S v Damoyi (24441, A210/02, 44/02) [2003] ZAWCHC 65; 2004 (2) SA 564 (C); 2004 (1) SACR 121 (C) (26 November 2003)

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[2003] ZAWCHC 65
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S v Damoyi (24441, A210/02, 44/02) [2003] ZAWCHC 65; 2004 (2) SA 564 (C); 2004 (1) SACR 121 (C) (26 November 2003)

REPORTABLE
IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
High
Court Review No: 24441
Mag
Crt Case No: A210/02
Review Case No: 44/02
In the matter
between
THE STATE
and
MACEBO DAMOYI
Accused
REVIEW
JUDGMENT: DELIVERED 26 NOVEMBER 2003
YEKISO,
J:
[1] The issue of use of official languages in
Court proceedings which, despite a period of nine years having
elapsed since the advent
of the democratic order, has not as yet been
resolved, is capable of and has the potential of costly implications
in the administration
of justice. If parity of the eleven official
languages were to be adhered to in court
proceedings it could result in a considerable strain in resources
which, in turn, could impact
negatively on the quality of service
delivery and efficiency in the administration of justice.
[2] The concerns raised in the preceding paragraph
are evident in this matter which came before me by way of an
automatic review in
terms of
section 302(1)(i)
of the
Criminal
Procedure Act, 51 of 1977
. The matter relates to criminal
proceedings which were held in the Magistrate’s Court, Bishop
Lavis, within the magisterial district
of Goodwood, Western Cape.
[3] At some
point in the course of the proceedings in the matter which is the
subject of this review, there was no interpreter available
to
interpret the proceedings from either English or Afrikaans language
to IsiXhosa, resulting in postponement of the matter till
the
following court day. The following day there still was no
interpreter available. On this occasion the Magistrate was averse
in
having the proceedings further postponed particularly in view of the
fact that the Magistrate, the State Prosecutor and the Accused
were
all Xhosa speaking. The Magistrate then resolved that the
proceedings would continue without an interpreter. The proceedings
did indeed continue and were recorded in isiXhosa. After evidence
had been led the court was satisfied that the guilt of the accused
was proved beyond reasonable doubt. The accused was accordingly
convicted as charged. The State proved previous convictions
and
after
addressing the court in mitigation, the accused was sentenced to
three (3) years imprisonment.
[4] I am
satisfied that the proceedings in this matter are in accordance with
justice. However, in a covering letter addressed
to the review
Judge, the Magistrate explains that tremendous problems were
experienced in having the portion of the record in which
the evidence
was recorded in isiXhosa transcribed, resulting in a delay in the
transcription of the record, hence the delay in submitting
the record
for review. It is clear on the record that the matter had already
been postponed due to the unavailability of an interpreter.
In
deciding that the matter proceed without the services of an
interpreter, the Magistrate was of the view that a further
postponement,
due to the unavailability of an interpreter, would
compromise the accused’s right to a speedy trial particularly when
all the parties
concerned, that is the Magistrate, the Prosecutor and
the accused were proficient in isiXhosa, the latter being one of the
eleven
official languages and also one of the three official
languages in terms of section 5(3) of the Constitution of the
Province of the
Western Cape.
[5] When the
matter came before me, I addressed a letter to the Director of Public
Prosecutions to ascertain what the policy is within
the Justice
Department as regards the use of any one of the official languages in
criminal proceedings, both in the High Court and
the Lower Courts,
and also to advise of the capacity
within the
office of the Director of Public Prosecutions as regards the use of
any one of the official languages, other than English
or Afrikaans,
in criminal proceedings, both in the High Court and the Lower Courts.
[6] The
response from the Office of the Director of Public Prosecutions is
that there is no policy within the Justice Department as
regards use
of any official language other than English or Afrikaans, that an
audit in proficiency in official languages within the
Directorate
indicates that of the 262 prosecutors in the Lower Courts in the
Western Cape, only 62 are African and proficient in
an indigenous
language and that only three advocates out of a total of 36 in the
office of the Director of Public Prosecutions are
able to speak one
or more indigenous languages.
