Court (Sensibly) Sets Aside Contempt Proceedings Against Attorney Who Spoke isiXhosa in Court

The Eastern Cape High Court has set aside contempt proceedings against a Legal Aid attorney who addressed a magistrate’s court in isiXhosa. The court ruled that the magistrate fundamentally misunderstood both her jurisdiction and the constitutional language rights of legal practitioners.

The controversy began when attorney Luvuyo Melani, struggling to be heard over the noise of an air conditioner, requested assistance from the court interpreter after the magistrate repeatedly asked him to repeat himself. When told he needed to speak up, Melani suggested the problem might lie with his command of English as a second language and began addressing the court in isiXhosa.

The magistrate warned Melani he was “bringing the court into disrepute” and threatened contempt proceedings, because, according to the Magistrate, the only official language in court is English. When Melani countered that isiXhosa is one of South Africa’s official languages, the magistrate adjourned for lunch and subsequently initiated contempt proceedings.

However, the magistrate never convicted Melani. Instead, citing a pending High Court matter involving a different Legal Aid practitioner also facing contempt charges, she sought what she termed a “special review” wherein she requested guidance from a reviewing judge on whether she was correct in her handling of the matter.

Judge Hartle found multiple fundamental irregularities in the proceedings. Most significantly, the magistrate purported to act under common law contempt provisions, yet magistrates’ courts lack jurisdiction to summarily punish common law contempt. Their powers are limited to three statutory categories under Section 108(1) of the Magistrate’s Courts Act: wilfully insulting a judicial officer, wilfully interrupting proceedings, or wilful misbehaviour in court.

The judgment emphasised that while the Heads of Court resolved in 2017 that English should be the language of record in superior courts for practical reasons, this directive explicitly provides that the policy “should not deny the litigant, witness or legal practitioner the right, where practicable, to address the court in the language of his or her choice.”

“The magistrate appears to have been under a misconception that speaking in the vernacular in court is absolutely prohibited and contumacious in itself,” Judge Hartle wrote. “This cannot be a correct premise given the constitutional aspirations of the language provisions.”

The court noted that where a language other than English is used during proceedings, it must be interpreted contemporaneously into English. In this case, the interpreter failed to translate Melani’s isiXhosa statements in real time, and subsequent attempts to obtain a translation were haphazard and incomplete.

Judge Hartle observed that “tone-deaf” courts have become to indigenous languages intruding into the monolingual court space, and criticised the failure to give proper voice to such interludes in official court records. The court also highlighted numerous procedural failures. The magistrate never clearly informed Melani under which category of statutory contempt he was being charged, denied him adequate opportunity to exercise his fair trial rights, and failed to recognise that speaking isiXhosa to communicate more effectively with the court could not constitute contemptuous behaviour.

“Even for the moment assuming that Mr Melani was objectionable in insisting on his right to speak in the language of his own choice, a little forethought and patience might have saved the day,” the judge observed. Neither magistrate nor practitioner could hear each other above the noise and distractions typical of South African court environments. The court emphasised that Melani showed no disrespect in requesting interpreter assistance and perceived no insolence in his assertion that isiXhosa is an official language. The judgment noted that the proceedings were initiated during an already stressful moment when Melani doubted his English proficiency simply because the magistrate couldn’t hear him clearly.

Judge Hartle also criticised the magistrate’s improper use of the “special review” procedure, and noted that it should not be invoked merely to eliminate doubt or seek validation of a judicial officer’s particular viewpoint. The proper process would have been to complete the proceedings and submit them for automatic review, or to refer the matter to the Director of Public Prosecutions.

You can read the Melani Review here.