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Revue internationale de droit pénal
érès

I.S.B.N.2-86586-990-3
638 pages

p. 273 à 284
doi: 10.3917/ridp.721.0273

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Vol. 72 2001/1-2

Discipline > Revue > Sommaire > Article

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Lay participation in South Africa from apartheid to majority rule

Milton Seligson S.C []*

Plan de l'article

• I. Introduction

• II. Historical Overview [1]

— Cape Colony :

— Natal

— Orange Free State :

— Transvaal :

— Union of South Africa (1910-1961) and Republic of South Africa (1961-1994):

— The Introduction of Lay Participation in the Magistrates’ Courts :

• III. The New Democratic Dispensation (1994 – The Present):

— Does lay participation have a future in South Africa ?

• IV. Conclusion

I. Introduction

The purpose of this paper is to trace the participation of lay persons in the judicial process in South Africa from colonial times, through the era of Apartheid, and during the new democratic era which commenced in 1994. Since that year South Africa has become a non-racial, constitutional state based on universally accepted democratic precepts, in which the black majority controls the government.

The principle of lay participation was largely inherited from England and for many years was an important component of the criminal justice system in the superior courts. However, the virtual exclusion of all persons except whites as jurors everywhere (save in earlier years in the Cape), in a racially divided society inevitably led to the gradual abandonment and eventual demise of the jury system in 1969. It was never a system that could be said to have contributed to the attainment of high standards of justice, or to have qualified as a representative form of participatory democracy in which lay persons played an important role in the administration of justice.

The dying days of apartheid saw the re-introduction of lay participation through the use of lay assessors in the lower courts which had until then never known lay participation. This was done in an attempt to involve the black majority in the all-white court system which was seen by many as illegitimate and unrepresentative. It will be seen that the experiment was not a success.

In the new democratic the use of lay assessors in the lower courts has been retained and extended. This has not, however, resulted in any major structural transformation of the court system. It represents a modest application of the principles of lay participation which could, however, provide a basis for the greater use of laity at least in the lower criminal courts. As this paper will seek to show, the jury system has no future or prospect of re-introduction under the prevailing conditions in South Africa.

II. Historical Overview [1]

Cape Colony :

In the Cape Colony, the jury system was introduced in criminal cases by the British in 1827. The laws governing juries followed the English model. Jurors had to be males, between 21 and 60 years of age, but did not have to be white. There was, however, a property or alternatively a tax liability qualification. Non-whites in fact sat fairly regularly on juries, particularly in Cape Town. The jury was composed of nine men. After 1854 juries of nine men were also provided for in civil trials in the Supreme Court, with certain exceptions.

Professor Kahn [2] refers to various contemporary accounts according to which criminal juries on occasion acquitted whites in homicide and assault cases, where the accused was white and the deceased or complainant black, in circumstances where the verdicts were nothing short of scandalous. Experienced judges such as Melius de Villiers, Sir Henry Juta (a judge of appeal) and later Albert Centlivres (a chief justice of South Africa), wrote critically of the role of juries in civil cases in the Colony on the basis that they were inclined to find in favour of the State, to award excessive damages in suits against it and against wealthy corporations, and were often irrational, prejudiced and emotional.

Natal

In Natal, the jury system was introduced in 1845 and the qualifications were similar to those in the Cape. Criminal juries consisted of nine, and civil juries (introduced in 1852) of seven males. By 1871 African jurors were virtually excluded by a qualification that they had to be exempt from the operation of “native law.” It appears that non-whites never sat on a jury, Indians being required initially to have the franchise to qualify, which was eventually ended in 1896. There were many contemporaneous press accounts of miscarriages of justice in interracial criminal trials, with the presiding judge distancing himself from the verdict.

Orange Free State :

In the Orange Free State, the 1854 “Grondwet” (Constitution) made provision for trial by a jury presided over by three lay magistrates. From 1856 the jury was comprised of six or nine men. While there was no racial qualification, in practice only whites were chosen as jurors. After the Anglo-Boer War legislation in what became the Orange River Colony required every white male resident between the ages of 30 and 60 years to serve as a juror. The other qualifications were similar to those in the Cape Colony.

Transvaal :

In the Transvaal (South African Republic) the constitution vested the judicial power in the “landdrosten” (magistrates) and jurors. Jurors were only involved in hearings in the superior court and were required to be enfranchised “burgers” (citizens), with the result that only males were eligible.

