IURI377

Study Unit 4: Lost in translation (Translation)

4.1. Language rights and the Constitution:

What does section 6 of the Constitution entail?
1. The official languages of the Republic are Sepedi, Sesotho, Setswana,
siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and
isiZulu.
2. Recognising the historically diminished use and status of the indigenous
languages of our people, the state must take practical and positive measures
to elevate the status and advance the use of these languages.
3. a. Municipalities must take into account the language usage and preferences
of their residents.
b. The national government and provincial governments may use any
particular official languages for the purposes of government, taking into
account usage, practicality, expense, regional circumstances and the balance of
the needs and preferences of the population as a whole or in the province
concerned; but the national government and each provincial government must
use at least two official languages.
4. The national government and provincial governments, by legislative and
other measures, must regulate and monitor their use of official languages.
Without detracting from the provisions of subsection (2), all official languages
must enjoy parity of esteem and must be treated equitably.
5. A Pan South African Language Board established by national legislation
must
a. promote, and create conditions for, the development and use of
i. all official languages;
ii. the Khoi, Nama and San languages; and
iii. sign language ; and
b. promote and ensure respect for

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 i. all languages commonly used by communities in South Africa, including
German, Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu and Urdu; and
ii. Arabic, Hebrew, Sanskrit and other languages used for religious
purposes in South Africa.

What does section 30 of the Constitution afford people?

The Constitutional Court affirmed the guarantee to all persons, in s 30 of the
Constitution, to use the language of their choice in communications with the
government, subject to reasonable limitations where they would be
warranted.
The courts have, however, further qualified the aforementioned assertion in
practice. Stanley Madonsela challenges the breadth of the practical legitimacy
of the effects of s 30.
He notes that, ‘(f)or many, the Constitution of South Africa gives the
impression of compromising when it comes to the use of African languages,
especially in key public domains, despite its undertaking to ensure that all the
South African languages enjoy parity of esteem’. Adhering strictly to the parity
of all the eleven official languages in court proceedings would result in
considerable strain upon resources with the result of impacting negatively on
the quality of service delivery and efficient administration of justice.

What is meant by parity with regard to all languages?

The constitutional directive to promote parity of esteem and treat all official
languages equitably has to be put in proper perspective. It is not meant to
invent merit where there is none nor disregard it where it exists. To require
indigenous languages to perform legal functions without support structures
and the necessary vocabulary is to undermine their parity of esteem and treat
them inequitably. The existence of functional alternatives might lessen the
resolve to pursue the goal of developing indigenous languages for legal usage
as opposed to deliberate disregard of the task. Judges have expressed the view
that having one language as the language of the record would be in the best
interests of justice.

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Name one major obstacle in achieving parity of language usage in our court
rooms. Why do you think this is the case?
To require indigenous languages to perform legal functions without support
structures and the necessary vocabulary is to undermine their parity of esteem
and treat them inequitably.
Many of our official languages don not have the necessary vocabulary and
resources to achieve this parity in our courts.

In criminal matters, there seems to be uncertainty regarding the use of all

eleven official languages - substantiate your answer by referring to specific
case law.
It is not clear as to whether a language of record should be prescribed for court
proceedings. – S v Damani
Judge Jansen boldly declared English as the only real lingua franca in South
Africa, although an earlier ruling had questioned a policy to introduce English
as a language of record in courts as promoting it at the expense of other
official languages in contravention of the constitutional directive to ensure
parity of esteem among all official languages. – S v Pienaar
In September 2017, the chief justice declared English as the only official
language of record in South African courts. He backed his decision with a
purely practical consideration – the intention ‘to facilitate efficiency and the
smooth running of the court system’. In defence of that decision, he stated
that, ‘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’.
Ernst Kotzé concludes with justification that the proposed monolingual policy
conflicts with the spirit and the letter of the law. Perhaps the declaration of the
chief justice should be rightly perceived as addressing the records of the court
and not oral proceedings because of the limited scope of the right of
translation.
It is against this background that this article examines the language of trial and
subsequently analyses the stance of the language of fair trial related
guarantees of interpretative assistance, translation and legal representation in
the South African context.

