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[2013] ZAWCHC 59
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Masingili and Others v S (A448/12) [2013] ZAWCHC 59; 2013 (2) SACR 67 (WCC) (20 March 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE NO: A448/12
In the matter between:
NANTOMBI MASINGILI
............................................................................
First
appellant
SIYABULELA VOLO
............................................................................
Second
appellant
MZONKE MLINDALAE
............................................................................
Third
appellant
SITHUMBELE GOVUZA
........................................................................
Fourth
appellant
and
THE STATE
..................................................................................................
Respondent
___________________________________________________________________
JUDGMENT DELIVERED ON
20 MARCH 2013
___________________________________________________________________
BLIGNAULT J
and VAN STADEN AJ:
Introduction
[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 theyrobbed Ms Chen on 2 October 2009 at
Boy de Goede Circle in Table View, of certain goods, includinga
sports bag, cash in an amount of approximately R1 500,00and a cell
phone, 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 1977 (‘Act 105 of 1997’) as “
robbery
– when there are aggravating circumstances’.
The
definition‘
aggravating circumstances’
does not
apply to any other statutory provision. It is defined insection
1(1)(b) of the Criminal Procedure Act 51 of 1977 (the CPA)
as
follows:
‘
In this
Act, unless the context otherwise indicates-
'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
(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 section
51(2)(a) of Act 105of 1997 a first offender of
robbery with
aggravating circumstances
shall be sentenced to 15 years’
imprisonment 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(NantombiMasingili)was
sentenced to 8 (eight) years’
imprisonment of which 2 (two) years’ imprisonment were
conditionally suspended for 5
(five) years. Second
appellant,(SiyabulelaVolo),third appellant(MzonkeMlindalazwe) and
fourth appellant (SithumbeleGovuza) were
sentenced each to 10 (ten)
years’ imprisonment of which 2 (two) years’ imprisonment
were conditionally suspended for
5 (five) years.
[4] Appellants appealed
to this court, with leave of the regional magistrate, against their
convictions and sentences. The broad
picture that emerged from the
evidence is that the four appellants acted in concert in committing a
robbery at the complainant’s
shop. First appellant inspected
the premises,then returned to their vehicle. Second appellant was the
driver of the vehicle. He
remained in the vehicle whilst the robbery
was taking place. Third and fourth appellants entered the shop and
robbed the complainant
of cash and a few articles. A knife was used
to threaten the complainant.
[5] Upon consideration of
the appealswe concluded that the convictions of third and fourth
appellants were in order.The roles of
first and second appellants,
however, were different. Although guilty as accomplices to the
robbery, it appeared to us that the
State had not proved that they
had any
dolus
(intention)
with respect to the perpetration of any one of the aggravating
circumstances.The question therefore arose whether the
inclusion of
the phrase
‘
or an accomplice’
in
the definition of aggravating circumstances,does not create strict
liability, ie liability without fault,
in respect
of the offence
robbery with aggravating
circumstances.
The phrase
‘
or
an accomplice’
might then
beunconstitutional and invalid.
[6] The appeals were
accordingly re-enrolled for purposes of argument on the
constitutional issue. It was heard on 22 February 2013.
Mr AParies
appeared for first appellant and Ms Y Rajapfor second, third and
fourth appellants. Mr J de V van Niekerk, assisted
by Ms A du Toit,
appeared as
pro bono
counsel on behalf of appellants and Mr A
de V La Grange, assisted by Mr T S Sidaki, represented theMinister of
Justice and Constitutional
Development (‘the Minister’).
The court is indebted to counsel for theirhelpful submissions.
The evidence
[7] Before turning to the
constitutional issue we propose to summarise the evidence. Ms Chan
Touffais the complainant. She is of
Chinese origin. She testified
that she was the owner of a shop in Table View. At about 12h00 on 2
October 2009 she was alone in
the shop. She was not busy that day. A
black lady entered the shop. She knew the lady because she had
previously come into the
shop. The lady asked her whether she was
busy that day and she told her that she was not. After the lady had
left, she noticed
that she walked to a green motorcar and spoke to
someone inside it.
[8] About 10 minutes
later, when there was no-one in the shop, two black males walked into
the shop and asked for a size 34 pair
of jeans. Whilst she was
looking for the jeans, one of them who she described as the tall man,
took out a knife. The other man
was meanwhile closing the outer door.
He did not have a knife. They asked for money and she told them that
she did not have any.
The two men then tied her up and put her in the
toilet. She could hear them searching for money inside the shop. She
managed to
get out of the toilet and saw them running away from the
shop. She screamed and followed them. As the two robbers were running
away she saw that the owner of the neighbouring shop was running
after them. She said that she lost a pair of pants and about
R1 200,00
to R1 400,00 in cash. She got some of her jeans
and hats back at the police station as well as her cellphone. She did
not
sustain any injuries.
[9] Mr Patrick Grunder
was the owner of a shop close to that of Ms Touffa. On the day of the
incident he was in his shop. He heard
a lady screaming and when he
looked out of the window he saw Ms Touffa on her knees with her hands
in the air, screaming for help.
