Judge President of the Cape, Justice John Hlophe, says the continued use of English and Afrikaans in South African courts is hampering the transformation of justice.
Addressing the Celebrating a Decade of Democracy conference at the International Convention Centre in Durban, the judge said about 90% of cases heard in the lower courts involved indigenous language speakers.
”For too many years ordinary citizens have been subject to the terrifying ordeal of dealing with a court situation where judicial officers and public prosecutors neither understand nor speak African languages. This must change.”
He said although the Constitution provided for 11 official languages and the Bill of Rights specifically provided for language rights as one of the procedural rights of arrested, accused and detained people, the use of only two languages prevailed.
”For many South Africans from disadvantaged backgrounds this continued emphasis on English and Afrikaans no doubt confirms their suspicions about the integrity of the justice system.”
Hlophe said history would judge the apartheid era judiciary harshly. It was a system in which judges, with few exceptions, formed an integral part of the repressive regime. This damaged not only the reputation of the courts, but also brought into question the legitimacy of the law, itself.
”Even as we celebrate on the 27th April this year a decade of democracy, the judiciary continues to face enormous challenges as it struggles to rectify the damage done during apartheid.”
He said South Africa was fortunate to have as a tool to aid the process of transformation, a Constitution that was one of the most progressive in the world.
He said the Constitution placed considerable power in the hands of the courts to enforce citizens’ rights in areas like housing, health, welfare and education.
”As the Grootboom and TAC cases have shown, members of the judiciary are prepared to provide broad definitions of socio-economic rights, but there are concerns that the courts have been too cautious in this regard. It is a difficult balance for the courts to maintain.”
He said fundamental rights were not capable of meaningful expression in the absence of the substantive fulfillment of socio-economic rights. This had forced judges to re-examine the way they interpreted the law, and to formulate a contextual approach embracing the concept of social justice.
”This change of mindset has been, and continues to be, one of the greatest challenges to the judiciary in the move to a Constitutional democracy. Judges must take the lead in the development of a human rights culture in this country. This is necessary to ensure respect for the law by those who fall prey to it,” said Hlophe.
He said that in 1994 black judges made up just two percent of the country’s judiciary while the number was currently around 34%. But transformation required more than the creation of a representative bench.
”It is important to ensure that those appointed possess not only traditional legal competence but a principled commitment to the values of the Constitution as the founding principles of our legal order.”
The judge concluded: ”The greatest challenge facing all South Africans is to internalise the Constitution.” ‒ Sapa