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2024
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[2024] ZAECMKHC 101
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Oosthuizen and Another v S (Appeal) (CA&R 248/2021 ; CA&R 45/2023) [2024] ZAECMKHC 101; 2024 (2) SACR 600 (ECMk) (19 September 2024)
FLYNOTES:
CRIMINAL – Appeal –
Language of court record –
Concerns regarding records of
court proceedings which were partly in English and partly in
Afrikaans – Heads of court’s
committee on court
language policy recommend that English be court language of record
– Interpreter should have been
used and court record
translated in English – Order directing magistrates to
ensure that portions of each record in
Afrikaans are translated
into English – Magistrates Court Act 32 of 1944, s 6(2) –
Constitution, s 35(3)(k).
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
REPORTABLE
Case No: CA&R
248/2021
CA & R 45/2023
In the matter between:
M
OOSTHUIZEN
Appellant
A
VAN
STRATEN
Appellant
and
THE
STATE
Respondent
JUDGMENT
Tokota J
Introduction:
[1] The two appellants
stood trial in the Magistrates’ Courts facing different
criminal charges before different Magistrates.
The first mentioned
appellant (Mr Oosthuizen) was charged in the Regional Court Division
of Gqeberha. The second mentioned appellant
(Mr Van Straten) was
charged in the Magistrate’s Court for the district of
Joubertina. On the date of the hearing of their
appeals we made the
following order:
(a)
Both matters are struck from the roll;
(b)
The respective Magistrates are directed to ensure that
portions of each record recorded in Afrikaans are translated into
English;
(c)
The matters may not be re-enrolled until such
time as the directive in
(b
) above has been complied with.
What follows are the reasons for the order we made. Henceforth I will
refer to the appellants by
their names.
[2] Mr Van Straten stood
trial in the Magistrate’s Court for the district of Joubertina
on charges of contravening the provisions
of s.17
(a)
of the
Domestic Violence Act 116 of 1998 (violating the protection court
order) Count 1; Assault GBH count 2; possession of a dangerous
weapon
in contravention of s.3(2) of Act 15 of 2013 count 3; failure to
report the loss of a firearm in c/s.120 of Act 60 of 2000
count 4. He
was convicted on counts 1 to 3 and acquitted on count 4. He was
sentenced to undergo 5 years’ imprisonment, all
counts having
been taken together as one for sentence purposes. With leave of that
Court the appeal is against convictions only.
[3] Mr Oosthuizen stood
trial in Regional Court Gqeberha charged with fourteen counts of
fraud, one count of contravening s.86(1)
of The Electronic
Communications and Transactions Act 25 of 2002 (the Act) and 13
counts of forgery. He was convicted on fourteen
counts of fraud and
one count of contravening s. 86(1) of the Act. On fraud conviction,
he was sentenced to 5 years’ imprisonment
wholly suspended
conditionally for a period of five years. He was fined R3000 or to
undergo twelve months’ imprisonment on
the count of
contravening the provisions of the Act. With leave of the Magistrate
the appeal is against convictions only.
[4] The court records in
both matters is partly in English and partly in Afrikaans. In the
matter of Mr Oosthuizen 90% of the record
is in Afrikaans and in the
matter of Mr van Straten about 20% of the record is in Afrikaans.
Furthermore, the record in my possession
in respect of Mr van Straten
is incomplete having 19 pages of the evidence of Mr van Straten
missing. Prior to the hearing date
my secretary drew this to the
attention of the appellant’s attorneys who promised to furnish
me with a complete record, but
this was not done.
[5] At the hearing of
these matters we raised our concerns about the records of the court
proceedings which were partly in English
and partly in Afrikaans in
both matters. This point was also correctly raised at the
commencement of the proceedings in the Magistrate’s
Court
Joubertina by the defence lawyer. Mr Landman, who represented Mr van
Straten, brought it to the attention of the Magistrate
that he had
‘heard that everything must now be done in English, we can go
as far [as] we can in English.’ The response
to this by the
Magistrate was, ‘No no, one cannot just go on in English and
take away his right to speak Afrikaans. If he
wants to speak
Afrikaans, he can speak Afrikaans.’
