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2.1 The goal of this paper is to determine whether there is a need in South Africa to develop procedures that provide for the settling of criminal cases without having to go to court, and if so, the best way in which this can be achieved within the South African context.
2.2 Reference should be made at this stage of the international trend to have some criminal cases dealt with out of court. This trend is based mainly on two considerations, namely (1) to increase the cost-efficiency of the criminal justice process through simplified and streamlined procedures, and (2) to deal with mass crime outside of the traditional criminal process, so that the courts have more time to deal adequately with increasingly complex cases.
2.3 In this report an out-of-court settlement is an agreement between the prosecution and the defence in terms of which the accused undertakes to comply with conditions as agreed upon between the parties, in exchange for the prosecutor discontinuing the particular prosecution. Such conditional discontinuation of prosecution results in the diversion[1] of the matter from the trial process. Many other terms carrying roughly the same message have been used in various contexts. Examples include waiver of prosecution, deferred prosecution and dismissal of prosecution. Although these terms may have a specific meaning when used in a particular context (eg as part of the law of a particular country), generally they are very similar to out-of-court settlements, as referred to in this document. It is important, nevertheless, when doing comparative research, to keep the context and specific definition of any of these measures in mind.
2.4 An out-of-court settlement needs to be distinguished from other pre-trial procedures and agreements. It is distinct from sentence and plea agreements in that these follow upon a decision by the prosecutor to institute a prosecution. The agreement may affect the offences for which the accused is finally charged, but it invariably results in the conviction and sentence of the offender. Therefore, such offender will have been put through the entire criminal process and will end up with a criminal record. An out-of-court settlement does not involve the entire criminal process, does not lead to a conviction and does not result in a criminal record.[2]
2.5 Traditionally, South African law follows a system of discretionary prosecution. It is within the discretion of the prosecutor to proceed with any prosecution, and on the charge that he or she deems appropriate. In terms of section 6 of the CPA, this discretion includes the power to withdraw a charge already instituted, or to stop a prosecution where the trial has already commenced.[3] No conditions are generally attached to such withdrawal of a case or stopping of a prosecution.[4]
2.6 Unconditional discontinuation of prosecution has been in place for many years. It does not require the Commission's present attention. However, it is necessary to consider the criteria currently used to determine whether such discontinuation would be appropriate.
2.7 The basic criteria for the decision to institute a prosecution is, firstly, that sufficient, admissible evidence should be available to “provide a reasonable prospect of a successful prosecution.”[5] In the absence of a reasonable prospect of a conviction, a prosecution should not be pursued. The second is that a prosecution should normally follow if there is sufficient evidence for a conviction “...unless public interest demands otherwise.”[6] It is clear that our law does not oblige a prosecutor to institute a prosecution whenever sufficient evidence is available.[7] A variety of factors should be considered in determining whether public interest dictates that a prosecution should follow or not. The relevance of these factors, and the weight to be attached to each of them, depends on the circumstances of each individual case and, therefore, on the discretion of the prosecutor. The factors that are involved[8] basically centre on the triad of factors involved in sentencing, namely the seriousness of the offence, the circumstances of the offender and the interests of society.[9] More detailed, these factors include the relationship between the accused and the victim, the economic impact of the offence, its impact on public order and morale, the attitude of the victim, the likely expense of the prosecution, the accused’s previous convictions, the willingness of the accused to co-operate with the authorities in the investigation and prosecution of others, and whether the objectives of criminal justice would be served better by preferring a non-criminal alternative to a prosecution.
2.8 It is clear that the prosecutor's discretion to institute a prosecution is very wide. Although it has to be exercised with circumspection, the courts are unlikely to interfere with any decision taken by the prosecutor.[10]
2.9 Out-of-court settlements provide a useful method of lessening the burden on our overcrowded criminal justice system. Its other advantages (and disadvantages) are dealt with in chapter 4 below. Much can also be learnt about the usefulness of these settlements by comparing similar procedures that exist in foreign law. However, out-of-court settlement and similar diversionary procedures are by no means foreign to South African law.
