REDEFINING THE ROLE OF THE SOUTH AFRICAN COURT INTERPRETER

R.H. Moeketsi

Court interpreting in South Africa is much older than the Nuremberg Trials at the end of the Second World War. It dates back to the 17th century, when the colonialists first set foot on our shores, and it is unique in some interesting ways, as you will see. Although this presentation cannot attempt to discuss every aspect of this service, it will identify the most salient features that influence the work of an average practitioner.

I will start by describing the complex language situation there and will then show how it impacts on attitudes that ultimately manifest themselves in the behaviour of the participants in the judicial setting. The crux of the matter is obviously the profile of the court interpreter and the quality of the service he renders. I will then close my paper by raising some questions on the possibility of redefining the role of the court interpreter.

The language profile

South Africa is on the southernmost tip of Africa. It is a country comprising nine geographic regions of different speech communities; although one finds a proliferation of different language speakers within the more central, urban and affluent regions, a situation which fosters multingualism and multiculturalism. The population of South Africa is 40, 600, 000, according to the 1996 census. Seventy-seven percent speak indigenous African languages, and for historical and political reasons, 33.9 percent of the adult population is illiterate, with an education level that ranges between zero and eighth grade. There are eleven official languages, nine of which are indigenous, and the other two are English and Afrikaans, the latter a South African adaptation from the colonial Dutch transported into the country in the 17th century. The nine African languages have, in turn, several dialects each, which are not necessarily mutually intelligible. However, these languages are divided into two main language families on phonological, morphological, syntactic and semantic factors. The similarities among the members of one language family are significant enough so that speakers of one language can largely understand, speak, read and write the other languages in that family, with the result that many speakers easily become multilingual, and many more tend to mix or rather harmonise the member languages into a lingua franca. This is done systematically, and is the general tendency in urban areas. Demographic trends clearly show that the language situation is gradually becoming more complicated. Subsequent to the independence of South Africa in April 1994, more and more legal and illegal immigrants from many parts of the world are finding new homes in South Africa, and they obviously bring with them their languages and linguistic skills. These immigrants are mainly from other African countries, Asia and Europe. A regional Sunday paper a month ago listed 23 non-official minority languages spoken by large groups of immigrants and other foreigners just from Africa alone.

The lower criminal courts of urban South Africa, where most of my research was conducted, mirror this language situation. The varieties of languages and dialects and cultures encountered in a day in one courtroom depict the linguistic and cultural diversity of this country.

There is also a proliferation of non-standard language in courtroom discourse as a result of factors like the migration towards particular areas by people from diverse language communities. Contact among such speakers results in code-switching and other forms of language mixing. Although code-switching is scorned by language purists, its value in accommodating to the level of one's interlocutor-- thus enhancing communication-- cannot be overlooked. Borrowing of words, expressions and idioms is also commonplace. The use of various sociolects is also common among different criminal groups of car-hijackers, drug-pushers, jail inmates and gangsters; and among other types of social groups like mine-workers and members of a political party.

Despite this linguistic and cultural diversity, English and Afrikaans are still the sole languages used in trials and to keep the court record. This anomaly, which still has to be corrected, is a product of the country's repressive history, where Afrikaans was developed alongside English as the two official languages and the nine indigenous African languages were relegated to the status of mere vernaculars suitable only for the home. However, one need not delve deep into the matter, to see that it is cumbersome for South Africa to abide by its new policy of eleven official languages.

Discourse Participants

The courtroom is a setting where contact between different linguistic communities is unavoidable in a heterogeneous society like South Africa. In such a place there is usually a distinct division among the discourse participants based on racial, educational, economic and linguistic differences.

In a typical South African criminal trial all the lawyers, i.e., the magistrate, the prosecutor and defence attorneys, if there are any, are on the one side of the language divide. They are usually white English- or Afrikaans-speaking, educated preservers of the law who are not conversant with any of the indigenous African languages used by the majority of the accused persons. Despite the recommendations of the Magistrates' Court Act that the magistrate may be assisted by an assessor or two at the trial of a case, or in determining a proper sentence, magistrates very seldom bother to use assessors, no matter how obvious it is that such assessors from African communities could help bridge whatever language and culture gaps there may be.

On the other side of the linguistic divide are the accused and witnesses. They are usually African, too poor to afford legal representation and too uneducated to follow the court proceedings, which are invariably conducted in Afrikaans or English. According to Stytler (1993), 90% of the cases heard in the lower courts involve legally unrepresented African speakers. For this group the courtroom is a hostile environment which can easily bring their freedom, or their lives, to an end. This means that most South Africans, already deprived, handicapped and humiliated by segregation and apartheid, are further overburdened with linguistic and cultural shortcomings in judicial settings. Such deficiencies ultimately bar them from participating effectively in their own trials and thus force them to relinquish whatever legal rights they would have been entitled to.

