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5.1 The system of out-of-court settlements must be a cost-effective option: it must not complicate criminal procedure and must effectively reduce the number of cases going to court.
5.2 It is also essential that the proposed system does not cause a net-widening effect, so that where out-of-court settlements are utilised for cases that are so petty that they would not, under the current system, end up in the criminal court anyway. If this happens the criminal justice system will have to deal with more cases rather than fewer and will become even more expensive. Therefore, the cases that are made subject to out-of-court settlements must be those that, without such a possibility, would undoubtedly have gone to court otherwise. Prosecutors should not be in a position to substitute a current decision not to prosecute, but to withdraw the case ("discretionary prosecution"), with an out-of-court settlement.
5.3 The Commission is aware of the present pressures under which the criminal justice system is labouring. These include mistrust in the officials administering the system. The proposed system should not open up new avenues for dishonesty, fraud or corruption. Furthermore, the new system should not further the public perception that serious crime goes unpunished, as this may encourage self-help and may support the idea that the system exists mainly for the benefit of criminals. The Commission is also aware of the fact that the traditional African way of restitution and restoration is often not supported by urbanised people.
5.4 Any newly devised system of out-of-court settlements has to account for these considerations, and needs to contain certain counter-measures. On the other hand a balance has to be struck with the need to deal with offences of a less serious nature speedily and without the unnecessary consumption of scarce resources.
5.5 Out-of-court settlements should only be entered into if the prosecutor has sufficient evidence to warrant the prosecution of the accused. A settlement should not be permitted if the prosecutor knows that the accused is innocent or knows that a material element of the case against the accused can never be proved.
5.6 It is important that the proposed legislation should contain guidelines for the exercise of the discretion to utilise an out-of-court settlement in any given case. Not only will such guidelines be of assistance to prosecutors, but they will be essential in order to ensure the equal treatment of all offenders. One guideline found in a number of local and foreign sources is that of public interest. Public interest should always be the overriding consideration in any decision taken by the prosecutor. However, public interest is also the standard used to determine whether a prosecution should be dispensed with altogether, and by itself may be insufficient as a guideline in the case of out-of-court settlements.
5.7 Reference to the triad of factors involved in the determination of an appropriate sentence, namely the offence, the offender and the interests of society, is also found in a number of jurisdictions. To these considerations can be added the effect of a conviction on the accused.
5.8 Beyond public interest, one standard that could be used is that of the sentence that the particular offence would probably attract in the view of the prosecutor. Since the conditions of an out-of-court settlement will not include the option of imprisonment, it could be determined that an out-of-court settlement would only be permitted if the court would probably not impose imprisonment as its primary sentence, or would probably not impose a term of more than one year's imprisonment (as an indication that the crime is not too serious for an out-of-court settlement). By requiring the prosecutor to consider the court's probable sentence, matters such as the seriousness of the offence, the personal factors of the accused and the interests of society in general will have to be taken into account.
5.9 The obvious objection to this standard is that it is too imprecise, and that the prosecutor may totally over- or underestimate the sentence that the court will impose. While this is true, the Commission is of the view that it is better than any other available standard and much better than an open discretion.
5.10 It is clear that the offences that should qualify the accused person for an out-of-court settlement would generally be restricted to offences at the lower end of the scale of severity. The question is whether the legislation should specifically limit such offences or whether this decision should be left to the discretion of the prosecutor. Ideally some guidance should be given in the legislation. In foreign jurisdictions it is customary to limit the offences by the maximum term of imprisonment that can be imposed, generally ranging from one year to six years' imprisonment. Such a course of action in South Africa is complicated by the fact that our criminal law is not codified. It would only be possible in the case of statutory offences.
5.11 In view of the fact that the South African criminal law is not codified and that the penalty clause in many statutory offences is no real indication of the seriousness of the offence,[73] the Commission is of the view that the limiting factor should be the probable sentence should the case go to court.[74] This approach would have the advantage that the nature of the offence would determine whether it qualifies for an out-of-court settlement, rather that its name. No further details regarding the limitation of specific offences are, therefore, required.
