[B45 2001]

The Bill intends to introduce formal plea bargaining ("PB") and so provide an avenue for the accelerated disposal of criminal cases. The mechanism seeks to address the backlog of eases. to reduce the present backlog and to keep future backlogs within manageable proportions.
This presentation will deal with:
-the contents of the Bill;
-matters which require clarification; and
-observations and caveats.

While there is consensus that the envisaged provisions are general workable, certain provisions require reconsideration and certain qualifications are called for.

Certain commentators feel that, instead of having a "section 105A", the PB-provision should be enacted as a subsection of s 112 CPA (plea of guilty) because of the kinship between the two.

However, the general view is that one can live with it as proposed. Certain suggested amendments to the text will draw the relationship closer to the practice pertaining to pleas of guilty.

1. CLAUSE 105A(l)(a) -
in order
2. CLAUSE 105a(1)(b)

2.1 Disregarding, for the moment, the matter of a s 300-compensation order [(b)(iii)(bb)], the purpose of subpar (b) is not clear. If a prosecutor does nut comply with the provisions, What remedy will be available?
2.1.1 Will they not serve only- to put the accused in a legal position to attack- the proceedings on appeal or review and have his/her conviction set aside (i.e. more litigation)?

If so, the State will not have the benefit of a provision such as s 113 in terms whereof a plea of not guilty must be entered and a trial be proceeded with.

2.1.2 If the only remedy for non-compliance is an internal disciplinary one, should subpar (b) not be deleted? Prosecutors would in any event have to comply with the directives of the NDPP (cf clause 105(1)(a)), and a numerous clauses should not be legislatively ordained.

2.2 Concerning compensation orders. there should be a separate permissive provision that is not limited to Section 300. "Compensation" may be of different kinds e.g. returning stolen property -. In any event s 300 has a civil enforcement mechanism and a maximum amount, which may not be appropriate in the circumstances.

3. CLAUSE 105A(2)
3.1 The provision is generally in order.
3.2 However, subparagraphs (a) to (d ) inclusive should be enacted as the statutory minimum and be expressed in such a way not to exclude other aspects. The NDPP's directives may include other important requirements - even a consultation requirement similar to subclause (1)(b)(i).
3.3 Subparagraph (c) would have to be amended in the light of par 2.2,supra
4. CLAUSE 105A(3) - in order
5. CLAUSE 105A(4) - in order
6. CLAUSE 105A(5) - in order
7. CLAUSE 105A(6)

Sub-clause (6) - is in order, but we wish to add provision for the noting of admissions which will be dealt with in the discussion of sub-clause (10), infra

8. CLAUSE 105A(7) - in order
CLAUSE 105A(8)

9.1 In subparagraphs (a) and (h) there is reference to the sentence being held to be respectively, "appropriate" and "inappropriate".

We are of the view that the notion "(in)appropriate" is not to he employed.

9.2 It is trite that, because of subjective discretion, views may differ on the appropriate sentence in a given case. Thus, one presiding officer could disagree with another. That should not be a reason to change the sentence.

As the provision stands, the presiding officer may - because of the element of subjectivity - disagree. with the result that a carefully negotiated sentence is too readily upset.

There should be a firmer "band of tolerance". It would be inappropriate to use the test reserved for appeal (viz. "disturbingly inappropriate").

Employing by analogy' the decision of the Supreme Court of Appeal in Henna MaIgas v The State SCA Case No 117/2000 dated 19 March 2001. We submit that the test should be whether the presiding officer regards the sentence as just or unjust. The notion of a sentence being "unjust" is equivalent to -

Disproportionate to the crime, the criminal and the legitimate needs of society

9.3 The stipulation, in subparagraph (a)(ii), that the accused be requested to plead to the charge, is unnecessary. There has been a questioning, the court's statement of its satisfaction and a provision
((a)(i)) that the agreement is binding upon prosecutor and accused. Why require a plea (again)?

It is recommended that subclause 8(a)(ii) should simply read that

"it is deemed that the accused has pleaded guilty"

or, better

that the court then be required to record the plea of guilty.

