What is a plea and sentence agreement?

A plea and sentence agreement is a written deal between the prosecutor and an accused person. The accused agrees to plead guilty to an agreed set of allegations, and both sides agree on the sentence they will jointly ask the court to impose. It is negotiated by a prosecutor authorised in writing by the National Director of Public Prosecutions and the accused, who must be legally represented, and it must be reduced to writing and signed before it goes anywhere near a courtroom.

The important part is the part people forget. The court is not bound to accept it. A magistrate or judge must be satisfied that you genuinely admit the allegations you are pleading guilty to, and must be satisfied that the sentence the two sides have agreed on is a just sentence. If the court is not satisfied on either point, the agreement does not simply go through because both sides signed it.

The procedure sits in section 105A of the Criminal Procedure Act 51 of 1977. The prosecutor's authority to negotiate at all comes from the National Prosecuting Authority Act 32 of 1998, which places the decision to prosecute, and to shape a prosecution, in the hands of the National Prosecuting Authority. Your fair trial rights, including the right to legal representation, sit in section 35 of the Constitution of the Republic of South Africa, 1996. If you need help now, Legal Aid South Africa is on 0800 110 110.

How a plea and sentence agreement works, step by step

1. Somebody raises it. Either the prosecutor or your legal representative suggests that the matter could be resolved by agreement rather than by a trial. There is no form and no counter to queue at. It starts as a conversation.

2. The facts are negotiated. This is the part that matters most and the part clients pay least attention to. The two sides agree exactly what you are admitting. Which charge, on what date, against whom, and with what surrounding facts. A single word can change how serious the matter looks at sentencing.

3. The sentence is negotiated. The two sides then agree what sentence they will jointly propose. Nobody can promise you a number, because the court has the final say.

4. It is put in writing and signed. The agreement must record that you were told of your right to be presumed innocent, to remain silent and not to incriminate yourself, and it must set out the facts and any admissions. It is signed by the prosecutor, by you and by your legal representative. If you cannot follow a sentence in it, stop and ask.

5. The complainant is given a say. Before agreeing, the prosecutor must consult the investigating officer and, where it is reasonable, give the complainant a chance to make representations about the contents of the agreement and about compensation. That is not a veto, because the decision belongs to the National Prosecuting Authority, but the court checks that it was done.

6. The agreement goes to court. You plead in terms of the agreement. The court questions you to be satisfied that you actually admit what you are admitting, and that you entered the agreement freely, rather than pleading guilty to make a problem go away. The court does not take part in the negotiations.

7. The court decides. The court may accept the agreement and sentence you in terms of it. It may accept that you are guilty but find the agreed sentence unjust, in which case it tells both sides what sentence it considers just; you and the prosecutor can then accept that sentence or withdraw. It may find you do not really admit the allegations, in which case it records a plea of not guilty. In the last two cases, unless you choose otherwise, the trial starts afresh before another magistrate or judge, the agreement is void, and nothing in it may be used against you unless you consent. Where a minimum sentence applies to the offence, the court must also have regard to that law, as the guide to minimum sentences explains.

A worked example

This example is illustrative. The names and facts are not a real case.

Thabo is charged with a property offence after an incident at his former workplace. He has no previous convictions. He has already been through his first appearance and is out on bail. See what happens at your first court appearance for how that stage runs.

His Legal Aid practitioner reads the docket and tells him the state's case is strong on the main allegation but weak on one aggravating detail. The practitioner approaches the prosecutor and asks whether the matter can be resolved by agreement.

The negotiation runs over three weeks, and most of the argument is about the factual summary rather than about the sentence. Thabo's representative pushes to remove a phrase suggesting planning, because that phrase would make the offence look worse at sentencing. The prosecutor agrees after speaking to the investigating officer.

The agreement is typed, Thabo reads it twice with his representative, and he signs it. In court the magistrate takes him through the summary line by line and asks him directly whether he admits each part. Thabo hesitates on one point. That hesitation matters. A court cannot accept a guilty plea from somebody who does not actually admit the allegation. If, after questioning him, the magistrate finds that Thabo does not admit it, the law requires the court to record a plea of not guilty, and the trial starts afresh before another magistrate unless Thabo waives that.

Change the facts: Thabo confirms every line, but the magistrate considers the agreed sentence too lenient and says what sentence would be just. Thabo and the prosecutor can accept the magistrate's sentence, or either of them can withdraw and the case goes to trial before a different magistrate.

The lesson is not that agreements fail. It is that the courtroom questioning is real, and you cannot sign something you do not believe.