5.12 There is no room in our law for an out-of-court settlement to be forced on an accused person or for improper influencing of the accused to accept the settlement or its conditions. Current examples in the Criminal Procedure Act require of the accused person to admit the offence. Such requirement makes sense, since these examples generally result in a previous conviction for the accused. However, it is one of the characteristics of a true diversionary system that it does not result in a criminal record. In fact, most of the advantages of out-of-court settlements[75] would be lost if the settlement were to amount to a previous conviction. Therefore, the Commission is of the opinion that an admission should not be required for purposes of an out-of-court settlement, but that the accused should consent only to the terms of the out-of-court settlement before it can be implemented. The accused persons should be able to enter into a settlement with more freedom if consent is the only requirement. Generally, consent is also the requirement in foreign law.
5.13 Not every offender is a suitable candidate for an out-of-court settlement. The criteria used in the USA for determining the suitability of the accused in the case of deferred prosecution[76] are, in the view of the Commission, useful. According to these criteria, deferred prosecution can be appropriate if it appears, in the prosecutor's initial impressions, that the accused is not a significant threat to the community and is likely to benefit from an out-of-court settlement. An accused person with previous convictions may, for that reason alone, not be a suitable candidate.
5.14 A database of accused persons who have entered into out-of-court settlements must be established. A prosecutor must be able to determine from an independent source whether the accused is subject to a current out-of-court settlement, has successfully completed a previous settlement, or has failed to comply with the conditions of such a settlement. This information is vital for a proper exercise of the prosecutor's discretion.
5.15 The settlement should be in writing, and be binding on both parties as soon as they have signed the agreement. Ordinary contractual rules ought to apply.[77]
5.16 In the discussion paper on sentence agreements the Commission recommended that the sentence agreement contains a preamble setting out which rights have been explained to the accused before the agreement was concluded.[78] The question is whether any preamble is needed in the case of an out-of-court settlement and if so, what it should contain.
5.17 In view of the other proposals in this document, the accused's right to remain silent is not affected by an out-of-court settlement, since no admission is required. A preamble should also be unnecessary, due to the content that can be expected of a standard out-of-court settlement.
5.18 The legislation should make it clear that the successful compliance with the terms of the settlement will indemnify the accused against prosecution on the same charge, based on the same fact.
5.19 Another question is whether victims of crime should be given any input in the decision to enter into an out-of-court settlement? If they should, a further question is the extent of this input and whether a victim should be able to veto the prosecutor's decision to enter into an out-of-court settlement.
5.20 It may also be necessary to define the “victim” of the crime. In the Report on Sentencing: Project 82 (2000) 90 the Commission took a fairly generous view in defining victims and their rights. Section 47 of the proposed draft legislation reads as follows:
(1) The prosecution must, when adducing evidence or addressing the court on sentence, consider the interests of a victim of the offence and the impact of the crime on the victim and, where practicable, furnish the court with particulars of -
(a) damage to or the loss or destruction of property, including money;
(b) physical, psychological or other injury; or
(c) loss of income or support.
(2) A victim impact statement may be made by a victim who, as a result of an offence, suffered damage, injury or loss as referred to in subsection (1), or by a person nominated by such victim.
Accordingly, one could describe a victim as a person who suffered damage to (or loss of) property, injury (whether physical, psychological or otherwise) or loss of income or support as a result of the offence. This would generally be a question of fact.
5.21 It is expected that since the settlement procedure will often be victim-driven, victims should be given considerable input in the decision whether to enter into such a settlement. The Commission is of the view that the victim or victims should get the opportunity to make representations to the prosecutor on whether an out-of-court settlement would be fair in the circumstances, to make suggestions with respect to restorative justice conditions and to provide proof of damages suffered as a result of the offence. The prosecutor will have to take such representations into account in reaching his or her decision, but should not necessarily be bound by them. The victim, who is emotionally involved in the matter, should not be in a position to veto the decision to enter into an out-of-court settlement.
5.22 In order to enable the victim to make these representations, the victim should be notified of the intended out-of-court settlement whenever possible.
5.23 It should not be possible for a victim to institute a private prosecution against a person who has entered into an out-of-court settlement with the prosecutor. However, as an interested party the victim should be able to take the matter on review if the settlement is unreasonable, or was made in bad faith.[79]
5.24 A further question is whether the legal representative should be given any specific role to play, whether this role should be spelled out or whether general principles should apply in this respect.
