Prof. Christina Murray
Law Faculty, University of Cape Town
Magistrates’ Courts Amendment Bill [B 33 - 98]: Submission

After the elections the Department of Justice set up a programme to encourage the use of lay assessors in district courts throughout the country. The programme was based on the provisions of section 93ter of the Magistrates' Courts Act which permits the use of assessors in magistrates' court proceedings. Up to 1994 these provisions had been used on an ad hoc basis by magistrates. They were seldom invoked by district court magistrates but some (exceptional) courts, such as Nelspruit, used assessors on a fairly regular basis. The Department’s new programme sought to increase the use of assessors and to develop a system for their appointment which would mean that lay people would participate actively in the justice system.

Between November 1996 and May 1997 we conducted a research project on this newly introduced assessor programme. The project involved interviewing magistrates, lay assessors and members of the public. The issues that we explored fell into three categories:
* the implementation and administration of the scheme;
* the effect of using lay assessors in proceedings and the attitudes of magistrates and lay assessors to the use of lay assessors; and
* the attitude of the three groups of people that we interviewed (magistrates, lay assessors and members of the public) to various issues concerning courts and the administration of justice.

Overall we interviewed about 60 magistrates, 203 lay assessors and over 700 members of the public in four provinces the Western Cape, Mpumalanga, Gauteng and the Northern Cape. Our interviews were strikingly consistent in many ways. In particular, similar problems were raised by participants in different provinces and from different courts.

We are currently completing our first full report. The following submission is based on our preliminary appraisal of the results of the study.

Key findings of the research:
(i) We are convinced that the introduction of lay assessors enhances the operation of the judicial system.
(ii) The use of lay assessors up to now has been marked by a range of logistical problems but solutions to most of these have been found by magistrates and lay assessors themselves.
(iii) Magistrates and other legal professionals remain sceptical of, if not opposed to, lay participation in the judicial system (as legal professionals are in most parts of the world). Moreover, even when using lay assessors magistrates are able to limit the role assessors play in court.
(iv) Magistrates who are initially sceptical of the value of the system may change their views after using lay assessors.

The following submission focuses on the Magistrates' Courts Act Amendment Bill and the likelihood of it providing an effective framework for the regulation of the lay assessor programme. This means that we focus on problems. The emphasis on problems should not be taken as an indication that our research concludes that the lay assessor programme is so problematic that it should be reconsidered. On the contrary, the research has enabled us to identify many important positive aspects of the programme and suggests that it enhances the judicial system.

1. Purpose of lay assessor programme
Many of the interviews and reported cases reflect confusion abut the purpose of the lay assessor programme. This lack of understanding of the purpose of the programme leads to a wide range of problems. Some of these problems involve the administration of the system itself. Others concern details such as in which cases lay assessors should be used and whether lay assessors should or should not be used for various aspects of criminal proceedings. For instance, as far as the administration of the system is concerned, in a number of courts the senior magistrate has taken over management of the roster of lay assessors. This eliminates a range of administrative problems and, in particular, makes it easier to ensure that lay assessors return to complete partly heard cases. If the lay assessor programme is intended to offer an opportunity for independent participation in criminal proceedings by members of the community, it may not be desirable for lay assessors to be chosen (albeit off a roster) by the court. On the other hand, if the goal is merely to have lay participation in trials it may not matter who administers the programme.

The same type of question arises in relation to decisions by magistrates about whether or not to use lay assessors. If the lay assessor programme is intended to enhance the legitimacy of courts through community participation, magistrates may choose to use lay assessors in many more cases than those identified in the new Bill. But if the programme is intended (as the Bill may be taken to suggest) to avoid the anticipated objections or frustration of the community in especially sensitive cases, magistrates might use lay assessors in very few cases.

It is essential provide clear explanation of the purpose of the lay assessor programme. Because the lay assessor programme is to be administered by hundreds of magistrates in an infinite variety of situations, the basic principles of the system need to be set out and made available to all magistrates.

