Minister of Justice and Constitutional Development and Another v Masingili and Another

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Nkabinde J, Skweyiya J, Van der Westhuizen J, Zondo J and Mhlantla AJ
• Judgment Date: 28 November 2013
• Citation: 2014 (1) SACR 437 (CC)
• Docket Number: CCT 44/13 [2013] ZACC 41
• Hearing Date: 27 August 2013
• Counsel: A la Gerange SC (with T Sidaki) for the first applicant. W Tarantal for the second applicant. A Paries for the first respondent. M Calitz (with A Dejongh) for the second respondent, instructed by Legal Aid, South Africa.
• Court: Constitutional Court

Van der Westhuizen J (for the court):

Introduction E

[1] The crime of robbery is as old as humankind. For a range of reasons, the urge to take what does not belong to you — violently if necessary — is sometimes strong. South African society is sadly plagued by violent crime. The legislature understandably decided that robbery involving the F use of a firearm or any other dangerous weapon, the infliction of grievous bodily harm, or the threat to do so, deserves a harsher sentence than what would apply to robbery. Hence it determined that robbery with aggravating circumstances — or armed robbery, as it is often referred to in practice — attracts a prescribed minimum sentence.

G [2] Does this comply with our Constitution though? The Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) guarantees freedom and security of the person in s 12. This includes the right not to be deprived of freedom arbitrarily or without just cause. [1] It also protects every accused person's right to a fair trial in s 35(3), including the right to be presumed innocent until one's guilt is proven in H a court of law. [2] And for criminal liability the common law generally

Van der Westhuizen J (for the court)

requires proof of — in addition to an unlawful criminal act or A actus reus — fault, culpability, or mens rea, usually in the form of dolus (intent) on the part of an accused.

[3] The Western Cape High Court, Cape Town (high court), found that s 1(1)(b) of the Criminal Procedure Act [3] (CPA) creates strict criminal B liability (or liability without fault) and is thus unconstitutional. [4] According to the high court, an accomplice could as a result of this provision be convicted of robbery with aggravating circumstances, even if she or he had no intent with regard to the existence of the aggravating circumstances such as the use of a dangerous weapon. [5] The high court also found that, because an accused could be convicted, even when there is C reasonable doubt as to his or her guilt, the presumption of innocence is unjustifiably infringed.

[4] The main question is whether this declaration of invalidity should be confirmed in terms of s 167(5) of the Constitution. [6] The Minister of Justice and Constitutional Development (minister) and the National D Director of Public Prosecutions (NDPP) appeal against the high court's decision.

[5] A number of issues arise. These include:

(a)

What does s 1(1)(b) of the CPA mean?

(b)

Is robbery with aggravating circumstances a separate crime, distinct from robbery (or 'mere robbery')? E

(c)

Does s 1(1)(b) require intention in relation to the aggravating circumstances?

(d)

If not, is that consistent with the requirements of s 12 and s 35 of the Constitution? In other words, does either s 12 or s 35 require proof of intent regarding the existence of the aggravating circumstances, F whether on the part of a perpetrator or an accomplice?

Trial court

[6] The respondents were indicted and convicted of 'robbery with aggravating circumstances' in the Cape Town Regional Magistrates' G Court. In October 2009 the third and fourth respondents entered a shop in Table View, Cape Town, and robbed the owner by threatening her with a knife. The first respondent (Ms Masingili) acted as a scout. She inspected the shop before the robbery and waited outside in a parked car during its commission. The second respondent (Mr Volo) waited in the car and drove the respondents away from the shop after the robbery. H

Van der Westhuizen J (for the court)

High court A

[7] The respondents appealed to the high court against their convictions and sentences. The high court upheld the convictions of the third and fourth respondents, but questioned the convictions of Ms Masingili and Mr Volo. The court stated that it was unclear on what basis they had B been convicted. It considered three possibilities and concluded that these respondents had been found to be accomplices, even though the trial court did not state this explicitly.

[8] It is arguable that Ms Masingili and Mr Volo were indeed perpetrators or co-perpetrators (under the doctrine of common purpose), rather C than accomplices. Counsel for the minister and for the NDPP conceded about this much before this court. But we are not required to make a finding on the conviction of the respondents, or analyse the findings of the magistrate. So, I assume that they were accomplices, in order to deal with the high court's reasoning and conclusion. The high court reasoned D that, while they were definitely guilty as accomplices to robbery, it was unclear whether they were guilty as accomplices to robbery with aggravating circumstances, as it was not proven that they had intent in relation to the aggravating circumstances. In other words, they did not necessarily intend or foresee the use of the knife.

