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[2019] ZAFSHC 67
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S v Wessels (62/2019) [2019] ZAFSHC 67 (23 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review No: 62/2019
In
the matter between:
THE
STATE
And
BYRON
WESSELS
CORAM:
LOUBSER, J
et
MOENG, AJ
JUDGMENT:
MOENG, AJ
DELIVERED
ON:
23
MAY 2019
[1]
This is an automatic review in terms of section 302 of the Criminal
Procedure Act, 51 of 1977 (the CPA).
The
accused was convicted and sentenced in the Magistrates' Court
Bloemfontein on one count of contravention of
section 4(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
- possession or the use of
drugs. He was sentenced to two years imprisonment which was wholly
suspended on specified conditions
and in addition, 36 months
correctional supervision. The conviction and sentence followed on a
plea and sentence agreement in terms
of
section 105A
of the CPA.
[2]
The record was placed before me to determine whether
the
proceedings were in accordance with justice. It transpired from the
written plea and sentence agreement that the accused was
unrepresented when he entered into the said agreement with the
prosecution. I resultantly enquired from the magistrate if it is
permissible in law for an unrepresented accused to enter into such an
agreement.
[3]
In his response, the magistrate conceded that the written
section
105A
agreement reflects that the accused was unrepresented when the
agreement was concluded. He however indicated that the accused was
legally represented when the
section 105A
negotiations were initiated
and his attorney only withdrew after such negotiations had already
begun but before the charge was
put to the accused. The magistrate
further indicated that he finalised the matter on the premise that
the agreement was negotiated
and entered into whilst the accused was
represented and he did not believe that the accused will suffer any
prejudice.
[4]
The typed record of the proceedings, indeed as correctly pointed out
by the magistrate, reveals that
the accused was legally represented
from the date of his first appearance until 18 March 2019 when his
attorney withdrew. The record
reflects that on 25 February 2019 the
prosecutor informed the court that the legal representative for the
accused and the state
were in
section 105A
negotiations and the case
was postponed to 18 March 2019 for the results of such negotiations.
On the latter date the legal representative
for the accused withdrew
as attorney of record and the case was postponed to the following day
for plea as the digital recording
machine was out of order.
[5]
The transcribed record reflects that on the next day, 19 March 2019,
the magistrate again explained
to the accused his rights to legal
representation and he elected to conduct his own defence. The
following exchange then took place
between the magistrate and the
accused:
‘
COURT:
You have sat with the senior prosecutor? You were legally represented
at that time when you negotiated and you still are
happy with what is
contained in there?
ACCUSED: Yes I am happy
with what is contained in I [
sic
], the matter sir’
Let me pause to mention
that a literal analysis of this question reveals that the accused
simply affirmed that he is happy with
what is contained in the
agreement and he does not confirm that he was legally represented at
the time of the negotiations. The
relevance of this response will
become clear later hereunder.
[6]
Paragraph 4 of the plea and sentence agreement which was signed by
the Senior Prosecutor and the accused
reads as follows:
‘
The
Senior Public Prosecutor and the accused,
who
is unrepresented
,
have negotiated and entered into the agreement in respect of a
plea of guilty by the accused to the offence of which he
may be
convicted on the charge as well as a sentence to be imposed by this
Honourable
Court’
(My
emphasis)
Page
8 lines 5 to 7 of the transcribed record also reflects that the
prosecutor informed the court that the accused and the Senior
Prosecutor entered into a plea and sentence agreement and the
contents thereof were read into the record. No mention is therefore
made of the involvement of the attorney in such negotiations.
[7]
Section 105A
(1) (a) of the CPA provides as follows:
‘
A prosecutor
authorised thereto in writing by the National Director of Public
Prosecutions and
an
accused who is legally represented
may, before the accused pleads to the charge brought against him or
her,
negotiate
and enter
into an agreement in respect of…’
(My
emphasis)
Subsection (2)(c), in
addition, provides that such an agreement shall be in writing and
shall at least be signed by the prosecutor,
the accused and his
or her legal representative.
[8]
In his response, the magistrate states that the agreement was
negotiated and entered into whilst the
accused was represented.
The
section 105A
negotiations were, ex facie the record, initiated
and had begun while the accused was legally represented. The case was
resultantly
postponed for the outcome of such negotiations.
