S v DAMANI 2016 (1) SACR 80 (KZP)
Trial — Language — Use of indigenous languages — Although use of indigenous languages in court should be promoted, until issue of language policy in lower-court proceedings officially resolved by competent authority, not salutary for magistrate at own discretion to conduct proceedings in indigenous language.
The accused was convicted in a magistrates’ court of assault with intent to do grievous bodily harm and was sentenced to 12 months’ imprisonment suspended for five years on certain conditions. The matter was submitted on automatic review and the reviewing judge addressed certain queries to the presiding magistrate, questioning, firstly, the motivation for conducting the whole case in isiZulu and, secondly, why it had taken almost three months to submit the matter on review. The magistrate responded that it was his decision to conduct the whole trial in Zulu as the overwhelming majority of the people of the district spoke the language and all of the participants in the trial spoke Zulu. He also mentioned that the Constitution called for recognition of the equality of all 11 official languages. It appeared further that it had taken almost two months to have the transcription prepared. In the light of this information the reviewing judge sought input on the matter from the Director of Public Prosecutions and the chief magistrate of Pietermaritzburg, as well as the acting chief magistrate of Durban. After having considered these submissions,
Held, that it was no doubt a noble idea to use any of the 11 official languages in court, and efforts that were aimed at advancing the status and the use of indigenous languages, particularly in the lower courts at this stage, were to be welcomed and encouraged. However, the process should be embarked upon in an orderly and less disruptive manner so as to ensure that the finalisation of cases was not unduly delayed. To the knowledge of the court, there did not seem to be proper structures in place that could adequately and timeously attend to the transcription of records from the nine indigenous languages for the purposes of appeals or reviews. It therefore followed that undue delays in finalising those cases would most certainly occur, which would have dire and prejudicial consequences to the accused concerned.
Held, further, that, given the fact that a decision by the magistrate, at his or her discretion, to conduct court proceedings in any of the nine indigenous official languages was likely to have administrative and/or budgetary implications on the part of the government or the office of the Chief Justice, it was not a salutary and desirable thing for any magistrate to do this at the present stage, until such time as the issue of language policy in court proceedings in the lower courts was officially resolved and determined by a competent authority. The proceedings were in all other respects certified to be in accordance with justice.