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[2013] ZACC 41
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Minister of Justice and Constitutional Development and Another v Masingili and Others (CCT 44/13) [2013] ZACC 41; 2014 (1) BCLR 101 (CC); 2014 (1) SACR 437 (CC) (28 November 2013)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT
44/13
[2013]
ZACC 41
In the matter between:
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT First
Applicant
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS Second Applicant
And
NONTOMBI MASINGILI First
Respondent
SIYABULELA VOLO Second
Respondent
MZONKE MLINDALAZWE Third
Respondent
SITHEMBILE GOVUZA Fourth
Respondent
Heard on : 27
August 2013
Decided on : 28
November 2013
JUDGMENT
VAN DER WESTHUIZEN J (Mogoeng
CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ,
Nkabinde J, Skweyiya
J and Zondo J concurring):
Introduction
[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 use of a fire-arm 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.
[2]
Does
this comply with our Constitution though? The Constitution
guarantees freedom and security of the person in section 12.
This includes
the right not to be deprived of freedom arbitrarily or without just cause.
[1]
It also
protects every accused persons right to a fair trial in section 35(3),
including the right to be presumed innocent until
ones guilt is proven in a
court of law.
[2]
And for
criminal liability the common law generally requires proof of in addition to
an unlawful criminal act or
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 section 1(1)(b)
of the Criminal Procedure Act
[3]
(CPA) creates strict criminal 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 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 section 167(5) of the Constitution.
[6]
The Minister of Justice and Constitutional Development (Minister) and the
National Director of Public Prosecutions (NDPP) appeal
against the High Courts
decision.
[5]
A
number of issues arise. These include:
(a)
What does section 1(1)(b) of the CPA mean?
(b)
Is robbery with aggravating circumstances a separate crime, distinct
from robbery (or mere robbery)?
(c)
Does section 1(1)(b) require intention in relation to the aggravating
circumstances?
(d)
If not, is that consistent with the requirements of section 12 and
section 35 of the Constitution? In other words, does
either
section 12 or section 35 require proof of intent regarding the existence
of the aggravating circumstances, 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
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.
High Court
[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
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 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 Courts reasoning and conclusion. The
High Court reasoned 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.
[9]
Relying
on the Supreme Court of Appeals 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 phrase or an accomplice in section 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) rendered the provision unconstitutional. It therefore
declared the
phrase or an accomplice in section 1(1)(b) constitutionally invalid.
[9]
The hearing of the appeal in the High Court was suspended pending this Courts
decision.
Submissions before this Court
[11]
In this Court both applicants argue that section 1(1)(b) does
not infringe any constitutional rights and that the High
Courts declaration of
invalidity must not be confirmed. They do so for different reasons, however.
[12]
The Minister submits that the prosecution does not need to prove intent
in relation to the aggravating circumstances, but that this
does not mean that
the impugned phrase creates strict liability because the 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 circumstances, but that one or more of them is 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, under the
common law, an accomplice must intend to further the specific crime committed
by the perpetrator. So, section
1(1)(b) must be read to require the intent
implicitly. The NDPP argues in the alternative that if this Court finds that
section 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.
[14]
According to the respondents, the High Courts 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.
The meaning of section 1(1)(b)
[15]
Section 1(1)(b) of the CPA reads:
aggravating
circumstances, in relation to
(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 committed, whether before
or during or after the commission
of the offence.
[16]
Robbery with aggravating circumstances is thus
robbery where a fire-arm or other dangerous weapon is wielded, or where
grievous
bodily harm is inflicted or threatened.
[10]
The provision must be understood in
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
section 51 read with Part II of Schedule 2 of the Criminal Law
Amendment Act
[11]
(often referred to as the Minimum Sentencing Act), 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 to 25 years, depending on the convicted persons previous
convictions
or lack thereof.
[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 mere
robbery.
[13]
[18]
The definition of aggravating circumstances has a long legislative
history. In 1958 it was inserted
[14]
into
the Criminal Procedure Act 56 of 1955 the predecessor of the CPA and
read as follows:
ʻaggravating
circumstances in relation to
(a) any
offence, either at common law or under any statute, of housebreaking or
attempted housebreaking with intent to commit
an offence, means the possession
of a dangerous weapon or the commission of or any threat to commit an assault,
by
the offender or an accomplice
;
(b) robbery
or an attempt to commit robbery, means the infliction of grievous bodily harm
or any threat to inflict such harm.
(Emphasis added.)
[19]
In
Sisilane
[15]
the Appellate Division held that a getaway driver in a robbery was not guilty
of robbery with aggravating circumstances because
he was not a party to the
commission of the aggravating circumstances.
[16]
It reasoned that the
absence of the words by the offender or an accomplice in subsection (b) meant
that someone could be
guilty of robbery with aggravating circumstances only if
he or she instigated or otherwise made him- or herself a party to the aggravating
circumstances. That person would not be guilty of robbery with aggravating
circumstances if the aggravating circumstances merely
arose in the course of
the commission of the robbery to which he or she was a party, including as an
accomplice.
