There is ample domestic and international evidence suggesting that the longer a case is delayed, the less likely is a conviction, as memories fade, evidence is lost, people die, and the urgency of the matter fades, writes Jean Redpath.
Delay in state capture and high corruption prosecutions are causing some to promote the idea of amnesty. Yet the National Prosecuting Authority (NPA) has made progress, and some crucial cases are going to trial this year.
Appropriate sentencing in the first few convictions will improve public confidence, set a precedent for future cases, and influence whether future plea-and sentence agreements are concluded, which in turn will accelerate accountability.
Heavy minimum sentences are prescribed in law
Many of the offences applicable to state capture and high-level corruption fall under minimum sentencing laws with quite severe penalties. These include offences relating to exchange control, corruption, extortion, fraud, forging, uttering or theft and certain offences under the Prevention and Combating of Corruption Act (PRECCA), where the amount involved exceeds R500 000.
The relevant schedule of the legislation stipulates 15 years' imprisonment for a first offence, 20 for a second offence and 25 for the third offence.
Deviation from the "minimum" is permitted by the legislation if "substantial and compelling circumstances" exist. It is unclear what this might be in the case of corruption, nor how much deviation could be tolerated.
The Criminal Procedure Act requires that the court must "give due regard" to the prescribed minimums, so it would be difficult for a court to deviate to a sentence that does not contain at least some direct imprisonment.
Given the relatively low monetary threshold (R500 000) and the lengthy minimum for a first offence (15 years) there is a real incentive for the accused to fight hard. On the other hand, if heavy sentences become more common among high-profile cases, this could work to encourage plea and sentence agreements.
It is important, therefore, that last week, former KwaZulu-Natal Head of Treasury Dumisani Shabalala was sentenced to 15 years' imprisonment for fraud, 15 for corruption, 10 for money laundering and five years for contravening the Public Finance Management Act. Because the court ordered the sentences must run concurrently, his effective sentence is 15 years. Leave to appeal was denied.
A few more sentences like this could go a long way to encouraging plea and sentence agreements – which South Africa needs more of to avoid long delays. Shabalala's conviction relates to offences occurring more than 15 years ago – South Africa cannot afford such timelines on state capture and high corruption.
Plea and sentence agreements expedite cases
Plea and sentence agreements were formally introduced in South Africa in 2001 via the insertion of section 105A of the Criminal Procedure Act. They involve an agreement between the accused and the prosecution. The accused agrees to plead guilty, and the state undertakes to propose to the court a sentence, usually lesser than the accused would otherwise receive – or even the postponement of sentencing subject to agreed conditions being met.
The benefit for the state is that the conviction is almost fully assured while the accused receives a somewhat lesser sentence; an advantage for both sides is quick resolution. The accused must be legally represented, and the agreement must be reduced to writing; various consultations, including with the investigating office and the complainant, where there is one, must precede the agreement. The presiding officer must ultimately agree that the accused is guilty and that the agreement is fair and just; the court may reject an unjust guilty plea or too lenient a sentence. If the court rejects the sentence, another agreement can be made, or the case can go to trial.
Two factors tend to work against plea and sentence agreements. The first factor is that accused persons do not believe they will ever be convicted - they believe they have a good chance of the prosecution giving up before trial (withdrawal) or losing (acquittal), or that they can delay indefinitely – or at least until a more conducive (to them) political prosecutorial environment is in play. The second factor is that the prosecution offers sentences which are longer than the accused believes they will receive in court. Until a track record of reasonably severe trial-based sentences is established, there is little incentive for an accused to make an agreement.
Plea and sentence agreements have accordingly not been widely used in South Africa, unlike some jurisdictions, like parts of the United States, where they account for the majority of concluded cases and often involve a guilty plea on a lesser offence (a plea "bargain").
Ongoing delays in corruption trials undermine constitutional principles of accountability, fairness and equality. There is ample domestic and international evidence suggesting that the longer a case is delayed, the less likely is a conviction, as memories fade, evidence is lost, people die, and the urgency of the matter fades. The public becomes cynical, and those committing corrupt acts increasingly make a calculated call that they may continue to get away with it. By avoiding lengthy trials, plea and sentence agreements can help speed up the conclusion of a significant proportion of cases.
