MANDY WIENER | Consistency will be key in the low hanging fruit of plea deals

These reignite the much-debated notion of plea deals and whether they are truly in the interests of justice or not.

In the Alexandra Magistrate’s Court, former Zimbabwean President Robert Mugabe’s son, Bellarmine Mugabe, is awaiting final approval on a plea agreement. Bellarmine Mugabe is accused, along with one other, of shooting and wounding an employee at his Hyde Park residence. It has emerged that he was in the country illegally at the time of the incident.

Last week, it was announced that Hein Odendaal, the former audit executive at collapsed retail giant Steinhoff, had done a deal with the state. He was able to avoid jail time by paying a hefty R2 million fine after admitting that he failed to report suspicious activities.

The judge imposed a direct sentence of four years in prison and an additional two-year jail term that was fully suspended for five years. By paying the monetary fine, Odendaal does not have to serve jail time.

There are tight conditions in place. He can’t be convicted of a similar offence during this time period, and he has to undergo a year of correctional supervision.

In response to this news, the NPA issued a statement quoting NDPP Adv Andy Mothibi saying that, “These outcomes should demonstrate to the public that NPA will continue to prosecute all cases whether in public or private sector without fear, favour or prejudice.”

The NPA insisted that while a plea deal was practical, it did not lessen the seriousness of the offences because each case is judged on its own merits.

Perhaps the most high-profile of the deals done in the past few weeks is in the Bosasa matter. Former ANC MP Vincent Smith became the first politician convicted in a State Capture case.

The Johannesburg High Court sentenced Smith to seven years’ direct imprisonment.

Smith pleaded guilty to charges, including contravention of PRECCA, fraud, money laundering and contravention of the Tax Act. He will effectively spend seven years in prison for his crimes. The deal was done as per the Criminal Procedures Act.

Adv Mothibi said in response to that deal that “Inasmuch as the trial took longer than anticipated to be finalised, the wheels of justice finally got in motion and the rule of law was upheld. I commend the prosecution team involved in the matter.”

In an environment where there is enormous dissatisfaction with the NPA for its lack of success in state capture and other high-profile cases, plea deals can be seen as low-hanging fruit. They are quick wins for a prosecuting authority desperate to meet expectations. Something is better than nothing.

The deals truncate potentially extended trials that consume much-needed capacity in the prosecuting authority. What has become evident with corruption cases is how the accused can drag them on and on for perpetuity by embracing Stalingrad tactics. This drains resources and funding for an organisation already stretched beyond its means.

Advocate Mothibi, who has just stepped into the job as NDPP and has just two years to make an impact, may well be looking at more deals to get the wheels moving.

It’s a way of demonstrating accountability and success and showing that action is being taken. There are obvious redeeming features of plea bargains. More so when those who enter them can provide information and can testify in court against someone higher up on the food chain. It is always better to get the Don than the Button Men.

But there are obvious pitfalls too.

Critics will be vocal. Plea deals are in the interest of the wealthy and the connected. It reinforces the perception that those with money and influence benefit from a different kind of justice in South Africa.

Hein Odendaal was able to escape doing jail time by writing a cheque. In the case of Bellarmine Mugabe, his connections might mean that he will also avoid going to prison for violating a myriad of laws in a country in which he resided illegally. This is yet to happen, but no doubt the presumption will be that the deal was struck because of his surname and his status.

The key to convincing the public of the merits of this route will be consistency. It has to be reinforced that all are equal before the law, regardless of class, status or influence.

In order for the rule of law to be respected and for the NPA to be taken seriously, it cannot compromise on this principle.