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Reference: ICD

Enquiries : Johan Snyman

28 September 2001

The Chairperson

Justice Portfolio Committee


The Secretary to Parliament

PO Box 15

Cape Town



PER FACSIMILE: (021) 462 2142


1 Your Committee’s invitation to interested organizations and individuals to submit, before or on 30 September 2001, comments on or submissions in respect of the proposed procedure for implementing a system of plea (and sentence) bargaining in criminal trials, as embodied in the Criminal Procedure Second Amendment Bill (the "Bill") [B 45 – 2001], has reference.

2 By virtue of the fact that its statutory mandate, as contained in sections 53 and 64O of the SAPS Act, Act No. 58 of 1995 (as amended and read regulation 9 and Annexure 5 of the Regulations for Municipal Police Services), entails inter alia the conducting and/or monitoring of criminal investigations into complaints regarding offences allegedly committed by members of the SAPS and Municipal (Metropolitan) Police Services, as well as the submission of recommendations at the conclusion thereof to the office of the relevant Director of Public Prosecutions, it speaks for itself that the ICD has a definite and real interest in the proposed system of plea and sentence bargaining. This interest will obviously deepen, as can be inferred from the above, when a member of the SAPS or a Municipal Police Service is to be criminally prosecuted as a result of the ICD’s investigations into the allegations that led to the decision to prosecute and prosecution of the particular member(s).

3 In view and as a result of what has been explained in paragraph 2 above, I hereby wish to submit, on behalf of the ICD, the following comments and/or submissions in respect of the proposed provisions of the Criminal Procedure Second Amendment Bill for your Committee’s attention and consideration:

3.1 Although we agree with the conclusion reached by the South African Law Commission (Law Commission) in its investigation into the simplification of the South African Criminal Procedure (Project 73) that plea discussions and plea negotiations between the prosecutor and the accused (especially his or her legal representative) have been taking place (informally) in practice for some time already, a matter of concern has always been the question as to whether - and if so, to what extent – the investigating officer who investigated the case and, in particular, the complainant, was consulted by the prosecutor before such an informal plea bargain had been agreed on. The importance of consulting the said investigating officer and complainant in the process is rather obvious: any failure to consult or non-consultation with the investigating officer and complainant may, for obvious reasons, create the perception, for example, that the accused person or prosecutor, in collaboration with each other, may heinously "cover up" something, or that the prosecutor, by acceding to the accused’s "plea offer", is obtaining some benefit for him or herself. In short, a perception of corruption is created.

3.2 Our second concern about the implementation of a system of plea bargaining (as it is currently

known in its informal manner as well as in its proposed structured manner), stems from one of the major disadvantages of adopting an accusatorial, instead of an inquisitorial, approach to a system of criminal procedure. It has often been accepted, in principle, that by requiring from the prosecutor and accused to reveal the facts of the case to the Court according to the accusatorial approach, and not allowing the presiding Magistrate or Judge to actively and on an inquisitorial basis determine the said facts, the danger exists that the prosecutor and accused may beforehand and by way of consensus "manipulate" the facts to be presented to the presiding officer in a manner that suits both the prosecutor and accused. The most natural way in which such a result may be achieved is simply to select and agree on which facts from the totality of the facts are to be disclosed to the Court. This result may clearly be more easily achieved by not consulting with the investigating officer or the complainant.

It has been authoritatively stated that the accusatorial approach inherently lends itself more to the disclosure or revealing of the "formal" or "subjective" truth. The inquisitorial approach, it has on the other hand been said, more easily lends itself to establish the "objective" or "material" truth.