The independence of South Africa has for many also ushered in a strong awareness of self. Educated and sophisticated Africans pride themselves anew on their ethnicity, and they insist on, among other things, using their African names, speaking, and being spoken to, in their native languages. This latest version of self-determination manifests itself even in the courtroom where some African attorneys dictate the linguistic rules of the game. They insist on conducting direct- and cross-examinations in the indigenous language, thereby confusing the language policy of the courtroom and rendering the English and Afrikaans-speaking magistrates linguistically at a loss.

The Court Interpreter

Between the educated lawyers and the fumbling defendants, perched precariously on a bar stool, is the court interpreter. Despite the adversarial justice system, South Africans courts use one court interpreter for both the prosecution and the defence. His role is to facilitate communication between the two contesting parties as a neutral party who, by duty, has to serve the two impartially. Devitt (1942: 41) concurs that his presence is essential to the administration of justice. It is solely through his language proficiency and his familiarity with the cultures of the defendant and the courtroom that the court can even think of proceeding. Court interpreters speak seven languages, on the average, i.e., the two languages of record, and five African languages.

Although not perfectly well, they speak these languages with enough fluency. Most male interpreters speak various urban argots (Isicamtho, Tsotsitaal, Flaaitaal) used mainly as secret means of verbal communication by urban youth; many speak fanakalo, the lingua franca of mine-workers; and some others speak various prison sociolects as used by different prison gangs. Court interpreting in SA is, thus a profession where indigenous Africans are in the best position to serve competently. The malicious labour laws that compelled Africans to work for whites ironically paid good linguistic dividends because the African had to learn the language of the employer. Also the land restrictions laws, which compelled the 77% African majority to squeeze together on 12% of the land, allowed them the benefit of learning each other's languages.

In the criminal court, one sees a complex linguistic situation. In most cases, more than two languages are used at a time. The accused person normally speaks a different African language from that spoken by his co-accused and witness(es), and the charge or indictment, as has been mentioned, is always in English or Afrikaans. It is therefore a common occurrence for the court interpreter to have to work in three African languages and either English or Afrikaans in a single trial. Some offenders who make regular appearances in the courtroom usually exploit this anomalous linguistic situation by claiming to speak an African language with the lowest frequency and thereby render a relatively good court interpreter inefficient.

This intricate linguistic situation is further compounded by the rapidly increasing immigrant population, many of whom have already made their debuts in the criminal courts as defendants or witnesses. In their case the court often uses two interpreters, one for the languages in common use in South Africa, and the other for the foreign languages.

Unlike many other countries, the South African court interpreter has always been employed full time by the Justice Department as a civil servant. He is usually assigned to a particular courtroom where he works with a particular magistrate, and this means that he interprets each and every case brought before that court, whether or not he has a vested interest therein. Court interpreters have been observed to interpret even in grossly unethical situations, for example, where their relatives had a role either as defendants or as victims.

They work through all the phases of a criminal trial, from arraignment to sentencing and are generally at the beck and call of the officiating magistrate. There is no law that protects them. Even the new constitution, Act 108 of 1996, which protects the language rights of a defendant and/or witness who is not conversant with the language of the court and entitles him to court interpreting in S35(3)(k), omits anything that resembles protection for the court interpreter, and does not even allude to the role of the court interpreter except of course where his services are demanded. This court participant, whose role is obviously pivotal, regards himself as the Cinderella of the courtroom. He, typically, has a very low standard of education, at best a very poor twelfth grade, which would not allow him direct entry into a university. He serves with a deplorably meagre training of six weeks, provided by equally untrained personnel, and has no access to reference books like dictionaries or relevant glossaries. Strange as it may sound, many of them are good; and many are a marvel to observe. Some study privately and pursue the more elegant law profession. The interpreting service has unfortunately lost many a promising practitioner to it. This less than desirable situation is, however, being addressed by a number of universities who have started to offer a 3-year Diploma in Legal Translation and Interpreting to practising court interpreters, (Inngs, 1998). The university of South Africa plans to offer a B.A. in Court Interpreting that aims at educating and equipping practising and novice court interpreters with the necessary skills in the core areasof interpreting, translating, language and the law. This program provides relevant elective modules from the Humanities and Social Sciences for the development of prospective court interpreters.

I will now present scenarios that illustrate the performance of a South African court interpreter which, at face value, may appear to go against accepted ethical and professional standards. During arraignment in one case, after the prosecutor and the court orderly had called three co-defendants into the dock, the court interpreter enquired from the three about their language preferences. He did it by asking the question "Which language do you speak?" in Sesotho (O bua puo efe) and IsiZulu (Ukhuluma luphi ulimi), two languages from the two main African language families, Sotho and Nguni, thereby covering a broad spectrum of seven out of the nine official African languages. Thereafter, he established the identity of each defendant to make sure that the correct person was in the dock. He then arranged them in their correct numerical order as defendant number one, two and three.

