By Dr Zakeera Docrat, University of the Western Cape and Russell H. Kaschula, University of the Western Cape

The murder of football player Senzo Meyiwa in 2014 and its protracted and controversial police investigation involving high profile figures in the South African music industry continues to make headlines in South Africa. Five men are on trial for allegedly murdering the national team captain and goalkeeper.

Recent events in the criminal trial have shone the spotlight on the use of language from a perspective of legal practitioners, judicial officers, police officers and courtroom interpretation.

Both the advocate for the accused as well as a state witness experienced linguistic challenges – they were seen to be struggling with the language in court. This was no fault of their own but due to a restrictive language policy that favours English as the main language in court. In one instance the judge halted proceedings and urged a state witness – forensic detective Sergeant Thabo Mosia – to ask for a Sesotho language interpreter, which he agreed to. The only interpretation in court had been in the isiZulu language. The country has 11 official languages.

Language is the most important component of courtroom proceedings, yet it is assumed that English is the only language through which communication can take place. This is inconsistent with the ideals and rights contained in the South African constitution and the fact that the country is multilingual – an aspect that should be celebrated.

As forensic and legal linguists we focus on the language issues plaguing our legal system, especially when evidence is being imparted. The Meyiwa case is not unique in shedding light on the country’s courtroom language challenges. But through it we see the need for mindful legal practitioners and judicial officers who are sensitive to the language complexities that exist.

Language prejudice in courtrooms

It is a human condition that we judge each other based on the use of language vocabulary, accent, tone and language sensitivity. When you open your mouth people naturally make valued judgements and attach psychological labels, these being either positive or negative and thereby influencing their response.

In another example from the trial, Advocate Malesela Teffo, the advocate for the accused, was at a loss for English vocabulary which resulted in various types of language prejudice coming into play. It also resulted in Judge Tshifhiwa Maumela laughing when the advocate ran out of words. This relates to subjective and strictly linguistic inequality: how we judge people based on their lack of words and on the basis of how they speak and their level of speech. Such judgements can often be unreliable.

The country’s Legal Practice Act and Legal Practice Council fail to address the language question for courtroom communication. They don’t address the language qualifications and competencies of South African legal practitioners and future judicial officers. The legislative and policy frameworks reinforce the English only status quo. Legal practitioners and judicial officers who do not speak English as their mother tongue are often required to first think of vocabulary before even posing a question to the witness. This was clearly the case with Advocate Teffo.

We notice the ease with which Advocate Teffo was able to formulate and pose the question in his mother tongue and this should be embraced within courtroom discourse. Instead, policies and legislation dictate otherwise and impose a language on the practitioner without thinking of the consequences. Specifically during examination in chief and cross-examination is the phrasing and use of language important for a witness and could result in an alternative answer being provided.

Cultural and linguistic concepts within the South African context are often not explainable and are often not even translatable in English. An example would be the psychological state of amafufunyana, a state of being inexplicable in western psychology. Or the word adoption, for which there is no equivalence in the isiNguni languages. There is sexual terminology also considered taboo in African culture and creating linguistic challenges in court. You think best and speak best in your mother tongue, where there is a clear link between language and culture.

This should be the point of departure in any legal context, where language is law and law is language.

Problematic language of record policy

Policy dictates the use of English as the official language for record purposes. Where an interpreter is used the English interpretation is recorded. The direct words and sentiments of the witness are not recorded. The English only language of record policy was said to have been practical according to the Heads of Courts in 2017.

However, in the Meyiwa case we see that when implemented the policy is questionable. A one size fits all language policy in a multilingual country such as South Africa may not necessarily be practical and definitely not transformative.

The policy also hinders legal practitioners, judicial officers and witnesses from proceeding in a language other than English where it is practical to do so. This places sole reliance on interpretation services in our courts.

The importance of the court interpreter

The Meyiwa case also highlights the needs for interpreters where indigenous languages are to be used. Unfortunately, we have a shortage of skilled, qualified and competent court interpreters in South Africa.

Interpreters are not merely translating words between people for the record of the court, but rather are tasked with finding equivalence between two languages and two cultures in the case of English and an African language. The legal terminology that court interpreters require suggests the need for appropriate academic qualifications and training which are presently lacking.

Police as transpreters (translators + interpreters)

The English language of record policy and the South African Police service language policy dictate that police officers need no language qualifications, competencies or training. Yet they are required to record statements in English where complainants are more than often not English mother tongue speakers.

Police officer are therefore interpreting between themselves and complainants and then translating into English for the written statement – acting as a transpreter without the requisite knowledge or qualifications. There are instances where police officers suffer linguistic prejudice, where English vocabulary fails them – as in the case of the state witness and the interpreter in the Meyiwa trial.

A way forward

The first aspect that needs urgent attention and revision is the monolingual language of record policy for courts. It needs to include all official languages on the basis of provincial language demographics to ensure practicality.

Secondly, to empower legal practitioners, judicial officers, and police officers through training programmes and other language qualifications. Legislation and policies need to be are more inclusive, fostering a multilingual rather than a monolingual approach.

These require the facilitation of forensic and legal linguists to assist government and the judiciary with the aid of new technologies formulated by forensic linguists.

Furthermore, forensic linguists can assist in the re-training of legal practitioners, judicial officers and interpreters to be more mindful of the language complexities in courtroom discourse. The research has been conducted by forensic and legal linguists, with the next step being the implementation of these strategies.

Zakeera Docrat, Postdoctoral research fellow (Forensic Linguistics/ Language and Law), University of the Western Cape and Russell H. Kaschula, Professor of African Language Studies, University of the Western Cape

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Zakeera Docrat

Dr Zakeera Docrat is currently a Postdoctoral research fellow under the auspices of the National Institute for the Humanities and Social Sciences (NIHSS), at the University of the Western Cape. Dr Docrat...

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