Such agreements are certainly preferable to some sort of amnesty – or effective amnesty by failure to prosecute. Not only is amnesty likely to undermine public confidence, but passing the necessary legislation and running hearings is likely to be at least as tortuous as the Zondo Commission. Furthermore, the idea that somehow the corruptly lost funds can be more easily recovered via amnesty is naïve: much of it has been spent on consumables rather than assets, and many of the guilty parties have no real means of paying back the funds.
In addition, there are existing structures and mechanisms which are precisely designed to recover what funds do remain, including the Special Investigating Unit and Special Tribunal and through civil asset forfeiture, neither of which require criminal convictions. Some R1.8 billion was recovered by the SIU in 2020-2021, while more than R60 billion is reportedly in process.
Exclusion from public office
The corrupt should be convicted and should at least receive a sentence which excludes them from future public office for a term. The South African Constitution provides for such an exclusion for convictions with a sentence of direct imprisonment for a period of 12 months or more without the option of a fine. The exclusion applies for five years after the sentence is completed. It excludes membership of the National Assembly, Provincial Legislatures, and Municipal Councils, and consequently also executive positions requiring such membership. The exclusion commences after all appeals or time periods allowed for appeal have expired. Consequently, a person sentenced to a suspended sentences or to a fine or a term with the alternative of a fine will not be excluded from public office, nor anyone awaiting an appeal.
The sentence received by former Minister Bathabile Dlamini avoids the exclusion from public office: for her conviction for perjury for lying under oath during a 2017 inquiry into the social grants debacle at the South African Social Security Agency (SASSA), she received a sentence of four years (half of which was suspended for five years) or a R200,000 fine. Where an option of a fine is given, the ban on public office does not apply. There must be direct imprisonment of 12 months or more.
Parole and correctional supervision considerations
Thus, a plea and sentence agreement should ideally provide for a sentence of at least 12 months direct imprisonment but be less than the prescribed 15 years for a first offence, to be attractive to an accused. When negotiating an agreed possible sentence, a savvy lawyer will take into account when parole or conversion of sentence to correctional supervision is possible, as these technicalities can significantly reduce the actual time served on an otherwise strict-seeming sentence.
The Correctional Services Act read with the Criminal Procedure Act governs parole as well as conversion of a sentence to correctional supervision, which is slightly different from each other. Both result in "community corrections". People on correctional supervision are called "probationers”, while people on parole are called "parolees”.
Technically, correctional supervision is a sentence imposed by a court (either initially or on conversion of a sentence) and is served in the community under the control and supervision of correctional officials, subject to conditions (such as house arrest or participation in programmes) which have been set by the court or by the Commissioner of Correctional Services. By contrast, parole is not a sentence, but a conditional release from a sentence of incarceration, similarly served in the community under the control and supervision of correctional officials subject to conditions which have been set by the Commissioner of Correctional Services.
Conversion to correctional supervision is possible if a quarter of the sentence has been served and the remainder of the sentence does not exceed five years. Release on parole, by contrast, is considered after the minimum non-parole period of a sentence has been served; a 2012 amendment reduced the non-parole period for sentences of less than 24 months to a quarter of the sentence but for longer sentences, one half must be served before a person is considered for parole.
It is not clear how frequently the option of conversion is used; the actual process involves a court hearing similar to the original sentencing proceedings and must be initiated by the Head of Correlational Centre and be made on the recommendation of the National Commissioner of Correctional Services or the Correctional Supervision and Parole Board (CSPB).
By contrast, the decision to release on parole is made by the Head of Correctional Centre for sentences of 24 months or less, or by the CSPB in the case of longer sentences, not by a court, and is relatively routinely granted, but not guaranteed.
