The exclusion of South African sign language speakers in the criminal justice system: a case based approach

Abstract

This chapter seeks to explore the challenges facing sign language speakers within the criminal justice system in South Africa against a broadly sociolinguistic backdrop. The chapter sets out the constitutional framework which protects South African Sign Language (SASL) speakers, entrenching the right to use a language of choice within the court system. However, within the criminal justice system it is evident that serious injustices can occur when hearing impaired complainants seek to report crimes that have been committed against them and to obtain justice. The chapter explores the constitutional framework against the background of State v Sikhafungana (2012), a sexual assault case that was heard in the Mount Frere Regional Court in the Eastern Cape Province of South Africa. The legislative position on the use of languages in court is critiqued. This includes the draft language policy of the South African Police Service (2015). The SAPS draft policy (2015) although appearing to be positively disposed towards hearing impaired and Deaf complainants, may be deemed as “justice too late” in the face of the Sikhafungana case (2012). The chapter furthermore discusses the case of State v Mbezi (2015) concerning the purposive interpretation of sign language within the criminal justice system.