THE prescribed minimum sentence for robbery with aggravating circumstances is a rational means to confronting violent crime, the Constitutional Court held on Thursday.
The court refused to confirm an order of constitutional invalidity made by the Western Cape High Court regarding a section of the Criminal Procedure Act that attracts a heavy sentence on conviction.
The prescribed minimum sentences range from 15-25 years.
In March, the high court found that section 1(1)(b) of the act creates strict liability, or liability without fault, for people convicted of being an accomplice to a robbery with aggravating circumstances, and was thus unconstitutional. The section states that aggravating circumstances in relation to robbery means the wielding of a dangerous weapon by the offender "or an accomplice" when the offence is committed, whether before, during or after the commission of the offence.
The Criminal Law Amendment Act of 1997 requires courts to impose a minimum sentence on a person convicted of robbery with aggravating circumstances, unless compelling circumstances justify a lesser sentence. In this case, the high court was approached by four people who were appealing against their convictions and sentences for robbery with aggravating circumstances.
Two of those convicted, Mzonke Mlindalazwe and Sithembile Govuza, had robbed a shop owner in Cape Town in October 2009 by threatening her with a knife. Nontombi Masingili acted as a scout and Siyabulela Volo waited in the car and drove the three away from the shop after the robbery. The high court found that the convictions of Mlindalazwe and Govuza were in order, but it was not sure about the conviction of Masingili and Volo.
Mlindalazwe and Govuza were sentenced each to 10 years’ imprisonment, of which two years were conditionally suspended for five years.
The court reasoned that while Masingili and Volo were guilty as accomplices to robbery, it was not clear whether they were guilty as accomplices to robbery with aggravating circumstances.
The high court declared that the phrase "or an accomplice" in the definition of "aggravating circumstances" in the act was inconsistent with the constitution.
The Constitutional Court, in a judgment written by Justice Johann van der Westhuizen, said that, in order to be convicted of robbery with aggravating circumstances, intent for the unlawful and violent taking of another property must be proved.
The court remitted the matter to the high court to finalise the appeal by Masingili and Volo.