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A fair trial and language rights go hand-in-hand. Critically discuss this
statement.
Language is a tool for realising a fair trial. In fact, the right to a fair trial is non-
existent where an accused person lacks understanding of the language used
during the proceedings. In the Canadian case of Société des Acadiens du
Nouveau-Brunswick Inc v Association of Parents for Fairness in Education,
Beetz J merged language rights with fair trial while holding that:
The common law right of the parties to be heard and understood by a court and the right to
understand what is going on in court is not a language right but an aspect of the right to a
fair hearing. It is a broader and more universal right than language rights (…) It belongs to
the category of rights which in the Charter are designated as legal rights.

The use of language in a court room becomes complicated since there are
various stakeholders involved. Name some of these stakeholders.
• the parties
• witnesses
• judicial officers
• assessors
• scribes
• the attending public

You are representing a Zimbabwean citizen in a criminal matter. He states

that he is not comfortable with the trial proceeding in English since he is
more at ease with his mother tongue which is Shona. Explain how you would
deal with this situation.
• Firstly, try to find an interpreter
• If there isn't one available, I would explain to him that it would just be
more practical for the case, in terms of it moving forward, to continue in
English. I would also explain the matter to the judge and other parties.

Critically discuss Section 35 (3) (k) with specific reference to Mthetwa.

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S v Mthethwa (1998) – (everything was in isXhosa). They couldn't find an
interpreter, twice. The judge wasn't in favour of post pone again, and
continued in isXhosa. On review accepted, but judge states one language
(English) of record for court will be most practical.

Briefly explain the similarities and differences between the following cases
with regard to the use of language at trial: S v Damoyi and S v Damani
S v Damoyi (2003) - What clearly emerges from the few decisions in which the
issue of parity of languages was considered is the divergence in views
concerning the use of official languages in court proceedings. The burning issue
still is which of the eleven official languages should be used as the language of
record in court proceedings. The solution to problems such as the one raised in
this matter could be the introduction of one language of record in court
proceedings. I am of the opinion that the recommendation by Tshabalala J in S
v Matomela (supra) is the route to follow, and, in my view, such a course
would not only be economical but would be in the best interest of justice.
After all English already is a language used in international commerce and
international transactions are exclusively concluded in the English language.
Although some stakeholders would take it with a pinch of salt, sanity would tip
the scale in favour of English as the language of record in court proceedings,
particularly in view of its predominance in international politics, commerce and
industry.
• The couldn't find an interpreter
• When under review they said that everyone understood the language
and proceeded

S v Damanie (2014) - In terms of section 12(1)(c) of the Magistrates’

Courts Act, “a magistrate shall be subject to the administrative control of the
head of the administrative region in which his or her district is
situate.” Therefore, given the fact that a decision by any Magistrate, at his or
her discretion, to conduct court proceedings in any of the nine indigenous
official languages, is likely to have administrative and/or budgetary
implications on the part of the Government or the Office of the Chief Justice, it
is not, in my view, a salutary and desirable thing for any Magistrate to do at
this stage, until such time that the issue of language policy during court

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proceedings in the lower courts is officially resolved and determined upon by a
competent authority. As to the position in the superior courts, it seems to me
there are even more complications at that level and, therefore, it will be a
matter for debate on another day.
• The couldn't find an interpreter
• When under review they said that everyone understood the language
and proceeded
• You have to look at how practical it is

Write down the guiding principles with regard to use of language in civil
matters where parties speak different languages as contained in Ferreira v
ABSA Bank.
1. A litigant may choose to litigate in any of the official languages but is not
required to translate the pleadings and documents at their own cost for
the benefit of the party using a different language.
2. There is no legal obligation on the party who is dominus litis to translate
all their correspondence and process in ongoing litigation for the benefit
of the defendant or respondent, as the case may be. It may be done as a
courtesy or as an indulgence.
3. Neither party can prescribe to the other what language to use: the
plaintiff is not obliged to conduct their litigation in a particular language
simply because their opponent was dealt with in it. Practical
considerations take precedence when striking a balance between the
right of a litigant to initiate litigation in the language of their choice, and
the right of the party defending or opposing that litigation to use their
language of choice.
4. An indigenous official language speaking defendant is not entitled to
insist on (a) documents being served on them in that language; (b) all
court proceedings being conducted in that language; (c) counsel of the
other party arguing their case in his or her indigenous language; (d) the
judgment being written in the indigenous language.