He ran towards her and she told him
that she had been robbed. She took him to the main road and pointed
about 50 metres up the
road where two men were standing. Ms Touffa
said that they were the persons that had robbed her. One of them had
a bag on his shoulder.
As soon as the two men saw them they ran away.
He ran after them. It was a double road and there was oncoming
traffic. When the
oncoming cars had passed they crossed over to the
middle of the road. They ran towards a parked car of which the back
doors were
open. The two men jumped into the car and it sped away.
[10] Grunder said that he
stopped a passing car, got in and pursued the robbers. About 100
metres up the road he saw that the robbers’
car had stopped on
the side of the road. He saw that two persons, whom he assumed were
policemen, questioning some of the occupants
of the car who had
meanwhile alighted. He told the policemen that they had robbed a
Chinese lady. The policemen ordered the occupants
of the car to lie
face down on the road. At his suggestion one of the policemen opened
the boot of the car and found the same bag
that he had seen earlier.
The policemen emptied its contents on the road. Two pairs of jeans, a
handful of change and a few notes
fell out.
[11] Mr Rudi Lizamor is a
warrant officer in the South African Police Services. On 2 October
2009 at about 14h45 he and two colleagues,
constable Vivian Thompson
and constable Gavin Hartnick, were on patrol duty. They were driving
in a police vehicle alongBlaauwberg
Road. He saw a Chinese woman
running out from the business section. She was screaming. In front of
her was a white male, also running.
He was chasing a black male
running across the road. As their police vehicle was making a U-turn
he saw the black male jumping
into a blue Mazda. He was carrying a
bag. The Mazda pulled away at great speed.
[12] The policemen
followed the Mazda and tried to stop it by flashing and hooting. He
(Lizamor) was sitting in the left front passenger
seat. They drove
next to the Mazda and he pointed his firearm at the driver. The Mazda
pulled to the left and stopped on the side
of the road. The police
stopped in front of it. The occupants of the Mazda were pulled out of
their vehicle. He and a colleague
searched the Mazda. They found a
blue rucksack carried by the driver.Inside the rucksack were various
items, watches and coins.
They arrested the suspects and took them to
the police station where Ms Touffa identified the goods in the bag as
hers. She also
identified the knife with the brown handle as the one
that was carried by the one robber. Lizamor said that second
appellant wasthe
driver of the vehicleand thatthere had been no one
sitting in the left front passenger seat.
[13] Constable Thompson’s
evidencecorroborated that of Lizamore.He testified that three persons
exited from the back of the
Mazda after it had stopped. He tried to
open the front left door but it would not open. There was nobody
sitting in the left front
passenger seat and three personsat the
back, one female and two males. When he approached the one male lying
on the ground he saw
a silver knife with a brown handle lying a
couple of centimetres away from his face. On searching the male that
got out on the
right hand side of the Mazda he found a knife in his
pocket. He identified third appellant as the person that alighted
from the
left side of the Mazda. Fourth appellant was the person that
had been chased by the white male. Second appellant was the driver
of
the Mazda.
[14] Constable Hartnick’s
evidence fitted in with Lizamore’s version of the events. He
was the driver of the police
vehicle. By the time that he had
alighted from the police vehicle four black men were already lying on
the ground and a woman was
standing at the side of the road.
[15] First appellant
testified that she met second appellant at a garage. He offered to
give her a lift. She first went into Ms
Touffa’s shop and spoke
to her. She knew her quite well. She returned and got into the car.
Second appellant drove off. Not
far away he stopped to get something
to eat. She stayed in the car. Suddenly two persons jumped into the
back of the car and ordered
second appellant to drive away which he
did. She identified fourth appellant as one of these persons. The
police then pulled them
off the road. They were all told to lie down
on the ground. She saw that fourth appellant had a bag with him.
[16] Second appellant
said that he went to Blaauwberg in his own car. He was looking for
work. Whilst filling his car with fuel
he met first appellant and at
her request gave her a lift. She first wanted to go into a shop. He
parked the car in a
cul-de-sac
leading from the main road and
waited for her. She returned and got back into the car. He then heard
some screaming and two males
climbed into the back of his car. They
beat him on the shoulders and instructed him to drive away which he
did. He then saw a white
car pulling up next to him. One of the
passengers in the white vehicle pointed a firearm at him. He pulled
to the side of the road
and stopped. He stayed in the car. The two
passengers got out first. When he got out he saw people lying on the
ground. He was
arrested with them.
[17] Third appellant
testified that he was on his way from Langa to Parklands where he
worked. He got out of the taxi in Blaauwberg.
He then walked along
Blaauwberg Road when somebody suddenly pointed a firearm at him and
ordered him to lie down which he did.
He was then arrested by the
police and taken to the police station. He said that he had not been
involved in any robbery.
[18] Fourth appellant
said that he was walking down Blaauwberg Road when a blue Mazda
stopped next to him. The police arrived. They
had firearms and
ordered him to lie down on the ground where other persons were
already lying. He was then arrested.
