Defence advocates in the Senzo Meyiwa murder trial have belatedly, but wrongly, objected to evidence being led in Afrikaans during proceedings at the High Court in Pretoria.
A 2017 recommendation by the former Chief Justice Mogoeng Mogoeng and the Heads of Court said English was now the sole official language of court records in superior courts in a bid to improve efficiencies in the judiciary.
This means that all records must be in English, but, legal practitioners, litigants or court officials were still allowed to use any language in the courtroom during proceedings, be it Afrikaans, isiZulu or Setswana, provided interpreters were available to interpret “contemporaneously (at the same time) into English”.
Last week, social media users were stunned when State advocate George Baloyi led evidence in Afrikaans when Magistrate Vivienne Cronje took the stand during the Senzo Meyiwa murder trial.
Baloyi led Magistrate Cronje's evidence in chief mostly in Afrikaans, while the presiding officer Judge Ratha Mokgoatlheng also interacted with Cronje mostly in Afrikaans, with the interpreter translating proceedings into isiZulu for the accused, and English for the record.
The Meyiwa murder trial has already seen scores of people - including Zandile Khumalo, Mthokozisi Thwala, Tumelo Madlala and police officers testify in an array of languages including isiZulu, Sesotho, Setswana - but none of those witnesses had their evidence led in their preferred language.
Constitutional law expert Professor Pierre de Vos told IOL on Tuesday that legal practitioners could lead evidence in whichever language they choose, so long as there was an interpreter.
He said the policy was strict in that the business of the court, including written heads of arguments, judgments and arguments of law, had to be in English for the record.
“Everyone has a right to use their home language in a court of law, as long as there is the benefit of the interpretation services for the court record,” De Vos said.
“Testifying in one’s home language is a right, it allows anyone giving testimony an opportunity to think about their responses a little longer.”
Defence advocates Thulani Mngomezulu and Zandile Mshololo on Monday objected to Baloyi re-examining Cronje in Afrikaans.
Said Mngomezulu: “I am so sorry to interject. I think we made a mistake as a defence from the leading of the evidence from the inception.
“It will be difficult for us who don't understand Afrikaans to note if there is an objection.
“May I request that she be re-examined in English. I am referring to the counsel, not the witness,” said Mngomezulu.
Mokgoatlheng initially dismissed Mngomezulu’s request, citing procedural fairness grounds on the behalf of Cronje, but advocate Mshololo swayed him.
Said Mshololo: “Objection my Lord, I beg to differ. If the witness is testifying in the language of his choice, be it in Zulu, Nguni or Afrikaans, we have heard witnesses testify in their own language of their choices.
“None of us have led evidence in the language which is the choice of the witness. The witness can testify and use any language, but the court officials are not to use that language, they are to continue using the English language which is understandable by all officers in court.
“We are not saying the witness should use English, the witness can use the language of her own choice,” said Mshololo.
“So Mr Baloyi is the one who must use English?” a grinning Judge Mokgoatlheng questioned.
“Yes my lord,” replied Mshololo.
Baloyi conceded for the sake of progress.
“It is no problem at all, as long as the witness is comfortable with that my lord, we don't even want to labour that point,” said Baloyi.
For reasons of practicality, it was recommended by Mogoeng and the Heads of Court that English should be regarded as the language of record for all superior courts - which includes all high courts, the Supreme Court of Appeal and the Constitutional Court.
“It was decided that the recommendation that English be the language of record at the Superior Courts must be implemented in the absence of a policy decision from the Executive in this regard”, a note from the Office of the Chief Justice said.
Mogoeng and the Heads of Court faced stern resistance from the likes of AfriForum on the matter at the time.
The policy also added that litigants, witnesses or legal representatives were not to be denied their right to address the court in a language of their choice.
It noted that if proceedings were not in English, they were to be translated “contemporaneously (at the same time) into English”.
In other words, legal practitioners were actually free to conduct proceedings in any language, provided there were interpretation services available to interpret into English for the court record.
The 2017 recommendation by the Heads of Court and Mogoeng, effectively relegated Afrikaans from it's status of official language - leaving only English as an official language of record for the courts, but this does not stop proceedings from being carried out in Afrikaans or any other language - they just have to be interpreted into English for the record.
Mogoeng at the time acknowledged that the issue of language was a sensitive matter, but the change would allow the courts to “facilitate efficiency and the smooth running of the court system”, he said at the time.
“We would do well according to our experience if we were to have everything that is said captured in one language that is understood by all the judges.”
All judges in the appeal courts spoke and understood English as a second language at least.
De Vos said the defence should not have objected to evidence being led in Afrikaans as the 2017 language policy only stated that the record must be in English.
This was to allow, in the case of an appeal in a higher court, for ease for the appeal judges who would find the entire court record in just one language, English.
“Any person, whether they are a criminally accused or a legal practitioner may testify or conduct proceedings in any home language, the policy did not change that, as that was not an issue.
“The policy states that if you are going to use any other language to write the judgment or conduct proceedings, there always has to be an English version.
“Evidence can be led in any language, but there must be an interpreter,” said De Vos.