Leaders of the judicial system have sentenced Afrikaans to death in courts throughout the country. In an e-mail to staff revealing the decision, Western Cape Judge President John Hlophe said a resolution adopted last month by the heads of courts declared: “English must be the official language of record in all courts in the Republic of South Africa.”
In his April 5 message, Hlophe added: “Kindly ensure that there is compliance with this resolution in all courts in the Western Cape with immediate effect.” Chief Justice Mogoeng Mogoeng’s office confirmed the decision, which has already attracted criticism from AfriForum and the Pan South African Language Board.
AfriForum’s Alana Bailey said the pro-Afrikaans group was considering mounting a legal challenge, and Rakwena Monareng, CEO of the language board, said while the board would seek a discussion with the heads of courts, litigation could not be ruled out.
But constitutional law expert Professor Pierre de Vos said the resolution would not make any difference because in most courts the language was already English.
The language issue was raised last week at the Judicial Service Commission when Northern Cape Judge Violet Phatshoane spoke about a colleague who wrote a judgment in Afrikaans and told a judge who was not conversant in the language to “consult the dictionary”.
Meanwhile, North West lawyer and language activist Cornelius Lourens has gone to the UN Human Rights Committee after failing in legal action to compel the government to publish all statutes in all 11 official languages.
In his e-mail, Hlophe said the resolution on the abolition of Afrikaans in courts was passed several years ago and “the chief justice has already notified the minister of justice accordingly”.
Mogoeng’s spokesman, Nathi Mncube, said: “In a heads of court meeting held in October 2014, it was resolved that the language of record should be English. This resolution/position was reaffirmed in the recent heads of court meeting held on March 31 2017.
“This resolution was taken recognising that English has become the general language of usage nationally and internationally and to ensure effective communication.
“It is the expectation of the heads of court that all judges president will implement the resolution.”
But Bailey said the move contravened the Justice Department’s language policy passed last year, which recognises three official languages nationally as well as the languages spoken regionally.
A survey by Legal Aid South Africa last year found that 63.2% of people who applied for legal aid in criminal matters had at least a satisfactory understanding of English.
But Bailey said: “This means 36.8% of applicants have a poor understanding of English.”
The survey also found marked provincial differences in the ability to understand English.
In the Eastern Cape, 56.4% of legal aid applicants were not comfortable in the language, followed by the Northern Cape (42.6%) and KwaZulu-Natal (41%).
In Gauteng, 75.5% of applicants were able to understand English and 71.6% were able to speak English at a satisfactory level.
More than half of the applicants in criminal matters in the Eastern Cape, KwaZulu-Natal and the Northern Cape said their English literacy levels were poor.
Bailey said AfriForum was inclined to challenge the heads of courts’ decision. “We would love to take it up. The legal process is something that affects all of us.”
Monareng said the decision was contrary to the country’s language policy and “even the constitution itself”.
De Vos said Mogoeng’s edict would not prevent witnesses testifying in their own language, because translators would continue to be provided. And sometimes the use of Afrikaans hindered the development of the law because it was not accessible to everybody.
“There is a different question about whether we shouldn’t be more multilingual in our legal system, but that is not only about Afrikaans,” he said.
“There is, of course, history and politics, but my feeling is that there is a fairness question, and that because of the history of apartheid we don’t want to continue favouring one language over other indigenous languages. Once again there is a bigger question about what is practicable.”