Revisiting the Debate on the Constitutionalised Status of Indigenous Languages as Language of Record in South African Judicial Proceedings

Abstract

South Africa’s 1996 Constitution, subsequent to the attainment of democracy in 1994, was hailed as a distinct document in protecting languages, particularly indigenous languages. The inclusion of these languages generated a new lease of life and provided a unique opportunity especially for the judiciary to ensure their transmission into the legal domain by developing the scope and content and to not limit them as communication tools but also of records in the judicial processes. This role by the courts is particularly important because in the past, courts were used as instruments of oppression against the black majority of South Africa’s populace. The subordination was extended to other institutions such as those of higher learning, that were handicapped in producing legal education which would infuse the African content in the generation of knowledge that may have societal change objectives. Today, the indigenous language’s occupation of the constitutional space and its transmission into reality has been minotirised and subject to intense debates and views on their legitimacy as language of records in the judicial processes. The Heads of Court’s resolution for the exclusive use of English as the language of record to the exclusion of other languages generated these debates. They cited logistical problems and the enhancement of access to justice that compelled them to adopt the resolution. However, the question the resolution raises is the impact it would have on the production and preservation of indigenous legal in the establishment of a “just society”. Against this background, the paper is revisiting the debates on the effect of the non-use of indigenous languages as languages of records in South Africa’s judicial processes through an assessment of the jurisprudence that emanates from the courts with reference to the scope and content of the interrelationship between the right of access to justice and right to understand. The objective of this paper is to advance an inclusive approach of the language of rights that will ensure that the richness of the meanings and concepts of indigenous languages are preserved in the archives of the administration of justice. The purpose to regenerate the debate is motivated by what appears to be the subsiding deafening debates and views on the development of the content of the constitutionalised indigenous languages in the judicial processes and acceptance of the status quo of the exclusive dominance of English as language of record. The argument is limited to record-keeping and starts off by setting a framework for the protection of the right to a language and its linkage to the right to understand. The discussion is reinforced by case law relating to the use of indigenous languages and the impact it would have on the consolidation of the preservation project.