10. CLAUSE 105A(9)

10.1 Subclause (9)(a) is problematic.

It is necessary for there to be a procedure when the court ( having considered whether the sentence is just or unjust) has indicated that the sentence agreed to is too heavy - or too light. Therefore it is right that provision be made for the parties to abide by the "agreement with reference to the ". -

Subsection (9)(a), after opening up the hearing for evidence and argument on sentence, then proceeds to say that the court shall impose the sentence contemplated to in subsection (8)(b). It is not clear which sentence (agreed to, heavier or lighter??), but in any event the matter should be left at large.

By "at large" is meant that the normal sentencing procedure comes into play. Evidence and/or argument is presented for the court to decide de novo on sentence. The court will not be bound by the "Iesser", "heavier" or agreed sentence. As it would be difficult for the court to indicate with precision what "Iesser" or heavier sentence would be just, the parties would be at a disadvantage in deciding what quantum of evidence is required to get the court to re-consider its view. It would also be better, should an appeal be launched, to have the normal play of events in the trial court.

10.2 Subclause (9)(b), giving the prosecutor and accused the option to withdraw hum the agreement, is in order.

11. CLAUSE 105A(10)

Whilst subparagraphs (c) and (d) are supported. We are of the view that the unqualified subparagraphs (a) and (b) are too rigid.

11.1 Subparagraphs (a) and (b) protect the accused. That is acceptable as a principle.

11.2 Concerning subparagraph (a), if the accused desires to disc lose the agreement. why should he/she not be allowed to do so? Why should it be null and void?

11.3 As subparagraph (b) stands, it would prohibit formal admissions that might have been made in terms of a PB agreement, from standing at the subsequent trial.

It will be recalled that in the case of normal pleas of guilty (s112), the system has the benefit of s 113,. the proviso to which reads as follows

"Provided that any allegation, other than an allegation referred to above (i.e. unadmitted or incorrectly admitted allegations), admitted by the accused up to the stage at which the court records a plea of not guilty, shall stand as proof in any court of such allegation".

11.4 The court (which has ascertained certain admissions under sub-clause (6)) should be empowered to ask the defence which of its admissions or admitted allegations may stand for purposes of the trial.

11.5 It is unrealistic to expect of the prosecution, having spent time and effort to reach an agreement, to be put to the proof of all issues (i.e. start from scratch) when there are clearly matters which had been formally admitted and confirmed, albeit in a pre-trial proceeding.


It will be submitted below that a section should be added providing for the phasing in of the PB-provision.


A. The Bill does not address matters such as minimum sentences, forfeiture orders, orders relating to, for example, driver's licences or firearms licences nor importantly sentences which require a preceding procedure.

B. There are orders which a court may make and orders which a court must make after sentence. Because of the penal element in. for example. the suspension of a driver's licence. jurisprudence requires that to be taken into account in sentencing.

It is unclear what scope the prosecutor has in respect of such matters when entering into an agreement. It is difficult to accept that an agreement can override a statute or bind the court in these matters.

C. A major problem will be that of the sentence of correctional supervision. (It is a fact that the defence will, as a rule, push for correctional supervision instead of imprisonment).

Section 276A (CPA) provides that correctional supervision under 5 976(l)(h) is only to be imposed after a report of a probation officer or a correctional official has been placed before the court. An outside competent authority must determine whether an accused is a suitable candidate for correctional supervision.

The question which now arises is must the prosecutor take trouble to arrange such report(s) for negotiation purposes, when the exercise may be futile? The court may take the view that correctional supervision is out of the question. The result will be that time and resources will have been wasted.


This section of the presentation is clone with reference to views of DPP commentators. The observations will serve to indicate that much preparatory work in the area of infrastructure, control and monitoring will have to be done. They will also serve as a basis for the submission that a phasing-in process be legislatively provided for.

A. The DPP (WLD) points out that it will serve no useful purpose to rush into the new dispensation and that prosecutors will need intensive training in writing skills and the requirements of the proposed s 105A, i.e. apart from training with regard to NPA Directives on the subject.