Guilty of being deaf. Kruse v S — paying lip service to the fair-trial rights of hearing-impaired accused persons
Author | Kehrhahn, F.H.H. |
DOI | https://doi.org/10.47348/SALJ/v139/i1a5 |
Published date | 23 February 2022 |
Date | 23 February 2022 |
Citation | (2022) 139 SALJ 157 |
Pages | 157-180 |
157
https ://doi.org /10.4734 8/SALJ /v139/i1a5
GUILTY OF BEING DEAF. KRUSE v S — PAYING
LIP SERVICE TO THE FAIR-TRIAL RIGHTS OF
HEARING-IMPAIRED ACCUSED PERSONS
FERDINAND HEINRICH HERMANN KEHRHAHN†
Lecturer, Independent Institute of Education, Varsity College, Pretoria
JANI CHA RLESE DE LANGE‡
Lecturer, Depar tment of South Afr ican Sign Lan guages and Deaf Studi es,
University of the Free Sta te
This arti cle considers th e case of Kr use v S, where th e right to a fair tria l of a
deaf accused wa s infringed ow ing to the poor com munication and t ranslation of
the trial proc eedings. This ar ticle consider s the methods availa ble to translate cou rt
proceedings to a deaf or h ard-of-hear ing accused, a nd demonstrates a n appreciatio n
that the deaf comm unity is not homogen eous and that a singl e interpreting m ethod
cannot acco mmodate ever y deaf person. In rais ing the question as t o which method
is best suited to a spec ic accu sed, the article ind icates that th e culture and histor y of
the deaf accus ed should be indispen sable factors to co nsider. The art icle explores th e
rights of deaf ac cused in the South A frican cr iminal justice s ystem by consider ing the
Constitution, nat ional legislatio n, and judicial no rms and standard s which relate
to the interpre ting of trial proc eedings to the deaf ac cused. The ex isting laws and
safeguards that prot ect these right s are poorly impleme nted at a grass-roots l evel,
which calls for b etter training of stakeholder s and more eective policy i mplementation.
A concerte d eort on the par t of the govern ment is required to en sure that the right s
of the deaf accu sed are protected.
Crimi nal justice – deaf acc used – fai r-tri al rights – inter pretation
I IN TRODUC TION
South Afr ica has a well-established deaf and hard-of-hea ring com munity
of four mil lion people1 (to which we shal l refer in this article for t he sake
of convenience as ‘the deaf com munit y’). In this context ‘deaf ’ mean s
the inabil ity to hear a nd comprehend speech.2 A member of the deaf
communit y who is accused by the state of comm itting a c rime has the
same constit utional r ights as a n abled-hear ing accused. However, in
the crim inal justice system the full protection of the rights of the dea f
† LLB (UP) LLM ( UP) PGDip HIV Mana gement (Stel lenbosch).
‡ BA (Hons) MA (UFS ).
1 Western Cape Govern ment ‘Nationa l month of deaf p eople’ availa ble at
https://www.westerncape.gov.za/general-publication/national-month-deaf-people, ac cessed
on 1 May 2020. In t he 2011 census 3.6 per cent of the popu lation olde r than
ve years prese nted with hea ring d icult ies: Stati stics South A fric a ‘Proles of
persons w ith disabi lities’ ava ilable at htt p://www.statssa.gov.za/?p=3180, accessed
on 1 May 2020.
2 For a comprehensive denit ion of deaf persons consider J S chein & M Delk
The Deaf Pop ulation of the United S tates (19 74) 132 .
(2022) 139 SALJ 157
© Juta and Company (Pty) Ltd
158 (2022) 139 T HE SOUTH AFRIC AN LAW JOURNAL
https ://doi.org /10.4734 8/SALJ /v139/i1a5
communit y is often denied.3 M any members of the deaf f raternity fu nction
well in societ y by relying on residual hearing abi lity, speech-read ing and
heari ng aids.4 The profoundly dea f, however, rely on one of three methods
to communicate in a cri mina l tria l — transcription; speech-readin g; or
sign language, ava ilable to them through a sig n-lang uage interpreter.5
Without this k ind of intervention the tri al would amount to an
unintel ligible empty ritual.6 An ex ample of such an accused living with
deafness who was reduced to a passive powerless spectator at his tr ial7 was
Mr Kruse.8 His case is a stark reminder of the insurmou ntable dic ulty
a deaf person faces, and which impacts on a deaf accused person’s right
to a fair trial and access to justice.9
In Kruse v S the court acknowledged that the cour t must treat the
deaf accused w ith judicia l sensitiv ity, vigilance, respect and dign ity.10
This ar ticle explores t he interconnect ion between South African law
and the rights of the deaf com munity, specically in the context of
the crim inal justice system where courts must negotiate a situation of
lingu istic and cultura l diversit y in relation to the accused. It considers
whether these rights are en forced eectively, or if lip ser vice is merely
being paid to them. Further more, this article propose s additiona l rights of
the deaf accused that the cour t in Kruse v S d id not consider. The art icle
aims to rem ind govern ment depart ments, the lega l frater nity, academ ics,
and specica lly the judiciary that these r ights need be ack nowledged and
heeded in relevant ca ses.
This ar ticle rst u nderta kes a critical overview of the S v Kruse case.
Secondly, it considers the opt ions of interpretin g crimina l trial proceed ings
to a deaf accused. Third ly, the rights of t he deaf accused, as encapsulated
in the Constitution of the Republic of South Africa, 1996, legislation,
3 F Cas sim The R ight to Meaning ful and In formed Partic ipation in the Cr iminal
Justice Process (LLD thesis, U NISA, 2 003) ch 6; J B Wood ‘Protecti ng deaf
suspects’ r ight to unde rstand c rimi nal procee dings’ (1984) 75 Journ al of Criminal
Law & Criminology 166 at 166.
4 E Levi ne The Ecolog y of Early Deafn ess: Guides to Fashion ing Environmen t and
Psychological Assessment (19 81).
5 Wood op cit note 3 at 168.
6 G F Rel yea ‘Procedur al due proces s: A deaf defend ant’s right to b e heard
should encompa ss a right t o “hear” civ il tr ials th rough inte rpretat ion’ (1980) 29
Catholic Univer sity LR 867 at 869.
7 Kruse v S [2019] 4 All SA 2 87 (WCC) para 20.
8 For others see S v Gaza & another [20 09] ZAGPPHC 231; S v Mbezi [2010]
ZAWCHC 59. See too K R Miller ‘Ling uist ic diversit y in deaf de fendants
and due process r ights’ (20 01) 6 Journal of Deaf St udies and Deaf Edu cation 226
at 226–7 for the rep orts reg ardin g simil ar injust ices aga inst Jun ius Wilson a nd
George Hindsley.
9 Kruse v S supra not e 7 para 9.
10 Ibid para 1.
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