Authored By: Nontobeko Msibi
University of South Africa
This article examines the evolution of plea bargaining in South Africa, exploring how the practice operates and whether it is fair to all those involved. Plea bargaining originated as an informal practice before being formalised under section 105A of the Criminal Procedure Act 51 of 1977.1 While plea bargaining can expedite proceedings and conserve judicial resources, it risks undermining the rights guaranteed by the Bill of Rights.2 The central concern is that some accused persons may feel pressured into plea agreements, which can conflict with section 35 of the Constitution of the Republic of South Africa, 1996, which guarantees every accused person the right to a fair trial, including the right to be presumed innocent, to remain silent, and not to be compelled to make any confession or admission.3
On 4 March 2014, Denise Jansen appeared in the Gauteng High Court after entering a formal plea and sentence agreement under section 105A of the Criminal Procedure Act. Jansen agreed to plead guilty to murder, and the State recommended 18 years’ imprisonment. The trial judge convicted her as agreed but then, without forewarning, imposed a sentence six years lighter than the negotiated term. Her co-accused received two years more than she did. It was not until she appealed that the Supreme Court of Appeal intervened, setting aside the convictions and remitting the case for a new trial. The judge’s failure to inform the parties that he considered the proposed sentences unjust, and his failure to afford them an opportunity to withdraw their pleas, rendered the entire proceeding a nullity.4
South Africa’s plea-bargaining system operates on two tracks. The first track, governed by section 105A, provides represented defendants with formal agreements, advance notice of the proposed sentence, and the right to withdraw if the court rejects the deal. The second track, governed by section 112, applies to most unrepresented accused persons, who negotiate informally, lack reliable information, and remain bound by their pleas even if the court subsequently imposes a harsher sentence. This creates a “second-class” experience for those without legal counsel, breaching the constitutional guarantees of equality (section 9) and the right to a fair trial (section 35). This article argues that the protections of section 105A — or comparable safeguards — must be extended to all defendants in order to render plea bargaining consistent with the Constitution.5
The Two Tracks to a Guilty Plea
Section 112, the informal route, permits defendants to plead guilty without knowing the sentence in advance; nor can the plea be withdrawn even if the court later imposes a harsher penalty.6 Section 105A, introduced in 2001, constitutes the formal route and applies only to represented accused persons.7 It requires a written agreement setting out the charge, the admitted facts, and the proposed sentence. The prosecutor must consult with the investigating officer and, where reasonable, with the complainant.8 If the court finds the proposed sentence unjust, it must inform the parties of the sentence it would consider just; the parties may then either accept that sentence or withdraw and request a trial de novo before a different judge. As confirmed in Jansen v S, this requirement is mandatory, and failure to comply renders the proceedings irregular.9
Judicial Interpretation: Promise, Progress, and Procedural Failure
The courts have shaped plea bargaining in South Africa through several key decisions. In S v Ngubane, the Appellate Division held that when a prosecutor accepts a guilty plea to a lesser charge, it limits the scope of the case, effectively permitting charge bargaining.10 In S v Sassin, Majiedt J analysed section 105A and emphasised that victim participation is crucial to the legitimacy of plea agreements.11 He clarified that a “just” sentence takes into account the facts of the case, societal interests, the victim’s position, and the accused’s personal circumstances — not merely the most appropriate sentence in the abstract.12 Most recently, in Jansen v S, the Supreme Court of Appeal held that if a judge considers a proposed sentence unjust, the judge must inform the parties of the sentence they would consider just and afford them an opportunity to withdraw from the agreement. The failure to do so, as occurred in that case, constitutes a gross irregularity, resulting in the convictions and sentences being set aside.13
Systemic Inequality and Constitutional Vulnerability
South Africa’s plea-bargaining system is divided into two tracks, and that division produces deep inequality. Section 105A, the formal track, offers clear procedures and meaningful protections, but exclusively to defendants who can afford legal representation.14 The majority of accused persons in the lower courts are indigent and must navigate section 112, the informal track, under which they plead guilty without knowing the likely sentence, the probability of conviction, or even the precise terms of any agreement. This informational asymmetry means that many unrepresented defendants either forgo beneficial bargains or accept deals that are prejudicial to their interests.
The disparity raises serious constitutional questions. Section 35 guarantees a fair trial, including the presumption of innocence and protection against compelled admissions, while section 9 promises equality before the law.15 A system that conditions procedural safeguards on financial means is discriminatory on its face. While the State might seek to justify any limitation under section 36,16 the real issue is not whether plea bargaining should exist — without it, the courts would in all likelihood collapse — but whether South Africa can design a plea-bargaining regime that is both efficient and fair for everyone.
Reform Proposals
The preceding analysis demonstrates that South Africa’s bifurcated plea-bargaining regime is neither constitutionally neutral nor institutionally sustainable. Reform is urgently required.
First, the procedural safeguards of section 105A must be extended to unrepresented accused persons. This does not require that every unrepresented defendant participate in a full formal agreement — the resource implications would be prohibitive — but rather that functional equivalents be developed. A mandatory pre-plea information session, conducted by a judicial officer or legally qualified prosecutor, could ensure that unrepresented defendants understand the proposed sentence, the probability of conviction, and the consequences of pleading guilty. A statutory right to withdraw a section 112 plea where the judicial officer imposes a sentence exceeding a specified threshold — for instance, 30 per cent above the prosecutor’s informal indication — would address the informational asymmetry that currently traps uninformed defendants in bargains they would otherwise refuse.
