By Sarah McGibbon and Duncan Wild on 28 November 2013

This case appears before the Constitutional Court by way of confirmation proceedings in terms of section 172(2) of the Constitution, following Blignaut J and Van Staden AJ of the Western Cape High Court (“WCHC“) declaring section 1(1)(b) of the Criminal Procedure Act 51 of 1977 (“the impugned provision“) (which sets out the definition of aggravating circumstances in the context of robbery with aggravating circumstances) unconstitutional.

The Constitutional Court, in an unanimous judgment authored by Justice Van der Westhuizen (Chief Justice Mogoeng, Deputy Chief Justice Moseneke, and Justices Cameron, Froneman, Jafta, Madlanga, Nkabinde, Skweyiya and Zondo, as well as Acting Justice Mhlantla concurred) refused to confirm the High Court’s declaration. 

In October 2009, the four applicants robbed a store in Cape Town by threatening the complainant with a knife.  It emerged from the evidence that the four applicants acted in concert to commit the robbery: the first applicant inspected the premises and then returned to the getaway car; the second applicant was the driver of the getaway car (he remained in the car for the duration of the robbery); and the third and fourth applicants robbed the complainant.

In the regional court all the applicants were convicted on a charge of robbery with aggravating circumstances, and each received a different sentence.  The applicants appealed to the WCHC against their convictions and sentences.  The WCHC confirmed the convictions of the third and fourth applicants, however, the hearing of the first and second applicants’ appeals have been postponed pending the outcome of the Constitutional Court hearing due to the finding of constitutional invalidity.

The WCHC found that although the third and fourth applicants were guilty as accomplices to the robbery, the State did not appear to have proved intention with regards to the aggravating circumstances.  The question that arose from this finding is whether the definition of aggravating circumstances creates strict liability (ie liability without intention or negligence) in respect of the crime of robbery with aggravating circumstances, in which case it may infringe on the following sections in the Constitution: section 12(1)(a) (“right to freedom and security of person“) and section 35(3)(h) (“the presumption of innocence“).

An accomplice is legally 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 a crime by someone else.  The court approached the offence in question from the starting point that it is comprised of two separate elements: (i) robbery, and (ii) aggravating circumstances.

In examining the relationship between the impugned provision and the right to freedom and security of person, the court relied on the case of S v Coetzee and Others 1997 (3) SA 527 CC in which O’Regan J set out the attitude of the courts to strict liability.  This was considered in conjunction with the question of whether the offence of robbery with aggravating circumstances creates strict liability on the part of an accomplice or perpetrator who has intention with respect to the robbery, but who does not have intention with respect to the perpetration of the aggravating circumstances.  In order to answer this question, the WCHC placed heavy reliance on Cameron JA’s judgment is S v Legoa 2003 (1) SACR 13 (SCA).

The WCHC accepted the conclusion in the Legoa case that the question of whether a robbery was committed with aggravating circumstances had to be determined as part of the verdict and not as part of the sentencing.  In light of this, the WCHC held that it is incumbent on the State to prove the perpetration of the aggravating circumstances during the stage of the trial culminating in the verdict, and not during sentencing, in addition to the perpetration of the robbery.

The WCHC further held that the phrase “or an accomplice” in the impugned provision does create strict liability with respect to the offence of robbery with aggravating circumstances.  This means that in the case where a 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/she had no intention in that regard, and vice versa.  It was therefore held that the impugned provision infringes the right to freedom and security of person.

After briefly consulting further authorities, the WCHC further held that the inclusion of the phrase “or an accomplice” in the impugned provision infringes the presumption of innocence.

Once it had conducted a section 36 limitation analysis, the WCHC found that the infringement of the rights outweigh the purpose, effects and importance of the impugned provision and, therefore, the infringements were not justifiable.

The WCHC declared section 1(1)(b) of the Criminal Procedure Act to be constitutionally invalid in light of the reasons set out above.

The Constitutional Court disagreed with the findings of the WCHC for several reasons. Primarily the Court noted that robbery with aggravating circumstances is not a crime separate from robbery. The accused must still have criminal intent for robbery (itself a violent crime), and and whether the accused intended the aggravating circumstances will be relevant to sentencing. Importantly, the Court held that “a person imprisoned 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”.

In addition, the purpose of the statutory minimum sentences, to confront violent crime, is rational, and the accused may still show “substantial and compelling reasons” why the minimum sentence should not apply to him or her.

The section of the Criminal Procedure Act, in light of the above, does not amount to the deprivation of freedom “arbitrarily or without just cause”. The Constitutional Court therefore refused to confirm the finding of the WCHC and found that the appeal succeeded.  The matter was remitted to the WCHC to finalise the appeal of the by the respondents who were the accused in the criminal trial.

Download the judgment here.