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

• Jurisdiction: South Africa
• Citation: 2014 (1) SACR 437 (CC)

Minister of Justice and Constitutional Development and Another v Masingili and Another
2014 (1) SACR 437 (CC)

2014 (1) SACR p437

Citation	2014 (1) SACR 437 (CC)
Case No	CCT 44/13; [2013] ZACC 41
Court	Constitutional Court
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
Heard	August 27, 2013
Judgment	November 28, 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.

Flynote : Sleutelwoorde

Robbery — Sentence — Robbery with aggravating circumstances — Minimum C sentence in terms of s 51 of Criminal Law Amendment Act 105 of 1997 — Armed robbery not separate crime — Elements of crime same as for robbery — Intent as regards aggravating circumstances not required to establish offence — Section 1(1)(b) of Criminal Procedure Act 51 of 1977 not creating strict liability (liability without fault) and not unconstitutional — Position of accomplice who did not have intent as regards use D of weapon could be accommodated by consideration of mitigating factors that amount to substantial and compelling circumstances.

Robbery — Aggravating circumstances — What constitutes — Accomplice — Liability of — Where accomplice did not perform any act suggesting that there were aggravating circumstances — Insertion of 'accomplice' in definition of 'aggravating circumstances' in s 1(1)(b) of Criminal Procedure E Act 51 of 1977 not creating strict liability that infringed right to freedom and security, and right to fair trial.

Headnote : Kopnota

The appellants appealed against a decision of the high court that had declared that s 1(1)(b) of the Criminal Procedure Act 51 of 1977 created strict F liability (liability without fault) and was therefore unconstitutional, as an accomplice could be convicted of robbery with aggravating circumstances, as a result of this provision, even if she/he had no intent with regard to the existence of an aggravating circumstance such as the use of a dangerous weapon by another accomplice. The court also held that because an accused could be convicted even where there was reasonable doubt, the presumption of innocence was unjustifiably infringed. On appeal, G

2014 (1) SACR p438

A Held, that the high court had wrongly targeted the words 'or an accomplice' as the culprit in the constitutional deficiency it had identified. Its concern seemed to be that a person could be guilty of robbery with aggravating circumstances as an accomplice, without having intended the aggravating circumstances. The words 'or an accomplice' were irrelevant to this B question. They said nothing about the requirement of intent. Even if the words were not present, two of the respondents in the present case could still be guilty of robbery with aggravating circumstances under the ordinary common-law rules of accomplice liability, assuming that intent regarding the use of a knife was not required, because one of the other respondents had wielded a knife. (Paragraph [25] at 446f–g.)

C Held, further, that the appeal could succeed on this narrow ground only, but in the circumstances where the court would, if it upheld the appeal on this basis, not pronounce on the main concern of the high court, namely whether or not an accomplice to robbery may be found guilty of robbery with aggravating circumstances if the state does not prove that he or she intended the commission of the aggravating circumstance. The role of D culpability in our law was a question of constitutional importance, as well as of practical significance, and it was therefore in the interests of justice for the court to consider whether the Constitution required that, in order for a person to be convicted of being an accomplice to robbery with aggravating circumstances, the prosecution had to prove that the accomplice intended E the commission of the aggravating circumstance. (Paragraphs [28] at 447c–d and [29] at 447f.)

Held, further, that in spite of the practice of treating armed robbery as a separate crime, it was not. The definitional elements of armed robbery were no different to that of robbery. The aggravating circumstances were relevant for sentencing. Intent regarding the circumstances was not required for F conviction, exactly because an accused will be convicted of robbery, given that armed robbery was merely a form of robbery. (Paragraph [34] at 449a–b.)

Held, further, that the absence of intent or even knowledge of, for example, the use of a knife during the course of an armed robbery could therefore be taken into account as a factor which may, probably together with other G mitigating factors, amount to substantial and compelling circumstances justifying a lesser sentence than the prescribed minimum, but one could not say that this always had to be the case. Courts had to have a discretion when imposing sentences and a firm rule, that the absence of dolus regarding the aggravating circumstances always justified a lesser sentence, could defeat H the purpose of the provision, namely to direct courts to impose harsher sentences for armed robbery than for mere robbery. (Paragraph [47] at 453h–454a.)

