Magistrates’ Courts Amendment Act

7 October 1998 No. 1248. 7 Oktober 1998 It is hereby notified that the President has assented to the following Act which is hereby published for general inforrnatiOn:— Hierby word bekend gemaak dat die President sy goed- keuring geheg het aan die onderstaande Wet wat hierby ter algemene inligting gepubliseer word:— No. 67 of 199S: Magistrates’ Courts Amendment Act, 1998. No. 67 van 1998: Wysigingswet OP Landdroshowe’ 1998” ~ No. 19323 Act No. 67, 1998 GOVERNMENT GAZE~E,70CTOBER 1998 MAGISTRATES ‘ COURTS AMENDMENT ACT, 1998 GENERAL EXPLANATORY NOTE: [ .:.’ 1 Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments. ., (English text signed by the President.) (Assented to 28 September 1998. ) ACT To amend the Magistrates’ Cou~ Act, 1944, so as to further regulate the summoning of assessors in civil and criminal proceedings; to further regulate the procedure in the event of death, incapacity, absence or recusal of an assessor; to empower the Minister of Justice to make regulations in connection with matters pertaining to assessors; and to provide for matters connected therewith. B E IT ENACTED by the Parliament of follows:— Amendment of section 34 of Act 32 of 1944 the Republic of Souti Africa, as

1. The following section is hereby substituted for section 34 of the Magistrates’ Courts Act. 1944 (hereinafter referred to as the principal Act): j “Assessors

34. In any action the court may. upon the application of either party, summon to its assistance one or two persons [of skill and experience in the matter to which the action relates] who are suitable and available and who may be willing to sit and act as assessors in an advisory capacity.’.. 10 Substitution of section 93ter of Act 32 of 1944, as substituted by section 10(a) of Act 91 of 1977 and amended by section l(a) of Act 118 of 1991

