Victim Participation in Plea and Sentence Agreements in South Africa as a “Right”: Analysing Wickham v Magistrate, Stellenbosch and Others 2017 (1) SACR 209 (CC)

Abstract

Section 105A of the Criminal Procedure Act empowers a prosecutor to enter into a plea and sentence agreement with an accused irrespective of the type of the offence in question. In entering into such an agreement, the prosecutor is required to give the victim of a crime an opportunity to make representations to him or her on the content of such an agreement and the issue of compensation. The section does not provide for the victim of a crime to have a right to make such representations. In Wickham v Magistrate, Stellenbosch & Others the Constitutional Court held that a victim of a crime has a right under section 105A to make representations to the prosecutor. Although the Constitutional Court’s holding is commended for strengthening the victim’s right to participate in the criminal justice system, it is argued in this article that the court should have explained in detail why it held that the victim had a right to make such representations, despite section 105A not expressly conferring such a right. The author also discusses other contributions that this judgment has made to the plea and sentence regime.