Du Plessis v S (GJ) (unreported case no A101/2021, 28-2-2022) (Vally J and Wilson AJ)

By Paseka Temeki

Does attempted robbery with aggravating circumstances attract a minimum sentence within the ambit of s 51(2)(a) and part II of sch 2 of the Criminal Law Amendment Act 105 of 1997 (Minimum Sentences Act)?

In Bhola and Others v S (SCA) (unreported case no 800/18; 123/2018; 346/18, 21-9-2018) (Shongwe ADP, Majiedt, Van der Merwe, Molemela and Makgoka JJA) it was held that trial court’s application of provisions of s 51(2) of the Criminal Law Amendment Act to attempted robbery with aggravating circumstances constitutes a misdirection. The facts were briefly that the applicants attempted to rob a store but fled empty handed. The trial court found them guilty of attempted robbery with aggravating circumstances sentenced them to 15 years’ imprisonment in accordance with the minimum sentence.

The appellants unsuccessfully applied for leave to appeal against their convictions and sentences. Subsequently the Gauteng Division of the High Court granted them special leave to appeal the sentence and determination whether the sentences imposed were appropriate.

The question is whether the offence of attempted robbery with aggravating circumstances attracts a minimum sentence within the ambit of the Minimum Sentences Act. I submit with respect that the answer lies within s 1 of the Criminal Procedure Act 51 of 1977 (CPA), which provides inter alia, as follows,

‘In this Act, unless the context otherwise indicates –

“aggravating circumstances”, in relation to –

…

(b) robbery or attempted robbery, means – …’.

I submit with respect that s 1 of the CPA is unmistakable that attempted robbery attracts the mandatory sentence. The language used in that provision is not capable of any other interpretation. It does not make sense that a mere wielding of a firearm could attract a minimum sentence while the actual infliction of such harm with possibility of life-threatening act could not, simply because it amounted to ‘attempted’ robbery with aggravating circumstances. It was not the intention of the legislatures that attempted robbery would have been included if that was not their intention.

The notion held by Bhola that attempted robbery with aggravating circumstances does not attract a minimum sentence is misdirected. I submit that the court in Bhola did not give any consideration to s 1 of the CPA. This case serves as a vivid illustration of the miscarriage of justice which may occur due to this lacuna in the statute. I submit that it does not amount to miscarriage of justice regarding application of the minimum sentence to attempted robbery with aggravating circumstances as the answer to minimum sentence lies within the s 1 of the CPA, which clearly defines what amounts to aggravating circumstances.

Bhola went on to refer to S v Qwabe 2012 (1) SACR 347 (WCC). My submission is that the answer to the question whether attempted robbery attracts a minimum sentence was partially provided for Qwabe at para 23. I respectfully submit that ‘attempted robbery’ is not mentioned in S v Qwabe not because it is not applicable but because the case law was concerned with the principle within the meaning of only ‘robbery’. My emphasis is that it was not because ‘attempted robbery’ is not applicable to the meaning of what constitutes aggravating circumstance. The answer to what constitutes aggravating robbery was lying right under their nose. It is therefore my submission that Bhola did not look at what constitutes the meaning of aggravating robbery. The court misdirected itself by reference to Qwabe. It failed to take cognisance of what it meant by aggravating robbery within s 1 of the CPA.

In relation to sentencing, I agree with the counsel for the appellants. The dictum makes it plain that, in circumstances where an attempt to commit a particular offence is not specified in the Minimum Sentences Act but the completed offence is, nothing precludes a court convicting an offender of the failed attempt from. In such cases, the court within its sentencing discretion and in appropriate circumstances, may impose the same sentence it would have been entitled to impose in respect of the specified completed offence. I am, however, not in agreement that the minimum sentence does not apply with regard to attempted robbery.

The definition of what constitutes ‘aggravating robbery’ in SE van der Merwe (ed) Commentary on the Criminal Procedure Act (Du Toit) (Cape Town: Juta 2021) has been quoted above. Notes with reference to s 1 of CPA is made in the commentary on DEF 6 [Service 58, 2018] wherein it stated that what follows below must be read subject to Minister of Justice and Constitutional Development and Another v Masingili and Another 2014 (1) SACR 437 (CC) wherein a discussion was held of whether the phrase ‘or an accomplice’ in s 1(1)(b) of CPA is constitutional or not. My submission is that the definition of aggravating circumstances was already acknowledged within the definition as provided for in s 1 of the CPA in S v Masingili and Other 2013 (2) SACR 67 (WCC) at para 2. The commentary acknowledges that aggravating circumstances for purpose of sentence are limited to only one, namely robbery or attempted robbery (s 1(1)). Further commentary notes DEF 8 [Service 63, 2019] acknowledges that robbery or attempted robbery with aggravating circumstances (as defined in s 1 of the Act) is not a separate category of statutory offence.

I maintain that the decision arrived at on appeal by Vally J and Wilson AJ in the High Court in the matter of Dirk Du Plessis (the applicant) is misguided.

Paseka Temeki BIuris (Univen) is a prosecutor in the National Prosecuting Authority at the Roodepoort Magistrate’s Court and has served in the Serious Commercial Crime Unit.  

This article was first published in De Rebus in 2025 (May) DR 51.