[9]
The record does however not reflect what the outcome of such
negotiations was and whether the agreement
was concluded while the
accused was legally represented. From what is contained in the
record, we simply do not know what was negotiated
while the accused
was represented and what led to the withdrawal of the attorney. In
the absence of any such indication, one can
in my view not conclude
that he was so represented when the agreement was concluded. The
subsection requires both the negotiations
and the conclusion of the
agreement to be undertaken while the accused is legally represented.
Even if it is accepted that negotiations
were undertaken while he was
represented, there is no indication on the record that the agreement
was concluded while he was so
represented.
[10]
In contrast, the written agreement reflects that the Senior Public
Prosecutor and the accused, who was unrepresented,
negotiated and
concluded the agreement
.
The
agreement was likewise not signed by the attorney as required by
subsection (2)(c). This therefore signifies that the legal
representative was not involved in the conclusion of the agreement.
It is therefore clear, ex facie the written agreement, that
the
accused was not legally represented when he negotiated and entered
into the agreement.
[11] The
provisions of
section 105A
and specifically subsection (2)(c) are
clearly peremptory and requires exact compliance. The magistrate
contends that the accused
was not prejudiced as he enjoyed legal
representation before he pleaded. By entering into plea bargaining
with the prosecution,
the accused person waives a number of his
rights. As was stated in
S v De Goede
(121151)
[2012]
ZAWCHC 200
(30 November 2012) at [12]:
'The mandatory provisions
contained in
section 105A
provide protection to the accused person
who has, by virtue of entering into a plea and sentence agreement,
waived his or her rights
in terms of section 35(3) of the
Constitution to a public trial before an ordinary court and to be
presumed innocent in return
for agreeing to both plea and sentence.
Consequently adherence to the provisions of section 105A provides an
appropriate check
and balance against the abuse of the plea bargain
process in the context of the waiver of the accused’s
constitutional rights.
[12]
The need for legal representation during the conclusion of the
agreement cannot be understated. Only a prosecutor,
who has been
authorised
thereto
in writing by the National Director of Public Prosecutions, may enter
into such negotiations and conclude such agreement.
Such prosecutor
will according to the directives issued by the National Director of
Public Prosecutions and
in
practice be of considerable experience and seniority. The stakes are
therefore clearly high and as such a prosecutor will logically
have
greater bargaining powers than the accused. An unrepresented accused
will admittedly find him or herself at an unequal negotiating
position, hence legal representation is of paramount importance. The
requirement for legal representation is therefore, in my view,
aimed
at parity between the negotiating parties. This unequal bargaining
power is in my view where the potential prejudice is grounded.
[13]
The purported lack of prejudice referred to by the magistrate may
also be established on the ground that all the
accused constitutional
rights in terms of section 35 were explained to him during the
section 105A proceedings. The court is however
admittedly not
involved in the negotiations and will not be privy to what factors
are considered during the negotiations. It is
of importance to note
that the requirement for legal representation is specifically
provided for during the conclusion of the agreement
phase and not
during the plea and sentencing phase.
[14]
De Villiers 2004
De
Jure
244 at page 25, referring to the views of some international
scholars, highlights some of the risks and disadvantages associated
with plea bargaining, specifically during the negotiation phase. He
highlights that ‘plea bargains circumvent the standards
of
proof and due process of the criminal justice system’. He
further asserts that an accused may be coerced into waiving
his
constitutional rights to receive a lesser sentence. He contends that
to an extent these procedural safeguards are our main
assurance of
equal protection before the law.
[15]
De Villiers further highlights the risk that an innocent accused may
plead guilty and accept a lesser sentence
rather than taking the risk
of a harsher sentence, if convicted when contesting the charges. The
prospect of going to jail becomes
so intimidating that an accused
will agree to almost anything if the negotiated agreement
guarantees
that he will not serve time in jail. All these factors therefore make
it imperative for an accused to have legal representation
during the
conclusion of the agreement.
[16]
I am therefore satisfied that the conclusion of the agreement by the
accused, without the assistance of a legal
representative, was fatal
and amounted to an irregularity. The proceedings were accordingly not
in accordance with justice.
[17] In the
result I propose to make the following order:
1.
The
conviction and sentence are set aside;
2.
The case is
remitted to the court a quo for the trial to start de novo before
another magistrate.
L.B.J.
MOENG, AJ
I
concur and it is so ordered.
PJ
LOUBSER,
J