Jansen v The State

The appellants, Ms Denise Cindy-Lee Jansen and Mr Marco Rudolf Barnard, who lived together, were charged with offences relating to the assault and death of Ms Jansen's five-year-old son Anthony Jansen and the abuse of his older brother Stefan Erasmus. The children had been assaulted with various objects including a belt and wooden stick, burned with cigarettes, denied proper food and medical care, and the deceased had been locked indoors for prolonged periods. The appellants entered into plea and sentence agreements with the State in terms of section 105A of the Criminal Procedure Act 51 of 1977. Ms Jansen pleaded guilty to murder and child abuse, with an agreed sentence of 18 years imprisonment. Mr Barnard pleaded guilty to culpable homicide with an agreed sentence of 12 years imprisonment, conditionally suspended for five years. The trial court (Webster J) convicted the appellants in accordance with the plea agreements but then deviated from the agreed sentences, sentencing Ms Jansen to 15 years of which 3 years were suspended (effective 12 years) and Mr Barnard to 15 years of which 3 years were suspended (effective 12 years). The trial court did not inform the parties before conviction that it considered the proposed sentences unjust, as required by section 105A(9) of the Act.

• Whether a trial court may deviate from a plea and sentence agreement presented to it in terms of section 105A of the Criminal Procedure Act 51 of 1977 without advising the parties that it is of the opinion that the proposed sentence is unjust
• Whether the trial court's failure to comply with section 105A(9)(a) constituted a fundamental irregularity requiring the matter to be remitted for trial de novo
• What remedy should be granted when a trial court fails to comply with the peremptory provisions of section 105A(9)(a)

1. The appeal is upheld. 2. The convictions and sentences are set aside. 3. The matter is remitted to the Gauteng Division of the High Court, Pretoria for trial de novo before another judge.

Where a trial court is of the opinion that a sentence proposed in a plea and sentence agreement concluded in terms of section 105A of the Criminal Procedure Act 51 of 1977 is unjust, the court must inform the prosecutor and the accused of the sentence it considers just before convicting the accused. This enables the parties to exercise their options under section 105A(9)(b) - either to abide by the agreement subject to the right to lead evidence on sentencing, or to withdraw from the agreement. The provisions of section 105A(9)(a) are peremptory and failure to comply with them constitutes a fundamental irregularity that vitiates the conviction and sentence. Such non-compliance denies the parties the opportunity to make an informed choice and is contrary to the objectives of the Act. Where such irregularity occurs, the matter must be remitted to the trial court for trial de novo before another presiding officer, as a trial court is best suited to determine whether an accused admits the correctness of the charge and whether the agreement was entered into freely and voluntarily.

The court made extensive observations on the purpose and benefits of the plea bargaining mechanism under section 105A. Majiedt J's comments from S v Saasin were cited with approval, emphasizing that victim participation in plea bargaining lends legitimacy and credibility to the process, serves both the personal interests of victims and broader societal interests, promotes transparency, and ensures that justice is manifestly seen to be done. The court noted that a properly negotiated plea yields a result that is transparent to all stakeholders and is in the interests of justice. The court also observed that the plea bargaining process entails consultation with all people involved in the offence, including the accused, complainant, victim and relevant stakeholders, conducted in a spirit of give and take that involves the accused making their defence known to the State and the State making available the contents of its docket. The court emphasized that it is in the interests of justice that the plea bargaining mechanism should be encouraged, citing S v Esterhuizen.

This case is significant in South African criminal procedure law as it clarifies the mandatory procedural requirements for trial courts dealing with plea and sentence agreements under section 105A of the Criminal Procedure Act. It emphasizes that the provisions of section 105A(9)(a) are peremptory and must be strictly complied with. The judgment reinforces the purpose and integrity of the plea bargaining mechanism, which is designed to allow informed decision-making by all parties including victims and stakeholders. It protects accused persons' rights to make informed choices about whether to proceed with plea agreements when a court considers the proposed sentence unjust. The case demonstrates that failure to comply with these procedural safeguards constitutes a fundamental irregularity that vitiates the entire proceedings, requiring a trial de novo. It also highlights the importance of victim participation and transparency in the plea bargaining process as essential elements that lend legitimacy and credibility to the criminal justice system.