There are a number of possible purposes for using lay assessors. These reasons overlap in significant ways but an emphasis on one rather than another has implications for the implementation of a lay assessor programme and for the way in which problems involving the use of assessors should be solved. Possible purposes are likely to fall into one of three categories -
(i) Ensuring that justice is done in all cases. Lay assessor programmes introduced for this purpose would use assessors who, for some identifiable reason, can enhance the quality of decision-making.
(a) Experience with the type of case before the court or technical knowledge of a particular aspect of the case might be relevant here and these are the reasons traditionally given for the use of assessors in South African courts.
(b)A further reason for using lay assessors under this category would be based on a recognition that a magistrate may not always be familiar with the full social context of the problem that is before him or her.
(c) Lay assessors may prevent racial or other discrimination by magistrates against the accused and other witnesses.
(d) Lay assessors may implement `justice’ in cases where the formal application of the law may be deemed unjust.
(ii) Ensuring that justice is seen to be done. A lay assessor programme introduced for this reason would focus on the legitimacy of the courts and may be directed to ensuring that the bench reflects the diverse nature of society.
(iii) Including a democratic element in the delivery of justice. In many democracies, the participation of citizens in the judicial system is deemed as important as their participation through elected representatives in the legislature. This can be done through jury systems, lay magistrates or lay assessors. South Africa is unusual in near total domination of the judiciary by legal professionals.

The memo to the Amendment Bill describes the purpose of the lay assessor programme in relatively broad terms. It is to `ensure that the administration of justice stays in touch with the actual community experiences, and to reduce the risk of formal justice losing touch with reality’.

This explanation for the amendments to the Act suggests that the purpose of lay assessors falls under (i) - it is to enhance the quality of justice. But it is more specific than that. It seems to be based on a recognition that magistrates cannot be expected to understand the full context of all the cases that come before them - that there are matters relevant to a proper understanding of cases that are easily ignored or overlooked in decision-making. The participation of lay people in cases is offered as a way of addressing this problem. In other words, the memo suggests that the amendments to the Bill are not merely to `ensure that justice is done’ in the broad sense but to ensure that the particular difficulty of deciding cases in a way that is sensitive to their social context is addressed.

The actual amendments proposed do not facilitate this. Instead they are silent on the purpose of the use of lay assessors. In addition, individual provisions seem to provide for a system of lay assessors which is entirely in the control of individual magistrates and which could serve any number of functions.

The introduction of lay assessors is perhaps the most significant change to the South African court system since the abolition of juries. It must be done in a way that provides clarity on the reasons for using lay assessors and it must be based on a clear set of principles providing a framework for the use of lay assessors.

Moreover, as will become clear from the rest of our submission, the absence of a clear statement of the purpose of using lay assessors has direct implications for the manner of implementation of the lay assessor programme and its day-to-day use.

Recommendation 1: Include a clear statement of the purpose of the lay assessor programme in the Magistrates’ Courts Act.

2. Administration of lay assessor programme
After the elections, the Department of Justice set up a programme to encourage the use of lay assessors in district courts throughout the country. The `model’ which was applied was for a committee to be set up in each magisterial district to administer the lay assessor programme. The committee was to be made up of community leaders from all parts of the community served by the magistrates' court. The committee was to draw up a roster of people who could serve as lay assessors and was to manage a system which permitted these people to assist in trials. In practice this model has been applied in very different ways in different courts.

A critical aspect of the model of administering the lay assessor programme introduced by the Department of Justice is that lay assessors are selected by representatives of the community and not by individual magistrates. As presently worded neither the Act nor the amendment require this. Instead, section 93ter (1) (a) allows a magistrate to summon one or two people `who, in his or her opinion, may be of assistance....’ This means that magistrates must be allowed to choose their own lay assessors.