[19] The magistrate
delivered a thorough judgment. She evaluated the evidence of the
state witnesses in some depth and found that
there were no grounds
for criticising or rejecting it. She pointed, on the other hand, to
numerous material inconsistencies and
improbabilities in the evidence
of all four appellants. She also dealt specifically with and accepted
the identificatory evidence
in respect of allfour. The magistrate
concluded that the State had proved beyond reasonable doubt that
there was a robbery with
aggravating circumstances and that all four
appellants‘
partookin this robbery’.
[20] In our view the
factual and credibility findings of the magistrate cannot be
criticised. They are detailed, well-reasoned and
supported by the
evidence. Weaccordingly intend to approach the appeals on thefooting
that these findings are correct. On that
basis we are of the opinion
that the convictions of third and fourth appellants of robbery with
aggravating circumstances cannot
be faulted. There is some
uncertainty as to which one of them used a knife to threaten the
complainant but they acted together
and both had knowledge of the
knife
How the
constitutional issue arises
[21] The respective roles
of first and second appellants differ from those of third and fourth
appellants. First appellant’s
role appears to have been
confined to that of a scout and second appellant drove the vehicle
thattransported the robbers to and
away from the scene.The
constitutional issue concerns the basis on which the two of them were
convicted of robbery with aggravating
circumstances.
[22] In discussing how
this issue arises it is as well to be clear as to our understanding
of the meaning of the terms
accomplice
and
perpetrator.
An
accomplice
in a legal context has been defined as a person who
does not satisfy the requirements for liability in respect of a
crime, but
unlawfully and intentionally furthers the commission of
the crime by somebody else. See Snyman
Criminal Law
fifth
edition (2008) 273. The person that does satisfy the requirements for
liability in respect of the crime is described by
Snyman op cit
258
as the
perpetrator
. We intend to use the same terminology.
[23] We also wish to make
it clear that our approach to the offence of
robbery with
aggravating circumstances
is that it comprises two components.
The first is the common law offence of robbery. The second is the
perpetration of one or more
of the aggravating circumstances. The
validity of this approach was disputed by counsel for the Minister.
This is an important
issue and we will revert to it later in the
judgment. At this juncture, however, we intend to proceed on the
basis that our approach
is correct.
[24] The legal basis of
the magistrate’sconviction of first and second appellants is
not explicit.There are three possibilities.The
first is that she
might have intended to apply the doctrine of common purpose. The
second is that she might have found them guilty
on the basis that
they were accomplices to both components of the crime, the robbery
and the perpetration of the aggravating circumstances.
The third
possibilityis that she might have concludedthat they were accomplices
to the robbery and therefore, as a result of the
application of the
definition of aggravating circumstances in section 1(1)(b) of the
CPA, guilty of
robbery with aggravating
circumstances
.
[25] Thedoctrine of
common purpose would, however,
not have
assistedin proving any
dolus
on
the part of first and second appellants. It is settled law that this
doctrine can only be invoked for purposes of proof of causation
as
one of the elements of a crime. It cannot serve to impute the
dolus
of one person to another: See
S v
Malinga
1963 (1) SA 692
(A)694F-H.
[26] The second
possibility depended on proof that first and second appellants were
also accomplices with respect to the perpetrationof
the aggravating
circumstances. It seems unlikely, however, that the magistrate
approached their convictions on this footing. It
was not the basis on
which the State presented its case and it would have depended upon
proof of
dolus
on the part of first and second appellants, at
least in the form of
doluseventualis,
with respect to the
perpetration of the aggravating circumstances. That would have
entailed proof, beyond reasonable doubt,of (i)
subjective foresight
ofa reasonable possibility(cf
S v Van Wyk
1992 (1) SACR 147
(Nm) at 161b)that aggravating circumstances would be perpetrated by
third or fourth appellant; and (ii) an intention to reconcile
him/herto that result(see
S v Ngubane
1985 (3) SA 677
(A) at
85DF).
In casu
the State did not present the necessary evidence
and the magistrate did not makethe required findings to support a
conviction on
this basis. Nor could she, in our view,have made such
findings on the evidence before her.
[27] We accordingly
conclude that the magistrate in all likelihood followed the third
approach referred to above, namely that she
found that first and
second appellants were accomplices to the robbery and therefore, as a
result of the application of the definition
of aggravating
circumstances in section 1(1)(b) of the CPA, guilty of
robbery
with aggravating circumstances
. We proceed to consider the
validity of this approach.
The history of the
definition of ‘
aggravating circumstances’
[28] By way of background
it is instructive to have regard to the recent history of the
definition of ‘
aggravating circumstances
’. It is
described in the judgment of Holmes JA in
S v Dhlamini and
Another
1974 (1) SA 90
(A). The definition of ‘
aggravating
circumstances’
was inserted in the previous Criminal
Procedure Act 56 of 1955by section 1 of Act 9 of 1958. At that stage
the definition described
some of the circumstances under which the
death penalty could have been imposed. It read as follows:
"aggravating 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.’
[29] In
R v Sisilane
1959 (2) SA 448
(A)Schreiner JA pointed to the discrepancy,at that
time, between the wording of paras (a) and(b)of the definition and
said the
following:
‘
The
introduction of the phrase 'by the offender or an accomplice' must
have been deliberate and the reason can only have been to
make the
accomplice also liable, in the case of housebreaking, for the
possession of weapons and the commission of assaults or
the threat of
assaults by any of his associates, while leaving the robber
responsible only for his own act and, I assume, others
which he
himself instigated or made himself a party to.’
