- Gerhard Caspar & Hans Zeisel ‘Lay Judges in the German Criminal Courts’ (1972) 1 Journal of Legal Studies 135.
- Caspar and Zeisel (ibid) support their argument by referring to studies of mixed benches in Austria and Poland where similar conclusions were reached.
- Section 93 ter of the Magistrates' Courts Act 32 of 1944.
- Section 145 of the Criminal Procedure Act 51 of 1977.
- See the text at n71 below.
- F G Richings ‘Assessors in South African Criminal Trials’ 1976 Criminal Law Review 107. See also H R Hahlo & E Kahn The Union of South African: the Development of its Laws and Constitution (1960) 258–60.
- Section 36 of the General Law Amendment Act 46 of 1935. From 1917 onwards trial by judge without a jury had been possible. Such a judge however, could be assisted by assessors; but they could only advise the judge and could not in law directly determine the outcome: Richings op cit.
- The election had to be made by the accused three weeks prior to the trial: ss 1 and 14 of the Criminal Procedure and Juries Act 21 of 1954.
- Abolition of Juries Act 34 of 1969.
- Cf G T Morice KC ‘The Jury in Criminal Cases’ (1920) 37 SALJ 136. For an historical review, see S A Strauss ‘The Jury in South Africa’ 1973 (11) Western Australian Law Review 133–9.
- An important exception to this proposition is provided by the Special Criminal Courts which were established in 1914 to hear cases involving security offences. In these cases a jury could be dispensed with and replaced by a bench of two or three judges. In slightly modified form Special Criminal Courts have remained on the statute book (cf s 148 of the current Criminal Procedure Act 51 of 1977). However, after the Second world War they were used less frequently. These courts are not currently of practical significance as the last such court to be constituted handed down its verdict in 1961: John Dugard South African Criminal Law and Procedure vol 4 at 43.
- See text at n43 below.
- For example, R v Mabaso 1952 (3) SA 521 (A).
- See the text at n23 below.
- See the text at n57 below.
- The full bench consists of a judge president and sixteen judges one of whom is permanently seconded to another division. At the time that these interviews were conducted one judge was acting in the Appellate Division and one was on leave. The acting judges who were substituting in the Cape Provincial Division at the time were not interviewed. The judges spoke frankly and at length about their views on assessors and related matters. Two of them asked not to be quoted directly. We are very grateful for the friendly co-operation received from members of the bench.
- The twelve assessors interviewed do not represent a random sample as a large number of assessors refused to be interviewed in spite of assurances that neither the Judge President nor the Cape Bar Council had any objection to their co-operating with us. However, the assessors interviewed are representative of the professional backgrounds of those found to have sat regularly in 1983. (See table 1 below.) We are very grateful to those assessors who allowed themselves to be interviewed.
- See discussion at n28 below.
- These cases were tried by 23 different judges and acting judges.
- The ‘regular’ assessors did, however, sit eight times with the court on circuit. On these occasions they appeared to have travelled from their home bases.
- In all assessors sat 387 times. In thirteen cases the judge sat with only one assessor.
- Criminal trials are normally heard on tour days a week (ie excluding Mondays). The court terms encompass approximately eight months of the year.
- V G Hiemstra Derde Kumulatiewe Byvoegsel (1985) to Suid-Afrikaanse Strafproses 3 ed (1981).
- Includes a former Cape advocate who subsequently became a judge in a neighbouring country and who has now retired to Cape Town.
- Apart from the reference to the ‘coloured’ school principal above, other judges also mentioned that they had considered the appointment of ‘non-whites’ but that legally qualified assessors from these groups were not available.
- Two judges mentioned that they had appointed female assessors. These were clearly rare occasions. No women were present in our sample.
- This could happen if the trial should ‘fold’ because the accused unexpectedly offered a plea of guilty to a lesser charge and this plea was accepted by the prosecution or, more rarely, because the full trial was completed ahead of schedule.
- Section 145 (2) proviso.
- S v Chaane 1978 (2) SA 891 (A); S v Dyantyi 1983 (3) SA 532 (A).
