Exploring the Interplay Between the Right to a Fair Trial and Other Constitutional Rights in South African Criminal Proceedings

• Author: Madumetja Kate Malepe
• Position: University of Venda
• Pages: 19-31

Vol. 3 No. 3

November 2017

ISSN 2410-3918

Acces online at www.iipccl.org

19

Academic Journal of Business, Administration, Law and Social Sciences

IIPCCL Publishing, Graz-Austria

Exploring the Interplay Between the Right to a Fair Trial and Other

Constitutional Rights in South African Criminal Proceedings

Dr. Madumetja Kate Malepe

University of Venda

Abstract

The right to a fair trial is dependent on language power in courtrooms. In the same breadth, the

protection of other constitutional rights is premised on the right to a fair trial. Unfortunately,

a non-English-speaking accused person cannot use his or her language because English is the

language of court record; hence it is possible to produce a trial which is unfair to the accused

person. Recently, heads of South African courts have reinforced the historical predominant

use of English by declaring it the only o cial language of record in all courts, inconsiderate

of the fact that language is instrumental to a fair trial and other constitutional rights. This

article therefore seeks to determine the interplay between the right to a fair trial which may

be tainted by language, and other constitutional rights. The article stems from its argument

that language does not only a ect the right to a fair trial, but also other rights of the accused

person that may be safeguarded if the trial is conducted in his or her language. In the process

of determination of this interplay, this article also highlights some of the legally enforceable

mechanisms that prompt the unfairness of a trial.

Keywords: criminal proceedings, right to a fair trial, language, other constitutional rights.

Introduction and background

Language is instrumental to the right to a fair trial in criminal proceedings. However,

the accused person is in practice compelled to listen to English during his or her trial

as English is the only language of court notwithstanding the le er and spirit of the

Constitution of the Republic of South Africa 108 of 1996 on the right to language and

the right to be tried in the language of ones ‘choice. This raises concern as to whether

such use of language does not a ect the fairness of the trial. Usually lack in linguistic

rights and linguistic competence is equated with violations of other rights. Therefore

language rights have a signifi cant practical value as instruments and tools to realise

other rights (Tallroth in Ervo and Rasia, 2012, 64). The subsequent result is that

language implications do not infringe only the right to language and the right to a fair

trial, but also other constitutional rights which are complimentary or inseparable to

the right to a fair trial. It is therefore the aim of this article to explore the relationship

between language and the right to a fair trial and their relation to other constitutional

rights. This article argues that language plays a major role in the determination of

a case and therefore the unfairness of a trial prompted by language use impacts

negatively on other constitutional rights. It is acknowledged that language power

manifests itself in the daily legal activities in the lawyers’ o ce, police stations and

courtrooms all over the country (Meizhen, 2004, 195-214). It is therefore possible that

this powerplay of language may produce the trial that is unfavourable to the accused

person.