Bengis and others v Government of South Africa and others and a related matter [2016] 2 All SA 459 (WCC)

Criminal procedure – Plea bargain – Whether the South African government and other State agencies and officials, in alleged violation of arrangements reached with the applicants when they concluded a plea bargain in South Africa, unlawfully assisted the United States authorities to prosecute them in America for related crimes and to obtain restitution orders – Court finding no justification for interpreting the plea bargain as containing an implied undertaking by the National Prosecuting Authority that it would not assist the United States in prosecuting the applicants for offences under American law.

In two consolidated applications, the same three persons featured as applicants and the same persons featured as the first to sixth respondents in both cases.

The applicants sought final relief on motion. Bona fide factual disputes therefore had to be determined on the respondents’ version. A purported factual dispute would lack bona fides if the respondent’s version was a bald or uncreditworthy denial or was palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting it on the papers.

The first applicant (“Bengis”) was the director of a fishing company which had quotas for various marine products. It was found to have harvested fish in excess of its quotas and to buy illegally harvested fish from other catchers in violation of the Marine Living Resources Act 18 of 1998. A South African criminal investigation was launched in 2001, and the Directorate of Special Operations (“DSO”) caused warrants of arrest to be issued for the applicants. Various meetings occurred between the applicants and the South African authorities, in connection with a plea bargain, and a plea agreement was settled upon. Around the same time, the applicants learned of moves afoot by the US authorities to prosecute Bengis for offences under American law (concerning the importing into the United States of fish illegally harvested in South Africa).

The main complaint in the first application was that the conduct of the South African government after 30 April 2002 in connection with restitution proceedings in the United States (restitution, like sentencing, being a post-conviction phase of the United States criminal proceedings) was in breach of the alleged composite settlement agreement entered into in the plea bargain negotiations. In the second application, the applicants alleged that, as part of the settlement discussions, the applicants were explicitly assured that, subject to the satisfactory conclusion of the South African settlement arrangements, the South African government would not provide any co-operation or assistance to the US authorities beyond that which was required by law. The main complaint in the second application was that the conduct of South African officials after 30 April 2002 in connection with the prosecution in the United States was in breach of the assurance referred to.

Each of the applicants also signed US plea bargain agreements in the form of letters addressed to their respective American attorneys. During the plea bargain proceedings in court, the judge asked each applicant whether he understood that mandatory restitution was required under the statute; and that the forfeiture to which they had agreed would not be treated as satisfaction of any fine or restitution. Each applicant answered affirmatively.

Held – While accepting that the combined effect of the plea bargain and a letter addressed to the applicant by the head of the National Prosecuting Authority (“NPA”) at the time was that all civil and criminal proceedings between the applicants, the State and the fishing authorities arising from the South African investigation would be finally concluded, the Court could not find that the plea bargain and the letter could be construed as prohibiting the rendering of assistance by the South African prosecuting authorities to American prosecutors or as precluding South Africa from participating in and benefiting from the restitution phase of American criminal proceedings. If Bengis had a contrary perception, it was not engendered by those representing the State in the plea bargain discussions.

A plea bargain in terms of section 105A of the Criminal Procedure Act 51 of 1977 is by its nature an agreement between the NPA and the accused persons who are party to the agreement, and is binding on the NPA. Having regard to the terms of the agreement, the Court found that even if the applicants did by implication acquire rights from the plea bargain, there was no justification for interpreting the plea bargain as containing an implied undertaking by the NPA that it would not assist the United States in prosecuting the applicants for offences under American law. The applicants could not, on the strength of the South African plea bargain, impugn the validity of anything the South African government or the NPA did in relation to the American proceedings.

The Court accepted that public functionaries must exercise their powers in accordance with the principle of legality, in good faith and for proper purposes. However, it could find no basis on which the conduct of any of the respondents could be branded as mala fide (for public law purposes).

Consequently, the Court rejected the central complaints in the first and second applications that the assistance provided by the South African government and/or its officials to the United States prosecutors violated any agreements, undertakings, assurances or representations.

The applications were dismissed.


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