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Why does the author state the promotion of the use of indigenous languages
in South African courts can be seen as one of the ideals of the Constitution?
Because of section 6 of the Constitution

The author belabours the point that the promotion of indigenous languages
in legal matters can only be successful if it is enhanced by support structures
and the necessary vocabulary. List one or two specific support structures
that will have to be created or utilised efficiently in order for this to happen.
• Translation
• Transcription

List reasons why the use of indigenous languages in KwaZulu-Natal courts in

2008, proved to be unsuccessful.
• Lack of legal terminology
• Lck of resources
• Undue delays
• Divergent dialects in isiZulu
• Communication barriers among Zulu-speaking court officials and
litigants

Discuss the right to an interpreter during court proceedings with reference to

case law and legislation.
Interpreting the oral rendition of proceedings from one language to another is
an alternative in circumstances where a participant does not understand the
proceedings directly. The right to an interpreter is a constitutional guarantee
that satisfies the requirements of the right to a fair trial where it is not
practicable for proceedings to be conducted in a language that a person
understands. Interpreting is a common occurrence in South African courts and
tribunals. This follows the fact that most accused persons in South Africa’s
criminal courts at the lower level are self-represented. The question is whether
the quality of interpreting fulfils the required ends. Tshiqi J admitted that, ‘in
the majority of criminal trials, the courts rely on the quality of interpretation

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from an indigenous language to either English or Afrikaans, the languages in
which most trials are recorded’.
‘The traditional guarantee for proper and adequate interpretation in court
proceedings has always been, and still is, the use of official trained
interpreters, who are duly sworn to interpret properly and to the best of their
abilities on the basis of their proven competence in the languages they
interpret in.’ The ‘deliverables’ of the standard required by s 35(3)(k) of the
Constitution can only be produced by a ‘competent interpreter’. A competent
interpreter is described as one who is able to give a true and correct
interpretation of the evidence. An inquiry into the competence of the
interpreter is conducted at the commencement of the trial based on the
criteria of: (1) proficiency in both the source and target languages, (2) a basic
understanding of the legal process at the least, (3) impartiality and (4)
professional conduct including operating within the boundaries of
neutrality. These criteria are, however, only ascertainable on the basis of a
track record. It is based on this premise that the identity of the interpreter is a
component of the record except in cases where it is justifiably concealed for
their safety. South African courts encounter the challenge of scarcity of
professional interpreters. In the case of Damoyi, the court proceeded in
isiXhosa because of unavailability of an interpreter. Similar to other
jurisdictions in emerging economies, police officers sometimes serve as
interpreters for court proceedings. This practice causes a reasonable suspicion
of bias or partiality. By way of jurisprudential analysis, Samuel Lebese
illustrates that irregularities result in translation, as a result of lack of
legislation governing norms and standards of practice for court
interpreters. Such irregularities include interpreters asking their own
questions, omitting certain information, and adding information that was not
conveyed by the original speaker. Distortion of information may affect trial
fairness depending on the significance of the material in question.
Remedies to the aforementioned shortfalls include setting aside of a verdict in
circumstances where the irregularity results into an incurable miscarriage of
justice especially in cases of self-represented accused persons, and striking the
evidence affected off the record. The defects in the quality of interpretation in
the case of Manzini were found to be material and in contravention of his right
to fair trial. A trial that is not fair is not a trial.

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Name two important elements that translations should contain.
• Consciousness
• Structure

Which definition for a competent interpreter does this article provide?

One who is able to give a true and correct interpretation of the evidence. – S v
Ndala

List the criteria that are considered when the competency of an interpreter is
determined before the commencement of a trial.
(1) proficiency in both the source and target languages,
(2) a basic understanding of the legal process at the least,
(3) impartiality and
(4) professional conduct including operating within the boundaries of
neutrality.

