Negotiated pleas: Policy and purposes

• Jurisdiction: South Africa
• Citation: (2007) 20 SACJ 17
• Date: 24 May 2019
• Pages: 17-45
• Published date: 24 May 2019
• Author: Mervyn E Bennun

Negotiated pleas:

policy and purposes

MERVYN E. BENNUN

*

ABSTRACT

Plea bargaining as it was before the Bill of Rights was unsatisfactory for it

served to de-legitimise criminal justice in South Africa. The enactment of

s 105A of the Criminal Procedure Act 51 of 1977 to codify and regulate the

process of negotiating agreements on pleas and sentences was necessary, but

there is a serious lack of clarity about what it should be used for and how it

should be used because it alters greatly the entire nature of a criminal trial by

by-passing the judge or magistrate. Some of the jurisprudential issues are con-

sidered.

‘Plea bargaining, although a dreadful practice, is thoroughly entrenched,

and any reform that would make this practice better (or less awful) is to be

cheered. . .’ .

1

‘In many courts, the guilty-plea process looks more like the purchase of a

rug in a Lebanese bazaar than the confrontation between a man and his

soul’.

2

Introduction

Plea negotiations are nothing new in South Africa. What is innovative is

the statutory formalisation

3

of the practice in an effort to regulate it, the

* BA LLB (Cape Town) LLB (London). Honorary Research Associate, Faculty of Law,

University of Cape Town. I continue in my debt to the hospitality of the Universityof Cape

Town and its Law Faculty and colleagues without which and without whose helpful

comments respectively, this paper would have been impossible. Steph van der Merwe at

the University of Stellenbosch was generous too, and his comments — but not necessarily

his views — are reflected in what I have written. Help also came through the moderated

internet list CRIMPROF — a stimulating company of academic and practising lawyers

specialising in criminal justice. None of the above shares my responsibility for any flaws in

this paper.

1

A W Alschuler ‘Straining at gnats and swallowing camels: The selective morality of

Professor Bibas’ (2003) 88 Cornell L. Rev. 1412 at 1423.

2

A Rosett ‘The negotiated guilty Plea’ (November 1967) 374 Annals of the American

Academy of Political and Social Science 75.

3

Section 105A Criminal Procedure Act 51 of 1977, inserted by s 1 of the Criminal Proce-

dure Second Amendment Act 62 of 2001.

17

(2007) 20 SACJ 17

© Juta and Company (Pty) Ltd

better to meet the requirements of the Constitution and the Bill of

Rights.

For many decades most murder cases were handled by counsel —

unpaid and acting pro deo — who were largely barristers at the start of

their careers at the Bar and who were assigned on a rota to defend

accused persons facing the death sentence. I have shameful memories of

the 1960s and the manner in which the impoverished and mainly black

accused were dealt with. Unaided junior counsel, mainly if not exclu-

sively white, and the almost invariably black accused were frequently

separated by an almost impenetrable language barrier (absent an avail-

able and willing court interpreter),

4

and the system encouraged inade-

quate work done impatiently. Negotiating a plea with the prosecution

often carried the desirable by-product of shortening proceedings in court

— the spur often being the convenience of counsel and the presiding

judge.

5

Now, plea bargaining has been flushed into the daylight out of the

shadows in which it once skulked. The South African Law Commission

recommended

6

legislation to enable agreements on sentences to be

negotiated between the defence and prosecution, considering that there

was already sufficient within the Criminal Procedure Act

7

to cover plea

4

Tribute must be paid to the interpreters, who generally tried to help notwithstanding

that they might well be the ones used at the trials especially on circuit.

5

Cf Alschuler op cit (n1) 1412: he specifically mentions the interest prosecutors have in

‘. .. maintaining comfortable relationships with defence attorneys and going home

early’. This paper is one of a series in which he and Professor Bibas engage in a vig-

orous debate on plea bargaining. See Stephanos Bibas ‘Harmonizing substantive crim-

inal law values and criminal procedure: The case of Alford and nolo contendere

pleas’ (2003) 88 Cornell L. Rev. 1361 and Stephanos Bibas ‘Bringing moral values into

a flawed plea-bargaining system’ (2003) 88 Cornell L. Rev. 1425. Judges also feature: I

have reason to remember appearing one Friday morning, as a very junior advocate,

in the Cape Provincial Division in 1964 or 1965 before a judge with a well known re-

putation for his brusque manner. The case I was defending pro deo involved the

death of the wife of the accused who was charged with her murder. He had made a

confession before a magistrate describing an all too common incident of drunken vio-

lence against a background of poverty and squalor. The prosecution accepted the

plea of guilty to culpable homicide; the judge had read the record of the preparatory

examination, and without hesitating he accepted the plea, convicted accordingly, de-

livered a curt homily in which he imposed a sentence of several years imprisonment,

and commented that to his pleasure he could start his weekend on the golf course

before midday. The entire case was disposed of in moments.

6

South African Law Commission Discussion Paper 94 (Project 73) ‘Simplification of Crim-

inal Procedure (Sentence Agreements)’ (2001) at para 5.18.

7

Act 51 of 1977.

18 SACJ *(2007) 1

© Juta and Company (Pty) Ltd