Examining the expanding crime of robbery

• Jurisdiction: South Africa
• Pages: 361-378
• Citation: (2012) 25 SACJ 361
• Published date: 16 August 2019
• Author: Shannon Hoctor
• Date: 16 August 2019

Examining the expanding

crime of robbery

SHANNON HOCTOR*

ABSTRACT

Robbery is both an ex tremely broad and an extremely serious cri me. Setting

the boundaries of t his crime is therefore a very signicant concer n, in order

that only those deser ving of the stigma and pote ntially heavier sentence

that a robbery convict ion entails should be caught in the net of l iability

for this crime. In pa rticular, it is necessar y to distinguish be tween conduct

which will constit ute robbery, and conduct which will merely g ive rise to a

conviction of the crimes of wh ich robbery comprises, theft and assault. T he

recent development whereby the bag snatcher (and cellphone snatcher) has

been included in the ambit of the ro bbery crime ( based on the authority of

the dictum in S v Mogala 1978 (2) SA 412 (A)) is considered. It is ultimately

concluded that this development is not unconst itutional, and is consistent

with the struc ture and function of t he crime.

1. Introduction

Robbery occupies a central place in South A frican crimi nal law

(and indeed in all legal systems based on the Common L aw model),

and maintains a high pro le both in the crimi nal statistics1 and the

consciousness of a public for whom being a victim of crime is a dai ly

concern.2 Not only is robbery a vexed problem for the South Afr ican

public, but it presents signicant difcult ies for anyone who wishes

to analyse the crime.3 Robbery ha s been described as an extremely

* BA LLB LLM (UC T) DJuris (Leiden), Professor of Law, Universit y of KwaZulu-Natal,

Pietermarit zburg. This art icle is based on a paper delivere d at the Conference of

the Society of Teachers of Law of S outhern Afr ica at Nelson Mandela Metrop olitan

University, Port Elizab eth, 10-13 July 2012.

1 See t he South Africa n Police Service’s Crime St atistics Over view RSA 2011-2012

(www.saps.gov.za/statistics/reports/crimestats/2012/downloads/crime_statistics_

presentation.pdf, access ed 20/12/2012), where the signicance of the cr ime is

evidenced by the prole g iven to the various form of the c rime of robbery i n the

descriptive categor ies of the statistics.

2 Accordi ng to the Statistics South Afr ica Victims of Crime Survey 2012 (www.statssa.

gov.za/publications/P0341/P03412012.pd f ) in the list of cri mes most feared by %

of households in their a rea, after housebreaking (which heads t he list at 57,4%) the

next most feared cr imes are house robber y (49,8%) and street robbery (39,6%) at 2.

3 JM T Labuschagne ‘Die geweldsele ment by roof’ (1983) TSAR 273.

361

(2012) 25 SACJ 361

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broad offence4 incorporating both ext remely serious and relatively

minor harm. Given that robbery i s regarded as a serious crime, and

that this categorisation is reected i n sentencing practice,5 it is at the

lower end of the spectrum – where very little force is used in g aining

possession of the goods in question – that controversy inev itably

arises. Is it appropriate to include within the cr ime of robbery such

conduct as bag snatching or cellphone snatching, where the force used

by the wrongdoer is primari ly focused on dispossessing the victim ?

Does the wide ambit of the crime i nfringe on its constitutiona lity?

These questions are investigated in the disc ussion which follows.

2. The nature of the crime

Robbery is a species of theft, but is nonetheless regarded a s a

substantive crime in its own right.6 In e ssence, robbery consists in theft

by violence,7 although it may be dened as ‘the thef t of property by

intentionally using violence or threats of violence to induce submission

to its taking ’.8

The roots of the South Af rican crime of robbery l ie in the Common

Law sources rather than the Roman and Roman -Dutch law.9 Robbery

consists of two acti rei, t he taking of property (what Labuschagne refers

to as ’n beheerontnemingshandeling’ (‘act removing control’) and the

4 In the c ontext of the English cr ime, see CMV Cla rkson, HM Keating and SR

Cunningham Clarkson a nd Keating Criminal Law: Text and Ma terials 6ed (2007)

893; A Ashworth ‘Robber y re-assess ed’ (2002) Criminal L R 851 at 855. The South

African cr ime is equally broad, as is discu ssed below.

5 In ter ms of s51(1) of the Crimin al Law Amendment Act 105 of 1997 (Part I of S chedule

2) causing death whilst com mitting robbe ry with aggravat ing circumsta nces gives

rise to mandator y life imprison ment. Section 51(2)(a) of Act 105 of 1997 provides

that robbery i nvolving aggravating ci rcumstances or the t aking of a motor vehicle

(as per Part II of Schedule 2) inc urs not less than 15 yrs impri sonment for a rst

offender, not less than 20 yea rs for a second offence and not less tha n 25 years for

third or subseque nt offences. In terms of s 51(2) read with Part I V of Schedule 2 of

Act 105 of 1997, any other robbery will i ncur the following periods of i mprisonment:

rst – 5 years, second – 7 yea rs, third or subsequent – 10 years. All t hese prescribed

punishments a re subject to the discr etion to impose a lesser sent ence where in the

view of the court ‘subst antial and compell ing circumsta nces’ are present to justi fy

doing so, in s 51(3)(a) of the Act. D Orme rod Smith & Hogan’s Criminal Law 13ed

(2011) 843 notes, in the context of the Engli sh law, that robbery is ‘an ext remely

serious offence, car rying a max imum life sentence, and at tracting subst antial

sentences in practic e’.

6 JR L Milton South African Criminal Law an d Procedure Vol II: Common-law Cr imes

3ed (1996) 643.

7 CR Snym an Criminal Law 5ed (2008) 517, although as Snyman adds, this d escription

is incomplete.

8 Mi lton op cit (n6) 642. The den itions of the crime i n Snyman op cit (n7) 517 and

JM Burchell Prin ciples of Criminal Law 3 ed (2005) 817 are substantially si milar.

9 JC de Wet Strafreg 4ed (1985) 373-374; Milton op cit (n6) 646.

362 SACJ . (2012) 3

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