Thus, someone sentenced to five years can have their sentence converted to correctional supervision by a court after serving 1.25 years and is eligible for parole after 2.5 years. By contrast, someone serving 15 years would need to serve 10 years before a conversion to correctional supervision would be possible; however, the non-parole period comes to an end after 7.5 years, making parole possible after 7.5 years only.
Philip Truter, the VBS Bank Chief Financial Officer, was sentenced in October 2020 to 10 years, of which three were suspended (seven years direct imprisonment), after pleading guilty in terms of a plea-and-sentence agreement and also undertaking to testify in the larger case. He will be eligible for parole after 3.5 years (half) and for correctional supervision conversion after 2.5 years (less than 5 years remaining, more than a quarter served).
Had Truter not entered the agreement, at least a 15 year sentence was likely, which would mean 7.5 years before parole is considered (half) and 10 years before conversion to correctional supervision would be possible (5 years or less remaining). So, he exchanged a possible (but not guaranteed) minimum of 7.5 years for a possible (but not guaranteed) 2.5 years. Indeed, he may well be out before the main trial is concluded. The remaining accused, however, face the stress of many court appearances and associated vast legal fees if they do not qualify for Legal Aid, and if convicted, which seems likely, probably at least a 15-year sentence.
It is worth noting that Truter may face prosecution on additional charges if the court finds that he does not testify fully and honestly in the main trial (a topic for another article).
Note that for a life sentence, a minimum non-parole period of 25 years applies. Life imprisonment in minimum sentencing legislation is reserved for specific aggravated forms of murder (e.g., premeditated) and rape (e.g., gang rape) and not for corruption and related offences. However, some politicians implicated in corruption are also implicated in a murder, most notably, Ace Magashule.
There are also other sentencing regimes. The provision under which Oscar Pistorius was sentenced (s276(1)(i) of the Criminal Procedure Act) provides for correctional supervision after one-sixth of the sentence is served on a sentence of five years or less. This is not a conversion of sentence, but one provided for by the trial court at the time of sentencing. The trial court must specifically stipulate that s276(1)(i) applies; it is not available for offences falling under minimum sentencing.
A further possible but infrequently utilised sentence is periodical imprisonment, where a sentenced person can, for example, be in the community on working days, but must be incarcerated on weekends. The Criminal Procedure Act provides that periodical imprisonment can be imposed for between 100 hours and 2 000 hours. This would, however, on the face of it, be an unpalatable deviation from discretionary minimums.
Similarly, a sentencing option of a fine which completely excludes direct imprisonment – or permits a fine as an alternative to imprisonment – is likely to be viewed by the public as preferential treatment of the politically connected, effectively allowing them to buy themselves out of imprisonment.
This is not meant to suggest that fines are never appropriate, nor that imprisonment without the option of a fine is always appropriate; neither should a "short" term of imprisonment be considered insignificant. Deprivation of liberty for any period of time is a serious punishment, and a conviction has implications for future employment, travel and professional registration.
South Africans have become inured to long sentences, often expecting nothing less than "life". This is impractical and "life" should be reserved for serial violent offenders.
Sentences on own do not deter
Bearing all the above in mind, avoiding the "Stalingrad" scenario and securing relatively speedy convictions by agreement would be a key win for the NPA and the country – but doing so is highly unlikely before some more trial convictions with serious sentences are handed down. It is in the interests of justice, where possible, for the prosecution to seek plea and sentence agreements with appropriate sentences toward the speedy conclusion of cases. Sentences should at least include a term of direct imprisonment longer than 12 months, and an additional suspended term should also ideally form part of the sentence to further deter future corrupt conduct.
To achieve this, it is important that the first few sentences on high-profile corruption set an appropriate precedent, consistent with the law and severe enough to encourage other accused persons to agree to plea-and-sentence agreements. However, sentences on their own do not deter; it is the likelihood of getting caught and actually prosecuted and convicted that deters; convictions are urgently required.
It is in everyone's interests that state capture cases be resolved relatively speedily, that criminal records reflect the seriousness of the crimes concerned, and that such persons are banned from public office for at least some period of time.
Jean Redpath is a Senior Researcher at the Dullah Omar Institute
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