- D van Zyl Smit (1979) 96 SALJ 173 and (1984) 101 SALJ 212.
- Section 277 of the Criminal Procedure Act 51 of 1977. On the concept of extenuating circumstances in general, see E du Toit Straf in Suid-Afrika (1981) 3–41 and the authorities cited there.
- Even where the court has found that extenuating circumstances exist the judge retains a discretion to impose the death penalty: D van Zyl Smit ‘Judicial discretion and the sentence of death for murder’ (1982) 99 SALJ 87.
- In only 1.6 per cent of the cases recorded in the Cape Provincial Division in 1983 did the accused not face charges for which the death penalty was a competent verdict. In 80.6 per cent of all the recorded cases in 1983 at least one accused was charged with murder.
- 1979 (4) SA 1041(B).
- Hiemstra CJ held further that were the judge not to follow the advice to appoint assessors and to sit alone this would not be a proper exercise of his discretion. He would not be able to impose the death penalty as assessors could possibly persuade him that there were extenuating circumstances in the case.
- See n23 above.
- Ibid at 31. Hiemstra refers to S v Dyanti 1983 (3) SA 532 (A) in support of his proposition.
- 1985 (3) SA 881 (A) at 886E.
- In S v Shoba supra the Appellate Division emphasized (at 886 F) that the decision of Hiemstra CJ in Wesi could not be supported as it allocated too passive a role to the trial judge. This does not mean that prosecutors do not have a duly as well to provide the judge with information upon which his decision could be based. If a prosecutor fails to do so it could constitute an irregularity: S v Shoba supra at 887B. (Cf also S v Xaba 1983 (3) SA 717 (A) at 728D-729A.)
- If a plea of guilty to a capital charge is accepted and no further evidence is led, procedural rules exclude the operation of the death penalty as the proviso to s 112(1)(b) of the Criminal Procedure Act 51 of 1977 lays down that ‘the sentence of death shall not be imposed unless the guilt of the accused has been proved as if he pleaded guilty’. The impact of this proviso on the substantive law and on sentencing deserves further investigation.
- Section 145 (3) provides that ‘[n]o assessor shall hear any evidence unless he first takes an oath or, as the case may be, makes an affirmation, administered by the presiding judge, that he will, on the evidence placed before him, give a true verdict upon the issues to be tried’.
- Section 145(4)(a) proviso. Only one assessor sat in 9.5 percent of cases in our sample where assessors were used.
- This distinction can give rise to linguistic difficulties. Thus in S v Mukunga and Others 1976 (3) SA 193 (N) at 204H Didcott J remarked:
- ‘The words “we”, “us” and “our” have appeared throughout this judgment. It would have been inconvenient and perhaps pedantic to switch as one went along from the plural to the singular and back again. This does not however mean that the provisions of s 109(3)(a) of the Criminal Procedure Act [56 of 1955 now s 145 of the Criminal Procedure Act 51 of 1977] have been overlooked or not applied. In compliance with them, questions of law have been decided by me alone.’
- L H Hoffmann & D T Zeffertt The South African Law of Evidence 3 ed (1981) 375. Note, however, that once the admissibility of evidence has been decided by the judge it is for the full court to determine the weight of the evidence: R v Werthern 1956 (2) PH H240,
- See text at n56 below.
- Section 1(1) (i) of the Criminal Procedure Act.
- See notes 31 and 32 above.
- The inquiry into whether there are extenuating circumstances must be conducted subsequent to a verdict of guilty of murder: S v Theron 1984 (2) Sa 868 (A).
- Section 277 (1)(c) of the Criminal Procedure Act.
- See notes 31 and 32 above.
- This practice had stong judicial support because of the direct analogy drawn between judge and jury: R v Solomons 1959 (2) SA 362 (A) at 363H; R v Mabuso 1952 (3) SA 521 (A) at 525.
- 1985 (2) SA 319 (W).
- At 3201.
- At 321E.
- 1985 (2) SA 26 (D) at 31F.
