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Who gives the final verdict?

August 2014

In the long awaited trial of Oscar Pistorius, Judge Thokozile Masipa of the North Gauteng High Court appointed two assessors to assist her during trial. As the trial has progressed we have not heard much from them. This article will cast light on the role of the assessors, how they are appointed and how they may affect the trial.

An assessor, as provided for in section 145(1)(b) of the Criminal Procedure Act (CPA), means “a person who, in the opinion of the trial judge, has experience in the administration of justice or skill in any matter which may be considered at the trial”. Implicit in this is that it is the judge who appoints the assessors to assist her not the Judge President or Deputy Judge President of the Division. The interpretation of the term “a person experienced in the administration of justice” in practice has led to the appointment of advocates, magistrates, attorneys and legal academics as assessors.

Section 93ter of the Magistrates’ Court Act 32 of 1944 also deals with assessors and stipulates:

"(1)   The judicial officer presiding at any trial may, if he deems it expedient for the administration of justice -

(a) before any evidence has been led; or
(b) in considering a community-based punishment in respect of any person who has been convicted of any offence,

summon to his assistance any one or two persons who, in his opinion, may be of assistance at the trial of the case or in the determination of a proper sentence, as the case may be, to sit with him as assessor or assessors: Provided that if an accused is standing trial in the court of a regional division on a charge of murder, whether together with other charges or accused or not, the judicial officer shall at that trial be assisted by two assessors unless such an accused requests that the trial be proceeded without assessors whereupon the judicial officer may in his discretion summon one or two assessors to assist him."

Not only does section 93ter provide for the appointment of assessors but it stipulates what must be considered when making an appointment. The criteria to be considered include:

"(i) the cultural and social environment from which the accused originates;

 (ii) the educational background of the accused;

(iii) the nature and the seriousness of the offence of which the accused stands accused or has been convicted;

(iv) the extent or probable extent of the punishment to which the accused will be exposed upon conviction, or is exposed, as the case may be;
    
(v) any other matter or circumstance which he may deem to be indicative of the desirability of summoning an assessor or assessors…”

This is unique to the Magistrates' Court as there are no such impositions on the High Court judge who makes an appointment in terms of the CPA.

Another distinction between the provisions in the CPA and the Magistrates' Court Act is that there is an absence of the requirement of "experience in the administration of justice", which seemingly indicates, when considering it with the criteria to be considered by the magistrates in terms of the section, assessors in the Magistrates’ Courts are unlikely to come from the legal fraternity.

This may create difficulties, as the legal system in our country is a very specialised field and requires extensive knowledge and expertise in order to understand its complexities. Therefore only people who have been adequately trained should take part in adjudicating legal matters that will, as a result, restore the legitimacy and efficiency of our courts.

The presiding judge has discretion on whether to appoint one or two assessors, which will solely depend on the complexity of the matter at hand. For example, an assessor may be used in matters where the accused is charged with murder and long imprisonment is a possible punishment, or where the evidence depicts cultural dynamics or where expert evidence falls outside the legal expertise of the presiding judge.

Once appointed what is the role of the assessor? Before an assessor presides over a matter, he or she is required to first take an oath or make an affirmation, administered by the presiding judge, that he will give a true verdict of the issues placed before him or her. This in itself is indicative of the role of an assessor. The role of assessors has been summarised by Professor SE van der Merwe as:

“(a) They are sole finders of fact;
 (b) They listen to evidence and hear the arguments; and
 (c) They are called upon in their capacity as sole finders of fact to consider and reach their verdict in the absence of the presiding judicial officer.”

Subsection 145(4)(a) of the CPA provides that:

“(4) An assessor who takes an oath or makes an affirmation under subsection (3) shall be a member of the court: Provided that-

(a) …the decision or finding of the majority of the members of the court upon any question of fact or upon the question referred to in the said paragraph shall be the decision or finding of the court, except when the presiding judge sits with only one assessor, in which case the decision or finding of the judge shall, in the case of a difference of opinion, be the decision or finding of the court.”

The implication of the above provision is that where a single judge sits with two assessors and the two assessors both have the same verdict on the findings of fact, which is different to that of the presiding judge, then the assessors’ verdict outweighs that of the presiding judge as the assessors will amount to a “majority of the members of court”.

There are limitations on the role of an assessor; an assessor cannot make a finding based on law, nor may the assessor participate in sentencing.

It is therefore clear that assessors are officers of the court who have a vital role in court proceedings. However, do assessors add value to the enhancement of our judicial system or is this reflective of a diminished “jury system”?

While their role is to make factual findings on the evidence and to assist the court, of concern is the assessor’s commitment to the trial. In order to afford the parties a fair trial, the assessor needs to be present until the finalisation of the matter.  However, there is no legal process in our judicial system that secures the attendance of assessors until the matter reaches finalisation. In S v Jeke (unreported, GSJ case no A231/10, August 2012) two assessors, who were duly appointed and who accepted office on the basis of payment for their services, refused to continue to sit as assessors without payment and were thereafter released from duty as assessors. This paints a very bleak picture in that it implies that there is lack of sufficient funding allocated for the remuneration of assessors and further that assessors will step aside from their duty to the court, even after they have committed themselves when faced with an issue of remuneration.

Another area of concern is the delay that may result with the appointment of assessors. Once the evidence is heard, the presiding judge has to consult with his or her assessors in order to obtain their views of the matter. Depending on the complexity of the matter, this consultative process can be prolonged and violate the accused's rights to the conclusion of his trial within a reasonable time as is arguably afforded to an accused in terms of section 35(3)(d) of the Constitution.

It is a common feature in the legal profession for trials to continue for lengthy periods. The initial speculation about Oscar Pistorius’ trial was that it would be quick; the trial has run into its 11th week. The accused in this instance has not had his trial concluded within a reasonable time. While in his case, the assessors are not the cause for the extended trial date, it does leave the door open for another accused to point the finger to the assessors, where delays are occasioned by the lack of availability of the assessor. 

Finally, the argument that we have introduced a diminished jury system that does not give the accused the peace of mind that his alleged crime will be objectively and judiciously pronounced upon cannot be ignored. The fact that two non-legal persons are introduced into the legal process does create a system that the accused is being judged by his peers, who are no less objective or judicious about his alleged crime.

In conclusion, the appointment of assessors in both the lower and superior courts needs to be revisited. It creates numerous uncertainties as to the legitimacy of our courts. The integrity of the legal profession needs to be maintained in order to reflect a judicial system that is fair and based on the law as opposed to the feelings of untrained individuals. The appointment of assessors therefore does not go a long way on providing such a safeguard.

In the long awaited trial of Oscar Pistorius, Judge Thokozile Masipa of the North Gauteng High Court appointed two assessors to assist her during trial. As the trial has progressed we have not heard much from them. This article will cast light on the role of the assessors, how they are appointed and how they may affect the trial.

The team

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