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3.1 Court facilities and services need to be available when and where the user requires them. In South Africa criminal cases are heard in three different courts, namely magistrates' courts, regional courts and the High Court. Since these courts have different jurisdictions and serve different geographic areas, access to these courts is affected. Most criminal cases are heard in the magistrates courts which are established for magisterial districts by the Minister of Justice. There are seven regional divisions with seats in Johannesburg, Pretoria, Bloemfontein, Durban, Kimberley, Port Elizabeth and Cape Town respectively. There are provincial divisions of the High Court with seats in Cape Town, Grahamstown, Kimberley, Pietermaritzburg, Bloemfontein and Pretoria and three local divisions of the High Court with seats in Durban Johannesburg and Port Elizabeth.
3.2 In the new constitutional dispensation the Republic is divided into nine regions. The political delimitation of regional borders was based on criteria like the rationalisation of existing structures and economic viability and it is clear that there should also be a re-evaluation of the court structures. There is clear recognition of the need to bring justice closer to society in order to restore confidence, legitimacy and credibility in the administration of justice. However, factors such as cultural and language differences and demography will make the achievement of this ideal very difficult. It must also be accepted that some regions have stronger and more developed infrastructures than others. This is a further complicating fact. For various socio-political reasons development in South Africa has always had an urban bias which caused rural communities to suffer neglect in most respects.
3.3 As a result it is claimed that there is an absence of courts in most rural areas. Communities, therefore, have to run after justice because they do not have courts in their own areas. They have to attend courts in their nearest town which is often not close to them. Because of the inadequacy of the administration of justice in a number of instances[22] cases are remanded regularly, witnesses have to sleep over and they suffer inconvenience due to a lack of adequate or appropriate accommodation. Not only do people have to run after justice, but in numerous instances they also have to wait for it and sometimes justice is never seen to be done.
3.4 In general the criminal jurisdiction of the High Court and the lower courts (regional and magistrates courts) is dependent on the area within which the offence was committed; the nature of the offence to be tried; and the power of the court to impose a sufficiently severe sentence. In practice the magistrates courts are the most accessible while the regional courts and High Courts are less accessible due to their geographic distribution. In order to alleviate this problem the High Courts and regional courts make use of circuit sessions. In order to reach people in the rural areas the magistrates courts also make use of periodical court sessions at various places within the magisterial district where such needs arise. It is, however, clear that the present court structures and situation do not live up to the expectations of most of our citizens and these should also be re-evaluated in the light of our new constitutional dispensation.
3.5 The Commission is of the opinion that a re-assessment of the availability of courts (both High and lower courts) is called for. The Hoexter Commission was appointed on 24 March 1995 to inquire into the rationalisation of the Provincial and Local Divisions of the High Court. Part of its terms of reference is to report on the efficacy or otherwise of the existing areas of jurisdiction, the desirability of altering court structures and/or existing areas of jurisdiction.
3.6 With regard to the lower courts the Commission concluded in its interim report on Simplification of Criminal Procedure that the geographic distribution of regional courts causes unreasonable delays in the disposition of criminal cases and proposed an amendment of the Criminal Procedure Act to speed up the transfer of cases to regional courts. The Commission did not specifically evaluate the geographic distribution of the lower courts with a view to improving access to the courts, but is of opinion that such an investigation is called for.
* Proposals for comment
3.7 The Commission is of the opinion that the following proposals should be considered with a view to improving access to justice -
(aa) A re-assessment of the structure and jurisdiction of the High Court and the lower courts. This is a long term solution and the Commission is of the opinion that the terms of reference of the Hoexter Commission should be broadened so as to include the lower courts.
(bb) Short term solutions might be:
(i) The establishment of temporary court structures or mobile courts in affected rural areas, or
(ii) Broadening the existing criminal court structures by giving statutory recognition and criminal jurisdiction to -
*community courts;
*courts of petty sessions (similar to the small claims courts in civil law) presided over by lay magistrates. (More detailed proposals on the establishment of community courts and courts of petty sessions are discussed later in this paper.)
3.8 The Commission invites further suggestions and proposals for reform in this regard.
3.9 In South African it is a well established principle in criminal procedure that court proceedings are conducted in public. There are, however, exceptions to this principle. Criticism is levelled against the system because of the formal, oppressive and intimidating environment in which court proceedings are conducted. This problem is enlarged by the fact that illiterate accused persons are often confronted by this unfriendly environment without the assistance of a legal representative to face criminal charges conducted in procedures they do not understand.