As Professor Kahn puts it : [3] “The judiciary was lay and some of its members were illiterate..[and]..directly or indirectly elected by the people. The administration of justice exemplified the worst features of Jacksonian democracy.”

Later, after the British annexation of the Transvaal, criminal trials were conducted before a judge and a jury of nine men. Civil matters were decided by the judge alone, though provision was later made for a civil jury at the request of a party. After the Anglo-Boer war, legislation similar to that in the Orange River Colony was introduced. It provided that criminal trials before a superior court were to be tried by a judge or judges and a jury of nine white men. Civil trials by jury were no longer possible.

Union of South Africa (1910-1961) and Republic of South Africa (1961-1994):

The four colonies became the provinces of the new Union of South Africa in 1910. In 1914 legislation permitted the constitution of special criminal courts composed of two or three judges sitting without a jury, to try charges of treason, sedition or public violence or breaches of the newly-introduced Riotous Assemblies Act. Similar provisions were retained in the Criminal Procedure and Evidence Act [4] of that year.

Subject to these provisions, the 1917 statute, however, retained the jury of nine men for criminal cases in the Supreme Court. [5] By stipulating the qualification of being a registered parliamentary voter, [6] the statute in effect preserved the pre-Union colonial position. Only in the Cape and Natal were there non-white males who qualified for jury service, though in Natal there was a de facto colour bar in this regard. In the Cape many people of colour could meet the property and income qualifications for jury service and there were multi-racial juries.

An important departure was the provision that the accused could elect to be tried without a jury before a judge, who could appoint two assessors who were magistrates, native commissioners or justices of the peace to assist him in an advisory capacity. Non-jury trials gain in popularity so that by 1947,75% of the Supreme Court criminal trials took place without a jury.

The 1917 statute thus introduced a uniform jury system in criminal matters throughout South Africa, with jurors being males between 25 and 60 years of age who were registered parliamentary voters who satisfied a property or income qualification, but opened the way to the whittling down of jury trials. In practice, except in the Cape Province, only white males served on the jury. Civil juries were retained in the Cape and natal, but were seldom used until they were abolished [7] in 1927, apparently mainly because of their predilection to find and award large damages against the Government and wealthy corporations.

In 1935 legislation brought about a significant change. An accused choosing a non-jury trial when charged with a capital crime (murder, rape or treason) or sedition had to be tried by a judge and two assessors selected by the judge as persons having experience in the administration of justice or skill in any matter expected to form an important aspect of the trial. The judge decided issues of law, but the assessors had a full voice in deciding questions of fact and could outvote the judge on such questions. Even if the accused elected a jury trial, however, the Minister of Justice could override that choice where certain specified offences were involved; more importantly, this dispensing power could be exercised if the charge involved an offence committed by a white accused against a non-white, or vice versa. The latter provision was justified in Parliament by the then Minister of Justice, General J. C. Smuts, on the basis that it was difficult to get an impartial decision from a jury in an alleged interracial offence.

A factor which further inhibited recourse to the jury system was the introduction in 1948 of legislation [8] permitting for the first time a full appeal on fact to the highest court, the Appellate Division. Further, the same statute expanded the power of the Minister of Justice to direct trial without a jury to include cases where a proper understanding of the fact might require an expert knowledge of bookkeeping or accounts. In subsequent years this encroachment on the right to a jury trial was steadily enlarged to include a variety of offences, culminating in 1961 [9] in the offences of murder and arson being made subject to the Minister’s power to exclude a jury trial.

In 1954 it was provided by statute [10] that criminal trials in the Supreme Court would henceforth be without a jury, unless the accused elected otherwise. Of course, in the latter case, the Minister could still exercise his power to order a non-jury trial or a trial by a special criminal court. By the same statute, non-white males who were parliamentary voters ceased to qualify as jurors. This exclusion of non-whites was retained by the new Criminal Procedure Act of 1955. [11]

Though white women had attained the franchise in 1930, [12] they could only serve as jurors on a special all-female jury on the application of an accused woman, or a male or female accused under the age of 18 years. It appears, however, that no jury was ever successfully empanelled. [13] Against this background it was only a matter of time before the jury system in South Africa was fully abrogated. It had largely fallen into disuse by the early 1960’s. Thus in 1961 only 2,8% of Supreme Court criminal trials held throughout the country were jury trials, whilst by 1968 the percentage was 0,48% (15 out of 3073 trials). [14]