[17]
This
reasoning was approved by the Appellate Division in
Cain
.
[18]
[20]
Soon after
Sisilane
and
Cain
, the definition of
aggravating circumstances was amended by the insertion of the words by the
offender or an accomplice at the
end of subsection (b).
[19]
In
Dhlamini
[20]
the Appellate
Division held that this amendment meant that an accomplice to robbery is guilty
of robbery with aggravating circumstances
even if he or she did not instigate
or make him- or herself party to the aggravating circumstances and even if he
or she did not
have intent as to the aggravating circumstances. The same
applies in reverse which, for convenience, I call the mirror-image case.
The
perpetrator of a robbery is guilty of robbery with aggravating circumstances if
the accomplice committed the aggravating circumstances,
even if the perpetrator
did not make him- or herself a party to the commission of the aggravating
circumstances and even without
intent.
[21]
The purpose of the
amendment the Court held was to block the loop-hole revealed by
Sisilane
s
case.
[22]
[21]
Is this indeed what the phrase or an accomplice in
section 1(1)(b) of the CPA means? It is necessary briefly to
consider
the nature of accomplice liability. An accomplice is someone whose
actions do not satisfy all the requirements for criminal liability
in the
definition of an offence, but who nonetheless intentionally furthers the commission
of a crime by someone else who does
comply with all the requirements (the
perpetrator).
[23]
The
intent required for accomplice liability is to further the specific crime
committed by the perpetrator.
[24]
Upon conviction, an accomplice
may receive the same sentence
as a perpetrator
.
[25]
[22]
An accomplices criminal liability is therefore contingent on the
perpetrators liability. Even if the words or an accomplice
were absent from
section 1(1)(b), a person would still be guilty, as an accomplice, of
robbery with aggravating circumstances
if he or she intentionally furthered the
commission of robbery with aggravating circumstances by the perpetrator and if
the aggravating
circumstances were brought about by the perpetrator. In this
matter, Ms Masingili and Mr Volos convictions would stand,
as by
scouting and driving the getaway vehicle they intentionally furthered the
commission of the armed robbery by the other two
respondents. It would not
matter that they did not wield the knife themselves.
[23]
What, then, is the effect of the words or an accomplice? They extend
liability in the mirror-image case: When an accomplice commits
the aggravating
circumstances (for example wielding a knife during the flight just after the
actual robbery) but the perpetrator
never does, both the accomplice and the
perpetrator will be guilty of robbery with aggravating circumstances. In the
absence of
the words or an accomplice, the perpetrator and the accomplice
would only be guilty of mere robbery (and the accomplice may, in
addition, be
guilty of assault). This is because, in the absence of the words or an
accomplice, the aggravating circumstances
must be committed by the
perpetrator, not the accomplice, as was correctly pointed out in
Sisilane
.
[26]
The inclusion of the words or an accomplice allows for the actions of the
accomplice to be taken into account in determining
whether the perpetrator is
guilty of robbery with aggravating circumstances.
[24]
On the face of it, the wording of section 1(1)(b) may be confusing,
in so far as it appears to require that the accomplice must
wield the knife in
order to be convicted of armed robbery. But is an accomplice who wields a knife
when robbery is committed indeed
an accomplice, or rather a perpetrator? How
much closer can one be to the actual commission of armed robbery than to wield
a dangerous
weapon in the commission of the robbery? The words
on the occasion when the offence is committed, whether before or
during or after the commission of the offence
are significant the
commission of the aggravating circumstances may happen before, during, or after
the commission of the robbery,
as long as it happened on the occasion of that
particular robbery. Thus, an accomplice could wield a dangerous weapon before
or after a robbery, without complying with the requirements of robbery and
therefore without being a perpetrator, but still commit
the aggravating
circumstances and therefore render him- or herself and the perpetrator guilty
of robbery with aggravating circumstances.
[25]
The High Court wrongly targeted the words or an accomplice as the
culprit in the constitutional deficiency it identified.
Its concern seems 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 are irrelevant to this question. They say nothing about the
requirement of intent. Even if the words were not present, Ms Masingili
and Mr Volo 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 is not required, because one
of the other respondents wielded a knife.
[26]
The High Court followed
Sisilane
[27]
and
Dhlamini.
[28]
However,
these decisions of the Appellate Division in 1959 and 1973 do not seem to be entirely
correct, as far as the ordinary
meaning of the wording of section 1(1)(b)
is concerned. To the extent that they held that that the words or an
accomplice
extend liability to the perpetrator in the mirror-image case they
were correct; but they were incorrect in holding that the words
extend
liability to the accomplice when the perpetrator commits the aggravating
circumstances. This is already done by the common
law of accomplice liability.
This is leaving aside for the moment the question whether intent regarding the
aggravating circumstances
is required either on the part of the perpetrator or
the accomplice, over and above the intent to further the elements of mere
robbery. I deal with this question in [30] to [58] below.