As it stands, the provision has direct implications for the lay assessor system:
(1) Random selection cannot be enforced. On the contrary, magistrates may choose lay assessors individually and use them as frequently as they wish. This opens the system to the abuse recorded by Van Zyl Smit and Isakow in the use of assessors in the Supreme Court in the early 80s.
(2) The goal of the lay assessor programme suggested in the memo to the Bill cannot be properly realised. Chosen by individual magistrates rather than the community there is a real danger that lay assessors will simply reinforce existing perceptions and will not `keep magistrates in touch with reality’.

If the intention is to permit the Minister of Justice to regulate the lay assessor programme and ensure that it is implemented according to the model that has been used over the past few years, section 93ter (1) (a) needs to be amended. As worded now it would not allow the Minister to use his power to regulate (found in section 93quat) to require a magistrate to choose a lay assessor from a roster drawn up by a community committee.

Recommendation 2: Include the provision suggested in Recommendation 1 and amend section 93ter(1)(a) -
(i) to remove the right to choose lay assessors from individual magistrates; and
(ii)to permit the Minister to regulate the choice of lay assessors in accordance with the Department of Justice’s current model.
Amendment along these lines need not prevent magistrates in all circumstances from choosing lay assessors but should permit the Minister of Justice to regulate the system if he so desires.

(Note: the inclusion in the Act of a general provision describing the purpose of the lay assessor programme as recommended in (1) above is probably essential if Parliament wishes to give the Minister these regulatory powers. In terms of the Constitution Parliament has the power to legislate. This means that the power to make laws (for example by making regulations) can be granted to the executive only within a clear policy framework.)

3. Use of lay assessors in particular cases
The necessarily sparse provisions of the Magistrates’ Courts Act cannot be expected to provide direct answers to all the questions that arise about when lay assessors should be used. However, the Act should provide a framework for the use of lay assessors. At present the Act and the proposed amendments provide virtually no guidance.

Taking into account the proposed amendments, the Act would -
(i) require the use of lay assessors in certain cases (93ter (1)(b)(i) and (ii) - both these provisions cover cases which involve crimes for which imprisonment without the option of a fine is an expected sentence)
(ii) permit the use of lay assessors in other cases.

In deciding whether or not to use lay assessors in the second category a magistrate must consider whether it would be `expedient for the administration of justice’ (section 93ter (1)(a)). Guidelines are given to assist this decision in section 93ter (2)(a):
`In considering whether summoning assessors under subsection (1) would be expedient for the administration of justice, the judicial officer shall take into account-
(i) the cultural and social environment from which the accused originates;
(ii) the educational background of the accused;
(iii) the nature and the seriousness of the offence of which the accused stands accused or has been convicted;
(iv) the extent or probable extent of the punishment to which the accused will be exposed upon conviction, or is exposed, as the case may be;
(v) any other matter or circumstance which he may deem to be indicative of the desirability of summoning an assessor or assessors’.

These provisions give little guidance to magistrates. In particular, the list of factors that a magistrate is to take into account in deciding whether or not to call an assessor is neutral (section 93ter (2)(a)). It lists matters without indicating how they are to influence a magistrate’s decision. For instance, how are `the cultural and social environment from which the accused originates’ and the `educational background of the accused’ relevant. One might assume that the provisions mean that if the social background of an accused or his or her educational background differ from that of the magistrate the magistrate should consider calling an assessor. But the Act does not say this and the memorandum to the proposed amendments suggests that it is not merely the degree of difference between accused and adjudicating officer that justifies the use of an assessor but the inevitable distance between `actual community experience’ and `formal justice’ - whether or not there are cultural or other differences between the accused and the magistrate. The third factor, `the nature and seriousness of the crime’ is equally obscure. The `nature of the offence’ cannot provide guidance, an indication must be given of how the nature of the offence may influence a decision to call a lay assessor. For instance, is prevalence relevant? Do crimes affecting morality like sexual offences demand lay assessors but white collar crimes not? Is the complexity of the offence a factor indicating the need for assessors or suggesting that assessors should not be used?

Recommendation 3: Permit the Minister of Justice to make regulations which provide guidelines on when lay assessors should be used within a policy framework provided by the Act.