2.10 What follows below is a brief discussion of out-of-court settlements and similar diversionary procedures in South African legislation. However, it is not only in formal legal structures that such diversionary procedures are familiar to South African law. It is well known in the structures that drive processes of informal community dispute resolution and in indigenous African customary courts. These structures are noted for their restorative justice approach,[11] as well as their flexibility, accessibility, the speed with which they can resolve conflict and the inquisitorial process, rather than an adversarial one, that they follow.[12] They emphasise solving the problems created by the crime, and are intent on restoration and compensation.[13] Out-of-court settlements have the same aims.
2.11 Only one provision of the CPA can truly be termed an out-of-court settlement. Section 6(1)(c) provides the prosecutor with the authority to suspend a prosecution whilst placing the accused under correctional supervision. It does not lead to the conviction of the accused, and a successful completion of the correctional supervision ends the matter. Section 6(1)(c) was added to the CPA by the Correctional Services and Supervision Matters Amendment Act 122 of 1991. It has never come into operation, and is not expected to be put into operation either. It reads as follows:
6 Power to withdraw charge or stop prosecution
(1) An attorney-general or any person conducting a prosecution at the instance of the State or any body or person conducting a prosecution under section 8, may–
...(c) at any time before judgment, whether or not an accused has already pleaded to a charge, reconsider the case and upon receipt of a written admission made by the accused in respect of the charge brought against him or a lesser charge, suspend the court proceedings and place such person, with his concurrence, under correctional supervision on such conditions and for such period as may be agreed upon: Provided that–
(i) where a probation officer or a correctional official is readily available in the court's area of jurisdiction, the powers under this paragraph may only be exercised after a report of such a probation officer or correctional official has been submitted for consideration to the prosecutor concerned;
(ii) the powers under this paragraph may only be exercised after consultation with the Commissioner and the police official charged with the investigation of the case and with due regard to the circumstances of the offence, the accused and the interests of the community;
(iii) where a prosecution has been instituted under section 8, the suspension of the court proceedings shall be authorized beforehand by the attorney-general;
(iv) the provisions of section 106(4) shall not be applicable where such an accused has already pleaded to the charge.
(2) If the court proceedings which have been suspended under subsection (1)(c) are proceeded with later–
(a) and the trial has already commenced, the plea which has already been recorded shall stand and the proceedings shall–
(i) if the court is similarly constituted, be resumed from where they were suspended; or
(ii) if the court is differently constituted, be proceeded with de novo;
(b) the written admission referred to in subsection (1)(c) may not be used against such an accused during the prosecution.
2.12 The utility of this provision is limited by several built-in factors. First it requires "a written admission" from the accused person. Apart from the uncertainty whether this admission should essentially amount to a confession to the alleged offence, there appears to be no good reason to require such admission for an out-of-court settlement. The modern approach is to require only that the settlement should take place with the consent of the accused.[14] Secondly, the provision contains inadequate information guiding the decision to suspend "the court proceedings".[15] Ideally, the legislature should provide prosecutors with more information regarding the factors on which their decisions should be based. Thirdly, the condition for suspension is limited to correctional supervision, without any apparent reason. The provision is further hampered by the fact that a report by a probation officer or a correctional official should generally be obtained, and that consultation with the Commissioner of Police and the investigating officer is required. The provision can also be criticised for its premise that the prosecution is suspended. The emphasis should rather be on the complete diversion of the matter from criminal proceedings. Section 6(1)(c) does not provide a good basis to work from, and it is proposed that it be repealed.
