The role of the victim in the South African system of plea and sentence agreements: a critique of section 105a of the criminal procedure act

Magister Legum - LLMCrime victims once played a prominent role in the criminal justice system. Historically, victims who sought to bring their wrongdoers to justice conducted their own investigations and argued their own cases or employed others to do so. As time passed, a distinction was drawn between offences against the social order and disputes between individuals. Crime control became a function of government and the state increased its responsibility for the investigation and punishment of criminal conduct. Gradually, the victim was removed from the proceedings and relegated to serving as a witness for the state. The assumption was that the state, whilst representing the interests of society, would represent the interests of the victim also. This fallacy provided the foundation for a criminal justice which, until recently, encourage victim exclusion. In recent years, there has been a clear trend towards re-introducing the right of victims to participate in the criminal justice process. This international trend has been labelled the „return of the victim‟. In South Africa, the Constitution and, in particular, the Bill of Rights contained therein underscore the move towards procedural rights for victims of crime. Moreover, the South African government has taken significant legislative steps to ensure that victims have formal rights in criminal justice proceedings. However, to date, comparatively little attention has been paid to the question of whether or not victims should be allowed a meaningful role in the process of plea and sentence negotiations. One of the aims of this study is to determine whether victims‟ rights are properly understood, defined and implemented within the criminal justice system. In particular, this study aims to clarify the rights of victims who find themselves affiliated with a specific stage of criminal prosecution, namely, negotiated justice