4. How should lay assessors be chosen for particular cases?
There is a range of different possibilities for the choice of lay assessors. The Act read with its proposed amendments suggests that magistrates have a free hand. Many other methods are possible: selection could be random along the lines of methods of selection used in jury systems; selection could be from a roster drawn up by the court or by the community etc. The Act needs to ensure that a system of selection can be implemented that is consistent with the reasons for using lay assessors.

Any approach to the selection of lay assessors for particular cases is likely to be difficult and involve a degree of compromise. For instance, if the purpose of using lay assessors is to ensure that the bench is better informed of the social context of a particular case, lay assessors might be chosen from the community concerned and may also be selected because they are from the same racial, language or cultural background as the accused or complainant. But this form of selection places enormous discretion in the hands of the magistrate (or any other person) who selects. Taking lay assessors from the very locality in which a crime is committed also increases the possibility of undue influence being placed on assessors. On the other hand, a totally random use of lay assessors could mean that lay assessors in particular cases are no more informed of the context of a particular case than the magistrate and, in these circumstances, lay assessors may simply reinforce the preconceived ideas of the magistrate. Obviously a system would have to be devised which goes as far as possible to achieving stipulated goals of a lay assessor programme without infringing on any other important principles in the administration of justice.

5. Who may serve as a lay assessor?
Can criteria be laid down for deciding who may be a lay assessor? This question raises two issues:(i) Should lay assessors as a group conform to any particular profile? In other words, should they reflect the age, educational, race, sex etc patterns of South African society? (ii) Are there any necessary qualifications for being a lay assessor?

(i) Should lay assessors as a group conform to any particular race / gender / age/ occupational profile?
At present there is no information available on the overall profile of lay assessors. But the profile of the lay assessors that we surveyed shows distinct differences to the profile of the adult population as a whole. For instance, according to our sample, the proportion of Indian and coloured lay assessors is disproportionate to their share of the general population. Our research suggests that most lay assessors are middle-aged or elderly (in three of the four provinces we studied three-quarters are over 40 years). We were told on a number of occasions that lay assessors `were not permitted to be over 70’. In spite of this 7% of the lay assessors we included in our survey were over 70. Assessors are also not representative of the general population in terms of occupation. Of those we surveyed over half were middle-class (drawn from professions, especially teaching, business or senior management). Only 8% could be considered blue-collar workers.

(ii) Are there any necessary qualifications for being a lay assessor?
Many magistrates that we interviewed said that lay assessors should be literate so that they could take notes during trials. Notes are needed either to jolt memory if a case is adjourned and resumed some time later or to provide reasons for a decision if two lay assessors disagree with the magistrate.

Lay assessors that we interviewed agreed that `involvement in the community’ is necessary for lay assessors. They also generally agreed that `maturity’ and ability to read and write are necessary.

Once again, criteria for lay assessors cannot be determined in the abstract but need to be matched to the reasons for using lay assessors. If enhancing the legitimacy of the system is a central purpose of the programme, one might demand that the profile of lay assessors matched the profile of the population as a whole. If the purpose is to enhance decision-making by increasing the courts’ sensitivity to the social context of cases, one might expect lay assessors to complement magistrates and to be drawn from very different sectors of the population to those from which most magistrates come.

Recommendation 5: Permit the Minister to issue regulations providing guidelines for the selection of lay assessors.

5. Training
Two distinct training issues arise in this context: (i) Should lay assessors be trained in any way and, if so, what training is appropriate; and (ii) what training should magistrates be given to enable them to implement the system properly?

(i) Training for lay assessors
Many magistrates that we interviewed thought that basic training should be provided for lay assessors. Some magistrates attempted to do this themselves, giving lay assessors an introduction to criminal court procedures before they started on the bench and in a handful of courts formal assistance to lay assessors was organised. One or two magistrates required lay assessors to sit in court for a few days to learn the ropes before they acted as assessors. But most lay assessors have to learn on the job. Magistrates remained uncertain of the appropriate extent of training and many recognised that too much training would defeat the purpose of introducing a lay element to the bench.

