An in­sult to the le­gal sys­tem

Weekend Argus (Saturday Edition) - - COMMENT -

THERE has been much an­gry pub­lic op­pro­brium con­cern­ing the per­ceived abuse of Sec­tion 204 of the Crim­i­nal Pro­ce­dure Act by the Na­tional Pros­e­cut­ing Author­ity (NPA) in giv­ing com­plete in­dem­nity from pros­e­cu­tion for ma­jor crim­i­nal of­fences such as murder. Many an­gry peo­ple re­gard such ac­tions by the NPA as a will­ful be­smirch­ing of our le­gal sys­tem when self-con­fessed mur­der­ers com­pletely es­cape jus­tice. It is un­for­giv­able and out­ra­geous.

The NPA de­serves to be con­demned when its pros­e­cu­tion in tri­als is sub­stan­dard and for ques­tion­able le­gal pro­ce­dures, but what has gone un­der the radar is the part the ju­di­ciary plays in the pros­e­cut­ing author­ity’s equally con­tentious and overused plea-bar­gain­ing tac­tic. Judge Frans Kgomo had no op­tion but to grant Sec­tion 204 in­dem­nity to the evil trio of con­tracted Keb­ble mur­der­ers, hav­ing con­sid­ered their ev­i­dence to be truth­ful. Sec­tion 204s should be used spar­ingly though, and with great cir­cum­spec­tion.

Let us also not lose sight of the equally con­tentious plea-bar­gain­ing pro­ce­dure. There is a strong per­cep­tion that the Bench rarely chal­lenges the pros­e­cu­tion on lax­ity of a plea-bar­gained sen­tence, which is its right and ab­so­lute duty to do.

Grant­ing cosy sen­tenc­ing deals to de­spi­ca­ble Sched­ule 3 crim­i­nals has an in­her­ent sys­temic weak­ness in that per­pe­tra­tors are sorely tempted to ac­cept the state’s of­fer of le­niency in re­turn for their col­lab­o­ra­tive ev­i­dence in court and to tell their in­ter­roga­tors what they want to hear.

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