Held, further, the absence of dolus regarding the aggravating circumstances on the part of an accused could be taken into account in sentencing and may result in the imposition of a lighter sentence than the statutorily prescribed I minimum. Even when it did not, the statutory determination that the existence of aggravating circumstances called for a harsher sentence than what would be appropriate for mere robbery, did not amount to the arbitrary deprivation of freedom, or deprivation without just cause. Section 12(1) (a) of the Constitution was not contravened, nor was s 35(3) (h) violated. The order of the high court was not confirmed, and the appeal was J upheld. (Paragraphs [59]–[60] at 457a–c.)

2014 (1) SACR p439

Annotations:

Cases cited

Case law

Southern Africa A

Barkhuizen v Napier2007 (5) SA 323 (CC) (2007 (7) BCLR 691; [2007] ZACC 5): referred to

De Lange v Smuts NO and Others1998 (3) SA 785 (CC) (1998 (7) BCLR 779; B [1998] ZACC 6): dictum in para [23] applied

Ex parte Minister of Justice: In re R v Gesa; R v De Jongh1959 (1) SA 234 (A): applied

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13): referred to C

R v Cain1959 (3) SA 376 (A): referred to

R v Jacobs1961 (1) SA 475 (A): dictum at 484H applied

R v Mlooi and Others1925 AD 131: referred to

R v Sisilane1959 (2) SA 448 (A): not followed

S v Coetzee and Others1997 (1) SACR 379 (CC) (1997 (3) SA 527; 1997 (4) BCLR 437; [1997] ZACC 2): applied D

S v Dhlamini and Another1974 (1) SA 90 (A): not followed

S v Dodo2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423; [2001] ZACC 16): dictum in para [37] applied

S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae)2002 (2) SACR 499 (CC) (2002 (6) SA 642; 2002 (11) BCLR 1117; [2002] ZACC 22): referred to E

S v Legoa2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373; [2002] ZASCA 122): explained

S v M (Centre for Child Law as Amicus Curiae)2007 (2) SACR 539 (CC) (2008 (3) SA 232; 2007 (12) BCLR 1312; [2007] ZACC 18): dictum in para [110] applied F

S v Malgas2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): referred to

S v Manamela and Others2000 (1) SACR 414 (CC) (2000 (3) SA 1; 2000 (5) BCLR 491; [2000] ZACC 5): dictum in para [100] applied

S v Masingili and Others2013 (2) SACR 67 (WCC) ([2013] ZAWCHC 59): overturned on appeal G

S v Mokela2012 (1) SACR 431 (SCA) ([2011] ZASCA 166): referred to

S v Moloto1982 (1) SA 844 (A): dictum at 850C applied

S v Thebus and Another2003 (2) SACR 319 (CC) (2003 (6) SA 505; 2003 (10) BCLR 1100; [2003] ZACC 12): dictum in para [34] applied

S v Williams en 'n Ander1980 (1) SA 60 (A): dictum at 63B applied H

Veldman v Director of Public Prosecutions, Witwatersrand Local Division2006 (2) SACR 319 (CC) (2007 (3) SA 210; 2007 (9) BCLR 929; [2005] ZACC 22): referred to.

Canada

R v De Sousa[1992] 2 SCR 944 (76 CCC (3d) 124): dictum at 967 applied. I

Legislation cited

Statutes

The Criminal Law Amendment Act 105 of 1997, s 51: see Juta's Statutes of South Africa 2012/13 vol 1 at 2-539

The Criminal Procedure Act 51 of 1977, s 1(1)(b): see Juta's Statutes of South Africa 2012/13 vol 1 at 2-340. J

2014 (1) SACR p440

Case Information

A la Grange SC (with T Sidaki) for the first applicant. A

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.

B Appeal from a declaration of invalidity of a statutory provision in the Western Cape High Court, Cape Town.

Order

1.

The order made by the Western Cape High Court, Cape Town, in C S v Masingili and Others2013 (2) SACR 67 (WCC) ([2013] ZAWCHC 59), declaring s 1(1)(b) of the Criminal Procedure Act 51 of 1977 to be constitutionally invalid, is not confirmed.

2.

The appeal by the Minister of Justice and Constitutional Development and the National Director of Public Prosecutions succeeds.

3.

The matter is remitted to the Western Cape High Court, Cape Town, D to finalise the appeal by the respondents who were the accused in the criminal trial.

Judgment

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...