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JUSTICE PORTFOLIO COMMITTEE
10 JUNE 1998
MAGISTRATES’ COURTS AMENDMENT BILL [B33-98]: HEARINGS
Documents handed out:
Magistrates' Courts Amendment Bill [B33-98]
Law Society of the Cape of Good Hope
Judicial Officers Association of South Africa (JOASA)
South African Institute of Race Relations
Judicial Matters Amendment Bill [B30-98]
Western Cape Court Lay Assessors Association
Prof. Christina Murray, University of Cape Town
Mr Norman Schnitzer: Law Society of the Cape of Good Hope
Currently assessors are, almost without exception, retired presiding officers attorneys etc. - they are people whom the community can see are qualified in legal matters. In terms of the bill people may become assessors who are not qualified in legal matters whatsoever. This could result in the public losing faith in the justice system.
Accused persons should have the right to select an assessor. The only exception should be where presiding officers need the assistance of expert assessors.
Ms DP Jana (ANC) asked Mr Schnitzer if assessors would be more acceptable to him if they had some minimum qualifications. Mr Schnitzer said that they would. At a minimum they would have to have a high standing in the community; no previous convictions; experience of social problems in the community; and, they must be able to understand judicial concepts such as hear-say, the different elements of an offence, etc.
Ms Jana further asked whether a jury system would receive much support in South Africa. Mr Schnitzer doubted this as other countries (which have jury systems) do not have communities which are as cosmopolitan and heterogeneous as is the case in South Africa.
Mr G Solomon (ANC) asked whether lay assessors would strengthen the hands of magistrates, and thereby have a positive effect on the crime rate. Mr Schnitzer did not think so. He argued that the problem with crime lies in the hands of the police. The foundation of the criminal justice system (i.e. the police) is weak, which is the cause of the high crime rate. The problem does not lie at magistrates’ courts level.
Mr Andre le Grange: Judicial Officers Association of South Africa (JOASA)
Prosecutors too often neglect to call members of the community as witnesses to support the state’s argument for a tougher sentence.
Ms L B Ngwane (ANC) asked whether it would be possible to give lay assessors ad hoc training at the beginning of every case. Mr le Grange agreed that this is what should happen. However, it does not occur very frequently, as this would cause delays in the judicial process.
Mr Martin Schönteich: South African Institute of Race Relations
Mr Schönteich said that South African Institute of Race Relations had a principled objection to the Bill in that it undermines the independence of the judiciary at magistrate courts level. Its other objections were the costs of a lay assessor system, the potential intimidation of lay assessors as well as the delays that such a system would incur in the judicial process.
Ms Jana asked whether it was correct that most accused did not want to have lay assessors presiding over their cases. Mr Schönteich argued that lay assessors are currently compulsory in murder trials heard in Regional Courts, unless accused persons request that the lay assessors be dispensed with. According to preliminary research conducted by the South African Institute of Race Relations it appears that in the vast majority of these cases, accused persons preferred to be tried without lay assessors.
Mr Solomon argued that the thinking behind the bill is to democratise the judicial process - by getting the community involved in trial matters. Mr Schönteich pointed out that there was a certain danger in such an approach. Courts should not work on the democratic principle where the feelings of the majority in a community win the case. Accused persons should be convicted or acquitted on the basis of the evidence and the law, and not the popular feelings of the community. This could result in a form of popular justice where innocent people are convicted.
Dr Jeremy Seekings: University of Cape Town
Dr Seekings presented some of the preliminary research results of a study he is conducting on the present lay assessor system in South Africa.
According to Dr Seekings, the use of lay assessors is very uneven throughout the country. While some courts use them frequently, others hardly ever do so. Dr Seekings also found that a range of logistical and practical problems existed with the lay assessor system, but that these could be overcome.
Dr Seekings suggested that there are a range of cases where ‘professional lay assessors’ could even be used to preside over simple cases - such as traffic contraventions - thus doing away with professional magistrates in such cases altogether.
Professor Christina Murray: University of Cape Town
Professor Murray argued that the bill gives no indication for what lay assessors should be used - what their real purpose is. The purpose behind the lay assessor system should influence how assessors will be selected, Professor Murray said.
In terms of the bill, a presiding officer must take into account, inter alia, the ‘nature of the offence’. According to Professor Murray it is not clear what this means. The ‘nature of the offence’ is a very vague concept.