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JUSTICE PORTFOLIO COMMITTEE
31 August 1998
MAGISTRATES' COURTS AMENDMENT BILL [B33-98]: DISCUSSION
Documents handed out:
Draft 3 of the amendments to B33-98
Mr de Lange (Chair - ANC) took the committee through the amendments to the Bill. The areas of discussion are indicated.
Ms Camerer (NP) asked in respect of s93ter.(4) whether the views of the victim should not also be taken into account when deciding whether to appoint assessors. The Chair pointed out that this would mean requiring the victim to appear at another hearing and that as the issue of victim empowerment is already being dealt with by the SALC, the issue should be held over until their report was available and a comprehensive approach to victims formulated. Ms Camerer asked that the point be flagged for later discussion.
In respect of s93ter (9) it was pointed out that conflict of interest and likelihood of bias had been added as grounds for recusal.
In terms of s11(a)(4) the presiding officer may, where one of the assessors has fallen out, choose to continue with the remaining member.
Mr de Lange (Chair - ANC) pointed out in respect of s12 that he did not want every case of disagreement between the assessors and magistrate to go to the High Court. Therefore s12(1) has been drafted to allow for only where the finding is clearly incorrect in a material respect which probably resulted in a wrongful conviction.
Mr O' Malley (IFP) asked why this provision could not also apply to wrongful acquittals.
Mr de Lange (Law Advisor) said that at present the State cannot appeal on the facts of a case - only on issues of law. There is therefore an important principle involved. The committee does not want to create a situation where every case in which assessors are involved is inevitably brought before review.
Mr Gibson (DP) suggested that the Magistrate's opinion should always go to the higher court.
The Chair pointed out that in terms of s9(b) all material differences of opinion between the assessors and magistrate must be recorded.
Mr Gibson asked why this was limited to cases where the accused had not appealed. The Chair pointed out that in terms of the present legislation there is no right of review where an appeal has already been made.
Mr Gibson then pointed out that in terms of s9(b) the magistrate need only record whether decisions were unanimous or not. She is not required to give reasons.
Mr de Lange (Law Advisor) said that when a person appeals the first thing that happens is that they request reasons for judgement from the magistrate. These must now include s9(b). Thus for example in the Gumbashe case the assessors clearly based their decision on probabilities and did not take the unreliability of the witness into account - this, he said, came out clearly in the reasons for judgement. Magistrates attempt to make ex tempore judgements as thorough as possible.
The issue of victim involvement was again brought up and the committee decided to pass a resolution stressing the importance of the issue and asking the SALC to complete its work on victim empowerment and to report to the committee by the beginning of next year on the matter.
Mr de Lange (Law Advisor) then drew the committee’s attention to the optional clause 13, in respect of which no right attaches to the position of assessor in respect of, for example, salary.
The Chair pointed out that this would place the power in respect of drawing up conditions of employment with the Minister. The committee does not want to deal with this only through the regulations, as some assessors for example are already demanding R500 per day (the current remuneration is R100).
Ms Camerer (NP) expressed disquiet at the pace with which the Bill was being pushed through the committee stage. She and Mr de Lange (Chair - ANC) disagrede on whether she was informed of the programme.
The committee had a moment of silence at noon for the victims of the Waterfront bomb blast.
It was then pointed out that the words "or against" an assessor need to be added to s93quat(d).
The Chair asked that the aim of increasing the pool of trained assessors be included in the resolution.
In respect of the draft resolution, Dr van Heerden (NP) asked whether the committee was in favour of expanding the assessor system to the High Courts. The Chair said that the Minister felt that this could be done right now, but this would require changing the Criminal Procedure Act and the Supreme Court Act. It was therefore more feasible to request a draft report on the question.
Mr van Heerden asked that the point be put a little less forcefully.
The meeting was adjourned.