Lay participation in the South African criminal justice system: An assessment of the assessor system

• Author: Tshehla, B.
• Pages: 339-361
• Date: 17 November 2021
• Published date: 17 November 2021
• DOI: https://doi.org/10.47348/SACJ/v34/i2a8

Lay participation in the South

African criminal justice system: An

assessment of the assessor system

B TSHEHLA*

MC MARUMOAGAE**

ABSTRACT

This paper sets out to demon strate that the South African as sessor system is

not structure d in a manner that holds the promise of adequately cater ing for

the intended goal of promoting lay pa rticipation by communit y members

in the adjudication of cri minal cases. It identi es several challenges wit h

the current asses sor system in South Af rica such as the unjusti able

differentiation bet ween the assessor system i n the magistrates’ cou rts and

the high court which u ndermines thi s system as a form of lay part icipation.

In the high court, a ssessors are required to h ave experience in the

administr ation of justice or some other ski ll deemed useful in t he case

tried. This i s not required of assessors i n the magistrates’ courts. The paper

also illustrates t hat there are no legislative guidelines on the appointment of

assessors which leads to wide d iscretion being given to presiding ofcers in

the appointment of assessors, wh ich could potentially lead to the adopt ion

of different approaches to simi lar cases. The key argument presented is that

the discretion enjoyed by presiding of cers when considering whether to

use assessors should be li mited by legislation. Most importantly, it is argued

that that the legislatu re should consider reforming the as sessor system with

a view to establishing a syste m that will be equa lly applicable to both

the high court and mag istrates’ court s as the current di fferentiation seems

unjusti able.

1 Introduction and contextual background

Fact-nding is an important component of a cri minal tria l and has

been, aptly, dubbed the ‘central purpose of the crimin al justice system’.1

Some jurisdictions use legal ly trained persons in the form of judges

and magistrates for this pur pose, while others use laypersons i n the

* B Proc (North) LLM (UC T), Senior Lect urer, School of Law, University of the

Witwatersrand.

** LLB LL M (Wits) LLM (NW U) PhD (UCT) AI PSA Diploma in Insolvency L aw and

Practice (UP), Associate Pr ofessor, School of Law, University of the Wit watersrand.

1 S v Naicker 2008 (2) SACR 54 (N) 59E.

https://doi.org/10.47348/SACJ/v34/i2a8

339

(2021) 34 SACJ 339

© Juta and Company (Pty) Ltd

form of a jury.2 In between, there is what is called the m ixed bench,

where legally trained persons under take the fact-nding task with

laypers ons.3 In South Af rica, the fact-nding process is perfor med by

judges in the high court and magi strates in the magistr ates’ courts.

They do this on their own or with t he assistance of assessors.4

The assessor system is the only form of lay par ticipation in the South

African cri minal justice system regard ing the assessment of evidence

and decision making. This has b een the case since the abolition of the

jury system in 1969.5

One of the key justications for lay participation is that it is a

manifest ation of par ticipatory de mocracy.6 It is generally believed that

the justice system reaps a legitimacy and cred ibility dividend from

the participation of communit y members in the adjudication process.

The need for lay participation as a measure to boost t he legitimacy of

the justice system is partic ularly enticing in a country li ke South Africa

where the majority of the country ’s citizens were excluded from the

2 See A Klijn & M Croes ‘Public opin ion on lay participation i n the crimi nal justice

system of the Netherl ands: Some tentative nd ings from a panel sur vey’ (2007) 3

Utrecht L Rev 157 at 158, who when reecting on the exp erience of Netherland s

which is an example of a jur isdiction th at does not use lay persons , observed that

‘[u]nlike most other cou ntries, the Netherl ands does not pract ice trial by jur y

and does it not employ lay judges’. See also Y Lou E stablishing a Suitable L ay

Participation Syst em for the Taiwanese Criminal Justice Syste m SJD (Indiana) (2014)

57–58, who correctly st ated that the United States of Amer ica is one of the countries

that uses the jur y system.

3 See PL Reichel & YE Suzuki ‘Japan’s lay judge system: A s ummary of its development,

evaluation, and cur rent status’ (2015) 25 Internat Crim Ju s Rev 247 at 248–249,

where a mixed bench is ex plained as an adjudicat ion model where professional

judges are assisted by c itizens who are nomi nated as xed-ter m lay judges. These

authors furt her state that ‘[l]ay pa rticipation is pr aised as providing a r igorous fact-

nding process, red ucing opportunities for corr uption, representing the commun ity

in the courtr oom, legitimizing the justice s ystem, and increasing civic engagement’.

See also NT Wolfe ‘Lay judges i n German cr iminal cour ts: The modic ation of an

institution’ (1994) 138 Proc Am er Philos Soc 495 at 496, where a cr itical point is

made that while th e involvement of persons who do not pos sess traini ng in the

adjudication of legal di sputes and the expect ation that they should i nterpret and

apply the law in complex crim inal cases may app ear irrationa l, nonetheless, their

involvement may be justie d on the basis of participatory democ racy.

4 In the high court, s 145 of the Cri minal Proce dure Act 51 of 1977 (hereafter

‘the Crimi nal Procedure Ac t’) authorises tri als with or without as sessors. Simil arly,

s93ter of the Magist rates’ Courts Act 32 of 1944 (hereafter ‘ the Magistrates’ Courts

Act’) provides for trial s with or without assessors.

5 The jury system was abolish ed by the Abolition of Jur ies Act 34 of 1969.

6 See MS Huebner ‘Who decides? Restr ucturing crim inal justice for a democratic S outh

Africa’ (1993) 102 Yale L J 961 at 975 quoting N Steyler ‘Democratisi ng criminal

justice system’ 22 (Paper del ivered at the New Juris prudence for a Futur e South

Africa Conference held at the Un iversity of Pretoria on 25 October 1989.)

340 SACJ . (2021) 2

https://doi.org/10.47348/SACJ/v34/i2a8

© Juta and Company (Pty) Ltd