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[2017] ZAWCHC 129
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Phillips v Director of Public Prosecutions, Western Cape (18445/2017) [2017] ZAWCHC 129; 2018 (1) SACR 284 (WCC) (7 November 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 18445/2017
In
the matter between:
TAARIQ
PHILLIPS
Applicant
and
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN
CAPE.
Respondent
JUDGMENT
DELIVERED ON TUESDAY 7 NOVEMBER 2017
GAMBLE,
J:
INTRODUCTION
[1]
The applicant (hereinafter referred to as
“the accused”) has been arraigned before this court on
charges of murder and
rape and is due to appear before Bozalek J on
Monday 20 November 2017 when his trial is scheduled to commence. This
application
seeks to intervene in those proceedings, to oblige the
State to accept a plea of guilty on a charge of culpable homicide as
tendered
by accused and to permanently stay proceedings against him
on charges of murder and rape. The facts of the crime itself are not
strictly material to this application and will therefore only be
referred to in summary.
[2]
It appears that the accused and the
deceased (a 21year old woman) were in a longstanding relationship
when they attended a New Year’s
Eve party on 31 December 2013
at a venue near Paarl. It is said that the celebration was what is
known as “rave party”,
an event at which a proliferation
of loud electronic music, dancing and drugs were of the order of the
day, as it were.
[3]
It is suggested that the deceased
simultaneously ingested quantities of the recreational drugs known as
“LSD” and “Ecstasy”,
both said to be mind
altering substances, and thereafter returned to her tent where she
urged the accused to satisfy her pressing
sexual desires. He seems to
have willingly obliged without more. Sometime after midnight the
deceased became comatose and was seen
to be foaming at the mouth. She
received emergency medical attention on the scene and was transferred
to a hospital in Paarl for
further treatment but she did not survive
and died around 11 pm on 1 January 2014.
[4]
The accused was charged with the murder and
rape of the deceased and after various appearances in the lower court
came before this
court for the first time in November 2014 for a
pre-trial conference. A trial date was set for 2 February 2015 but
the matter did
not proceed on that day because the accused had
engaged an attorney of his choice who was not available to appear
then. Accordingly
the matter was postponed until 24 April 2015 to
accommodate the defence attorney who had also indicated that he
wished to make
representations to the respondent (“the DPP”)
in relation to the proposed prosecution.
[5]
At that next appearance the accused
suggested that the cause of death as alleged by the State
(strangulation) may be open to doubt
and accordingly instructed
medical experts of his own choice to advise him in relation thereto.
A postponement was accordingly
agreed upon for this purpose and the
matter was removed from the trial roll. At that stage the State
bluntly rejected a suggestion
by the defence that the matter should
be referred to an inquest in light of the potential for doubt
regarding the cause of death.
The defence it seems would have it that
the cause of death arose from the consequences of the ingestion of a
lethal drug cocktail,
while the State has maintained throughout that
the deceased was strangled by the accused.
[6]
The matter was re-enrolled for trial on 13
June 2016 on the understanding that the defence would present the
State with its expert
evidence in relation to the cause of death and
the State would be given an opportunity to consider the same in
consultation with
its own experts. Once again the matter did not
proceed, this time on the basis that the accused was short of funds
and the case
was rolled over until 15 August 2016. The matter did not
proceed on that day either because the accused was allegedly still
short
of funds and it was postponed for hearing on 6 February 2017.
[7]
In the pre-trial phase the case was managed
by Adv Susan Galloway, an experienced Senior State Advocate who
reported to Adv Nicolette
Bell, a Deputy Director in the office of
the respondent. Ms Galloway dropped out of the matter in August 2016
because she was involved
in another case. The prosecutor charged with
presenting the case in court is Adv Esna Erasmus, herself a Senior
State Advocate,
who, it appears reports to Adv Bonnie Currie-Gamwo,
another Senior State Advocate, who was responsible for preparing the
indictment
in this matter, and hence was considered to be
au
fait
with the docket and the State’s
case. All of these members of the respondent’s staff report to
the Director himself,
Adv Rodney de Kock.
PROCEEDINGS
BEFORE SAVAGE J
[8]
Early in February 2017 Ms Erasmus met
informally with the defence team and she suggested to them that
consideration might be given
to the conclusion of a Plea and Sentence
Agreement in terms of s105A of the Criminal Procedure Act, 1977 (“the
CPA”).
Ms Erasmus says she did so because she was of the view
that there had probably been consensual intercourse, that a rape
charge
was not sustainable and that the death of the deceased had
arisen in the context of “
a sex
act gone wrong”,
as she put it.
