Comparing sentencing for robbery with Strafzumessung für Raub

• Author: Terblanche, S.S.
• DOI: https://doi.org/10.47348/SACJ/v35/i2a2
• Published date: 03 October 2022
• Date: 03 October 2022
• Citation: (2022) 35 SACJ 156
• Pages: 156-174

Comparing sentencing for

robbery with Strafzumessung

für Raub

SS TERBLANCHE*

1 Introduction

It is a safe assumption that robbery exists, as a crime, in vi rtually

every legal system. Very broadly spoken, it is a crime that consist s

of the forceful taking of another person’s property. Robbery is often

regarded as one of the more serious crimes that can be committed.

Such seriousness is then reected in the severit y of the sentence

imposed on the robber. However, not all robberies are equally serious.

What factors determine whether one robber y is more or less serious

than another? From a South Africa n perspective, the answer to this

question is far from certain. T his uncertai nty exists even though

robbery is prevalent – in other words, there is much potentia l in South

African cri minal justice to provide a more certain answer.

This contribution explains how South A frican court s approach

sentencing for robbery. It starts by briey discussing the de nition of

robbery and then moves to principles governing sentencing in South

Africa in general, and t he sentencing of robbery in particular.1 I then

briey discuss the same subject m atter in German law. Finally, the

contribution analyses the most pressing issues af icting sentencing in

South Africa and, i n this process, contrasts t he legal principles that are

in place in Germany.

* BJuris (PU for CHE) LLD (Uni sa). Honorary Professor, UK ZN. This contribution was

written whi le a Professor at Unisa. The resea rch was made possible with the  nancial

assistance of the M ax Planck Instit ute for Foreign and Internat ional Crimi nal Law,

Freiburg, Germany, which is here by gratefully acknowledged. Theviews exp ressed

in the article a re those of the author and cannot be att ributed to the aforementioned

Institute. T his contribution p reviously appeared as a ch apter in R Haverkamp et al

(eds ) Unterwe gs in Kriminologie und Strafrecht – Exp loring the World of Crime and

Criminology: Fe stschrift für Hans-Jörg Albrecht (2021) Duncker & Humblot, B erlin.

The style has be en adapted to comply with the c urrent journal’s house style.

1 It should be noted that th is contribution deals with the s entencing of adult offenders

only – child offende rs are dealt with i n terms of the Child Justice Act 75 of 200 8.

https://doi.org/10.47348/SACJ/v35/i2a2

156

(2022) 35 SACJ 156

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2 South African law on robbery

2.1 The crime of robbery: a common-law offence

South Africa does not have a cri minal code. Many of the more

common offences are governed by common law which, in the case of

criminal law, is Roman-Dutch law. Robbery is a good example of this

position – it is not dened as a crime in any legislation. Instead, its

elements come from common law, as interpreted in the judgments of

our courts. Little controversy remains about these elements, although

technological advances may create new problems, as they do in any

legal system.

Essentially, robbery amounts to theft of proper ty, committed by

means of violence or threats of violence.2 A more detailed denition

reads as follows:3

Robbery consists in theft of property by unlawfully and intentionally using:

(a) violence to take the property from somebody else; or

(b) threats of violence to induce the possessor of the property to submit to

the taking of the property.

The violence can be slight – the victim need not suffer any injur ies.4

However, there must be a causal link between the violence and the

taking of the propert y.5

2.2 More and less serious cases of robber y

South African cr iminal law does not distinguish different gr ades of

robbery, despite the fact that robbery can range from a rather petty

offence (property of very little value is taken with the slightest threat

of violence) to gravely serious crime (an organised and armed gang

takes millions of Ra nds with much violence, including the use of

explosives or military weapons).

The Crimina l Procedure Act 51 of 1977 contains a denition for

‘robbery with aggravating circ umstances’. Such robbery involves the

‘wielding of a rearm or any other dangerous weapon’ or the in iction

or threat of ‘grievous bodily harm’.6 This denition does not create

2 CR Snyman Criminal la w 6ed (2014) 508. See also, gener ally, S v Mokoena 1975 (4)

SA 295 (O); S v Macdonald 1980 (2) SA 939 (A).

3 Snyman op cit (n2) 508.

4 Snyman op cit (n2) 508.

5 Snyman op cit (n2) 509. The facts of a c ase can complicate the se arch for such

connection – cf S v Moloto 1982 (1) SA 844 (A).

6 Section 1 of the Act.

Comparing sentencing for robbery

with Strafzumessung für Raub 157

https://doi.org/10.47348/SACJ/v35/i2a2

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