By regulating the plea-bargaining procedure, the government is attempting to make it more efficient
Judith February
The Department of Justice and Constitutional Development is introducing a Bill to fast-track the criminal justice system through a plea-bargaining arrangement. Such an arrangement entails an agreement whereby the accused pleads guilty to a charge before appearing in court, and in return, the prosecution recommends to the court the most appropriate sentence to be meted out for the offence.
If passed into law, the regulation would result in the speedy resolution of cases, and ease the backlog in the criminal justice system thereby saving costs in the process.
For these purposes, Project 73 of the South African Law Commission, investigated various ways in which to simplify South African criminal procedure, and the plea-bargaining regulation is one such mechanism.
The commission concluded that negotiations and discussions concerning the plea of an accused do take place in South African courts and are not considered illegal. More importantly, however, the Criminal Procedure Act 51 of 1977 does not regulate such sentence bargaining. Because of this void in regulation, the law commission proposed that sentence agreements be regulated by law and that the Criminal Procedure Act be amended to reflect this.
As a result, the Criminal Procedure Second Amendment Bill has been tabled in Parliament and makes provision for the prosecuting authority and an accused to enter into an agreement regarding the plea and sentence prior to formal pleading.
The legislation states that prior to an accused pleading to the charge brought against him/her, the prosecutor and the accused may negotiate and enter into an agreement in terms of which the accused pleads guilty to the offence with which he/she is charged (or one on which the accused may be charged) and a sentence that is appropriate for the accused, should the accused be found guilty of the offence and sentenced accordingly.
The Bill lays down certain circumstances within which the prosecutor and the accused may enter into an agreement. The prosecutor and the accused (or his/her legal representative) will only be able to enter into such an agreement after the prosecutor has consulted the police official dealing with the investigation.
The prosecutor must also take into consideration the nature and circumstances of the case, the personal circumstances of the accused and the interests of the community. If at all possible, the complainant may also be afforded the opportunity to make representations to the prosecutor regarding the content of the agreement and the possible incorporation of a clause that requires the accused to pay the victim compensation.
Any agreement dealing with plea bargaining must be reduced to writing. It must state that before the agreement was entered into the accused was informed about his right of silence, his right not to give self-incriminating evidence and the fact that he is presumed innocent until he is proven guilty. The agreement must contain the facts upon which it is based and the full terms of the agreement. All parties must sign the agreement.
At the stage when an accused appears in an open court, the prosecutor is to inform the court that an agreement has been entered into. The court, after reading the document, must satisfy itself that such an agreement has, in fact, been entered into.
The agreement will be read out in the open court and the court will question the accused to ascertain whether he or she confirms the contents of agreement. It will also ascertain whether the accused entered into such an agreement freely and voluntarily. If at any stage the court finds that the procedure laid down in the legislation has not been followed or that the accused cannot be found guilty of the offence as stipulated in the agreement, the presiding officer is required to inform the prosecutor and accused of such finding and reasons for it.
Should this be the case, the court has the power to order that the trial start afresh before another presiding officer, unless the accused waives his/her right to be tried before another presiding officer. Should the trial start afresh, the plea bargaining agreement is nullified.
Where the court has found that all the legal requirements of a plea bargain have been adhered to, that the accused can be found guilty of such an offence and that the sentence agreed to is appropriate, the agreement becomes binding and effective immediately. The accused will then be required to formally plead guilty to the charges and will impose the sentence as agreed upon in the plea bargain.
It is apparent that by regulating the plea-bargaining procedure, the legislature is attempting to simplify criminal procedure and make it more efficient. Hopefully this will see criminal courts running more smoothly and matters being dealt with more swiftly.
Judith February is the Legislation Monitor for the Political Information & Monitoring Service at the Institute for Democracy in South Africa