At that stage the parties also had an impromptu discussion with Ms
Bell at which the suggestion of an inquest was
once again put up by
the defence.
[9]
In light of these initial discussions,
representations were made by the defence to the DPP on 2 February
2017 regarding the future
conduct of the matter and Savage J
postponed the case until 22 May 2017 to enable the State to consider
its position in the light
thereof. On 8 May 2017 the State gave
notice to the defence that it intended to proceed with the trial and
furnished the defence
with certain additional medical reports which
had come into its position in the interim. Claiming that they did not
have sufficient
opportunity to deal with the new medical evidence,
the defence asked for time and Savage J once again granted a
postponement until
3 August 2017. During the process of discussing
the postponement of the matter, the parties had various meetings with
Savage J
in chambers at which, inter alia, the dispute around the
cause of death was discussed.
[10]
Given that the cause of death was still
disputed by the defence, a round- table meeting took place on 9 June
2017 between the various
medical experts in an endeavour to reach
common ground. That exercise failed and as a consequence thereof the
defence indicated
that they would not procure any further medical
opinions and that they were ready to proceed to trial.
[11]
On 31 July 2017 defence counsel requested a
meeting with Ms Erasmus and attempted to procure the deceased’s
personal medical
records. The State was not in possession thereof
(and in any event regarded same as irrelevant) and the defence was
told to utilise
the provisions of s205 of the CPA if they were
mindful to pursue that route.
[12]
On 3 August 2017 the matter was set to
commence before Savage J as arranged previously. Shortly before court
commenced on that day
counsel for the accused, Adv J.J.Moses,
approached Ms Erasmus and informed her that the defence wished to
enter into discussions
aimed at concluding a plea and sentence
agreement in terms of s105A of the CPA. Ms Erasmus says that she was
taken by surprise
as she had understood throughout that the accused
wish to plead not guilty and attack the cause of death as part of his
defence.
In any event, this approach from Mr Moses led to a
postponement of the matter until 8 August 2017 to enable the parties
to explore
the conclusion of such a document.
[13]
Ms Erasmus says that she reported this
development to Ms Bell (who is the co-ordinator of the High Court
roll) and was told to discuss
the matter further with Ms Currie-Gamwo
because she had been responsible for drawing up the indictment. Ms
Erasmus says that she
was told to forward the draft plea and sentence
agreement to Ms Currie-Gamwo in accordance with established office
protocol. Although
agreements concluded in terms of s105A are
customarily drawn up by the State, Ms Erasmus says that in this
matter the defence indicated
that they were prepared to do the
necessary drafting and she was happy for them to do so. Ms Erasmus
says that she informed counsel
for the defence that she required the
document by no later than close of business on the afternoon of
Friday 4 August 2017 as she
still had to consider the contents
thereof, discuss it with the mother of the deceased, the
investigating officer and Ms Currie-Gamwo,
all steps contemplated in
s105A.
[14]
In the result, the draft proposed by the
defence was only emailed to Ms Erasmus by Mr Moses at 14h41 on
Monday, 7 August 2017. In
a covering note Mr Moses observed “
Herewith
draft plea and sentence agreement for your consideration. I await to
hear from you….”
[15]
Ms Erasmus perused the draft and said she
was “
shocked by the quality”
of its contents. As far as she was concerned, the document failed to
address in any significant detail the allegation that the
accused had
caused the death of the deceased. Ms Erasmus said that she was
accordingly of the opinion that the applicant had failed
to
unequivocally admit the elements of the crime of culpable homicide
and she immediately informed his attorney (Mr G.Duncan) of
the fact
that the State would not accept the version put up by the accused. Ms
Erasmus also informed Ms Currie-Gamwo of her view
and says that the
latter agreed with her.
[16]
The following morning the parties met at
court and then went to see Savage J in chambers in order to keep her
abreast of the latest
developments. The judge stood the matter down
until later in the day to enable the defence to consider their
position. In the process,
says Ms Erasmus, she informed Mr Moses in
broad terms of the sort of detail which the State required in the
agreement in order
that it could pass muster. A revised document
(which I shall hereinafter refer to as “
the
second draft”
) was presented to
the State later that morning and, once again, says Ms Erasmus, she
was unhappy with the contents thereof: instead
of describing in his
own words what had happened inside the tent the accused had
apparently parroted the earlier wording used in
general terms by Ms
Erasmus when she conveyed to the defence what it was that the State
required.