E [9] Relying on the Supreme Court of Appeal's judgment in Legoa, [7] the high court accepted that, in order to convict a person of robbery with aggravating circumstances, the commission of the aggravating circumstances must be proven before the conviction, along with the elements of robbery. According to the decision of the Appellate Division of the Supreme Court (Appellate Division) in Dhlamini, [8] the presence of the F phrase 'or an accomplice' in s 1(1)(b) of the CPA means that an accomplice to robbery is guilty of robbery with aggravating circumstances if aggravating circumstances were present, even if he or she did not foresee those circumstances.

[10] The high court held that this effect (which it called 'strict liability') G rendered the provision unconstitutional. It therefore declared the phrase 'or an accomplice' in s 1(1)(b) constitutionally invalid. [9] The hearing of the appeal in the high court was suspended, pending this court's decision.

Submissions before this court H

[11] In this court both applicants argue that s 1(1)(b) does not infringe any constitutional rights and that the high court's declaration of invalidity must not be confirmed. They do so for different reasons, however.

I [12] The minister submits that the prosecution does not need to prove intent in relation to the aggravating circumstances, but that this does not

Van der Westhuizen J (for the court)

mean that the impugned phrase creates strict liability, because the A prosecution still has to prove intent in relation to the elements of mere robbery. The aggravating circumstances are facts that objectively exist, rather than elements of the offence. In response to questions from the bench, counsel for the minister stated that it very rarely, if ever, happens that several accused are charged with robbery with aggravating B circumstances, but that one or more of them are convicted of mere robbery because of the absence of intent regarding the aggravating circumstances, whereas the others are convicted of armed robbery.

[13] The NDPP, on the other hand, primarily argues that the prosecution must prove intent in relation to the aggravating circumstances because, C under the common law, an accomplice must intend to further the specific crime committed by the perpetrator. So, s 1(1)(b) must be read to require the intent implicitly. The NDPP argues in the alternative that, if this court finds that s 1(1)(b) is unconstitutional because it does not require intent, the appropriate remedy would be to read in a requirement of intent in relation to the aggravating circumstances. D

[14] According to the respondents, the high court's order must be confirmed. They argue that the Constitution requires that the intent be proven before an accomplice can be convicted of robbery with aggravating circumstances. The phrase 'or an accomplice' precludes this and therefore renders the provision unconstitutional. E

The meaning of s 1(1)(b)

[15] Section 1(1)(b) of the CPA reads:

'"aggravating circumstances", in relation to — F

(a)

. . .

(b)

robbery or attempted robbery, means —

(i)

the wielding of a fire-arm or any other dangerous weapon;

(ii)

the infliction of grievous bodily harm; or

(iii)

a threat to inflict grievous bodily harm,

by the offender or an accomplice on the occasion when the offence is G committed, whether before or during or after the commission of the offence . . .'.

[16] Robbery with aggravating circumstances is thus robbery where a firearm or other dangerous weapon is wielded, or where grievous bodily harm is inflicted or threatened. [10] The provision must be understood in H context. It does not, in itself, create an offence or impose liability. Further, it provides a definition of 'aggravating circumstances' in relation to robbery, not a definition of robbery. Robbery is a common-law offence. Accomplice liability is similarly imposed by the common law. The definition of aggravating circumstances is relevant for sentencing. As a result of s 51 read with part II of sch 2 to the Criminal Law Amendment Act [11] (often referred to as the Minimum Sentencing Act), I

Van der Westhuizen J (for the court)

A a court must impose a minimum sentence on a person convicted of robbery with aggravating circumstances unless 'substantial and compelling circumstances exist which justify the imposition of a lesser sentence'. The prescribed minimum sentence ranges from 15 – 25 years, depending on the convicted person's previous convictions or lack thereof.

B [17] Apart from the fact that robbery with aggravating circumstances attracts a minimum sentence, it has further significance. The right to prosecute robbery with aggravating circumstances does not prescribe, whereas the right to prosecute robbery prescribes after 20 years. [12] It is also more difficult for a person charged with robbery with aggravating circumstances to be granted bail, than it is for a person charged with C mere...