THE LAW SOCIETY OF THE CAPE OF GOOD HOPE
29 April 1998
Magistrate's Courts Amendment Bill
At the request of the Society, members of its Magistrate's Courts and Criminal Law & Procedure committees considered the amendments contemplated in the abovementioned Bill in respect of section 34 and section 93ter of the principal Act.
The following comments are submitted for the consideration of the Justice Portfolio Committee -
1. AMENDMENT TO SECTION 34
This section falls under the section of the Magistrate's Courts Act, 1944, which deals with civil procedure.
The amendment contemplates the deletion from section 34 of the words "of skill and experience in the matter to which the action relates."
Committee members caution against the amendment saying that it contemplates the deletion of requirements which are essential to the good administration of justice. The ambit of civil litigation is wide and any provision for the appointment of assessors who may lack appropriate skill and experience will only operate to defeat the purpose of their involvement, particularly where matters are complex.
2. AMENDMENTS TO SECTION 93TER
The motivational notes to the Bill indicate that it is the Justice Departments intention to extend community participation in criminal matters.
Whilst the amendments are consistent with this declared intention, it is interesting to note that section (1)(b) deals only with the infliction of bodily harm and the prevalence of an offence within the jurisdiction of the court, of such a nature that the accused is liable to be imprisoned without the option of a fine.
Committee members believe that the above amendment is potentially problematic in that it contemplates that prosecutors will be responsible for informing the court that, in his/her opinion, such circumstances exist. Members ask whether it is appropriate to so burden prosecutors.
Section 5 is appropriate, given the practical problems that have arisen recently.
Committee members believe that, in addition to the code of conduct provided for in section 93quat, the phrase "and qualification" should be inserted therein. This amendment would serve to assure the general public, the accused and the courts that all assessors subscribe to a code of conduct, have the necessary experience and hold an appropriate qualification. It is suggested that the ambit of the required qualification be formulated so that there is no doubt that assessors will assist the courts.
The Society trusts that the above comments will assist the Justice Portfolio Committee.