[17]
The parties went to court shortly before
lunch that day and Savage J was informed by the State that it had
only recently received
the latest copy of the proposed document (ie
the second draft) and needed time to consider it. The matter
accordingly stood down
until Thursday, 10 August 2017.
[18]
Ms Erasmus says that she thereupon
forwarded the second draft to Ms Currie-Gamwo who told her that the
document was still unacceptable
and that further detail was required
as to what transpired inside the tent. Ms Erasmus says that the
mother of the deceased was
also dissatisfied with the accused’s
explanation. Ms Erasmus conveyed to the defence the instruction from
her senior that
unless the accused was willing to give a proper
explanation (to the satisfaction of the State) as to what occurred
inside the tent,
her instructions were to continue with the
prosecution.
[19]
Savage J then postponed the matter for a
week until Thursday 17 August 2017 to enable the parties to attend to
the matter. Ms Erasmus
was told by Ms Currie-Gamwo that she had in
turn discussed the matter with Mr de Kock and that the final decision
as to the conclusion
of the agreement would be taken by him. Later
that week Mr De Kock indicated that he too was not happy with the
contents of the
second draft presented by Mr Moses and ordered that
the prosecution should continue. On 17 August 2017 Savage J was
informed in
chambers that the State was not amenable to the proposal
put up by the accused but that the defence had asked for an
opportunity
to meet with Mr de Kock and Ms Currie-Gamwo. The matter
was postponed yet again to accommodate the accused.
[20]
After much to-ing and fro-ing a meeting
ultimately took place on 8 September 2017, attended by Mr De Kock, Ms
Bell, Ms Currie-Gamwo
and Ms Erasmus as also Mr Moses and Mr Duncan.
The outcome of the meeting was that the State’s position
remained unchanged:
it did not accept the factual position put up by
the accused, and in the result Mr de Kock directed yet again that the
trial should
continue. On 18 September 2017 Savage J was informed in
open court by the parties that agreement could not be reached and the
matter
was accordingly postponed for the trial to commence on the
first day of the new court term, Monday 23 October 2017. Due to the
active involvement of Savage J in the negotiations around the
conclusion of the plea agreement, it was deemed appropriate for the
matter to be sent to trial before another judge and the matter was
allocated to Bozalek J.
THE
URGENT APPLICATION
[21]
On Wednesday 11 October 2017 the accused
launched the present application to be heard in the motion court on
Monday, 23 October
2017. The application was brought in breach of the
provisions of Rule 6 in that the time periods for the filing of
papers was abridged
and, although the matter was manifestly urgent in
light of the fact that the trial was due to commence on that day,
there was no
prayer for condonation of the breach of the Rules or
permission to proceed as a matter of urgency in the notice of motion.
Consideration
could therefore be given to striking the matter from
the roll in the absence of such allegations, but the State did not
take the
point and it seems to me preferable to make a ruling on the
merits of the application.
[22]
The substantive
relief sought in the notice of motion is as follows:
“
1. That
the current criminal proceedings under the abovestated case number in
the above Honourable Court against the Applicant/Accused,
be stayed
pending finalisation of this application;
2. That a solemn
and legally binding agreement - the Agreement - has been negotiated
and concluded between the State, as represented
by the Deputy
Director of Public Prosecutions, Western Cape, Adv N Bell and the
State Advocate, Adv E Erasmus, on the one hand
and the Defence, Adv
JJ (Joey) Moses and Attorney, Mr G Duncan, on behalf of the
Applicant/Accused, regarding the further conduct
and finalisation of
the criminal charges under the abovestated case number against the
Applicant/Accused;
3. The essential
terms of the Agreement are/were the following:
3.1
The State would accept a Plea of guilty on Culpable Homicide by the
Accused, Taariq Phillips, with a non-custodial sentence
to be
imposed;
3.2
The State would withdraw the other charges of Murder and Rape;
3.3
The Accused would plead guilty to Culpable Homicide as
quid
pro quo
;
4. That the
State, as represented by the Respondent, be interdicted and
restrained from proceeding with the Murder and Rape charges,
as set
out in the Indictment, against the Applicant/Accused, forthwith, and
that a Stay of Prosecution be ordered in respect of
those charges;
5. That the
Respondent, as represented by the State Advocate in this matter, Adv
E Erasmus, be held bound to the Agreement, including
the terms of the
written agreement as set out and agreed between the State and
Defence, in the Plea and Sentence Agreement in terms
of
Section 105A
of the
Criminal Procedure Act, 1977
, as amended (Act 51 of 1977) -
annexure “TP6” to the founding papers;
6. That the
Respondent and the Defence - the parties - be directed to present and
submit the said Agreement as recorded in the written
Plea and
Sentence Agreement to the Court, as determined and/or directed by the
Honourable Judge President or any other Judge designated
by the
Honourable Judge President, for its consideration and final decision
regarding the said Agreement;
7. That the
Respondent is restrained and interdicted from using and/or referring
to any information, statements and/or documents
used and referred to
in this Application in any subsequent trial based on the same facts
as the current criminal trial against
the Applicant/Accused, and that
such evidence be declared inadmissible in such subsequent trial
against the Applicant/Accused.