[30] Para (b) of the
definition was then amended by section 3 of Act 75 of 1959 by the
insertion,
inter alia,
of thewords ‘
by the offender
or an accomplice’.
In the
Dhlamini
case, at 93H and
95BC, Holmes JA summarised the effect of the latter amendment as
follows:
‘
The next
enquiry relates to the words "by the offender or an accomplice."
If there is only one offender, no problem arises.
Did he inflict or
threaten such harm?
The crucial words are "or an
accomplice." An accomplice to what?Clearly, to the robbery (or
to the attempt). That is the
"offence" of the "offender"
mentioned in para. (b). The section does not say
"an accomplice to the
infliction of grievous bodily harm or any threat to inflict such
harm."
… … …
It follows, in my view that, when
the words "or an accomplice" were later added by statute,
aggravating circumstances
could be present in relation to a robber
even where he had not himself inflicted or threatened grievous bodily
harm, or instigated
it or made himself a party to it.’
Section 12(1)(a) of
the Constitution
[31] The
pro bono
counsel submitted that thecrime created by the phrase‘
or
an accomplice’
offends against sections 12(1)(a) and
35(3)(h) of the Constitution of the Republic of South Africa Act 108
of 1996 (‘the Constitution’).
We discuss section 12(1)(a)
of the Constitution first. It reads as follows:
‘
12
Freedom
and security of the person
(1) Everyone has the right to
freedom and security of the person, which includes the right-
(a) not to be deprived of freedom
arbitrarily or without just cause.’
[32] The judgment of
O’Regan J in
S v Coetzee and Others
[1997] ZACC 2
;
1997 (3) SA 527
(CC)
contains an authoritative discussion, with reference to section 11 of
the Constitution of the Republic of South Africa Act
200 of 1993
(‘the Interim Constitution’), of the attitude of the
courts with respect to strict liability. Section 11(1)
of the interim
Constitution was formulated, insofar relevant, in terms similar to
those of section 12(1) of the Constitution. It
provided,
inter
alia
, that ‘
every person shall have the right to freedom
and security’… ‘.
[33] We proceed to quote
a number ofextracts from O’Regan J’s judgment:
‘
[162]
…the requirement of fault or culpability is an important part
of criminal liability in our law. This requirement is
not an
incidental aspect of our law relating to crime and punishment; it
lies at its heart. The State's right to punish criminal
conduct rests
on the notion that culpable criminal conduct is blameworthy and
merits punishment. This principle has been acknowledged
by our Courts
on countless occasions.
… … …
[165] Repugnance to the notion of
criminal liability without fault is evidenced too in the reluctance
of courts to interpret statutory
provisions which contain no express
mensrea requirement as not requiring mensrea.
… … …
[168]
…
In England,
the Courts have taken the view that there is a presumption that
mensrea is always a requirement of a criminal offence,
although that
presumption may be defeated by the language of a provision. …
… Renewed vigour has been afforded to
this approach by its
recent restatement in a series of decisions by the House of Lords and
the Privy Council.
… …
[174] Since the adoption of the
Charter, the Canadian Supreme Court has held that where a statute
imposes criminal liability without
any mensrea requirement (ie
absolute liability) which may result in imprisonment, it will be a
breach of s 7 of the Canadian Charter
of Rights and Freedoms. (See
Reference re s 94(2) of the Motor Vehicle Act (1986) 24 DLR (4th) 536
(SCC); R v Vaillancourt (1988)
47 DLR (4th) 399 (SCC); R v Wholesale
Travel Group Inc (1992) 84 DLR (4th) 161 (SCC); R v Nova Scotia
Pharmaceutical Society (1992)
10 CRR (2d) 34 (SCC); R v Burt
(1987)
60 CR (3d) 372
(Sask CA); R v Pellerin
(1990) 42 CRR 292
(Ont CA); R
v Sutherland (1990) 55 CCC (3d) 265 (NS CA).)
… … …
[176] 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. Where culpability is established, and the
conduct is legitimately
deemed unlawful, then no such breach arises.’
[34] The judgment in
S
v Coetzee and Others supra
was delivered in 1997.The general
approach to the concept of criminal liability without fault in the
countries mentioned above,
does not appear to have changed since
then.Snyman
op cit
246 says the following:
‘…
since
about 1970 there has been a significant decrease in the number of
cases holding that a statute has created strict liability.
As far as
could be ascertained, since 1970 there have been only three cases in
which a court has interpreted a statute as one creating
strict
liability.’
In England the judgment
in
Crown Prosecution Service v M & B
[2009] EWCA Crim 2615
(11 December 2009) is a recent example of the approach described
above. In Canada the judgment of the Ontario
Superior Court of
Justice in
R v Sappleton and Eubank
2010 ONSC 6132
illustrates
that the decisions referred to in para [174] of O’Regan’s
judgment in
S v Coetzee and Others supra,
arestill regarded as
authoritative.
