Plea bar­gains a use­ful ‘tool’

Weekend Argus (Saturday Edition) - - COMMENT -

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.

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.