8. Costs, in the
event of this Application being opposed, on the scale as between
attorney and own client, from the date of concluding
the Agreement
until date of judgment;”
The
document referred to in paragraph 5 of the notice of motion, Annexure
TP 6, is the second draft referred to earlier.
[23]
The application was opposed by the State
which filed a comprehensive set of answering papers on Wednesday 18
October 2017. On Monday,
23 October 2017 the matter was removed from
the motion court roll at the direction of the Deputy Judge President
and referred to
this court for urgent hearing on that day. The
accused was not in a position to reply to the State’s papers
because his attorney,
Mr Duncan, was said to be overseas. The matter
was accordingly postponed for hearing on Friday, 3 November 2017 with
directions
for the filing of replying papers and heads of argument.
On that day the accused was represented by Advs. D. Potgieter SC and
J.J
Moses and the State by Advs A.D.R. Stephen SC and E.Erasmus.
[24]
The court was informed that Bozalek J had
postponed the criminal trial until 20 November 2017 pending the
determination of this
application.
THE
ACCUSED’S CASE
[25]
In a comprehensive founding affidavit the
accused claims that the second draft constitutes a binding agreement
between the parties
albeit that it has not been signed by them.
Repeated allegations are made regarding consensus having been reached
through on-going
negotiations between the defence team and Ms Erasmus
resulting in a binding plea agreement which “
happened
on or about towards the end of July 2017 and beginning of August
2017.”
[26]
The accused says that –
“
34. This
agreement was to my mind, fortified when my legal representatives
presented me with a written Plea and Sentence Agreement,
which, so I
was advised, was the format in which it had to be presented to the
court in terms of the applicable law, which I was
advised, is/was
Section 105A
….I duly and voluntarily agreed to the facts,
circumstances and submissions as formulated by, and set out in the
said written
document which was drafted by my counsel and presented
to the State Counsel, Adv Erasmus, for her consideration with regards
to
the form and content of the said agreement. This was presented and
submitted to her a day before the trial date, on 7 August 2017,
to be
submitted to the court on the following day, 8 August 2017.”
[27]
The
accused then goes on to complain that the State was not happy with
the contents of the document initially put forward and suggested
amendments thereto. He claims that he was eventually persuaded by
counsel and his family to agree to the contents of the amended
document which was put forward to the State on his behalf. (This is
the second draft upon which the accused relies for the relief
sought
herein.) The accused points out that Ms Erasmus then informed the
defence team that she required the approval of her seniors
before she
could sign off the second draft and he takes her to task in this
regard:
“
40…
My legal representatives and I were very perturbed and frustrated
with this new unexpected bureaucratic hurdle, since
all of us,
including the presiding judge were under the impression that since
there is a genuine agreement, and clear agreement
regarding the
contents of this document, annexure TP 6, it is ready to be presented
to the court for its consideration and final
decision.”
[28]
After detailing the further delays which
occurred, culminating in the round table meeting with Mr to Kock
referred to above, the
accused says the following:
“
47. The
long and short of this meeting was that the DPP-WC was of the
opinion, and with which we disagree, that there was never,
and could
never have been, any agreement between the State and the Defence, and
that all that was happening was “
negotiations”
that took place, which did not result in any agreement in this
matter. Not he (Adv De Kock), neither his deputies, would be prepared
to “
sign off”
the written
Section 105A
Plea and Sentence Agreement. Hence the
matter must proceed to trial.”
[29]
The accused then goes on to set out his understanding of what had
happened in the context of
Section 105A.
