Understanding one’s rights when arrested and detained: An assessment of language barriers that affect comprehension

• DOI: https://doi.org/10.47348/SACJ/v34/i1a1
• Pages: 1-30
• Citation: (2021) 34 SACJ 1
• Author: Carney, T.R.
• Published date: 06 July 2021
• Date: 06 July 2021

Understanding one’s rights when

arrested and detained:

An assessment of language

barriers that affect comprehension

TERRENCE R CARNEY*

ABSTRACT

Difcult text for mulations, on the one hand, as well a s poor linguistic sk ills

and comprehension on the other, can severely hamper the com munication

effort of basic human right s during the judicia l process. The rights

entrenched in s 35 of the Constit ution of South Afr ica (Act 108 of 1996), as

they apply to individuals who are ar rested, detained a nd accused, and read

out by a member of the local South A frican Police Service (SAPS), are written

in a legal register that ca n be too difcu lt for additional language speaker s

to understand. Th is begs the question of whether a rrested, detai ned and

accused individuals a re fully aware of thei r rights and whether they ca n

exercise these rights if t hey do not understand the la nguage that expresses

them. This ar ticle appraises the potential comprehensibility of the not ice of

rights (SAPS 14A), as provided to arrested, deta ined and accused individuals

by the SAPS. The researc her’s assessments indicate t hat the text is pitched

at an English readabilit y level suited to university gr aduates and could

be too difcult for Sout h Africans w ith limited schooli ng and linguistic

abilities to comprehend. A revision of SA PS 14A is offered as an illust ration

of a possible improvement to increase readabi lity and, subsequent ly, better

access to the mentioned rights.

1 Introduction

Access to basic human rights and privileges is anchored in language.

These rights would not be known to people if the language in wh ich

they are expressed is unclear and incomprehensible. When people are

unaware of their rights, any legal process involving them can hardly

be fair. Twenty-six years into democracy, South Africa’s language

dispensation is still t aken for granted. South Africa is a multilingual

country, which means the citizenr y switches between a number of

languages and language varieties as t hey move between different

domains. Nowadays, English is reserved for higher functions like

* BA HonsBA (UP) PGCE (Unisa) MA (UP) PhD (UFS) TESOL ( Wits), Associate

Professor, College of Human Scie nces, University of Sout h Africa. I a m grateful to

the reviewers for their helpf ul comments.

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© Juta and Company (Pty) Ltd

education, medical care, business and interactions with the justice

system. The remaining local languages are used for lower functions

related to the market economy and logistics.1 In South Africa, English

is aggressively promoted as a lingua franca from the top -down,

resulting in ofcial docu mentation often being available in English

only, with one or two translations to follow.2 This situation cont inues

to lead to problems of comprehension and subsequent accessibility.

Multilingual people are seldom equal ly procient in all the languages

they speak.3 Moreover, the ability to converse casually in English

when navigating daily life does not guarantee a person’s ability to

understand documents with legal b earing. One such document is the

South African Police Ser vice’s (SAPS) ‘Notice of rights in terms of the

constitution’, also known as SAPS 14A (see Table 1 for a copy). This

form is given to an individual when he or she is being detained, either

before or after arrest; it is processed by an of cer at a police station.4

The document informs t he detainee of the purpose of ar rest and sets

1 R Mesthrie ‘Colony, post-colony and world E nglishes in the Sout h African cont ext’

(2020) 2020 World Englishes 1 at 2– 4; V Webb ‘The politics of s tandardisi ng Bantu

languages in Sout h Africa’ (2010) 41 Lang Matters 157 at 166–167; N Kamwangamalu

‘Reections on the la nguage policy bal ance sheet in Afr ica’ (2009) 40 Lang Matter s

133 at 138–139.

2 CS Namakula ‘ When the tongue ties fair trial: T he South African experience’ (2019)

35 S A J Hum Rights 219 at 220; Z Docrat & RH Kas chula ‘Monolingua l language

of record. A critique of S outh Afric a’s new policy directive’ i n M Ralarar a et al

(eds ) Ne w Frontiers in Fore nsic Linguistics. T hemes and Pers pectives in Langua ge

and Law in Africa and B eyond (2019) 71 at 71, 73–74; C van der Walt & R Evans

‘IsEnglish the lingua f ranca of South Africa? ’ in J Jenkins, W Baker & M Dewey (eds)

The Routledge Handbo ok of English as a Lingua Franca (2018) 186 at 190–194. This

is clearly reected on t he South African governme nt’s ofcial website where acts are

made available onli ne. Each act is simultaneously published in E nglish and another

South Afric an language.

3 R Wardhaugh & JM Fuller An Intr oduction to Sociolinguistics 7ed (2015) 84. Keep in

mind that indi viduals may be able to spea k and listen, but may not be a ble to read

and write in that s ame language.

4 During a visit to a pol ice station in the Cit y of Tshwane (in October 2020), it was

conrmed th at when an arrested i ndividual is ta ken to the cells for detention, h is

or her rights are read out to h im or her and fur ther clari ed by the SAPS member

responsible for document ing the arrest and/or detention. It was also con rmed that

the contents of Form 14A are expla ined to each individual before they are e xpected

to sign its declaration . However, this practice create s the impression that a rrested

and detained ind ividuals don’t read the no tication them selves. The document i s

also often cited by cou rts as a means to e stablish when a suspe ct was informed of

his or her rights. Se e the following as examples: S v Mafahle (4/2018) [2019] ZAFSHC

266 (5 July 2019) at para [92]; Jobe v Minister of Po lice (2228/2016) [2020] ZANCHC

50 (24 July 2020) at para [15]; Moodley v Ekurhuleni Metr opolitan Municipality

(2015/04528) [2017] ZAGPJHC 235 (23 August 2017) at para [48], Sibuta v Minister of

Police (3709/2016; 3710/2016) [2020] ZAECGHC 6 (15 January 2020) at para [ 33], and

Msimanga v Minister of Police (10932/13) [2015] ZAGPJHC 191 (15 September 2015)

at para [10].

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