S v Masingili and Others

• Jurisdiction: South Africa
• Judgment Date: 20 March 2013
• Citation: 2013 (2) SACR 67 (WCC)

S v Masingili and Others
2013 (2) SACR 67 (WCC)

2013 (2) SACR p67

Citation	2013 (2) SACR 67 (WCC)
Case No	A 448/12
Court	Western Cape High Court, Cape Town
Judge	Blignault J and Van staden AJ
Heard	March 20, 2013
Judgment	March 20, 2013
Counsel	A Pareis for the first appellant.; Y Rajap for the second to fourth appellants.; J de V van Niekerk (with A du Toit) for the appellants at the request of the court.; A de V La Grange (with TS Sidaki) for the Minister of Justice and Constitutional Development.; M Daliwe for the state.

Flynote : Sleutelwoorde

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

Headnote : Kopnota

The appellants were convicted in a regional court of robbery with aggravating circumstances and were sentenced to terms of imprisonment, the court finding in each case that there were substantial and compelling circumstances justifying a lesser sentence than the prescribed minimum sentence. D They appealed against both the convictions and sentences. The court had little difficulty with the convictions in respect of the third and fourth appellants, but was of the opinion that the guilt of the first and second appellants, who played a lesser role in the robbery, being, respectively, the initial scout for the robbery and the driver of the getaway vehicle, had to be examined more closely. The reason for the closer scrutiny arose because of the formulation of the offence of 'robbery with aggravating circumstances' E as defined in s 1(1)(b) of the Criminal Procedure Act 51 of 1977 and the two components this entailed, the application of these components to the role of accomplices to the robbery, and the potential conflict this created with constitutional principles of freedom and security. Unfortunately, the regional magistrate had not spelt out explicitly in her judgment whether she had found the first and second appellants guilty on the basis of a common F purpose to commit robbery with aggravating circumstances; or on the basis that they were accomplices to both components of the crime (the robbery and the aggravating circumstances); or as accomplices to the robbery, and, therefore, as a result of the application of the definition of 'aggravating circumstances' in s 1(1)(b), they were guilty of robbery with aggravating circumstances. From the evidence, and the magistrate's conclusions, however, it appeared that the last-mentioned approach was the one applied. G

Held, that the phrase 'or an accomplice' in para (b) of the definition of 'aggravating circumstances' creates strict liability with respect to the offence of robbery with aggravating circumstances. As such, the phrase gave rise to a breach of s 12(1)(a) of the Constitution which guaranteed the right to freedom and security. (Paragraph [50] at 81f–g.)

Held, further, that the inclusion of the phrase in the definition amounted to a H breach of the presumption of innocence and thus gave rise to an infringement of the right to a fair trial in s 35(3)(h) of the Constitution. (Paragraph [54] at 82g–h.)

Held, further, that the nature and extent of the infringement of rights outweighed the purpose, effects and importance of the statutory provision in question, and the validity of the impugned phrase was therefore not saved by the I limitation provisions of s 36 of the Constitution. The provision was declared invalid. (Paragraph [59] at 84b–c.)

The court ordered that the declaration invalidated the application of the phrase 'or an accomplice' in the definition of aggravating circumstances in s 1(1)(b) of the Criminal Procedure Act 51 of 1977, in any criminal trial in which the verdict of the trial court was entered after the Constitution came J

2013 (2) SACR p68

A into force, and in which, as at the date of the order, either an appeal or review was pending, or the time for the noting of an appeal had not yet expired. The orders were referred to the Constitutional Court for confirmation.

Cases cited

Southern Africa B

R v Jacobs 1961 (1) SA 475 (A): distinguished

R v Sisilane 1959 (2) SA 448 (A): discussed

R v Zonele and Others 1959 (3) SA 319 (A): dictum at 323A – C explained

S v Arenstein 1967 (3) SA 366 (A): dictum at 381D – E applied C

S v Bhulwana; S v Gwadiso 1995 (2) SACR 748 (CC) (1996 (1) SA 388; 1995 (12) BCLR 1579; [1996] 1 All SA 11; [1995] ZACC 11): applied

S v Coetzee and Others 1997 (1) SACR 379 (CC) (1997 (3) SA 527; 1997 (4) BCLR 437): applied

S v Dhlamini and Another 1974 (1) SA 90 (A): referred to

S v Gagu and Another 2006 (1) SACR 547 (SCA): followed

S v Legoa 2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373): applied D

S v Malinga and Others 1963 (1) SA 692 (A): dictum at 694F – H applied

S v Manamela and Another (Director-General of Justice Intervening) 2000 (1) SACR 414 (CC) (2000 (3) SA 1; 2000 (5) BCLR 491; [2000] ZACC 5): applied

S v Mashinini and Another 2012 (1) SACR 604 (SCA): followed E

S v Mokela 2012 (1) SACR 431 (SCA): followed

S v Ngubane 1985 (3) SA 677 (A): referred to

S v Prins en 'n Ander 1977 (3) SA 807 (A): dictum at 816A – B explained

S v Van Wyk 1992 (1) SACR 147 (NmS): compared.

