Question NW671 to the Minister of Justice and Correctional Services

Reply:

Question 1:

1. The LPC does not form part of either national or provincial government. Nor is the LPC listed as a “national public entity” under the Public Finance Management Act, 1999, as contemplated in the Use of Official Languages Act 12 of 2012. As such, the suggestion that section 6(3)(a) of the Constitution of the Republic of South Africa Act 108 of 1996 (Constitution) is applicable to the language policy of the LPC is incorrect.

2. Prior to the decision to offer the examination papers in English only, the LPC offered the examination in both English and Afrikaans. Over the period from March 2021 to August 2023 no more than 26 candidates wrote the examinations in Afrikaans at any sitting. In the six examinations over this period this made up between 0.3 and 0.5% of the candidates sitting in the examinations (with total enrolments for the examinations varying between 4 912 and 7878 candidates per sitting).

3. Consistently with this observation, we note that whilst the LPC received complaints from a few organisations pursuant to the publication of its decision not to offer the examination in Afrikaans, not a single candidate legal practitioner raised an objection.

4. The continued offer of Afrikaans examinations for the benefit of a negligible number of candidates has disproportionate cost and logistical implications for the LPC. Moreover, in the last examinations of August 2023, discrepancies between the Afrikaans and English versions of the examination papers led to concerns about the unfair advantage offered to Afrikaans-speaking candidates sitting in the examinations.

5. Many of the considerations considered by the Constitutional Court in relation to the language policy of the University of the Free State, as set out in AfriForum and Another v University of the Free State 2018 (2) SA 185 (CC) apply with equal force in the present context.

6. We further drawn your attention to the fact that the LPC accredits training providers who offer the Practical Vocational Training structured coursework programmes. These programmes are offered, by the training providers (not the LPC), in English. The material is expensive to produce and update annually and is not also produced in Afrikaans. There is also insufficient demand to justify the costs of translation.

Question 2:

1. The LPC denies that its language policy, and its decision to offer competency-based examinations in English only, stand in breach of or in conflict with its objects as set out in section 5 of the Legal Practice Act 28 of 2014 (LPA). The objects of the LPC include for it to “facilitate the realisation of the goal of a transformed and restructured legal profession that is accountable, efficient and independent” (section 5(a)), which must perforce require of the LPC to bring into account equity, practicability, and the critical need to undo the damage caused by racial discrimination in its approach to language use and examination. Simply put, any criticism of, and engagement with, the LPC’s language policy and its decision to offer examinations in English only must occur by reference to the correct legal and factual context.

2. The reality is that English is the language of record in South African Courts. Whilst legal practitioners are free to provide legal advice to their clients in the language of their choice, and whilst accommodations are made in the court processes which take account of language rights of those represented, legal practitioners participate in legal processes almost exclusively through the medium of English. The competency of legal practitioners to participate in the legal processes through the medium of English is therefore of significant importance, to protect the interests of the public who make use of legal services.