SOUTH AFRICAN INSTITUTE OF RACE RELATIONS
Magistrates' Courts Amendment Bill


1. INTRODUCTION
The South African Institute of Race Relations (the Institute) does not object to the use of lay assessors to extend community participation in criminal trials. This is not new to our law, and has occurred for some time.

The Institute's objection centres around a provision contained in the Magistrates' Courts Amendment Bill (the Bill), which will make the use of lay assessors compulsory under certain circumstances, and the fact that assessors will be in a position to overrule presiding officers on most issues. Moreover, the Institute is concerned that a system of compulsory assessors will be costly and time consuming to an overburdened and under-resourced justice system.

South Africa is a democratic constitutional state. Through elected representatives, citizens and the community have an impact on the laws which are passed by the legislature. As a result lawmakers pass laws which tend to meet the needs and requirements of their constituents. For example, in 1997 Parliament tightened the existing bail legislation and introduced minimum sentences legislation. A reason for doing so was public pressure for tougher laws against criminals.1

Parliament (within the confines of the constitution) has the authority to pass laws which the courts must apply. Parliament receives its authority from the people who elect its members. To limit Parliament's extensive powers, the constitution protects the independence and impartiality of the courts.2 In a liberal democracy, based on the separation of powers, no group should have the power to both make laws and adjudicate upon them. There is a danger that the Bill will weakening the independence and impartiality of the judiciary at magistrates' court level.

2. PRESENT POSITION
2.1 Lay assessors in South African law
The use of lay assessors to assist presiding officers in the trial of a case, or in the determination of sentence, is not new.3 In fact, in late 1994 an Assessors Co-ordinating Committee was appointed to oversee pilot projects aimed at increasing the use of lay assessors in criminal matters in magistrates' courts.4

Assessors appointed in terms of current legislation have similar powers to those proposed in the Bill.5 However, thus far, lay assessors have been optional. Presiding officers have had the choice to appoint one or two assessors, if they considered that this would be 'expedient for the administration of justice'.6

Only where accused persons are standing trial in the court of a regional division on a charge of murder, are presiding officers obliged to appoint two assessors. At the accused's request, presiding officers can, however, dispense with such assessors.7 From the available evidence it seems that the majority of accused request that their murder trials be held without assessors.8

2.2 Community feelings and the law
The use of witness testimony to afford the courts the opportunity to gauge the feelings and views of the community is also not new. The Criminal Procedure Act makes provision for courts to subpoena, at any stage of criminal proceedings, any person who can assist the court to come to a just decision in a case.9 If a court should find it necessary to be informed of the feelings of the community on any particular issue, the court can subpoena a person or persons to give evidence in this regard.

Moreover, in terms of present legislation, presiding officers have the choice to use assessors to assist them in ascertaining, inter alia, the views of the community.10

If relevant to their case, the prosecution and the defence may also call witnesses and present evidence to reflect the views of the community.11 In bail applications and for the purpose of sentence, this is often done.12

With this system presiding officers are afforded the opportunity to listen to all witnesses called by the adversaries in a trial to reflect communities' feelings on various issues. The safeguard with this system is that presiding officers are not bound by the views of the community. Rather, presiding officers can weigh up the evidence of the various 'community witnesses' and come to a just decision by applying the law impartially.

3. OBJECTIONS TO THE BILL
3.1 Compulsory nature of assessors
The Bill proposes to make the use of assessors compulsory at the trial stage of court proceedings under one of the two following circumstances. Firstly, if the accused person is charged with committing a serious violent crime and is, in the opinion of the prosecutor, upon conviction liable to imprisonment without the option of a fine.13 Secondly, where, in the opinion of the prosecutor, the offence 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.14

If the above circumstances are present, every presiding officer must be assisted by two assessors who become members of the court. In any dispute of fact, the decision or findings of the majority of the court's members shall be the decision or finding of the court.15 At magistrates' courts level virtually all disputes centre around disputes of fact rather than law.16

The Institute submits that given their power to overrule presiding officers in all factual disputes, assessors should not be compulsory. Compulsory lay assessors who can affect the outcome of a trial and determine an accused person's guilt or innocence, detrimentally affect the independence of the judiciary at magistrates' court level.

The compulsory nature of lay assessors is also unfair to accused persons. Every accused has a constitutional right to a fair trial.17 If an accused wants to be tried solely by a presiding officer without lay assessors, he should have the right to choose this. As indicated above, most accused persons charged with murder currently seem to follow this path.

Moreover, the assessor system proposed by the Bill is unfair to the victims of crime. The law will require presiding officers to consider a number of factors when deciding whether to appoint assessors or not. These factors are, inter alia, 'the cultural and social environment from which the accused originates'.18 Taking such a factor into account may be unfair to a complainant who comes from a different cultural and social environment from that of the accused.

3.2 Practical considerations
3.2.1 Selection procedure
The Bill is not clear how: (1) assessors are to be selected from among the general population; and, (2) how presiding officers will go about selecting assessors for their court from those short-listed by the initial selection procedure.