The demise of the increasingly moribund jury system finally came in 1969 when it was abolished by the Abolition of Juries Act. [15] The system was clearly doomed to failure in a multi-racial society in which prejudice and discrimination were rife. Only white males were eligible, and as virtually all professional men were exempted from jury duty juries were not even representative of the white community. There were innumerable cases in which the racial bias of white juries resulted in blatant miscarriages of justice and where the presiding judge openly criticised the verdict of the jury. [16] An eminent judge gave the following realistic assessment of the jury system in a paper presented in 1971 [17] :

“Until its abolition it was the only significant medium through which the public participated in this area of the administration of criminal justice.

I think that its abolition was justified. Hardly any criticism was forthcoming, even from our most vehement critics, at home and abroad, at this rather revolutionary step. That this was so, in my view, reflects two public attitudes. First, that, by and large, there is considerable public confidence in the judicial officers presiding over those courts where juries were previously part of our system. Secondly, that it was generally accepted that in a plural society such as our own the maintenance and stability and equal justice for all in the superior courts could be seriously endangered if authority were to be vested in lay representatives of one ethnic group only, whilst the overwhelming majority of offenders comprised members of others groups.”

The Introduction of Lay Participation in the Magistrates’ Courts :

Until recently there was no history of lay participation in the inferior courts, known as Magistrates’ Courts, in South Africa. These are the courts in which most South Africans came face to face with the criminal justice system. The vast majority of criminal prosecutions are conducted there, and only the most serious criminal matters are tried in the High Court (formerly the Supreme Court). A district Magistrate’s Court has jurisdiction to impose a sentence of imprisonment of up to three years, in addition to a fine not exceeding an amount determined from time to time by the Minister of Justice by notice in the Government Gazette. [18] A regional Magistrate’s Court has a much higher jurisdiction, being empowered to impose imprisonment for a period not exceeding 15 years and a fine up to the limit similarly determined by the Minister. [19]

There had since 1954 been provision for the appointment of assessors to assist the magistrate in criminal trials, subject to the approval of the Minister of Justice. [20] This provision was rarely used in practice. In 1991, however, the section was amended [21] to make provision for one or two laymen or women to be appointed by the magistrate presiding at any trial. Such appointment can be made if deemed expedient for the administration of justice and before evidence is led, or in considering a community-based punishment (including correctional supervision or community service) in respect of any person convicted of an offence, for the purpose of assisting the Magistrate at the trial, or in the determination of a proper sentence, as the case may be. [22] In the case where an accused is standing trial on a charge of murder in a regional Magistrate’s Court, the judicial officer must be assisted at the trial by two assessors, unless the accused requests a trial without assessors, in which event the magistrate has a discretion to proceed with or without assessors. [23]

In considering whether to summon assessors to assist, the judicial officer is enjoined by the statute [24] to take into account factors which include the cultural and social environment from which the accused originates, as well as his/her educational background. The persons appointed as assessors need not be legally trained, nor need they have special skills which are relevant to the issues which may arise, as is the case in the superior courts. Assessors form part of the court as triers of fact and in determining punishment, except that any matter of law must be determined by the magistrate alone. [25] Indeed, the assessors may outvote the judicial officer on matters of fact, except where there is only one assessor in which case the magistrate’s decision or finding will prevail if there is a difference of opinion. [26]

It is not without irony that the appointment of assessors in the lower courts was aimed at restoring the concept of lay participation which had been entirely abandoned in the superior courts. Significantly, however, this re-introduction has occurred in the forum where by far the majority of criminal trials take place – the district and regional magistrates’ courts. The change was made at a time when the government of State-President F. W. de Klerk had begun to embark on a reformist course. The obvious aim was to involve communities to a greater extent in the legal process and to attempt to counteract the alienation felt by many blacks from the criminal justice system and their perception that the South African legal system, administered at all levels almost exclusively by whites, lacked legitimacy.

