MATEMANE v MAGISTRATE, ALBERTON, AND ANOTHER 1991 (4) SA 613
(W)
1991 (4) SA p613
Citation
1991 (4) SA 613 (W)
Court Witwatersrand Local Division
Judge Eloff AJP and HEHER AJ
Heard September 23, 1988
Judgment
September 23, 1988
Annotations Link to Case Annotations
[zFNz]Flynote : Sleutelwoorde
G Magistrate's court - Languages used in court proceedings - Guiding principles
as to rights and duties of litigants, accused persons, legal practitioners (including
public prosecutors), witnesses and judicial officers set out - Magistrate's refusal
to allow attorney to cross-examine in English, notwithstanding that witnesses
were testifying in their own language through an interpreter, irregular - No
prejudice, H however, in the circumstances - Magistrate's said refusal also not,
in the circumstances, justifying his recusal.
[zHNz]Headnote : Kopnota
For the sake of clarity as to the rights and duties of litigants, of I accused
persons, legal practitioners (including public prosecutors) and judicial officers, the
following guiding principles relating to the use of particular languages in court
proceedings were set out by the Court:
1.
Section 6(1) of the Magistrates' Courts Act 32 of 1944
permits the use of either official language at any stage of the proceedings in a
magistrate's court. It follows that legal practitioners, including public prosecutors,
practising in the courts of the Republic of South Africa, should not only obtain a
thorough understanding of the official languages, but also J develop fluency in
the use of
1991 (4) SA p614
A both languages. The courts, however, recognise the reality of the South
African situation. In a multi-ethnic society, not every practitioner has equal
opportunity to achieve the required standard. The passing of the required
examinations is no guarantee of proficiency. Nevertheless, the duty exists to
strive to achieve the ideal.
2.
If a legal practitioner has any doubt about his competence in
B the use of one of the official languages, he owes a duty to his client to conduct
the case in that official language in which he is more competent. This also
applies to a prosecutor, who has a responsibility to the State and the court to
present his case as clearly and effectively as he is able.
3.
A party, including for this purpose an accused person, or a
witness, has the right to use a language of his choice whether it be an official
language or not.
4.
If the application of the second and third principles results in
C the use of different languages, an interpreter should usually be employed to
enable both principles to be satisfied. It is undesirable and unsatisfactory that a
witness giving evidence in one language should be cross-examined in another
unless an interpreter is used. Experience shows that this too often leads to
misunderstandings on the part of the witness or the cross-examiner.
5.
If an interpreter finds himself confused or in difficulties
because of the application of the fourth principle, that is not to be laid at the door
of the witness or the legal practitioner. D A court interpreter must necessarily be
an expert in the languages which are being used and trained in the procedures of
the courtroom. If he cannot cope in a given situation, a replacement should be
found.
6.
A party, witness or legal practitioner who seeks leave from
the court to change from an official language which has until then been used in
particular proceedings should be granted permission E without the need to
justify himself. The fact that he had until that moment apparently fared perfectly
adequately ought not to affect the rule. It is his own self-assurance which is of
importance to himself or his client.
7.
The judicial officer must at all times give effect to the
principles set out above, without imposing upon the situation his own preference.
8.
If, however, it appears to the judicial officer that a party, F
witness or legal practitioner is using a language in which he is not competent it
would be proper to ascertain whether he wishes to continue to do so. If
necessary, the proceedings should be adjourned in order to obtain the services
of an interpreter.
9.
None of the aforegoing restricts the power of a judicial officer
to prevent abuses in his own court, for example, the insistence of a practitioner
on using a particular language because he G knows that an interpreter is not
available, and a postponement will accordingly be achieved. These, however, are
exceptional cases.