Discuss the role of the court in effecting efficient interpretation.

Effective judicial interpreting requires cooperation between the interpreter
and the court. A person who desires their rendition to be interpreted correctly
has to speak audibly, at a reasonable pace and in a language that the
interpreter understands. Occurrences such as that in the case
of Unakere, where the magistrate got upset in the course of proceedings, and
switched from English to Afrikaans (a language that the interpreter did not
understand), undermine interpreting and the fairness of proceedings. A judicial
officer is also not permitted to use their mother tongue and abandon the
language of proceedings and interpretative assistance. A litigant or accused
person must fully comprehend the entire proceedings. Practical matters – such
as the sitting arrangement, and quality of sound, if speech devices are utilised
– are relevant.
The courts as the experts of experts are also faced with the task of determining
the accuracy of interpretation. Determining whether an interpreter is fairly and

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accurately interpreting what another person says requires proficiency in both
the source and target languages on the side of the adjudicator. This is often
not the case. Alternatively, the court may conduct an inquiry by utilising the
services of another interpreter, who may compare the transcribed record with
the audio recording.

Discuss two inherent shortfalls of judicial interpreting according to this

article.
First, interpreted evidence creates inherent difficulties in determining the
demeanour of a witness by alienating the useful projections of paralinguistic
forms of expression. ‘(V)oice intonations, nuances of language, which may
convey different shades of meaning, are frequently lost.’ ‘To decide a case on
demeanour where the evidence is interpreted from one language to another
requires a brave adjudicator.’
Second, witnesses may abuse the sensitivities of interpreting a trial to evade
justice. In the case of Siwani, the defendant, who was confronted with the
inherent improbabilities of his evidence, sought to retract his testimony by
making a false allegation that the questions were put to him in Afrikaans, yet
the exercise was done in English.

Explain when, according to legislation, translation is a requirement in legal

proceedings. Refer to at least three different pieces of legislation in your
answer.
Police statements
The mandate of the police (to investigate) makes its records a significant pillar
of the facts. Complainants and witnesses make statements to the police that
support the decision(s) to prefer criminal charges, and such statements may
subsequently be admitted as evidence. These statements are often subject to
translation because of the divergent language competencies among the
persons making the statements and those that take them. Language and
cultural differences between witnesses and persons taking their statements
are noted barriers to accuracy in recording witness statements. An interpreting
function may arise in the process, further complicating the exercise. The police
often attempt to directly translate witness statements into official languages.

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Direct interpretation is where a person records a statement in a language
different from the one in which the declarer makes it. In the case of S v
Belana, the complainant made her statement in isiXhosa, and it was recorded
in English. The practice of interpreting directly has resulted in frequent
discrepancies between statements made to the police and the evidence given
in court. The courts have complained about the lack of language and other
skills and abilities on the part of police officials who are tasked to obtain
statements from witnesses or required to interpret for them.
Distortion of the evidence during the course of interpreting may derail the
course of justice, such as in the case of Mofokeng, where the complainant and
witness denied part of the written statement that was purportedly made by
him through translation to the effect that he would not be able to identify his
assailants. The court subsequently discovered a language barrier between him
and the person who took the statement. The complainant could not express
himself in English, the language in which the statement was taken. A person
who places his or her signature on a document assents to its contents and
signifies that s/he intends to be bound them. Implicit in the right to be tried in
a language that an accused person understands is the right to have what is
translated to them translated properly and correctly. It is suggested that police
statements are taken in the language of the person making them and then
translated into the official language by a competent person. This would ensure
availability of statements in their original format – the language spoken by the
witness, in case of a dispute. A person who tenders a witness statement in the
evidence must, therefore, first satisfy the court that the witness concerned
indeed made the statement in the language it is written and that it was
properly translated into the language it is written and confirmed with the
witness concerned.
Following an observation that police statements are not taken with accuracy
and completeness, their status has been relegated to a mere summary of
events, and their purpose limited to majorly obtaining details of an alleged
offence in order to decide whether or not to institute proceedings. A linguistic
complexity has undermined a significant source of evidence.

