TOPIC TEN: PLEA AND SENTENCE AGREEMENTS
Section 105A CPA
Section 105A of the CPA was introduced to deal systematically with a thorny issue
When parties agree as to what offence the accused with be convicted and sentenced
on, it bypasses the normal trial process and is referred to as ‘plea bargaining’
The pros of this process are that it saves much time and energy, it is convenient for
both parties and it creates certainty
The cons of this process are that the public can get irate as it seems to undermine the
integrity of the judicial process, and it may appear that the law works for lawyers and
the wealthy who can evade justice
Situation Prior to the Commencement of s150A
Before the commencement of s105A of the CPA, plea bargaining took place on a very
informal basis
S v Blank
m
B was convicted of 48 counts of fraud involving an amount of R9,75 million
er as
B made a plea bargain with the prosecutor that he would plead guilty to some offences, the pleas
would be accepted and a non-custodian sentence would be requested, to which the Prosecutor will not
co
object
eH w
After the conviction was entered the court held that the parties cannot agree to sentence and therefore
bind the judge, thus the judge imposed a sentence of 8 years imprisonment
o.
On appeal, the judge’s decision to do so was argued to be improper
rs e
The court held that the prosecutor held up its end of the bargain and the court is entitled to impose the
ou urc
sentence it wishes, regardless of the agreement between the parties with regard to sentence
Thus there was still a huge risk in the plea bargains
North Western Dense Concrete CC v Director of Public Prosecutions, Western Cape
o
NWDC was a building company whose employee died at a construction site
Prior to the trial, in exchange for the foreman of the site, one M, pleading guilty to the charges, the
aC s
State had agreed to withdraw the charges against NWDC
v i y re
The family of the employee who died was unhappy with this arrangement and the DPP reinstituted the
charges against NWDC
The court had to decide whether plea bargaining was an integral part of the aw or criminal procedure
and, if it was, whether it could and/or should interfere with the decision of the respondent to reinstitute
the charges against NWDC
ed d
The court held that plea bargaining is an entrenched, accepted and acceptable part of SA law
ar stu
Furthermore that although it may need addition, an accurate description of a plea agreement was that
it was the practice of relinquishing the right to go to trial in exchange for a reduction in charge and/or
sentence
The court held that it is appropriate for it to interfere with the decision-making of the prosecutor in the
instant matter if the dictates of justice so demanded
sh is
Furthermore, the prosecutor had to be held to his part of the bargain. That a prosecutor should stand by
an undertaking solemnly Vangiven
Eeden v Director
during of Publicleading
the negotiations Prosecutions (Cape)
up to a plea settlement should be
Th
The applicant
regarded and rule
as basic a co-accused had made an offer to the State that the co-accused would plead guilty
of that procedure
to an alternative charge and the State would withdraw its case against the applicant. That is what
occurred
Subsequently, the State sought to re-charge the applicant. The applicant applied to a High Court for an
order staying the prosecution
One of the elements of the 'notions of basic fairness and justice' in accordance with which a criminal
trial must be conducted is that the State is to be held to a plea bargain which it has made or is deemed
to have made
This is an element of substantive fairness
It would be palpably unfair to allow the prosecution to enjoy the benefits of a plea agreement, but avoid
doing what was clearly contemplated when that agreement was reached
The court stay the prosecution
The basic problem with this informal procedure was that the accused was never sure
whether or not the court would go along with the State’s attitude to sentence,
therefore the accused would take a chance with the sentence
1
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, This issue was comprehensively addressed by s105A of the CPA, which introduced
detailed procedures for plea and sentence agreements
The Five-Stage Procedure in s105A
The procedure to be followed may be divided into five stages:
1. Preliminaries and Entering into the Agreement
2. Court Checks on the Formalities/ Procedural Requirements
3. Plea Questioning and Establishment of Guilt
4. Court Checks the Sentence Agreement, and thereafter Convicts and Sentences
if Everyone is Satisfied
5. If all the parties are not satisfied, there is a trial de novo
1. Preliminaries and Entering into the Agreement
Subsection (1)(a) states that written authority from the NDPP is required to enter into
a plea bargaining agreement, and the parties must agree to both the plea of guilty and
a just sentence
Subsection (1)(b) states that the prosecutor must consult with the investigating
officer
m
er as
Subsection (2) states that the agreement must be in writing and contain the facts,
admissions and signatures of the parties
co
The complainant must be afforded an opportunity to make representations (the victim
eH w
cannot, however, block the process of the plea bargain)
o.
