because english was originally foreign is slightly silly.
But to your point, Afrikaans is a uniquely African language just like Zulu, Xhosa, etc…in fact, maybe even more unique because it is a very young language, being comprised of original dutch and french elements, with a few twists thrown in. And since Afrikaaners are probably quite a small minority, in terms of language and culture terms, should we not therefor insist that Afrikaans be given a much higher platform in judgements than it is now?
Perhaps we should get some judgements written in Khoisan?
I gather we are still missing the point. Khoisan , Hindi, Xhosa, Zulu,etc? Given, all languages used by citizens of this country, But as a result of the past dispensation it’s undermining of ppls rights and the subsequent restraint in the use & development of the majority of its citizens` mother tongue have all but been reduced to a back yard chatter, yet Afrikaans is a lang of instruction to legal scholars?? Am I nuts in presumption?
Law per say In SA has a hybrid system with roman Dutch and English procedural influences .however SA chose Roman Dutch law to remain in force its still regarded, Latin being the lang of use, But all moot as we say. The overriding fact is that today Afrikaans a bastard language of Dutch with its mixtures of Cape Malay, Zulu and Xhosa, fashioned this very young language. It became inextricably entwined with our lives that even today it remains compulsory in schools.
I have no problem with the language being spoken by some, but I have a problem with Legal texts being in prepared in Afrikaans. The state and judiciary need to take responsibility and maintain that written legal texts and arguments for academic purposes, judgments etc be in English (period). Bar what language is used when access to courts is required that would be a principle of rights. s 30 of our constitution in its application intimates the right to lang etc … that is consistent with the bill of rights, how so do we claim to be consistent when old order judicial minds still do their judgments predominantly in Afrikaans expecting all in sundry to understand? Am I missing something?
I received correspondence last week in reply to a matter, it was in Afrikaans and I could not make head or tail of it, it took a call and some persuasion to illicit the right response with delays and antagonism of course what BULL!
Why do we foster a culture of acceptance of one lang and not others, is Afrikaans a second lang of SA?? I think not. I believe there are 13 others? The development of this lang in society needs to be curtailed quite like the other langs were in the past.
If it’s an insurmountable task & far to impracticable to get the judiciary & state to comply then I suggest we choose Mandarin & Hindi, after all it’s the most spoken & most widely spoken langs in the world? Excuse my English its not my first language .