An apparent decision to make English the only language of record in SA’s high courts will have grave implications for access to justice.
On April 16, the Sunday Times reported that the heads of courts had decided to make English the only official language of record in South African high courts.
The heads of courts are all judges president of the divisions of the high courts under the chairmanship of Chief Justice Mogoeng Mogoeng.
Correspondence was sent to the office of the chief justice on April 21, asking for an explanation on how such a decision was made and on what authority. To date, we have not received a response, hence our decision to write this open letter.
According to subsection 8(3)(b) and subsection 8(6) of the Superior Courts Act, the chief justice is not conferred with the powers that determine the language of record in South African high courts, regardless of whether or not the chief justice enjoyed the majority of support from the heads of courts as required by section 8(5) (a).
It is alarming that this alleged decision was made public in a national newspaper. However, it failed to appear in the Government Gazette, according to our research. This suggests that there was no constitutional or legislative authority enabling the chief justice to change the language of record in high courts and that such a decision can only be made by the executive, subject to Parliament’s oversight.
According to the Constitution, the state must take practical and positive measures to elevate the status and advance the use of African languages. Furthermore, all official languages must enjoy parity of esteem. These are the provisions that you, as chief justice, along with the heads of courts, must enforce and protect. In this light, we question how having English as the sole official language of record elevates the status of African languages, and reverses their historically diminished use.
The alleged decision instead elevates English to a superofficial language, contrary to constitutional provisions and, in doing so, undermines the rule of law.
The alleged decision transitions from a de facto bilingual language of record to a monolingual position. This weakens the argument for a linguistically inclusive legal system and undermines the principles of linguistic diversity and the basic right of access to courts, as protected in the Constitution. It inter alia compounds the cost for African language mother-tongue-speaking civil litigants whose trials are prolonged because of the involvement of interpreters and, possibly, translation services.
An exclusionary decision
Moreover, we question how this decision is constitutionally sound, with regards to an accused person’s language right. We firmly believe the alleged decision discriminates unfairly against accused persons on grounds of language, in terms of section 9(3) of the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act, with specific reference to the requirement to promote diversity.
We question why no public participation or meaningful engagement was undertaken regarding using English as the sole official language of record. What motivated the decision and whose interests does this serve? It is our opinion that this is not to the benefit of linguistic inclusivity and the promotion of multilingualism, but rather an exclusionary decision that hinders access to justice.
The alleged decision to remove Afrikaans (and, by implication, negate all African languages) alongside English as a language of record is conflicted in light of the dictum in the case of Ermelo (2010), where the Constitutional Court held that: “... when a learner already enjoys the benefit of being taught in an official language of choice, the state bears the negative duty not to take away or diminish the right without appropriate justification”.
The same principle applies to litigants. Therefore, on what grounds is this justifiable? Is it possibly based on the kneejerk reaction of Afrikaans being used as a tool of oppression and discrimination? If so, how do you justify retaining English, a colonial language? And if it is an oppressive status quo the honourable chief justice is trying to reverse, why not elevate the African languages to languages of record? This would be constitutional and transformative.
According to the 2011 national census, only 9.6% of the population speaks English as their mother tongue. We question whether Legal Aid SA’s language survey last year, in which statistics proved that English was not the primary spoken language in civil matters across all provinces, was considered. In fact, the primary spoken languages across the provinces for civil cases were recorded at 21% isiZulu, 20% Afrikaans and 16% isiXhosa.
Similarly in criminal cases, for litigants, English was not the primary language spoken by the majority of people in the nine provinces. The primary spoken languages in criminal matters were 24% isiZulu, 22% Afrikaans and 20% isiXhosa.
The English proficiency statistics in criminal cases illustrate that, in all provinces, litigants’ proficiency in understanding, speaking, reading and writing English is either poor or satisfactory. Were these statistics considered and, if so, how is the alleged decision justifiable against these numbers? Research has proven that multilingualism is a resource and that budgetary constraints are a red herring.
We are suggesting that the alleged decision is not transformative and transparent, in line with the values enshrined in the Constitution.
We further suggest that a process of meaningful engagement and consultation be undertaken with all relevant stakeholders before making a final recommendation to the executive.
Furthermore, it is suggested that the office of the honourable chief justice prepare a proper language management plan for the various high courts to accommodate the use of the official languages in the various regions, in compliance with constitutional prescripts. It presently suggests a misinformed top-down decision, which ignores South Africa’s multilingual reality.
Zakeera Docrat is a master’s student in African languages at Rhodes University;
Professor Russell H Kaschula chairs the Intellectualisation of African Languages, Multilingualism and Education at Rhodes University;
Cerneels JA Lourens is a director at Lourens Attorneys;
Alana Bailey is deputy chief executive of AfriForum;
Annelise de Vries is language planning coordinator at AfriForum;
Professor Monwabisi K Ralarala is director of the Fundani Language Centre at the Cape Peninsula University of Technology
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