What did the Prince case highlight with regards to language and legal
representation?

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In S v Prince, the judge described effective legal representation as constituting
a legal representative who could properly communicate with the accused,
understand the language of the witnesses, and convey the accused person’s
defence in the best possible effective manner. A legal representative who may
not be conversant with the language of the witness will also not be in a
position to conduct proper examination of the witnesses, and may, in the end,
make incorrect submissions to the court. This standard set out in the case
of Prince was critical in view of the gravity of the charges of rape and
kidnapping that the accused was facing and the likelihood of life imprisonment.
Moshidi J maintained that the accused was entitled to a legal representative
with whom he could communicate in his own language. A language barrier
between an accused person and their lawyer is just cause for termination of
services.

4.2. Justice in your own language

Consult pp. 43-44 and explain why Judge Hlope considers Howard JP's
judgment in the case is, “with respect 'a low water mark on the question of
use and promotion of indigenous languages in this country”.
Not only was this a missed opportunity to promote the Zulu language, but
there was no attempt by the court to transform the constitutionally
guaranteed right to have a trial conducted in a language that one understands
into a meaningful right.

Find the heading “Language and the Courts” on p. 42, and continue to read
up to the first two paragraphs of p. 43. Explain the statement: “The reality,
however, is that the official languages do not enjoy 'parity of esteem' and are
far from being treated equitably by the courts in South Africa”.
Part of the answer, it would seem, lies in the provision of a professional
interpreting service. Failure to provide such a service will render the
constitutional provisions meaningless and do great damage to the delivery of
justice by the courts. Nevertheless, it is clear that, at present in the courts, two
languages continue to dominate. The reasons for this are explored in this
paper, as are some of the problems being encountered by the courts because
of a lack of clear policy or commitment to the language issue. It is also

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necessary to examine the role played by an interpreter in the courtroom and
to highlight why the service interpreters provide must be a highly professional
one.

On p. 45, it is mentioned that African indigenous languages have what we

call ”language families”. Identify some of these language families.
For example, isiZulu; siSwati; isiNdebele; isiXhosa fall within the Nguni family.

Also on p. 45, an assumption is mentioned that a person who speaks a Nguni

language can easily understand another Nguni language. Elaborate on this
assumption.
Paraphrase a case mentioned in this article to demonstrate your
understanding of the complexities and perhaps even miscarriage of justice
associated to the (non)use of our 11 official languages and its
(mis)interpretation in our courts.
S v Mpopo 1978 (2) SA 424 (A), Munnik J in the court a quo concluded that a
witness was lying. He claimed to know the language of the witness and stated
that one of his assessors was a fluent Xhosa linguist. However, it was evident
that the witness did not in fact speak Xhosa but Sotho. The judge22 attempted
to explain the misunderstanding by stating that the witness came from an area
where Xhosa and Sothospeaking people lived together. Corbett JA held that
the interpretation procedure may not be entirely satisfactory but ' ... where
evidence is interpreted the Court must have regard to what the interpreter
tells the court, not what the witness himself says in the language which is
interpreted' . 23 This comment in itself is absurd but it highlights the potential
prejudice that may occur through the process of interpretation. For instance,
the word izolo in Zulu means 'yesterday', and izolo elinye in Xhosa means 'the
day before yesterday' . Obviously in a court of law the difference between the
two is critical and this highlights the need for well-trained and effective
interpreters. The job of the interpreter is made more difficult because many
legal concepts are unknown in African indigenous languages and consequently
there may not be any equivalent legal terms in those languages. For many
decades the apartheid regime not only diminished the status of African
languages but it failed to provide any fertile ground for their development. 24

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For example, interpreting the concept of a suspended sentence can be quite
difficult for an interpreter. Another example involved an accused who made a
confession, and later wished to withdraw it because he argued that he had not
known the implications. His understanding of the word 'confession', as it was
interpreted to him, was that it was similar to the one made to a priest and he
believed it would lead to forgiveness.

Discuss the statement made on p. 46 that “in a society as diverse as ours, an

interpreter is often obliged to play a dual role.”
This requires an interpreter to go beyond the surface meaning of what has
been said, to' the values embedded in the language and culture.

