PLEAB
WORKING DOCUMENT
DRAFT 1
(As on 22/10/2001)
REPUBLIC OF SOUTH AFRICA
CRIMINAL PROCEDURE SECOND
AMENDMENT BILL
(As introduced in the National Assembly as a section 75 Bill; explanatory summary of Bill published in Government Gazette No. 22582 of 17 August 2001) (The English text is the official text of the Bill )
(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)
[B 45 –2001]
___________________________________________________________________
REPUBLIEK VAN SUID-AFRIKA
TWEEDE STRAFPROSESWYSIGINGSWETSONTWERP
(Soos ingedien in die Nasionale Vergadering as 'n artikel 75-wetsontwerp; verduidelikende opsomming van Wetsontwerp in Staatskoerant No. 22582 van 17 Augustus 2001 gepubliseer) (Die Afrikaanse teks is die amptelike vertaling van die Wetsontwerp)
(MINISTER VIR JUSTISIE EN STAATKUNDIGE ONTWIKKELING)
[W 45 –2001]
hh031001(b)
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
BILL
To amend the Criminal Procedure Act, 1977, to allow a prosecutor and an accused to enter into a plea and sentence agreement; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—
Substitution of section 105 of Act 51 of 1977
1. The following section is hereby substituted for section 105 of the Criminal Procedure Act, 1977 (hereinafter referred to as the principal Act):
"Accused to plead to charge
105. The charge shall be put to the accused by the prosecutor before the trial of the accused is commenced, and the accused shall, subject to the provisions of sections 77, [and] 85 and 105A, be required by the court forthwith to plead thereto in accordance with section 106.".
Insertion of section 105A in Act 51 of 1977
2. The following section is hereby inserted in the principal Act after section 105:
"Plea and sentence agreements
105A. (1) (a) Subject to the directives issued by the National Director of Public Prosecutions, the prosecutor and an accused or his or her legal representative may before the accused pleads to the charge brought against him or her, negotiate and enter into an agreement in respect of—
OPTION
(a) [Subject to the directives issued by the National Director of Public Prosecutions, the] A prosecutor authorised thereto in writing by the National Director of Public Prosecutions and an accused who is legally represented, or his or her legal representative, may before the accused pleads to the charge brought against him or her, negotiate and enter into an agreement in respect of—
(i) a plea of guilty by the accused to the offence charged or to an offence of which he or she may be convicted on the charge; and
(ii) an appropriate sentence to be imposed by the court if the accused is convicted of the offence to which he or she intends to plead guilty.
OPTION
Substitute subparagraph (ii) with the following subparagraph:
(ii) [an appropriate] a just sentence to be imposed by the court if the accused is convicted of the offence to which he or she intends to plead guilty.
(b) The prosecutor may only enter into an agreement contemplated in paragraph (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
(iii) if circumstances permit, after affording the complainant or his or her representative the opportunity to make representations to the prosecutor regarding—
(aa) the contents of the agreement; and
(bb) the inclusion in the agreement of a compensation order referred to in section 300.
OPTION 1
Substitute paragraph (b) with the following paragraph and add a new paragraph (c):
(b) The prosecutor may only enter into an agreement contemplated in paragraph (a)—
(i) after consultation with the [police official] person charged with the investigation of the case; [and]
(ii) with due regard to—
(aa) the nature of and circumstances relating to the offence;
(bb) the personal circumstances of the accused;
(cc) the previous convictions of the accused, if any; and
(dd) the interests of the community; and
(iii) [if circumstances permit] where it is reasonable to do so, taking into account the nature of and circumstances relating to the offence and the interests of the complainant, after affording the complainant or his or her representative the opportunity to make representations to the prosecutor regarding—
(aa) the contents of the agreement; and
(bb) the inclusion in the agreement of a condition relating to compensation [order
referred to in section 300] or the rendering to the complainant of some specific benefit or service in lieu of compensation for damage or pecuniary loss.
(c) The requirements of paragraph (b)(i) may be dispensed with if the prosecutor is satisfied that the investigating officer cannot readily be reached or cannot be traced without unreasonable delay which could —
(i) cause substantial prejudice to the prosecution, the accused or his or her legal adviser, the complainant or the State; or
(ii) affect the administration of justice adversely.
OPTION 2
Delete paragraph (b) and include the provisions thereof in the new proposed subclause (11).
(2) An agreement contemplated in subsection (1) shall be in writing and shall—
(a) state that the accused, before entering into the agreement, has been informed that he or she has the right—
(i) to be presumed innocent until proved guilty beyond reasonable doubt;
(ii) to remain silent and not to testify during the proceedings; and
(iii) not to be compelled to give self-incriminating evidence;
(b) state fully the terms of the agreement, the substantial facts of the matter, all other facts relevant to the agreed sentence and any admissions made by the accused;
(c) be signed by the prosecutor and the accused or his or her legal representative and, if a compensation order contemplated in section 300 has been included in the agreement, by the complainant; and
OPTION
Substitute paragraph (c) with the following paragraph:
(c) be signed—
(i) by the prosecutor [and], the accused [or] and his or her legal representative; and
(ii) if a [compensation order contemplated in section 300] condition contemplated in subsection (1)(b)(iii)(bb) has been included in the agreement, by the complainant; and
(d) if the accused has negotiated with the prosecutor through an interpreter, contain a certificate by the interpreter to the effect that he or she interpreted accurately during the negotiations and in respect of the contents of the agreement.