- S v Sparks 1972 (3) SA 396 (A); S v Lekaota 1978 (4) SA 684 (A) at 688.
- Section 146 of the Criminal Procedure Act.
- Ibid.
- If the judge sits with a single assessor that assessor cannot outvote the judge (n42 above). His dissent will always be that of the ‘minority’.
- The remaining five judges gave relatively vague answers to this question eg: ‘quite often’, or in ‘5 to 10 per cent of cases’.
- For a pronouncement on this subject from the bench, see Van Den Heever JA in Rv Von Zell 1953 (3) SA 303 (A) at 312: ‘It is true that I have experienced upon occasion that a magistrate acting as an assessor and as a full member of the Court as trier of fact might be 10th to dissent and give a dissenting jugment.’
- John Dugard ‘Lay Participation in the Administration of Justice‘(1972) 1(2) Crime Punishment and Correction 56–7.
- Text as n28 above.
- Text at n33 above.
- Such an amendment would restore the position to what it was before 1959 in which year the provision of the Criminal Procedure Act 56 of 1955 relating to the compulsory appointment of assessors was abolished by s 5 of the Criminal Law Further Amendment Act 75 of 1959.
- It is therefore submitted that fears about the effect of the proposed amendment expressed by the Botha Commission Commission of Inquiry into Criminal Procedure and Evidence (RP78/1971)) at para 11.11.6 are groundless.
- It may try all offences except treason and murder: s 89 of the Magistrates' Court Act 32 of 1944.
- It cannot impose the death penalty but may inter alia impose imprisonment of up to ten years on each count: s 92 of the Magistrates' Courts Act.
- Section 3 of the High Court of Zimbabwe Act 29 of 1981. This section re-enacts a similar provision of the Criminal Procedure and Evidence Act (Chapter 59) of that country.
- Fifth and Final Report, RP78 1983, para 5.12.1.5.
- Ibid at para 5.12.1.4.
- The Hoexter Commission goes further and describes the ‘frequent’ use of assessors even in regional courts as ‘not practicable’ because of the ‘huge volume of court cases’ that these courts hear (para 5.12.1.4). It is submitted, however, that the further reform proposals outlined below should vitiate this difficulty as a larger pool of assessors would be available.
- Section 6(2) of the High Court of Zimbabwe Act 29 of 1981.
- Section 6(3) of the High Court of Zimbabwe Act. This choice is exercised subject to any directions given by the Chief Justice and Judge President (ibid).
- Caspar & Zeisel op cit 183.
- See the generally accepted wide interpretation of the term ‘richter’ in the provision to include lay adjudicators: Maunz in Maunz, Dürig, Herzog, Scholz Grundgesetz. Kommentar (1971) Art 101 n 15.
- (1972) 1(2) Crime Punishment and Correction 55. The detail of our proposals spelt out below differs from that of Dugard who places considerable faith in a “merit” criterion for assessors, ie they should hold a university degree.
- Ibid.
- Section 6(1)(d) of the High Court of Zimbabwe Act 29 of 1981.
- Section 173 (2)(b) of the Criminal Procedure and Evidence Act (Chapter 59).
- Caspar & Ziesel op cit 182–3.
- Fifth and Final Report Part II, para 5.5 — 5.8. Note also the specific recommendation that the members of the Council should be appointed ‘regardless of race’ (para 5.5). While this move in the direction of non-racialism is to be welcomed, steps would have to be taken in the case of the body that we are proposing to ensure that all groups are represented.
- For primary work in South Africa on this difficult question see D Hansson Differences in the Comprehensibility of Testimony: A Comparative Study of Magistrates' Credibility Judgements, Witnesses' Ethnicity and Court Role unpublished MSocSc Thesis, University of Cape Town, 1985.
- Sunday Times 28 July 1985; Cape Times 1 August 1985.
- Glanville Williams The Proof of Guilt 3 ed (1963) 299. Williams is critical of juries but expresses himself cautiously in favour of what he calls an ‘intermediate solution’ in which lay magistrates would sit as assessors to judges.
South African Journal on Human Rights
Volume 1, 1985 - Issue 3