A plea and sentence agreement, also known as a plea bargain agreement, is an agreement between an accused and the state, represented by the prosecutor, in terms of which an accused agrees to plead guilty in return for a lenient or reduced sentence. These agreements are common in the South African criminal justice system and are often initiated by accused persons who are desirous of having lesser sentences imposed on them. Prosecutors are also often inclined to initiate plea and sentence negotiations to avoid going through a protracted and arduous trial. By agreeing to plead guilty to the offence with which they have been charged, an accused person waives their right to a fair trial, which is entrenched in s 35(3) of the Constitution. These agreements are, however, an important part of our criminal justice systems. This article seeks to discuss the requirements for the conclusion of valid plea and sentence agreements in terms of s 105A(1)(a) of the Criminal Procedure Act 51 of 1977 (the CPA).
Section 105A(1)(a) provides that a prosecutor who is authorised thereto in writing by the National Director of Public Prosecutions (the NDPP) and an accused who is legally represented may, before the accused pleads to the charge brought against them, negotiate and enter into an agreement in respect of a plea of guilty by the accused to the offence charged or to an offence of which they may be convicted on the charge and, if the accused is convicted of the offence to which they have agreed to plead guilty, a just sentence can be imposed by the court.
Section 105A(1)(a) requires the prosecutor to have written authority by the NDPP to negotiate and enter into a plea and sentence agreement. In S v Knight 2017 (2) SACR 583 (GP) the appellant was sentenced to life imprisonment in terms of a plea and sentence agreement. One of the grounds of appeal was that there was non-compliance with the provisions of s 105A(1)(a). The appellant submitted that no proof was provided by the prosecutor that he was duly authorised by the NDPP to enter or negotiate a plea and sentence agreement, nor did the prosecutor inform the court that he had such authority and that the plea and sentence agreement ought to be regarded as a nullity. In upholding the appeal the court referred to the decision of the Northern Cape High Court in S v Saasin and Others (NCK) (unreported case no 84/02, 20-10-2003) (Majiedt J) where the court said that in order to comply with the requirements stipulated in s 105A(1)(a) the prosecutor must hand into court, at the commencement of the hearing, a certificate indicating that he had been authorised to negotiate and enter into a plea and sentence agreement. The court further stated that such proof of authority is an essential prerequisite for a plea and sentence agreement under s 105A. The court held that failure to comply with the provisions of this section is a fatal irregularity rendering a conviction and sentence based on the plea and sentence agreement null and void even though all the other provisions of s 105A had been complied with.
Section 105A(1)(a) further requires an accused who enters into a plea and sentence agreement with the prosecutor to be legally represented. There is a plethora of authority to the effect that failure to comply with its provisions should result in a fatal irregularity rendering a conviction and sentence based on the plea and sentence agreement null and void. It stands to reason why the legislator enacted this provision. An unrepresented accused may suffer prejudice by negotiating with a prosecutor who has greater bargaining powers than the accused. Such an accused will negotiate with the prosecutor from a weaker position hence the need for legal representation. Wium de Villiers ‘Plea and sentence agreements in terms of section 105A of the Criminal Procedure Act: A step forward?’ (2004) 37 De Jure 244 at page 245 remarks that an accused may be coerced into waving their constitutional rights in order to receive a lesser sentence. De Villiers further observes that there is also the risk that an innocent person may plead guilty and accept a lesser sentence rather than taking the risk of a harsher sentence if convicted when defending the charges. The author further points out that the prospect of going to jail becomes so intimidating that an accused will agree to almost anything if the negotiated agreement guarantees that they will not serve time in jail. In view of all the considerations above it becomes essential for an accused to be legally represented during the conclusion of the plea and sentence agreement.
In S v Wessels (FB) (unreported case no 62/2019, 23-5-2019) (Moeng AJ) the accused was convicted and sentenced on one charge of contravening s 4(b) of the Drugs and Drug Trafficking Act 140 of 1992. The accused was sentenced to two years’ imprisonment wholly suspended subject to specified conditions. The conviction and sentence were based on a plea and sentence agreement in terms of s 105A. It transpired from the written plea and sentence agreement that the accused was unrepresented when he entered into the said agreement with the prosecutor. The accused was represented when the negotiations in terms of s 105A were initiated, and the accused’s attorney withdrew after such negotiations had already begun, but before the accused pleaded to the charge. The magistrate finalised the matter on the basis that the agreement was negotiated and entered into while the accused was represented and did not believe that the accused would suffer any prejudice. The court held that the subsection requires both the negotiations and the conclusion of the agreement to be undertaken while the accused was legally represented. The court further held that even if it could be accepted that negotiations were undertaken while the accused was represented there was no indication on the record that the agreement was concluded while the accused was legally represented. Furthermore, the court observed that the agreement was not signed by the attorney as required by s 105A(2)(c). The court reiterated the fact that the provisions of s 105A, and specifically the provisions of subs (2)(c), are clearly peremptory and, therefore, require punctilious compliance. The court held that the conclusion of the agreement by the accused without the assistance of a legal representative was fatal and amounted to an irregularity. Consequently, the conviction and sentence were set aside, and the matter was remitted to the court a quo for the trial to start de novo before another magistrate.
The plea and sentence agreements are an important part of the South African criminal justice system. These agreements provide the accused and the state with the opportunity to negotiate and reach agreement regarding the conviction and just sentence to impose. Parties to these agreements should always bear in mind that the provisions of s 105A are mandatory and that the courts require strict compliance with these provisions. Failure to comply with the requirements of the section will amount to a fatal irregularity, which will render a conviction and sentence based on the plea and sentence agreement null and void. The mandatory provisions of this section are designed to provide protection to and ensure justice for the accused who, by having pleaded guilty, has waived his or her rights to a fair trial as provided for in s 35(3) of the Constitution.
John Ndlovu BIur (UNIZULU) LLB (UP) Masters Cert (Labour Relations Management) (UJ) is a Senior Legal Adviser at the Prosecutions Unit of the Legal Practitioners’ Fidelity Fund in Centurion.
This article was first published in De Rebus in 2021 (Dec) DR 8.