[7] Section
35(3)(k) of the Constitution of the Republic of South Africa, Act No
108 of 1996, provides as follows:-
“
Every accused person
has a right to a fair trial, which includes the right to be tried in
a language that the accused person understands
or, if that is not
practicable, to have the proceedings interpreted in that language.”
[8] In turn,
section 6(1), (2) and (4) of the Constitution reads as follows:-
“
(1) The official languages of the Republic are
Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans,
English, isiNdebele,
isiXhosa and isiZulu.
(2)
Recognizing the historically diminished use and status of the
indigenous languages of our people, the state must take
practical
and
positive
measures
to elevate the status and advance of use of these languages.
(4) The national government and provincial
governments, by legislative and other measures, must regulate and
monitor their use of
official languages.
Without detracting
from the provisions of subsection (2), all official languages must
enjoy parity of esteem and must be treated equitably.
” (the
underlinings are obviously mine)
It is quite
evident that in terms of section 6(2) and (4) of the Constitution,
both the National and the Provincial governments have
a
constitutional duty to realize the objective envisaged in the
aforementioned subsections, not only as regards the affairs of either
the National and Provincial governments but also as regards the
conduct of court proceedings. Whether both the National and the
Provincial
governments have a political will to do so, remains to be
seen.
[9] The
question of parity of official languages for purposes of court
proceedings has had occasion to be considered in other jurisdictions.
In
S v Matomela 1998(2) All SA 1
(CK)
the court
dealt with an automatic review of a sentence on a conviction for
failure to comply with a maintenance order.
[10] The
evidence in the proceedings was recorded in isiXhosa due to the
shortage or unavailability of interpreters. In this matter
the
Magistrate, the Prosecutor and the accused were all proficient in
isiXhosa hence the conduct of the proceedings in isiXhosa.
What is
of significance in
S v Matomela
(supra) is the part of the
judgment which discusses the problem of the language of the
proceedings to be used in South African courts.
Tshabalala, J (as
he then was) had directed a query to the presiding magistrate in the
following terms:
“Why was the evidence, conviction and sentence
in Xhosa language? Is this in terms of an instruction from the
Department of Justice?
Full reasons are required.
“ The
senior magistrate responded that the recording of the proceedings in
isiXhosa was not as a result of an instruction from
the Department of
Justice, but was occasioned by the following factors, namely:
There
was a shortage of interpreters, and postponement until the shortage
was overcome would have caused the complainant further hardships.
It was ascertained that the parties were all Xhosa
speaking, including the presiding officer. The senior magistrate
also did not
want the presiding officer to act as an interpreter.
[11] learned judge accepted the reasons as fair and
reasonable in the circumstances. He remarks as follows at p4 e-f:
“
In my judgments the best solution is to have one
official language for courts… All official languages must enjoy
parity of esteem
and be treated equitably but for practical reasons
and for
better administration of justice one official
language of record will resolve the problem. Such a language
should be one which
can be understood by all court officials
irrespective of mother tongue.”
[12] In
S
v Pienaar 2000(2) SACR 143
, the accused was convicted of dealing
in dagga in the magistrate’s court, Kimberley, Northern Cape, and
was sentenced to a fine
of R 3000 or two (2) years’ imprisonment.
Before the commencement of trial the accused had asked that his legal
representative,
who was English-speaking and not proficient in the
Afrikaans language, to withdraw for the reason that they could not
communicate
effectively. She accordingly withdrew and the trial
proceeded with the accused undefended. The reviewing judge
enquired from
the magistrate whether she had asked the accused if he
knew that he was entitled to a legal representative with whom he
could communicate
or that he was entitled to an interpreter through
whom he could communicate with his legal representative. The
magistrate responded
that she could have gone further and informed
the accused that there was a possibility that he could get another
legal representative
or an interpreter. However, she was of the
view that the accused had not been prejudiced even though the trial
had proceeded without
the accused having had legal representation.