Only a represented accused may enter into such an agreement
rs e
ou urc
o
aC s
2. Court Checks on the Formalities/ Procedural Requirements
v i y re
Subsection (4) states the following:
o The prosecutor is to inform the court of the agreement
o The court must ask the accused to confirm that the agreement has been
ed d
entered into
o The court must satisfy itself on certain procedural requirements (e.g.
ar stu
consultation with the investigating officer; opportunity of the complainant to
make representations) – if the court is not satisfied, it must give the prosecutor
and the accused the opportunity to correct it
o Upon being satisfied, the court requires the accused to plead, and orders that
sh is
the contents of the agreement be disclosed in court
Th
3. Plea Questioning and Establishment of Guilt
Subsection (6)(a) states that the court is to question the accused to ascertain that:
o He/she confirms the terms of the agreement and admissions
o He/she admits allegations in charge to which there is a plea of guilty
o This has been freely and voluntarily done
Subsection (6)(b) states that if the court is not satisfied:
o A plea of not guilty is entered; or it is recorded that the accused does not admit
any allegation in the charge, or has incorrectly admitted such; or the court is
satisfied, for any other reason, plea should not stand
o The court then records a plea of not guilty and orders the trial to start de novo
before another presiding officer (unless the accused waives such right to
another presiding officer)
Subsection (7) states that if the court is satisfied it then proceeds to Stage 4
2
This study source was downloaded by 100000826075669 from CourseHero.com on 05-23-2021 05:16:51 GMT -05:00
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Section 105A CPA
Section 105A of the CPA was introduced to deal systematically with a thorny issue
When parties agree as to what offence the accused with be convicted and sentenced
on, it bypasses the normal trial process and is referred to as ‘plea bargaining’
The pros of this process are that it saves much time and energy, it is convenient for
both parties and it creates certainty
The cons of this process are that the public can get irate as it seems to undermine the
integrity of the judicial process, and it may appear that the law works for lawyers and
the wealthy who can evade justice
Situation Prior to the Commencement of s150A
Before the commencement of s105A of the CPA, plea bargaining took place on a very
informal basis
S v Blank
m
B was convicted of 48 counts of fraud involving an amount of R9,75 million
er as
B made a plea bargain with the prosecutor that he would plead guilty to some offences, the pleas
would be accepted and a non-custodian sentence would be requested, to which the Prosecutor will not
co
object
eH w
After the conviction was entered the court held that the parties cannot agree to sentence and therefore
bind the judge, thus the judge imposed a sentence of 8 years imprisonment
o.