He contends that there was a
multi-phased process, the first of which was an agreement that he
would plead guilty to culpable homicide,
that the State and the
defence had agreed on a non-custodial sentence and thirdly that the
charges of murder and rape would be
withdrawn. The accused claims
that these terms having been agreed upon, a binding agreement between
him and the State had therefore
been concluded from which the State
could not resile:
“
51. Hence
the
firs
t
stage of this process, the Negotiation stage, had been initiated and
concluded. This resulted in the Agreement reached between
the State
and the defence, as set out above, which is the
second
stage
of the process.
52. The next
stage of this process, was to formalise and formulate the
terms
of the Agreement to the
satisfaction of all parties concerned, i.e. the State and the
Defence. The Defence then presented the formulation
of the Agreement
in the form of the Plea and Sentence Agreement, to the State - Adv
Erasmus - the prosecutor. The latter considered
it, did not agree
thereto, and presented the defence with her additional terms to be
included in the formulation of the Agreement.
This, after
consideration, consultations and receiving the necessary instructions
from the client, myself, was then accepted and
inserted and added
into the written formulated Plea and Sentence Agreement. This
formulation was thereupon accepted and agreed
to by both the State
and the Defence. This concluded the
third
stage
of the Plea Bargaining
process, which in the original plea bargaining process under the
Constitution, common law and applicable
statutory framework, would
have been the Final Stage of the Plea Bargaining Process, thereafter
to be presented to the Court.”
[30]
It bears mention that these allegations fly in the face of the
covering note in Mr Moses’ email to Ms Erasmus that a
“
draft”
was being forwarded “
for consideration”
. They
are also inconsistent with Mr Moses’ address to Savage J on 18
September 2017 when counsel informed the court as follows
after Ms
Erasmus had sought a postponement on the basis that the parties had
not reached agreement on the detail of the plea-bargaining
agreement:
“…
.
(T)here were genuine attempts at reaching an agreement in respect of
the section 105 (A) plea and sentencing agreement but we
were then
advised that my learned friend’s senior colleagues was (sic)
not amenable to agree to that and hence that has not
materialised and
we are now in the situation where we have to agree or have to request
that the matter will then have to be postponed
for trial, M’Lady.”
[31]
After accusing the State of reneging on a binding agreement and
detailing various aspects of the alleged prejudice that he
claimed he
would suffer if the agreement were not enforced, (all of which are
irrelevant to the matter at this stage), the accused
sought to draw
the following conclusions in the founding affidavit:
“
58. I
respectfully submit that I have demonstrated on all the probabilities
that a valid, bona fide and solemn agreement has been
entered (sic)
and concluded between the State and the Defence.
59. The essence
of that agreement is/was that the State would accept a Plea of Guilty
on Culpable Homicide, with a non-custodial
sentence, and withdraw the
Murder and Rape charges, in return for me, the Applicant pleading
guilty to Culpable Homicide (the
quid
pro quo
) as abovestated.
60. The
pre-section 105A plea bargaining process has therefore been
completed, which resulted in a solemn agreement reached between
the
State and the Defence. In the circumstances the State is, and should
be held bound to that agreement.
61. The writ
ten
“Plea and Sentence Agreement in terms of section 105A”
annexure “TP6” constitutes objective proof of
the
existence of the said agreement solemnly reached between the State
and the Defence, even if it is/was not yet signed by an
on behalf of
the respective parties.
62.
I am advised and thus respectfully submit that the section 105A plea
bargaining process does not supplant the existing pre-section
105A
plea bargaining process: it is merely a complimentary disposal
mechanism (see authorities cited and referred to above).
63.
Hence the State cannot, and ought not be allowed to, rely on the fact
that the written “Plea and Sentence Agreement in
terms of
section 105A” is/was not signed by and on behalf of the DPP,
and therefore is a nullity. That type written document,
annexure TP6
in fact, is a memorial of the terms of the agreement reached between
the State and the Defence, and as such objective
proof of the
existence of the said agreement solemnly reached between the parties.
64.
At best for the State, should they rely on the non-existence of a
formally signed section 105A plea agreement, they themselves
take the
said agreement out of the ambit of section 105A, and bring it
squarely within the ambit of the pre-section 105A plea bargaining
process.
65.
Under the latter plea bargaining process, they ARE, and should be
held bound to, the agreement solemnly reached between the
State and
the Defence.
66.
In the circumstan
ces, the
State should be held bound to the said agreement solemnly reached in
terms of the pre-section 105A plea bargaining system,
and I therefore
respectfully pray for an order in terms of the Notice of Motion to
which this founding affidavit is annexed.”