Canada

R v Oakes 1986 CanLII 46 (SCC) ((1986) 26 DLR (4th) 200; 24 CCC (3d) 321): dictum in para 29 applied F

R v Sappleton and Eubank 2010 ONSC 6132: compared.

England

Crown Prosecution Service v M & B [2009] EWCA Crim 2615: compared.

Legislation cited

Statutes G

The Constitution of the Republic of South Africa, 1996, ss 12(1)(a), 35(3)(h) and 36: see Juta's Statutes of South Africa 2011/12 vol 5 at 1-27 and 1-30

The Criminal Procedure Act 51 of 1977, s 1(1)(b): see Juta's Statutes of South Africa 2011/12 vol 1 at 2-334.

Case Information

A Paries for the first appellant. H

Y Rajap for the second to fourth appellants.

J de V van Niekerk (with A du Toit) for the appellants at the request of the court.

A de V La Grange (with TS Sidaki) for the Minister of Justice and Constitutional Development. I

M Daliwe for the state.

Appeal from convictions and sentences in a regional court for robbery with aggravating circumstances. The facts appear from the reasons for J judgment.

2013 (2) SACR p69

Order A

(1)

It is declared that the phrase 'or an accomplice', in the definition of 'aggravating circumstances' in s 1(1)(b) of the Criminal Procedure Act 51 of 1977, is inconsistent with the Constitution and therefore invalid.

(2)

The declaration of invalidity set forth in para (1) above shall B invalidate the application of the phrase 'or an accomplice' in the definition of 'aggravating circumstances' in s 1(1)(b) of the Criminal Procedure Act 51 of 1977, in any criminal trial in which the verdict of the trial court was entered after the Constitution came into force, and in which, as at the date of this order, either an appeal C or review is pending, or the time for the noting of an appeal has not yet expired.

(3)

The orders in paras (1) and (2) above are referred, in terms of s 8(1)(a) of the Constitutional Complementary Act 13 of 1995, to the Constitutional Court for confirmation.

(4)

The hearing of appellants' appeals is postponed sine die, pending the D decision of the Constitutional Court with respect to the orders set forth in paras (1) and (2) above.

Judgment

Blignault J and Van Staden AJ:

Introduction E

[1] The four appellants were indicted in the regional court at Cape Town on a charge of 'robbery with aggravating circumstances'. According to the charge-sheet they robbed Ms Touffa on 2 October 2009 at Boy de Goede Circle in Table View, of certain goods, including a sports bag, F cash in an amount of approximately R1500 and a cellphone, by threatening her with a knife. Appellants were convicted 'as charged'.

[2] It is apparent from the charge-sheet that the appellants were charged and convicted, of the offence defined in Part II of Schedule 2 to the Criminal Law Amendment Act 105 of 1997 (the CLAA) as 'robbery — G when there are aggravating circumstances'. The definition of 'aggravating circumstances' does not apply to any other statutory provision. It is defined in s 1(1)(b) of the Criminal Procedure Act 51 of 1977 (the CPA) as follows:

'(1) In this Act, unless the context otherwise indicates — H

"'aggravating circumstances'', in relation to —

(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 I

(iii)

a threat to inflict grievous bodily harm,

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

[3] In terms of s 51(2)(a) of the CLAA, a first offender of robbery with aggravating circumstances shall be sentenced to 15 years' imprisonment, j

2013 (2) SACR p70

Blignault J and Van Staden AJ

A unless the court finds substantial and compelling circumstances justifying a lesser sentence. In the present case the regional magistrate found that there were such circumstances. First appellant (Nantombi Masingili) was sentenced to eight years' imprisonment, of which two years' imprisonment were conditionally suspended for five years. Second B appellant (Siyabulela Volo), third appellant (Mzonke Mlindalazwe) and fourth appellant (Sithumbele Govuza) were sentenced each to ten years' imprisonment, of which two years' imprisonment were conditionally suspended for five years.

[4] Appellants appealed to this...