2.13 Section 57 provides for the payment of admission of guilt. The purpose of this provision is "to avoid unnecessary court appearance, on a trivial charge, of an accused who is prepared to admit guilt by paying an admission of guilt fine in respect of the relevant charge."[16] It reads as follows:
57 Admission of guilt and payment of fine without appearance in court
(1) Where –
(a) a summons is issued against an accused under section 54 (in this section referred to as the summons) and the public prosecutor or the clerk of the court concerned on reasonable grounds believes that a magistrate's court, on convicting the accused of the offence in question, will not impose a fine exceeding the amount[17] determined by the Minister from time to time by notice in the Gazette, and such public prosecutor or clerk of the court endorses the summons to the effect that the accused may admit his guilt in respect of the offence in question and that he may pay a fine stipulated on the summons in respect of such offence without appearing in court; or[18]
(b) a written notice under section 56 (in this section referred to as the written notice) is handed to the accused and the endorsement in terms of paragraph (c) of subsection (1) of that section purports to have been made by a peace officer,
the accused may, without appearing in court, admit his guilt in respect of the offence in question by paying the fine stipulated (in this section referred to as the admission of guilt fine) either to the clerk of the magistrate's court which has jurisdiction or at any police station within the area of jurisdiction of that court or, if the summons or written notice in question is endorsed to the effect that the fine may be paid at a specified local authority, at such local authority.
(2)(a) The summons or the written notice may stipulate that the admission of guilt fine shall be paid before a date specified in the summons or written notice, as the case may be.
(b) An admission of guilt fine may be accepted by the clerk of the court concerned notwithstanding that the date referred to in paragraph (a) or the date on which the accused should have appeared in court has expired.
(3)(a) (i) Subject to the provisions of subparagraphs (ii) and (iii), an accused who intends to pay an admission of guilt fine in terms of subsection (1), shall surrender the summons or the written notice, as the case may be, at the time of the payment of the fine.
(ii) If the summons or written notice, as the case may be, is lost or is not available and the copy thereof known as the control document –
(aa) is not available at the place of payment referred to in subsection (1), the accused shall surrender a copy of the summons or written notice, as the case may be, at the time of the payment of the fine; or
(bb) is available at the place of payment referred to in subsection (1), the admission of guilt fine may be accepted without the surrender of a copy of the summons or written notice, as the case may be.
(iii) If an accused in respect of whom a warrant has been endorsed in terms of section 55(2A) intends to pay the relevant admission of guilt fine, the clerk of the court may, after he has satisfied himself that the warrant is so endorsed, accept the admission of guilt fine without the surrender of the summons, written notice or copy thereof, as the case may be.[19]
(b) A copy referred to in paragraph (a)(ii) may be obtained by the accused at the magistrate's court, police station or local authority where the copy of the summons or written notice in question known as the control document is filed.
(c) Notwithstanding the provisions of subsection (1), an accused referred to in paragraph (a)(iii) may pay the admission of guilt fine in question to the clerk of the court where he appears in consequence of such warrant, and if the said clerk of the court is not the clerk of the magistrate's court referred to in subsection (1), he shall transfer such admission of guilt fine to the latter clerk of the magistrate's court.[20]
(4) No provision of this section shall be construed as preventing a public prosecutor attached to the court concerned from reducing an admission of guilt fine on good cause shown.
(5)(a) An admission of guilt fine stipulated in respect of a summons or a written notice shall be in accordance with a determination which the magistrate of the district or area in question may from time to time make in respect of any offence or, if the magistrate has not made such a determination, in accordance with an amount determined in respect of any particular summons or any particular written notice by either a public prosecutor attached to the court of such magistrate or a police official of or above the rank of non-commissioned officer attached to a police station within the magisterial district or area in question or, in the absence of such a police official at any such police station, by the senior police official then in charge at such police station.
