The development and operation of negotiated justice in the South African criminal justice system

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Pages: 239-262
• Citation: (2010) 23 SACJ 239
• Author: Megan B Rodgers
• Date: 16 August 2019

The development and operation

of negotiated justice in the South

African criminal justice system

MEGAN B RODGERS*

ABSTRACT

Negotiated justice has been introduced formally by statutory amendment

and accepted as a facet of criminal procedure in South Africa. It is, however,

important to acknowledge that two independent systems of negotiated

justice exist in South African criminal procedure, namely, statutory negoti-

ated justice and informal negotiated justice. This article def‌ines and analyses

these systems, and demonstrates the manner in which they co-exist. Since

the practice does not enjoy undivided academic support, the views of sup-

porters and detractors of the practice are also considered.

1. Introduction

On 14 December 2001 negotiated justice obtained statutory recogni-

tion in South Africa.1 Section 105A, which makes provision for the

practice, was inserted into the Criminal Procedure Act (CPA) by the

Criminal Procedure Second Amendment Act.2Negotiated justice

represents a movement away from the traditional adversarial system

which requires that the conf‌lict between the state and the accused

be settled through verbal confrontation before an impartial adjudica-

tor. Instead, the practice proposes that the conf‌lict be settled through

negotiation and compromise between the state and the accused. Yet,

this form of justice was not entirely unheard of within the conf‌ines of

the South African criminal justice system. Despite some opinions to

* LLB (UWC) LLM cum laude (UWC), Practising Attorney at Bowman Gilf‌illan Attorneys.

This article is based on research undertaken by the author in fulf‌ilment of the require-

ments for the LLM degree at the Faculty of Law, University of the Western Cape, under

the supervision of Dr R A Koen. The author acknowledges the valuable input made by

Dr R A Koen and Professor I Leeman who edited a draft of the article.

1 The term ‘negotiated justice’ is used to denote plea and sentence negotiations, as

well as plea and sentence agreements. Due to its versatility it may be used when the

negotiation or agreement pertains to: a guilty plea to a lesser charge and a reduced

sentence recommendation, or a guilty plea to a lesser charge without a reduced sen-

tence recommendation, or a reduced sentence recommendation without a reduction

in charge.

2 See Government Gazette 22933 of 14 December 2001. The amendment was assented

to on 7 December 2001. Section 105A was inserted by section 2 of Criminal Proce-

dure Second Amendment Act 62 of 2001.

239

(2010) 23 SACJ 239

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the contrary, the process of informally negotiating a plea existed well

before 14 December 2001 and took place at every level of the criminal

justice system.3It was this practice which motivated the enactment

of section 105A.

2. Informal negotiated justice

2.1Categories of informal plea agreements

There are various categories of informal plea agreements. The most

common is where the prosecutor and accused negotiate a guilty plea to

an offence which may be a competent verdict for the offence charged,

or an alternative charge.4 Thus, an accused charged with murder may

offer a plea of guilty to culpable homicide.5 Alternatively, the accused

may offer a guilty plea to the main charge but on a different basis

to that alleged by the state. An example would be where an accused

charged with murder committed with dolus directus offers a plea of

guilty on the basis of doluseventualis instead.6 Here the agreement

is aimed at reducing the moral blameworthiness of the accused. A

reduction in moral blameworthiness would serve as a mitigating factor

when the court considers the sentence to impose.7

A further category of informal plea agreements may f‌ind application

where there are two or more co-accused. Where there are two co-

accused, an agreement could be reached wherein one of the accused

agrees to plead guilty in return for the withdrawal of the charge against

the other.8 The prosecution would be inclined to conclude such an

agreement when there is doubt as to the guilt of one accused, but the

other is undoubtedly guilty.9

In all categories of informal plea agreements, the prosecutor and the

accused reach an agreement on the facts to be placed before the court.

This is aimed at justifying a conviction on the basis agreed to by the

parties.10

3 North Western Dense Concrete CC v Director of Public Prosecutions (Western Cape)

1999 (2) SACR 669 (C) at 674e.

4 PM Bekker, T Geldenhuys et alCriminal Procedure Handbook6ed (2003) 199. The

authors use the term ‘traditional plea bargaining’ to denote informal plea agree-

ments.

5 Ibid.

6 Ibid.

7 See North Western Dense Concrete CC supra (n3) at 673d.

8 North Western Dense Concrete CC supra (n3) at 673j.

9 North Western Dense Concrete CC supra (n3) at 674a.

10 Nor th Western Dense Concrete CC supra (n3) at 673h.

240 SACJ.(2010) 2

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