[35] It may be noted that
there is an exception to the general rule, namely that strict
liability may in some cases be acceptable
in statutes described as
regulatory measures. See the judgment of Kentridge AJ in
S v
Coetzee and Others supra
para [91].A statute aimed at the
punishment of persons guilty of
robbery with aggravating
circumstances
can, however, hardly be regarded as a regulatory
measure.The exception does not,therefore, apply in this case and need
not be considered
further
[36] The next issue to be
determined is whether the offence of
robbery
with aggravating circumstances
in fact creates
strict liability on the part of an accomplice or perpetrator who has
no
dolus
with respect
to the perpetration of the aggravating circumstances. The nature of
this offence was clarified in the judgment of Cameron
JA in
S
v Legoa
2003 (1) SACR 13
(SCA). In that case
the Supreme Court of Appeal considered the application of Act 105 of
1997 i
n
respect of the offence referred to in Schedule 2as dealing in a
dangerous dependence-producing substance
'if
it is proved that - (a) the value of the dependence-producing
substance in question is more than R50 000'
.
T
he
court below had concluded that the value of the substance in question
related solely to the question of sentence and was irrelevant
before
conviction. A principal issue on appeal was whether that conclusion
was correct.
[37]
Cameron JA held that it was not correct.
We
quote at some length from his judgment, as it applies directly to the
case at hand. For the sake of brevity we omit footnotes:
[14] In my
view, for three principal reasons it is not. First, the High Court's
conclusion flies in the face of the wording of the
1997 statute. That
wording, in my view, clearly indicates that for the minimum
sentencing jurisdiction to exist in respect of an
offence, the
accused's conviction must encompass all the elements of the offence
set out in the Schedule. (This does not apply
when the Schedule
specifies an attribute not of the offence, but of the accused, such
as rape when committed 'by a person who has
been convicted of two or
more offences of rape, but has not yet been sentenced in respect of
such convictions'.) Second, even if
the wording of the statute were
open to more than one interpretation (which in my view it is not) the
grave injustice that the
contrary interpretation can cause compels
the conclusion that the elements of the offence must be established
before conviction.
Third, the High Court's conclusion is contrary to
established principle and practice in our criminal trial courts.
[15] It is an
established principle of our law that a criminal trial has two stages
- verdict and sentence. The first stage concerns
the guilt or
innocence of the accused on the offence charged. The second concerns
the question of sentence. Findings of fact may
be relevant to both
stages. However, those in the first stage relate to the elements of
the offence (or the specific form of the
offence) with which the
accused is charged. Those in the second mitigate or aggravate the
sentence appropriate to the form of the
offence of which the accused
has been convicted.
… … …
[17] Where
the accused was charged with robbery,
the question whether
the robbery was committed with aggravating circumstances had to be
determined as part of the verdict - that
is, as part of the court's
finding on guilt or innocence in the first stage.
The
aggravating circumstances were elements of the form of the offence of
robbery with which the accused was charged. Hence they
had to be
proved in the first stage of the trial, and the finding regarding
their presence or absence was part of the main verdict.
Their
presence or absence accordingly had to be decided by the Judge with
the assessors (or, before the abolition of juries, by
the jury).
[our emphasis]
[18] 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. The offences scheduled
in the
minimum sentencing legislation are likewise not new offences. They
are but specific forms of existing offences, and when
their
commission is proved in the form specified in the Schedule, the
sentencing court acquires an enhanced penalty jurisdiction.
It
acquires that jurisdiction, however, only if the evidence regarding
all the elements of the form of the scheduled offence is
led before
verdict on guilt or innocence, and the trial court finds that all the
elements specified in the Schedule are present.
(As pointed out
earlier, it is different when the element specified in the Schedule
relates not to the offence, but to the person
of the accused, such as
rape when committed '(iii) by a person who has been convicted of two
or more offences of rape, but has
not yet been sentenced in respect
of suchconvictions'.)’
[38] Later judgments of
the Supreme Court of Appeal concerning the nature of the offence
robbery with aggravating circumstances
areconsistent with the
description thereof in Cameron JA’s judgment in
S v Legoa
supra.
It was applied directly in
S v Gagu and Another
[2006] ZASCA 7
;
2006
(1) SACR 547
(SCA) para 7.In
S v Mokela
2012 (1) SACR 431
(SCA) Bosielo JA held that a previous conviction of robbery should
not be regarded as a previous offence of
robbery with aggravating
circumstances
for purposes of the sentencing provisions of the
CLAA. He stated, in para [6], that ‘
robbery and robbery with
aggravating circumstances are two different offences calling for
different sentences.’
In
S v Mashinini& another
2012 (1) SACR 604
(SCA) Mhlantla JA dealt with the analogous position
in regard to rape. She held, in effect, that an accused can only be
convicted
and sentenced on the basis of the scheduled offence with
which he has been charged.
[39] In our view the
reasoning of Cameron JA in the
Legoa
judgment applies directly
to the present case. It was incumbent upon the State to provethe
perpetration of aggravating circumstances,
as defined in section
1(1)(b) of the CPA, during the first stage of the trial culminating
in the vereict. This was in fact the
manner in which the case was
approached in the regional court. The appellants were charged with
the offence of
robbery with aggravating circumstances
and they
were convicted as charged. Their convictionswere thus based on a
finding that the aggravating rcircumstances had been proved
beyond
reasonable doubt.
