INDEPENDENT COMPLAINTS DIRECTORATE
REPUBLIC OF SOUTH AFRICA
Private Bag X 941, Pretoria, 0001
388 Andries Street, Pretoria, 0002
Web:http://www.icd.gov.za E-mail: email@example.com
Tel: (012) 392-0430 Fax: (012) 392-0454
Enquiries : Johan Snyman
28 September 2001
Justice Portfolio Committee
The Secretary to Parliament
PO Box 15
FOR ATTENTION: ZODWA ZENZILE
PER FACSIMILE: (021) 462 2142
SUBMISSION BY THE INDEPENDENT COMPLAINTS DIRECTORATE (ICD) IN RESPECT OF THE CRIMINAL PROCEDURE SECOND AMENDMENT BILL [B 45 – 2001]
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
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.
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.
ADV KD McKENZIE