S v FENI 2016 (2) SACR 581 (ECB)

Trial — Record — Language — Use of indigenous languages — Government programme for elevating use of indigenous languages not sufficiently advanced that it should be used where exigencies of matter did not demand such use — Delay of two and a half years in preparing record because of translation difficulties leading to compromise of accused’s fundamental rights.

In a response to a query by the reviewing judge why the record in this matter had been sent on automatic review more than two and a half years after the accused was convicted and sentenced, and why the proceedings had been conducted in isiXhosa and not in English, the magistrate responded that the delay was caused by the lack of translators to translate the record into English. The reason offered for conducting the proceedings in isiXhosa was that it was in line with the ‘campaign that Government embarked on . . . through pilot projects to promote the use of indigenous languages in the country’s courts’.

Held, that the present was a classic case of an accused’s fundamental rights of automatic review having been compromised by administrative incompetence.

Held, further, that the government’s programme had not reached the stage where it could be said that indigenous languages should be used in courts when the exigencies of a matter did not demand such use. The magistrate’s explanation for the delay was also far from convincing, and there was no explanation why an interpreter could not have interpreted from isiXhosa into English during the proceedings. The way in which the proceedings had been conducted had resulted in an inexplicable and inordinate delay, rendering justice a mockery. (Paragraph [9] at 584g–i.) The proceedings were otherwise certified as being in accordance with justice.


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