4.3.1 The ethics and professionalism of court interpreters

Interpreters have such an important role to play and yet often they receive
minimum training. This raises concerns about a lack of consistency and the
possible miscarriage of justice. Court interpreters play an important role in
striving for equal access to justice in court rooms across the world. They are
seen as officials of the court and are expected to be professional, ethical and
effective, similar to any other court official.

Name the three “qualities” that the interpreter must display in doing his or
her job.
At the beginning of any legal proceeding, the interpreter takes an oath
swearin-g to "accurately, completely and impartially" interpret that
proceeding,.or_words to that effect. The court interpreter actually has a two-
fold duty: {1) to reflect precisely what was said by a non-English-speaking
person, and (2) to place non:-English-speaking participants in legal ·
proceedings on an equal footing with those who understand English. It is
important to remember that the judge and/or jury will be relying entirely on
the interpreted version of testimony to draw conclusions about the credibility
of witnesses and the relative weight of testimony. Therefore, you must
conseJVe every.single· element of information that was contained in the
original message, in as close to a verbatim form as English style, syntax and
grammar will allow. By the same token, the non-English-speaking · witness

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should hear precisely the question that was asked, \Yithout simplifieation,
clarification or.omission.

The difference between translation and interpretation

• Translation: a written rendering of a foreign text’s meaning.
• Interpretation: an oral rendering of a foreign speech’s meaning.

4.3.2. Interpretation in SA courts

Name issues that influence the quality of interpretation is South African
courts, according to this article.
In one example, reported in 2007, a convicted defendant claimed there were
inaccuracies in the interpretation of his case.
Examples of inaccurate interpretations in court cases the study cited were
court interpreters who got distances and measurements wrong, which altered
evidence.

Name aspects that often lead to incorrect translations of local isiXhosa

expressions.
A lack of understanding of regional dialects often resulted in the wrong
translation of local Xhosa expressions.

Name two consequences, with regard to legal matters, that poor

interpretation causes in Eastern Cape court rooms.
As seen in the number of cases that were often overruled or referred back to
the trial court once they went under automatic review proceedings.
"These incidents hinder the carrying out of justice because they create
loopholes and have an impact on the presentation of evidence in court,"
Mpahlwa said.

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Two instances of “cultural noise” are mentioned, starting at the bottom of p.
91; distinguish between them.
[i]ntercultural communication takes place when the sender and the receiver
are from different cultures. Communication can be very difficult if there is a big
difference between the two cultures; if there is too much "cultural noise", it
can break down completely.

Participants can be differentiated by what Ting-Toomey (1999: 6) refers to as

"primary dimensions of diversity" and "secondary dimensions of diversity";
distinguish between the two.
"Primary dimensions of diversity" would be those differences which are visible
and unchangeable, such as race, whereas "secondary dimensions" involve
aspects of socialisation, such as educational levels.

Consult a dictionary and define the terms “circumlocution” and

“dichotomous”.
Circumlocution → the use of many words where fewer would do, especially in
a deliberate attempt to be vague or evasive.
Dichotomous → exhibiting or characterized by dichotomy.

Towards the bottom of p. 93 reference is made to "mould” theories" and

"cloak theories" and on p. 94 the two principles of linguistic determinism and
linguistic relativity is mentioned. Match these two principles with the
respective mould and cloak theories.
Mould theories characterize language as "a mould in terms of which thought
categories are cast"
"a cloak conforming to the customary categories of thought of its speakers"

The authors claim that in a multilingual court room where a single language
may dominate, a situation could arise where the standard Whorfian

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problems associated with translation from one language to another exist.
What is meant by “Whorfian problems”?
Associated with translation from one language to another exist, further
complicated by problems of context and perspectives. The latter could be as
extreme as differences in the concept of justice as underpinned by what is
deemed to be right or wrong. This could apply, for example, to perspectives on
property ownership, community versus individual rights, rights of elders over
others and so on.

Speaking
Do you think that it is possible for a court interpreter to avoid
circumlocution?
Yes

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