These functions have to do with being an officer of the court,and are obviously not included in the conventional meaning of court interpreting. The question therefore arises whether an interpreter who performs these tasks, of his own accord, should be regarded as crossing the professional line, or is he a necessary member of the courtroom personnel whose function it is to see to the smooth running of criminal trials?

In the next example, the interpreter interpreted the magistrate's question "Do you have a lawyer?" as, "Do you have a legal representative? This court allows you to seek your own lawyer. If you do not have money, you can use the lawyers paid for by the state." Here, the court interpreter added information to the magistrate's question. Much as his experience tells him that defendants are skeptic of State Legal Aid because they find it hard to reconcile the fact that the state wants to prosecute them on the one hand and provides them with defence attorneys on the other. The court interpreter knows that the magistrate's neglect to communicate that vital information is an irregularity that could lead to miscarriage of justice. Is he therefore, expected to behave like a so-called conduit and transfer only the source message to the listener in the target language, or should he rather take it upon himself to rectify the obviously unacceptable situation and supply the crucial information and thereby save the magistrate from dereliction of duty, protect the accused from an unfair trial and ensure that criminal proceedings are conducted accordingly?

Sight interpreting a charge or an indictment can be a nightmare for many court interpreters. Despite Section 84(1) of the Criminal Procedure Act, which states that a charge should be set forth in such a manner that the accused is sufficiently informed of the nature of the charge brought against him, charges are typically written in a jargon that employs Latin and French expressions, little known technical terms, a complicated syntactic structure, a repetition of synonymous words, and a complex numbering of sections and sub-sections, that are invariably incomprehensible to the lay courtroom participant for whom it is intended. To compound the matter further, prosecutors sometimes read the charge sheet in a rush and with a barely audible voice. In the words of Philips (1987:90) their manner is "one of hurried routine."

The court interpreter receives the charge sheet from the prosecutor, looks at it briefly, and, without any reasonable time for preparation, begins to sight-interpret it. His product is normally much longer than the original text; one reason for this is the lack of linguistic equivalents in African languages. Secondly, the interpreter's style of interpreting a charge is usually narrative, but more accessible to the defendant. The interpreter converts the complex numbering of sections and sub-sections into a more understandable language, ensuring that all the elements of the crime have been included.

Given the situation sketched above--the fact that 34% of adult South Africa is illiterate, and that many officiating magistrates still do not care for the welfare of defendants who do not belong to their linguistic and cultural backgrounds--one wonders if an interpreter like this should be faulted for the systematic changes he makes to the source message in his quest to ultimately render the cryptic charge/indictment more comprehensible to the lay court participant. Many researchers and practitioners in this area regard the so-called verbatim interpreting of the charge as a myth, "an oxymoron" in the words of Holly Mikkelson (online paper).

The next example is that of a case which is postponed to the utter mystification of the accused. This situation often prompts the interpreter to intervene because he is usually the only court official who truly understands the distress of the accused. The magistrate's words were: "Your case is postponed until May 9. You will remain in custody until that day."

But the court interpreter conveyed the message: "It means that your case is postponed to the 9th of May of this year. For now, you will stay inside, that is, in jail until that day. Do you understand? You may step down." When the defendant did not move, and neither the magistrate nor the prosecutor seemed concerned because they were already proceeding to the next case, the interpreter asked the defendant whether there was anything he wanted to say (Ho na le seo o batlang ho se bua?). Should this interpreter, under the mantle of professional conduct, deny his urge to help at precisely the moment when the witness is turning to him?

Interpreting a suspended sentence can also be very tricky for many court interpreters. For instance, a two year sentence suspended for five years has been interpreted as follows: "You will serve two years out of prison, in the period of five years. This means that if, in the next five years you are arrested for a similar offence, you will go to jail for a minimum of two years." Should an interpreter who, instead of interpreting the sentence as pronounced by the magistrate, explains the conditions of a suspended sentence to a lay person, be accused of offering unsolicited additions to the source message?