3.10 Courts and tribunals should be accessible and buildings be designed with the needs of particular groups in mind, for example physically disabled persons. The physical facilities of existing courts in South Africa should be more user friendly.
* Proposals for comment
3.11 Access to the courts and their facilities should be improved in the following ways:
(aa) By evaluating existing facilities with the view to effecting changes where needed to make them more user friendly;
(bb) New facilities should give due consideration to a user friendly environment;
(cc) Every court should have an information desk where enquiries could be made;
(dd) Flexibility in services provision is an important feature of a more user-oriented court system. Court facilities and services need to be available when and where the user requires them.
(ee) Easy access to processes such as counselling and mediation is clearly most important. These processes are designed either to provide early settlement of disputes or to prevent disputes arising in the first place.
(ff) Innovative use of technology also can make court facilities available to many areas without the need for expensive infrastructure. Rather than requiring people to travel great distances to access the courts, innovations such as video conferencing and greater use of telephone conferencing can bring the courts to their users.
(gg) Distribution of brochures explaining the court facilities which are available and which courts should be attended in particular instances.
(hh) Taking steps to make the documentation of the courts accessible.
(ii) Adopting practices to overcome geographical isolation.
3.12 The Commission invites further comments, suggestions and proposals for reform.
3.13 The Commission has already pointed out that a large section of our population has no confidence in the legal system. Steps should be taken to address this problem, also in the criminal justice system. While there is no doubt that the idea of community or lay involvement in the judiciary is acceptable, it is necessary to give content to the idea. Creating models for future implementation is urgently needed. It is conceded that some models of lay participation in a deeply divided polity such as ours may cause extreme difficulty, but the practicability of lay participation should be assessed in order to ensure that our judicial system is accessible to all our communities.
* Possible solutions
3.14 A number of solutions should be considered:
(i) The jury system.
3.15 Although not many would support this system it should not be rejected for this reason alone. The suggestion that the jury system be reintroduced has been made over the last few years and it deserves consideration notwithstanding the criticism levelled against it. It should be one of the options submitted to the public for comment. A brief discussion of the advantages and disadvantages of the system will highlight the viability of the system and its operation is accordingly set forth in some detail. The discussion is based on the Commission’s report on Constitutional Models and a reference to that discussion appears to be sufficient for purposes of this discussion paper.[23] It should be pointed out that a legal system will not acquire legitimacy unless it reflects social reality.
3.16 The jury system was introduced in South Africa in the 19th century. Before the British occupation of the Cape in 1806 there was no institution such as a jury system at the Cape. Roman-Dutch law was applied and it did not recognise an institution such as the jury. In 1809 the legal system in Holland was replaced by the Code Napoleon and the legal system in South Africa was thereafter restricted to Roman-Dutch law as it applied in Holland before 1809. Any changes in the application of the law, especially with regard to criminal procedure and the law of evidence, were thereafter characterised by receptions from English Law. Towards the end of the rule of the Dutch East India Company a commission recommended that a court should be constituted of a judge and six members of a council. Three members of the council were to have legal qualifications and three were to be elected from the most important and most influential colonists.[24] The jury system was introduced at the Cape in 1828 together with the reception of the English law of evidence and rules of criminal procedure. Natal accepted the jury system in 1845, the Orange Free State in 1854 and shortly thereafter the Transvaal. Various laws dealing with the jury system were adopted.
3.17 In 1914 provision was made for the institution of special courts that functioned without juries. These courts tried cases of a political nature. Even before Union the former colonies had such courts.[25]
3.18 The Criminal Procedure and Evidence Act 31 of 1917, contained extensive provisions regulating trial by jury. These included provisions that criminal trials in higher courts were to take place before one or more judges and a jury consisting of nine men. At least seven members would determine the verdict.[26] The Act contained extensive provisions regarding the qualifications, disqualifications and exemptions of jurors.
