Magistrates should take note after new trial ordered for man who violated protection order

A Pietermaritzburg man given a wholly suspended sentence for breaking a domestic violence protection order will have to stand trial again.

This after two high court judges found the magistrate hearing the matter had not followed the law in accepting his guilty plea in a plea bargain agreement with the state.

One issue raised by the judges was that in terms of the Criminal Procedure Act (CPA) — which governs plea bargains — there was no indication on record that the prosecutor had consulted the victim and the investigating officer.

The matter came before acting judge William Nicholson and judge Pieter Bezuidenhout as a special review referred by the senior magistrate of the Pietermaritzburg magistrate’s court who was conducting judicial quality assurance.

The protection order was granted in April 2017 against Sazi Samkelo Ngcobo. Ngcobo was directed “not to swear, insult, threaten or intimidate [the applicant], not to damage her property or drive her vehicles”.

In March, he contravened the order by “throwing her phone on the ground and taking her car without her consent”.

He was arrested and charged. He entered into a plea agreement and was sentenced to three years’ imprisonment suspended for five years on various conditions, including that he is not convicted again of contravening the Domestic Violence Act, he undergo 12 months correctional supervision, including house arrest and community service.

He was also directed to attend rehabilitation programmes for anger management.

Upon perusal of the record, it is apparent there was no authority furnished to the court confirming authorisation of the prosecutor to enter into the plea and sentencing agreement.

In the review, Nicholson said section 105A of the CPA required the public prosecutor to consult the investigating officer and the complainant.

Citing case law, he said where the presiding officer believed the sentencing agreement is not just, before convicting the accused, he is obliged to inform the parties what sentence he believes is just. This was so the parties could make an informed choice whether to abide by the plea bargaining process. Failure to do so constituted noncompliance with the law.

“Upon perusal of the record, it is apparent there was no authority furnished to the court confirming authorisation of the prosecutor to enter into the plea and sentencing agreement. The complainant was not consulted, the agreement was not confirmed by the accused before conviction and sentence and there was no consideration given to whether the sentence was just,” Nicholson said with Bezuidenhout concurring.

The conviction and sentence were set aside. The matter was sent back to the magistrate’s court for a new hearing before another presiding officer at the discretion of the director of public prosecutions in KwaZulu-Natal.

Mbekezeli Benjamin, research and advocacy officer at Judges Matter, said consultation with the complainant was a vital part of the plea bargain process.

“The magistrate has oversight to ensure compliance with the act but also for the purposes of protecting the victim while balancing it with the interests of the accused. 

“This should be a lesson for all magistrates. It’s becoming clear that the South African Judicial Education Institute should provide refresher training on this aspect. It’s something we come across when we observe interviews at the Magistrates' Commission, when acting magistrates are interviewed for permanent posts or permanent magistrates are interviewed for promotion,” he said.

The National Prosecuting Authority did not respond to a request for comment.