On August 27, the Constitutional Court heard an application by the minister of justice and the national director of public prosecutions for leave to appeal against a decision by the Western Cape High Court.
That court held that part of section 1(1)(b) of the Criminal Procedure Act was constitutionally invalid.
A magistrate’s court had convicted the respondents [Nontambi Masingili and others] of participating in robbery with aggravating circumstances, and the respondents appealed to the high court.
They argued that the conviction of accomplices in a robbery with “aggravating circumstances” without proof of them having intended those aggravating circumstances, was unconstitutional.
The high court found that under current criminal law, liability for robbery with aggravating circumstances could indeed be imposed on an accomplice in the absence of proof of intent for aggravating circumstances.
The court held that the offence violated the constitutional right not to be deprived of freedom arbitrarily, and the presumption of innocence.
In the Constitutional Court, the minister argues that there is no imprisonment without fault under this offence because the State must prove the subjective existence of intent for robbery and the existence of aggravating circumstances.
The minister contends that this level of fault satisfies constitutional requirements.
The respondents argue that it is a constitutional requirement that the State prove the subjective intent behind each element of a crime in order to secure conviction, including aggravating circumstances.