In the instant case the Court, in an application for the review of a decision of a
magistrate in a criminal trial refusing the accused's attorney's request to conduct
his cross-examination in English, notwithstanding the fact that the witnesses
were testifying in their own languages through an official interpreter, held that the
magistrate's decision had been irregular - the magistrate had allowed the H
convenience of the interpreter, and a not very serious confusion resulting from
the use of different languages, to override the attorney's choice of language
when the latter had informed the magistrate that he regarded his use of English
as being in his client's best interest. However, as the attorney had not meekly
accepted the magistrate's decision, but had applied for the review of the decision,
the case could continue in accordance with the above principles without any
prejudice to the accused. Accordingly, a failure of justice had not resulted. I
The Court held further that the accused's fears that the magistrate, by taking the
decision he had on the language issue, had made it difficult for himself to adopt a
neutral attitude towards the case, were, on the facts, not founded in fact and
were unreasonable. There was no reason to believe that the magistrate had
permitted, or would permit, the language issue to influence his adjudication of the
merits of the case or that he would not afford the applicant a fair trial.
Accordingly, there were no J grounds justifying the Court's ordering the
magistrate to recuse himself.
1991 (4) SA p615
HEHER AJ
[zCIz]Case Information
Application for an order reviewing and correcting a decision of the first
respondent. The facts appear from the reasons A for judgment.
I A M Semenya for the applicant.
Name of counsel for the respondents not known. B
[zJDz]Judgment
Heher AJ: This matter comes before us for review in terms of Rule 53 of the
Rules of this Court.
The application arises from part-heard criminal proceedings before the
first respondent, in which the applicant is charged with 13 counts of theft by false
pretences arising out of his employment at the Black C Administration Offices at
Katlehong during the period February 1985-May 1986.
The grounds for review which are set out in the notice of motion relate,
first, to the magistrate's direction that the applicant's legal representative was
obliged to use the Afrikaans language to cross-examine the State witnesses;
second, to the refusal of the D magistrate to recuse himself, the applicant
expressing doubt as to whether he will be afforded justice free from bias and
prejudice if the case continues before the same magistrate; third, to an
application to this Court that the proceedings be started de novo before another
presiding officer. Originally there was a claim for a special order of E costs, but
that was abandoned by counsel for the applicant before us.
The applicant is a man of 29 years of age whose home language is NorthSotho. He was represented at the trial by an attorney, Mr Moloto. He pleaded 'not
guilty'.
The proceedings commenced on 18 February 1987, with the Afrikaans
language being used. The first witness, one Dlamini, gave F evidence-in-chief
through an interpreter who translated his replies into Afrikaans. The attorney then
cross-examined in the same language. He does not appear to have experienced
any difficulty then or later in making himself understood, although, as will be
seen, it would be going too far to say that he possessed a command of the
Afrikaans language. The same language was adopted with the second witness,
one Choeu, until G the commencement of cross-examination. The record of the
evidence then reads as follows:
'Kruisondervraging deur mnr Moloto:
Mr Choeu, you were the . . . (court intervenes)
H Hof: Meneer, hy het Afrikaans getuig.
Mnr Moloto: Ek verkies om kruisondervraging op hierdie stadium in Engels
uit te voer, met die toestemming van die hof as dit moontlik is.
Hof: Enige rede meneer?
Mnr Moloto: Ja, die rede is dat die verdediging voel dat hy het te doen met
'n (onhoorbaar) van die Staatsadministrasie van Katlehong en dat die I tipe
oortreding is 'n tipe oortreding wat . . . ek voel dit sal by die voordeel van die
verdediging, dat ek my kruisondervraging op die stadium uitvoer.
Hof: Ja, dit mag so wees, maar hoekom? Is dit omdat u nie Afrikaans so
goed kan praat nie?
Mnr Moloto: Dit is nie so nie. Die ding is dat ek dink die regte wat ek kan,
ek is gemagtig om uit te voer, en een van die regte is om albei J twee amptelike
tale op een stadium te gebruik.
1991 (4) SA p616
HEHER AJ
A Hof: Ja dit is so, maar die ding is net dat dit is die beleid dat gewoonlik
die taal wat die persoon in getuig het, dat die kruisondervraging gedoen word,
tensy u 'n rede gee waarom u dit nie wil doen nie, byvoorbeeld omdat u nie
daarvan hou om Afrikaans te praat nie.