[27]
Arguably, the appeal against the High Courts declaration of
constitutional invalidity could succeed on this narrow ground only.
This Court could find merely that the words or an accomplice are
irrelevant to the constitutional deficiency identified
by the High Court,
and decline to confirm the order of constitutional invalidity formulated by the
High Court.
[28]
This would mean, however, that this Court would not pronounce on the
High Courts animating concern, 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
circumstances. The role of culpability in our law is a question of
constitutional importance,
[29]
as well as of practical significance. Counsel for the Minister also
argued that requiring this intent for a conviction of
robbery with aggravating
circumstances, or in relation to circumstances in other offences that may
result in the imposition of
minimum sentences,
[30]
would
make it very difficult for prosecutors to secure convictions and would defeat
the purposes of the Minimum Sentencing Act.
[29]
It is therefore in the interests of justice for this Court to
consider whether the Constitution requires that, in order
for a person to
be convicted as an accomplice to robbery with aggravating circumstances, the
prosecution must prove that the accomplice
intended the commission of the
aggravating circumstances.
Is robbery with aggravating circumstances a separate crime?
[30]
The nature of robbery with aggravating circumstances first requires
attention. The respondents argue that it is a different offence,
separate and
distinct from mere robbery. The prosecution must prove intent as to the
existence of the aggravating circumstances,
because the aggravating
circumstances are definitional elements of the crime.
[31]
Accused persons are often charged with robbery with aggravating
circumstances, as indeed the respondents were, and convicted as such.
Further,
being charged with robbery with aggravating circumstances has consequences that
go beyond sentencing. As stated above,
it is more difficult to be granted bail
if charged with armed robbery than with mere robbery.
[31]
Being convicted of armed robbery may carry substantially more stigma than being
convicted of mere robbery. Does this make it
a separate offence though?
[32]
In
Legoa
Cameron JA said:
It is correct that, in specifying an enhanced penal
jurisdiction for particular forms of an existing offence, the Legislature does
not create a new type of offence.
Thus robbery with aggravating
circumstances is not a new offence.
[32]
(Emphasis added.)
Furthermore, the
Court relied on
Moloto,
which states:
Robbery, or attempted robbery, with aggravating
circumstances is not a new sort of crime created by the Legislature. It still remains
robbery.
[33]
(My
translation.)
[33]
Robbery with aggravating circumstances is a form of robbery with
more serious consequences for sentencing.
[34]
This distinctive
form of robbery is not to be confused with a completely different offence, as
courts seem to have done in different
contexts.
[35]
The respondents rely heavily on the fact that the Supreme Court of Appeal in
Legoa
found that the existence of aggravating circumstances should be established
at conviction stage. This, however, does not mean that
armed robbery is a
separate crime. The concern in
Legoa
was that aggravating circumstances
should be proven before conviction to ensure fairness when the sentence is
considered.
[36]
It
would be unfair suddenly to confront a convicted person with an enhanced penal
jurisdiction at the sentencing stage, if the state
did not give sufficient
notice of this possibility.
[37]
This
is consonant with the constitutional principle of the rule of law, which
requires clarity and notice to an accused so that he or she can
address the states case comprehensively.
[38]
In this sense it differs from other circumstances that could aggravate
sentence, like previous convictions, which for obvious
reasons may only be
proven after conviction, when sentencing is considered.
[34]
In spite of the practice of treating armed robbery as what sometimes
appears to be a separate crime, it is not. It is robbery.
Robbery is the theft
of property by unlawfully and intentionally using violence or threats of
violence to take the property from
someone else.
[39]
The elements of robbery are: the theft of property; through violence or
threats of violence; unlawfulness; and intent. The definitional
elements of
armed robbery are no different. The aggravating circumstances are relevant for
sentencing. Intent regarding the circumstances
is not required for conviction,
exactly because an accused will be convicted of robbery, given that armed
robbery is merely a form
of robbery.
[35]
In order to be convicted of robbery with aggravating circumstances, intent
as to the unlawful and violent taking of anothers property must be
proved. Where does this leave us with regard to the common-law
requirement of intent
and the Constitution? The finding on the nature of armed robbery cannot
on its own determine constitutional
compliance.
Dolus
under the common
law and the Constitution
[36]
It is useful to take a step back, for a quick look at the basics of
criminal law. In our common law it is generally accepted that
culpability (also
known as fault or
mens rea
) is a requirement for criminal liability. There
must be grounds upon which [an accused] may, in the eyes of the law, personally
be blamed for [his or her] unlawful conduct.
[40]
The
focus is thus on the actors personal ability and knowledge, or lack thereof
(as opposed to the conduct and unlawfulness requirements,
where it is on the
act).