[40] In our view it is
thus clear that the phrase‘
or an accomplice’
in
para (b)of the definition of aggravating circumstances,creates strict
liability with respect to the offence
robbery with aggravating
circumstances
mentioned in that definition.This conclusionfollows
from an ordinary interpretation of the language used. It is also
supported
by the
dicta
of Holmes JA in the
Dhlamini
case which we quoted in para[30] above.In the case where the
perpetrator is liable because of the presence of aggravating
circumstances,
an accomplice to the robbery may also be convicted of
robbery with aggravating circumstances
even if he had no
dolus
(intention) with respect to the perpetration of the
aggravating circumstances. In the converse case, where the accomplice
is responsiblefor
the presence of aggravating circumstances, the
perpetrator of the robbery may be liable without any
dolus
on
his part with respect to the presence of such circumstances.
Contentions on
behalf of the Minister
[41] Counsel for the
Ministercontended that the definition of
robbery with aggravating
circumstances
does not create any strict liability. They
submitted that itis not a distinct offence, separate from the offence
of robbery. According
to this argument theaggravating circumstances
impact only on the
quantum
of sentence and do not enter into
the equation when the guilt of the accused in respect of the robbery
is determined.
[42] Thiscontention, in
our view, is in direct conflict with the statement of Cameron JA in
the
Legoa
judgement that ‘
the
question whether the robbery was committed with aggravating
circumstances had to be determined as part of the verdict - that
is,
as part of the court's finding on guilt or innocence in the first
stage.’
The contention on behalf of the
Minister is in substance similar to the conclusion of the court below
in the
Legoa
case which was rejected by Cameron JA.
[43] Counsel for the
Minister relied upon certain passages in earlier judgments in support
of the contention that the perpetration
of aggravating circumstances
does not constitute a separate offence and impacts only on sentence.
The first is in
R v Zonele and Others
1959 (3) SA 319
(AD) at
323A-C:
‘
If
'aggravating circumstances' are found to have been present, a person
who has been found guilty of either of these offences may
now be
sentenced to death. Although the presence of aggravating
circumstances affects sentence only, it is of great importance
that a
person charged with robbery or with housebreaking with intent to
commit an offence should be informed, in clear terms, that
the Crown
alleges and intends to prove that aggravating circumstances were
present.’
[44] In our view this
passage is not in conflict with Cameron JA’s analysisin
the
Legoa
judgment. Cameron JA, in para [9],in fact referred
with approval to the
Zonele
judgment in regard to the
secondary question that hedealt with, namely whether the charge sheet
should include a reference to the
elements of the specific form of
the offence with which the accused is to be charged. Cameron JA
quoted,
inter alia,
the following passage which appears at
323EF in the
Zonele
judgment. It is apparent from this
passagethat the two judgments are not inconsistent with each other.
It reads as follows:
‘
When an
accused pleads guilty to either of these charges, and it appears from
the indictment that the Crown intends to prove that
aggravating
circumstances were present, the presiding Judge will, of course,
satisfy himself that the accused intends to admit
not only that he is
guilty of the offence charged, but also that the aggravating
circumstances were present. Unless the facts alleged
to constitute
aggravating circumstances are formally admitted they must be proved,
and it is, naturally, essential that the exact
extent of the
admissions should be ascertained.’
[45] Counsel for the
Minister also sought to rely on the following passage in
S v Prins
en ’n Ander
1977 (3) SA 807
(AD) at816 AB:
‘
Dit is
nounodigomnategaanwatterrol die aanwesigheid van
verswarendeomstandighede by die aanklag van roof vervul. Sedert 1958
kan
'n beskuldigdewatskuldigbevind word aan roof, of 'n poging tot
roof, waarbyverswarendeomstandighedeaanwesig is kragtens art. 330(1)
van dieStrafproseswet, 56 van 1955, die doodvonnisopgelê word.
Roof met verswarendeomstandighede is nie 'n nuwemisdaadwatdeur
die
Wetgewergeskep is nie. Waar 'n beskuldigdeskuldigbevind word aan
roof, of poging tot roof, verleen art. 330 (1) aan die Verhoorregter
'n judisiëlediskresieom die doodvonnis op telê of
nieindienbevind word datverswarendeomstandighedeaanwesig is.’
[46] In our opinion
thepassage in the
Prins
judgment does not support
counsel’scontention. Read in context it is entirely consistent
with Cameron JA’s statement
in the
Legoa
judgment that
‘
the question
whether the robbery was committed with aggravating circumstances had
to be determined as part of the verdict - that
is, as part of the
court's finding on guilt or innocence in the first stage.’
