Options available to an accused person in a criminal case

01 June 2022 ,  Allan Lesesa 73

South Africa ranks number 123 on the Global Peace Index– that is high and simply translates into: ‘crime is an order of the day’. More than half of the population is dependent on the state to survive, this does not account for unaccounted persons who are not South Africans and whom also commit crimes.

Criminal activities take place for several reasons, either circumstantially or by choice.  Criminal/Defense attorneys are often faced with a task to champion their clients’ rights against the standard of justice. This may be achieved by going to trial and let a presiding officer decide in the interest of justice, or by trying as much as is legally possible to take control of the ultimate outcome by exploring options open for their accused clients. At the end of the day, it goes without saying that the goal is to advance the interests of justice.

When accused persons enlist services of a lawyer: One thing that needs repeated emphasis is that: lawyers cannot do miracles/magic trick to makes their clients’ cases disappear without consequences – the accused must answer for their conduct. However, lawyers can use avenues in law to advance their clients’ interests.

At times, the strength of the accused client’s case is lacking compared to that of the state. What can a client do, should they insist on going to trial, hoping that their attorney will do some miracle? That often proves unwise and costly.

In this article, I discuss option(s) available to the accused person faced with charges in a criminal matter whereas they do not have a strong case to answer the charges.

WRITTEN REPRESENTATIONS

An accused person may make written representations to the state. This is occasionally the most effective approach with lesser charges. The accused writes to the state, briefly explain their side and circumstances and on the same note, attempt to persuade the state to withdraw the charges, or arrange for alternative rehabilitative methods outside of Court.

The outcome is that the case will not end up being pursued by the state in Court and the accused person will maintain a clean criminal record.

PLEA AND/OR SENTENCE AGREEMENTS/DEALS

A plea and sentence agreement, also known as a plea bargain agreement, is an important part of our criminal justice system. They are agreements between an accused and the state, represented by the senior prosecutor, in terms of which an accused agrees to plead guilty in return for a lenient or reduced sentence.

Such agreements in their nature alienate the option of going to trial, that is, the state proving its case beyond reasonable doubt and the accused having to answer to the charges in a fair public trial as envisaged by Section 35(3) of the Constitution. The State and the accused enter into a written agreement and then ask the Court/presiding officer to make a ruling in terms of the agreement if it is satisfied that such agreement meets specific requirements of the law.

Plea and/or sentence agreements are entered into in terms of Section 105A(1)(a) of the Criminal Procedure Act 51 of 1977.

The relevant prosecutor must be authorized in writing by the National Director of Public Prosecutors (NDPP) and on the other hand, the accused person must be legally represented by a lawyer.

The overall effect of plea and sentence deals is that they often prove to be time conducive, economic and less strenuous as opposed to the effect that criminal trials have, on both the accused persons and victims alike. The plea and sentence agreements are an important part of the South African criminal justice system. They provide the accused and the state with the opportunity to negotiate and reach agreement regarding the conviction and just sentence to impose.

 

STATUTORY OBLIGATION

 

An accused person in a criminal matter has a right to a fair trial in public and a right to also state their side. However, in some cases, it proves best to avoid going to trial and avoid leaving the power to decide on a third party, a judge/presiding officer.

Equally, it is wise for an accused in a criminal matter not to lie to their attorney and/or insist on going to trial, that is often visited with harsh and costly consequences. In our law, there are options available for an accused person other than going to trial with a weak case. It is important that accused person consult a knowledgeable lawyer to advise them accordingly.

 

Reference List:

  • CONSTITUTION OF SOUTH AFRICA, 1996.

     

  • CRIMINAL PROCEDURE ACT 51 OF 1977, AS AMENDED

     

  • J. NDLOVU.

Prerequisites for the conclusion of valid plea and sentence agreements in terms of s 105A of the CPA. De Rebus 2021 (Dec) DR 8.

 

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