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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT44/13
In the matter between:
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT First Appellant NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Appellant and
NONTOMBI MASINGILI First Respondent
SIYABULELA VOLO Second Respondent
MZONKE MLINDALAZWE Third Respondent
SITHUMBELE GOVUZA Fourth Respondent
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FIRST RESPONDENT’S PRACTICE NOTE
Nature of proceedings:
1. This is an appeal by the Minister of Justice and Constitutional
Development and the National Director of Public Prosecutions against
the judgement and order of the Western Cape High Court , Cape Town ,
on 20 March 2013.
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The said Court declared the phrase ‘or an accomplice’ in the definition of aggravating circumstances in section 1(1)(b) of the Criminal Procedure Act 51 of 1977 to be inconsistent with the Constitution and invalid.
The issues that will be argued
2. It will be submitted on behalf of the first respondent that the phrase ‘or
an accomplice’ in section 1(1)(b) of the Criminal Procedure Act 51 of
1977:
2.1 does create strict liability without fault;
2.2 does violate section 12(1)(a) of the Constitution;
2.3 does violate section 35(3)(h) of the Constitution;
2.4 The violation of section 12(1)(a) of the Constitution is not justifiable in
an open and democratic society;
2.5 The violation of sections 35(3)(h) of the Constitution is not justifiable in
an open and democratic society;
2.6 If indeed a constitutional defect, reading in will not remedy;
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2.7 any declaration of invalidity should be retrospective until the advent of
the Constitution;
Portions of the record that are relevant
3. Volume 1 Page 3 [charge sheet]
Volume 1 Pages 23-28 [Exhibit A]
Volume 1 Pages 50-54 [First Respondent’s Affidavit]
Volume 4 Pages 231-255 Volume 5 Pages 278-285 Volume 6 Pages 1-33
Estimation of the duration of oral argument 4. The case can be fully argued in one day.
Summary of the argument
5. The phrase ‘or an accomplice’ in the Section 1(1)(b) of the Criminal
Procedure Act 51 of 1977 creates strict liability for an accomplice.
That the inclusion of this phrase is inconsistent with the Constitution and therefore invalid. It will be argued that it amounts to a breach of the presumption of innocence and section 12(1)a of the Constitution. These breaches cannot be saved by the provisions of Section 36 of the
Constitution. The High Court was accurate in its interpretation of strict liability and correctly analysed the elements of constitutional rights in question.
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Authorities of which the first respondent will place reliance 6. S v Malinga 1963 (1) SA 692 (A) 694 F-H
7. S v Ngubane 1985 (3) SA 677 (A) 8. R v Sisilane 1959 (2) SA 448 (AD)
9. S v Coetzee and Others 1997 (3)SA 527 (CC) 10.S v Legoa 2003 (1) SACR 13 (SCA)
11. S v Isaacs and Another 2007 (1) SACR 43 © 12.S v Mokela 2012 (1)SACR 431 (SCA)
13. S v Arenstein 1967 (3) SA 366 (A) 381 D-E 14.R vs Jacobs 1961 (1) SA 475 AD 484
DATED AT CAPE TOWN this 11th day of July 2013
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ADV. A PARIES
COUNSEL FOR FIRST RESPONDENT CHAMBERS
CAPE TOWN Per: MZ ISMAIL
Attorney for first Respondent
ISMAIL AND BADRUDEEN ATTORNEYS 101, 1ST FLOOR BENZAL HOUSE
3 BARRACK STREET CAPE TOWN
(FAX NO: 021 461 2786) ([email protected])
