| (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 or her 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 or her as assessor or assessors.
[Section 93ter(1)(b) substituted by section 2 of the Judicial Matters Amendment Act, 2024, Notice No. 4597, GG50430, dated 3 April 2024]
(2)
| (a) | In considering whether summoning assessors under subsection (1) would be expedient for the administration of justice, the judicial officer shall take into account— |
| (i) | the cultural and social environment of the accused person; |
| (ii) | the educational background of the accused person; |
| (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, |
and he may question the accused in relation to the matters referred to in this paragraph.
| (b) | For the purposes of subsection (1)(b) a community-based punishment means— |
| (i) | correctional supervision as defined in section 1 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977); |
| (ii) | a punishment contemplated in section 297(1)(a)(i)(cc) of the Criminal Procedure Act, 1977; or |
| (iii) | a punishment contemplated in section 297(1)(b) or (4) of the Criminal Procedure Act, 1977, and where the performance of community service as referred to in the said section 297(1)(a)(i)(cc), is a condition for the suspension. |
| (3) | Before the trial or the imposition of punishment, as the case may be, the said judicial officer shall administer an oath to the person or persons whom he has so called to his assistance that he or they 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 he or they shall be a member or members of the court subject to the following provisions: |
| (a) | Any matter of law arising for decision at such trial, and any question arising thereat 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 voice in any such decision; |
| (b) | the presiding judicial officer may adjourn the argument upon any such matter or question as is mentioned in paragraph (a) and may sit alone for the hearing of such argument and the decision of such matter or question; |
| (c) | whenever the said judicial officer shall give a decision in terms of paragraph (a) he shall give his reasons for that decision; |
| (d) | 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, except when only one assessor sits with the presiding judicial officer in which case the decision or finding of such judicial officer shall be the decision or finding of the court if there is a difference of opinion; |
| (e) | it shall be incumbent on the court to give reasons for its decision or finding on any matter made under paragraph (d); |
| (f) | in the event of a conviction the question of the punishment to be inflicted shall, except in a case contemplated in subsection (1)(b), be deemed, for the purposes of paragraph (a), to be a question of law. |
| (4) | If any such assessor is not a person employed in a full-time capacity in the service of the State he 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 in connection with his attendance at the trial, and in respect of his services as assessor. |
| (5) | Every assessor shall, upon registration on the roll of assessors referred to in subsection (1), in writing take an oath or make an affirmation subscribed by him or her before the magistrate of the district concerned in the form set out below, namely— |
'I .................................................................(full name) do hereby swear/solemnly affirm that whenever I may be called upon to perform the functions of an assessor in terms of section 93ter of the Magistrates' Courts Act, 1944, I shall to the best of my ability make a considered finding or decision, or give a considered opinion, as the case may be, according to the evidence tendered in the matter.'
Subsections (6) to (9) inclusive:
[Section 2 of Act 67 of 1998, in so far as it adds subsections (6) to (9) inclusive, has not yet been put into operation]
| (a) | A judicial officer who is assisted by an assessors may, on application by the prosecutor or the accused person, order the recusal of the assessor from the proceedings if the judicial officer is satisfied that— |
| (i) | the assessor has a personal interest in the proceedings concerned; |
| (ii) | there are reasonable grounds for believing that there is likely to be a conflict of interests as a result of the assessor's participation in the proceedings concerned; or |
| (iii) | there are reasonable grounds for believing that there is a likelihood of bias on the part of the assessor. |
| (b) | An assessor may recuse himself or herself from the proceedings for the reasons contemplated in paragraph (a). |
| (c) | The prosecutor and the accused person shall— |
| (i) | before the recusal of an assessor is ordered in terms of paragraph (a); or |
| (ii) | in so far as it is practicable, before the recusal of an assessor in terms of paragraph (b), |
be given an opportunity to address arguments to the judicial officer on the desirability of such recusal.
| (d) | The assessor concerned shall be given an opportunity to respond to any arguments referred to in paragraph (c), and the judicial officer may put such questions regarding the matter to the assessor as he or she may deem fit. |
| (e) | The judicial officer shall give reasons for an order referred to in paragraph (a). |
| (ii) | in the opinion of the presiding officer becomes unable to act as an assessor; |
| (iii) | is for any reason abset; or |
| (iv) | has been ordered to recuse himself or herself or has recused himself or herself in terms of subsection (10), |
at any stage before the completion of the proceedings concerned, the presiding judicial officer may, in the interests of justice and after due consideration of the arguments put forward by the accused person and the prosecutor—
| (aa) | direct that the proceedings continue before the remaining member or members of the court; |
| (bb) | direct that the proceedings start afresh; or |
| (cc) | in the circumstances contemplated in subparagraph (iii), postpone the proceedings in order to obtain the assessor's presence: |
Provided that if the accused person has legal representation and the prosecutor and the accused person consent thereto, the proceedings shall, in the circumstances contemplated in subparagraphs (i), (ii) or (iv), continue before the remaining member or members of the court.
| (b) | If, at proceedings which are continued in terms of this subsection, the judicial officer is assisted by the remaining assessor, the finding or decision of the judicial officer shall, in respect of any matter where there is a difference of opinion between the judicial officer and the assessor, be the finding or decision of the court. |
| (c) | The judicial officer shall give reasons for any direction referred to in paragraph (a), and for any finding or decision referred to in paragraph (b). |