[41]
Once
it is accepted that an accused has the mental ability required to establish
criminal capacity, the conduct must be either
intentional or negligent. For
most crimes
dolus
(intent) is required. The accused must will the
realisation of the conduct knowing that the conduct is unlawful (
dolus
directus
), or know and accept it even if it is not willed (
dolus
indirectus
), or must foresee the possibility of the conduct and its
unlawfulness but nevertheless proceed (
dolus eventualis
).
[42]
[37]
The requirement of culpability encapsulates an accused persons
blameworthiness. Much of our criminal law is predicated on imposing
legal
liability on accused persons who perpetrate acts for which they are culpable;
it is a general principle that criminal liability
should broadly match personal
culpability.
[43]
In this sense, our criminal law recognises the importance of autonomy, which
this Court has affirmed a number of times.
[44]
[38]
The corollary to the idea that
individuals should be held accountable for the choices they make is that
ordinarily individuals should
not be held accountable for choices they did not
make. The
dolus
required is the ground for an accuseds personal
blameworthiness arising from his or her unlawful conduct. Not only the fact of
an accuseds blameworthiness but also its degree is relevant.
[45]
The
relative gravity of punishment must reflect the gravity of the offence.
[46]
[39]
The role of culpability in our criminal law is of constitutional
importance. In
Coetzee
ORegan J wrote:
The general principle of our common law is
that criminal liability arises only where there has been unlawful conduct and
blameworthiness
or fault (the
actus reus
and
mens rea
). . . . At
common law, the fault requirement is generally met by proof of intent (
dolus
)
in one of its recognised forms, and, in rare circumstances, by the objective
requirement of negligence (
culpa
). . . . This requirement is
not an incidental aspect of our law relating to crime and punishment, it lies
at its heart.
The States right to punish criminal conduct rests on the notion
that culpable criminal conduct is blameworthy and merits punishment.
[47]
And:
The striking degree of correspondence between different
legal systems in relation to an element of fault in order to establish criminal
liability reflects a fundamental principle of democratic societies: as a
general rule people who are not at fault should not be
deprived of their
freedom by the State. This rule is the corollary of another rule which the
same comparative exercise illustrates:
when a person has committed an unlawful
act intentionally or negligently, the State may punish them. Deprivation of
liberty, without
established culpability, is a breach of this established
rule.
[48]
[40]
Section 12(1)(a) of the Constitution
[49]
proscribes the deprivation of someones freedom when the deprivation is either
arbitrary or without just cause. In
Dodo
this Court said:
Section 12(1)(a) guarantees, amongst others, the right
not to be deprived of freedom . . . without just cause. The cause
justifying penal incarceration and thus the deprivation of the offenders
freedom is the offence committed. Offence, as used
throughout in the present
context, consists of all factors relevant to the nature and seriousness of the
criminal act itself, as
well as all relevant personal and other circumstances
relating to the offender which could have a bearing on the seriousness of
the
offence and the culpability of the offender. In order to justify the
deprivation of an offenders freedom it must be shown
that it is reasonably
necessary to curb the offence and punish the offender. Thus the length of
punishment must be proportionate
to the offence.
[50]
[41]
This Court has thus recognised the common-law requirement of
dolus
for criminal liability. According to
Coetzee
, it lies at the heart of
our law relating to crime and punishment.
[51]
Dodo
identifies the cause justifying imprisonment under section 12(1)(a) as
the offence (consisting of all factors relevant to the
nature and seriousness
of the act) as well as all relevant personal and other circumstances.
[52]
[42]
Earlier I found that armed robbery is not a separate offence and that
the state has to prove
dolus
regarding the definitional elements of
robbery only, in order to secure a conviction of armed robbery. Does this
neglect the common-law
and constitutional importance of culpability? In my
view it does not.
[43]
The definition of aggravating circumstances in section 1(1)(b) is
specifically relevant for sentencing, in particular within
the context of
minimum sentences.
Dodo
explains that the section-12(1)(a) prohibition
of the deprivation of freedom arbitrarily or without just cause requires that
sentencing
take into account the nature and seriousness of the act itself, as
well as all relevant personal and other circumstances.
[53]
[44]
First of all, intent with regard to the aggravating circumstances or
the absence thereof remains relevant for sentencing purposes.
Section 12
requires appropriate proportionality between the offence and its sentence on
the one hand and the level of intent
on the other, as is well-established in
sentencing law.
[54]
A
sentencing court has to take into account all mitigating as well as aggravating
circumstances. Together with other factors,
the sentencing court should
consider whether the prosecution has established that the convicted person
intended the consequences
that triggered the enhanced penal jurisdiction. This
flows from our general approach to sentencing, which considers the nature
of
the crime as part of a triad of factors along with the personal circumstances
of the convicted person and the interests of the
community.
[55]
[45]
The prescribed minimum sentence for robbery with aggravating
circumstances, like the minimum sentence at issue in
Dodo
,
[56]
is subject to an exception for
substantial and compelling
circumstances [justifying] the imposition of a lesser sentence
.