What to do this week

1. Get a legal representative before you negotiate anything. A formal plea and sentence agreement is only possible if you are legally represented. If you cannot afford a private attorney, phone Legal Aid South Africa or say so in court.
2. Ask for the charge in writing and read it carefully.
3. Write down your own version of events in full, dated, and give it to your representative. Do not give it to anyone else.
4. Do not contact the complainant or any witness. Not to apologise, not to negotiate, not through a friend. It can cost you your bail and it can add a charge.
5. Ask what a conviction would mean for you personally. Your job, your professional registration, your visa status, your ability to travel.
6. Ask what happens if the court refuses the agreement. Get that answer before you sign, not after.
7. Read the agreement yourself. Every line. In a language you understand. You are entitled to an interpreter.
8. Keep every court date. Missing one can undo everything. See what happens if you miss your court date.

Documents to gather

• Your identity document
• The charge sheet or the written charge, and your case number
• Your bail receipt and your bail conditions, if you are on bail
• Any correspondence with the police or the prosecutor
• Proof of employment, a payslip, or a letter from an employer
• Proof of your dependants, such as birth certificates of children in your care
• Proof of address
• Medical reports or a psychologist's report, if your health is relevant
• Any proof that you have paid back money, repaired damage or made amends
• Character references, ideally from people who know what the charge is

The last three matter enormously at sentencing and people almost always bring them too late.

A realistic timeline

Week one. You get a representative and the docket is requested and read.

Weeks two to six. The negotiation happens in stages, usually with at least one postponement while the prosecutor consults the investigating officer and the complainant. Court rolls are full, so this is rarely quick.

The court date. The agreement is presented, you are questioned, and the court decides.

If the court accepts. Sentence follows, and a conviction is entered. A criminal record generally follows a conviction. See how to clear your criminal record and the expungement eligibility calculator for what can happen years later.

If the court does not accept. The trial usually starts afresh before a different presiding officer. The agreement becomes void, and neither the negotiations nor the agreement may be referred to unless you consent to an admission being recorded. You and the prosecutor cannot make a new agreement on the same facts, and the prosecutor may proceed on any charge. Ask your representative to walk you through this before you sign.

Common mistakes and what they cost

Pleading guilty to get out of custody. People in custody will agree to almost anything to go home. A conviction lasts far longer than a remand period. Deal with the custody problem through bail, not through a plea.

Negotiating without a representative. The law does not allow a section 105A agreement with an unrepresented accused. An informal chat with a prosecutor in which you offer to plead guilty gives you none of the protections of a written agreement, and you are not equipped to bargain over a factual summary you have never seen before.

Ignoring the facts and only looking at the sentence. The agreed facts drive the sentence. Fight over the facts. The sentence agreed is often a wholly or partly suspended sentence, so read its conditions as carefully as the term.

Believing a promise. No prosecutor and no attorney can promise you what a court will do. If somebody guarantees an outcome, that is a reason to be careful.

Forgetting the criminal record. A record can affect employment, professional registration, firearm licensing and travel.

Signing something you have not read. You are entitled to time and to an interpreter. Use both.

Assuming the complainant can call it off. They cannot. See can charges be withdrawn if the complainant changes their mind.

Your rights and the state's powers, side by side

You have the right to remain silent, to be presumed innocent until proven guilty, to a fair trial, to legal representation and to a legal practitioner at state expense where substantial injustice would otherwise result, and to an interpreter. These sit in section 35 of the Constitution of the Republic of South Africa, 1996. You also have the right to refuse to enter into any agreement at all and to insist on a trial. Nobody may force you to plead guilty, and a court must satisfy itself that you actually admit the allegations.

The state may decide whether to prosecute, decide whether to negotiate, decide what to charge, refuse an agreement outright, and withdraw from negotiations. The prosecutor may consult the investigating officer and the complainant. What the state may not do is bind the court. A prosecutor cannot deliver a sentence, only propose one.

If you cannot afford an attorney

Tell the court. Say out loud, on the record, that you want a lawyer and cannot afford one. Do not assume anybody will say it for you.

Legal Aid South Africa on 0800 110 110 represents accused people in criminal matters, subject to a means test based on your income and household circumstances. It operates under the Legal Aid South Africa Act 39 of 2014, and practitioners are often based at the court itself. See Legal Aid and do I qualify for legal aid in a criminal case.

University law clinics give free advice and sometimes take criminal matters. Phone the law faculty of your nearest university.

The Independent Police Investigative Directorate deals with police misconduct. That is a separate complaint route and it does not affect your plea negotiation.

For private fees, see what a criminal matter costs.

If there is any violence in the background of your matter, keep SAPS on 10111 and the GBV Command Centre on 0800 428 428 to hand.

Frequently asked questions

The question people ask first is whether a plea agreement means a lighter sentence. It may, but nobody can promise it, and the court has the final word. The second is whether pleading guilty gives you a criminal record, and a conviction generally does. People ask whether they can change their mind, and the practical answer is that you can refuse to sign, but once a court has accepted an agreement and convicted you the route is an appeal. They ask whether the complainant has to agree, and the answer is no.