3.3 Having said the above, we have noted that in terms of clause 2 of the Bill, the proposed new section 105A (1)(b) of the Criminal Procedure Act (CPA) will provide that the prosecutor may only enter into an agreement contemplated in section 105A (1)(a)

"(i) after consultation with the police official charged with the investigation of the case; and

(ii) with due regard to the nature of and circumstances relating to the offence, the personal circumstances of the accused and the interests of the community; and

    1. if circumstances permit, after affording the complainant or his or her representative the opportunity to make representations to the prosecutor regarding –
      1. the contents of the agreement; and
      2. the inclusion in the agreement of a compensation order referred to in section 300."
    1. Although it is comforting to read that in terms of the proposed new section 105A(1)(b) of the CPA a plea and sentence agreement must be preceded by inter alia a consultation with the investigation officer and, if circumstances permit, the hearing by the prosecutor of the representations from the complainant or his or her representative, nothing is provided for to accommodate the situation where the agreement has been entered into without the prosecutor complying with the provisions of section 105A(1)(b)(I), (ii)and/or (iii). This, in our view, constitutes a serious shortcoming in the said provision. It is our considered view that this shortcoming ought to be rectified by the inclusion of a provision to the effect that non compliance with the provisions of section 105A(1)(b) (i)(ii) and (iii), shall nullify the agreement entered into and by making the investigating officer as well as the complainant (if circumstances permit) compulsory co-signatories of the written agreement (as provided for in section 105A(2), alternatively to require from the court to ensure, when acting in terms of the new section 105A(4)and (5), that the provisions of section 105A(1)(b)(i)(ii) and (iii) had been duly complied with.
    2. The ratio for our proposal contained in the previous paragraph is that in view thereof that the –
    1. court shall not, in terms of section 105A(3), participate in the negotiations contemplated in section 105A(1)(a); and
    2. court’s inquisitorial questioning powers and duties contemplated in section 105A(4) and (6) are aimed at and restricted to ensuring that –
      1. the accused confirms that an agreement has been entered into;
      2. the accused confirms the terms of the agreement and the admissions made by him or her in the agreement;
      3. the accused in fact admits the allegations in the charge to which he or she has agreed to plead guilty; and
      4. the agreement was entered into freely and voluntarily by the accused whilst he or she was and acted in his or her sound and sober senses and without having been unduly influenced.

In view of the above, it is thus nowhere specifically provided for that the Court must ensure, or be satisfied, that the provisions of section 105A(1)(b)(i)(ii)(iii) had indeed been complied with. The inclusion of such a provision (as proposed in paragraph 3.4, supra), we submit, is a sine qua non for ensuring, ex abundanti cautela, that the prosecutor and accused or his or her representative may not, either separately or jointly, "manipulate" the facts and circumstances of the case, or by so disclosing only the "formal truth", prevent the Court from establishing the actual and "material truth" of the case.

    1. Finally, I wish to submit the following additional proposal regarding the provisions of section 105A(1)(b)(i) to your Committee:

In this subsection reference is made only to "the police official charged with the investigation of the case". As has already been indicated in paragraph 2 above, the ICD is also conducting criminal investigations into alleged criminal conduct by members of the SAPS. In view of this reality, it is proposed that this subsection be amended by the inclusion of the words "or investigating officer of the Independent Complaints Directorate" between "official" and "charged" in the first line of the subsection. Our reason for this proposed amendment is that ICD investigators are not, in terms of the definition of this term in the SAPS Act, "police officials". This proposed amendment will make it clear that in the event of plea negotiations and a plea agreement where the accused is a member of the SAPS, the ICD investigator (instead of "the police official") will have to be consulted with before any such agreement may be lawfully reached (in this respect the ICD already experienced the unfortunate situation in which the Director of Public Prosecutions for Mpumalanga, despite an original decision to charge a SAPS member with murder, later reversed this decision after negotiations with the counsel for the defense but without consulting, advising, or even informing the ICD investigating officer, by deciding to charge the involved SAPS member with culpable homicide. We then requested the intervention of the National Director of Public Prosecutions and as a result he has ordered that the charge be amended from culpable homicide to murder).

4 It is my sincere hope that your Committee will give due consideration to the issues raised and referred to above. We would appreciate an opportunity to make oral representations to you.

Yours sincerely