III. The New Democratic Dispensation (1994 – The Present):

A comprehensive study exploring the use of lay assessors in the lower courts between 1991 and 1998 was recently undertaken by the Law, Race and Gender Research Unit of the University of Cape Town. The results of this important study have been published in a work by Jeremy Seekings and Christina Murray entitled “Lay Assessors in South Africa’s Magistrates’ Courts.” [27] Lay assessors were not widely used prior to 1995, partly because of a general lack of interest in the system on the part of the magistracy and partly on account of widespread suspicion of the system in the non-white communities. [28] A notable exception was in Mpumalanga (the former Easter Transvaal) where black lay assessors were utilised on a regular basis in the magistrates’ courts during 1993 and 1994. [29] The overall percentage of cases in which such assessors was used was, however, exceedingly low. [30]

The issue of lay participation in the lower courts was not high on the African National Congress’s agenda for transforming the justice system, when it took power in 1994. A proposal for greater use of lay assessors in the courts did, however, find support from the newly-appointed Minister of Justice, Mr. Dullah Omar. In a speech in parliament he promoted the idea as follows :

“The object of lay assessors is to involve communities in the administration of justice. This would enable more and more people to identify themselves with the judicial system. In turn this would help to establish legitimacy and the credibility of our courts, particularly in a situation where courts are not yet properly representative of the population in terms of race and gender.” [31]

This coincided with an expansion of the lay assessor system, mainly in the Western Cape. The legitimacy of the courts in the eyes of the broader community was a strong motivating factor. [32] Although the system was nominally extended into all nine provinces of the country, in practice lay assessors are not often used by magistrates, many of whom have been critical of the reliability or competence of the assessors whom have been appointed. Of course, it is the magistrates on whose discretion the appointment of assessors in the first place in most cases wholly depends. [33]

It is significant that section 180(c) of the final Constitution [34] which is now in force provides that national legislation may provide for matters concerning the administration of justice not dealt with in the Constitution, including – “the participation of people other than judicial officers in court decisions.”

New legislation in this regard was proposed and published in 1998. [35] In fact, the changes proposed in the Bill are not far-reaching, though they do make the use of assessors compulsory in certain additional classes of case.

Magistrates, however, retain control over the appointment of assessors. [36] In response to the Bill, strong opposition was expressed both from within and outside the legal profession to the principle of lay participation in judicial decisionmaking. [37] The proposed legislation has not yet been proceeded with and it would appear that the Bill has been shelved for the present. The foremost reasons for this switch in policy are the resistance to the use of lay assessors by the magistracy as well as judges of the High Court and concern over the extent of the costs involved in a compulsory, nation-wide system of lay assessors. [38] In addition, serious problems experienced in combating high levels of crime and in achieving effective prosecution in the courts have absorbed the attention of the Department of Justice.

Seekings and Murray record that research conducted on the views of magistrates through questionnaires, in-depth interviews and informal discussions reveals that they are, on the whole, opposed to the lay assessor system :

“Most magistrates believe that the only value of assessors is in enhancing the legitimacy of the courts through changing public perceptions. The quality of justice is not improved very much, although assessors can ‘assist’ magistrates by providing advice on the culture and background of the accused. As far as most magistrates are concerned, there is nothing wrong with the quality of justice which magistrates administer; it is just that the public does not recognise the high quality of this justice.” [39]

In the four provinces surveyed the following profile of lay assessors emerged : there are more coloured and Indian than African assessors, together with a significant minority of white assessors; there are more men than women; most assessors are middle-aged or elderly; a high proportion, exceeding one-third, have a post-high school diploma or degree; most are from the professions (especially teachers), business or senior management, a sizable number are artisans or supervisory and office staff by occupation, and there are very few blue-collar workers or housewives. [40] Based on interviews with lay assessors themselves, the authors conclude as follows :

“Whether or not assessors make a difference in court in terms of what they bring to the bench, their very presence helps to keep ‘the magistrate on his toes,’ as one put it. In small towns, especially, magistrates come to wield a lot of power; the lay assessor system opens them to potential challenge, and thereby makes them more accountable. Assessors also say that they have helped transform public attitudes to the courts. In summary, in the words of a lay assessor from Lydenburg, lay assessors ‘bring the court to the people and the people to the court.’” [41]

A survey of the views of members of the public found that there was clear public support for the principle of lay participation in the courts. [42] Seekings and Murray reach the conclusion that professional magistrates and lay assessors have different contributions to make :

“They bring a variety of perspectives, rooting in sometimes different conceptions of justice. It is this mix of perspectives which seems to us to be the strength of the mixed bench that is provided for under existing legislation in South Africa.” [43]

The authors suggest that lay magistrates presiding over certain cases in recognised community courts should be considered as a means of extending lay participation and promoting cheaper and more accessible forms of justice. [44] They are of the view that the more extensive use of lay persons in criminal proceedings should not be ignored :

