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South Africa: Constitutional Court Upholds Mandatory Minimum Sentence Rule for Accomplices in Armed Robberies

(Dec. 31, 2013) On November 28, 2013, the Constitutional Court of South Africa, the court of last resort on all constitutional issues, overturned a decision of the Western Cape High Court and upheld as constitutional a provision in the Criminal Procedure Act No. 51 of 1977 that makes an accomplice to robbery with aggravating circumstances (armed robbery) guilty of the same offense regardless of intent as to the aggravating circumstances. (Ernest Mabuz, Constitutional Court Confirms Minimum Sentence for Aggravated Robbery, BUSINESS DAY (Nov. 29, 2013).) For any order of the Supreme Court of Appeal or a High Court declaring unconstitutional any act of Parliament, provincial act, or conduct of the President to take effect, the order must first be confirmed by the Constitutional Court. (Constitution of the Republic of South Africa, 1996, § 167, South African Government Information portal.)


The Criminal Procedure Act provides a definition of “aggravating circumstances” of robbery, a common-law offense. Under this law, aggravating circumstances in relation to robbery or attempted robbery include, among other actions, “the wielding of a fire-arm or any other dangerous weapon … by the offender or an accomplice on the occasion when the offence was committed, whether before or during or after the commission of the offence.” (Criminal Procedure Act 51 of 1977 (as last amended 2010), § 1(b), Department of Justice and Constitutional Development website (DOJ &CD.)

The Criminal Law Amendment Act (also known as the Minimum Sentencing Act) imposes a mandatory minimum sentence of 15 years of imprisonment for a first time offender convicted of robbery with aggravating circumstances, unless the court “is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence ….” (Criminal Law Amendment Act 105 of 1997 (as last amended 2008), § 51(3), DOJ &CD website.)

Magistrate’s Court

The case in question was first tried before the Cape Town Regional Magistrate’s Court and involved four individuals brought to trial on charges of armed robbery of a shop owner while wielding a knife. (Minister of Justice and Constitutional Development and Another v Masingili and Others (CCT 44/13) [2013] ZACC 41 (Nov. 28, 2013), at 6, SAFLII.) The four individuals had different roles in the alleged crime: while two actually went into the shop, the other two (Ms. Nantombi Masingili and Mr. Siyabulela Volo) remained outside, where one was a lookout and the other drove the getaway car. (Id.) The Magistrate’s Court convicted all four as charged. (Masingili and Others v S (A448/12) [2013] ZAWCHC 59: 2013 (2) SACR 67 (WCC) (Mar. 20, 2013), at 1,SAFLII.)

The Magistrate’s Court imposed lesser sentences on all four defendants than what is prescribed by the Minimum Sentencing Act. Masingili was sentenced to an eight-year prison term, of which two years were conditionally suspended for five years; the other culprits, including Volo, were sentenced to ten years of imprisonment, of which two years were conditionally suspended for five years. (Id. at 3.)

Western Cape High Court

On appeal, the Western Cape High Court found unconstitutional section 1 of the Criminal Procedure Act, specifically the phrase, “or an accomplice.” All four individuals had appealed to the High Court against both the convictions and the sentences. While the High Court confirmed the sentence of the two individuals who entered the shop, it disagreed with the lower court’s decision regarding Masingili and Volo. (Id. at 5.) The High Court noted that the crime of robbery with aggravating circumstances includes two components: robbery and the presence of one or more aggravating circumstances. (Id. at 9.) It found that although both Masingili and Volo were guilty as accomplices to robbery, their being guilty of robbery with aggravated circumstance was not established. (Minister of Justice and Constitutional Development and Another v Masingili and Others, supra, at 8.)

The Court held that by lumping together both components of the offense when a person guilty of robbery is also convicted of robbery with aggravated circumstances if such circumstances are present, regardless of whether the person had the requisite intent for the crime and without meeting the required standard of proof (beyond reasonable doubt), section 1 of the Criminal Procedure Act creates strict liability for the crime of robbery with aggravated circumstances. (Masingili and Others v S, supra, at 50 & 54.) Therefore, the Court opined, the lower court’s decision violated sections 12 (including the right not to be detained without a trial) and 35 (including the right to be presumed innocent) of the South African Constitution. (Id.)

Constitutional Court

On appeal, the Constitutional Court found that none of the constitutional provisions were violated and declined to confirm the High Court’s decision. The Court found that robbery with aggravated circumstances is not a separate criminal offense, stating “[r]obbery with aggravating circumstances is a form of robbery with more serious consequences for sentencing. … This distinctive form of robbery is not to be confused with a completely different offence .…” (Minister of Justice and Constitutional Development and Another v Masingili and Others, supra, at 33.) Proving all the elements of robbery is sufficient to convict on the charge of armed robbery, the Court noted, therefore proving intent regarding circumstances is unnecessary. (Id. at 34.)

Nevertheless, the Court further noted, the absence of intent with regard to aggravated circumstances may form a basis for imposing a lighter sentence than the mandatory minimum sentence prescribed. However, even if a lack of intent regarding aggravated circumstances does not result in a lighter sentence, it still would not violate the constitutional provisions in question, the Court held. (Id. at 59.)