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JUSTICE PORTFOLIO COMMITTEE
28 August 1998
MAGISTRATES’ COURT AMENDMENT BILL; WITNESS PROTECTION AND SERVICES BILL: DISCUSSION
DOCUMENTS HANDED OUT:
S V Malindi and others 1990 (1) SA 962
Witness Protection and Services Bill - Draft 4: (WIT 17)
Magistrates’ Courts Amd Bill (Assessors): draft amendments – Draft 2 (MCA 18)
The committee discussed all the latest proposed amendments to the Magistrates Courts Amendment Bill except Section 93ter (12) which deal with the review procedure. Thereafter the committee started deliberations on the amendments to the Witness Protection and Services Bill, but decided to adjourn in order to give the legal advisors a proper opportunity and enough time to carefully scrutinize the Bill and propose other options of dealing with and accommodating the concept of permanent and temporary protection.
MAGISTRATES’ COURT AMENDMENT BILL
The chairperson stated that it was deemed necessary to include a definition of assessor in order to make it clear that the assessors will only be people who are listed on the roll and that the assessors to be appointed for a specific case will be chosen at random from such a list.
Mr Mzizi wanted to know from the chairperson whether the accused could request for a specific assessor to be appointed. The chairperson said that the assessors will be appointed at random from the assessors list and that such a request by a criminal would not be met.
It was agreed that the Optional provision suggested in the draft be excluded. The committee agreed that this provision was not needed in order to narrow down the quantity of court cases in which the appointment of assessors would be compulsory. The committee agreed that this concern of having the compulsory appointment of assessors in too many court cases (specially trivial and simple cases) would be satisfactorily met by making the appointment of assessors only compulsory for trials in respect of offences under Schedule 2.
The committee then deliberated on the offences listed in Schedule 2. The chairperson proposed that indecent assault and sexual offences be included in the list. This proposal was accepted by the committee. The committee discussed whether it was necessary to raise the minimum limit set out in schedule 2 under the offence of robbery, to an amount higher than R1000-00, in order to avoid the compulsory appointment of assessors in minor robberies in the district courts. According to the chairperson, initially have two inexperienced assessors on the bench with an inexperienced magistrate in a trial at the district courts should be avoided. Later this might be possible after a big pool of experienced assessors had been created. The committee eventually decided to narrow the definition so that compulsory assessors are only appointed in cases of robbery where serious bodily harm has been inflicted on the victim. The words "or where the value of the stolen item exceeds R1000" were deleted.
The chairperson explained to the committee this subsection deals with cases that fell outside the offences listed in Schedule 2 and where the appointment of an assessor is not compulsory. In such cases the judicial officer will have the discretion to appoint or not appoint assessors. The judicial officer however does not have an absolute open discretion and is bound to take the factors listed in subsection 4 into consideration.
Mr Mzizi suggested that the accused should be fully explained his right to have an assessor and that his decision should be the criteria for appointing an assessor or not. The chairperson explain to Mr Mzizi that this would however undermine the very objectives of the act namely to legitimize the criminal justice system and to get the community involved in the judicial system. The committee agreed upon this issue. Mr O’Malley agreed that in the case of subsection 2 trials an assessor is compulsory and that the preference of the accused cannot influence it. He however suggested that the preference of the accused should be listed as one of the factors in subsection 4 that the judicial officer has to take notice of when deciding to appoint assessors in terms of subsection 3.
In regard to subsection (4) (b) the committee agreed that the paragraph be changed so that the judicial officer may also question the legal representative of the accused person. This would be done by including the words "or legal representative" after the words "accused person".
Mr O’Malley raised the question whether the word expedient is the correct word when describing the measure the judicial officer should use in deciding to appoint the assessors. According to Mr De Lange the word expedient is the correct measure, because it is not as objective and as difficult to measure as "necessary", but it is also not as subjective as to mean that the opinion of the judicial officer is sufficient. This was accepted by the committee.
Mr O’Malley wanted to know whether the fact that the judicial officer has to take the factors listed in subsection (4)(a) into account when appointing the assessors will not be contrary to the idea that the assessors will be chosen at random from the assessors lists for a court case. According to the chairperson it is not contrary to the idea that the assessors for a specific case will be chose at random from the assessors list, because the factors in subsection (4) (a) are only taken into consideration in order to decide whether to appoint the assessors or not and not when deciding who will be the assessors on the bench.
Mr Mzizi’s proposal to include the words "and knowledge" as part of the oath after the words "to the best of my ability", was accepted by the committee.
Mr Mzizi stressed the importance of only allowing the assessors to assist the judicial officer after the plea has been recorded. According to him it would cause problems if the trials of more than one accused are split after the pleas had been entered. The chairperson agreed with Mr Mzizi and confirmed that having the assessors only after the plea has been entered is necessary in order for the administration and appointment of the assessors (logistical reasons) and in cases of a split of trials. He also indicated that the plea is in any event recorded and that the assessor will thus not miss anything of the facts of the case when he enters to assist the judicial officer.
The chairperson requested the legal advisor (Mr Johan de Lange) to look into the possible legal differences between the words "finding" and "decision" in this subsection and its influence on the interpretation of subsection (7).
The chairperson suggested that the words "or any other aspect of the evidence" be inserted after the words "any specific rule of evidence". In that way it would give the judicial officer more scope to convey valuable legal information needed to the assessors and in that way make their task more clear to them. His recommendation was accepted.
