While courtroom translation plays a key role in advancing access to justice, Docrat laments the lack of regulation of that service. It is accordingly difficult to work with key stakeholders in that sector, and the lack of regulation supports the stigma that courtroom translators are untrustworthy and dishonest.
In a surprising turn of the tide during a recent and important webinar, I had the refreshing opportunity to listen to outspoken thinkers with a vision for a truly multilingual South African state.
These species of events generally bore me. More often than not, I roll my eyes and saunter away for coffee. The reason for my default impatience at panel discussions on multilingualism is due to them tending towards the following formula: the panel members start off with mealy mouthed and moralistic chit-chats about “language of my heart” or “eternal heritages” or “speakers’ responsibilities”. Then follow the impassioned lamentations and personal excuses when the impracticalities of multilingualism are discussed, which makes one truly wonder how cynical these great thinkers really are, regarding South Africans’ ability to devise win-win solutions to complex problems.
This time, however, the webinar had a wholly different impression on me, and not simply because the stated ideology was approached from a different angle.
What differed here from previous talks about multilingualism was the insistence on a fresh reframing of the South African language situation, as well as the acknowledgement that language isn’t merely a matter of heritage, but is indeed an integral part of the greater infrastructure of the democratic state. The Indigenous Languages Action Forum (ILAF), our host, functions in support of South Africa’s greater infrastructure for constitutional language governance, namely PanSALB (the Pan South African Language Board). ILAF also works with the Afrikaanse Taalraad (ATR, Afrikaans Language Board), an umbrella organisation that aims to create an inclusive and discursive space for all speakers of Afrikaans. The ILAF-ATR cooperation also provides Afrikaans speakers and speakers of other African languages the opportunity to work together on shared questions of language policy, among other issues.
The webinar of 25 September drew some important names from the field of language policy and applied linguistics to consider jointly the issue of language in the South African criminal justice system. Zakeera Docrat from Rhodes University is a specialist in the area of languages of record in South African courts. Her doctoral dissertation of November 2019 critiqued the onward march of English monolingualism in our courts. Monwabisi Ralarala from UWC is an authority on language as a human right, focusing on linguistic justice in the criminal justice system. Finally, the panel included former Constitutional Court judge Johann Kriegler to provide insight from the perspective of legal practice.
What are the benefits of using English as the language of record and proceedings in the criminal justice system? What...
During the opening remarks, one could clearly detect a divide between Kriegler’s approach to language and that of the other two panellists. For Kriegler, the anglicisation of the criminal justice system is a necessary evil. As a former practitioner, he plainly sees no way in which the mountains of evidence that normally collect on the level of the magistrate’s court, could practically speaking be translated in the case of an appeal before a bench that does not fully understand the original language of record. Kriegler also said that the situation is aggravated, given that South Africa has 11 official languages. Even if most judges are trained in two languages, what about the other nine? How can one reconcile practicality with consistent opportunities for the use of different tongues? Kriegler emphasises that he, too, is saddened to see that his mother tongue, Afrikaans, is increasingly being marginalised on various public levels, including in the criminal justice system, in favour of English.
This he regards as an unfortunate necessity.
Judge Kriegler’s approach is perhaps a reflection of a remnant of the attitude towards language in a new South Africa harboured by many verligte Afrikaners during the 1990s negotiation period. While the ANC and NP wrestled out a language settlement which was both inclusive and a compromise, it is very likely that various members of the white, liberal Afrikaans and English establishment subscribed to the old South African Party (or Smutsian) attitude towards multilingualism. This approach is defined by a colonially inspired clinging onto English as the language of a “civilising” empire on which the sun never sets, whether we like it or not. For such South African liberals, the unfortunate choice lies between “chaotic” multilingualism and “ordered, regimented” English monolingualism, which, above all, opens the doors of Anglo-capitalism for everyone’s benefit. Today, this is an approach widely adopted in the South African commercial, legal and higher education environments. So far, for example, only very few members of the legal profession and other stakeholders have commented on the new Legal Practice Council’s English-only draft language policy.
In response to a question from the audience on the testing of multilingualism in the criminal courts, Ralarala stated that there exists a regrettable tendency to cancel conversations on linguistic justice on the basis of “magic words” such as practical infeasibility, without there having been any significant testing opportunities.
But it is this conviction regarding the practicality and ostensible realpolitik over the use of English that drew the scepticism of Docrat and Ralarala. The latter emphasised that the large majority of criminal cases are heard and finalised on the level of the magistrate’s court. Accused persons are tried in their districts and regions, where English typically is not a first, second or even third language for most people. A blanket approach to the language of record on local level is accordingly very problematic. In response to a question from the audience on the testing of multilingualism in the criminal courts, Ralarala stated that there exists a regrettable tendency to cancel conversations on linguistic justice on the basis of “magic words” such as practical infeasibility, without there having been any significant testing opportunities. Docrat did not mince her words in her criticism of the oft-repeated excuse of practical infeasibility. She pointed out bluntly that practical infeasibility is highly problematic, because it ignores applied multilingualism as an act of redress. Clinging onto English in the new dispensation is equivalent to conveniently forgetting about systemic racial injustice and the continued inequities of the past, on the basis that the new constitutional dispensation introduced formal equality. To proclaim 11 official languages without any proactive, grassroots-level development for the public use of such languages is no redress at all.
While courtroom translation plays a key role in advancing access to justice, Docrat laments the lack of regulation of that service. It is accordingly difficult to work with key stakeholders in that sector, and the lack of regulation supports the stigma that courtroom translators are untrustworthy and dishonest. Docrat argues that large-scale linguistic redress is possible only if all sectors – education and training, the justice department and the organised legal profession – join their efforts to internalise, normalise and promote multilingualism on all levels.
Neither Docrat nor Ralarala is in favour of the elimination of English in the public sphere. On the contrary, English can play a useful role as a lingua franca, and it already does so. The problem is that the global privileging of the English language as the official language in various countries and in the commercial world, tends to leave little room for indigenous languages to thrive. Consequently, the historical hegemonic relationship of Englishness towards indigeneity is continued unabated, tending to “confirm” racist stereotypes about the inability of indigenous languages and their speakers to engage in “sophisticated” tasks, such as the administration of justice.
During the remainder of the panel discussion, it appeared as if Kriegler and the other two panellists were missing the essence of each other’s arguments. Docrat and Ralarala opposed English domination on the basis that speakers of indigenous languages can also create a successful, multifaceted and publicly useful language environment. Kriegler has sympathy for multilingualism, but seemed to fail to understand that English is precisely not a neutral player in the South African linguistic environment. Inequality between language communities is mainly due to the structural inequalities foisted on them by the colonial past, during which English was part and parcel of a worldwide displacement of indigenous languages from the Pacific to Africa and North America. Unfortunately, this inequitable tendency of English to crush indigeneity and take up space from local languages still continues. Redressing this state of affairs will ensure that the Constitution’s formal language equity clause finds substantial meaning in the public sphere.
Our criminal justice system was severely harmed not only by the Zuma-era destruction of the NPA’s capacity to prosecute. There are also older scars, due to the widespread impression during the previous dispensation that the criminal justice system was a willing servant to the apartheid and colonial systems. The practice of criminal law and justice was and still is a very paternalistic creation, with deep roots in the English criminal justice model. One of the pillars of this system is the continued use of haughty courtroom English. For accused people, on the provincial and rural level especially, this appears to be an enigmatic and inaccessible world of elites. For access to justice to be worthy of the Constitution, legal practice must meaningfully promote and engage with the languages of the community. This will reaffirm and strengthen our commitment to equality and human dignity in a useful, tangible form.