2. The following section is hereby substituted for section 93ter of the principal Act: “Magistrate to be assisted by assessors at certain criminal proceedings 93ter. ( 1 ) In this section ‘assessor. means a person whose name 15 is registered on a roll of assessors, in terms of a regulation referred to in section 93quat. (~) A j“dl~lal officer shall be assisted by two assessors at the trial of an accused person in respect of any offence referred to in Schedule 2. (3) The judicial officer presiding at— (a) any application for bail by an accused person: ~o 4 No. 19323 GOVERNMENT GAZETTE. 7 OCTOBER 1998 Act NO. 67, 1998 MAGISTRATES’ COURTS AMENDMENT ACT. 1998 (/?) the trial of an accused person. other than a trial contemplated in subsection (2): or (c) proceedings concerning the imposition of a sentence upon a convicted person. may. if he or she considers it expedient for the administration of justice— (i) in the case of proceedings referred to in paragraphs (a) md (c). summon one or two assessors; and (ii ) in the case of a trial referred to in paragraph (b), summon two assessors. to assist him or her at the proceedings concerned. (4) (cl) in considering whether summoning assessors under subsection (3) would be expedient for the administration of justice. the judicial officer shall take into account— (i (ii (iii (iv (v (vi the culturaI and social environment of the accused person; the educational background of the accused person; the nature and the seriousness of the offence in respect of which the accused person is applying for bail. or stands accused of. or has been convicted: the extent or probable extent of the punishment to which the accused person will be exposed upon con~iction. or is exposed. as the case ma! be: the views. if any. of the accused person regarding the summoning of assessors in respect of the proceedings concerned: any particular interest which the community in general. or any specific community. may ha~’e in the adjudication of the matter concerned; or (vii ) any other matter or circumstance which he or she may deem to be indicative of the desirability of summoning an assessor or assessors. ([~) The judicial officer may question the accused person in relation to the matters referred to in paragraph (a). or obtain such information from his or her legal representati\fe. (5) Ever> assessor shall. upon registration on the roll of assessors referred to in subsection ( 1 ). in writing take an oath or make an afi~atlon subscribed b! him or her before the magistrate of the district concerned in the form set out below. namely— .1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (full name) do hereby swear/solemnly affirm that tvhenever I ma} be called upon to perform the functions of an assessor in terms of section 93ter of the Magistrates’ Courts Act. 1944. I shall to the best of my abilit> make a considered finding or decision. or give a considered opinion. as the case may be. according to the evidence tendered in the matter.’. 5 10 15 ~o 25 30 35 40 (6) Whenever a judicial oficer is assisted by assessors at a trial referred to in subsection (2) of (3)(1~). the assessors shall only commence with their functions as assessors after the plea in the matter has been recorded. (7) An assessor shall be a member of the court. subject to the following 45 provisions: (a J An assessor shall. at the consideration of a bail application or in determining an appropriate sentence. assist the judicial officer in an advisory capacity only. (1~) At any trial referred to in subsection (2) or (3)(17)— (i) any matter of law arising for decision at the proceedings concerned: and (ii ) any question arising thereat as to whether a matter for decision is a matter of fact or a matter of law. shall be decided by the judicial officer. (c) The judicial officer shall adjourn the proceedings regarding any matter or question referred to in paragraph (b) and shall sit alone for the hearing of such proceedings and the decision of such matter or question. (~1) Whenever the judicial officer makes a decision in terms of paragraph (1~) the judicial officer shall give his or her reasons for tha[ decision. jO 55 60 6 No. 19323 Act No. 67, 1998 GOVERNMENT GME~. 7 OCTOBER 1998 MAGISTRATES ‘ COURTS AMENDMENT ACT, 1998 (e) Upon all matters of fact the finding or decision of the majority of the members of the court shall be the finding or decision of the court. (8) Whenever a judicial officer is assisted by assessors at a trial referred to in subsection (2) or (3)(b), the judicial officer shall, after the conclusion of the arguments by the prosecutor and the accused person, but before judgment is passed in the matter, explain to the assessors any specific rule of evidence or any other matter that is relevant in respect of the evidence tendered to the court. (9) The record of any proceedings where a judicial officer has been assisted by assessors— (a) regarding the evidence adduced at the proceedings, shall include any explanation or instruction given to the assessors by the judicial officer in respect of any applicable rule of evidence or any other matter; and (b) regarding the judgment, shall indicate clearly whether the findin&s in respect of each material aspect of the evidence— (i) are the unanimous findings of the members of the court; and (ii) in the event of any member of the court making a finding different to that of the other members, set out the reasons for such different finding. (10) (a) A judicial officer who is assisted by an assessor may, on application by the prosecutor or the accused person. order the recusal of the assessor from the proceedings if the judicial officer is satisfied that— (i) the assessor has a personal interest in the proceedings concerned: (ii) there are reasonable grounds for believing that there is likely to be a conflict of interests as a result of the assessors participation in the proceedings concerned; or (iii) there are reasonable grounds for believing that there is a likelihood of bias on the part of the assessor. (b) An assessor may recuse himself or herself from the proceedings for the reasons contemplated in paragraph (a). (c) The prosecutor and the accused person shall— (i) before the recusal of an assessor is ordered in terms of paragraph (u); or (ii) in so far as it is practi~able, before the recusal of an assessor in terms of paragraph (b). be gi~en an Oppofiunity to address arguments to the judicial officer on the desirability of such recusal. (d) The assessor concerned shall be given an opportunity to respond to any arguments referred to in paragraph (c), and the judicial officer may put such questions regarding the matter to the assessor as he or she may deem fit. (e) The judicial officer shall give reasons for an order referred to in paragraph (a). (11 ) (a) If an assessor— (i) dies; (ii) in the opinion of the presiding officer becomes unable to act as an assessor; (iii) is for an} reason absent; or (iv) has been- ordered to recuse himself or herself or has recused himself or herself in terms of subsection ( 10), at an! stage before the completion of the proceedings concerned. the presiding judicial officer may, in the interests of justice and after due consideration of the arguments put forward by the accused person and the prosecutor— 5 10 15 ~o 25 30 35 40 45 50 (aa) direct that the proceedings continue before the remaining 55 member or members of the court: (bb) direct that the proceedings start afresh: or (cc) in the circumstances contemplated in subparagraph (iii ). postpone the proceedings in order to obtain the assessor’s presence: 60 8 No. 19323 Act No. 67, 1998 GOVERNMENT GAZE~E. 7 OCTOBER 1998 MAGISTRATES’ COURTS AMENDMENT ACT. 1998 Provided that if the accused person has legal representation and the prosecutor and the accused person consent thereto, the proceedings shall. in the circumstances contemplated in subparagraphs (i). (ii) or (iv), continue before the remaining member or members of the court. (b) If, at proceedings which are continued in terms of this subsection, the judicial officer is assisted by the remaining assessor, the finding or decision of the judicial officer shall, in respect of any matter where there is a difference of opinion between the judicial officer and the assessor, be the finding or decision of the court. (c) The judicial officer shall give reasons for any direction referred to in paragraph (a), and for any finding or decision referred to in paragraph (b). (12) (a) A judicial officer assisted by assessors at a trial referred to in subsection (2) or (3)(b), where an accused person is convicted and sentenced, shall— (i) if the accused person is not assisted by a legal adviser: and (ii) if the judicial officer is of the opinion that the assessors concerned have clearly made an incorrect finding in a material respect which probably led to a wrongful conviction of the accused person, record the reasons for his or her opinion and transmit them. together with the record of the proceedings. to the registrar of the High Court having jurisdiction. and such registrar shall, as soon as is practicable, submit the said reasons and the record to a judge in chambers for review. who shall have the same powers in respect of such proceedings as if the record thereof had been submitted to him or her in terms of section 303 of the Criminal Procedure Act. 1977 (Act No. 51 of 1977). (b) When a judicial officer acts in terms of paragraph (a). he or she shall inform the accused person accordingly and, if the accused person is in custody. the provisions of the Criminal Procedure Act. 1977. relating to the granting of bail pending an appeal shall be applicable. (c) The provisions of paragraph (a)— (i) shall not be applicable in respect of a matter which is subject to review in terms of section 302 of the Criminal Procedure Act. 1977: and (ii ) shall be suspended in respect of an accused person who has appealed against a conviction or sentence and has not abandoned the appeal. and shall cease to apply with reference to such an accused person when iud~ment on appeal is given.”. Insertion of section 93quat in Act 32 of 1944

