Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
30 April 2008

All languages equal but English (and Afrikaans?) more equal?

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.

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