Ineffective assistance by counsel during plea negotiations revisited

Abstract

Plea bargains are touted in many international instruments and foreign jurisdictions, for example, the United Nations Guidelines on the role of prosecutors (Item 18 “Alternatives to prosecution”, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August–7 September 1990) and the United States of America (US; see, eg, Santobello v New York 404 US 257 264 (1971)) to promote effectiveness, fairness and consistency in criminal matters. It is also clear that South African authorities are placing an increasing reliance on plea bargaining (and other alternatives to prosecution) to assist a gravely under-performing criminal justice system to effectively move cases through the system (see, eg, Witten IOL news “Plea bargains to help tackle court backlogs” (15 January 2010), accessed at http://bit.ly/12kAMlS (1 September 2014)). Certain issues that have concerned other jurisdictions that utilise plea bargains are therefore bound to trouble our courts in the near future.