Mnr Moloto: Soos dit die hof behaag. Die ding is dat die getuie het nie in
Afrikaans getuig nie, eintlik hy het in Noord-Sotho wat vertolk was. B Daar is nie
'n verskil wat ek kan in Engels vra met die gebruik van meneer die tolk. Dit is net
dieselfde. Ek weet nie of daar is enige verskil tussen die gebruik van Afrikaans
en Engels, en met die provisie van art 6 van die Landdroswet wat sê op enige
stadium van die verhoor, enige van die twee amptelike tale kan gebruik word.
Hof: Ja, dit is so. Dit is waar meneer, maar kyk wat ek bedoel is, u mag dit
doen maar u weet dan moet u net vir my sê waarom u dit wil doen C omdat u
Afrikaans nie so goed is nie, dan kan ons dit doen.
Mnr Moloto: Soos ek alreeds gemeld het, dat ek voel dat ek is geregtig, en
daar is geen artikel wat tot my kennis is dat ek mag nie van een taal tot die ander
- eintlik ek het die eerste Staatsgetuie in Afrikaans kruisondervra, so voel ek op
hierdie stadium dat ek sal beter doen met Engelse kruisondervraging.
Hof: Ja, nee, maar goed, as u voel dat u u plig beter kan doen in D
Engels, dan mag u voortgaan. Dankie.'
Notwithstanding the somewhat peculiar grammar used in the course of that
extract, it would appear that the magistrate and the attorney understood one
another perfectly well. The cross-examination then continued in English and was
completed.
E
The prosecutor led the third witness, one Phadu, in Afrikaans. The crossexamination of the witness began in this fashion:
'Kruisondervraging deur mnr Moloto:
Mrs Phadu, where do you stay? - 327 Mopedi Wyk.
327? - Yes.
F You say the accused was in a separate office, what is the number of
that office? - Ek weet nie, ek ken nie die nommer nie, ek ken net die deur.
Court: The answer is in English, you must answer the question in English.
- I am sorry. I am uncertain about the number, I only know the door.'
The words 'I am sorry' would appear to be those of the interpreter and not the
witness. The cross-examination then continued uneventfully in G English.
The fourth witness was one Makoena, who was led by the prosecutor in
Afrikaans. I take up his evidence at the start of the cross-examination by Mr
Moloto.
'Do you know Mr Frans Postma? - Yes.
H What was he doing when you were at section 2 during the time when
the accused was involved in this matter? - Toe ek daar begin werk meneer . . .
(hof onderbreek).
Court: Mr Interpreter, it is in English. You see Mr Moloto the problem we
have. Do you see when you switch over from one language to the other, that is
why it is not proper to switch to a language which is not I conducted by the
prosecution. That is a problem that this court always has.
Mr Moloto: It was just an unfortunate mistake. We shall have to keep on
correcting the interpreter.
Court: Yes, but you have started this problem. I think I should now direct
that you conduct your cross-examination in Afrikaans, because the interpreter is
also getting confused with this, and I order now that you go on in Afrikaans.
J Mr Moloto: Your worship . . . (court intervenes).
1991 (4) SA p617
HEHER AJ
A A Court: I do not want any answers to that. If you do not want it, then you can
go to a higher authority.
Mr Moloto: The point is that when, I do not know, I have to get instructions
from my client.
Court: Well, then you must stop the proceedings and you can go on
review to a higher authority, because it is confusing the whole issue. Do you B
want to stop the proceedings and go on review with this matter first, or do you
want to proceed as the court orders.
Mr Moloto: I want to stop the proceedings.
Court: The proceedings are stopped until I hear from you again.'
The court then adjourned, and when it reconvened the court asked the attorney
what the position was. He replied: C
'The position is that I have been instructed by the accused in this matter to
approach this court humbly for the presiding officer to recuse himself since there
is a dispute of the usage of English or Afrikaans. So he feels that the presiding
officer by ruling that Afrikaans shall be the language of cross-examination, he
has already put himself into a difficult position to remain as neutral.
Court: You are asking me to recuse myself. D
Mr Moloto: That is correct. So without further comments my instructions is
still simply that because of the language dispute he feels that it will be in the
interest of justice if the presiding officer . . . (court intervenes)
Court: Thank you, Mr Moloto, the court is not prepared to recuse himself.
You have anything more to add to that?
E Mr Moloto: Your worship, if the application for recusing is not granted, it
is a question of taking further instructions from the accused.'
