CHAPTER 4

THE NEED FOR OUT-OF-COURT SETTLEMENTS IN SOUTH AFRICA

Advantages of out-of-court settlements

4.1 The advantages of out-of-court settlements are the following:

(1) Most importantly, they will contribute to saving precious court time and costs, since the case can be finalised without going to court,^[67] and without the time-consuming task of settling factual disputes.

(2) The saving in time means that more cases can be dealt with more rapidly, something that should improve the people’s perception of the administration of justice.

The accused person has certainty regarding the outcome of the case, provided the conditions of the agreement are complied with.^[68]
The accused person does not end up with a record of previous convictions, a factor which often prompts people to dispute a criminal charge.
If all parties involved approach the matter with open minds there are ample opportunities for restorative justice as an outcome of an out-of-court settlement. However, expectations in this respect should be tempered by the experience in jurisdictions employing out-of-court settlements, namely that such conditions are rarely used.
Victims can be protected from publicity, and from having to be subjected to cross-examination, and yet benefit from compensation or restitution by the accused.^[69]

Disadvantages

4.2 The main disadvantages of out-of-court settlements are the following:

(1) The possibility exists that the public may view private settlements with suspicion, something that may impact negatively on the image of the administration of justice. However, it is unrealistic to expect each dispute and crime to be settled in open court. The criminal justice system simply does not have that capacity. Also, secrecy can sometimes be preferable, for example in the interests of the victim of a crime.^[70]

(2) Some may argue that the lack of judicial control over out-of-court settlements is another disadvantage.^[71] The response to this objection is as in the previous point.

(3) There are various ways in which lawyers and public prosecutors can improperly influence an accused person to make the required admission or to consent to the conditions of the out-of court settlements. This will not be something peculiar to out-of-court settlements. Nevertheless, the concern has to be addressed in the proposed legislation.^[72]

(4) The decision to enter into out-of-court settlements and the nature of the conditions can be based on irrelevant factors, such as the personality of the prosecutor and legal representative, which could lead to the unequal treatment of accused persons. However, the exercise of a discretion by the prosecutor is an integral part of the criminal justice system as it currently stands. If applied correctly, out-of-court settlements could become an instrument furthering the effective administration of justice.

Further consideration

4.3 There is currently a tremendous backlog of criminal cases in the courts. The reasons for this backlog have already been noted in other reports. There can be little doubt that a system of out-of-court settlements, properly devised and implemented, may help to alleviate this backlog simply because a case can reach a satisfactory conclusion with a minimum expenditure of time and effort.

Conclusion

4.4 In view of the foregoing the Commission is of the opinion that there is a very definite need for out-of-court settlements in criminal cases in South Africa.

^[67] See also SA Law Commission Discussion Paper 94: Simplification of Criminal Procedure (Sentence Agreements) (2000) 26 [par 4.3].

^[68] See also Sentence Agreements 25 [par 4.2].

^[69]

See also Sentence Agreements 33 [par 5.12].

^[70] See also Sentence Agreements 27 [par 4.5 and 4.6].

^[71] See also Sentence Agreements 27 [par 4.7 and 4.8].

^[72] See also Sentence Agreements 28 [par 4.9 and 4.10].

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