Members of the community have strong feelings on crime, especially violent and other prevalent crime. Moreover, in multi-ethnic and multi-racial societies many people unfortunately stereotype perpetrators and victims of crime in terms of, inter alia, ethnicity, race, age, and social background. It is for this reason that jury selection is an important and often drawn out part of a trial in the United States.

In South Africa's racially and socially divided society selection criteria are bound to cause disputes where the accused and his victim come from different socio-economic and ethnic backgrounds. What might be representative of 'the community' for one person, might not be the case for someone else.19

The procedure for the selection of assessors must be transparent and fair. The defence and the prosecution must be afforded an opportunity to make a substantial input in the selection of assessors.

The credibility of the courts will be undermined if assessors are selected in an arbitrary manner. Presiding officers are trained to be impartial; it is their duty to be unbiased. This is not the position of lay assessors. Their purpose is not to foster the impartiality of the courts, or indeed to apply the law, but to 'extend community participation' in trials.20

The way the selection procedure is going to function should not be left up to the minister of justice to decide by way of regulation, as the Bill seems to do.21 The Bill should be clear about the selection procedure for assessors, and the role of the defence, the prosecution, and presiding officers in such a selection.

3.2.2 Intimidation
Presiding officers earn an above average income. They are consequently not reliant on public transport, and live in areas where police protection is relatively good. Presiding officers are also familiar with the law, the operation of the law, and the rules of evidence. An accused, his friends, or a member of the public attempting to intimidate a presiding officer is likely to be unsuccessful for these reasons.

Lay assessors are in a different position. They will be selected because they live in the same community as that of the accused. Many will also be unemployed people, (who have the time to serve as assessors), with a limited amount of formal education. Reliant on public transport, and resident in areas where police protection is less than adequate, many assessors will be at risk of being intimidated.22 This will open the door for criminals - especially criminal gangs and syndicates - to intimidate lay assessors into acquitting guilty accused.

Conversely, there is a risk that populist pressure and a highly charged atmosphere against crime and criminals in a community, will unduly place pressure on assessors to convict accused persons who are innocent.23

3.2.3 Attendance
Courts which have made use of the lay assessor system in the past have encountered numerous practical difficulties. Trials are often postponed because the accused, his witnesses, or state witnesses fail to appear in court on a trial date. Two assessors per trial will exacerbate this situation. At the Johannesburg Magistrates' Court, some 7 000 trials are standing over from 1997, to which are added 1 000 new cases every month. It is a mammoth logistical task for the police to subpoena all the state witnesses involved in these trials. Assuring the attendance of assessors will further stretch limited state resources.

The Bill makes provision for the non-attendance of lay assessors at court.24 However, should an assessor become unavailable before the completion of the proceedings, the matter may only continue after the presiding officer has considered the arguments put forward by the defence and the prosecution - a time consuming procedure. In terms of the present Magistrates' Courts Act, which has a similar provision in this regard, the High Court has been loath to allow the continuation of a trial without the attendance of traceable assessors.25

3.2.4 Costs
The Bill does not specify how much assessors will be paid. Rather the minister of justice, in consultation with the minister of finance may, by way of regulation, determine the payment of allowances. Presently assessors are paid in the region of R100 a day. At this rate of pay it can be estimated that compulsory assessors will cost the state in the region of R16m a year.26 (In early 1998 public prosecutors went on a go-slow because the Department of Justice did not have R15m required to cover prosecutors' overtime payments for the remaining three months of the financial year.)

There are also a number of indirect costs to consider. Assessors will require offices, telephones and stationery. They will require space on the bench so as to sit with presiding officers. They will need a microphone so that their questions and comments can be recorded for transcription purposes. Presiding officers will need to consult with assessors to discuss any disputed points raised during a trial. If assessors are uncomfortable in the language of the presiding officer, the services of additional interpreters will have to be made available for this purpose.

Presiding officers give reasons for their judgments. In terms of the Bill, 'it shall be incumbent on the court to give reasons for its decisions'.27 In instances where there is a disagreement between the presiding officer and the assessors, the former will have to incorporate all opinions in his judgment. This will take up additional time of presiding officers, leading to further expensive delays in the justice system.

4. CONCLUSION
Lay assessors are at best superfluous, and at worst a threat to the independence of magistrates. Magistrates have the theoretical knowledge, training and practical experience which place them in the best position to reach a decision on the basis of all the evidence which is presented in a trial. There is nothing a lay person can contribute in such a situation.

If presiding officers, or accused persons, or prosecutors feel that the voice of the community should be heard in a trial or bail application, then this can be done in terms of present legislation.

There is no need for new legislation which places judicial independence in jeopardy. Moreover, the compulsory assessor system envisaged in the Bill will lead to a more expensive and protracted judicial process, causing further delays and postponements in a system which is already close to breaking point due to a lack of funds and capacity.

Compiled by Martin Schönteich
Parliamentary Affairs Manager
South African Institute of Race Relations
14 May 1998