CRIMINAL PROCEDURE AMENDMENT BILL (B 7-99) I refer to the above and the press statement calling for comments by 20 February 1999. We offer the following comment:-
The LSSA strongly disapproves the proposal that sections 302 and 303 of the Criminal Procedure Act 51 of 1977 be repealed and supports the proposed amendment of Section 304(1). The LSSA understands that the latter section is intended to replace the repealed sections 302 and 303 but recommends the inclusion of section 304(1) in addition to the aforementioned sections.
The LSSA adopts the attitude of I. Maisels QC, in his book Memoires by Maisels QC edited by K Maisels and B Trish p 232 -
"A great deal of my time was occupied in dealing with cases that came before me as a result of the 'automatic review' procedure then in force. The position was that if a magistrate sentenced an accused person to imprisonment of, I think, a month or -more, and there was no appeal, the matter would be sent to a judge of the High Court for review. If the judge was satisfied that a substantial justice has been done, he would confirm the conviction or sentence. If he was not satisfied he would refer the matter to the Attorney General raising the difficulty which he had in confirming the magistrate's verdict. If the Attorney General had the same difficulty as the judge, the conviction of the sentence, or both, would be set aside. If the Attorney General did not agree with the judge's prima facie view, the matter would be set down for argument and decided by the High Court. This automatic review practice was in my opinion an important one in the administration of justice. It has to be borne in mind that many of the magistrates, especially those stationed in rural areas, had little or no access to authoritative text books or to law reports, and might easily fall into error. In addition, in many of these cases, the accused person was undefended or not properly defended and the review system was undoubtedly of great value and importance." (Our underlining)
Should the Portfolio Committee require anyone to appear before it to expand on this view, we will gladly arrange it.
ARNO BOTHA
DIRECTOR: PROFESSlONAL AFFAIRS
SUBMISSIONS BY THE ASSOCIATION OF LAW SOCIETIES THROUGH THE CHAIRMAN OF THE CRIMINAL PROCEDURE COMMITTEE OF THE LAW SOCIETY OF SOUTH AFRICA
In amplification of the memorandum forwarded by the Law Society of South Africa, may I make the following points:-
1. As a fact because of developments in the Department of Justice, there are magistrates and prosecutors presently in these roles with less experience.
2. Whilst legal aid is available and more matters are subject to representation, there are nevertheless many accused left (at times ill-advisedly) to defend themselves.
3. Also, many persons who represent the accused via legal aid often lack court experience.
4. Whilst being aware of the pressures on the High Court judges it appears that with the provisos of Section 302 related to quantum and experience and representation, that there should not be a large number of review cases. In any event with our growing society there would be a natural progression of such increase and in all cases this would mean increased staff insofar as magistrates and prosecutors are concerned and additional judges.
5. Review has always been available on the basis of representations in writing through the legal representatives of the accused.
6. It may appear (and I cannot be sure), that the highest percentage of review cases may emanate from small outlying districts where the judicial officers, may well not be overly experienced.
7. In terms of para. 4 of the motivation to the bill, it is clear that an aspect of expenditure manifests itself again.
8. It is the view of the Attorneys profession that justice procedure should not be shackled, based on the cost aspect because - at what price justice?
9. The review procedure as it exists is the safety valve to protect the community.
10. Perhaps the preferred answer may well be to raise the limitations dealing with matters that have to go on review and as provided for in Section 302.