SUMMARY OF COMMENTS ON THE MAGISTRATES COURTS AMENDMENT BILL B 33-98] (ASSESSORS)

A. Comments were received from the following parties/persons:
Law Society of the C ape of Good Hope - MCA1: 1a
Mr S M Molotsi - MCA3
Magistrate: Klerksdorp (MR D J Nel) - MCA4
JOASA (Mr D 3 Nel) - MCA4a
Western Cape Lay Assessors Association (Mr Isaacs) MCA5
South African Institute of Race Relations (Mr Schonteich) MCA6
Mr J H Niemand - MCA7
JOASA (Mr D vZ van der Merwe) - MCA8
Prof C Murray/Dr J Seekings - MCA9
Pastor James Dowd - MCA10

B. Summary of comments:
1. Law Society of the Cape of Good Hope - MCA 1; 1 a
1.1 The proposed amendment to section 34 of the principal Act is opposed, as "...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."

1.2 On page 2 in lines 18 and 19. "or determination of a sentence" should read "and determination of a sentence". so as to ensure that assessors can not be summoned in respect of a sentence if they had not attended the trial as well.

1.3 It is questioned whether it is appropriate to burden prosecutors with the duty to inform the court whether or not the appointment of assessors will be required according to the circumstances of a case.

1.4 On page 4, in line 37, it is probably inappropriate to stipulate that the presiding officer ...shall give his or her reasons" (for a decision on whether a matter for decision is a matter of fact or of law), as reasons will normally be given at the time of formulating a judgment.

1.5 The Society has "grave reservations" in respect of assessors being able to out-vote the magistrate in regard to what would in fact be a verdict.

1.6 Regarding the new section 93quat, provision should also be made for the Minister to make regulations regarding the qualifications of assessors.

Annexure B to MCA1a contains the views of the Northern Region of the Law Society of the Transvaal, as set out by attorney E M Makgoba. It clear from this memorandum that the Circle Council of the said Region is vehemently opposed to the Bill as a whole - they have "learnt with shock and disapproval" of the Bill, and "reject the proposed Bill and hope that the Government will give us a hearing on this sensitive issue.

2. Mr S M Molotsi - MCA3
2.1 Regarding paragraph (b) in line 31 on page 4, the magistrate should not be entitled to sit alone for the purpose of deciding whether or not a matter is a matter of fact or of law, in other words, the assessors should not be required to leave the court when such a matter is to be decided.

2.2 Regarding the proposed subsection (5) (c) (page 6, line 1), this provision should be deleted as no trial should start afresh in the event of the death of an assessor.

3 Magistrate: Klerksdorp (Mr D J Nel) -MCA4
3.1 Mr Nel's comments consist of a series of questions. It is clear from these questions that he holds the following views:
(a) It is not possible for magistrates to lose touch with reality (with reference to the Objects Memorandum).

(b) It is not in the interest of justice for lay assessors to be able to overrule magistrates on questions of fact.

(c) It is unfair towards an accused person to be tried by lay assessors.

(d) The constitutional right to a fair trial may be infringed by involving lay assessors.

(e) It is not possible to make decisions on matters of fact without applying the rules of evidence.

(d) A decision on a matter of fact is a matter of law.

(e) An accused person who was "wrongly" imprisoned as a result of faulty fact-finding by assessors might institute a claim for damages against the Department of Justice.

(f) An accused person should have the right to choose whether or not he or she wants to stand trial with or without assessors.

(g) The Bill should set out a procedure for the presiding officer to follow where the assessors clearly erred in their fact-finding decision.

(h) The general conviction amongst magistrates and lawyers is that the Bill will in no way improve our judicial system.

(i) The volume of cases in the courts is such that magistrates do not have the time to teach the application of the law to assessors.

(j) Magistrates cannot be expected to be voluntarily "castrated" by the proposed subsection (3)(d) (page 4, lines 39 - 44).

3.2 Mr Nel further submits that. should subsection (3)(d) be proceeded with, it should be amended to read as follows:
Upon all matters of fact the decision or finding of the majority of the members of the court shall be the decision or finding of the court: Provided that the presiding judicial officer is part of the said majority and that whenever there is a clash between the decision or finding of the lay assessors and those of the presiding officer, the decision or finding of the latter shall prevail.

4. JOASA (Mr D J Nel) -MCA4a
MCA4a appears to be a covering letter from Mr Nel to JOASA. It does not contain any comment on the Bill.

