VICTIM PARTICIPATION IN PLEA AND SENTENCE AGREEMENT

WICKHAM v MAGISTRATE, STELLENBOSCH AND OTHERS 2016 (1) SACR 273 (WCC)

Sentence — Victim participation — Plea and sentence agreement — Effect of s 105A of Criminal Procedure Act — Provision peremptory subject to proviso that it was reasonable to afford complainant opportunity to make representations — Decision reviewable under Promotion of Administrative Justice Act 3 of 2000 — Proper time to bring application for review was prior to contents of agreement being disclosed to court, thereafter victim no longer active participant in proceedings.

The applicant applied for the review of the conviction and sentence of the fourth respondent in a magistrates’ court. The application was brought on the grounds that the second respondent, the Director of Public Prosecutions (DPP), had improperly entered into a plea and sentence agreement with the fourth respondent. The latter had been charged with two counts of culpable homicide in that she had driven her motor vehicle in a negligent manner, causing the death of the applicant’s son and another person, the occupants of a vehicle with which her vehicle had collided. The plea and sentence agreement was entered into in terms of s 105A of the Criminal Procedure Act 51 of 1977. The applicant contended that the prosecution had failed to address in the agreement the significantly aggravating factor that the fourth respondent had travelled at an excessive speed; failed to attach the victim impact statement to the agreement after it had previously undertaken to do so; and adopted a view in the proceedings which actively sought to exclude the applicant’s participation in the proceedings as a victim. The second respondent contended that the applicant lacked locus standi to bring the application and that the matter could not be subjected to review.

Held, that a prosecutor seeking to enter into a plea and sentence agreement with an accused had to afford the complainant an opportunity to make representations, but only where it was reasonable to do so, and taking into account the circumstances relating to the offence and the interest of the complainant. This provision was thus peremptory, subject to the proviso that it was reasonable to afford the complainant an opportunity to make representations.
Held, further, that, in concluding the agreement, the prosecutor performed an administrative function and, if there were a complaint that in performing such function this had adversely affected the rights of any person, such decision was subject to judicial review in terms of the Promotion of Administrative Justice Act 3 of 2000, s 1.
Held, further, that the basis on which a complainant or victim would have locus standi was limited to the issue whether the prosecutor in s 105A proceedings failed to afford him or her the opportunity to make meaningful representations in terms of that section before entering into the plea agreement. Failure to do so would make the decision of the prosecution to enter into the agreement reviewable at the instance of the complainant or victim only on this limited ground. (Paragraph [62] at 292g/h–i.)
Held, further, that the proper time to bring such an application for review would be prior to the contents of the agreement being disclosed to the court. Once they were disclosed to the court, the complainant or victim would have a very limited right to institute review proceedings. Thereafter he or she was not an active participant in the proceedings, because by that time, in terms of s 105A, he or she would have been given the opportunity to make representations and the court must have been satisfied in terms of ss (4)(a) or (b) that there had been compliance with the provisions of ss (1)(b)(iii). (Paragraph [66] at 293i–294a.)
Held, further, that, on a conspectus of the evidence, the applicant had failed to show that the DPP failed to afford him an opportunity to make representations. In fact the applicant had been afforded all the opportunity he needed to participate, and accordingly the applicant failed to show that he had the necessary locus standi to have the plea and sentence agreement set aside. The application was accordingly dismissed.

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