OPTION
Add the following new paragraph:
(e) comply with any other requirement prescribed in the directives referred to in subsection (11).
(3) The court shall not participate in the negotiations contemplated in subsection (1).
(4) The prosecutor shall, before the accused is required to plead, inform the court in open court that an agreement contemplated in subsection (1) has been entered into and the court shall then question the accused to confirm that such an agreement has been entered into.
OPTION
Substitute subclause (4) with the following subclause:
(4) (a) The prosecutor shall, before the accused is required to plead, inform the court [in open court] that an agreement contemplated in subsection (1) has been entered into and the court shall then—
(i) [question] require the accused to confirm that such an agreement has been entered into; and
(ii) satisfy itself that the requirements of subsection (1)(b)(i) and (iii) have been complied with.
(b) If the court is not satisfied that an agreement which complies with the requirements of subsection (1)(b)(i) and (iii) has been entered into, the court shall—
(i) inform the prosecutor and accused of the reasons for non-compliance; and
(ii) afford the prosecutor and accused the opportunity to comply with the requirements concerned.
(5) If the court is satisfied that an agreement has been entered into, the court shall enter such fact on the record and order that the contents of the agreement be disclosed in open court.
OPTION
Substitute subclause (5) with the following subclause:
(5) If the court is satisfied that [an] the agreement [has been entered into] complies with the requirements of subsection (1)(b)(i) and (iii), the court shall [enter such fact on the record and] require the accused to plead to the charge and order that the contents of the agreement be disclosed in [open] court.
(6) (a) After the contents of the agreement have been disclosed in open court, the court shall question the accused to ascertain whether—
OPTION
Substitute the words preceding subparagraph (i) with the following words:
(a) After the contents of the agreement have been disclosed [in open court], the court shall question the accused to ascertain whether—
(i) he or she confirms the terms of the agreement and the admissions made by him or her in the agreement;
(ii) with reference to the alleged facts of the case, he or she admits the allegations in the charge to which he or she has agreed to plead guilty; and
(iii) the agreement was entered into freely and voluntarily in his or her sound and sober senses and without having been unduly influenced.
(b) After an inquiry has been conducted in terms of paragraph (a), the court shall, if the court is of the opinion that the accused cannot be found guilty of the offence in respect of which the agreement was entered into or that there has not been compliance with subsection (2)(a), inform the prosecutor and accused of such finding and the reasons therefor. In such event the trial shall start de novo before another presiding officer: Provided that the accused may waive his or her right to be tried before another presiding officer.
OPTION
Substitute paragraph (b) with the following paragraph:
(b) After an inquiry has been conducted in terms of paragraph (a), the court shall, if—
(i) the court is [of the opinion that the accused cannot be found] not satisfied that the accused is guilty of the offence in respect of which the agreement was entered into [or that there has not been compliance with subsection (2)(a),]; or
(ii) it is alleged or appears to the court that the accused does not admit an allegation in the charge or that the accused has incorrectly admitted any such allegation or that the accused has a valid defence to the charge; or
(iii) the court is of the opinion for any other reason that the accused's plea of guilty should not stand,
record a plea of not guilty and inform the prosecutor and accused of [such finding and] the reasons therefor. In such event the trial shall start de novo before another presiding officer: Provided that the accused may waive his or her right to be tried before another presiding officer.
(7) If the court is satisfied that the accused can be found guilty of the offence, the court shall proceed to consider the sentence agreed upon and may direct relevant questions, including questions about the accused's previous convictions, to the prosecutor and the accused.
OPTION
Substitute subclause (7) with the following subclause:
(7) If the court is satisfied that the accused [can be found guilty of the offence] admits the allegations in the charge and that he or she is guilty of the offence in respect of which the agreement was entered into, the court shall proceed to consider the sentence agreed upon and may for that purpose—
(a) direct relevant questions, including questions about the accused's previous convictions, to the prosecutor and the accused; and
(b) hear evidence, including evidence or a statement by or on behalf of the accused or the complainant, with regard to the sentence agreed upon.
(8) (a) If the court is satisfied that the sentence is appropriate, the court shall inform the prosecutor and accused that the court is so satisfied, whereupon—
(i) the agreement shall become binding upon the prosecutor and the accused;
(ii) the accused shall be requested to plead to the charge; and
(iii) the court shall find the accused guilty on the charge agreed to and impose the sentence agreed to.
(b) If the court is of the view that the sentence is inappropriate and that the court would have imposed a lesser or heavier sentence than the sentence agreed upon, the court shall inform the prosecutor and accused of such lesser or heavier sentence, as the case may be.