“Our research findings give us no reason to think that lay assessors do not enrich the administration of justice. This is reason enough to consider the use of appropriately experienced lay people as lay magistrates as one way, alongside court diversion projects and other initiatives, of alleviating the impossible situation facing South Africa’s lower courts at present.” [45]

It seems fair to conclude that the introduction of lay assessors in the Magistrates’ Courts has had modest results which can hardly be said to have transformed the South African criminal justice system. Nevertheless, the use of lay assessors represents a significant return to the principle of lay participation in the judicial process after a lengthy period of rejection. It has at least the potential to introduce an element of participatory democracy into an important area of the criminal justice system in South Africa where it has never existed before. As it is put by Seekings and Murray [46]

“The introduction of lay assessors represents a fundamental reform of the country’s lower courts – and it is these lower courts which handle the overwhelming majority of criminal trials in the country. Not only has the introduction of lay assessors been a mechanism for changing the racial composition of the bench (with, put bluntly, the use of mostly black assessors alongside mostly white magistrates). The use of lay assessors also serves to deprofessionalise the courts, removing the monopoly over judicial authority which professional magistrates (and judges) have enjoyed since the abolition of juries in 1969. Magistrates can be outvoted on the determination of guilt (on the basis of the facts of the case) by two assessors – although, in practice, very few magistrates have chosen to sit with two assessors. Over a very short period of time the power of judgment in district courts has shifted – at least potentially – from predominantly white professional magistrates to predominantly black lay assessors. Furthermore, the reintroduction of lay participation in the courts can be seen in terms of democratising this corner of the South African state. It is no exaggeration to suggest that this reform opens the way for potentially the most profound institutional change to the country’s lower courts since Union in 1910.”

Does lay participation have a future in South Africa ?

Apart from the possibility of the extended use of lay assessors in the lower courts (which, as explained above, has itself proved problematical), there is in my view no prospect that lay participation will find favour in the new South African democracy any time soon. The following combination of factors provides a powerful disincentive to the restoration of anything approaching the jury system in either the High Court or the lower courts :

the multi-ethnic and multi-cultural nature of south African society, giving it a heterogeneity which is likely to be at odds with the concept of a “trial by one’s peers.” Factional, linguistic and tribal tensions still exist and South Africa is still in many respects a deeply divided society.
the existence of eleven different official languages which are often used by member of different communities living in the same area. There are widely differing levels of proficiency in English and Afrikaans (still mainly the language of the Courts) and there are still large numbers of citizens who are illiterate or semi-literate. These problems would make it impractical, if not impossible, to empanel a truly representative jury in every case, fully able to understand the evidence. In addition, it would be difficult to find sufficient interpreters at short notice, to assist where jurors are unable to understand English or Afrikaans, or any other language which may be used;
the cost of providing juries could well prove prohibitive. The necessary funds are unlikely to be provided by the government at a time when fiscal constraints are already having an adverse impact on the efficiency and credibility of the criminal justice system. There are also the indirect costs involved in administering the system and the loss of productivity of the jurors in their work. Further, few courthouses would have the necessary facilities, as the jury system has not been in use since 1969;
the long-standing professionalisation of the court system in criminal matters and the unfavourable reputation of the previous jury system, means that both judges and magistrates are resistant to the principle of lay participation. This attitude is not confined to judicial officers who were appointed to the bench under the apartheid regime. It is a widely held view that lay participation, if any, should be limited to the use of lay assessors in the lower courts, even amongst non-white judges appointed under the new democratic Constitution. As the bench becomes increasingly more representative of the demographics of the country, this attitude is likely to prove a major obstacle to the reintroduction of the jury system.
as in many countries where it is in use, there is a widely held perception that the jury system is inappropriate in the computer age, where fraud and other “white collar” crimes often raise extremely complex issues and take up months of court time;
there is still a good deal of political turmoil and turbulence in various parts of
South African and an unacceptably high level of gangster-related crime. In cases involving politically motivated or gang-related offences, intimidation of jurors or biased juries could present serious problems

These views find support in the conclusions of Marshall S. Huebner in an article, “Who Decides ? Restructuring Criminal Justice for a Democratic South Africa.” [47] The author expresses the view that major structural changes are needed to attune the South African legal system with democratic principles. He advocates the expansion of a reformed assessor system in which the assessors are legally trained and not drawn from the laity, the so-called “mixed bench” system. He concludes, however, that the jury system is not a viable option for South Africa :

