The importance of accurate interpretation in criminal proceedings cannot be overstated. The ability of defendants to fully understand the charges against them and participate in their own defence is a fundamental aspect of a fair trial. However, in South Africa (SA), the lack of legal terminology in many languages poses a significant challenge to accurate interpretation, particularly in cases where an accused’s freedom, rights or even their good name is at stake.
Section 35 of the Constitution guarantees the right to a fair trial, including the right to an interpreter if the accused does not understand the language used in court. However, this right is not always realised in practice, particularly for speakers of less common languages or dialects. This can result in inaccurate interpretation, which in turn can lead to wrongful convictions or acquittals.
The issue of inaccurate interpretation has been brought to light in several cases, such as the Thandi Maqubela trial (S v Maqubela 2017 (2) SACR 690 (SCA)), where an interpreter’s errors resulted in a retrial and ultimately an acquittal. This case underscores the potential consequences of inaccurate interpretation and the importance of addressing this challenge.
One potential solution is to provide more comprehensive training to interpreters in the relevant legal terminology, particularly in the official languages of SA. The National Qualifications Framework Act 67 of 2008 provides for the development of national standards and qualifications for education and training, including for interpreters. Investing in interpreter training and supervision, in line with these standards, could ultimately improve the accuracy of interpretation in criminal cases.
Another potential solution is to explore the use of technology, such as real-time translation software or remote interpreting services, to supplement or replace human interpreters in certain situations. The Electronic Communications and Transactions Act 25 of 2002 provides a framework for the use of electronic communications and transactions in SA, including the use of electronic signatures and data messages. This Act could be used to explore the use of technology in court proceedings, with careful consideration of the potential limitations and risks.
In addition to interpreter training and technology, courts could consider using a combination of interpreters and expert witnesses who are fluent in the relevant languages and can provide additional context and clarification in cases where interpretation is particularly challenging. This approach would require the involvement of professionals with specialised skills, such as linguists or cultural experts, and could be supported by the Legal Practice Act 28 of 2014, which provides for the regulation of legal practitioners in SA.
The challenge of accurate interpretation in South African courts, requires a multifaceted approach that involves investing in interpreter training and supervision, exploring the use of technology, and utilising a range of resources and expertise to ensure that the accused receives a fair trial. By doing so, we can uphold the principles of justice and ensure that all parties involved in court proceedings are able to fully understand and participate in the process, regardless of the language they speak.
Although strides are being made to ensure that the justices system works for the benefit of all parties, I believe that improvements can be made especially in the lower courts.
Bonginkosi Ngubeni LLB (Unisa) is a legal consultant at Niemann Grobbelaar Attorneys in Bethlehem.
This article was first published in De Rebus in 2023 (July) DR 8.
