Senzo Meyiwa’s trial also puts language in the dock: New Frame
The 2014 murder of footballer Senzo Meyiwa and his protracted and controversial police investigation involving high-profile figures in the South African music industry continue to grab headlines in South Africa. Five men are on trial for the alleged murder of the national team captain and goalkeeper.
Recent events in the criminal trial have shone a spotlight on language use from the perspective of legal practitioners, court officers, police officers and courtroom interpreting.
The defendant’s attorney as well as a witness for the state encountered language issues – they were perceived to have language difficulties in court. This was not their fault but due to a restrictive language policy which favors English as the primary language in court. In one case, the judge halted the proceedings and urged a witness for the state – forensic detective sergeant Thabo Mosia – to request a Sesotho interpreter, which he agreed to. The only interpretation in court had been in the isiZulu language. The country has 11 official languages.
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Language is the most important element of legal proceedings, but it is assumed that English is the only language through which communication can take place. This is inconsistent with the ideals and rights contained in the South African constitution and the fact that the country is multilingual – something that should be celebrated.
As forensic and legal linguists, we focus on the language issues that plague our legal system, particularly when evidence is disclosed. The Meyiwa case is not alone in highlighting language issues in courtrooms across the country. But through it, we see the need for legal practitioners and judicial officers attentive to the linguistic complexities that exist
Linguistic Bias in Courtrooms
It is a human condition that we judge ourselves based on the use of language vocabulary, accent, tone, and language sensitivity. When you open your mouth, people naturally make value judgments and attach psychological labels, positive or negative, thereby influencing their response.
In another example from the trial, attorney Malesela Teffo, the defendant’s attorney, ran out of English vocabulary, which caused various types of linguistic biases to come into play. It also made Judge Tshifhiwa Maumela laugh when the lawyer ran out of words.
It’s about subjective and strictly linguistic inequality: how we judge people based on their lack of words and based on how they speak and how well they speak. Such judgments can often be unreliable.
The Legal Practice Act and the Legal Practice Council of the country do not address the issue of language for communication in the courtroom. They do not address the qualifications and language skills of South African legal practitioners and future judicial officers. Legislative and policy frameworks reinforce the status quo only in English. Legal practitioners and bailiffs who do not speak English as their mother tongue are often led to think about vocabulary first before even asking a question to the witness. This was clearly the case of the lawyer Teffo.
We note the ease with which Attorney Teffo was able to phrase and pose the question in his native language and this should be incorporated into the courtroom discourse. Instead, policies and legislation dictate the opposite and impose language on the practitioner without thinking of the consequences. Specifically, during examination-in-chief and cross-examination, the phrasing and use of language is important to a witness and could lead to another response being provided.
Cultural and linguistic concepts in the South African context are often not explainable and often not even translatable into English. An example would be the psychological state of amafufunyana, a state of being inexplicable in Western psychology. Or the word adoption, for which there is no equivalent in the Nguni languages. There is also sexual terminology that is considered taboo in African culture and creates language issues in court. You think better and speak better in your mother tongue, where there is a clear link between language and culture.
This should be the starting point in any legal context, where language is law and law is language.
Problematic Recording Language Policy
The policy dictates the use of English as the official language for registration purposes. When an interpreter is used, the English interpretation is recorded. The direct words and feelings of the witness are not recorded. The English-only recording language policy would have been practical according to court chiefs in 2017.
However, in the case of Meyiwa, we see that when implemented, the policy is questionable. A single language policy in a multilingual country like South Africa is not necessarily practical and certainly not transformative.
The policy also prevents legal practitioners, court officers and witnesses from proceeding in a language other than English when it is practical to do so. This places exclusive reliance on the interpretation services in our courts.
The importance of the court interpreter
The Meyiwa case also highlights the need for interpreters where indigenous languages are to be used. Unfortunately, we have a shortage of qualified, qualified and competent court interpreters in South Africa.
Interpreters do not just translate words between people for the court record, but rather are responsible for finding the equivalence between two languages and two cultures in the case of English and an African language. The legal terminology required by court interpreters suggests the need for appropriate academic qualifications and training which are currently lacking.
The police as translators (translators + interpreters)
The English Recording Language Policy and the South African Police Service Language Policy state that police officers do not require any language qualifications, skills or training. Yet they are required to record statements in English when complainants are most often not native English speakers.
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The police officers therefore interpret between themselves and the complainants, then translate into English for the written statement – acting as a translator without the required knowledge or qualifications. There are cases where the police suffer from linguistic bias, where English vocabulary fails them – as in the case of the prosecution witness and the interpreter in the Meyiwa trial.
A way forward
The first aspect that needs urgent attention and revision is the monolingual recording language policy for the courts. It should include all official languages based on provincial language demographics to ensure practicality.
Second, to empower legal practitioners, magistrates and police through training programs and other language skills. Legislation and policies must be more inclusive and favor a multilingual rather than a unilingual approach.
These require the facilitation of forensic and legal linguists to assist the government and the judiciary using new technologies formulated by forensic linguists.
Additionally, forensic linguists can help retrain legal practitioners, court officers, and interpreters to be more aware of linguistic complexities in courtroom speech. The research was conducted by forensic and legal linguists, with the next step being the implementation of these strategies.
This article was first published by The conversation.