“In an overwhelmingly black country, the jury system immediately suggests itself as the logical counterbalance to the white judiciary. Closer examination, however, reveals three reasons why this alternative does not seem realistic. The first is the enormous administrative cost of implementing the system. The second is the fact that the jury is thought to be ineffectual and even counterproductive in societies with deep racial, religious, or cultural divisions. While South Africa presents one example, Africa has provided many others. These two reasons help explain the third – with remarkable unanimity, the South African legal (and reformist) community staunchly opposes juries.” [48]

IV. Conclusion

It may be accepted that in an ideal society the jury serves both as a manifestation of and a vehicle for participatory democracy, in which citizens play an important role in judicial decision-making, rather than being alienated from the arcane processes of the law. In South Africa’s fledgling democracy, however, fullscale lay participation in the judicial system appears to be a still distant goal. It is difficult to resist the conclusion that at the present stage of South Africa’s democratic development the re-establishment of the jury is not the way to the attainment of justice or the key to a soundly functioning judicial system.

NOTES

[*]

Senior Counsel of the High Court of South Africa and member of the Cape Bar, Cape Town, South Africa.

[1]

For a detailed historical account, see Ellison Kahn : Restore the Jury ? Or ‘Reform ? Reform ? Aren’t things bad enough already ?’ (1991) SALJ 672 at 679 et seq. The historical outline in the text which follows is based on Prof. Kahn’s article, later parts of which appeared in (1992) 109 SALJ 87,307 and 666 and in (1993) 110 SALJ 322.

[2]

Kahn : (1991) SALJ at 685-86.

[3]

Kahn : (1992) SALJ at 91.

Act No. 31 of 1917.

Section 165.

In Section 167.

By Act No. 11 of 1927.

Act No. 37 of 1948

Act No. 39 of 1961.

Act No. 21 of 1954.

Act No. 56 of 1955.

Act No. 18 of 1930.

Kahn : (1992) SALJ at 101.

[14]

Ibid. at 104.

[15]

Act No. 34 of 1969.

[16]

Kahn : (1992) SALJ at 105-110.

[17]

J. H. Steyn : Public Participation in the Prevention of Crime (1971) 88 SALJ 210 at 216.

[18]

Section 92(1) of the Magistrates’ Courts Act. No. 32 of 1944.

[19]

Ibid.

[20]

Section 93 ter of Act No. 32 of 1944 inserted by section 3 of Act No. 14 of 1954.

[21]

By section 1 of Act No. 118 of 1991.

[22]

Section 93 ter (1) of Act No. 32 of 1944 as amended.

[23]

Ibid., proviso.

[24]

Section 93 ter (2) of Act No. 32 of 1944.

[25]

Section 93 ter (3)(a).

[26]

Section 93 ter (3)(d). It should perhaps also be mentioned that in civil actions section 34 of the Magistrates’ Court Act makes it possible for one or two persons skilled or experienced in a matter to which the action relates to act as assessors in an advisory capacity in the Magistrate’s Court.

[27]

(1998) Published by the Law, Race and Gender Research Unit, University of Cape Town.

[28]

SEEKINGS AND MURRAY, op.cit., at 38.

[29]

Ibid., at 39-40.

[30]

Ibid., at 41.

[31]

Hansard, Questions and Replies, Thur 11 May 1995, col. 319-321.

[32]

SEEKINGS AND MURRAY, op.cit., at 48-50.

[33]

Ibid., at 52.

[34]

The Constitution of the Republic of South Africa, Act No. 108 of 1996.

[35]

The Magistrates’ Courts Amendment Bill (B33-98).

[36]

The Bill is reproduced in SEEKINGS AND MURRAY, at 220-23.

[37]

SEEKINGS AND MURRAY, op.cit., at 66-7. See also the criticism of the usefulness of the lay assessor system by the Court in S v. Gumbushe, 1997 (1) SACR 638 (N), a case in which the lay assessors had overruled the magistrate in convicting the accused. The High Court, on appeal, agreed that there was a reasonable doubt and set aside the conviction.

[38]

SEEKINGS AND MURRAY, op. cit., at 67-8.

Ibid., at 100-01.

Ibid., at 104-07.

Ibid., at 139.

Ibid., at 157-58.

Ibid. at 191.