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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT 44/13
Western Cape HC Case No: A448/12
In the matter between:
MINISTER OF JUSTICE AND CONSTITUTIONAL First Appellant DEVELOPMENT
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Appellant
and
NANTOMBI MASINGILI First Respondent SIYABULELA VOLO Second Respondent MZONKE MLINDALAE Third Respondent SITHUMBELE GOVUZA Fourth Respondent
Second to Fourth Respondents’ Practice Note
Nature of the proceedings
1. This confirmation hearing to confirm the order of constitutional invalidity in regards s 1 of the Criminal Procedure Act 51 of 1977.
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The issues
2. Whether the inclusion of the phrase “or an accomplice” in the definition of robbery with aggravating circumstances as set out in s 1(1)(b) of the Criminal Procedure Act 51 of 1977 creates strict liability which violates both s 12(1)(a) and 35(3)(h) of the Constitution.
Relevant portions of the record 3. Volume 4 p 231-255
Volume 6 p 4-31
The remaining volumes are not relevant unless referred to in the Heads of Argument.
Estimated duration
4. The matter can be fully argued in one day.
Summary of argument
5. The phrase “or an accomplice” creates strict liability for an accomplice proper. Once the definitional elements of robbery are proven, the enquiry as to the culpability of an accomplice comes to an end. Objectively if aggravating circumstances are found to be present culpability becomes irrelevant. This affronts both the right to security and freedom of a person as well as the presumption of innocence. Which infringement cannot be justified in terms of s 36 of the Constitution.
Key authorities
6. S v Coetzee and Others 1997(1) SACR 379 (CC) 7. S v Williams 1980(1) SA 60 (A)
8. S v Dhlamini and Another 1974(1) SA 90 (A) 9. R v Sisilane 1959(2) SA 448 (AD)
10. S v Legoa 2003(1) SACR 12 (SCA) 11. S v Mokela 2012(1) SACR 431 (SCA)
12. S v Isaacs and Another 2007(1) SACR 43 (C) 13. S v Bhulwana; S v Gwadiso 1996(1) SA 388 (CC)
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M Calitz
Counsel for Second to Fourth Respondents Legal Aid SA
