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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:American plea bargaining in statutory form in South Africa
Author:Bekker, P.M.ISNI
Year:2001
Periodical:The Comparative and International Law Journal of Southern Africa
Volume:34
Issue:3
Pages:310-324
Language:English
Geographic term:South Africa
Subjects:criminal law
criminal procedure
Abstract:Given the importance of plea bargaining in the administration of criminal justice in the United States, it is surprising to find a considerable divergence and confusion over what constitutes plea bargaining. No universal definition of the phrase 'plea bargaining' is accepted by practitioners in the field. There is, in fact, a variety of special definitions of this phenomenon and special uses of this phraseology, not only between, but also within jurisdictions. The typical plea bargaining situation is that the prosecutor initiates an agreement with an offer to drop some of the charges against the defendant or to make a favourable sentence recommendation to the court in exchange of the defendant's guilty plea to a lesser offence. In South Africa, there are no statutory rules pertaining to plea bargaining, but the practice has been applied generally for many years. In an Interim Report, which was submitted to the Minister of Justice on 16 January 1996, the South African Law Commission recommended that plea negotiations and plea agreements should be accorded statutory recognition. The commission came to the conclusion that the number of trial cases could indeed be reduced were plea discussions and the conclusion of plea agreements to be provided for in legislation. Furthermore, the practice of plea negotiation in South Africa could make an important contribution to the acceleration of the criminal justice process. When considering the commission's recommendations during 1996, the Portfolio Committee on Justice (Senate) concluded that the practicability of the procedure with regard to the unique South African circumstances should first be established in view of significant differences between the South African criminal justice process and those of other jurisdictions where such a procedure is followed. The matter was referred back to the Department of Justice who requested the Law Commission to reconsider the matter afresh in the light of the resolution adopted by the Portfolio Committee. In 2000, a reevaluation was published by the Law Commission ('Simplification of Criminal Procedure', Discussion Paper 94: Project 73 of November 2000). Notes, ref.
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