Lay participation in the South African criminal justice system: An assessment of the assessor system
Authors: B Tshehla & MC Marumoagae
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
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.