(b) An admission of guilt fine determined under paragraph (a) shall not exceed the maximum of the fine prescribed in respect of the offence in question or the amount[21] determined by the Minister from time to time by notice in the Gazette, whichever is the lesser.[22]
(6) An admission of guilt fine paid at a police station or a local authority in terms of subsection (1) and the summons or, as the case may be, the written notice surrendered under subsection (3), shall, as soon as is expedient, be forwarded to the clerk of the magistrate's court which has jurisdiction, and such clerk of the court shall thereafter, as soon as is expedient, enter the essential particulars of such summons or, as the case may be, such written notice and of any summons or written notice surrendered to the clerk of the court under subsection (3), in the criminal record book for admissions of guilt, whereupon the accused concerned shall, subject to the provisions of subsection (7), be deemed to have been convicted and sentenced by the court in respect of the offence in question.
(7) The judicial officer presiding at the court in question shall examine the documents and if it appears to him that a conviction or sentence under subsection (6) is not in accordance with justice or that any such sentence, except as provided in subsection (4), is not in accordance with a determination made by the magistrate under subsection (5) or, where the determination under that subsection has not been made by the magistrate, that the sentence is not adequate, such judicial officer may set aside the conviction and sentence and direct that the accused be prosecuted in the ordinary course, whereupon the accused may be summoned to answer such charge as the public prosecutor may deem fit to prefer: Provided that where the admission of guilt fine which has been paid exceeds the amount determined by the magistrate under subsection (5), the said judicial officer may, in lieu of setting aside the conviction and sentence in question, direct that the amount by which the said admission of guilt fine exceeds the said determination be refunded to the accused concerned.
2.14 The fine-system of admission of guilt has been in place for many years, and appears to be functioning well. However, it is generally accepted that accused persons frequently select this option in order to avoid having to contest a petty charge, rather than because they consider themselves guilty of an offence.[23] The public also does not regard it as a previous conviction. Under these circumstances it appears to be manifestly unfair to equate the payment of an admission of guilt fine to a previous conviction, especially when the accused person has not appeared in court, and may also not have intended to admit the commission of an offence through payment of the money. A system of out-of-court settlements will exacerbate this paradox if an admission of guilt fine continues to amount to a previous conviction, whereas a true out-of-court settlement, which will often involve more serious crimes, will not.
2.15 Once the above is accepted, the question is whether payment of an admission of guilt fine should not rather be approached as an out-of-court settlement. This approach will be consistent with other diversionary measures contained in the CPA. Also, if payment of an "admission of guilt fine" is not taken as a conviction and sentence, there is no need for a judicial officer to be involved in the finalisation of the matter, and an administrative process will be sufficient.
2.16 Section 341 of the CPA, which should be read with section 57, probably exists only because of the financial relationship between the State and local authorities.[24] Section 341 deals exclusively with municipal offences and certain motor vehicle offences.[25] It reads as follows:
341 Compounding of certain minor offences
(1) If a person receives from any peace officer a notification in writing alleging that such person has committed, at a place and upon a date and at a time or during a period specified in the notification, any offence likewise specified, of any class mentioned in Schedule 3, and setting forth the amount of the fine which a court trying such person for such offence would probably impose upon him, such person may within thirty days after the receipt of the notification deliver or transmit the notification, together with a sum of money equal to the said amount, to the magistrate of the district or area wherein the offence is alleged to have been committed, and thereupon such person shall not be prosecuted for having committed such offence.
(2) (a) Where a notification referred to in subsection (1) is issued by a peace officer in the service of a local authority in respect of an offence committed within the area of jurisdiction of such local authority, any person receiving the notification may deliver or transmit it together with a sum of money equal to the amount specified therein to such local authority.[26]
(b) Any sum of money paid to a local authority as provided in paragraph (a) shall be deemed to be a fine imposed in respect of the offence in question.[27]
(c) Not later than seven days after receipt of any sum of money as provided in paragraph (a), the local authority concerned shall forward to the magistrate of the district or area wherein the offence is alleged to have been committed a copy of the notification relating to the payment in question.
(d) If the magistrate finds that the amount specified in the notification exceeds the amount determined in terms of subsection (5) in respect of the offence in question, he shall notify the local authority of the amount whereby the amount specified in the notification exceeds the amount so determined and the local authority concerned shall immediately refund the amount of such excess to the person concerned.