[47] Counsel for the
Minister also referred to the judgment ofVan Winsen AJA in
R v
Jacobs
1961 (1) SA 475
(AD), in particular the following passage
at 484G -485A:
‘
The
extract from the summing up makes it clear that the learned Judge
equated the infliction of grievous bodily harm with an assault
with
the intent to inflict grievous bodily harm. The repeated reference in
such extract to the intention with which the accused
wielded the
knife, and attacked the deceased, shows that the learned Judge
intended to convey to the jury that in deciding whether
the Crown had
proved the infliction by the accused of grievous bodily harm upon the
deceased, they were entitled to have regard
to the intention
motivating the accused when he committed the assault. This, in my
view, constituted a misdirection on the law
to the jury. There is no
justification to be found in the words of sec. 1 (b) of Act 56 of
1955 for importing the intention of
the accused into the enquiry as
to whether it has been proved that he has inflicted grievous bodily
harm. The enquiry is an objective
oneand is directed towards
ascertaining whether bodily injury has been inflicted and whether it
is serious.’
[48] We agree thatVan
Winsen AJA’s approach amounts to an unequivocalaffirmation of
the concept of strict liability. It was,
however, delivered at a time
before there was, according to Snymanop cit246, a gradual shift away
from the interpretation of statutory
provisions in order to avoid
strict liability. It is interesting to note that only five years
later the same judge, Van Winsen
AJA, said the following in
S v
Arenstein
1967 (3) SA 366
(A) at 381D--E:
'In view of such general maxims as
nullapoena sine culpa and actus non facitreum nisi mens sit rea, the
Legislature, in the absence
of clear and convincing indications to
the contrary in the enactment in question, is presumed to have
intended that violations
of statutory prohibitions would not be
punishable in the absence of mensrea in some degree or other.' …’
[49] Be that as it may,
it seems to us thatthe
Jacobs
judgment is now of historic
interest only as an illustration of the gradual change in the courts’
attitude to the notion
of strict liability. In the present case it
has no relevance as it is the validity of the concept itselfthatis
being tested against
theConstitution.
[50] We conclude
therefore that the inclusion of the phrase‘
or an
accomplice’
in the definition of aggravating circumstances
in section 1 of the CPA,creates strict liability with respect to the
perpetration
of such circumstances which is a component of the
offence
robbery with aggravating circumstances.
As such the
phrase gives rise to a breach of section 12(1)(a) of the
Constitution.
The presumption of
innocence
[51] The
pro bono
counsel submitted that the impugned phrase also gives rise to an
infringement of the right contained in section 35(3)(h) of the
Constitution which reads as follows:
‘
(3) Every
accused person has a right to a fair trial, which includes the right-
… … …
(h) to be presumed innocent, to
remain silent, and not to testify during the proceedings.’
[52] Section 25(3)(c) of
the Interim Constitution contained a similarly worded provision. So
does section 11(d) ofthe Canadian Charter
of Rights. A classic
formulation of the presumption of innocence is found in
R
v Oakes
1986
CanLII 46
(SCC); 26 DLR (4th) 200; 24 CCC (3d) 321para 29:
‘
29. The
presumption of innocence is a hallowed principle lying at the very
heart of criminal law. Although protected expressly in
s.
11
(d) of the
Charter
,
the presumption of innocence is referable and integral to the general
protection of life, liberty and security of the person contained
in
s.
7
of the
Charter
(see Re B.C. Motor Vehicle Act,
1985
CanLII 81
(SCC)
,
[1985] 2 S.C.R. 486
, per Lamer J.) The
presumption of innocence protects the fundamental liberty and human
dignity of any and every person accused
by the State of criminal
conduct. An individual charged with a criminal offence faces grave
social and personal consequences, including
potential loss of
physical liberty, subjection to social stigma and ostracism from the
community, as well as other social, psychological
and economic harms.
In light of the gravity of these consequences, the presumption of
innocence is crucial. It ensures that until
the State proves an
accused's guilt beyond all reasonable doubt, he or she is innocent.
This is essential in a society committed
to fairness and social
justice. The presumption of innocence confirms our faith in
humankind; it reflects our belief that individuals
are decent and
law abiding members of the community until proven otherwise.’
[53] In
S v Coetzee
and Others supra
O’Regan J also discussed the presumption of
innocence. She said the following, in paras [187] and [189]:
‘
[187] In
a series of cases, this Court has held that, where a legislative
provision imposes an obligation upon an accused to establish
certain
facts to avoid criminal liability, it constitutes a breach of the
presumption of innocence as enshrined in s 25(3)(c).
… … …
[189] We have stated on several
occasions that the nub of the protection provided by s 25(3)(c) is to
ensure that people are not
convicted of an offence where a reasonable
doubt exists as to their guilt. Guilt is only established when it is
clear that the
accused has no defence and that all the elements of
the particular crime have been established. If an accused person can
be convicted
despite the existence of a reasonable doubt either in
relation to one of the elements of the offence or one of the elements
of
a defence and a court is compelled to convict because of a reverse
onus provision, the presumption of innocence is breached..’
[54] In the light of
these authorities we hold that the inclusion of the phrase ‘
or
an accomplice’
in the definition of aggravating
circumstances in section 1 of the CPA, amounts to a breach of the
presumption of innocenceand thus
gives rise to an infringement of the
right contained in section 35(3)(h) of the Constitution.
