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

by | Feb 20, 2022 | SACJ, SACJ V34 I2 2021

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

Authors: B Tshehla & MC Marumoagae

ISSN: 1996-2118
Affiliations: B Proc (North) LLM (UCT), Senior Lecturer, School of Law, University of the Witwatersrand; LLB LLM (Wits) LLM (NWU) PhD (UCT) AIPSA Diploma in Insolvency Law and Practice (UP), Associate Professor, School of Law, University of the Witwatersrand
Source: South African Journal of Criminal Justice, Volume 34 Issue 2, p. 339 – 361
https://doi.org/10.47348/SACJ/v34/i2a8

Abstract

This paper sets out to demonstrate that the South African assessor system is not structured in a manner that holds the promise of adequately catering for the intended goal of promoting lay participation by community members in the adjudication of criminal cases. It identifies several challenges with the current assessor system in South Africa such as the unjustifiable differentiation between the assessor system in the magistrates’ courts and the high court which undermines this system as a form of lay participation. In the high court, assessors are required to have experience in the administration of justice or some other skill deemed useful in the case tried. This is not required of assessors in the magistrates’ courts. The paper also illustrates that there are no legislative guidelines on the appointment of assessors which leads to wide discretion being given to presiding officers in the appointment of assessors, which could potentially lead to the adoption of different approaches to similar cases. The key argument presented is that the discretion enjoyed by presiding officers when considering whether to use assessors should be limited by legislation. Most importantly, it is argued that that the legislature should consider reforming the assessor system with a view to establishing a system that will be equally applicable to both the high court and magistrates’ courts as the current differentiation seems unjustifiable.

Understanding one’s rights when arrested and detained: An assessment of language barriers that affect comprehension

by | Jun 6, 2021 | SACJ, SACJ V34 I1 2021

Understanding one’s rights when arrested and detained: An assessment of language barriers that affect comprehension

Author Terrence R Carney

ISSN: 1996-2118
Affiliations: BA HonsBA (UP) PGCE (Unisa) MA (UP) PhD (UFS) TESOL (Wits), Associate Professor, College of Human Sciences, University of South Africa
Source: South African Journal of Criminal Justice, Volume 34 Issue 1, p. 1 – 30
https://doi.org/10.47348/SACJ/v34/i1a1

 

Abstract

Difficult text formulations, on the one hand, as well as poor linguistic skills and comprehension on the other, can severely hamper the communication effort of basic human rights during the judicial process. The rights entrenched in s 35 of the Constitution of South Africa (Act 108 of 1996), as they apply to individuals who are arrested, detained and accused, and read out by a member of the local South African Police Service (SAPS), are written in a legal register that can be too difficult for additional language speakers to understand. This begs the question of whether arrested, detained and accused individuals are fully aware of their rights and whether they can exercise these rights if they do not understand the language that expresses them. This article appraises the potential comprehensibility of the notice of rights (SAPS 14A), as provided to arrested, detained and accused individuals by the SAPS. The researcher’s assessments indicate that the text is pitched at an English readability level suited to university graduates and could be too difficult for South Africans with limited schooling and linguistic abilities to comprehend. A revision of SAPS 14A is offered as an illustration of a possible improvement to increase readability and, subsequently, better access to the mentioned rights.