Linguistic inequality in South African courtrooms: A Constitutional analysis of Interpretation barriers and access to justice

Linguistic inequality in South African courtrooms: A Constitutional analysis of Interpretation barriers and access to justice

Tshilidzi Knowles Khangala & Katlego Arnold Mashego

Issue: Vol. 7 No.6 2026 Article 3 pp.1455 –1462
DOI: https://doi.org/10.38159/ehass.2026763 Published online 14th July 2026

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ABSTRACT

This paper conducts a rigorous constitutional law analysis of the systemic failure to realise language rights within South African courtrooms, three decades into the democratic dispensation. It posits that the persistent dominance of English and the chronic inadequacy of interpreting services constitute a prima facie breach of the state’s positive and immediate obligations under Sections 6, 7(2), 9, 10, 30, 31, and 35(3)(k) of the Constitution of the Republic of South Africa, 1996. Through a doctrinal analysis of pivotal jurisprudence from the Constitutional Court and superior courts, the paper demonstrated how judicial tolerance of substandard interpreting services violates the inviolable right to a fair trial and fundamentally undermines the foundational constitutional value of equitable multilingualism. It argued that this failure represents a form of unconstitutional systemic under-enforcement, which perpetuates colonial-era linguistic hierarchies and denies substantive justice and equal protection under the law to most citizens. By applying core constitutional law principles, including transformative constitutionalism, the doctrine of objective normative value, and the test for reasonableness in fulfilling positive state duties, the paper constructs a normative framework for assessing the state’s compliance. The paper contributes to the scholarship by proposing targeted, constitutionally mandated reforms, asserting that the realisation of linguistic justice is a non-negotiable component of the state’s duty to respect, protect, promote and fulfil the Bill of Rights, and is essential for the decolonisation and legitimacy of the post-apartheid legal order.

Keywords: Constitutional Law, Language Rights, Section 35(3)(k), Fair Trial, Transformative Constitutionalism, Positive State Obligations, Judicial Remedies.

BIBLIOGRAPHY

Legislation

Constitution of the Republic of South Africa, 1996.

Rules Board for Courts of Law Act 107 of 1985.

Superior Courts Act 10 of 2013.

Use of Official Languages Act 12 of 2012, Government Gazette No. 36017.

Case Law

Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC).

Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).

Democratic Alliance v Minister of International Relations and Cooperation 2017 (3) SA 212 (CC).

Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC).

Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).

Harksen v Lane 1998 (1) SA 300 (CC).

Mazibuko and Others v City of Johannesburg and Others (CCT 39/09) [2009] ZACC 28; 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC) (8 October 2009)

Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC).

S v Makwanyane 1995 (3) SA 391 (CC).

S v Mamabolo 2001 (3) SA 409 (CC).

S v Matomela 1998 (2) SA 1 (Ck).

Other Sources

Currie I & De Waal J The Bill of Rights Handbook (2013) 6^th ed Cape Town: Juta & Co.

De Vos P & Freedman W (eds) South African Constitutional Law in Context (2014) Oxford University Press.

Hutchinson T & Duncan N ‘Defining and Describing What We Do: Doctrinal Legal Research’ (2012) 17(1) Deakin Law Review: 83–119.

Klare KE ‘Legal Culture and Transformative Constitutionalism’ (1998) 14(1) South African Journal on Human Rights: 146–88.

Kruger R ‘Language Rights in South African Courts: A Legacy of Systemic Non-Compliance’ (2012) 28(2) Southern African Journal on Human Rights: 312–35.

Langa JP ‘Transformative Constitutionalism’ (2006) 17(3) Stellenbosch Law Review: 351–60.

Statistics South Africa Census 2022: Key Results (Stats SA Report No. P0301.4, 2023)

Statistics South Africa Census 2022: Language. Statistical Release P0301.4 (2023) Pretoria: Stats SA.

South African Human Rights Commission (SAHRC) ‘Access to Justice and Language Rights’ (2022) Pretoria: SAHRC.

ABOUT AUTHOR(S)

Tshilidzi Knowles Khangala is a Lecturer at Tshwane University of Technology, an admitted Advocate of the High Court of South Africa, and a member of the TUT Law Clinic. He has more than 15 years of teaching experience at various institutions of higher learning. He previously served as a Deputy Director in the Gauteng Department of Education for six years. He holds an LLB and LLM from the University of Venda and a Postgraduate Diploma in Public Administration from the University of South Africa (UNISA). He is currently pursuing a Doctor of Laws (LLD) degree at the University of the Western Cape. He has presented papers at both national and international conferences and has published more than 10 journal articles and six book chapters.

Katlego Arnold Mashego is a Lecturer at Tshwane University of Technology and the Manager of the TUT Law Clinic, where he oversees the provision of free legal assistance to indigent and vulnerable members of the community. He has several years of teaching experience at various institutions of higher learning. He holds a National Diploma in Legal Assistance and a BTech in Business Administration from Tshwane University of Technology, a Certificate in International Business Management from Osnabrück University of Applied Sciences (Germany), an LLB from the University of South Africa (UNISA), and an LLM from the University of the Western Cape. He is currently pursuing a Doctor of Laws (LLD) degree at the University of the Western Cape. He has presented papers at both national and international conferences and has published a number of journal articles and book chapters.

TO CITE ARTICLE

Khangala, Tshilidzi Knowles & Katlego Arnold Mashego. “Linguistic inequality in South African courtrooms: A Constitutional analysis of Interpretation barriers and access to justice,” E-Journal of Humanities, Arts and Social Sciences 7, no.6 (2026): 1455 – 1462. https://doi.org/10.38159/ehass.2026763