While the official language of record in South African courts is currently English, this does not negate the rights of citizens, legal practitioners, witnesses nor accused persons to use their own languages during court proceedings.
This is according to the Pan South African Language Board (PanSALB), who has welcomed the recent ruling handed by the Eastern Cape High Court over a contempt of court charge brought against legal practitioner, Luvuyo Melani for addressing the court in isiXhosa.
The only qualifying criterion for deviating from English is that interpreters must be present during court proceedings to translate, which the court bears the responsibility of providing, PanSALB said.
In the matter brought before the high court for special review, the magistrate was under the impression that speaking any language other than English constituted contempt of court. This comes after drama unfolded during a bail hearing when the magistrate sitting at the Whittlesea Magistrates Court struggled to hear a lawyer over the noise of an air conditioner, and the lawyer then addressed the magistrate in isiXhosa, resulting in her believing that he brought the court “into disrepute”.
While initiating contempt of court proceedings against the Legal Aid South Africa lawyer, the magistrate, who is not named in the judgment, later seemed to have reservations, and she turned to the high court, sitting in Bhisho, where she referred the half-completed contempt of court proceedings to this court as a “special review” so that she could have clarity on the matter.
Instead of meeting the magistrate’s expectation of speaking up as requested by her (in English), Melani spoke in isiXhosa. Before embarking on this route, however, he requested to be assisted by the interpreter if the magistrate could not understand him. He perceived that the reason she could not hear him was because he might not be arguing sensibly in a language that is not his mother tongue. An exchange ensued, with Melani speaking in the vernacular.
The magistrate viewed this as disrespectful towards the court and embarked on contempt of court proceedings against him. This was, however, halted pending the outcome of the review to the high court.
The high court found the proceedings to be irregular as the magistrate’s court lacked jurisdiction to summarily try common law contempt, and the judge noted that Melani was never clearly informed of the charge, nor of his rights.
PanSALB, meanwhile, said the high court correctly found the contempt proceedings to be incorrect given the constitutional aspirations of the language provisions. The language organisation also pointed to the constitution which stipulates the right to a fair trial that every accused person must be tried in a language that he understands or, if that is not practicable, to have the proceedings interpreted into that language.
“As PanSALB, we want to dispel the notion that the use of indigenous languages is only meant for South African citizens outside of their professional careers. On the contrary, all South Africans enjoy equal language rights and the right to participate in public life using their own languages,” the organisation said.
It pointed out that interpreters are there for all participants during court proceedings, not just the accused. “Interpreters have the solemn duty to ensure that proceedings are captured accurately into the official language of record of the court,” PanSALB said.
It commented that the judgment clearly distinguishes between the official language of the courts and the language rights of the court participants. “Ensuring that submissions are made in the official language of record of the courts is the function of court language professionals, not litigants nor legal practitioners,” said Julius Dantile, PanSALB Acting Chief Executive Officer.
He explained that there can only be furtherance of multilingualism in the country when all citizens can fully participate in public life using their own languages, regardless of the profession they are in. According to Dantile, the legal practitioner had a right to resort to another language, and he should not be punished for contempt for breaking the English as the official language of record protocol.
Zelda Venter
iol.co.za