[6] The Magistrate missed
the point. He knows full well that he has a duty to get an
interpreter to interpret the language spoken
by the accused or
witness as the record should be in English. I do not understand Mr
Landman to have meant to deprive his client
of the right to speak
Afrikaans. Indeed, Mr van Straten was entitled to speak Afrikaans as
long as the same would have been interpreted
into English for record
purposes. This is what happens when a person speaks in IsiXhosa or
isiZulu. The same would apply to any
one of the other official
languages.
[7] I must point out from
the outset that it is not the intention of this judgment to convey
the impression that witnesses, including
accused persons, may not
give evidence in Court in the language of their own choice. Far from
it. Section 30 of the Constitution
of the Republic of South Africa,
Act 1996 (the Constitution) provides that
‘
Everyone
has the right to use the language and to participate in the cultural
life of their choice, but no one exercising these
rights may do so in
a manner inconsistent with any provision of the Bill of Rights.
Section 31(1) provides that ‘[p]ersons
belonging to a cultural,
religious or linguistic community may not be denied the right, with
other members of that community-
(a)
to enjoy their culture, practise their religion
and use their language;’
Consequently, everyone
involved in Court proceedings including the accused person is free to
choose to give evidence in the language
of his/her own choice.
[8] Section 6(2) of the
Magistrates Court Act 32 of 1944 makes provision for the Magistrate
to use the services of an interpreter
at State expense in criminal
cases where the witness wishes to give evidence in a language other
than the Court language. Section
35(3)
(k)
of the Constitution
provides that ‘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’.
I am not aware
of any provision for the provision of an interpreter at State expense
by the Magistrate in respect of civil litigation
but in my opinion
there is no valid reason why the same principle should not apply.
Since these matters are concerned with criminal
proceedings I will
confine myself to criminal proceedings.
Language Historical
background.
[9]
The language issue is a sensitive matter especially if one has regard
to the provisions of the Constitution which provides that
‘all
official languages must enjoy parity of esteem and must be treated
equitably’.
[1]
The
heterogeneity of the population in South Africa is of such a nature
that it is imperative that for practical reasons there
must be
uniformity in the use of Court language.
[10] After the arrival of
the colonists in this country in the seventeenth centuries there were
three official languages, at least
in Courts, namely English, Dutch,
(which later subsided into Afrikaans) and Latin. In 1652 when Jan van
Riebeeck occupied the Cape
of Good Hope for the Dutch East India
Company, Roman Dutch Law was introduced in South Africa.
[11] Each language group
has got its own jargon which has an impact on different cultures.
There is a story that a certain counsel
in the Supreme Court of
Appeal, during the debate of the argument, was asked a question in
Afrikaans and because of the race of
the judge who put the question
he responded in English anticipating that the judge would understand
it better. The judge then asked
if he misunderstood the question and
thereafter he rephrased his answer in Afrikaans. This may sound as a
joke but it illustrates
the problem of the language usage and
perceptions attendant thereto.
[12]
After the rise of Afrikaner nationalism, Afrikaans
became an important legal language.
In
the then South West Africa, Afrikaans was generally spoken and
understood by everyone and English was used by a smaller group
of
persons, primarily as a second or third language. Upon gaining
independence Afrikaans was then perceived as the language of
the
vanquished conqueror. Consequently, it was replaced with English as
the only official language.
[13]
In the South African context Afrikaans gained its momentum primarily
because common law was derived from Roman Dutch law and
its closeness
to Dutch. After the Anglo-Boer war the official language policy was
English. After the Union of South Africa was
established on 31 May
1910 an Act of the Westminster Parliament had a language provision in
terms whereof the official languages
of the country were to be
English and Dutch, each with an equal standing. After 1925 Afrikaans
replaced Dutch completely.
