English language still blocks access to justice for many

Everyone should have the right to bring certain grievances or disputes to court. This right is guaranteed in section 34 of South Africa’s Constitution, adopted in 1996. In this way, we shouldn’t have to be powerless in the face of maltreatment when the law exists to protect us from it. That is what we mean by the right of access to justice. 

But the reality is different. 

Access to justice works if you can translate a personal grievance to legal terms. That is a lawyer’s terrain. Lawyers cost money, and the demand for free or affordable legal services far exceeds their supply. Access to justice becomes the privilege of a few.

This reflects yet another hurdle for so many: the English language. Court proceedings in South Africa occur mainly in English. The records of such proceedings must reflect that language. And legal information available to the public is mainly in English. 

According to Legal Aid South Africa, English is the primary spoken language of only 5% of criminal litigants and 12% of civil litigants. Regardless, the language dominates the justice system, even though it’s not primarily spoken by the majority. We should also reflect on this as we mark International Mother Language Day on 21 February.

Language of power and power of language

If you’re an accused person, a rights claimant or a trial witness, then you’re expected to use English in the courtroom. Should you struggle, or choose to communicate in a different language, you’re provided an interpreter. This arrangement seems efficient. But again, the reality is more complicated.

Courtrooms are intimidating. They’re characterised by formality and order. Legal professionals and civil servants dominate them. Procedures are technical and impersonal.

For many, it’s safer to surrender to English by choosing to proceed in it. It means cooperating with powerful people, avoiding an unruly appearance. It means having agency when one’s own voice is felt more strongly to influence legal outcomes. But it can also mean overestimating one’s command of English in highly technical proceedings. Often, it’s a combination of the above.  

Translation alternative

While some surrender, others make use of court interpreters. Indeed, people have the right to use their mother tongues and practice their culture. For accused persons, the right to a fair trial even includes the right to be tried in a language that the accused understands. Where this isn’t feasible, the accused has a right to have the proceedings interpreted in that language. 

But translation, too, can get in the way of access to justice. Most court interpreters are unlicensed and don’t receive regulated training. Their unavailability may also delay or postpone proceedings. 

More concerning is interpreters’ strategic position in the courtroom. They hold keys to unlocking communication from non-English speakers and vice versa. They can decide which part of a testimony to translate. They carry critical information from professionals to ordinary people and back.

It’s little wonder that forensic studies have found interpreters to play many roles in court proceedings. They become the magistrate or judge by putting legally charged questions to litigants or their witnesses. They become prosecutors by accusing persons of guilty conduct so that they can give a translation to the court. 

One study found that during court proceedings interpreters could notice when legal professionals become impatient with the translation process. The interpreters would then rush a speaker to finish his or her thoughts to hasten the proceedings. Meaning is sacrificed. 

It’s not that the interpreters want to harm anyone; they’re just being functional in a structure that favours English more than other languages.

Ineffective inclusion or inclusive exclusion

Of course, we must stay in touch with reality, and our courts agree. English has international status in politics and industry, so maybe we should catch up as High Court judges argued upon reviewing the 2004 case of the State against Macebo Damoyi and the 1998 case of the State against Matomela. Both cases were heard in isiXhosa. The latter demonstrated that it’s also costly and practically difficult to maintain language diversity in court proceedings. It looks like translation is simply necessary. 

The problem with this argument is that it makes it easy to dismiss the reality of non-English speakers. The provision of interpreters is almost always a final remedy because there’s no real alternative to translation. At best, you may have your case appealed or reviewed by a higher court. This too requires access to justice and so keeps litigants in an infinite loop of exclusion.

If we ever thought inclusion and exclusion cannot simultaneously be true, now’s the time to rethink. Non-English speakers do have rights protections, and they do participate in the legal process. Yet their dignity and agency may be the cost of entry when meaning is created by those who speak on their behalf. So the idea of having a seat at the table, but not being seen, is familiar territory for those who cannot fully exercise legal rights in their mother tongue. 

It’s time we broadened the meaning of access to justice: it includes the right to be understood. The right to be understood empowers non-English speakers to be taken seriously when expressing their reality. It imposes an obligation on powerful people to uphold a universal principle in evidence law; namely, the truth may not be sacrificed for convenience, simplicity and speed. 

Understandably, this wouldn’t make the translation process less frustrating. And it doesn’t mean being understood is the same as being right. This is about advancing access to justice – a challenge faced by language communities in South Africa and beyond. 

*McNiel Zimri is an LLB student and an assistant in the Individual Fundraising Unit at Development and Alumni Relations at Stellenbosch University.