Once again there was an adjournment, and when the court reconvened Mr
Moloto informed the court that he had been instructed to apply for a
postponement on the grounds that the accused wished to have the record typed,
presented to counsel for his opinion, and if necessary, counsel F would be
asked to proceed in the matter. The trial was then postponed pending the
outcome of the present proceedings.
The applicant and Mr Moloto have deposed to affidavits in support of the
application. The applicant says:
'I wish to refer this honourable Court to the record of the G proceedings
which reflects the historical background thereof. I confirm that Mr T P Moloto as
my legal representative has been instructed by myself to use the language
(official) he commands and understands best in order to execute his mandate to
the best of his ability. During my consultation with Mr Moloto I learned that he
had done his studies at the University of the North through the medium of English
language, with almost all the prescribed books being in English except few,
which he must have tackled making use of Afrikaans/English dictionary where H
necessary. My legal representative has informed me that this case of theft by
false pretences is a matter which was not easy to handle because of its
technicalities caused by the fact that I was employed by the Katlehong Town
Council as a messenger and my duties were not clearly defined by my seniors.
Therefore, after I had learned that my attorney, although he is bilingual, he could
perform better in English, I have I advised him to use English where and when
he deems it fit to execute his mandate to my satisfaction. I have also a scanty
understanding of English. Where the language used is English I enjoy the
proceedings because, even if the interpreter is helping me, there are parts of
evidence which I understand before he translates into my vernacular, that is
North-Sotho. On 18 February 1987 I was surprised to realise that my attorney
was ordered to use Afrikaans as the language of cross-examination, without
understanding the reason behind the ruling by J the
1991 (4) SA p618
HEHER AJ
A presiding officer. My attorney tried to explain with reasons, but in vain.
Since that moment of 18 February 1987 I have developed a phobia against the
presiding officer. I have a strong and reasonable suspicion that the presiding
officer is biased against either Mr Moloto, the English language or myself. I
humbly state that, if what my legal representative has told me is correct, namely
that the presiding officer did not have the right and authority to rule that Afrikaans
shall be B used in his court to the exclusion of English, the said ruling is nothing
else but a gross irregularity, so serious that this honourable Court cannot
condone, save to request him to recuse himself and order the case to start de
novo before a new presiding officer. I humbly state that my fear is not unfounded
in this matter because of the obvious reasons that the said presiding officer has
acted beyond his powers with bias, either intentionally with full knowledge of my
rights, or C ignorantly and negligently unaware of what the correct position was.
I reiterate that it shall be in the interest of justice if this honourable Court grants
me the order as prayed, because if I am tried by the same presiding officer after
this application, whether it has succeeded or not, I am going to be more
frightened and unsettled. Therefore, I submit to this honourable Court that the
best remedy is to order the recusal of the said presiding officer and let this case
be tried by somebody who D will treat the two official languages on par, with all
of the rights of the accused person being respected.'
The attorney, in a brief affidavit, has confirmed that the applicant's affidavit is a
true reflection of what took place in the magistrate's court, and that what relates
to him, Moloto, has been said with his knowledge and consent. He concludes: E
'I humbly submit that it shall be in the interest of justice if the applicant's
prayers are granted by this honourable Court so that justice cannot only be done
but should also be seen to be done, and the courts of justice should retain the
traditional image of neutrality in litigations either between the citizens or between
the State and the citizens with no bias as to colour, race, religion, affiliation or F
language spoken.'
The magistrate has furnished reasons for the attitude which he adopted. These
are:
'7. Section 15(1)(b)(v) of the Attorneys Act 53 of 1979 requires an attorney
to be qualified in both official languages before his admission as an attorney.
G 8. Section 6(1) of the Magistrates' Courts Act 32 of 1944 stipulates that
either of the official languages may be used at any stage of the proceedings in
any court.
