A handbook on Legal Languages and the quest for linguistic equality in South Africa and beyond

Abstract

This is an interdisciplinary publication located in the discipline of forensic linguistics/ language and law. This handbook includes varying comparative African and global case studies on the use of language(s) in courtroom discourse and higher education institutions: Kenya; Morocco; Nigeria; Australia; Belgium Canada and India. These African and global case studies form the backdrop for the critique of the monolingual English language of record policy for South African courts, the core of this handbook, discussed in relation to case law and the beleaguered legal interpretation profession. This handbook argues that linguistic transformation and decolonisation of South Africa’s legal and higher education systems needs to be undertaken where legal practitioners are linguistically equipped to litigate in a bilingual/ multilingual courtroom that enables access to justice for the majority of African language speaking litigants, enforcing their constitutional language rights.

Judges and court interpreters’ experiences of multilingualism in South African courts

“…It is our opinion that Section 174 of the Constitution, which guides the criteria for the appointment of judges, should include language proficiency in the language spoken by most persons in the province in which they are appointed. This is neither a foreign nor an impractical proposal: similar models exist in Belgium and Canada (Docrat et al, 2021;Leung, 2019). This argument also finds support through the data presented below where interpreters and judges have alerted us to issues of miscommunication resulting from communicating in English.…”

“…Since 2017 (Chabalala, 2017;Docrat, Kaschula, Lourens, Bailey, De Vries & Ralarala, 2017), discussions have focused on the monolingual language of record policy for courts (Docrat, 2019;Docrat & Kaschula, 2019;Docrat et al, 2021). The Chief Justice argued that English is widely understood in South Africa and that it enables greater access to the legal system.…”

“…Training of legal practitioners: Law students should complete an adequate number of courses in at least one indigenous additional language as part of their studies (Docrat et al, 2021). The tertiary law curricula place far too little emphasis on the strong connection between language and law (Burukina, 2012:720).…”

“…The language question in the South African legal system remains a contentious debate (Docrat, Kaschula & Ralarala, 2021). Dating back to the 1900s, the language of record and proceedings in South African courts was determined by the political power in authority at the time (Van Niekerk, 2015).…”

“…Dating back to the 1900s, the language of record and proceedings in South African courts was determined by the political power in authority at the time (Van Niekerk, 2015). Language planning in the legal system remains a politicised exercise, where a political, elitist, English-only agenda has been entrenched in our courts (Docrat et al, 2021). The politicisation of language planning is not limited to South Africa, but is seen as a global trend as far afield as Australia where language was used as a political tool to marginalise Aboriginal people from mainstream society and access to justice.…”