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.



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.