Criminal Procedure
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Criminal procedure
MANAGAY REDDI
University of KwaZulu-Natal
1 Plea and sentence agreements
In S v CA (2021 (2) SACR 443 (WCC)), which concerned an automatic
review in terms of s 85 of the Child Justice Act 75 of 2008, the review
court was faced with a plea and sentence agreement in which the
prosecutor, the legal representative of the accused, and the court a quo
had not strictly adhered to the procedural requirements of s 105A(4)(a),
105A(6)(a) and 105A(7) of the Criminal Procedure Act 51 of 1977
(hereafter CPA). The resultant irregularities were (at paras [6]-[71):
(i) The accused appeared before the court, and the prosecutor put the
charge to the accused without first informing the court that the parties
had concluded a plea-and-sentence agreement; (ii) At the start of the
proceedings the accused had not been asked to confirm if such an
agreement had been drawn up; (iii) The court a quo had failed to satisfy
itself before the accused had pleaded, that the state had consulted
with the investigating officer regarding the nature of the offence and
the personal circumstances of the accused, and with the complainant;
(iv) After the accused had pleaded, his attorney had proceeded to
read into the record only the accused's factual admissions. Neither the
mitigating and aggravating factors nor the agreed sentence was read
into the record; and (v) In terms of s 105A(6)(a), after ensuring that it
was satisfied that the accused had admitted all the allegations in the
charge, the court a quo had proceeded to convict the accused instead
of questioning him in terms of s 105A(7) and establishing whether he
had any previous convictions.
In interpreting the import of s 105A, Moosa J in S v Solomons (2005
(2) SACR 432 (C)) at para [71, observed that in plea bargaining, which
involves a fundamental shift from the adversarial nature of our criminal
justice system, the state agrees to compound the offence in return for
the accused waiving several of his constitutional trial rights. For this
reason, parliament considered 'it necessary to make the provisions of
s 105A peremptory and strict compliance therewith is accordingly a
prerequisite'.
Therefore, one of the main issues for the decision before the review
court was whether the irregularities were of such a nature as to vitiate
the fairness of the proceedings. In deciding on the issue, the review
court referred with approval to Moshidi J's observation in S v Nel
(A 352/07 [20081 ZAGPHC 43 (28 January 2008) at para [7]) that the
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https://doi.org/10.47348/SACJ/v35/ila6
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Criminal Procedure
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