JUDICIAL OFFICERS ASSICATION OF SOUTH AFRICA
COMMENTARV REGARDINO THE PROPOSED AMENDMENT OF SECTION 93 TER OF ACT 32 OF 1944 ("THE ACT")
Ad subsection (1A) of section 93 ter
Due to limited time it seams appropriate to restrict the present comments mainly to the proposed introduction of subsection (1A) of section 93 ter of the Act.
Comments were previously offered by judicial officers at the Pretoria Magistrate's Office (and of course elsewhere) to an earlier proposed draft amendment of the Act and accompanying draft regulations.
Since the principles then formulated in one of the comments are still in force and applicable to the present discussion it is incorporated hereto as Annexure "A".
The proposed insertion of subsection (1A) to the Act is unfortunate (or at least premature) and militates against the following considerations mentioned and discussed hereafter namely:
(1) The greatly increased risk that innocent accused be found guilty by two assessors, or guilty accused be found not guilty by two assessors. An example of the first mentioned category is to be found in the case of the State V Gambushe [1997(1) SASV(N) p 638] in which the appellant was tried on two murder charges in the regional court in Newcastle, Kwazulu Natal. The regional magistrate was assisted by two assessors in terms of section 93 ter of the Act. The two assessors accepted the evidence of a single witness in the case. On the contrary the regional magistrate, applying the cautionary rules of practice, pointed to the unsatisfactory parts in the evidence which made it unsafe to rely on. Since the regional magistrate was bound by the majority he had to deliver a judgment of guilty on both counts.
On appeal judge Hurt (with whom judge Thirion concurred) pointed to the fact that there is a vast difference between the high courts and the magistrate courts in this regard in the sense that judges are assisted by assessors, who are appointed for their expertise in the law of criminal procedure and their experience in the science of evaluating and analysing the testimony of witnesses, whereas magistrates are assisted by lay assessors who by their very appointment do not have such expertise (see page 643c-f of the report).
Judge Hurt expressed himself further as follows:
'As I understand the background to this amendment [section 1 of Act 118 of 1991] to the Act concerned, it was contemplated that the assessors would be drawn from local 'pools' of community members who are regarded as having some social and community status. There is no selection criteria based on legal or procedural knowledge or experience or expertise. Although their experience as members of the community may be of considerable assistance in the enquiry pertaining to sentence of an accused person, it is by no means clear that, in the average situation, they will be able to give the presiding officer any real assistance in reaching a decision as to the guilt or innocence of an accused person. Hopefully I am being unduly pessimistic in this regard but I am compelled to say that the particular case with which this appeal is concerned gives me no encouragement whatsoever" [p 643 g - i].
In casu on appeal the court found that the finding of the majority was wrong and that the regional magistrate had justly found that the evidence of the single witness was unreliable and could not form the basis for a proper conviction on the two main charges. Accordingly the appeal was upheld and the convictions and sentences on both charges were set aside by the court.
An example of the second category referred to above (in the heading under (1)) is to be found in a case disposed of in court O Pretoria in a maintenance matter [the reference not reported though, is the State v Liebenberg]. In this case the accused had duty paid his maintenance In terms of a supreme court order but he had failed to register (and/or pay for medical expenses) his son on his medical scheme as required by the same court order. The two assessors in court O found that the accused, had fully complied with the order since he had duly paid maintenance.
The magistrate being in the minority had to acquit the accused. Afterwards one of the assessors wrote a note to the magistrate conceding that he was right and they were wrong. The damage had been done and an injustice had occurred. It should be noted, that the specific two assessors had been employed on a daily basis by the particular magistrate and that the author of the note (see note attached) to the magistrate had already then been used for a year or more in the court.
The two examples cited above are but two instances that can be readily referred to. One wonders how many other instances will come to light if a proper enquiry was conducted.
(2) The enormous potential and/or actual prejudice especially to undefended accused in the event of wrong convictions
In the envisaged subsection (1A) amendment the assistance of two assessors are obligatory in violent crimes (involving bodily injury) or crimes of a serious nature prevalent in a community. In both categories of crime the additional requirement being that the state prosecutor informs the court that the accused would in his opinion be liable to imprisonment without the option of a fine on conviction.
In the case of wrong convictions, at present, resulting in imprisonment the fate of accused persons would differ in the district and regional courts.
Sentences of more than three months imprisonment imposed by magistrates (with or without assessors) with less than seven years actual service since appointment is subject to automatic review whereas sentences of more than six months by magistrates (sitting with or without assessors) are subject to automatic review.
On the other hand the sentences of imprisonment by regional magistrates (sitting with or without assessors) are not subject to automatic review.
It is indeed frightening to contemplate the situation, where an undefended accused (not being aware of his right of appeal) be wrongly convicted and sentenced to say ten years imprisonment (the present maximum per charge in the regional court) by the majority of the court (the two lay assessors) sitting with a regional magistrate in terms of the proposed subsection (1A) of the Act.
(3) The enormous potential and/or actual prejudice to the family of victims of crime in the event of the acquittal of guilty persons
These situations occur when inexperienced and/or incompetent persons are called to give a proper verdict on the evidence and fail to do so.
Apart from shattering and undermining the confidence of the general public in the administration of justice the acquittal of guilty persons is no deterrent whatsoever to criminals or would-be criminals. Such a situation is totally undesirable given the present crime situation in the country.
Not to mention the demoralizing effect such acquittals have on all who are involved in the administration of justice amongst others the police force, prosecution and even the judiciary.
(4) The untenability of allowing a majority of lay assessors to overrule a competent district or regional court magistrate on matters of fact
The science of analysing and weighing the evidence of witnesses calls not only for a sound knowledge of the law of evidence and criminal procedure but also for practical experience gained in court subject to judicial control (e.g. appeals, automatic reviews and reviews).
CONCLUSION
The proposed insertion of subsection (1)(C) [training of assessors] of section 93 quat is a judicial recognition of the plight of lay assessors and affords strength to the arguments addressed in paragraph (1) - (4) supra.
The submission is that the proposed insertion regarding the training of assessors is salutary and a step in the right direction.
However the future training of lay assessors is no safeguard at present against unwanted wrong judgments due to the ineptitude of lay assessors.
In view of the preceding arguments it is respectfully submitted that magistrates should be allowed an unfettered discretion to appoint an assessor or assessors to sit with them in criminal trials or decide on an appropriate sentence. And finally that the compulsory appointment of two lay assessors presently in certain criminal cases would not be in the interest of the administration of justice.