[14]
During 1950s many judgments were written in the language easily
understood by the loser. In the Universities in order to acquire
an
LLB degree one had to pass English, Afrikaans and Latin 1. So was the
case for admission as an advocate. This remained the situation
until
1976 when the Homeland Governments like Transkei adopted their own
policies after gaining independence. However, the attainment
of
self-government and independence paid lip service to their own
indigenous languages in Courts. English enjoyed preference and
was
the “unofficial” official language to be used in Courts.
Indigenous languages could not be used for various reasons
one of
which is that the indigenous languages do not have the technical
design of the legal system. Indigenous languages were not
used as
medium of instruction in the University.
[15]
With the advent of the constitutional era since 1994 the Latin
requirement for advocates was abolished. In 1995 the abolition
of all
language requirements for advocates followed. Universities now have a
free hand in determining their degree requirements
and it is no
longer a requirement that these languages should form part of the
syllabus.
[16]
The battle for Afrikaans language to be retained as the medium of
instruction in schools is demonstrated by a long line of
cases some
of which are quoted hereunder.
[2]
It is needless to say, as counsel, I was also involved in some of
them representing the Government.
Heads of Courts
Resolution on Court language.
[17] In February 2003 the
Heads of Courts established a Committee to prepare and report on the
use of various official languages
in Courts and make recommendations
in connection therewith. The Committee recommended that:
‘…
,
for reasons of practicality, English should be regarded as the
language of record for all courts. This should not deny the litigant,
witness or legal practitioner the right, where practicable, to
address the court in the language of his or her choice. In instances
where a language other than English is used during court proceedings,
it must be translated contemporaneously into English. Where
contemporaneous translation is not available, the court record, or
portions of the court record in a language other than English,
must
be translated into English.’
In
March 2017 the Heads of Courts accepted the recommendations and
decided that English be the language of record at the Superior
Courts
and should be implemented in the absence of a policy decision from
the Executive in this regard. There is no policy decision
from the
Executive regarding official language to be used in Courts.
Judicial precedence:
[18]
In
Mathebula
v S
[3]
the
full Bench of Mpumalanga held that ‘
Court
language of record is English and it should be adhered to uniformly.’
It held further that ‘[w]here the trial
is conducted in any
language other than the court language of record, the presiding
officer has a duty to see to it that the record
that is submitted to
the High Court is translated into English. I agree.
[19]
In
S
v Feni
[4]
the
Court held that in criminal cases Magistrates are obliged to use the
services of an interpreter in the event the accused does
not
understand the Court language and failure to do so constitutes an
irregularity vitiating the proceedings. It said ‘
[t]he
real issue, however, is whether this Court should set aside the
proceedings by virtue of an irregularity or defect in the
procedure.
Sec. 6 (2) of Act 32 of 1944 provides that if in a criminal case
evidence is given in a language with which the accused
is not, in the
opinion of the court, sufficiently conversant, a competent
interpreter shall be called by the court in order to
translate such
evidence into a language with which the accused professes or appears
to the court to be sufficiently conversant.
The failure to do so
would clearly be a gross irregularity vitiating the proceedings.’
Although one may think that this case
did not deal directly with the
point in issue here, it caters for the fact that the appellant was
Afrikaans speaking and that in
those circumstances and interpreter
should be provided. In any event in the absence of a judgment
directly in point in this division
the Magistrate should follow the
decisions of the High Court of other divisions.
[5]
[20]
In
Camps
Bay Ratepayers' and Residents' Association and Another v Harrison and
Another
[6]
delivering
a unanimous judgment Brand AJ said
‘
The
doctrine of precedent not only binds lower courts but also binds
courts of final jurisdiction to their own decisions. These
courts can
depart from a previous decision of their own only when satisfied that
that decision is clearly wrong. Stare decisis
is therefore not simply
a matter of respect for courts of higher authority. It is a
manifestation of the rule of law itself, which
in turn is a founding
value of our Constitution. To deviate from this rule is to invite
legal chaos.'