[13] The
review judge was not persuaded that the accused had made an informed
and considered decision in agreeing that the matter
proceed without
the services of a legal representative. Further, in the view of
the review judge, the accused had a right to legal
representation
provided by the State, but the judge also had to decide whether the
accused had the right that the State provide him
with a legal
representative with whom he could communicate in Afrikaans or by
means of an interpreter.
[14] The
Court observed that although Afrikaans was the most commonly spoken
language in the Northern Cape and was used in 72% of
cases in courts
in comparison with 1.4% of cases in English, it was the stated policy
of the Department of Justice to introduce English
as a language of
record in the courts. English-speaking presiding officers and
public defenders had been appointed, but the use
of interpreters to
cope with the problem would result in phenomenal cost and would have
inequality implications. The Court was
of the view that the
promotion of English at the expense of other official languages was
in conflict with the constitutional directive
as envisaged in section
6(4) of the Constitution.
[15] The Court further referred to section 6 of
the Magistrate’s Court Act, 32 of 1944 in support of the view that
the accused had
a right to be tried in the Afrikaans language.
[16] Section
6 of Act 32 of 1944 reads thus:-
“
(1) Either of the official languages may be used at
any stage of the proceedings in any court and the evidence shall be
recorded in
the language so used.”
In my view the provisions of section 6 of the
Magistrate’s Court Act were superceded by the provisions of section
6 of the Constitution
so that reliance on section 6 of the
Magistrate’s Court Act in support of the view that the accused had
a right to be tried in
the Afrikaans language, in my view, is not in
conformity with the provisions of section 6 of the Constitution.
[17] The
application of section 35(3)(k) of the Constitution was further
considered in
Mthethwa v De Bruin NO & Another 1998(3) BCLR
336(N)
. In this case the applicant, who had been charged in the
Regional Court, understood English but had demanded that his trial be
conducted in isiZulu. The regional magistrate before whom he
appeared, as well as the legal representative who represented him,
were not Zulu-speaking. The Court pointed out that section 35(3)(k)
of the Constitution does not confer on an accused person a
right to
have a trial conducted in the language of his/her choice, but that it
merely confers a right to be tried in a language that
he/she
understands, or if that is not practicable, to have the proceedings
interpreted into such a language. In my view this is
the correct
interpretation of the provisions of section 35(3) of the Constitution
but falls short of addressing the issue of parity
of the use of
languages in court proceedings.
[18] What
clearly emerges from the few decisions in which the issue of parity
of languages was considered is the divergence in views
concerning the
use of official languages in court proceedings. The burning issue
still is which of the eleven of the official languages
should be used
as the language of record in court proceedings. The solution to
problems such as the one raised in this matter could
be the
introduction of one language of record in court proceedings. I am
of the opinion that the recommendation by Tshabalala,
J in
S v
Matomela
(supra) is the route to follow, and, in my view, such a
course would not only be economical but would be in the best interest
of
justice. After all English already is a language used in
international commerce and international transactions are exclusively
concluded in the English language. Although some stakeholders
would take it with a pinch of salt, sanity would tip the scale in
favour of English as the language of record in court proceedings,
particularly in view of its predominance in international politics,
commerce and industry.
[19] I thus
do not share the view by Malan JJ :
Die gebruik van Afrikaans vir
die notulering van hofverrigtinge gemeet aan die demokratiese
standaarde: Tydskrif vir Regswetenskap
/ Journal for Judicial Science
p36 Vol 28 No 1 June 2003 that the approach as suggested in the
preceding paragraph is incongruent with the democratic values
enshrined
in the Constitution.
[20] I have
already made a determination that the proceedings in the instance of
this matter are in accordance with justice. It is
to be hoped that
the issue of a language of record in court proceedings will be
resolved sooner rather than later. Having said that
the conviction
and sentence is confirmed.
________________________
N
J Yekiso, J