oa Comparative and International Law Journal of Southern Africa - American plea bargaining in statutory form in South Africa



In the South African criminal justice system, with the court exercising the sentencing discretion and the American sentencing guidelines not forming part of the judicial system, the prosecutor will not play as dominant a role in plea bargaining as his American counterpart. He exercises a free discretion in charge bargaining, i.e. with what charge or charges the accused will be charged, and if he/she pleads guilty at the plea stage, whether to accept a plea of guilty on a lesser charge or competent verdict. The roles of the American and South African prosecutors and judges are materially different and, therefore, every rule of the American system of plea bargaining cannot merely be imported into the South African criminal justice system as is. The extent to which an accused enjoys legal representation at his trial is also of major importance when comparing the system of plea bargaining in our two jurisdictions.


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