[21]
The doctrine of judicial precedence is to the effect that lower
courts are bound by the decisions of the High Courts. In the
absence
of any decision within his/her Division the Magistrates in these
matters should have followed the Full Bench decision of
Mpumalanga
whose ratio is directly in point. In any event, in my view, the
decision of the Heads of Courts relating to the Court
language was
also binding on the Magistrates. The
Feni
[7]
decision
also informs the Magistrate what to do in the event accused is not
familiar with the Court language.
Discussion
:
[22]
The Heads of Court’s Committee on Court language policy
established in 2003 saw it fit to recommend that English be the
Court
language of record. This was adopted as a resolution by the Heads of
Court under the auspices of the Chief Justice in March
2017.
Therefore, in my view, in light of the authority of Heads of Courts,
including the Chief Justice, to manage and give guidance
in the
running of Courts in the Republic, the resolution is binding on
Courts and should be treated as such in the absence of the
language
policy from the Executive. Heads of Courts have the power to issue
directives in order to manage the functioning of Courts
under their
jurisdictions
[8]
including
Magistrates’ Courts. Magistrates are therefore obliged to
implement such directives or guidelines.
[23]
According to Baxter
[9]
,
directives belong to a 'body of rules which are of great practical
importance' and which constitute 'instructions issued without
clear
statutory authority to guide the conduct of officials in the exercise
of their powers'. There is a High Court decision pursuant
to the
directive which held that it is imperative that lower Courts should
conduct their trials in English.
[10]
[24] In my view, the
situation will be out of control if a Venda or Xhosa speaking person
were to be allowed to insist that the
proceedings be recorded in
Venda or Xhosa simply because the presiding Magistrate happens to
understand the language. I mention
here Venda as one of the languages
solely because it is regarded as one of the most difficult languages
in South Africa. The record
of the proceedings is not meant for Venda
speaking judges but judges consisting of different races. The
directive is in line with
the common language spoken by the majority
of persons in South Africa. It is not enough for the judicial officer
to write the judgment
in English. The judgment is based on the
evidence led in Court and the appeal Court should be able to
scrutinize the judgment and
ensure that the findings are consistent
with the evidence that was led.
[25]
It is perhaps expedient at this stage to mention that there was a
faint argument by
Mr
Daubermann,
appearing
for Mr Oosthuizen, that if such a directive has not been published it
is not valid. The argument loses sight of the fact
that even if such
directive has not been published it amounts to an administrative
order which will be valid until set aside by
a Court of law.
[11]
In
Smith v East Elloe
Rural District Council
[1956] UKHL 2
;
[1956] AC 736
(HL) at 769 - 70 ([1956]
1
All ER 855
at 871H;
[1956] 2 WLR 888):
it was stated:
'An
[administrative] order . . . is still an act capable of legal
consequences. It bears no brand of invalidity upon its forehead.
Unless the necessary proceedings are taken at law to establish the
cause of invalidity and to get it quashed or otherwise upset,
it will
remain as effective for its ostensible purpose as the most impeccable
of orders.'
[12]
[26] We were advised
during the court hearing that one of these cases came before this
court in February 2024 and a request was
made for the translation of
the record into English. The translation did not find its way to us.
Mr
Daubermann
contended that it is the duty of the clerk of
the court to submit the record to the High Court in terms of the
rules. That may
well be so but in terms of Rule 49A (4) of the
Uniform Rules of Court the ‘ultimate responsibility for
ensuring that all
copies of the record on appeal and all the
necessary exhibits are in all respects properly before the court
shall rest on the appellant
or his or her attorney…’
[27]
Mr
Daubermann
also
raised a point of expenditure in translating the record into English
suggesting that this court should make a ruling as to
who should bear
those costs. I cannot make such an order. Rule 49A provides that in
an appeal to the full court, the registrar
shall, subject to the
provisions of section 316(5
)(b)
of the
Criminal Procedure Act
[13]
,
prepare three additional copies of the case record or parts thereof,
as the case may be, and shall furnish the State with the
number it
requires and, on payment of the prescribed fee, shall furnish the
appellant with the number he or she requires.
