ZUMA WAS RIGHT TO DISMISS SCORPIONS PLEA-BARGAIN

ZUMA'S RIGHT TO REJECT PLEA
Jacob Zuma’s defence team was right to dismiss a plea bargain, writes NKONZWENHLE MQADI, of Durban

MEDIA speculation over the possibility of ANC Deputy President Jacob Zuma entering into a plea and sentence bargain with the National Prosecuting Authority, to have a “non-custodial sentence” in his two criminal charges of corruption, is immoral and unprincipled.
What journalists should have done was to unpack in full this criminal justice “short cut”, and educate their uninformed readership on the pros and cons of the Criminal Procedure Act Section 105.
Only common-law criminals, such as Mark Thatcher, who had committed offences beyond any reasonable doubt, normally opt for this legal settlement.
For some observers to construe plea-bargaining to mean in this case that Zuma was prepared to buy the Scorpions out of the “mess” they had created and plunged the whole country into, is totally off the mark.
Rather, true to the principles of natural justice, Msholozi has re-assured South Africans that he’s itching for his day to prove his innocence in an open court of law.
What is this so-called “plea and bargaining agreement” all of a sudden mooted as a viable option for the former Deputy President?
It is Section 105 A (i.e Plea & Sentence Agreements) of the CPA 51 of 1977 as amended, substituted by Section 1 of Act 62 of 2001, which came into operation on 14 December 2001 (see Government Gazette 22933).
Several experts criticized the informal plea-bargaining “system” when it was passed into law.
Argument was that plea-bargaining is inherently destructive of the values of the trial process, as it is designed to prevent proper trials.
Therefore,the question begs as to whom exactly should this approach dispense criminal justice?
Ordinarily, hardcore criminals capitalize on this legal settlement.
Legal authorities do confirm that even the South African Law Commission was initially skeptical of plea-bargaining until it concluded plea negotiations or agreements were legal.
This nullification of constitutional values (S 105A) provides the necessary statutory framework for dealing with plea and sentence agreements between the prosecutor and the accussed’s legal representative.
The court may not participate in the negotiations as contemplated in S 105A (1), but judicial approval of the plea and sentence agreement is required.
But it should be emphasized that after the parties reach a plea agreement, and should for whatever reason seek an indication from the presiding officer as to what an appropriate sentence would be, such an indication would also amount to impermissible judicial participation as contemplated in S 105A (1).
In a nutshell, S 105A is as non-prescriptive as possible. It was left to the prosecutor and the accussed’s legal representative to initiate the process and find “common ground”.
Notably, the prosecutor retains his discretion that may ultimately be decisive in the settlement. There’s no guarantee that the agreement reached by parties and approved by the Bench would not trample or be at the expense of the accussed’s constitutional and common law rights.
In a constitutional democracy such as ours, the package (i.e terms of the agreement, including any admission made by the accussed) is at a specific stage disclosed.
Although judicial participation is not permitted, the court’s function in questioning the accussed to assess his or her guilt makes it the final arbiter of what an appropriate (“just”) sentence is.
And the National Director of Public Prosecutions, after consultation with the Minister of Justice, may issue directives regarding certain matters that bind the prosecution – see “Directives issued by NDPP on 14 March 2002”.
What does the plea bargain mean to the Jacob Zuma criminal charges? “A plea bargain means entering a plea of guilty and my client won’t and is not prepared to plead guilty,” Zuma’s attorney Michael Hulley said in setting the record straight.
The plea tendered in response to a charge serves an important dual purpose in that it determines first the ambit of the dispute and, second the procedure to be adopted.
The constitutionality of a plea bargain depends in part on the burden the state may place on the defendant’s exercise of his fifth amendment privilege against self-incrimination, which in the context of plea-bargaining takes the form of a right not to plead guilty.
The legislature had attempted to ensure that a plea and sentence agreement as provided in Section 105A (1) (a) is not attained at the expense of the constitutional rights of the accussed.
Therefore, the Zuma defence team should be commended for dismissing the plae bargain.

PUBLISHED ON 15 November 2005 by The CITIZEN