3.19 Section 216 of Act 31 of 1917 also provided that any person who had been notified that he was to stand trial on any charge in a local or provincial division of the Supreme Court, could, by way of a notice directed to the registrar of the court concerned, insist on being tried without a jury.[27] A far- reaching amendment was introduced in 1935 when the Minister of Justice was authorised to order trial without a jury in certain cases. Professor S A Strauss[28] has the following to say in this regard:
These were cases where the accused was charged with certain offences of a political nature, offences relating to illicit dealing in, or possession of precious metal or precious stones, or to the supply of intoxicating liquor to natives or coloured persons, to insolvency, or the commission of any offence towards, or in connection with a person of a different race. To this list was added in 1948 offences in connection with which expert knowledge of bookkeeping or accounts was necessary, in 1954 offences in connection with which expert knowledge of mineralogy and metallurgy was necessary and offences under the Suppression of Communism Act, 1950.
3.20 Since 1948 the power of the Minister of Justice to order trials without jury gradually increased. In 1958 the Minister made 35 orders, 46 in 1957, 56 in 1954 and 62 in 1955.[29] Confidence in trial by jury continued to decline and in 1954 this was reflected in an amendment to the criminal code. This amendment provided, inter alia that trial without a jury would take place except where an accused (or all the accused depending on the case) otherwise elected.[30] However, this choice did not exist where the Minister exercised his power to order a trial without jury. In 1958, when the Supreme Court was empowered to impose the death penalty if it was found that aggravating circumstances attended a robbery (or attempted robbery) or house-breaking (or attempted house-breaking) with the intent to commit a crime, a judge, who presided at a trial without a jury, was obliged to appoint two assessors for such trial. The principle that in a case where the death penalty may be imposed, a verdict must be given by a court that consists of more than one member, was introduced for the first time in 1935. The amending Act referred to above retained this principle.[31]
3.21 In practice, trial by jury had already been replaced by trial by a judge and assessors before the adoption of the new Criminal Procedure Act 56 of 1955.[32] The Abolition of Juries Act 34 of 1969 finally did away with the jury system. Even before the abolition of the system it had, to a large extent, fallen into disuse. Various reasons have been advanced for the abolition of the jury system, including the fact that members of the public were extremely reluctant to serve on the jury; various excuses were used for not serving on a jury;[33] the number of persons who were exempted from jury service was so great that few competent persons remained; and the Minister of Justice had acquired such wide powers to order that certain trials be conducted without a jury that the use of trials by jury had declined in practice.
3.22 One of the reasons which led to the abolition of the jury system, namely South Africa's complex race relations, is today advanced as justification for its reintroduction.[34] The existing legal system has been criticised on account of an alleged lack of legitimacy. As already mentioned, it is now contended that the reintroduction of the jury system would alleviate this to a certain extent. Until the jury system was abolished it was the only means through which the public could participate in the application of criminal law. One of the reasons for the abolition of the jury system was the fear that an exclusively White jury would be prejudiced or could be perceived as being prejudiced in cases where the accused and the complainant were of different races. It is at present argued that the country's mores have advanced to such an extent that it is unthinkable that juries representing all South Africans could not be appointed. It is said that the introduction of a jury system would help to restore the legitimacy of the legal system.
3.23 Some advantages of the jury system are the fact that the jury is regarded as a counter to an oppressive government; ordinary people believe that their freedom is protected by juries; juries are frequently the starting point of the expression of a community's desire that unpopular legislation should be changed and juries involve citizens protecting the freedom of citizens. Some disadvantages are the inexperience of jurors and uncertainty as to whether they adhere to the judges' instructions; the inconvenience and financial implications attached to a jury system; the inadequate opportunity afforded to appeal because juries do not give reasons for judgment and the possibility of racial prejudices and the possibility of jurors being bribed.
3.24 Various factors have to be taken into account when considering the reintroduction of juries including the fact that in the USA statistics indicate that juries impose more severe sentences than judges; the costs involved in the reintroduction of a jury system is an important consideration because provision would have to be made for structural changes to court buildings to accommodate juries and places that are secluded and free of interruptions would have to be fitted out for jury deliberations; appointing people to serve on a jury might not be welcomed by the person in the street; from a financial point of view, an entirely new infrastructure would have to be created and staff would have to be appointed to deal with the selection and appointment of jurors, applications for exemption, etcetera; provision would have to be made for both the State and the accused to object to jurors and this issue could become highly sensitive, especially when the objection is based on a juror's views concerning racial matters, political affiliation, religious convictions or lack thereof, state of health, lack of education and the qualifications of jurors are likewise no easy matter; the introduction of a jury system would require the presence of all jurors, their swearing in, dealing with objections and so forth which would definitely lead to a more protracted rather than a shorter process; it could create use of a multiplicity of translaters with resultant costs; and it would invariably lead to further delays and postponements because of the absence of jurors or one of the interpreters”
* Proposal for comment
3.25 Should the jury system be reintroduced in South Africa and if so how should it operate?
(ii) Assessors
3.26 The jury system in South Africa was attenuated by legislation and was eventually abolished and replaced by the use of assessors. The use of assessors was recently extended by an amendment to the Magistrate's Courts Act 32 of 1944. This solution was also addressed in the Commission's report on Constitutional Models.[35] Professors H R Hahlo and E Kahn [36]point out that "with the decline in the jury trial has come (at least up to 1959) a rise in trial by judge and assessors".