(e) For the purpose of this subsection 'local authority' means any institution or body contemplated in section 84(1)(f) of the Provincial Government Act, 1961 (Act 32 of 1961), and includes-
(i) a regional services council established under section 3 of the Regional Services Councils Act, 1985 (Act 109 of 1985);
(ii) any institution or body established under the Rural Areas Act, (House of Representatives), 1987 (Act 9 of 1987);[28]
(iii) a local authority as defined in section 1 of the Black Local Authorities Act, 1982 (Act 102 of 1982);
(iv) a local government body contemplated in section 30(2)(a) of the Black Administration Act, 1927 (Act 38 of 1927); and
(v) any committee referred to in section 17(1) of the Promotion of Local Government Affairs Act, 1983 (Act 91 of 1983).[29]
(3) Any money paid to a magistrate in terms of subsection (1) shall be dealt with as if it had been paid as a fine for the offence in question.
(4) The Minister may from time to time by notice in the Gazette add any offence to the offences mentioned in Schedule 3, or remove therefrom any offence mentioned therein.
(5) The amount to be specified in any notification issued under this section as the amount of the fine which a court would probably impose in respect of any offence, shall be determined from time to time for any particular area by the magistrate of the district or area in which such area is situated, and may differ from the admission of guilt fine determined under section 57(5)(a) for the offence in question.
2.17 This provision should be kept in mind when any amendments to section 57 are proposed by the Commission.
2.18 Section 57A was added to the CPA in 1996.[30] In essence section 57A extends the provisions of section 57, which apply only when a person has been presented with a summons or written notice to appear in court and to arrested persons who have appeared in court already,[31] regardless whether they are in custody, or have been released subsequent to the arrest. However, the main practical difference between the two sections is that section 57 is aimed at mass offences, such a traffic offences, whereas section 57A is aimed at isolated individual cases. It reads as follows:
57A Admission of guilt and payment of fine after appearing in court
(1) If an accused who is alleged to have committed an offence has appeared in court and is –
(a) in custody awaiting trial on that charge and not on another more serious charge;
(b) released on bail under section 59 or 60; or
(c) released on warning under section 72,
the public prosecutor may, before the accused has entered a plea and if he or she on reasonable grounds believes that a magistrate's court, on convicting such accused of that offence, will not impose a fine exceeding the amount[32] determined by the Minister from time to time by notice in the Gazette, hand to the accused a written notice, or cause such notice to be delivered to the accused by a peace officer, containing an endorsement in terms of section 57 that the accused may admit his or her guilt in respect of the offence in question and that he or she may pay a stipulated fine in respect thereof without appearing in court again.
(2) Such notice shall contain–
(a) the case number;
(b) a certificate under the hand of the prosecutor or peace officer affirming that he or she handed or delivered, as the case may be, the original of such notice to the accused and that he or she explained to the accused the import thereof; and
(c) the particulars and instructions contemplated in paragraphs (a) and (b) of section 56(1).
(3) The public prosecutor shall endorse the charge-sheet to the effect that a notice contemplated in this section has been issued and he or she or the peace officer, as the case may be, shall forthwith forward a duplicate original of the notice to the clerk of the court which has jurisdiction.
(4) The provisions of sections 55, 56(2) and (4) and 57(2) to (7), inclusive, shall apply mutatis mutandis to the relevant written notice handed or delivered to an accused under subsection (1) as if, in respect of section 57, such notice were the written notice contemplated in that section and as if the fine stipulated in such written notice were also the admission of guilt fine contemplated in that section.
2.19 The following aspects of this provision should be reconsidered: (1) whether an admission of guilt should be required, (2) whether court appearance should be essential, (3) whether the result should be deemed a conviction and sentence and (4) whether this provision should not be replaced by a true out-of-court settlement involving payment of an amount of money to the state.
