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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)

Jamil Ddamulira Mujuzi

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.


Keywords


Section 105A; Plea and Sentence Agreement; South Africa; Criminal Procedure Act; Victim Participation

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References


Currie I and J De Waal, Bill of Rights Handbook (5 edn, Juta 2005).

Debates of the National Assembly (Hansard), Third Session–Second Parliament, 9 October–16 November 2001 (2 November 2001) (submission by Minister for Justice and Constitutional Development).

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Justice and Correctional Services, Questions to the Minister, 14 November 2016—NW2343. accessed 20 March 2017.

Legislation, covenants

Constitution of the Republic of South Africa, 1996

Criminal Procedure Act, 51 of 1977

International Covenant on Civil and Political Rights, Article 25

Promotion of Administrative Justice Act 3 of 2000

Service Charter for Victims of Crime in South Africa (2004)

Cases

Booysen v Acting National Director of Public Prosecutions & Others [2014] 2 All SA 391 (KZD), 2014 (9) BCLR 1064 (KZD), 2014 (2) SACR 556 (KZD)

Derby-Lewis v Minister of Correctional Services & Others 2009 (6) SA 205 (GNP); 2009 (2) SACR 522 (GNP); [2009] 3 All SA 55 (GNP)

Doctors for Life International v Speaker of the National Assembly & Others 2006 (12) BCLR 1399 (CC), 2006 (6) SA 416 (CC)

Jansen v The State 2016 (1) SACR 377 (SCA)

Kleinhans v S (A232/2013) [2014] ZAWCHC 68, 2014 (2) SACR 575 (WCC) (13 May 2014)

Madonsela v S (A 176/2013) [2014] ZAGPPHC 1013 (4 December 2014)

Mzobanzi v S (A5572015) [2016] ZAGPPHC 338 (29 April 2016)

National Director of Public Prosecutions & Others v Freedom Under Law 2014 (4) SA 298 (SCA), 2014 (2) SACR 107 (SCA), [2014] 4 All SA 147 (SCA)

S v April 2014 (1) SACR 183 (NCK)

S v Armugga & Others 2005 (2) SACR 259 (N)

S v Blank (23/93) [1994] ZASCA 115 (15 September 1994)

S v De Koker 2010 (2) SACR 196 (WCC)

S v DJ 2016 (1) SACR 377 (SCA)

S v Esterhuizen & Others 2005 (1) SACR 490 (T)

S v Saasin & Others (84/02) [2003] ZANCHC 44 (20 October 2003)

S v Solomons 2005 (2) SACR 432 (C)

S v Taylor 2006 (1) SACR 51 (C)

S v Yengeni 2006 (1) SACR 405 (T)

Steyl v National Director of Public Prosecutions & Another (27307/2013) [2015] ZAGPPHC 407 (9 June 2015)

Stow v Regional Magistrate, PE NO & Others, Meyer v Cooney NO & Others [2017] 2 All SA 300 (ECG)

Wickham v Magistrate, Stellenbosch & Others 2016 (1) SACR 273 (WCC)

Wickham v Magistrate, Stellenbosch & Others 2017 (1) SACR 209 (CC)

Williams v S (A118/2015) [2015] ZAWCHC 179 (27 November 2015)




DOI: https://doi.org/10.25159/2522-6800/3079

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