Recordings of court procedures (court records) may only be in English and no exception to the rule will be allowed, a court said in striking two appeals from the roll where the records handed to the court were partially in Afrikaans.
Judge Bantubonke Tokota, sitting in the Eastern Cape High Court in Makhanda, said it was the Constitutional right of anyone before court to testify in their own language, using the services of an interpreter to interpret into English, as the final court record must always be in English.
He made these observations following two appeals by accused persons against their convictions.
The judge directed that the respective magistrates who handled their hearings in the criminal trials, ensure that portions of each record in Afrikaans are translated into English.
Judge Tokota said the matters may not be re-enrolled until such time as the entire record was transcribed into English.
One accused - Mr Oosthuizen - stood trial in Joubertina in the Eastern Cape on charges of domestic violence, while the other - a Mr van Straten - faced fraud charges in Gqeberha.
The court records in both matters are partly in English and partly in Afrikaans. In the matter of Oosthuizen, 90% of the record is in Afrikaans and in the matter of van Straten, about 20% of the record is in Afrikaans.
At the hearing of these matters, the judge raised concerns about the records of the court proceedings being partly in English and partly in Afrikaans, in both matters. This point was also raised at the commencement of the proceedings in the Magistrate’s Court in Joubertina by the defence lawyer.
The lawyer, who represented van Straten, brought it to the attention of the magistrate that he had heard that everything must now be done in English. The response to this by the magistrate was that one cannot take away the right of the accused to speak Afrikaans.
But Judge Tokota said the magistrate missed the point. “He knows full well that he has a duty to get an interpreter to interpret the language spoken by the accused or witness as the record should be in English.”
The judge added that van Straten was entitled to speak Afrikaans as long as it was interpreted into English for record purposes. “This is what happens when a person speaks in IsiXhosa or isiZulu. The same would apply to any one of the other official languages.”
Judge Tokota said it was not the intention of the judgment to convey the impression that witnesses, including accused persons, may not give evidence in court in the language of their own choice as this was enshrined in the Constitution.
The language issue was a sensitive matter ,especially if one had regard for the provisions of the Constitution which provided that all official languages must enjoy parity of esteem and be treated equitably.
The judge pointed out that the heterogeneity of the population in South Africa was such that it was imperative for practical reasons that be uniformity in the use of court language.
He explained that after the arrival of the colonists in this country in the seventeenth century, there were three official languages, at least in courts - English, Dutch, (which later subsided into Afrikaans) and Latin.
In 1652 when Jan van Riebeeck occupied the Cape of Good Hope, Roman Dutch Law was introduced in South Africa. Each language group had its own jargon which had an impact on different cultures.
Judge Tokota mentioned a story of a certain counsel in the Supreme Court of Appeal, who during the debate of the argument, was asked a question in Afrikaans and because of the race of the judge who put the question, he responded in English anticipating that the judge would understand it better.
The judge then asked if he misunderstood the question and thereafter he rephrased his answer in Afrikaans.
“This may sound as a joke but it illustrates the problem of the language usage and perceptions attendant thereto,” Judge Tokota said.
After the rise of Afrikaner nationalism, Afrikaans became an important legal language. In the then South West Africa, Afrikaans was generally spoken and understood by everyone and English was used by a smaller group of persons, primarily as a second or third language.
Upon gaining independence Afrikaans was then perceived as the language of the vanquished conqueror. Consequently, it was replaced with English as the only official language.
The Heads of Court’s Committee on court language policy established in 2003 saw it fit to recommend that English be the court language of record. This was adopted in March 2017.
“Therefore, in my view, in light of the authority of Heads of Courts, including the Chief Justice, to manage and give guidance in the running of courts, the resolution is binding on courts and should be treated as such..,” Judge Tokota said.
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