Oosthuizen and Another v S (Appeal) (CA&R 248/2021 ; CA&R 45/2023) [2024] ZAECMKHC 101; 2024 (2) SACR 600 (ECMk) (19 September 2024)

Oosthuizen and Another v S (Appeal) (CA&R 248/2021 ; CA&R 45/2023) [2024] ZAECMKHC 101; 2024 (2) SACR 600 (ECMk) (19 September 2024)

The High Court held that the directive by the Heads of Courts, adopted in March 2017, requiring English as the language of record is binding on all courts, including Magistrates' Courts, in the absence of an executive policy to the contrary. The failure to ensure that the record is translated into English constitutes a procedural irregularity that undermines the right to a fair trial and impedes the appeal process. The responsibility for ensuring a complete and translated record rests with the appellant or their attorney, as provided by Rule 49A(4) of the Uniform Rules of Court. The court emphasized that the principle applies to all official languages and that uniformity in court language...

Citation
[2024] ZAECMKHC 101
Parties
Appellant: M Oosthuizen; Appellant: A Van Straten; Respondent: The State
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
19 September 2024
Case Number
CA&R 248/2021 ; CA&R 45/2023
Procedural Posture
Criminal Appeal / Appeal Hearing Before High Court
Outcome
Both appeals were struck from the roll pending translation of Afrikaans portions of the record into English.
Judges
B R Tokota, N Mullins
Legal Topics
Court Language Policy, Right to Interpreter, Fair Trial Rights, Magistrates Court Act, Constitutional Language Rights
Criminal Law Civil Procedure Court Language Policy Right to Interpreter Fair Trial Rights Magistrates Court Act Constitutional Language Rights

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Parties

M Oosthuizen

Appellant

A Van Straten

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Hearing Before High Court

Legal Issues

  1. 1 Whether the use of Afrikaans in portions of the court record, without translation into English, constitutes a procedural irregularity.
  2. 2 Whether the Magistrates were obliged to ensure that the record is translated into English as the language of record.
  3. 3 Whether the directive by the Heads of Courts regarding English as the language of record is binding on Magistrates.

Ratio Decidendi

The High Court held that the directive by the Heads of Courts, adopted in March 2017, requiring English as the language of record is binding on all courts, including Magistrates' Courts, in the absence of an executive policy to the contrary. The failure to ensure that the record is translated into English constitutes a procedural irregularity that undermines the right to a fair trial and impedes the appeal process. The responsibility for ensuring a complete and translated record rests with the appellant or their attorney, as provided by Rule 49A(4) of the Uniform Rules of Court. The court emphasized that the principle applies to all official languages and that uniformity in court language...

Court Disposition

Both appeals were struck from the roll pending translation of Afrikaans portions of the record into English.

Orders

  • Both matters are struck from the roll.
  • The respective Magistrates are directed to ensure that portions of each record recorded in Afrikaans are translated into English.