Masingili and Others v S (A448/12) [2013] ZAWCHC 59; 2013 (2) SACR 67 (WCC) (20 March 2013)

Masingili and Others v S (A448/12) [2013] ZAWCHC 59; 2013 (2) SACR 67 (WCC) (20 March 2013)

The court held 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 creates strict liability, allowing for conviction of accomplices to robbery with aggravating circumstances without proof of intention regarding the aggravating circumstances. This breaches section 12(1)(a) of the Constitution, which prohibits deprivation of liberty without just cause, and section 35(3)(h), which guarantees the presumption of innocence. The limitation clause in section 36 does not save the provision, as the infringement of fundamental rights outweighs the statutory purpose. The phrase is therefore declared inconsistent...

Citation
[2013] ZAWCHC 59
Parties
Appellant: Nantombi Masingili; Appellant: Siyabulela Volo; Appellant: Mzonke Mlindalae; Appellant: Sithumbele Govuza; Respondent: The State; Respondent: Minister of Justice and Constitutional Development
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
20 March 2013
Case Number
A448/12
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence; Constitutional Challenge Heard
Outcome
The phrase 'or an accomplice' in section 1(1)(b) of the Criminal Procedure Act 51 of 1977 is declared inconsistent with the Constitution and invalid. The declaration of invalidity is referred to the Constitutional Court for confirmation. The hearing of the appeals is postponed sine die pending the Constitutional...
Judges
Blignault, Van Staden
Legal Topics
Aggravating Circumstances, Strict Liability, Presumption of Innocence, Bill of Rights Limitation, Criminal Procedure Act, Constitutional Invalidity
Criminal Law Constitutional Law Aggravating Circumstances Strict Liability Presumption of Innocence Bill of Rights Limitation Criminal Procedure Act Constitutional Invalidity

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Parties

Nantombi Masingili

Appellant

Siyabulela Volo

Appellant

Mzonke Mlindalae

Appellant

Sithumbele Govuza

Appellant

The State

Respondent

Minister of Justice and Constitutional Development

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence; Constitutional Challenge Heard

Legal Issues

  1. 1 Whether the phrase 'or an accomplice' in the definition of aggravating circumstances in section 1(1)(b) of the Criminal Procedure Act 51 of 1977 creates strict liability for accomplices to robbery with aggravating circumstances.
  2. 2 Whether such strict liability is consistent with section 12(1)(a) (freedom and security of the person) and section 35(3)(h) (presumption of innocence) of the Constitution.
  3. 3 Whether the limitation of rights provision in section 36 of the Constitution saves the impugned phrase from invalidity.

Ratio Decidendi

The court held 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 creates strict liability, allowing for conviction of accomplices to robbery with aggravating circumstances without proof of intention regarding the aggravating circumstances. This breaches section 12(1)(a) of the Constitution, which prohibits deprivation of liberty without just cause, and section 35(3)(h), which guarantees the presumption of innocence. The limitation clause in section 36 does not save the provision, as the infringement of fundamental rights outweighs the statutory purpose. The phrase is therefore declared inconsistent...

Court Disposition

The phrase 'or an accomplice' in section 1(1)(b) of the Criminal Procedure Act 51 of 1977 is declared inconsistent with the Constitution and invalid. The declaration of invalidity is referred to the Constitutional Court for confirmation. The hearing of the appeals is postponed sine die pending the Constitutional...

Orders

  • 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 and invalid.
  • The declaration of invalidity shall invalidate the application of the phrase 'or an accomplice' in any criminal trial where the verdict was entered after the Constitution came into force and where appeal or review is pending or the time for noting appeal has not expired.