Non-verbal information is usually difficult to handle in the courtroom. Africans tend to use a lot of gesticulation in their speech. For instance, to the prosecutor's question: "How many children do you have?" the witness's answer was: "My children are these many (with his thumb up to indicate the number six )." A witness whose house was gutted by fire and his entire family wiped out, said quietly to the court "I've lost everything." And then moved his open hand across his mouth to indicate complete destruction or annihilation. Sometimes a witness may move his open hand across his eyes to indicate someone else's stupidity. The linguistic concept called deixis ad phantasma (Moeketsi, 1992:36, 1994) which refers to imaginative pointing to abstract places or objects is very prevalent in African speech. A witness will typically point at a part of his body to indicate, for instance, where the victim was wounded, or point at a place to indicate where an occurrence took place (e.g., right here, in front of my eyes). Colour is often explained by pointing at anything similar in the courtroom. Size, length and distance are also explained in terms of what is observable; for instance, a person is as tall as that policeman at the door, or slightly shorter than that man next to the window. The use of African ideophones in the expression of sound or intensity by using mainly onomatopoeic words, is not known in English or Afrikaans. The linguistic phenomenon of polysemy is also rife. The Nguni verb stem -bamba normally means "to hold", but its meaning may shift with the context to mean sexual assault; robbery; arrest; withhold; or to take a route. Court interpreters are therefore challenged to understand words in their universe of discourse.

African languages are very rich in proverbs and in kinship terms. There is a word, for instance, for a paternal uncle/aunt younger/older than one's father; for a maternal uncle/aunt younger/older than one's mother. There is a word for elder/younger brother/sister. However, African lacks linguistic equivalents of crucial courtroom words such as "plead" and "guilt."

The examples cited here, and many more encountered during criminal trials, raise an important issue: a possible re- definition of the role of South African court interpreter,; an issue that has already been raised by Mikkelson (1998), among others. Here, the interpreter is obliged to go beyond the surface meaning of what has been said, to the values embedded in the language and culture of the discourse participants. He becomes a "cultural broker" whose participation involves "mediating ideas, laws, customs and symbolisms" (Wilson, 1972:18) and this is evidently a service that can best be rendered by the Africans who, more than their white counterparts, have acquired the use of more languages as well as the sensitivity to more cultures. Universally accepted theories, that a court interpreter is a faithful echo of everything communicated in the courtroom; that his product is a complete equivalence of the source language message, without any modification, additions or deletions; that he avoids any conflict of interest, sets aside any personal interests, biases, prejudices, opinions or feelings about the case and about any of the participants; that he takes a completely neutral position - these universal ethical and professional principles are a mere ideal situation that may be impossible to achieve in South Africa.

Court interpreters in most parts of the world are typically employed on an ad hoc basis. They work part-time, as and when they are needed, and thus do not have the opportunity to establish any lasting relations with court personnel and other courtroom participants. However, the South African court interpreter is employed full-time as a civil servant and then assigned to a specific courtroom where he works with a particular magistrate. The two normally establish a close working relationship which often results in the magistrate considering the court interpreter as his own. Such court interpreters, therefore serve the magistrates in a true "personal assistant" capacity. They learn to know such magistrates' strengths and weaknesses, their likes and dislikes and often "assist" them where necessary.

Furthermore, the South African court interpreter is normally the only court official who comes from the same linguistic, social, and cultural background as the defendant. Therefore, he intuitively has an empathy with the lay participant's plight, predicament and anxiety. This affinity tends to urge him to want to explain incomprehensible criminal procedure and to ensure optimum participation by the defendant or witness in the case for or against himself, without, of course, compromising his professional duties of interpreting.

A big part of the problem may be solved by providing officiating officers and other court personnel with a rigorous training in the nature of court interpreting. This must be training that will equip them with insights into the nuances of language mediation and give them enough knowledge to realize that specific skills are required in interpreting and that not every bilingual person can interpret.

Until then, the question will remain whether the South African court interpreter will be a mere conduit that transfers a message from a source to a target, or a linguistic and cultural broker who wields power and is therefore an essential courtroom professional whose duty is not only to language but to the proper administration of justice.

References

Devitt, N. 1942. The court interpreter has his problems too. Outspan Vol. 32, (816) 41.

Inggs, J. 1998: Current developments in court interpreter training in South Africa. Proteus. Fall 1998. 7.4:1,3-4.

Mikkelson, H. 1998: Towards a redefinition of the role of the court interpreter. Interpreting. 3.1:21-45.

Mikkelson, H. Verbatim Interpretation: an Oxymoron. On line at: www.acebo.com/papers/verbatim.htm

Moeketsi, R.H. 1994. The versatile nature of the Southern Sotho demonstrative. South African Journal of African Languages 14.1:24-28.

Philips, S.U. 1987. The social organisation of questions and answers in courtroom discourse. Kedar L (ed) Power through discourse. New Jersey: Ablex Publishing Corporation.

Stytler, N.C. 1993. Implementing language rights in court: The role of the court interpreter in South Africa. The SA Journal on Human Rights. 9.2:205-222.

A version of this paper was presented at the 1999 Annual Meeting and Educational conference of the NAJIT in San Diego, California. The author is senior lecturer in the Department of African Languages, University of South Africa, Pretoria.