Language and transformation of the legal system

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2005-02-03

i-MAG

Language and transformation of the legal system
STATEMENT
issued by the
MULTILINGUALISM ACTION GROUP (I-MAG)*
on 24 January, 2005

Executive summary
(The full statement follows hereafter)

The Multilingualism Action Group (i-MAG) has noted the ongoing debate on language in our courts and the expected recommendations on a policy in this regard by a committee of judges to the Department of Justice.

-   Against the background of the Constitution of the Republic of South Africa,
-   in the interest of the transformation of our legal system,
-   with reference to the National Language Policy Framework,
-   taking into consideration the Pan South African Language Board's Guidelines for Language Planning and Policy Development, and
-   for the sake of a more effective and more just legal system and legal practice that embody the letter and spirit of the Constitution

we make a serious appeal to the Department of Justice and the committee of judges who must advise the Department on a language policy for the courts to accept the following as points of departure and minimum requirements for such a policy:

1. Each of the 11 official languages may be used as language of communication in all courts, by anyone, for all functions, including judgments, arguments by legal counsel, court documents, and giving of evidence.

2. If someone who is involved in a case does not understand one of the languages used, an interpreter should be provided for that person.

3. Judgments, arguments by legal counsel, court documents and evidence are not interpreted or translated into English or Afrikaans (or any other language) when they are given in another official language that is understood by all those involved in the case.

4. Judgments that are reported must be published in at least two official languages, one of which should be the language in which the judgment was given.

5. In cases where an interpreting service is used, minutes of the court proceedings should be held in the language or languages in which the proceedings took place rather than the language or languages into which they were interpreted.

6. Information that must be provided to someone by the court should be provided in a language or languages that the person understands.

7. When appointing, promoting or placing judges, magistrates and public prosecutors, multilingualism - i.e. knowledge of several official languages - is treated as a strong recommendation, and consideration is given to the languages that are strongly represented, demographically, in the area where the person will be serving.

8. When assigning cases, the judge's, magistrate's or public prosecutor's proficiency or lack of proficiency in a relevant language or languages is taken into account.

9. A multilingualism component is integrated into the training of legal professionals, and a multilingual requirement is included in the conditions for (new) entrance to the legal profession.

10. A well resourced and professional language unit is established to assist the courts with the translation of court records and court documents and the transcription of minutes as well as the monitoring and refinement of language policy in the courts.

11. More and better opportunities for training and promotion are made available to court interpreters; the number of court interpreters is increased, and their remuneration improved.

12. Planning is undertaken with a view to the eventual use of all official languages as mediums of instruction for legal training in tertiary educational institutions and the provision of legal terminology and study materials in all official languages.

13. Greater accommodation and utilisation of language diversity through the above measures are viewed and treated as an essential component of affirmative action in the legal profession and of the transformation of the bench.

Finally, it is of the utmost importance that an inclusive and democratic process of public consultation be engaged in before any far-reaching decisions are made about language in the courts.

Issued by:

Mhlobo Jadezweni (chairperson),
Alet van Huyssteen (vice-chairperson),
Annette Humphries Heyns (treasurer),
Gerrit Brand (secretary),
Werner Scholtz (media liason officer),
Pedro Dausab, and
Zanele Mbude

on behalf of the Multilingualism Action Group (i-MAG)

*For more information on i-MAG, go to www.imag.org.za.

(Full statement follows on next page)

Full statement:
Language and transformation of the legal system
STATEMENT
issued by the
MULTILINGUALISM ACTION GROUP (I-MAG)*
on 24 January, 2005

The Multilingualism Action Group (i-MAG) has noted the ongoing debate on language in our courts and the expected recommendations on a policy in this regard by a committee of judges to the Department of Justice.

Against the background of the Constitution of the Republic of South Africa (Act 108 of 1996), which determines:

-    The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu [section 6(1)].

-    Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages [section 6(2)].

-    The national government 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; but the national government and each provincial government must use at least two official languages [section 6(3)(a)].

-    The national government and provincial governments, by legislative and other measures, must regulate and monitor their use of official languages. Without detracting from the provisions of subsection (2), all official languages must enjoy parity of esteem and must be treated equitably [section 6(4)].

-    The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including ... language [section 9(3)].

-    Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights [section 30].

-    Every accused person has a right to a fair trial, which includes the right to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language [section 35(3)(k)].

-    Whenever [section 35] requires information to be given to a person, that information must be given in a language that the person understands [section 35(4)].

In the interest of the transformation of our legal system (in accordance with Section 9(2) of the Constitution) with a view to:

-    a more diverse and representative bench;

-    more accessible courts, and a more open and comprehensible legal practice;

-    greater public involvement and participation in legal processes; and

-    a legal system that is more in tune with indigenous cultural and legal traditions, so that all South Africans can identify with it.

With reference to the National Language Policy Framework (2002), which stipulates:

-    By consensus, each government structure must agree on a working language(s) (for both intra and interdepartmental communication purposes); Provided that where practically possible no person will be prevented from using the language(s) of his or her preference [section 2.4.6.1].

-    For official correspondence purposes, the language of the citizen’s choice must be used. All oral communication must take place in the preferred official language of the target audience [section 2.4.6.2].

