WESTERN CAPE COURT LAY ASSESSORS ASSOCIATION (W.E.C.C.L.A.A)
PROPOSALS WITH REGARD TO THE MAGISTRATES' COURTS (ASSESSORS) AMENDMENT BILL

(Working Draft - 01/12/97)
(Adapted from ii 220797)


1. INTRODUCTION
The Western Cape Court Lay Assessors wish to make it clear that we fully support the Magistrates' Courts (Assessors) Amendment Bill.

We have formulated certain proposals with regard to the Amendment Bill. It is important that these amendments are read in conjunction with the proposed Bill.

2. PROPOSED AMENDMENTS
We propose that:
2.1 The infliction of 'bodily harm' on another person be clearly defined in clause 2 (1A) a (Amendment of section 93ter of 1944....) e.g. rape, crimen injuria, murder, hijacking, etc.

Motivation: Crimes involving theft, verbal abuse, drugs, threats, etc. can cause trauma which could have harmful mental, emotional and psychological effects. 'Bodily harm', if not clearly defined, is too restrictive towards just the physical effects.

2.1(a) beside cases of bodily harm, clarification is needed in respect of other trials in which assessors could be used e.g. bail applications.

Motivation: Lay assessors represent the community which needs its confidence in the justice system restored.

2.2 state prosecutors should not have discretionary powers to decide whether assessors should be used 2 (1A) a & b. We question the 'intuitive' power of the prosecutor.

Motivation: (i) Can the prosecutor be 100% sure from the outset whether the trial will run as envisaged by him/her from the facts or evidence on the charge sheet?

(ii) What happens when new evidence emerges during the trial causing the outcome of the proceeding to reach a different conclusion and assessors were not used?

2.2 (a) The presiding judicial officer with the state prosecutor decide whether they are going to use assessors. Further to our recommendation above:

(i) What happens if the accused/complainant requests the presence of the assessors?
(ii) What happens when a trial continues and new evidence demands the input of assessors? Can this lead to a mistrial?

2.3 'due to the unavoidable absence of the second assessor be inserted after the words presiding judicial officer, Clause 2 (3) d to be consistent with Clause 2 (1A) in terms of the use of two assessors.

It should thus read 'upon all matters of fact the decision or finding of the court except when only one assessor sits with the presiding judicial officer due to the unavoidable absence of the second assessor, in which case the decision or finding of such judicial officer shall be the decision or finding of the court if there is a difference of opinion'.

2.4 'Insertion of section 93quat in Act 32 of 1944' - 93quat (1) a
(i) 93quat(1) a should read:

'The designation and appointment of persons from the community who are
respected, active within the community, suitable and available to serve as assessors

(ii) the assessors presently serving in the pilot programme be returned in their present status

(iii) there should be no gender discrimination

(iv) criteria for the appointment of new assessors be drawn up.

2.5 'Insertion of section 93quat in Act 32 of 1944' - 93quat (1) b
With reference to the term 'mechanisms' we propose

(i) a forum of assessors and magistrates
(ii) provincial assessors forums
(iii) national assessors forums
(iv) District committees (the functions, composition and role players in the election of members serving on DAC's should be spelt out in detail).

2.6 'Insertion of section 93quat in Act 32 of 1944' - 93quat (1) c
The training of assessors' - We propose that clear procedures be outlined

(i) with regard to the training of assessors
(ii) the selection process of the trainer of trainees
(iii) the role players who appoint these participants should be identified.
WECCLAA feels strongly that it be included in the selection process of the trainer of trainees.

2.7 'Insertion of section 93quat in Act 32 of 1944' 93quat (1) d

With regard to the 'payment of allowances to assessors', we propose that an independent budget be approved for the use of the Minister of Justice.

2.8 'Insertion of section 93quat in Act 32 of 1944' - 93quat (1) e

In order to regulate the service of the assessors in the court, we wish that the following be noted:

2.8.1 Legislated control structures of assessors should be established in the respective provinces to:

(i) oversee that the assessor system operates smoothly within the clusters e.g. ensure that assessors are consistently used by magistrates
(ii) to liaise with magistrates and the Justice Department.

2.8.2 Magistrates could keep a weekly register of the number of assessors used in their courts. This log could then be made available to the secretary of the DAC. Monthly and annual statistics of the utilisation of assessors in magistrates courts could thus be readily available.

2.8.3 A process should be put in motion whereby the public could be sensitised with regard to the role of assessors in the community and in the justice system.

3. CONCLUSION
We sincerely hope that the Magistrates' Assessors Bill will be successfully tabled in
Parliament during its present session, to become the MAGISTRATES' COURTS
(ASSESSORS) AMENDMENT ACT, 1998.