[28]
Mr Daubermann
submitted that notwithstanding the fact that the record is in
Afrikaans if we had read the papers we should hear the matter. In
my
view to hear these matters, even though there is resolution by the
Heads of Courts, would have been tantamount to undermining
that
resolution. The point here is not about the use of the Afrikaans
language by the parties involved but it is the principle
which must
be applied to all cases. In all those cases where the witnesses give
evidence in IsiXhosa (which is the predominate
language in the
Eastern Cape Province) an interpreter is used and the court record is
in English. There should be no exceptions
in this regard.
[29] It for these reasons
that we made the order mentioned in paragraph 1 above.
B R TOKOTA
JUDGE OF THE HIGH
COURT
I AGREE
N MULLINS
ACTING JUDGE OF THE
HIGH COURT
Appearances:
For Appellant/Mr
Oosthuizen:
Mr P Daubermann
Instructed by Peter
Daubermann
Attorneys
For
Respondent:
K Cooney
Instructed by
DPP
For Appellant/Mr van
Straten:
A Thysse
Instructed by Smith
Tabata Inc.
For
Respondent
H Obermeyer
Instructed by
DPP
Date of
Hearing:
4 September 2024.
This judgment was handed
down electronically by circulation to the parties’
representatives by email, and is to be released
to SAFLII. The time
and date for hand-down is deemed to be 9h30 on 19 September 2024.
[1]
Section 6(4) of the
Constitution.
[2]
University
of the FS v AfriForum
2017
(4) SA 283
(SCA) ([2017] ZASCA 32)
Minister
of Education, Western Cape, and Others v Governing Body, Mikro
Primary School, and Another
2006
(1) SA 1
(SCA) ([2005]
3 All SA 436
;
2005 (10) BCLR 973)
;
Hoërskool
Ermelo and
Another v Head,
Department of Education, Mpumalanga, and Others
2009
(3) SA 422
(SCA):
Head
of Department, Mpumalanga Department of Education and Another v
Hoërskool
Ermelo and
Another
2010
(2) SA 415 (CC) (2010 (3) BCLR 177; [2009] ZACC 32).
[3]
(A31/2017)
[2019] ZAMPMHC 1;
2020 (1) SACR 534
(ML) (22 July 2019)
[4]
2016
(2) SACR 581
(ECB)
at 457I
[5]
[5]
The
South African Legal System and its Background; Hahlo and Khan p.257
[6]
2011 (4) SA42 (CC)
(2011
(2) BCLR 121
;
[2010] ZACC 19)
Para 28.
[7]
2016
(2) SACR 581
(ECB)
at 457I
[8]
Section 8 of the
Superior Court Act 10 of 2013
[9]
Baxter
Administrative Law 3 ed (Juta & Co Ltd, Cape Town 1991) at 200.
[10]
Mathebula
Para.18
above footnote 3.
[11]
Baxter op cit. p.355
[12]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222
(SCA) ([2004]
3 All SA 1
;
[2004] ZASCA 48):
MEC
for Health, Eastern Cape, and Another v Kirland Investments (Pty)
Ltd t/a Eye and Laser Institute
2014
(3) SA 219
(SCA) ([2013] ZASCA 58):
MEC
for Health, Eastern Cape and
Another
v Kirland Investments (Pty) Ltd t/a Eye & Lazer
Institute 2014
(3) SA 481 (CC) (2014 (5) BCLR 547; [2014] ZACC 6):
[13]
Act 51 of 1977