COMMON
LAW PLEA-BARGAINING
[32]
As I understand it, the phrase “
the
pre-section 105A plea bargaining system”
employed
in the founding affidavit is intended by to refer to the common law
position in which the criminal courts have always encouraged
parties
to settle their differences by concluding agreements relating to,
inter alia, the withdrawal of charges in lieu of a plea
of guilty on
other charges. The issue is dealt with in three cases relied upon by
the accused, viz
Dense
Concrete
[1]
,
Van
Eeden
[2]
and
Steyl
[3]
.
[33]
In
Van
Eeden
[4]
,
Budlender
AJ writing for the Full Bench summarized the position as follows:
“
[11] The
relevant events [in this matter] took place before the provisions of
s105A of the..[CPA] had come into effect.
[5]
Section 105A now formally regulates and recognises the practice of
plea bargaining. However, that practice existed before the enactment
of s105A, and was recognised by law. In [
Dense
Concrete]
,
the court undertook an extensive review of the literature on this
subject. It concluded that plea bargaining was an integral part
of
the process of criminal justice in South Africa, and that plea
bargaining as a means of achieving a settlement of the
lis
between the State and the accused was
‘
as
much an entrenched, accepted and acceptable part of our law of
procedure as are negotiations aimed at achieving a settlement
of the
lis
between “private” citizens, in “civil disputes”….
The
Court concluded that the respondent
‘
would
and must be held to his part of the bargain. That a prosecutor should
stand by an agreement solemnly given during the negotiations
leading
to a plea agreement should he regarded as a basic rule of that
procedure.’ “
[34]
The facts in both
Dense Concrete
and
van
Eeden
are however fundamentally different to the
present scenario. There the State had come to an agreement with
multiple accused that
if one of them pleaded guilty to certain
charges, the charges against the other(s) would be withdrawn. When
the State sought to
proceed against the other(s) in later
proceedings, the court found that it was precluded from doing so on
the basis that it was
bound by its earlier undertaking. Importantly,
the cases did not involve any agreement in relation to the sentence
to be imposed.
[35]
The case for the accused in the founding affidavit herein is
decidedly ambivalent: on the one hand he seeks to hold the State
precisely to the terms of the agreement concluded in the second draft
and requires that document to be presented to the trial court
when
the matter continues as if it had been signed by the parties, and on
the other hand, he says that the State is bound at the
very least to
an “
initial agreement”
concluded with Ms Erasmus
that he would plead guilty to culpable homicide in exchange for the
charges of murder and rape being
dropped, and further that he would
receive a suspended sentence.
THE
STATE’S CASE
[36]
The State’s case in the answering affidavit is straight
forward. It says that the parties embarked on a negotiation process
to conclude an agreement as contemplated in s105A, the point of
departure being a plea of culpable homidice in exchange for the
dropping of the murder and rape charges and the imposition of a
non-custodial sentence. It says that such agreement had to
incorporate
certain critical factual admissions by the accused, and
thereafter the approval thereof by the deceased’s mother and
the
investigating officer (as contemplated in s105A(1)(b)) and,
finally, the approval by Mr de Kock, in consultation with his
prosecutors
at the lower level.
[37]
In the main affidavit deposed to on behalf of the respondent, Ms
Erasmus denies repeatedly that an agreement as contemplated
under
s105A has been concluded or that she was authorized to conclude a
final and binding agreement with the defence. The State
maintains
further that such allegations of fact as are acceptable to it have
not been made by the accused, that the approvals referred
to under
s105A(1)(b) are lacking, that Mr de Kock has not approved the plea
bargain and that there is therefore no agreement under
the CPA. In
the circumstances, the State says it is entitled (in fact duty bound)
to continue with the prosecution.
THE
ACCUSED’S REPLY AND ARGUMENT
[38]
In the replying affidavit (which was deposed to by Mr Duncan) the
accused takes issue with Ms Erasmus’s factual allegations
and
continues to assert the case made out in the founding papers. To the
extent that these are motion proceedings the rule in
Plascon-Evans
[6]
applies and the State’s version must carry the day. I did not
understand Mr Potgieter SC to take issue with this approach
in
argument which means that the State’s denials of the conclusion
of an enforceable agreement stand.
[39]
Rather, counsel for the accused adopted a different tack in argument.
Any reliance on the second draft (as per paras 5 and
6 of the notice
of motion) was jettisoned and counsel fell back on a “
pre-s105A”
approach, the argument being that common law position referred to by
Budlender AJ in
van Eeden
was still available to the
accused and that the State was bound by Ms Erasmus’ alleged
agreement to the point of departure
referred to earlier.