Second, judicial compliance with section 105A(9) must be reinforced. Jansen v S provides clear authority that failure to inform parties of a judicial finding of injustice, and to afford an opportunity to withdraw, constitutes a gross irregularity. This principle should be embedded in judicial training programmes and, if necessary, reinforced by a practice directive from the Chief Justice.
Third, victim participation requires strengthening. While Wickham v Magistrate, Stellenbosch correctly holds that victims lack standing to veto plea agreements,17 the current consultation requirement under section 105A(1)(b)(iii) is too easily satisfied by minimal engagement. The Act should be amended to require that a written victim impact statement be placed before the court at sentencing and that the judicial officer explicitly consider it when determining whether a proposed sentence is “just.”
Fourth, transparency must be improved. The National Prosecuting Authority has not published comprehensive statistics on the use of section 105A since Steyn’s 2007 analysis. Annual reporting on the number of agreements concluded, the offences involved, and the sentences imposed is essential to monitor whether the formal track is being utilised consistently across divisions and whether its protections are reaching those for whom they were designed.
Finally, the constitutional vulnerability of the current regime should be addressed proactively. A legislative commission of inquiry into plea bargaining, with a mandate to recommend reforms that align the system with sections 9 and 35 of the Constitution, would be preferable to awaiting an inevitable constitutional challenge.
Conclusion
South Africa’s plea-bargaining system stands at a crossroads. The informal track, developed in the shadow of an overburdened criminal justice system, has enabled the courts to survive caseloads that would otherwise have overwhelmed them. The formal track, enacted with admirable intention, introduced transparency, judicial oversight, and victim participation. Yet between these two tracks lies a chasm of inequality. The defendant who can afford counsel accesses certainty, information, and the right to withdraw. The defendant who cannot pleads guilty in ignorance, bound by a plea even when the sentence exceeds all legitimate expectation.
This is not merely a policy failure; it is a constitutional deficit. Section 9 promises equality before the law. Section 35 promises a fair trial, the presumption of innocence, and protection against compelled self-incrimination. A system that conditions these protections on the ability to pay for legal representation cannot be said to fulfil either promise.
The argument advanced in this article is not that plea bargaining should be abolished. That course is neither realistic nor desirable. The criminal justice system lacks the resources to try every accused person, and many defendants benefit from the certainty and reduced exposure that a negotiated settlement affords. The argument, rather, is that the benefits of plea bargaining must be distributed equitably. The procedural safeguards of section 105A — or functional equivalents adapted to the realities of unrepresented litigation — must be extended to all accused persons, irrespective of their means.
Denise Jansen’s conviction was set aside not because the Supreme Court of Appeal doubted her guilt, but because the process by which she was convicted denied her the statutory rights that Parliament had enacted precisely to protect accused persons in her position. Her case is not unique. It is illustrative. Until the procedural inequality at the heart of South Africa’s plea-bargaining regime is addressed, there will be others like her — and each one will represent not merely a failure of procedure, but a failure of justice itself.
Bibliography
Primary Sources
South African Case Law
Jansen v S [2016] JOL 34235 (SCA)
North Western Dense Concrete CC v Director of Public Prosecutions (Western Cape) 1999 (2) SACR 669 (C)
S v Ngubane 1985 (3) SA 677 (A)
S v Sassin [2003] 4 All SA 506 (NC)
Wickham v Magistrate, Stellenbosch [2016] JOL 34749 (WCC)
Legislation
Constitution of the Republic of South Africa, 1996
Criminal Procedure Act 51 of 1977
Criminal Procedure Amendment Act 62 of 2001
Secondary Sources
Adelstein R ‘Plea Bargaining in South Africa: An Economic Perspective’ (2019) 9 Constitutional Court Review 81
Steyn E ‘Plea-Bargaining in South Africa: Current Concerns and Future Prospects’ (2007) 20 South African Journal of Criminal Justice 206
Footnotes
1 Criminal Procedure Act 51 of 1977 s 105A.
2 Constitution of the Republic of South Africa, 1996, ch 2.
3 Constitution of the Republic of South Africa, 1996, s 35.
4 Jansen v S [2016] JOL 34235 (SCA).
5 Constitution of the Republic of South Africa, 1996, ss 9, 35.
6 Criminal Procedure Act 51 of 1977 s 112.
7 Criminal Procedure Act 51 of 1977 s 105A, as inserted by the Criminal Procedure Amendment Act 62 of 2001.
8 Criminal Procedure Act 51 of 1977 ss 105A(1)(b)(i), (iii); 105A(2)(a).
9 Jansen v S [2016] JOL 34235 (SCA) paras 19–20.
10 S v Ngubane 1985 (3) SA 677 (A).
11 S v Sassin [2003] 4 All SA 506 (NC) para 14.
12 S v Sassin [2003] 4 All SA 506 (NC) paras 26–28.
13 Jansen v S [2016] JOL 34235 (SCA) para 19.
14 Criminal Procedure Act 51 of 1977 s 105A(2); Steyn E ‘Plea-Bargaining in South Africa: Current Concerns and Future Prospects’ (2007) 20 South African Journal of Criminal Justice 206.
15 Constitution of the Republic of South Africa, 1996, ss 9, 35.
16 Constitution of the Republic of South Africa, 1996, s 36.
17 Wickham v Magistrate, Stellenbosch [2016] JOL 34749 (WCC).