3.27 The system whereby judges have a choice of sitting with or without assessors is well established in South Africa. Section 145 of the Criminal Procedure Act 51 of 1977 deals with this matter. A judge may sit alone or may appoint one or at the most two assessors at his discretion. The assessors must have experience in the administration of justice or special skill in any matter that may call for consideration during the trial.[37] In commercial cases an accountant may be nominated.
3.28 Prior to the new constitutional dispensation, in cases where the death penalty could be imposed, the presiding judge was obliged to appoint two assessors to assist him or her. This requirement led to complications since the judge had little material on which to make a prior decision in this regard. The judge relied heavily on the opinion of the Attorney-General or his representative, but he could not delegate this function.[38] Assessors could be summoned only if there was a trial and not if sentence alone was to be imposed. Assessors were required to take an oath or make an affirmation that they would give a true verdict according to the evidence. The judge alone decided upon any question of law and also decided whether any matter constituted a question of law or a question of fact. Questions of fact were decided by the majority of the court and the assessors could outvote the judge. In addition, assessors had a co-decision-making right concerning the factual admissibility of any confession or other statement by an accused. Sentencing was the function of the judge alone.[39] The judge could, however, discuss the sentence with the assessors.[40]
3.29 Provision also exists for the use of assessors in regional courts and magistrates' courts.[41] This section provides that the judicial officer presiding at any trial may, before any evidence has been led, with the approval of the Minister, summon to his assistance any person who has or any two persons who have, in his opinion, experience in the administration of justice or skill in any matter which may have to be considered at the trial. Such assessors are required to take an oath. Matters of law are decided by the magistrate and the magistrate also decides whether a matter for decision is a matter of fact or a matter of law. Upon all matters of fact the decision or finding of the majority of the members of the court constitutes the decision or finding of the court, except where only one assessor sits with the magistrate. In this case the decision of the judicial officer is the decision of the court. The imposition of sentence is regarded as a matter of law. Assessors are entitled to compensation unless they are public servants.
3.30 The system of assessors has been criticised because it seems that some judges often make use of the same assessors.[42] The fact that judges select their own assessors may create the impression that judges prefer certain individuals as assessors. The public may gain the impression that retired judicial officers who need an extra income are benefitted in this manner.
3.31 As has been stated above the use of assessors has recently been extended. In order to establish whether this is sufficient to address the problem of community involvement it is necessary to assess its working in practice, to determine its success and shortcomings and to identify problem areas. A number of proposals for the use of assessors in criminal trials were made at the Legal Forum on Access to Justice held in Durban on 17-19 November 1995 and the concept should be submitted for comments.
* Proposals for comment
3.32 The Commission invites comments and suggestions relating to the extension of the use of assessors in South African criminal law. The following proposals are submitted for comment:
Appointment of Assessors
(i) The judicial officer presiding in any division of the High Court or in the Lower Court may be assisted by two lay assessors at criminal proceedings in the following instances:
(a) the trial of all offences listed in Schedules 1 and 2 of the Criminal Procedure Act, 1977 (Act No 51 of 1977);
(b) in the hearing any all opposed bail applications in respect of the offences mentioned in the Schedules in sub-paragraph (i)(a);
(c) all other criminal proceedings or opposed bail applications in any division of the High Court or Lower Court wherein the presiding officer deems it expedient or upon the request of the prosecutor, accused or District Assessors Committee. Provided that in any criminal proceedings where expert assistance with regard to any specialised or technical aspect is required, the presiding officer may for this purpose appoint an expert assessor as one of the two assessors.
(ii) In civil matters in any division of the High Court or Lower Courts, the presiding officer may appoint two assessors, one of whom may be an expert assessor, in an advisory capacity.