[57]
In that case, this Court endorsed the following summary of the factors a court
should consider in contemplating whether such circumstances
exist:
A Section 51
has limited but not eliminated the courts discretion in imposing sentence in
respect of offences referred
to in Part 1 of Schedule 2 (or imprisonment for
other specified periods for offences listed in other parts of Schedule 2).
B Courts
are required to approach the imposition of sentence conscious that the Legislature
has ordained life imprisonment
(or the particular prescribed period of
imprisonment) as the sentence that should
ordinarily
and in the absence
of weighty justification be imposed for the listed crimes in the specified
circumstances.
C Unless
there are, and can be seen to be, truly convincing reasons for a different
response, the crimes in question are
therefore required to elicit a severe,
standardised and consistent response from the courts.
D The
specified sentences are not to be departed from lightly and for flimsy reasons.
Speculative hypotheses favourable
to the offender, undue sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of the policy
underlying
the legislation, and marginal differences in personal circumstances
or degrees of participation between co-offenders are to be excluded.
E The
Legislature has however deliberately left it to the courts to decide whether
the circumstances of any particular
case call for a departure from the
prescribed sentence. While the emphasis has shifted to the objective gravity
of the type of
crime and the need for effective sanctions against it, this does
not mean that all other considerations are to be ignored.
F All
factors (other than those set out in D above) traditionally taken into account
in sentencing (whether or not they
diminish moral guilt) thus continue to play
a role; none is excluded at the outset from consideration in the sentencing
process.
G The
ultimate impact of all the circumstances relevant to sentencing must be
measured against the composite yardstick (substantial
and compelling) and
must be such as cumulatively justify a departure from the standardised response
that the Legislature has ordained.
H In
applying the statutory provisions, it is inappropriately constricting to use
the concepts developed in dealing with
appeals against sentence as the sole
criterion.
I If
the sentencing court on consideration of the circumstances of the particular
case is satisfied that they render the
prescribed sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of society,
so that an
injustice would be done by imposing that sentence, it is entitled to
impose a lesser sentence.
J In
so doing, account must be taken of the fact that crime of that particular kind
has been singled out for severe punishment
and that the sentence to be imposed
in lieu of the prescribed sentence should be assessed paying due regard to the
bench mark which
the Legislature has provided.
[58]
(Emphasis in original.)
[46]
The failure by the state to prove that a convicted person intended the aggravating
circumstances or concrete proof that there was
indeed no intent regarding the
aggravating circumstances is relevant to several of these points. Whether
negative consequences
flowing from the crime were intended by the convicted
person is a sentencing factor encapsulated by F. Similarly, given the
constitutional importance of fault in establishing personal blameworthiness, it
may well be that the prescribed sentence would be
disproportionate to the crime
where the state has not proved that the convicted person intended the act
triggering the prescribed
sentence (I).
[47]
The absence of intent or even knowledge of, for example, the use of a
knife may therefore be taken into account as a factor which
may, probably
together with other mitigating factors, amount to substantial and compelling
circumstances justifying a lesser sentence
than the prescribed minimum. One cannot
say that this must always be the case though. First, courts must have a
discretion when
imposing sentences. Second, a firm rule that the absence of
dolus
regarding the aggravating circumstances always justifies a lesser sentence may
defeat the purpose of the provision, namely to direct
courts to impose harsher
sentences for armed robbery than for mere robbery.
[48]
Section 1(1)(b) does not expressly require any mental element with
respect to the aggravating circumstances. Instead, only
objective facts
constituting aggravating circumstances are referred to in the section. Nor is
intent implicit in section 1(1)(b).
In
Jacobs
the Appellate Division
held that aggravating circumstances are established objectively and the
intention of the accused is not imported
into an enquiry as to whether
aggravating circumstances are present.
[59]
Finally,
reading section 1(1)(b) not to require specific fault does not offend the
presumption against strict liability.
This principle is already satisfied
because intent is a requirement for robbery. Violence is inherent to the crime
of robbery,
so intent to commit robbery subsumes intent to commit violence (or to
threaten to do so). Aggravating circumstances are a manifestation
of the degree
of the violence. Accordingly, section 1(1)(b) does not imply a requirement of intent
with regard to the aggravating
circumstances.
[49]
This leaves us with the question whether conviction of an accomplice to
robbery with aggravating circumstances, without proof of
the accomplices
dolus
regarding those circumstances, would violate section 12(1)(a) of the
Constitution, even when this lack of intent does not result
in a lesser
sentence.
[60]
[50]
The issue is whether someone will be deprived of freedom
arbitrarily
or
without just cause.
In
De Lange
this Court
held that the
prohibition of arbitrariness requires a rational
connection between the deprivation and an objectively determinable purpose.
[61]
One of the purposes of the
increased deprivation of freedom entailed by a minimum sentence is to confront the
societal scourge
of violent crime committed by individuals acting in concert. In
Thebus
Moseneke J affirmed the importance of this goal
.
[62]
The Legislature determined that
when aggravating circumstances are established, enhanced sentencing
jurisdiction is triggered.
