CCT44/13

[2013] ZACC 41

2014 (1) BCLR 101 (CC)

2014 (1) SACR 437 (CC)

Van Der Westhuizen J

28 November 2013

http://hdl.handle.net/20.500.12144/3714

Application for confirmation of an order of invalidity made by the Western Cape High Court: Masingili and Others v S (A448/12) [2013] ZAWCHC 59; 2013 (2) SACR 67 (WCC) (20 March 2013)

Application for confirmation of an order declaring section 1(1)(b) of the Criminal Procedure Act 51 of 1997 constitutionally invalid. The Western Cape High Court held that the section entailed that a person can be convicted of robbery with aggravating circumstances without having specific foresight of those circumstances, thereby triggering statutory minimum sentences. The High Court held that this infringed the right not to be deprived of freedom arbitrarily or without just cause under section 12 of the Constitution and the right to be presumed innocent under section 35. The Court held that robbery with aggravating circumstances is not a separate criminal offence, distinct from robbery. Further, section 1(1)(b) of the Criminal Procedure Act does not infringe the right not to be deprived of freedom arbitrarily because (a) an accused will be aware that aggravating circumstances may be taken into account in sentencing; (b) the purpose of statutory minimum sentences is rational and not arbitrary; and (c) the accused must still have criminal intent for robbery, which is an inherently violent crime. It also does not infringe the right to be presumed innocent, as the prosecution must prove the elements of robbery and the existence of aggravating circumstances. The Court declined to confirm the order of invalidity. Judgment: Van der Westhuizen J (unanimous).