OPTION
Substitute subclause (8) with the following subclause:
(8) [(a)] If the court is satisfied that the sentence agreed upon is [appropriate] just, the court shall inform the prosecutor and accused that the court is so satisfied, whereupon[—
(i) the agreement shall become binding upon the prosecutor and the accused;
(ii) the accused shall be requested to plead to the charge; and
(iii)] the court shall find the accused guilty on the charge agreed to and impose the sentence agreed [to] upon.
[(b) If the court is of the view that the sentence is inappropriate and that the court would have imposed a lesser or heavier sentence than the sentence agreed upon, the court shall inform the prosecutor and accused of such lesser or heavier sentence, as the case may be.]
(9) The prosecutor, upon being informed of the lesser sentence, or the accused, upon being informed of the heavier sentence, may—
(a) abide by the agreement with reference to the charge and inform the court that, subject to the right to lead evidence and to present argument relevant to sentencing, the court may proceed with the proceedings. In such event subsection (8)(a)(i) and (ii) shall apply and the court shall find the accused guilty on the charge agreed to and impose the sentence contemplated in subsection (8)(b); or
(b) withdraw from the agreement, in which event the trial shall start de novo before another presiding officer: Provided that the accused may waive his or her right to be tried before another presiding officer.
OPTION 1
Substitute subclause (9) with the following subclause:
(9) (a) If the court is of the view that the sentence agreed upon is [inappropriate] unjust and that the court would have imposed a lesser or heavier sentence than the sentence agreed upon, the court shall inform the prosecutor and accused of such lesser or heavier sentence, as the case may be.
(b) The prosecutor, upon being informed of the lesser sentence, or the accused, upon being informed of the heavier sentence, may—
[(a)] (i) abide by the agreement with reference to the charge and inform the court that, subject to the right to lead evidence and to present argument relevant to sentencing, the court may proceed with the proceedings[. In such event subsection (8)(a)(i) and (ii) shall apply and the
court shall find the accused guilty on the charge agreed to and impose the sentence contemplated in subsection (8)(b)]; or
[(b)] (ii) withdraw from the agreement[, in which event the trial shall start de novo before another presiding officer: Provided that the accused may waive his or her right to be tried before another presiding officer].
(c) If the prosecutor and accused abide by the agreement as contemplated in paragraph (b)(i), the court shall find the accused guilty on the charge agreed to and impose the sentence which it considers just.
(d) If the prosecutor or accused withdraws from the agreement as contemplated in paragraph (b)(ii), the trial shall start de novo before another presiding officer: Provided that the accused may waive his or her right to be tried before another presiding officer.
(10) Where a trial starts de novo as contemplated in subsections (6)(b) or (9)(b)—
(a) the agreement shall be null and void and no regard shall be had or reference made to the agreement;
(b) no admissions contained therein or statements relating thereto shall be admissible against the accused;
(c) the prosecutor and the accused may not enter into a plea and sentence agreement in respect of a charge arising out of the same facts; and
(d) the prosecutor may proceed on any charge.
OPTION
Substitute subclause (10) with the following subclause:
(10) Where a trial starts de novo as contemplated in subsections (6)(b) or (9)[(b)] (d)—
(a) the agreement shall be null and void and no regard shall be had or reference made to the agreement or any record thereof in any proceedings relating thereto;
(b) [no admissions contained therein or statements relating thereto shall be admissible against the accused;
(c)] the prosecutor and the accused may not enter into a plea and sentence agreement in respect of a charge arising out of the same facts; and
[(d)](c) the prosecutor may proceed on any charge.
OPTION
Insert the following new subclauses:
(11) (a) The National Director of Public Prosecutions contemplated in section 179(1)(a) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), in consultation with the Minister, shall issue directives regarding all matters which are reasonably necessary or expedient to be prescribed in order to achieve the objects of this section and any directive so issued shall be observed in the application of this section.
(b) The directives contemplated in paragraph (a)—
(i) must ensure that adequate disciplinary steps shall be taken against a prosecutor who fails to comply with this section or any directive;
(ii) must prescribe the procedures to be followed in the application of this section relating to—
(aa) any offence referred to in the Schedule to the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), or any other offence in respect of which a compulsory sentence is prescribed;
(bb) any offence in respect of which a court has the power or is required to conduct a specific enquiry, whether before or after convicting or sentencing the accused; and
(cc) any offence in respect of which a court has the power or is required to make specific orders upon conviction of the accused; and
(iii) may prescribe the procedures to be followed in the application of this section relating to any other offence in respect of which the National Director of Public Prosecutions deems it necessary or expedient to prescribe specific procedures.
(c) Any directive issued under paragraph (a) may be amended or withdrawn in like manner.
(d) The National Director of Public Prosecutions shall submit the directives issued under this subsection to Parliament before that directives take effect, and the first directives so issued, must be submitted to Parliament within four months of the commencement of this Act.
Short title
3. This Act is called the Criminal Procedure Second Amendment Act, 2001.