(We include (ii) only because Parliament would probably deal with the appointment of assessors sv “Courts” rather than sv the Criminal Procedure Act; although strictly speaking it falls outside the ambit of our mandate).
Criteria for Appointment as an assessor:-
(i) An assessor to be appointed to assist the presiding officer on expert and/or technical aspects in any judicial proceedings, shall apart from his/her expertise, technical knowledge and experience, possess the appropriate academic or technical qualifications; or
(ii) An expert assessor shall only be appointed in a case where his/her academic or technical expertise is relevant to the issues to be determined;
(iii) A person appointed as a community assessor shall qualify on the basis of his/her acceptability as an assessor by his/her community where he/she lives.
Presiding officer to administer an oath or affirmation:-
A judicial officer shall administer an oath to the person(s) when appointed as assessor(s), that he/she will give a true verdict, or a considered opinion, as the case may be, according to the evidence upon the issues to be tried or regarding the punishment, as the case may be, and thereupon they shall be a member(s) of the court for the prescribed period.
Composition of courts with assessors:-
(i) In Lower Courts the Clerk of the Court shall allocate community assessors to assist the presiding judicial officer, on a rotation basis according to a fixed roster compiled by the District Assessors Committee as prescribed by the Regulations.
(ii) In the High Court(s) the Registrar shall allocate community assessors on the same basis as mentioned in subparagraph (i).
(iii) Deviation from the roster shall only be allowed on good grounds.
(iv) An assessor shall recuse himself/herself on good cause shown.
Decisions and findings: Procedure:-
(1) (i) The assessors together with the presiding officer shall decide on all matters of fact;
(ii) any matter of law arising for decision at such trial, and any question arising as to whether a matter for decision is a matter of fact or a matter of law, shall be decided by the presiding judicial officer and no assessor shall have a say in any such decision;
(iii) the presiding judicial officer may adjourn the hearing for argument upon any such matter or question as is mentioned in paragraph 1(ii) and may sit alone for such hearing;
(iv) upon all matters of fact the decision or finding of the majority of the members of the court shall be the decision or finding of the court;
(v) it shall be incumbent on the court to give reasons for its decision or finding on any matter made under paragraph 1(ii) or 1(iv).
(2) The State shall be entitled to appeal to the Provincial Division of the High Court against any decision or finding made under paragraph (1)(i), (1)(ii) or (1)(v).
Tenure of office:-
(1) The appointment of a community assessor shall be valid for a period of one (1) year from his/her date of appointment.
(2) An expert assessor (defined in paragraph (ii) under the heading “appointment of assessors”) shall only be appointed in a specific case when his/her expertise is relevant to the issues to determined.
Death or incapacity of assessor
(1) If an assessor dies or, in the opinion of the presiding officer, becomes unable to act as assessor at any time during a trial, the presiding officer may direct -
(a)that the trial proceed before the remaining member or members of the court; or
(b)that the trial start de novo, and for that purpose summons an assessor in the place of the assessor who has died or has become unable to act as assessor.
(2) Where the presiding officer acts under subparagraph (1)(b), the plea recorded shall stand.
Remuneration of assessors:-
If any assessor is not a person employed in a full-time capacity in the service of the State he/she shall be entitled to such compensation as the Minister, in consultation with the Minister of Finance, may determine in respect of expenses incurred by him/her in connection with his/her attendance at the trial, and in respect of his/her services as assessor.
General Provisions:-
An assessor appointed to assist a presiding judicial officer shall comply with the general rules of the court to ensure that the court decorum is at all times maintained.
Power of Minister to make rules:-
The Minister may make rules regulating the following matters in respect of the appointment of assessors in courts:
(a) The establishing of District Assessor Committees, including their functions, powers and term of office;
(b) Requirements for appointment of an assessor and procedure of evaluation of applicants, including disqualifications and/or code of conduct for assessors;
(c) Training of assessors;
(d) Remuneration of assessors;
(e) Any other matter which he may consider necessary or expedient for carrying out the abovementioned objectives.
* Introduction
3.33 As stated in chapter 1, the Minister indicated that he already initiated an investigation into a system of lay magistrates similar to the British model. It is, however, for purposes of the Commission's current investigation, also necessary to obtain the input of all interested parties in this regard and to co-ordinate it with the investigation already initiated by the Minister. This proposal was also addressed by the Commission in its report on Constitutional Models.[43]
3.34 A predominantly White male bench runs the risk that it will be regarded as being out of step with the social realities within which the crimes being heard were committed. Judges may find it difficult to understand sources of evidence that originated in a social milieu that is foreign to them.