On appeal, the judge’s decision to do so was argued to be improper
rs e
The court held that the prosecutor held up its end of the bargain and the court is entitled to impose the
ou urc
sentence it wishes, regardless of the agreement between the parties with regard to sentence
Thus there was still a huge risk in the plea bargains
North Western Dense Concrete CC v Director of Public Prosecutions, Western Cape
o
NWDC was a building company whose employee died at a construction site
Prior to the trial, in exchange for the foreman of the site, one M, pleading guilty to the charges, the
aC s
State had agreed to withdraw the charges against NWDC
v i y re
The family of the employee who died was unhappy with this arrangement and the DPP reinstituted the
charges against NWDC
The court had to decide whether plea bargaining was an integral part of the aw or criminal procedure
and, if it was, whether it could and/or should interfere with the decision of the respondent to reinstitute
the charges against NWDC
ed d
The court held that plea bargaining is an entrenched, accepted and acceptable part of SA law
ar stu
Furthermore that although it may need addition, an accurate description of a plea agreement was that
it was the practice of relinquishing the right to go to trial in exchange for a reduction in charge and/or
sentence
The court held that it is appropriate for it to interfere with the decision-making of the prosecutor in the
instant matter if the dictates of justice so demanded
sh is
Furthermore, the prosecutor had to be held to his part of the bargain. That a prosecutor should stand by
an undertaking solemnly Vangiven
Eeden v Director
during of Publicleading
the negotiations Prosecutions (Cape)
up to a plea settlement should be
Th
The applicant
regarded and rule
as basic a co-accused had made an offer to the State that the co-accused would plead guilty
of that procedure
to an alternative charge and the State would withdraw its case against the applicant. That is what
occurred
Subsequently, the State sought to re-charge the applicant. The applicant applied to a High Court for an
order staying the prosecution
One of the elements of the 'notions of basic fairness and justice' in accordance with which a criminal
trial must be conducted is that the State is to be held to a plea bargain which it has made or is deemed
to have made
This is an element of substantive fairness
It would be palpably unfair to allow the prosecution to enjoy the benefits of a plea agreement, but avoid
doing what was clearly contemplated when that agreement was reached
The court stay the prosecution
The basic problem with this informal procedure was that the accused was never sure
whether or not the court would go along with the State’s attitude to sentence,
therefore the accused would take a chance with the sentence
1
This study source was downloaded by 100000826075669 from CourseHero.com on 05-23-2021 05:16:51 GMT -05:00
https://www.coursehero.com/file/80213368/10-Plea-and-Sentence-Agreementsdoc/
, This issue was comprehensively addressed by s105A of the CPA, which introduced
detailed procedures for plea and sentence agreements
The Five-Stage Procedure in s105A
The procedure to be followed may be divided into five stages:
1. Preliminaries and Entering into the Agreement
2. Court Checks on the Formalities/ Procedural Requirements
3. Plea Questioning and Establishment of Guilt
4. Court Checks the Sentence Agreement, and thereafter Convicts and Sentences
if Everyone is Satisfied
5. If all the parties are not satisfied, there is a trial de novo
1. Preliminaries and Entering into the Agreement
Subsection (1)(a) states that written authority from the NDPP is required to enter into
a plea bargaining agreement, and the parties must agree to both the plea of guilty and
a just sentence
Subsection (1)(b) states that the prosecutor must consult with the investigating
officer
m
er as
Subsection (2) states that the agreement must be in writing and contain the facts,
admissions and signatures of the parties
co
The complainant must be afforded an opportunity to make representations (the victim
eH w
cannot, however, block the process of the plea bargain)
o.
Only a represented accused may enter into such an agreement
rs e
ou urc
o
aC s
2. Court Checks on the Formalities/ Procedural Requirements
v i y re
Subsection (4) states the following:
o The prosecutor is to inform the court of the agreement
o The court must ask the accused to confirm that the agreement has been
ed d
entered into
o The court must satisfy itself on certain procedural requirements (e.g.
ar stu
consultation with the investigating officer; opportunity of the complainant to
make representations) – if the court is not satisfied, it must give the prosecutor
and the accused the opportunity to correct it
o Upon being satisfied, the court requires the accused to plead, and orders that
sh is
the contents of the agreement be disclosed in court
Th
3. Plea Questioning and Establishment of Guilt
Subsection (6)(a) states that the court is to question the accused to ascertain that:
o He/she confirms the terms of the agreement and admissions
o He/she admits allegations in charge to which there is a plea of guilty
o This has been freely and voluntarily done
Subsection (6)(b) states that if the court is not satisfied:
o A plea of not guilty is entered; or it is recorded that the accused does not admit
any allegation in the charge, or has incorrectly admitted such; or the court is
satisfied, for any other reason, plea should not stand
o The court then records a plea of not guilty and orders the trial to start de novo
before another presiding officer (unless the accused waives such right to
another presiding officer)
Subsection (7) states that if the court is satisfied it then proceeds to Stage 4
2
This study source was downloaded by 100000826075669 from CourseHero.com on 05-23-2021 05:16:51 GMT -05:00
https://www.coursehero.com/file/80213368/10-Plea-and-Sentence-Agreementsdoc/
