A compromise of rights, rights of language and rights to a language in Eugene Terre'Blanche’s (ET) trial within a trial: evidence lost in translation

Abstract

The trial (within a trial) of Eugene Terre'Blanche (hereon referred to as the ET Trial) in a high court, which took place in Ventersdorp in January and February 2010 sparked intense interest in South Africa and abroad, and raised critical questions about issues of (i) language rights, (ii) communicative competence of law enforcement agencies, particularly the police, and (iii) the asymmetries in the police interaction with the accused persons. Apart from communicating the rights of the accused persons in a language that s/he understands, the police officers are entrusted with additional responsibilities which include, among others, being a channel or conduit that encodes and decodes information within milliseconds in an attempt to reconstruct an accused person’s narrative into formal evidence for purposes of court proceedings. This reality is further substantiated by Komter (2002/2003:202) who suggests that, "[...] police officers should record the fact that they informed the suspect about his right to silence and [...] that they record the suspect’s statement as much as possible in his own words". Against this backdrop, it is also worth stating that the South African multilingual setting is confronted by serious complexities, especially in cases where the accused is a speaker of an African language who can only rely on interpreting/translation services in order to follow the legal discourse, whereas languages of record are still solely in English and Afrikaans. Based on an examination and analysis of the judgement of the ET trial within a trial, this study finds that, despite the dawn of democracy, the South African Criminal Justice System is still confronted by linguistic and cultural challenges. Central to these challenges is the potential for miscarriages of justice. Furthermore, the main principles of Critical Sociolinguistic Analysis (CSA) employed in this study have uncovered the fact that power imbalances in the criminal justice system do not necessarily originate through legislation but through situated processes and practices (Eades 2010). As Fairclough appropriately argues, there is a need not just to examine the power in the discourse but also the power behind the discourse (1989).

Keywords: language rights; communicative competence; asymmetry; transpreters; trial within a trial