3.35 In this regard it is useful to take note of the English system of lay magistrates, lay justices and lay justices of the peace. Under this system cases in magistrates' courts are dealt with almost entirely by amateur judicial officers. In 1987 there were 27 000 such judicial officers, 24 000 of whom were active. Only some 55 magistrates are paid full-time professional officials.[44]
3.36 In South Africa unofficial dispute resolution has been the norm in black metropolitan areas as long as these areas existed and official legal institutions regarded to be of secondary importance. The people's courts, which gained prominence in the latter half of the 1970's, were the historical antecedents of the politicised people's courts that came to the fore in the mid 80's.[45]
3.37 The proliferation of these courts in the 1980's was attributed to the failure of the formal court structure to administer justice and to the political aim of a certain section of the black community to render state institutions inoperative by creating alternative institutions. The inability of the existing legal system to address the needs of ordinary citizens was not merely due to the content of the substantive law, but also because the structure and procedural requirements of the courts meant that many people were denied access to the courts.[46]
3.38 The existing courts suffered a lack of legitimacy for a number of reasons. The imposition of apartheid legislation and its enforcement by the police alienated blacks from the formal legal structures. The policies of forced removals, influx control and the Group Areas Act contributed to the alienation. The law for the blacks was consequently a source of harassment, humiliation and degradation. The law became an instrument of repression. The enforcement of the policies of apartheid by the police and their limited presence in the townships, inadequate infrastructures to facilitate proper investigation of crime and their reluctance to apprehend and successfully prosecute criminals contributed to the lack of confidence in the police as a source of protection.[47]
3.39 Culturally alienating court proceedings were conducted in a language which caused many accused to rely on interpreters whose accuracy could not be guaranteed. Access to legal representation was near impossible and the costs of litigation was a serious inhibiting factor.
3.40 The result was that informal structures replaced the formal structures. One of the consequences of the townships rebellion has been the collapse of township based structures and the people's courts played a vital role by offering an alternative institution of government.
* The practice of the informal courts
3.41 Informal courts were established by a variety of bodies, which included gangs, political parties, sports teams and groupings of concerned citizens. In some instances the officers of these courts were elected and in others self appointed. The courts generally exercised control over a limited geographical area and matters that came before them related to the purpose for which they were established. Courts without political affiliation restricted themselves to every day disputes arising within the community for example, domestic disputes between neighbours, custody and maintenance cases, allegations of witchcraft and a variety of crimes including theft and house breaking, but not serious crimes such as rape or murder. The latter cases were referred to the police. These courts were also concerned with every day life in the community and attended to street cleaning, burials and monitoring arrivals and departures within the community.
3.42 The procedures adopted in these courts varied. Many of the procedures could be linked to customary values and purported to ensure reconciliation within the community. Greater emphasis was placed on the individual and his circumstances than on the offence itself. Both parties were given the opportunity to present their cases and to cross examine one another. The court played an active role and the procedure was inquisitorial. In some instances these courts accepted rightly or wrongly that the accused was guilty, concentrating on the severity of sentence was the main concern.
3.43 In a number of courts the verdict was determined in accordance with majority vote and the decision as to sentence was taken in similar fashion. Sentencing practices, however, reflected a great disparity. In some instances it was possible to appeal to a higher court but in most cases there was no recourse to an appeal court.
3.44 In the post-apartheid South Africa and since the introduction of the new Constitution the revolutionary role of people's courts became obsolete. However, effective government is dependent on a legitimate legal system and popular lay courts can play a vital role in legitimation through greater popular participation in the formal legal system.
* Proposals for comment
(i) The establishment of community courts
3.45 The establishment of community courts represents an attempt to create an institution with roots in the community that could be useful in the resolution of disputes. It has been suggested that community courts should be established to introduce community participation in the adjudication process and that such courts should also exercise criminal jurisdiction. The Law Commission has a separate project on its programme which will address the whole question of alternative dispute resolution mechanisms. That investigation (Project 94-Arbitration) has been broadened to include alternative dispute resolution mechanisms at all levels and the establishment of structures for alternative dispute resolution will also be addressed in the course of that investigation. However, with regard to access to the criminal justice process the two investigations overlap in that the establishment of community courts, and recognition of the role of traditional courts and traditional leaders in the criminal justice process are also options to be considered in improving community participation in the criminal justice process. For the purpose of this investigation comments are therefor also invited on these options and there will be coordination between the project committees for the two investigations for the purpose of making final recommendations on these issues.