5.25 In its recommendations on plea bargaining the Canadian Law Reform Commission recommended that, if the accused is legally represented, the prosecutor must negotiate with the legal representative. The Commission is of the view that such requirement makes sense also in an out-of-court settlement scheme. Beyond this function, which should be contained in legislation, the ordinary principles with respect to legal representation should apply.
5.26 It must be determined whether the judicial officer should have any role in out-of-court settlements, such as confirming the settlement, as is currently the case with respect to admissions of guilt.
5.27 In light of the Commission's view that the settlement should not amount to a previous conviction and that the accused should only consent to the settlement, the Commission is of the opinion that a judicial officer should not play any role with respect to out-of-court settlements in general.
5.28 Current legislation often requires the prosecutor to consult with various other parties, such as a probation officer or the investigating officer. The question is whether an out-of-court settlement should also be preceded by such consultation. The Commission is of the view that such consultation should not be a formal requirement for an out-of-court settlement. This should not prevent the prosecutor or the defence from obtaining a probation officer's report. Furthermore, if the investigating officer is of the opinion that an out-of-court settlement should not be entered into in a specific case, the initiative to prevent this should come from the police services, rather than requiring the prosecutor to consult in each and every instance.[80] On the other hand, however, the prosecutor should not be allowed to enter into a settlement without sufficient information about the offence and its surrounding circumstances. Information emanating from the defence alone cannot amount to "sufficient information".
5.29 Out-of-court settlements have to be subject to certain conditions. The nature of these conditions has to be considered.
5.30 Rather than creating a completely new set of conditions for out-of-court settlements, the Commission is of the view that the conditions that are available in the case of the suspension of sentence[81] should be used as point of departure in the case of out-of-court settlements. Several considerations favour such an approach:
(1) the conditions are well known;
(2) the conditions are essentially those that are proposed for inclusion in any scheme for conditional discontinuation of prosecution;
(3) some jurisprudence has already developed with respect to most of these conditions;
(4) some infrastructure for the implementations of most of these conditions already exists.
5.31 However, some adaptation of the conditions available in the case of suspended sentences will be necessary:
(1) The duration of suspension of these conditions (five years) is too long, and has to be reduced in the case of out-of-court settlements. The reason is that such a settlement will generally only take place in the case of crimes of lesser seriousness, and that finality needs to be reached within a shorter time. In view of the finding that six to 23 months has been considered the ideal duration for supervision,[82] the Commission recommends a maximum period of two years.
(2) A shorter maximum period is required for the duration of the more severe condition, namely community service. In this instance the Commission recommends a maximum duration of one year.
(3) It needs to be determined whether correctional supervision should be retained in the case of out-of-court settlements. The Commission is of the view that too many complications could potentially result from the house arrest component of correctional supervision, especially because it limits the freedom of movement of the accused.
(4) Payment of a fine is widely used as condition for out-of-court settlements in foreign law. It is also available to prosecutors in South Africa in terms of section 57A of the CPA. The Commission proposes to replace section 57A with a provision allowing for an amount of money to be paid to the State, as condition of an out-of-court settlement. Ideally, this payment should not be referred to as a fine, in order to distinguish it from an ordinary court sentence. The extent of such amount should be limited and this can be done in the manner that the admission of guilt fine of section 57A is currently limited. Payment need not be limited to payment to the State, and should also be extended to carefully circumscribed state agencies, such as the NDA.
(5) It is probably unwise to retain the open-ended "any other matter"[83] as a condition in the case of out-of-court settlements. It is too wide, and is also of doubtful use in the case of sentencing.[84]
(6) It also has to be determined whether some kind of warning or reprimand should be included within the available conditions. The Commission is of the view that such a condition is not one to which any settlement can be subjected. Also, if such a "condition" were appropriate, the need for the case to go to settlement has to be questioned. Rather, the decision should then simply be not to prosecute at all.
(7) Another condition that should be considered for present purposes, pertains to a committal to community dispute resolution structures. The Draft report on community dispute resolution structures[85] states that the following benefits are evident from an incorporation of "elements of popular justice" into the formal state structures:
(1) It will make the state system more accessible and user-friendly for the majority.
(2) It will make the state system come closer to popular expectations of restorative and compensatory justice.
(3) It will reduce prison congestion because it would favour non-custodial sentences.
(4) It will speed up trials, especially if combined with better case-flow management.
