In March Melvin Muggels (18) was sentenced to 15 years for helping to saw off the head of a mentally disabled man in Mitchells Plain.
He had pleaded guilty and had not planned the deed, which spared him life imprisonment.
Muggels was participating in a plea-bargaining pilot project that has been under way for the past year in Cape Town. Pilot projects are also running in Port Elizabeth and Empangeni under the auspices of the National Directorate of Public Prosecutions and the Legal Aid Board.
Negotiations between prosecutors and those accused of crimes have long been part of the South African justice system, but negotiations over sentences are unregulated.
The Criminal Procedure Second Amendment Act gives certain prosecutors the authority to offer softer sentences in exchange for a guilty plea.
This involves negotiations between the prosecutor and the accused or his or her representative, and considers the views of the investigating officer and the victim.
The prosecutor puts the charge before the court, which checks that the facts of the case suit the plea, that the accused entered the agreement voluntarily and that all parties involved in the crime were consulted. If the court is not satisfied with the deal, it falls apart and a normal trial resumes before a different presiding officer.
The negotiated sentence is ratified if the court is satisfied with the procedure and the charge; the prosecutor and the accused can accept a new sentence or withdraw from the deal if the court is displeased with the sentence.
Swapping lighter sentences for guilty pleas is a fundamental part of the United States justice system, where between 85% and 95% of criminal cases are quickly resolved with guilty pleas — most of which come out of plea negotiations.
The South African Law Commission has suggested dropping the word “bargain” from “plea bargain” to avoid perceptions of easy deals for the accused. The commission touts the system for delivering “swift and certain punishment” that deters criminals and increases their chances of rehabilitation.
The commission says guilty pleas spare victims the trauma of giving evidence in humiliating public trials. The system dovetails with the principles of restorative justice: criminals can be rehabilitated; victims can be compensated more appropriately; and sentences can be tailor-made.
The plea-bargaining pilot projects are funded by the Open Society Foundation, a non-profit organisation, and enjoy the support the Ministry of Justice.
Led by the Legal Aid Board, the project includes training for prosecutors and magistrates.
This will be followed by a hands-on case-study training by a US judge and public defender at the beginning of September. Other partners include the US Bureau for Justice Assistance and the Vera Institute of Justice.
The law has triggered objections. A professor who preferred to remain anonymous argues that guilty pleas manipulate the justice system and compromise basic principles of justice.
Other critics fear it might have the dangerous and unintended effect of causing people to plead guilty when they are not.
The benefits of a quick resolution might outweigh the prospect of enduring South Africa’s notoriously sluggish court system, particularly when bail is likely to be denied.
The accused may plead guilty to robbery when only guilty of theft. The plea could buy him a settlement of six months in prison, rather than three years of waiting for the justice system to process a not-guilty plea.
Pamela Jane Schwikkard of the University of Cape Town’s criminal law department dismisses these concerns. She says that a false plea of guilty is unlikely to get past prosecutors, who must ensure that the facts of the matter sustain the plea.
“Prosecutors have the discretionary right to accept or reject a plea and they don’t want to waste their time.”
The National Directorate of Public Prosecutions says it welcomes the pilot programme.
“We are all learning,” says Jan D’Oliviera, Deputy National Director of Public Prosecutions. “We have particular difficulties with experience levels and we can’t do this hurriedly …”
Plea and sentence bargaining may diminish the number of awaiting-trial prisoners, but the directorate emphasises that nego-tiations are not a means of “bargaining away a sentence of imprisonment for a non-custodial sentence”.