2.20 The Commission's arguments with respect to aspects (1) and (3) above are dealt with elsewhere.[33] As to (2), the question is why the legislature has specified that the alleged offender has to appear in court before it can find application. There appears to be no reason in principle why an arrested person cannot be granted the option to pay an "admission of guilt fine" even before the first court appearance, should such payment be an appropriate course of action. These issues have to be considered when the Commission makes its recommendations at the end of this document.
2.21 Two further provisions of the CPA provide for the trial to be stopped, and the proceedings to be diverted from the criminal process. These are contained in sections 254 and 255. Section 254 deals with the stopping of a trial in the case of an offender under the age of eighteen years, if that child appears to be in need of care,[34] and bringing the child before a children’s court. Since the Commission has fully dealt with juvenile justice elsewhere, it will not be elaborated upon here.
2.22 Section 255(1) of the CPA reads as follows:
255 Court may order enquiry under Prevention and Treatment of Drug Dependency Act, 1992
(1)(a) If in any court during the trial of a person who is charged with an offence other than an offence referred to in section 18, it appears to the judge or judicial officer presiding at the trial that such person is probably a person as is described in section 21(1) of the Prevention and Treatment of Drug Dependency Act, 1992 (in this section referred to as the said Act), the judge or judicial officer may, with the consent of the prosecutor given after consultation with a social worker as defined in section 1 of the said Act, stop the trial and order that an enquiry be held in terms of section 22 of the said Act in respect of the person concerned by a magistrate as defined in section 1 of the said Act and indicated in the order.[35]
(b) The prosecutor shall not give his consent in terms of paragraph (a) if the person concerned is a person in respect of whom the imposition of punishment of imprisonment would be compulsory if he were convicted at such trial.
2.23 Although this provision describes a procedure which is conducted by the presiding judge or magistrate, it has some elements in common with out-of-court settlements, and may be of some guidance to the current enquiry. Some of the guidance relate to (1) the crimes for which this avenue is open, (2) the stage of the proceedings during which the trial can still be stopped, and (3) consent by the prosecutor.
2.24 Diversion is also known from competition law. The Competition Act 89 of 1998 creates a special procedure for dealing with competition law matters. It creates a Competition Tribunal,[36] which has as one of its functions to
...adjudicate in relation to any conduct prohibited in terms of Chapter 2 or 3, by determining whether prohibited conduct has occurred, and if so, impose a remedy provided for in Chapter 6.
The prohibited conduct mainly relates to commercial practices preventing or lessening competition in the market.
2.25 The remedy provided for in Chapter 6 is a consent order. It comes closest to an out-of-court-settlement in criminal matters and is provided for in section 63, which reads as follows:
(1) If a complaint of a prohibited practice has been investigated by the Competition Commission, and the Commission and the respondent agree on the terms of an appropriate order, the Competition Tribunal, without hearing any evidence, may confirm that agreement as a consent order in terms of section 60.[37]
(2) With the consent of a complainant, a consent order confirmed in terms of subsection (1) may include an award of damages to that complainant.
(3) A consent order does not preclude a complainant applying for –
(a) a declaration in terms of section 60(1)(a)(v) or (vi);[38] or
(b) an award of civil damages in terms of section 65, unless the consent order includes an award of damages to the complainant.[39]
2.26 In terms of section 73(1) a person who fails to comply with an order of the Competition Tribunal commits an offence, punishable by up to R500 000 or 10 years’ imprisonment, or both.[40] This penalty clause is an indication that such offence can, in appropriate circumstances, be very serious. At the same time, section 64(1) provides that any order by the Competition Tribunal “may be served, executed and enforced as if it were an order of the High Court”. Non-compliance with a consent order can therefore have both criminal and civil law consequences.