[51]
ORegan J stated in
Coetzee
:
[L]eeway ought to be afforded to the
legislature to determine the appropriate level of culpability that should
attach to any particular
unlawful conduct to render it criminal. It is only
when the legislature has clearly abandoned any requirement of culpability, or
when it has established a level of culpability manifestly inappropriate to the
unlawful conduct or potential sentence in question,
that a provision may be
subject to successful constitutional challenge.
[63]
[52]
The enhanced penal jurisdiction created
by the Legislature is not manifestly inappropriate. It is a rational means to achieve
a
constitutionally permissible end: confronting violent crime. This is not
arbitrary.
[53]
As to the just-cause requirement, culpability often provides the cause
justifying the freedom deprivation. In
Thebus
it was stated that once
the culpability norm passes constitutional muster, an appropriate deprivation
of freedom is permissible.
[64]
In a case
like this, culpability has already been established for robbery. Imprisonment
for robbery with aggravating circumstances
is thus not imprisonment in the
absence of intent, as proving intent is necessary to secure a conviction for
robbery. Once the
intent to take property with violence is proved, it is a
matter of degree whether the intent related specifically to the use of
a
dangerous weapon.
[54]
An enquiry into an accuseds personal blameworthiness cannot be made
independently of the impact of the crime on other people. Robbery
is an
essentially violent crime.
[65]
When a
person engages in criminal conduct that carries intrinsic risk, there is a
shift in the normative position of that individual,
as far as the bounds of
punishment are concerned.
[66]
The decision to participate in a robbery is the crucial moral threshold which,
once crossed, ordinarily renders the accused culpable.
Therefore, provided the
requirement of proportionality between the unlawful act and its punishment is
satisfied, it is ordinarily
justified for the law to impose liability on him or
her for the consequences that flow from the unlawful act.
[67]
[55]
The Supreme Court of Canada stated:
To require fault in
regard to each consequence of an action in order to establish liability for
causing that consequence would substantially
restructure current notions of
criminal responsibility. Such a result cannot be founded on the constitutional
aversion to punishing
the morally innocent. One is not morally innocent simply
because a particular consequence of an unlawful act was unforeseen by
that
actor. In punishing for unforeseen consequences the law is not punishing the
morally innocent but those who cause injury
through avoidable unlawful action.
Neither basic principles of criminal law, nor the dictates of fundamental
justice require,
by necessity, intention in relation to the consequences of an
otherwise blameworthy act.
[68]
[56]
Even though the aggravating circumstances at stake in this matter are
not the same as the consequences the Canadian Court referred
to, the
principle seems to be sound. The imposition of liability on an accused in this
instance is thus broadly consistent with
the principle of autonomy, exactly
because the accused actively and culpably chose to participate in an inherently
violent unlawful
activity. An accused may be held accountable for this choice,
even if she or he did not intend the exact circumstances that occurred,
or
method used. There is no constitutional requirement under section 12 that
intent regarding the specific circumstances
be proved in order to secure a
conviction.
[57]
In addition to their argument that the absence of a requirement to prove
specific fault violates section 12 of the Constitution,
the respondents also
contend that section 35 of the Constitution is unjustifiably infringed. The
High Court held that
section 35 was indeed violated. Section 35(3)(h)
provides that every accused person has a right to a fair trial, which
includes
the right to be presumed innocent, to remain silent, and not to testify during
the proceedings.
[69]
The argument
is that the presumption of innocence is infringed as the state is relieved of
proving the fundamental element of
dolus
regarding the aggravating
circumstances. In view of the above findings, this submission cannot succeed.
As stated, the state has
to prove all the definitional elements of robbery,
including
dolus
, as well as the existence of the aggravating
circumstances.
[58]
In any event, an insufficient fault requirement and a violation of the
presumption of innocence are conceptually two different things.
One cannot
argue that there is a constitutional defect in an offence due to a missing
element, and simultaneously that an accused
faces conviction despite the
existence of reasonable doubt on that element,
since by definition the
element is not there. ORegan J said in
Coetzee
:
These are separate questions. They raise
two different aspects of freedom: the first is concerned particularly with the
reasons
for which the State may deprive someone of freedom; and the second is
concerned with the manner whereby a person is deprived of
freedom.
[70]
Conclusion
[59]
The words or an accomplice in section 1(1)(b) of the CPA do not
mean that an accomplice could be convicted of robbery with
aggravating
circumstances if intent on the part of that accused regarding the aggravating
circumstances is not proved by the state.
