Recent Case: Criminal procedure

• Author: Reddi, M.
• DOI: https://doi.org/10.47348/SACJ/v35/i1a6
• Published date: 07 July 2022
• Date: 07 July 2022
• Pages: 85-100

Criminal procedure

MANAGAY REDDI

University of KwaZulu-Natal

1 Plea and sentence agreements

In S v CA (2021 (2) SACR 443 (WCC)), which concerned an automatic

review in terms of s 85 of the Child Justice Act 75 of 200 8, the review

court was faced with a plea and sentence agreement in which the

prosecutor, the legal representative of the accused, and the court a quo

had not strictly adhered to the procedura l requirements of s 105A(4)(a),

105A (6)(a) and 105A(7) of the Criminal Procedure Act 51 of 1977

(hereafter CPA). The resultant irregular ities were (at paras [6]–[7]):

(i) The accused appeared before the court, and the prosecutor put the

charge to the accused without rst in forming the court that the pa rties

had concluded a plea-and-sentence agreement; (ii) At the start of the

proceedings the accused had not been asked to conrm i f such an

agreement had been drawn up; (iii) The court a quo had failed to satisf y

itself before the accused had pleaded, that the state had consulted

with the investigating ofcer regarding the nat ure of the offence and

the personal circum stances of the accused, and with the complaina nt;

(iv) After the accused had pleaded, his attorney had proceeded to

read into the record only the accused’s factual admis sions. Neither the

mitigating and aggravating factors nor the agreed sentence was read

into the record; and (v) In terms of s 105A(6)(a), after ensuring that it

was satised that the accused had admit ted all the allegations in the

charge, the court a quo had proceeded to convict the accused i nstead

of questioning him in term s of s 105A(7) and establishing whether he

had any previous convictions.

In interpreting the impor t of s 105A, Moosa J in S v Solomons (20 05

(2) SACR 432 (C)) at para [7], observed that in plea bargain ing, which

involves a fundamental shift from t he adversarial nature of our criminal

justice system, the state agrees to compound the offence in ret urn for

the accused waiving several of his constit utional trial rights. For this

reason, parliament considered ‘it necessary to make the provisions of

s 105A peremptory and strict compliance therewith is accordingly a

prerequisite’.

Therefore, one of the main issues for the decision before the review

court was whether the irreg ularities were of such a nature as to vitiate

the fairness of the proceedings. In dec iding on the issue, the review

court referred with approval to Moshidi J’s observation in S v Nel

(A352/07 [2008] ZAGPHC 43 (28 January 2008) at para [7]) that the

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85

(2022) 35 SACJ 85

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state and the courts must str ictly adhere to the s 105A provisions, and

an appeal court will be reluct ant to interfere in the matter unless t here

have been agrant or gross irregu larities or a violation of the accused’s

fair trial rights (at para [8]).

In nding that the ir regularities had not compromised the accused’s

fair trial rights, t he review court stated that ‘not all irreg ularities are

fatal and would lead to the setting aside of proceedings’ (at para [14]).

The court found that the ir regularities were not of a nature that

vitiated the legality of the proceedi ngs for the following reasons:

(i) the accused had been represented by an attorney; (ii) he had

admitted all the fact ual elements of the charge; (iii) he had conrmed

that he had pleaded freely and voluntarily and without undue inuence;

and (iv) the accused, his attorney and the prosecutor had all signed

the agreement (ibid). This, in the court’s opinion, indicated that t here

had been substantial compliance with the relevant s 105A provisions.

To bolster its nding that the irregular ities had not resulted in a failure

of justice, the review court referred to S v Ndlovu (1998 (1) SACR 599

(W)) at 601, where, referring to automatic-review proceedings, th at

court had maintained t hat the review judge is not required to certif y

that the proceedings are in accordance with t he law, but with justice.

In S v CA supra the court thus concluded that the accused’s conviction

had been in accordance with justice.

The somewhat more exible approach of the review court to assessing

whether there had been compliance with the s 105A provisions must

be welcomed. From the court’s stance in this matter, the following

conclusions can be distilled: First, t he more exible approach should

only be countenanced in instances where t he accused is legally

represented. This wil l ensure that there is no risk of the accused

being unduly inuenced into accepting a plea agreement. Equal ly

importantly, the expert legal guida nce of his lawyer will ensure t hat

the accused is fully in formed of all the consequences of enteri ng into a

s 105A agreement. Secondly, where irregularities have been identied,

in weighing whether the offending conduct is fatal, the focus should

be not merely on whether the legality of the proceedings has b een

vitiated. Instead, considerations of whether the i nterests of justice

will be served despite the ir regularities must also feature prom inently

in the assessment. Commendably, the review court in S v CA sup ra

displayed that it was undoubtedly on point on these aspects.

2 Arrest by private persons

Under the provisions of s 42 of the Crimina l Procedure Act 51 of

1977, the authority to arres t without a warrant has been extended to

private persons. However, the expectation is that the same level of

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