Administrative chaos at outlying Western Cape magistrate’s courts is leading to miscarriages of justice‚ say two high court judges.
In a hard-hitting judgment highlighting the “endemic problem”‚ Acting Judge Mark Sher and Judge Robert Henney say the problem affects defendants who cannot afford lawyers. They are particularly critical of Caledon and Montagu courts for taking up to three years over a task that should take a week.
The judgment scrapped a Caledon housebreaking case in which the defendant was convicted and given a two-year suspended prison sentence‚ saying “fundamental dereliction of duty ... has resulted in a material failure of justice”.
They gave the Director of Public Prosecutions a month to say why two other cases — from Caledon and Montagu — should not be treated similarly.
And they ordered the regional head of the justice department‚ Hishaam Mohamed‚ to audit deficiencies at courts in Caledon‚ Montagu‚ Vredendal and Ceres. Mohamed has to report back to the judges and the Magistrates’ Commission in three months.
The judges said they were alarmed by non-compliance with a requirement that certain sentences imposed by magistrates are automatically forwarded to the high court within seven days to be reviewed by a judge.
In the two Caledon cases‚ seven days became three years and two years respectively; in the Montagu case 20 months; in two Vredendal cases‚ four months; and in two Ceres cases‚ two months.
Excuses given included problems with courts’ digital recording systems‚ mislaid CDs‚ shortages of typists and laptops‚ incomplete transcripts‚ underperforming staff and lax management.
The judges said such delays damaged the integrity of the criminal justice system. “Automatic review still fulfils an extremely important function ... at a time when great poverty and rampant crime combined with a lack of legal aid resources often coincide‚” they said.
Law reports going back more than 50 years were “littered with cases in which judges have regularly lambasted magistrates” on the same topic. “The system is not working and it is high time that effective measures be put in place to rectify this‚” they said.
“Judicial proactivism requires that this court move beyond being a passive bystander lamenting lengthy and unnecessary delays in the automatic review process without doing something practical.”
In 2010‚ said Sher and Henney‚ the Chief Magistrates’ Forum had introduced procedures to tackle the problem. But they were “fragmented‚ inadequate” and not being enforced by heads of courts.
They called on Mohamed to introduce a list of outstanding automatic review cases‚ which would make it apparent when a particular court was in difficulties and needed help.
They also gave the heads of Caledon and Montagu courts 30 days to report on the status of all automatic review matters over the last three years.
Mohamed referred questions from TimesLIVE to justice department spokesman Mthunzi Mhaga‚ who did not respond.
Source: TMG Digital.
Useless! Judges give their damning verdict on magistrate's courts
In a hard-hitting judgment highlighting the “endemic problem”‚ Acting Judge Mark Sher and Judge Robert Henney say the problem affects defendants who cannot afford lawyers. They are particularly critical of Caledon and Montagu courts for taking up to three years over a task that should take a week.
The judgment scrapped a Caledon housebreaking case in which the defendant was convicted and given a two-year suspended prison sentence‚ saying “fundamental dereliction of duty ... has resulted in a material failure of justice”.
They gave the Director of Public Prosecutions a month to say why two other cases — from Caledon and Montagu — should not be treated similarly.
And they ordered the regional head of the justice department‚ Hishaam Mohamed‚ to audit deficiencies at courts in Caledon‚ Montagu‚ Vredendal and Ceres. Mohamed has to report back to the judges and the Magistrates’ Commission in three months.
The judges said they were alarmed by non-compliance with a requirement that certain sentences imposed by magistrates are automatically forwarded to the high court within seven days to be reviewed by a judge.
In the two Caledon cases‚ seven days became three years and two years respectively; in the Montagu case 20 months; in two Vredendal cases‚ four months; and in two Ceres cases‚ two months.
Excuses given included problems with courts’ digital recording systems‚ mislaid CDs‚ shortages of typists and laptops‚ incomplete transcripts‚ underperforming staff and lax management.
The judges said such delays damaged the integrity of the criminal justice system. “Automatic review still fulfils an extremely important function ... at a time when great poverty and rampant crime combined with a lack of legal aid resources often coincide‚” they said.
Law reports going back more than 50 years were “littered with cases in which judges have regularly lambasted magistrates” on the same topic. “The system is not working and it is high time that effective measures be put in place to rectify this‚” they said.
“Judicial proactivism requires that this court move beyond being a passive bystander lamenting lengthy and unnecessary delays in the automatic review process without doing something practical.”
In 2010‚ said Sher and Henney‚ the Chief Magistrates’ Forum had introduced procedures to tackle the problem. But they were “fragmented‚ inadequate” and not being enforced by heads of courts.
They called on Mohamed to introduce a list of outstanding automatic review cases‚ which would make it apparent when a particular court was in difficulties and needed help.
They also gave the heads of Caledon and Montagu courts 30 days to report on the status of all automatic review matters over the last three years.
Mohamed referred questions from TimesLIVE to justice department spokesman Mthunzi Mhaga‚ who did not respond.
Source: TMG Digital.
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