The order of the High Court
incorrectly targets these words. Furthermore, robbery with aggravating
circumstances is not a separate
criminal offence, distinct from robbery. The
objective existence of aggravating factors such as the use of a dangerous
weapon
is relevant for sentencing, but must be proved before conviction, for
reasons of fairness and practicality. For a conviction
of robbery with
aggravating circumstances
,
the state must prove
dolus
as one of the
definitional elements of robbery. The absence of
dolus
regarding the
aggravating circumstances on the part of an accused may be taken into account in
sentencing and may result in the
imposition of a lighter sentence than the
statutorily prescribed minimum. Even when it does not, the statutory
determination that
the existence of aggravating circumstances calls for a
harsher sentence than what would be appropriate for mere robbery, does not
amount to the arbitrary deprivation of freedom, or deprivation without just
cause. Section 12(1)(a) of the Constitution is
not contravened, nor is
section 35(3)(h) violated.
[60]
The High Courts order should not be confirmed.
Order
[61]
The following order is made:
1.
The order made by the Western Cape High Court, Cape Town in
Masingili
and Others v S
[2013] ZAWCHC 59
;
2013 (2) SACR 67
(WCC) declaring
section 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 t
o the Western Cape High
Court, Cape Town, to finalise the appeal by the respondents who were the
accused in the criminal trial.
For the First Applicant:
Advocate A La Grange SC and
Advocate T Sidaki instructed by the State Attorney.
For the Second Applicant:
Advocate W Tarantal instructed by the National Prosecuting Authority.
For the First Respondent:
Advocate A Paries instructed
by Ismail and Badrudeen Attorneys
For the Second to Fourth
Respondents:
Advocate M Calitz and Advocate
A Dejongh instructed by Legal Aid South Africa.
.
[1]
Section
12(1)(a)
states:
Everyone has the right to freedom and security of the
person, which includes the right not to be deprived of freedom arbitrarily
or
without just cause.
[2]
Section 35(3)(h)
states:
Every accused person has a right to a fair trial,
which includes the right to be presumed innocent, to remain silent, and not to
testify during the proceedings.
[3]
51 of
1977.
[4]
S v Masingili and Others
[2013] ZAWCHC
59; 2013 (2) SACR 67 (WCC).
[5]
For the
wording of
section 1(1)(b)
, see [15] below.
[6]
Section 167(5)
states:
The Constitutional Court makes the
final decision whether an Act of Parliament, a provincial Act or conduct of the
President is
constitutional, and must confirm any order of invalidity made by
the Supreme Court of Appeal, the High Court of South Africa, or
a court of
similar status, before that order has any force.
[7]
S v
Legoa
[
2002] ZASCA 122; 2003 (1) SACR 13 (SCA).
[8]
S v
Dhlamini and Another
1974 (1) SA 90
(A) (
Dhlamini
).
[9]
See [15] below for the wording of section 1(1)(b).
[10]
Because
of the facts, this judgment focuses on the use of a dangerous weapon only.
[11]
105 of
1997.
[12]
Section 18 of the CPA.
[13]
Id s
ections 59A and 63A read with Schedule 7, and
section 60(11)(a) read with Schedule 6. These non‑sentencing
consequences are mentioned for context. Their constitutional validity is not
before us.
[14]
Criminal Procedure Amendment Act 9 of 1958.
[15]
R v
Sisilane
1959 (2) SA 448 (A).
[16]
Id at 451A-4A.
[17]
Id at 453B-C.
[18]
R v
Cain
1959 (3) SA 376
(A) at 381A-C.
[19]
Criminal
Law Further Amendment Act 75 of 1959.
[20]
Above
n 8.
[21]
Id at
94B-C.
[22]
Id at 95D.
[23]
S v Williams en n Ander
1980 (1) SA 60
(A) (
Williams
) at 63B. See also Snyman
Criminal Law
5 ed
(LexisNexis, Durban 2008) at 273 and Burchell
South African Criminal Law and
Procedure Volume 1: General Principles of Criminal Law
4 ed (Juta &
Co, Ltd, Cape Town 2011) at 515.
[24]
Williams
above n 23; Snyman above n 23 at 276 and Burchell above n 23 at
521.
[25]
R v Mlooi and Others
1925 AD 131
at 134.
[26]
Above n 15 at 453G-H.
[27]
Above
n 15.
[28]
Above
n 8.
[29]
See
S
v Coetzee and Others
[1997] ZACC 2
;
1997 (3) SA 527
(CC);
1997 (4) BCLR 437
(CC) (
Coetzee
) at paras 176 and 178.
[30]
This Court was referred to the fact that dealing in dangerous
dependence-producing substances in terms of section 5(b)
read with
section 13(f)
of the
Drugs and Drug Trafficking Act 140 of 1992
, where the
value of the drugs exceeds a prescribed amount, attracts the same minimum
sentences as robbery with aggravating circumstances,
in terms of
section 51
read with
Part II
of Schedule 2 of the Minimum Sentencing Act.
[31]
See [17] above.
[32]
Above
n 7 at para 18.
[33]
S v
Moloto
1982 (1) SA 844
(A) at 850C. Roof, of poging tot roof, met
verswarende omstandighede is nie n nuwe soort misdaad wat deur die Wetgewer
geskep
is nie. Dit bly steeds roof.
