Plea bargains a useful ‘tool’
WEEKEND Argus recently confused plea bargaining with section 204 indemnities and upon being informed by me of this error, featured a cartoon in which plea bargaining was again confused with section 204 indemnities.
This cartoon was used in conjunction with a letter from Clive Swann of Bonaero Park who stated that plea bargaining was over-used. In doing so, he offered no insight into how he had arrived at this conclusion and contradicted the opinion of Jean Redpath, a criminal justice research consultant, who in a recent letter published by the Mail and Guardian stated that plea bargaining was under used, that 80 to 90 percent of US cases were resolved by plea bargaining and that we – in 2005 and 2006 – only resolved about 1 percent of our cases via this route.
I feel Weekend Argus should publish an article that takes an objective look at plea bargaining and suggest:
That this article should perhaps mention that I, the author of the letters “Why not use US systems of deals” (Cape Argus, November 5, 1998); and “Plea bargaining may be the answer” (Sunday Times, May 14, 2000) was instrumental in paving the way for the introduction of plea bargain- ing, and did much to contribute towards the popularity of plea bargaining.
That this article should on one hand take a look at the high failure rate of trials (for instance, Glenn Agliotti being discharged because of lack of evidence; Jacob Zuma being discharged because of prosecutorial irregularities; Schabir Shaik escaping through the back door on medical parole; Judge John Hlophe dragging the taxpayers into a war with the Judicial Services Commission and the Constitutional Court; Jackie Selebi spending R17 million on legal fees before appealing; Fred van der Vyver demanding R46m for wrongful prosecutions and so on) and, on the other hand, take a look at some of plea bargaining successes (for instance, the time, money and effort we saved when Horward Benghis of Hout Bay Fisheries fled to America, but later agreed to pay a R50m fine; the time, money effort and embarrassment we saved when Mark Thatcher agreed to pay a R1m fine; the time, money and effort we saved when ANC chief whip Tony Yengeni agreed to serve time in prison; the positive image we projected to the outside world when, during the World Cup, a murderer agreed a life sentence on the same day as his arrest; the positive image we projected to the outside world when the taxi driver of the murdered tourist Anni Dewani agreed to serve an effective 18 years in prison, and to testify against this murdered tourist’s husband, who upon hearing of this breakthrough handed himself over to the British police, and so on).
This article should note that a backlog of trials sees the taxpayer supporting about 40 000 to 50 000 awaitingtrial prisoners and watching help- lessly as convicted criminals are released on anti-overcrowding measures such as amnesty and parole.
Plea bargaining is – in the right hands – a welcome addition to our armoury, especially as an alternative to the highly unpopular section 204 indemnity from prosecution, which recently saw a string of self-confessed thugs from Joburg’s underbelly literally get away with murder, something which should make the NPA hang its head in shame.
The editorial in question used the term plea bargain in the layman’s sense – as referring to deals struck with the prosecuting authorities – one kind of deal being the offer of indemnity from prosecution in return for truthful testimony in court as occurred in the Kebble case. The other kind of deal, which was not the topic of the editorial, is where an accused pleads guilty and gets a pre-agreed sentence. Mr Grant correctly points out that, in terms of our laws, these two kinds of deals are very different and in terms of law, only the latter is termed a plea bargain.