The limitation of
rights provision
[55] It remains to
consider the limitation of rights provision which is contained in
section 36 of the Constitution. Itreads as
follows:
‘
36
Limitation of rights
(1) The rights in the Bill of
Rights may be limited only in terms of law of general application to
the extent that the limitation
is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account
all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose
of the limitation;
(c) the nature and extent of the
limitation;
(d) the relation between the
limitation and its purpose; and
(e) less restrictive means to
achieve the purpose.
(2) Except as provided in
subsection (1) or in any other provision of the Constitution, no law
may limit any right entrenched in
the Bill of Rights.’
[56] In
S v Bhulwana;
S v Gwadiso
1996 (1) SA 388 (CC)
paras [17] and [18]
O’Regan
J summarised the effect of the similarly worded provision (section
33)of the Interim Constitution as follows:
‘
In S v
Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995
(6) BCLR 665) at para [104] Chaskalson P held that s 33
required a
proportionality assessment:
'In the balancing
process, the relevant considerations will include the nature of the
right that is limited, and its importance
to an open and democratic
society based on freedom and equality; the purpose for which the
right is limited and the importance
of that purpose to such society;
the extent of the limitation, its efficacy, and particularly where
the limitation has to be necessary,
whether the desired ends could
reasonably be achieved through other means less damaging to the right
in question.'
(See also S v Williams
and Others 1995 (3) SA 632 (CC) (1995 (2) SACR 251; 1995 (7) BCLR
861) at paras [58]-[60].)
[18] In sum, therefore, the Court
places the purpose, effects and importance of the infringing
legislation on one side of the scales
and the nature and effect of
the infringement caused by the legislation on the other. The more
substantial the inroad into fundamental
rights, the more persuasive
the grounds of justification must be’.
[57] In
S v Manamela
2000 (3) SA 1 (CC) para [42] the test was formulated in the following
terms:
‘
It should
be noted that the five factors expressly itemised in s 36 are not
presented as an exhaustive list. They are included in
the section as
key factors that have to be considered in an overall assessment as to
whether or not the limitation is reasonable
and justifiable in an
open and democratic society. In essence, the Court must engage in a
balancing exercise and arrive at a global
judgment on proportionality
and not adhere mechanically to a sequential check-list. As a general
rule, the more serious the impact
of the measure on the right, the
more persuasive or compelling the justification must be. Ultimately,
the question is one of degree
to be assessed in the concrete
legislative and social setting of the measure, paying due regard to
the means which are realistically
available in our country at this
stage, but without losing sight of the ultimate values to be
protected.’
[58] Counsel for the
Minister argued in this regard that the high rate of crimein this
country justifies a measure of this nature.
We do not agree.
Dolus
(intention) is an element of all serious crimes in this country and,
so it would appear, in comparable jurisdictions. There does
not
appear to be any logical or practical reason for treating the offence
of
robbery with aggravating circumstances
differently. The
measure in question, moreover,was introduced at a time when it was
not unusual for the legislature to create andfor
the courts to
enforce offences with strict liability. It has now become an anomaly.
[59] Applying the
limitation test to the facts of the present case we are of the view
that the nature and extent of the infringement
of rights outweigh the
purpose, effects and importance of the statutory provision in
question. The validity of the impugned phrase
is therefore not saved
by the provisions of section 36 of the Constitution.
Conclusion
[60] We are accordingly
of the opinion that the inclusion of the phrase ‘
or an
accomplice’
in the definition of aggravating circumstances
in section 1(1)(b) of the CPAis inconsistent with the Constitution
and therefore
invalid.
[61] In order to limit
the retrospective effect of a declaration to that effect, we are of
view that it would be appropriate to
make an order in similar terms
to the order made in
S v Bhulwana; S v Gwadiso
1996 (1) SA 388
(CC) at 400CD, namely that the declaration of invalidity shall
invalidate the application of the phrase ‘
or an accomplice’
in the definition of aggravating circumstances in section 1(1)(b)
of the CPAin 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 the order, either an appeal or review
is
pending or the time for the noting of an appeal has not yet expired.
[62] In the result, we
make the following orders:
(1) It is declared that
the phrase ‘
or an accomplice’
in the definition of
aggravating circumstances in
section 1(1)(b)
of the
Criminal
Procedure Act 51 of 1977
, is inconsistent with the Constitution of
the Republic of South Africa Act 108 of 1996 and therefore invalid.
(2) The declaration of
invalidity set forth in para(1) above, shall invalidate the
application of the phrase ‘
or an accomplice’
in
the definition of aggravating circumstances in
section 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 of the
Republic of South Africa
Act 108 of 1996 came into force, and in
which, as at the date of this order, either an appeal 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 section 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
decision of the Constitutional Court with respect to the orders set
forth in paras (1) and (2) above.
_________________
A P BLIGNAULT
_________________
W H VAN STADEN
Appearing for first appellant : Adv Y Rayap
Instructed by : Legal Aid South Africa
Appearing for Respondent : Adv M Baliwe
Appearing Pro Bono : Adv J de V van Niekerk
Adv A du Toit
Appearing for the Minister : Adv A la Grange SC
Instructed by : Director of Public Prosecutions
Date of hearing : 30 November 2012
22 February 2013
Date of Judgment : 20 March 2013