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JUSTICE PORTFOLIO COMMITTEE
1 September 1998
MAGISTRATES’ COURT AMENDMENT BILL (ASSESSORS) [B33-98]: DISCUSSION
Ms Camerer (NP) raised the question of qualifications of assessors. She said that this appeared to be an issue that the assessors themselves felt quite strongly about and suggested that a requirement for "appropriate skill and experience" be built into clause 3. She said that her feeling was that the Minister should not be given carte blanche in drawing up criteria.
Mr de Lange (Chair - ANC) pointed out that before the regulations became law they would in any event have to be tabled in Parliament, at which time members could voice objections.
Mr Mzizi (IFP) indicated that he found the concept of "experience" problematic considering that many people did not have experience as a result of previous marginalisation. He said that such people should nonetheless be given the opportunity to become acquainted with the law.
Mr Landers (ANC) agreed and said that requiring experience represented a practical and logistical problem when the point of the exercise is to build that experience.
Ms Camerer agreed with the view that the community needs to be brought onto the bench. It is still, she felt, necessary to lay down some minimum criteria in respect of literacy and reasoning skills, as well as requiring that the persons be ‘fit and proper’ (e.g. not having a criminal record).
Mr Gibson (DP) said that he had never equated uneducated with stupid. Assessors, he pointed out, are not magistrates or judges and the point of having assessors is to obtain a common sense non-legal perspective. It is therefore wrong to insist on experience and education, although illiteracy may present a problem where the evidence in a trial was of a nature that required literacy. Furthermore, including such requirements would mean that compulsory and optional assessors were subject to a different standard.
Mr de Lange (Chair - ANC) added that there is a selection and training process in respect of assessors and that the Bill expressly requires the magistrate to explain the nature of the evidence etc. to the assessors at the end of the trial (as if to a jury). Furthermore, as a result of the schedule of offences, it would be mostly regional courts which are involved and these it is hoped will be quite organised in respect of their assessors.
Ms Camerer (NP) suggested that the words "suitable and available", be taken from s12, and "willing to sit" be included in clause 3. The committee agreed to this.
Mr Gibson (DP) asked whether the committee knew how many cases requiring assessors might be expected in any given period and whether the Department had given an undertaking that the finances and resources were there for implementation. The committee did not have these figures. Mr Gibson then suggested that it might be best to phase in the Bill.
Mr Hofmeyer (ANC) said that he would support this suggestion if it was legally possible.
Mr de Lange (Law Advisor) said that it is possible, although it would require a new provision (clause 4) allowing for different dates to be set in respect of different regions and a change to the schedule.
Ms Camerer (NP) suggested that alternatively a represented accused may choose not to have assessors.
The committee indicated that it preferred the first option.
Ms Botha (ANC) asked how one could prioritise crimes - rape, she said, takes place in the smaller magisterial districts as well.
Mr de Lange (Chair - ANC) agreed and said that the transitional arrangement should be used to expedite the process and not to slow things up. It was hoped that implementation would occur as soon as possible.
Ms Camerer brought up the Institute of Race Relations estimate that 53 000 cases per annum would require assessors; to which the Chair replied that the schedule has since been substantially narrowed down.
Ms Camerer then asked whether it would substantially upset matters to include a provision requiring the magistrate to take the victim’s views into account.
Mr de Lange (Chair - ANC) pointed out that this would require bringing the victim to court (requiring the victim to take time off work / leave hospital etc.) and that it was not optimum to implement a victim empowerment programme willy-nilly.
Mr Mzizi (IFP) pointed out that in criminal matters the state represents the victim. In civil matters assessors are generally used where cultural issues are in question, such as in the Mangope case.
Mr Landers (ANC) reminded the committee that this issue had been discussed the day before and that it had been decided that victim empowerment could not occur on an ad hoc basis.
Dr van Heerden (NP) suggested that it might be possible for the magistrate to give the victim a choice of being involved.
Mr de Lange (Chair - ANC) replied that this would still require the victim appearing in court. Subsection 7 allows, in any event, for the magistrate to take any other relevant consideration into account.
Mr Gibson (DP) agreed that the victim’s input might be valuable, but said that at the same time the victim should not participate in deciding who hears the case.
The committee moved on to s9(b). The Chair indicated that the section has been changed so that if any member of the court makes a different finding to that of any other member, reasons should be set out. The committee all agreed with this amendment.
Ms Camerer (NP) expressed concern that the judicial officer loses his/her discretion where the accused is defended. What if the defence is inadequate?
The Chair responded that the magistrate would inevitably point this out in the decision.
Mr Mzizi (IFP) asked what the procedure would be where the magistrate found that he had made a mistake. Mr de Lange (Law Advisor) said that in terms of s304(a) of the Criminal Procedure Act, the magistrate could make representation to a higher court. Automatic review occurs where the magistrate has less than 7 years experience or where the sentence is particularly harsh.
Mr de Lange (Chair - ANC) asked whether it was not therefore better to exclude those matters which would go on automatic review from the Bill. This question was left open.
Ms Camerer said that the NP was unhappy with the speed with which the Bill had gone through the committee stage and requested that the voting be held over until Thursday afternoon, allowing her to take it to the NP caucus on Thursday morning.
Mr de Lange (Chair - ANC) replied that all committee members had been aware for some time of the schedule. The Chief Whip was promised the Bill the previous week and as such it was already late. Furthermore, he said, changes could still be made at the NCOP stage and the NP could therefore abstain from voting at this stage.
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