According to the chairperson the Kamboushi court case forms the rationale behind especially subsection (9)(b) where the judge found that it was impossible to discern which views were the views of the presiding judicial officer and which view belonged to which assessor. The chairperson however raised a concern that if subsection (9)(b) is strictly read it could be interpreted to mean that the judicial officer only has to record the unanimous findings. The legal advisor, Mr Johan de Lange, differed with the chairperson and was of the view that this subsection can only be interpreted to mean that the judicial officer also has to put on record when the bench differs in regard to findings.
Mr Johan de Lange explained the process (set out in this subsection) to be followed in order to object to the presence of a particular assessor and for the process of discharge or recusal of an assessor. He referred to a written work of the previous Chief Justice Corbett on the subject of recusal of assessors.
Mr Mzizi was concerned that this procedure may result in a trial within a trial and that it might lead to the reference to evidence that will be used later in the main trial. He suggested that the subsection (10) procedure be conducted before the trial. The chairperson explained that it is not always possible to identify a conflict of interest or personal interest on the side of the assessor before the trial commences. Such an interest or conflict may only and in all probability only arise in the course of the trial and will then have to be dealt with at that stage.
Mr Mzizi said that if all the assessors act honestly and withdraw as soon as they realise that they have a conflict of interest, this procedure will not really be necessary. The chairperson stressed the importance of having the discharge and recusal mechanisms available for the cases where assessors do not feel they need to step down.
The chairperson is of the opinion that the word "discharge" has a negative connotation and requested the legal advisor to find a more friendly word to replace it.
Ms Jana suggested that if the parties to the trial agree to continue the proceedings in the absence of an assessor in the cases where an assessor died or where he became unable to act as an assessor or where he had been discharged or had recused himself, then the proceedings should continue. This suggestion was acceptable to the committee and the legal advisors had to include it in the subsection.
This section was not deliberated, because the legal advisors were asked to attend to the possibility of changing the subsection in order to include proceedings that not only look at technical and procedural irregularities of a trial proceeding, but also will look at the merits of the case. Such a change would thus include both a review and a type of appeal procedure.
Clause 3 - 93quat.
The chairperson referred to subsection (1) (a) and suggested that the words "or cluster thereof" be inserted after the words "for each district", because there is no reason not to have one single roll of assessors for a few district courts that are very close to each other (specially in big cities).
In regard to subsection (1)(b) the chairperson was sceptical of the concept of having a services agreement with the assessors. According to Mr de Lange the concept of an agreement was decided upon in order to have some kind of mechanism to keep the assessors liable for negligent conduct on their part (eg not showing up at the trial without any reason). It was suggested by the committee that mechanisms be built into the code of conduct to deal with liability of the assessor in the case of negligence.
According to the chairperson subsection (1) (a) only deals with regulations setting out the procedure in order to compile the list of assessors. The committee identified the need to provide for the Minister to make regulations about the procedure that has to be followed in order to allocate the assessors for a specific trial.
The committee also suggested that the list in 93quat be expanded to provide for regulations about mechanisms to deal with any grievances or complaints by or against any assessor (eg an assessor complains about the allowance paid to him)
It was also suggested that the standard clause be inserted stipulating that the regulations must be tabled before the act is to be promulgated.
WITNESS PROTECTION AND SERVICES BILL
Branch office was deleted as a separate definition and incorporated into the definition of "office".
"Member of the Office" is included in the definitions in order to clear up the problematic reference in the Bill to the wording "attached to the office".
The definition of "protected person" was expanded to include any person under temporary protection.
The chairperson referred the committee to the fact that "protected person" and "protection" as defined in the definitions are not reconciled and collide with each other. The reason for this is the fact that temporary protection and protection are treated as two different concepts in the definitions. The definition of protection thus does not include temporary protection, but goes further to state that it includes services provided to a protected person as described in the definition. This creates inconsistency because the definition of a protected person includes someone who is under temporary protection.
The chairperson suggested that the problem be solved by deleting the words "provided to, a protected person, as prescribed." The same inconsistencies surfaced later in the Bill and was the main reason behind the committee adjourning in order to give the legal advisors time to deal with the issues of permanent and temporary protection.
It was agreed to insert the word "defined" before the word "area" in Section 2 (2)(a).
Mr Labuschagne proposed that subsection (2)(c) be deleted and that the words "by notice in the Gazette at any time" be inserted in subsection (2)(b). The chairperson however suggested that subsection (2)(c) be retained, because withdrawals or amendments of the defined area may be necessary and not only the abolishment of a branch office. This was accepted by the committee.
The proposed amendment to section 3 (5) (a) (v) was accepted, because it would broaden the subjects the specific person must have specialised knowledge of.
It was agreed that section 3(5)(c)(ii) could be deleted.
Mr Labuschagne suggested that Section 4 (1)(c) be amended by deleting the stipulation that contracts could be concluded with individuals who are unavailable for secondment in order to obtain their services. According to Mr Labuschagne they are covered in Section 3(5)(a)(v). The chairperson disagreed and explained that the individuals referred to in 3(5)(a)(v) are seconded to the office, while Section 4(1)(c) conveys the right to contract the service of outsiders unavailable to be seconded.
Section 4 (1) (d) (ii) contained the phrase "protection of a protected person. As explained under the heading of definitions, there currently exists inconsistencies. At this point the chairperson proposed that the committee adjourn in order to allow the legal advisors to look into the inconsistencies.