-    A publication programme of functional multilingualism should be followed by national government departments in those cases that do not require publication in all 11 official languages [section 2.4.6.3].

-    Where the effective and stable operation of government at any level requires comprehensive communication of information, it must be published in all 11 official languages and, in the provinces, in all the official languages prescribed in the Province [section 2.4.6.4].

-    In cases where government documents will not be made available in all 11 official languages, national government departments must publish documents simultaneously in at least six languages. The selection of languages will be made as follows:

•    At least one from the Nguni group (isiNdebele, isiXhosa, isiZulu and siSwati);

•    At least one from the Sotho group (Sepedi, Sesotho, Setswana);

•    Tshivenda;

•    Xitsonga;

•    English; and

•    Afrikaans [section 2.4.6.5].

-    A principle of rotation must be applied when selecting languages for publishing government documents in the Nguni and Sotho groups [section 2.4.6.6].

Taking into consideration the Pan South African Language Board's Guidelines for Language Planning and Policy Development (March 2001), with its Underlying Principles (§2) of

-    Functional multilingualism;

-    Social justice and equal access to public services, resources and programmes;

-    Language preference(s), use and proficiency of the target audience;

-    Broad acceptance of linguistic diversity;

-    Recognition of language rights;

-    Regular evaluation and revision (short, medium and long term);

-    Flexibility;

-    Openness, willingness to ... facilitate linguistic diversity; and

-    Commitment to respecting the language and culture of others.

On which grounds the Main Aims of Language Policy Development (§4) are identified as, among others,

-    the use of at least two of the eleven designated South African languages in official domains;

-    progressive elimination of disparity and lack of equity in respect of indigenous languages;

-    progressive elimination of language barriers to participation in political, cultural, social and economic life;

-    effective communication in and between government departments as well as access to services, resources, programmes, information and knowledge for all South Africans;

-    [recognition of] all government structures as distinct but interrelated and interdependent; and

-    [confirmation of] the constitutional language obligation as a core obligation of government that requires careful planning and systematic implementation.

Which identifies the Main Features of Functional Multilingualism (§5) as

-    consultation with the main stakeholders;

-    rational analysis of the results of the consultation process;

-    a commitment to testing the proposed policy in practice; and

-    a commitment to reworking and refining the language policy over time,

with the "overarching policy ... [of using] at least two but preferably more languages within official contexts".

And which recommends (§5) "The choice of at least two but preferably three languages (or four should linguistic variation make this necessary) ... based on a survey of the language preferences, use and proficiency of the target audience".

And for the sake of a more effective and more just legal system and legal practice that embody the letter and spirit of the Constitution.

We make a serious appeal to the Department of Justice and the committee of judges who must advise the Department on a language policy for the courts to accept the following as points of departure and minimum requirements for such a policy:

1. Each of the 11 official languages may be used as language of communication in all courts, by anyone, for all functions, including judgments, arguments by legal counsel, court documents, and giving of evidence.

2. If someone who is involved in a case does not understand one of the languages used, an interpreter should be provided for that person.

3. Judgments, arguments by legal counsel, court documents and evidence are not interpreted or translated into English or Afrikaans (or any other language) when they are given in another official language that is understood by all those involved in the case.

4. Judgments that are reported must be published in at least two official languages, one of which should be the language in which the judgment was given.

5. In cases where an interpreting service is used, minutes of the court proceedings should be held in the language or languages in which the proceedings took place rather than the language or languages into which they were interpreted.

6. Information that must be provided to someone by the court should be provided in a language or languages that the person understands.

7. When appointing, promoting or placing judges, magistrates and public prosecutors, multilingualism - i.e. knowledge of several official languages - is treated as a strong recommendation, and consideration is given to the languages that are strongly represented, demographically, in the area where the person will be serving.

8. When assigning cases, the judge's, magistrate's or public prosecutor's proficiency or lack of proficiency in a relevant language or languages is taken into account.

9. A multilingualism component is integrated into the training of legal professionals, and a multilingual requirement is included in the conditions for (new) entrance to the legal profession.

10. A well resourced and professional language unit is established to assist the courts with the translation of court records and court documents and the transcription of minutes as well as the monitoring and refinement of language policy in the courts.

11. More and better opportunities for training and promotion are made available to court interpreters; the number of court interpreters is increased, and their remuneration improved.

12. Planning is undertaken with a view to the eventual use of all official languages as mediums of instruction for legal training in tertiary educational institutions and the provision of legal terminology and study materials in all official languages.

13. Greater accommodation and utilisation of language diversity through the above measures are viewed and treated as an essential component of affirmative action in the legal profession and of the transformation of the bench.

Finally, it is of the utmost importance that an inclusive and democratic process of public consultation be engaged in before any far-reaching decisions are made about language in the courts.

Issued by:

Mhlobo Jadezweni (chairperson),
Alet van Huyssteen (vice-chairperson),
Annette Humphries Heyns (treasurer),
Gerrit Brand (secretary),
Werner Scholtz (media liason officer),
Pedro Dausab, and
Zanele Mbude

on behalf of the Multilingualism Action Group (i-MAG)

*For more information on i-MAG, go to www.imag.org.za.