9. t is my respectful submission that the Legislature did not intend that a
witness could at any time while giving evidence switch from one official language
to the other at will, and neither that an attorney could conduct his case in like
manner when cross-examining one witness. The confusion that such action can
bring about is H clearly illustrated in the present case. And since Mr Moloto did
cross-examine the first witness without difficulty in Afrikaans, there did not seem
to be any reason why he could not do so in the case of the other State witnesses,
except perhaps to suit his own fancy. In this regard I refer to the case of S v
Solani en Andere 1987 (4) SA 203 (NC) at 221 where the Court remarked:
"Dit is om die minste te sê hoogs onbevredigend en
onwenslik I dat 'n getuie wat in een amptelike taal getuienis gee in 'n ander
amptelike taal gekruisondervra word." '
And the magistrate then concludes:
'10. Mr Moloto requested that the presiding officer recuse himself. It is my
respectful submission that the order that the court made was on pure judicial
grounds and no prejudice existed towards either Mr J Moloto or the accused. In
1991 (4) SA p619
HEHER AJ
A
this respect the court refers to p 18 of the typed record where the
prosecutor's objection to Mr Moloto's question was overruled in favour of the
defence. For these reasons the court made the order which it did.'
It is most undesirable that the administration of justice should be
interrupted by disputes of this nature. The power, if it exists, to direct the choice
of language used in the courts touches sensitive B chords. Unless there is clarity
as to the rights and duties of litigants, of accused persons, legal practitioners
(including prosecutors) and judicial officers, the image of the judicial process in
the public perception can only suffer harm. At the cost of perhaps being trite, I
propose to state the guiding principles, as I see them, which C relate to the use
of particular languages in court proceedings.
1.
As the magistrate has correctly pointed out, s 6(1) of the
Magistrates' Courts Act 32 of 1944 permits the use of either official language at
any stage of the proceedings in a magistrate's court. It follows that legal
practitioners, including prosecutors, practising in the courts of the Republic of
South Africa should not D only obtain a thorough understanding of the official
languages, but also develop fluency in the use of both languages. The courts
however recognise the reality of the South African situation. In a multi-ethnic
society not every practitioner has equal opportunity to achieve the required
standard. The passing of the required E examinations is no guarantee of
proficiency. Nevertheless, the duty exists to strive to achieve the ideal.
2.
If a legal practitioner has any doubt about his competence in the
use of one of the official languages, he owes a duty to his client to conduct the
case in that official language in which he is the more competent. This also
applies to a prosecutor, who has a F responsibility to the State and the court to
present his case as clearly and effectively as he is able.
3.
A party, including for this purpose an accused person, or a witness,
has the right to use a language of his choice whether it be an official language or
not. G
4.
If the application of the second and third principles results in the
use of different languages, an interpreter should usually be employed to enable
both principles to be satisfied. It is undesirable and unsatisfactory that a witness
giving evidence in one language should be cross-examined in another unless an
H interpreter is used. Experience shows that this too often leads to
misunderstandings on the part of the witness or the cross-examiner.
5.
If an interpreter finds himself confused or in difficulties because of
the application of the fourth principle, that is not to be laid at the door of the
witness or the legal practitioner. A court interpreter must necessarily be an expert
in the languages which I are being used and trained in the procedures of the
courtroom. If he cannot cope in a given situation, a replacement should be found.
6.
A party, witness or legal practitioner who seeks leave from the court
to change from an official language which has until then been used in particular
proceedings should be granted permission without J the need to justify himself.
The fact that he had until that moment
1991 (4) SA p620
HEHER AJ
A
apparently fared perfectly adequately ought not to affect the rule. It
is his own self-assurance which is of importance to himself or his client.
7.
The judicial officer must at all times give effect to the principles set
out above, without imposing upon the situation his own preference.
B
8.
If, however, it appears to the judicial officer that a party, witness or
legal practitioner is using a language in which he is not competent, it would be
proper to ascertain whether he wishes to continue to do so. If necessary the
proceedings should be adjourned in order to obtain the services of an interpreter.
9.
None of the aforegoing restricts the power of a judicial officer to C
prevent abuses in his own court. An example would be the insistence of a
practitioner on using a language because he knows that an interpreter is not
available, and a postponement will accordingly be achieved. These, however, are
exceptional cases.
