On 27 August 2013 the Constitutional Court will hear an application for leave to appeal by the Minister of Justice and Constitutional Development (Minister) and the National Director of Public Prosecutions against a decision of the Western Cape High Court (High Court), which held that part of section 1(1)(b) of the Criminal Procedure Act 51 of 1977 was constitutionally invalid.
The respondents were convicted by a Magistrate’s Court of participating in robbery with “aggravating circumstances”. The respondents appealed to the High Court, arguing that the conviction of accomplices to robbery with aggravating circumstances, in the absence of proof of their 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 High Court held further that this offence therefore violated the constitutional right not to be deprived of freedom arbitrarily (section 12), and the presumption of innocence (section 35). 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 coupled with the objective existence of aggravating circumstances.
The Minister argues that this level of fault satisfies constitutional requirements. The respondents maintain it is a constitutional requirement that the State must prove the subjective intent behind each element of a crime in order to secure conviction, including in aggravating circumstances, as in this case.