Lay assessors that we surveyed agreed that some form of training is necessary but there was disagreement about what that training should be.

An initial assessment of the result of our survey suggests that at a minimum basic instruction on court proceedings and the role of a lay assessor is required. Without this lay assessors are entirely subject to the presiding magistrate and often lack self-confidence - lay assessors must be put in a position that enables them to resist attempts by magistrates to undermine the system by silencing them.

Moreover, section 93ter (3)(e) of the Magistrates' Courts Act requires the court to give reasons for its decision in all cases. This means that if two lay assessors overrule a magistrate they must provide the reasons for decision. To do this may require some further training. For instance, in convicting an accused the lay assessors would have to indicate that all the elements of the crime were proved.

Questions relating to other types of training are much more difficult. At present, a small part of magistrates’ training at justice college covers matters of social context. The purpose of this training is to ensure that magistrates understand the full circumstances of cases that come before them. One issue that is canvassed in this programme concerns violence against women and particularly domestic violence. Magistrates are alerted to the battered woman syndrome which leads many battered women to bow to authority and reconcile with their violent partners or to withdraw charges in spite of the fact that a pattern of violence may have developed over many years. Lay assessors are likely to bring the same, entrenched preconceptions to court on such matters as magistrates. This is vividly captured in a comment in one of our interviews:
`A man accidentally broke a widow while drunk at the home of his common law wife; she reported it to the police, and the man was charged with malicious damage to property. The magistrate proposed a prison sentence of nine months, but the assessor suggested that he be set free because the couple would be reconciled by the time they reached the courtroom door.... as the assessor forecast, the couple left hugging each other.’
This anecdote is either an example of the degree of level-headedness that a lay assessor may bring to proceedings or a warning of the dangers of the system. Training magistrates to resist stereotypes and look beyond the surface is a major task. Thought needs to be given to the training lay assessors may need on these matters.

(ii) Training of magistrates
Our survey makes it clear that magistrates need to be better informed about the lay assessor programme. This is probably not a matter for legislation but it would seem appropriate for the portfolio committee to monitor the application of the programme and such monitoring should include a consideration of the adequacy of the training given to magistrates in this regard.

6. Making a lay assessor programme work
The draft Bill introduces two situations in which the use of lay assessors is to be compulsory. It is silent on whether lay assessors should be used frequently or not in other cases. In addition, it provides no method of ensuring that lay assessors fulfil their functions when they are used.

Our survey suggests that many magistrates are deeply opposed to the use of lay assessors and will resist using them. It also revealed a number of techniques adopted by magistrates who are unsympathetic to the system to neutralise the effect of lay assessors. The magistrate obviously has enormous authority on the bench and it is very easy for a magistrate to persuade a lay assessor to defer.

For instance, a few lay assessors reported to us that they do not sit on the bench but that, after being sworn in, they take a place on a chair at the front of the court. (In certain courts there is a genuine space problem on the bench but the instances we refer to did not occur in those courts.) Lay assessors may not be consulted properly before a decision is handed down - this is more likely to occur if only one lay assessor is sitting. Any questions the lay assessor wishes to ask may be vetted by the magistrate and then asked by the magistrate. Magistrates may inform lay assessors that a matter relates to `law’ rather than `fact’ and thus exclude any contribution from the assessors.

Many of these matters will not be clear-cut and the grievances of assessors may be misplaced. Nevertheless, there is clearly ample opportunity for magistrates to minimise the impact of assessors and some attempt needs to be made to control this. Training for lay assessors would help to address the problem as it would increase their understanding of their role and their confidence. Lay assessor committees and formal grievance procedures are probably also necessary. In this way lay assessors could discuss problems and, if necessary, raise them formally.