(5) It will strengthen the influence of local communities in making them willing partners for supervision of community service orders and rehabilitation projects.
(6) It will reduce recidivism because community informal social control systems would dove-tail with the state's methods and processes to form a seamless re-enforcement of the same values and similar processes.
Although that report is at a draft stage, and no fixed recommendations have been made so far, the draft legislation in the current report should make provision for referral to community dispute resolution structures by the prosecutor. All the advantages mentioned above can then potentially attach to out-of-court settlements as well.
5.32 It has to be determined up to which stage the criminal proceedings could be stopped and replaced by an out-of-court settlement. The Commission is of the view that it should be possible at any time after a charge sheet has been served upon the accused. The existence of a charge sheet appears to be a minimum requirement, since the accused needs to be informed as to the details of the charge in respect of which he or she will be concluding the settlement. The cut-off point towards the other end of the criminal proceedings is more complicated. Possibilities include (1) before plea,[86] (2) after plea but before adducing any evidence, (3) before the end of the state case, (4) after the state case but before adducing any defence evidence, or (5) any time before judgment. Arguments in favour of an earlier cut-off point include that it will optimise the time and cost saving advantages of out-of-court settlements, and will prevent the accused from first testing the strength of the state's case before deciding to settle. Arguments in favour of a later cut-off point include that the rush to finalise cases often results in a lack of attention to the accused's individual needs and to premature pleading to the charges, and that any saving in the time spent in court, no matter how small, should be appreciated as worthwhile. The Commission is of the view that the best solution is to allow the proceedings to be stopped at any time before any evidence has been presented in court, even after plea.
5.33 The legislation should make provision that the out-of-court settlement has to be approved by a senior control prosecutor.
5.34 The legislation should also make provision for the settlement to fall away if the conditions are not complied with. The accused should receive some credit for partial fulfilment of the conditions. The possibility having the agreement amended should also be attended to.
5.35 It has to be considered whether any appeal from the decision of the prosecutor should be provided for. The Commission is of the view that such a procedure is unnecessary. An accused person who considers the settlement unreasonable has the option not to comply with the conditions, in which case the matter will probably run its normal course, leading to the reinstituting of the prosecution against that accused. Review of any decision by the prosecutor is also available. The Commission is of the view that the general principles of review are sufficient, and that specific provision is not needed.[87]
5.36 The current provisions of sections 57 and 341 of the CPA should be largely retained in order to provide a measure for dealing with mass crime. In line with the discussion of section 57 above,[88] however, certain amendments are proposed, including the provision of a new name in place of the current "admission of guilt fine".
[73] A common example is the possession of a small amount of dagga (cannabis) – the penalty clause provides for a maximum sentence of any fine, or 15 years' imprisonment, or both (s 17(d) read with 13(d) and 4(b) of Act 140 of 1992). The typical sentence is but a fraction of these maxima.
[74] As discussed in para 5.6.
[75] See par 3.40 above.
[76] See par 3.36, page 26 above.
[77] See also Sentence agreements 29.
[78] Op cit 35.
[79] Cf, on review in general, E Du Toit et al Commentary on the Criminal Procedure Act (1997) 30-1 – 30-2.
[80] This is in contrast to the recommendation in Sentence agreements 36 (s 111A(b)(i)), due to the specific nature of out-of-court settlements.
[81] See section 297(1) of the Criminal Procedure Act.
[82] See par 3.39 above.
[83] Section 297(1)(a)(i)(hh).
[84] Cf Johann Kriegler Hiemstra: Suid-Afrikaanse Strafproses 5 ed (1993) 739.
[85] Project 94 (2000) 85.
[86] This is the proposal in the case of sentence agreements – Sentence agreements 36 (s 111A(1)(a)).
[87] Section 1(b)(ff) of the Promotion of Administrative Justice Act, 3 of 2000, excludes the decision to institute or continue a prosecution from administrative review. The Law Commission, in its report on Administrative Justice, August 2000, on page 17, intended to allow review of decisions not to prosecute (see The Promotion of Administrative Justice Act Handbook by Iain Curry & Jonathan Klaaren, 2001 at 67). Since the Act is silent on decisions not to prosecute or not to continue a prosecution, the section can also be interpreted to excluded such decisions from administrative review.
[88] See par 2.15
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