- Dr Mahlubandile Ntontela’s research points out that criminal procedures built around spoken language can disadvantage witnesses who have communication disabilities.
- The study suggests that courts should interpret existing rules of evidence in ways that allow witnesses to testify using Augmentative and Alternative Communication (AAC) systems.
- The research also calls for new courtroom guidelines and legal reforms to protect the rights of people with communication disabilities, making sure they can access justice.
South Africa’s criminal courts risk disadvantaging witnesses with communication disabilities when procedural rules built around spoken language fail to accommodate alternative ways of communicating, a University of Fort Hare doctoral study has found.
Dr Mahlubandile Ntontela, a law lecturer at Nelson Mandela University, argues that the reliance on orality in criminal proceedings can create barriers for witnesses who use Augmentative and Alternative Communication (AAC) devices to express themselves.
Ntontela graduated during UFH’s Spring Graduation after completing his Doctor of Laws research, titled The use of augmentative and alternative communication devices by witnesses with communication disabilities in the criminal courts: A South African perspective.
His research argues that witnesses should not be prevented from presenting evidence simply because they cannot communicate through conventional speech.
Instead, courts should interpret existing rules of evidence in a manner that allows witnesses with communication disabilities to testify using AAC systems. These systems provide alternative ways for people to communicate when speech is not possible or is limited.
Guidelines needed to assess evidence
Ntontela also recommends developing courtroom guidelines to help judges and magistrates receive and assess evidence given through AAC systems. “These guidelines will, in turn, ensure that the evidence led through the AAC system meets the requirements for credibility and reliability, among others,” he says.
The proposed approach raises questions about whether existing evidentiary procedures adequately accommodate witnesses whose communication needs differ from those traditionally anticipated by the criminal justice system.
The research emphasises that recognising alternative communication pathways should extend beyond sign language interpretation. Witnesses who use AAC systems may require different procedural accommodations to ensure that their evidence can be presented and evaluated fairly.
Constitutional rights and access to justice
Ntontela places the issue within the context of the constitutional right to access justice and Article 13 of the United Nations Convention on the Rights of Persons with Disabilities, which deals with ensuring access to justice for people with disabilities and calls for appropriate procedural accommodations.
“The study, therefore, goes beyond identifying a procedural difficulty. It highlights the need for the legal system to recognise different communication pathways, beyond just sign language services, when deciding how evidence can be presented in court,” he said.
The research also calls for constitutional and legislative changes that would strengthen the rights of people with communication disabilities when they access criminal courts.
It urges courts to recognise all available communication systems and allow them to be used in presenting evidence, especially when a witness’s testimony is central to a criminal case.
The research was supervised by Dr Ntandokayise Ndlovu, a senior lecturer in Public and Constitutional Law at the University of Fort Hare.
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This article first appeared on the University of Fort Hare website. Read the original here.