3.46 The Commission invites comments and proposals for reform on the following issues:
(a) Should communities be involved in the fight against crime and to what
extent should formal recognition be given to their involvement?
(b) Should there be formal recognition of community based structures such as community courts in the adjudication of criminal justice?
(c) How should community courts be composed and what functions should be performed in relation to the criminal justice process?
(d) Where should community courts be located, what criminal jurisdiction should they have, what should be the nature of the proceedings, what type of sentences should be imposed, should there be a referral system, should there be an appeal system, what training should be provided, and to what extent should provision be made for administrative resources?
(e) What role should traditional courts play in the criminal justice system?
(f) To what extent should traditional leaders be involved in the criminal justice system?
(ii) The introduction of courts of petty sessions similar to the small claims court
3.47 The system of small claims courts was instituted in 1985 in our civil procedure in order to make the law more accessible to the man in the street. The question arises whether a similar system should not be introduced in criminal law.
3.48 The small claims courts have limited jurisdiction and the procedure is largely informal. The presiding officer is a commissioner who is either a practising advocate or attorney or a legal academic or any other competent person who offers his or her services free of charge. Parties to the case are not assisted by legal representatives and the commissioner's decision is final. For the purposes of execution of sentences the procedure can be transferred to the magistrates courts.
3.49 Questions that must be answered are whether the introduction of courts of petty sessions is a viable option, who should be appointed as presiding officers, what should the jurisdiction of such courts be, what procedure should be followed, should there be provision for appeals and review of decisions and how will the procedure in such courts be influenced by the provisions of the Bill of Rights contained in the Constitution?
[22] Compare the Commission's interim report on Simplification of Criminal Procedure chapter 2.
[23] 1991 1147 - 1159.
[24] J A Chubb "The jury system" 1965 SALJ 195.
[25] S A Strauss "The development of the law of criminal procedure since Union" 1960 Act a Juridica 164.
[26] W H Lansdown The South African Criminal Procedure and Evidence Acts 1917 - 1935.
[27] W H Lansdown The South African Criminal Procedure and Evidence Acts 1917 - 1935 131 - 132.
[28] S A Strauss "The development of the law of criminal procedure since Union" 1960 Acta Juridica 164 - 165 -. See also H R Hahlo and E Kahn The Union of South Africa: the Development of its laws and Constitution Cape Town: Juta 1960 259.
[29] H R Hahlo and E Kahn The Union of South Africa 259.
[30] H R Hahlo and E Kahn The Union of South Africa 259.
[31] H R Hahlo and E Kahn The Union of South Africa 259 - 260.
[32] Dugard Introduction to Criminal Procedure Vol IV 39.
[33] Minister of Justice Debates of the Senate of the Union of South Africa, Second Session, Twelfth Parliament 1959 1208.
[34] Editorial August 1990 De Rebus 507. See also the newsletter of the "People for Justice - Why is the jury still out" 1 November 1990.
[35] 1159 - 1160.
[36] H R Hahlo and E Kahn The Union of South Africa 262.
[37] V G Hiemstra Suid-Afrikaanse Strafproses Durban: Butterworths 1987 316.
[38] S v Dyanti 1983 (3) SA 532 (A) at 533 F-H. S v Schoba 1985 (3) SA 881 (A). See also D van Zyl Smit "The compulsory appointment of assessors" 1979 SALJ 173 and D van Zyl Smit "The compulsory appointment of assessors reassessed" 1984 SALJ 212.
[39] S v Sparks 1972 (3) SA 396 (A).
[40] S v Lekota 1978 (4) SA 648 (A).
[41] Section 93 ter of the Magistrates' Courts Act 32 of 1944.
[42] Van Zyl Smit and Isakov 1985 SAJHR 230.
[43] 1162-1163.
[44] J R Spencer Jackson's Machinery of Justice Cambridge: Cambridge University Press 1989 at 402.
[45] G G van Niekerk "People's courts and people's justice in South Africa- New developments in community dispute resolution" 1994 De Jure Vol 1 22.
[46] B Grant P Schwikkard "People's Courts?" 1991 SAJHR 304 at 305.
[47] B Grant P Schwikkard "People's Courts? 1991 SAJHR 304 at 307.
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