[40]
In my view, the argument is not well thought through because that for
which the accused now contends is no warrant for the
imposition of a
non-custodial sentence: the route proposed in argument leaves him at
the mercy of the trial court which is at liberty
to impose whatever
sentence it considers just in the circumstances and is not bound by
the State’s agreement not to ask for
a custodial sentence. And
therein lies the fundamental principle which underpins s105A: an
accused is able to strike a bargain
with the State regarding the
sentence to be imposed and once the court has sanctioned that
sentence, he/she can tender a plea of
guilty safe in the knowledge
that that very sentence will be imposed.
[41]
The purpose of the plea bargaining process therefore is not only to
enable the State to dispose of a criminal prosecution speedily
and
without incurring the expense and delay of a trial, but to provide
the accused person with a guarantee that the sentence bargained
for
will be imposed
[7]
.
This is because in terms of the provisions of s105A(9)(b)(ii), the
accused (or for that matter, the State) is permitted to withdraw
from
the agreement in the event that the court is not prepared to sanction
the sentence which the parties have agreed to.
[42]
I am prepared to accept for the purposes of the argument that a
“
pre-s105A”
common law approach is still available
to an accused person. One can conceive of circumstances in the lower
courts where, for instance,
the prosecutor and defence counsel
informally agree before the proceedings commence (as in
Van
Eeden
) that a plea will be tendered by an accused on
condition that only one charge is proceeded with or that the charges
against a co-accused
are dropped, but that in such circumstances no
consideration is given by the parties to an agreement on sentence
because the customary
sentence would invariably be a fine or some
other form of non-custodial sentence.
[43]
But that is clearly not what happened here. In the instant case the
parties entered into discussions intended to reach a plea-bargain
agreement sanctioned under s 105A, expressly to avoid the imposition
of a custodial sentence. The parties approached their negotiations
in
strict compliance with the structure of the section itself which
reflects that the Legislature contemplated an incremental approach
as
those negotiations proceeded, safe in the knowledge that s105A
guarantees the parties the opportunity to resile from the
negotiations
at the appropriate stage if either is dissatisfied with
the outcome thereof.
[44]
As with any contractual arrangement care must be taken to distinguish
between the terms which the parties intended were to
have business
efficacy and those which fall outside the operational ambit of a
binding agreement.
[8]
It is not clear where the terms now relied upon would have featured
in that context. Further, it is important to bear in mind that
the
Legislature has directed that a plea-bargain agreement must be in
writing
[9]
,
and, in accordance with the general principles of contract, the
written agreement will be the parties’ “exclusive
memorial”. Accordingly, any pre-contractual discussions will be
of no force and effect once the written agreement is concluded
in
light of the parole evidence rule
[10]
.
PUBLIC
POLICY CONSIDERATIONS
[45]
Finally, in my view there are important policy considerations in this
matter which run counter to the approach ultimately suggested
by the
accused. As
Hiemstra
[11]
observes
in relation to the principles underlying the concept of a
plea-bargain, it is very much a question of give and take –
“
The
plea-bargaining regime is a fundamental departure from our
adversarial system. On the one hand, the state agrees to compound
the
offence and, on the other hand, the accused waives several
constitutional rights afforded in a trial. Certainty of the outcome
and the exact sentence are attractive advantages to the accused. The
state discounts the risk of an acquittal by accepting a lesser
sentence than might otherwise have been imposed. Avoiding a
protracted trial with its attendant stress is an additional benefit
to both sides.
Plea bargaining can be defined as
the procedure whereby the accused relinquishes the right to go to
trial in exchange for a reduction
in sentence; the prosecutor
bargains away the possibility of conviction in exchange for a
punishment which would be retributively
just and costs the least in
terms of the allocation of resources. In the process of bargaining,
numerous assumptions are made.”
[46]
At the end of that exercise the parties may reach consensus as to the
extent of the accused’s acknowledgement of criminal
culpability
and the appropriate sentence to be imposed in exchange for such
acknowledgement. If so, the parties must reduce their
agreement to
writing and place it before the court for confirmation of the
sanction. As said earlier, the court may approve thereof
or it may
come to a different conclusion. In them latter event, both the
accused and the State are afforded the right to resile
from their
agreement. And, should that happen, and the trial continues, the
State is precluded from referring at all to the abortive
agreement
[12]
.
That provision was expressly incorporated in the CPA to allow the
parties the space to bargain freely with each other without
compromising the accused’s constitutionally protected fair
trial rights.