It will be observed from the description of the trial that the D magistrate's
conduct of the case fell short of what I consider to have been the applicable
standards. He refused the defending attorney's request to conduct his crossexamination in English, notwithstanding that the witnesses were testifying in their
own languages through an official interpreter. He allowed the convenience of the
interpreter, and, as it seems to me, a not very serious confusion, to override the
E attorney's choice of language even when he had been informed that the latter
regarded his use of English as being in his client's best interest. Whether
intentionally or not, the magistrate imposed his own choice of language on the
case.
In all these matters it seems to me that the magistrate committed
irregularities. It is trite law however that this Court will not F generally interfere
unless a failure of justice has resulted from the irregularity, in the sense that the
accused was prejudiced (S v Gaba 1985 (4) SA 734 (A) at 750G-H). I do not
think that we can find that actual prejudice to the accused flowed from the
magistrate's indiscretion. Had the attorney meekly knuckled under, that might
have been the result. Very properly he did not, and the case can now be G
continued in accordance with the principles which I have enunciated. That,
however, is not the end of the matter.
It is a fundamental principle of our law that justice must not only be done
but also be seen to be done. The basis upon which the recusal of the magistrate
was sought was that by, so to say, taking sides on the H language issue, the
magistrate had made it difficult for himself to adopt a neutral attitude towards the
case. In his affidavit in support of the review, the applicant has made comments
concerning the effect of the magistrate's attitude upon him, and his fears in
relation to the future conduct of the case, to which I have referred.
The principles which are applicable to an application of this nature I were
discussed at length in S v Herbst 1980 (3) SA 1026 (E) by Eksteen J (as he then
was) and a number of most helpful dicta were referred to. The authorities
establish that the mere possibility of bias apparent to a layman on the part of a
judicial officer will not be sufficient to justify his recusal. Whether a reasonable
fear exists that he will not J be impartial requires an objective appraisal:
1991 (4) SA p621
HEHER AJ
A '. . . (I)f right-minded persons would think that, in the circumstances,
there was a real likelihood of bias on his part, then he should not sit.'
(Per Lord Denning MR in Metropolitan Properties Co (FGC) Ltd v Lannon and
Others [1969] 1 QB 577 (CA) ([1968] 3 All ER 304) at 599 (QB) and 310 (All
ER).)
B
The proceedings in the present case do perhaps point to a preference by
the magistrate for the use of Afrikaans. There is nothing inherently wrong with
that. Most judicial officers probably prefer their home languages. The magistrate
should not, of course, have allowed that preference to intrude into the field of his
professional duties. But the fact that he did falls a long way short of indicating
favour for the State or its case, or dislike of the defending attorney or his case, to
C the prejudice of his client. The record shows that the magistrate was motivated
mainly by the confusion of the interpreter, and for the rest by the preference I
have mentioned.
During the cross-examination of the witness Choeu, he expressly
recognised the validity of the submission by the attorney that the latter was better
able to do his duty in English, and permitted him to D proceed in that language
without further interruption. The magistrate has referred in his reasons, which I
have quoted, to what he described as Mr Moloto's 'fancy' in relation to his choice
of language. In this ex post facto judgment he contradicted his own assessment
at the time, and was, I think, unfair to the attorney, who has confirmed under oath
the statement of the applicant that, although bilingual, he performs better in
English. E
When the attorney commenced cross-examination of the witness Phadu in
English, the interpreter delivered her reply in Afrikaans, as I have pointed out,
and the magistrate immediately responded:
'You must answer the question in English.'
F
In all, the record of the evidence to its present stage covers some 21
pages, and of these nine are in the English language. The magistrate has
furnished his reasons in English.
Looking at the situation as a whole it appears to me that the fears
expressed by the applicant are not founded in fact and are unreasonable. Neither
he nor this Court has reason to believe that the magistrate has G permitted, or
will permit, the language issue to influence his adjudication of the merits of the
case before him, or that he will not afford the applicant a fair trial.
In my view the application to review the magistrate's refusal to recuse
himself, and the application that the proceedings be started de novo before
another presiding officer, must be dismissed. The trial will H proceed, to its
conclusion no doubt, before the same magistrate, and equally certainly he will
take into consideration those principles in relation to the use and choice of
language to which I have referred earlier in this judgment.
Eloff AJP concurred. I
Applicant's Attorneys: T P Moloto & Co Inc, Benoni.