3. The followin~ section is hereby inserted in the principal Act: “Regulations pertaining to assessors 93quat. (11 The Minister has the power. from time to time. to determine the criteria for the qualification of persons to serve as assessors in terms of section 93ter, including the criteria for the disqualification of persons to serve as such assessors. (2) The Minister may make regulations regarding— 5 10 15 20 ~~ 30 35 40 45 (a) the procedure to be followed at, and criteria to be applied for. the designation and registration of persons from the community. who are suitable and a~’ailable to serve as assessors in terms of section 93rer. on a roll of assessors for each district and regional division: (b) the method to be followed in respect of the allocation of assessors in 50 respect of proceedings referred to in section 93teK (c) a code of conduct for such assessors, and mechanisms for the enforcement of the code of conduct, including the Iiabilit) of an assessor if any provision of the code of conduct is contmvened by him or her: Sj 10 No. 19323 Act No. 67, 1998 GOVERNMENT G=E~E, 7 OCTOBER 1998 MAGISTRATES’ COURTS AMENDMENT ACT. 1998 (d) the establishment of a mechanism to deal with any grievance or complaint by or against an assessor; (e) training of assessors: (f) the payment of allowances to assessors; (g) any other matter which the Minister deems expedient to prescfibe in order to regulate the service of assessors in the courts. (3) Any regulation made under this section which may result in expenditure for the State, shall be made in consultation with the Minister of Finance. (4) A regulation made under subsection (1)(c) may provide that any person who contravenes a provision thereof or fails to comply therewith shall be guilty of an offence and on conviction be liable to a fine or to imprisonment for a period not exceeding three months. (5) Any regulation made under this section shall be tabled in Parliament before publication thereof in the Gazette.”. Insertion of Schedule 2 in Act 32 of 1944

4. The following Schedule is hereby inserted in the prirrcipd Act, the existing Schedule becoming Schedule 1: “Schedule 2 O#ences in respect of which judichl oficers must be assisted by two assessors in ~erms of section 93ter(2):

3. Robbery, where serious bodilv harm has been inflicted on the victim.

4. Assault, where serious bodily” harm has been inflicted on the victim.

5. Indecent assault.”. I I 5 10 15 I ~o :j I Transitional provision

5. Proceedings in which an assessor or assessors were summoned in terms of section 93ter of the principal Act, and which are pending at the commencement of section 2 of 30 this Act, shall be continued and concluded as if this Act had not been passed: Provided that the provisions of section 93rer (8) to ( 12) of the principal Act. as amended by this Act. shall at all relevant times be applicable in respect of such pending proceedings. Short title 6.( 1 ) This Act is called the Magistrates’ Courts Amendment Act, 1998. and shall take 3j effect on a date fixed by the President by proclamation in the Ga:erre. (2) Different dates may be so fixed in respect of— (a) different items contained in Schedule 2 to the principal Act: and (12) different areas in the Republic.