[1] Diversion has been defined as "...the referral of prima facie cases away from the criminal courts, with or without conditions" – South African Law Commission Report: Juvenile Justice (2000) 92. Clearly, an "out-of-court settlement" has to be conditional – the unconditional discontinuation of prosecution amounts to the simple withdrawal of the case, or stopping the prosecution. Both these procedures are currently in place, and are not the subject of this investigation – see par 10 below.
[2] Although it will be essential to keep record of such settlements – see par 74 below.
[3] Sec 6(1)(a) and (b). The latter needs the consent of the DPP or other person authorised thereto.
[4] Nothing currently prevents a prosecutor from withdrawing a case conditionally. Some prosecutors may occasionally undertake to withdraw a charge on the fulfilment of some condition by the accused. However, due to its isolated nature of such practices, it was not feasible to attempt to establish its exact extent.
[5] National Prosecuting Authority of South Africa Prosecution Policy (2000) 3.
[6] Op cit 5.
[7] SA Law Commission Discussion Paper 94: Simplification of Criminal Procedure (Sentence Agreements) (2000) 15, 19; Johann Kriegler Hiemstra: Suid-Afrikaanse Strafproses 5 ed (1993) 10-11.
[8] National Prosecuting Authority of South Africa Prosecution Policy (2000) 5.
[9] Cf SS Terblanche The guide to sentencing in South Africa (1999) 154.
[10] Kriegler op cit 10-11.
[11] South African Law Commission Draft report on community dispute resolution structures (2000) 5, 13 and 68-69.
[12] Op cit 41.
[13] Op cit 68-69.
[14] See Chapter 3 below.
[15] Although reference is made in par (iii) to "the circumstances of the offence, the accused and the interests of the community."
[16] Du Toit et al Commentary on the Criminal Procedure Act (1997) 8-1. See also S v Shange 1983 (4) SA 46 (N) 49E.
[17] R1 500 - Government Notice R1410 (Government Gazette 19435) of 30 October 1998.
[18] Para (a) substituted by s 3 (a) of Act 109 of 1984 and by s 6 (a) of Act 5 of 1991.
[19] Para (a) substituted by s 2 (a) of Act 26 of 1987.
[20] Para (c) substituted by s 2 (b) of Act 26 of 1987. Sub-s (3) substituted by s 6 of Act 33 of 1986.
[21] R1 500 - Government Notice R1410 (Government Gazette 19435) of 30 October 1998.
[22] Para (b) substituted by s 3 (b) of Act 109 of 1984 and by s 6 (b) of Act 5 of 1991.
[23] Cf NGJ Trading Stores v Guerreiro 1974 (1) SA 51 (O) 53H.
[24] Kriegler Hiemstra: Suid-Afrikaanse strafproses 5 ed (1993) 889.
[25] These offences are specifically mentioned in Sch 3 to the CPA.
[26] Para (a) substituted by s 9 of Act 64 of 1982.
[27] Para (b) substituted by s 9 of Act 64 of 1982.
[28] Sub-para (ii) amended by s 4 of Act 18 of 1996.
[29] Para (e) substituted by s 25 of Act 33 of 1986 and by s 16 of Act 26 of 1987.
[30] It was inserted by s 1 of Act 86 of 1996.
[31] SA Law Commission Discussion Paper 94: Simplification of Criminal Procedure (Sentence Agreements) (2000) 16.
[32] R1 500 - Government Notice R1410 (Government Gazette 19435) of 30 October 1998.
[33] See pars 2.12 and 2.14.
[34] In terms of s 14(4) of the Child Care Act 74 of 1983.
[35] Section 255(1)(a) has been amended by s 32 of Act 105 of 1997.
[36] Section 26.
[37] Section 60(2) simply provides that the Competition Tribunal may confirm a consent agreement in terms of section 63 as an order of the Tribunal.
[38] (v): to declare conduct of a firm to be a prohibited practice; (vi): to declare the whole or any part of an agreement to be void.
[39] Italics occur in the legislation, and are cross-referenced in the definitions in section 1.
[40] Section 74(1)(a).
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