Article by Max Loubser
The South African experience of language and the law has been one of multilingualism, with Dutch, English and Latin as source languages. Afrikaans developed from Dutch as the only indigenous language in Africa that became a developed legal language. Afrikaans could draw on the developed legal terminology of Dutch and German, but nevertheless its rapid development as a fully-fledged legal language with a comprehensive legal terminology and legal literature is a remarkable phenomenon. Today English and Afrikaans are the only developed legal languages in South Africa.
Where the source languages match the living legal languages the original legal sources will tend to keep feeding in to the legal system, but where this match is no longer found or is being eroded, as has happened in South Africa with Dutch and Latin, changes are likely to occur.
Officially “functional multilingualism” has been adopted as policy in South Africa. Constitutionally, government is required to use at least two languages, for legislation and generally. Where effective operation of government requires comprehensive communication, the information will be published in all the official languages. In other cases the policy is to publish government documents in at least six official languages. No specific policy has yet been adopted for the use of languages in the courts.
The obvious difficulties of affording equal status to eleven official languages have lead to pressure for the use of a single legal language, English, accessible to if not spoken by the mass of the people. The possible consequences of the tendency towards using English as the legal lingua franca are that the courts will increasingly look towards English-language jurisdictions for comparative purposes and that the relevance and influence of the Roman-Dutch authorities and the civilian legal heritage will in the long-term decline. However, there is considerable inertia in a legal system that has developed over centuries and the South African legal system is likely to retain its mixed character.
It is suggested that a flexible “non-diminution” approach to the use of languages in the legal system has much to commend it. Such an approach would leave scope for language diversity and the further development of languages by extended translation services, so that black languages may be used as languages of record in the courts where required, without diminution of the use of Afrikaans for legislation and as a language of record.
About the Author
Max Loubser. Attorney, Director, Cluver, Markotter, Stellenbosch. Professor of Law, University of Stellenbosch, South Africa. B.A., LL.B., University of Stellenbosh; Ph.D., Oxon; Rhodes Scholar 1973-76, Magdalen College, Oxford.
Citation
78 Tul. L. Rev. 105 (2003)