[47]
To permit an accused, as in the present circumstances where a written
agreement under s105A is not concluded due to the lack
of consensus,
to hold the State to its initial willingness to explore a
plea-bargain and so secure a partial concession by the
State made
during the negotiation process, is to permit the accused to choose
those parts of the negotiations which are favourable
to him in the
absence of an adequate
quid pro quo
from his side
.
This
in my view offends the public policy considerations which underpin
statutory plea-bargaining.
[48]
There is a further consideration of public policy which emerges from
the founding papers. When explaining his motivation to
agree to the
initial draft of the plea-bargain agreement the accused says the
following:
“
32. After
numerous, lengthy and sometimes heated consultations between my legal
representatives and I, I was persuaded and agreed
that, in the
circumstances of this case, it was both just, fair and equitable to
both myself and the State, to accept and agree
to the proposal based
on the said undertaking by the State. The said undertaking by the
State to accept a plea of guilty on culpable
homicide with a
non-custodial sentence, the withdrawal of the charges of murder and
rape -
which I know I am innocent
of
- the fact that the matter
will be finalised swiftly and the anxiety about this case would be
over, the huge financial burden and
expenses my family and I had
incurred thus far, and which might continue, and the fact that my
deceased girlfriend’s mother
had indicated to Adv Erasmus that
she also just wanted this matter to finalise and that she does not
want me to go to prison, are
some of the factors that weighed heavily
with me, in accepting and agreeing to the said proposal and
undertaking by the State.”
(Emphasis
added)
[49]
It is apparent from this passage that the accused has serious
reservations about his criminal responsibility in relation to
the
death of the deceased, and has been motivated to offer a plea on the
basis of expediency rather than genuine acceptance of
his guilt. For
a court to confirm a common law plea-bargaining arrangement in such
circumstances, particularly where there is no
warrant that the
accused will receive a non-custodial sentence, in my view offends
public policy. The court cannot be party
to an arrangement of
expediency.
[50]
Moreover, in the absence of a validly concluded plea-bargain under
s105A, there is nothing which precludes the accused from
tendering a
plea of guilty in terms of s112(2) of the CPA before the trial court,
whether on grounds of expediency or in light
of genuine acceptance of
his guilt. But to ask this court to direct that such a common law
plea-bargain be recorded and enforced
against the accused would usurp
the power of the trial court to come to a fair and just conclusion
regarding the accused’s
guilt on the applicable test in that
court, as opposed to the lesser standard of proof in civil
proceedings such as these.
CONCLUSION
[51]
I am not persuaded that the accused has made out a case for the
relief which he seeks in relation to the confirmation of a
common law
plea bargain. Having agreed to persue the statutory option open to
him under s105A he is required to adhere to the provisions
of the
CPA, which include the State’s prerogative to resile from the
negotiations if it is not satisfied with the factual
basis upon which
the accused purports to accept criminal responsibility for the
charges brought against him.
[52]
And, when that situation eventuates, the State acts in terms of the
CPA and there is nothing unlawful in its conduct which
warrants
either the interdictory or declaratory relief sought in prayer 7 of
the notice of motion. The accused’s fair trial
rights are not
infringed and remain intact at the commencement of the trial pursuant
to the provisions of s105A(10).
[53]
While the accused sought a punitive costs order against the State in
the event of the application succeeding there is in my
view no need
to consider granting an order for costs in favour of the State on the
basis that it has been substantially successful.
The State has been
represented by salaried staff of the respondent and has therefore
incurred no costs.
ORDER
OF COURT
The
application is dismissed with no order as to costs.
__________________
GAMBLE, J
[1]
North
West Dense Concrete CC and Another v Director of Public Prosecutions
, Western Cape
2000
(2) SA 78 (C)
[2]
Van
Eeden v Director of Public Prosecutions , Cape of Good Hope
2005
(2) SACR 22 (C)
[3]
Steyl v
National Director of Public Prosecutions and Another
[2015]
ZAGPPHC 407 (9 June 2015)
[4]
At 24j -25d
[5]
The section came into operation on 14 December 2001.
[6]
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634-5. See also
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at
[26]
[7]
Hiemstra’s Criminal
Procedure
at 15-5 to 15-6
[8]
ABSA Bank Ltd v Swanepoel
2004 (6) SA 178
(SCA) at [5] – [7]
[9]
s105A(2)
[10]
Union Government v Vianini
Pipes (Pty) Ltd
1941
AD 43
at 47
[11]
op cit
[12]
s105A(10)(a)