COMMENTS ON TECHNICAL ASPECTS OF THE DRAFTING OF THE PROPOSED AMENDMENTS

1. Section 34: This section anticipates the participation of lay assessors in proceedings on the application of `either party’. It states that they will `act as assessors in an advisory capacity’. It is not clear how this relates to the provisions of section 93ter. Section 93ter anticipates lay assessors who become members of the court and who may overrule the presiding magistrate. This is not participation in `an advisory capacity’. The relationship between the provisions needs to be clarified.

2.1 Section 93(1)(b): The amendment bill proposes replacing this provision with a provision making the use of lay assessors compulsory in certain cases. The new provision reads:
(b) The presiding officer shall be assisted by two assessors at a hearing of a person who is charged with an offence in respect of which -
(i) the infliction of bodily harm on another person constitutes an element, unless the prosecutor informs the court that, in his or her opinion, the offence is not of such a nature that the accused person would, upon conviction, be liable to imprisonment without the option of a fine; or
(ii) the prosecutor informs the court that, in his or her opinion, the offence concerned is of such prevalence in the jurisdiction of the court or of such a serious nature that the accused person would, upon conviction, be liable to imprisonment without the option of a fine.

It should be noted that the use of lay assessors is effectively subject to the discretion of the prosecutor under para (ii). There is no requirement that the prosecutor inform the court of the factors mentioned there.

2.2 The structure of the proposed clause suggests that lay assessors are compulsory in two types of case (reflected in para (i) and para (ii)). In fact, lay assessors will be compulsory in three types of case - para (ii) combines cases in which `the offence concerned is of such prevalence in the jurisdiction of the court’ that a prison sentence is likely and cases in which the offence is `of such a serious nature’ that a prison sentence is likely. (The criterion used for dividing (b) into two paragraphs is whether or not the court relies on information from the prosecutor.) The provision would be clearer and easier to understand if it identified each of the three types of case separately.

2.3 Paragraph (ii) is confusing in another way - it suggests that the use of lay assessors will become compulsory when an offence is prevalent only if the prosecutor claims that imprisonment without the option of a fine will result from the fact of the prevalence of the offence. It is difficult to envisage what offences would fall under this head. There must be very few instances in which prevalence alone (that is separate from the seriousness of the offence, the record or age of the accused etc) could be reason for imprisonment without the option of a fine. Indeed the law relating to sentencing permits very little weight to be placed n prevalence in determining sentence. This problem would be addressed if the provision required the use of two lay assessors if (i) the offence was prevalent; and (ii) in the opinion of the prosecutor if convicted the accused would be liable to imprisonment without the option of a fine.

2.4 The provision could be recast as follows:
(b) The presiding officer shall be assisted by two assessors at a hearing of a person who is charged with an offence in respect of which -
(i) the infliction of bodily harm on another person constitutes an element, unless the prosecutor informs the court that, in his or her opinion, the offence is not of such a nature that the accused person would, upon conviction, be liable to imprisonment without the option of a fine; or
(ii) the prosecutor informs the court that, in his or her opinion, the accused person would, upon conviction, be liable to imprisonment without the option of a fine and the offence concerned is -
(aa) prevalent in the jurisdiction of the court; or
(bb)very serious.

3. Section 93ter(2)(a): For consistency with the rest of the section, the last line of this subsection should be amended to read `he or she’

4. Section 93ter(5): This provision reads awkwardly. At first glance it seems as if the magistrate must consider `the arguments put forward by ... the interests of justice’. This would be avoided by reorganising the wording:
(5) If an assessor dies or in the opinion of the presiding judicial officer becomes unable to act as an assessor or is absent at any stage before the completion of the proceedings concerned, the presiding judicial officer may, after due consideration of the interests of justice and of the arguments put forward by the accused person and the prosecutor and direct that -
(a) the proceedings continue before the remaining member or members of the court; or
(b) the proceedings start afresh.

5. Section 93quat: Does this mean that lay assessors appointed under section 34 would not be subject to the Code of Conduct and would not be entitled to remuneration?