5. Western Cape Lay Assessors Association (Mr I Isaacs) - MCA5
The above Association makes the following proposals:
a. 1 On page 4, in line 4: "bodily harm" should be clearly defined so as to also include verbal abuse. drugs, threats etc.

a.2 Prosecutors should not have discretionary powers to decide whether assessors should be used.

a.3 On page 4, in line 41. after "judicial officer" to insert "due to the unavoidable absence of the second assessor".

a.4 Paragraphs 2.3 to 2.8 of the Association's submission are based on an earlier draft of the Bill. The recommendations contained in these paragraphs will, however, be relevant to consider when regulations in terms of the Bill are considered.

6. South African Institute of Race Relations (Mr M Schonteich) - MCA6
6.1 Given their power to overrule magistrates in all factual disputes, assessors should not be compulsory. Compulsory lay assessors detrimentally affect the independence of the judiciary at magistrates' courts level.

6.2 The compulsory nature of lay assessors is also unfair to accused persons, who have a constitutional right to a fair trial.

6.3 The assessor system proposed by the Bill is unfair to the victims of crime. The magistrate is required to, amongst others, take into account "the cultural and social environment from which an accused originates". This may be unfair to a complainant who comes from a different cultural and social environment from that of the accused.

6.4 The Bill is not clear on the selection procedure for assessors. and how presiding officers will go about selecting assessors for their courts. The defence and the prosecution must be allowed to make an input in the select ion of assessors. The selection procedure should not be left up to the Minister of Justice to decide by way of regulation.

6.5 Many assessors will be at risk of being intimidated into acquitting guilty accused. Conversely, there is a risk that populist pressure will be placed on assessors to convict persons who are innocent.

6.6 Assuring the attendance of assessors at all stages of the proceedings will inevitably lead to delays in the finalisation of cases.

6.7 The implementation of the system proposed by the Bill will have substantial costs implications for the state.

6.8 In conclusion it is stated that:
There is no need for the 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.

7. Mr J H Niemand -MCA7
Mr Niemand supports the principle contained in the Bill wholeheartedly.

8. JOASA (Mr D vZ van der Merwe) MCA8
8. 1 The above commentator is strongly opposed to the provisions of the Bill, on the following grounds:
(a) The greatly increased risk that innocent accused be found guilty by two assessors, or guilty accused be found not guilty by two assessors (Gambushe case.)

(b) The enormous potential and/or actual prejudice especially to undefended accused in the event of wrong convictions.

(c) The enormous potential and/or prejudice to the family of victims of crime in the event of the acquittal of guilty persons.

(d) The untenability of allowing a majority of lay assessors to overrule a competent district or regional court magistrate on matters of fact.

8.2 In conclusion it is stated that magistrates should be allowed an unfettered discretion to appoint assessors. The compulsory appointment of two lay assessors would not be in the interest of the administration of justice.

9. Prof C Murray / Dr J Seekings - MCA9
9.1 The above commentators conducted a research project on the expansion of the lay assessor system between November 1996 and May 1997. They are at present completing their full report. and their submission is based on a preliminary appraisal of the results of their study.

9.2 The key findings of their research are the following:
(a) The introduction of lay assessors enhances the operation of the judicial system.

(b) The operation of the system has been marked by a range of logistical problems but solutions to most of these have been found by magistrates and lay assessors themselves.

(c) Magistrates and other legal professionals are sceptical of, if not opposed to, lay participation in the judicial system. Even when using lay assessors, magistrates are able to limit the role assessors play in court.

(d) Magistrates who are initially sceptical of the value of the system may change their views after using lay assessors.

9.3 The following recommendations are being made:
(a) include a clear statement of the purpose of the lay assessor programme in the principal Act.

(b) Magistrates should not be allowed to choose lay assessors (i.e. to decide who the assessors for a particular case shall be).

(c) The Minister of Justice should have the power to, by regulation, provide guidelines on when lay assessors should be used, within a policy framework provided by the principal Act.

(d) The Minister should be empowered to, by regulation, provide guidelines for the selection of lay assessors.

9.4 Regarding the specific provisions of the Bill, the following recommendations are being made:
(a) The relationship between the assessors mentioned in clause 1 (section 34) and clause 2 (section 93ter) should be made clear.

(b) On page 4. from line 9. subparagraph (ii) should be recast to read as follows:
(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 -
prevalent in the jurisdiction of the court: or
very serious.

(c) On page 4, in line 57, after "consideration" to insert "of the interests of justice and".

(d) On page 4, in line 58. to omit and the interest of justice".

(e) Regarding section 93quat. the question is raised whether assessors referred to in section 34 are excluded from the Code of Conduct and remuneration referred to in this section.

10. Pastor James Dowd -MCA1O
10.1 Pastor Dowd made a submission on behalf of the District Assessors Committee, Pinetown. He is of the view that. in respect of sentencing, assessors should not be acting in an advisory capacity - they should have a real say in the sentencing process.

10.2 The submission also contains some notes which may be of assistance when drafting the regulations pertaining to assessors.