[34]
Id at
850C-D. Academic writers seem to agree. See, for example, Snyman above
n 23 at 520.
[35]
See, for example,
S v Mokela
[2011] ZASCA 166
;
2012 (1) SACR
431
(SCA) at para 6.
[36]
Legoa
above n 7 at paras 19-27.
[37]
Id.
At para 20, Cameron JA held that giving notice was
desirable.
[38]
See
section 1 of the Constitution and
Veldman v Director of Public Prosecutions,
Witswatersrand Local Division
[2005] ZACC 22
;
2007 (3) SA 210
(CC);
2007
(9) BCLR 929
(CC) at para 37.
[39]
Ex parte
Minister of Justice: In re R v Gesa; R v De Jongh
1959 (1) SA 234
(A) at
238C-E. See also Snyman above n 23 at 517.
[40]
Snyman
above n 23 at 32.
[41]
Id at
33 and 149-50.
[42]
Id at
183-4 and Burchell above n 23 at 362-4 and 398.
[43]
Criminal-law principles thus draw on the Kantian notion of a morally autonomous
individual who exercises control over and is responsible
for her or his
actions. See Moore
Placing Blame: A General Theory of the Criminal Law
(Clarendon
Press, Oxford 1997) at 195-6 and Norrie
Punishment, Responsibility, and
Justice: A Relational Critique
(Oxford University Press, Oxford 2000) at
93. Of course this does not mean that the influence of socio-economic
circumstances and
the extent to which these may impact on ones ability to
choose are irrelevant.
[44]
In
S
v Manamela and Another (Director-General of Justice Intervening)
[2000]
ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC)
at para 100 it
was noted that [o]ur society asserts individual moral agency and it does not
flinch from recognising the responsibilities
that flow from it.
ORegan J and Cameron AJ also quoted Honorés observation in
Responsibility
and Fault
(Hart Publishing, Oxford 1999) at 125:
[W]e do well, indeed we are impelled . . . to treat
ourselves and others as responsible agents. But the argument for welcoming
this conclusion is not that our behaviour is uncaused something that we
cannot know and which, if true, would be a surprise
but that to treat people
as responsible promotes individual and social well-being. It does this in two
ways. It helps to preserve
social order by encouraging good and discouraging
bad behaviour. At the same time, it makes possible a sense of personal character
and identity that is valuable for its own sake.
See also
Ferreira v Levin NO and Others; Vryenhoek
and Others v Powell NO and Others
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para 251;
S v Jordan and Others (Sex Workers Education
and Advocacy Task Force and Others as Amici Curiae)
[2002] ZACC 22
;
2002
(6) SA 642
(CC);
2002 (11) BCLR 1117
(CC) at paras 52-3;
and
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) at
para 57
.
Autonomy has been understood as linked to the right to
dignity, as well as the value of freedom expressed in, among others,
sections 1,
7 and 39 of the Constitution.
[45]
S v
M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC) (
S v M
) at para 110.
[46]
Different
considerations apply in crimes entailing negligence.
[47]
Above
n 29
at para 162.
[48]
Id at para 176.
[49]
Quoted above n 1.
[50]
S v
Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC);
2001 (5) BCLR 423
(CC) at
para 37.
[51]
Above n
29 at para 162.
[52]
Above n
50.
[53]
Id.
[54]
Id.
This Court held: The concept of proportionality goes to the heart of the
inquiry as to whether punishment is cruel,
inhuman or degrading, particularly
where, as here, it is almost exclusively the length of time for which an
offender is sentenced
that is in issue.
[55]
S v
M
above n 45 at para 10.
[56]
Above
n 50 at para 1.
[57]
Section 51 read with Part II of Schedule 2 of the
Minimum Sentencing Act.
[58]
Dodo
above
n 50 at para 11, quoting
S v Malgas
[2001] ZASCA
30
;
2001 (2) SA 1222
(SCA) at para 25.
[59]
R v
Jacobs
1961 (1) SA 475
(A) at 484H.
[60]
See
above n 1 for the wording of section 12(1)(a).
[61]
De
Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7)
BCLR 779
(CC) at para 23.
[62]
S v
Thebus and Another
[2003] ZACC 12
;
2003 (6) SA 505
(CC);
2003 (10) BCLR
1100
(CC) (
Thebus
) at para 34.
[63]
Above
n 29 at para 177.
[64]
Above
n 62
at para 36.
[65]
Above
n 39.
[66]
Gardner
Rationality and the rule of law in offences
against the person
(1994)
53 (3)
Cambridge Law Journal
502
at 509. See also Ashworths exposition
of this concept in A Change of Normative Position: Determining the Contours of
Culpability
in Criminal Law (2008) 11 (2)
New Criminal Law Review
232.
[67]
Gardner
above n 66.
[68]
R v
DeSousa
[1992] 2 SCR 944
, 76 CCC (3d) 124
at 967.
[69]
Quoted
above n 2.
[70]
Above
n 29 at para 159.