Deidre Joubert, Vaal University of Technology, South Africaopenaccesslibrary.org/images/PRV201_Deidre_Joubert.pdf · The first question, as has already been said, is whether the crime

International Journal of Arts and Sciences 3(15): 128 - 154 (2010)

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The Crime of Robbery in South African Law Deidre Joubert, Vaal University of Technology, South Africa Abstract: This paper is a result of a critical consideration of the crime of robbery as defined in South African law. The historical origin and development of the crime was investigated. The development of the crime of robbery in South African law and the current law relating to robbery were researched. Sentencing for the crime of robbery in South African law is discussed and relevant aspects relating to criminal procedure were identified. The constitutionality of the crime was also analysed. The crime of robbery as defined in the jurisdictions of England, Canada and Germany were subsequently considered on a legal-comparative basis.

The study demonstrates that the crime of robbery still warrants a separate existence in South African law. However, certain problem areas relating to the ambit of the crime are identified. One of these problem areas is so-called “bag-snatching” where South African courts have applied the elements of the crime arbitrarily, resulting in legal uncertainty.

The conclusion reached is that the law relating to robbery is in need of reform. The crime situation in South Africa today, and the increase in violent crime, including robbery, make the broadening of the ambit of the common-law crime advisable. Various such proposals are made including the introduction of legislation which broadens the ambit of the common-law crime. A scale on which the various manifestations of the offence are rated according to their severity, is suggested to provide guidance to courts when sentencing those found guilty of robbery. In conclusion, draft legislation which delineates the offence in its various manifestations is proposed.

Keywords: Robbery, bag-snatching, violence, force, attempted robbery, rapina, vis, “raub”, sentencing, doctrine of common purpose, constitutionality, legality.

Introduction Firstly an evaluation is made of the present legal position regarding the crime of robbery in the South African law. The author also gives attention to the legality and constitutionality of the crime. The imposition of an appropriate sentence is critically considered. Thereafter the crime of robbery is placed in a legally comparative perspective. Reference is made to the fundamental differences between the South African criminal law approach to the crime of robbery and the approaches in the English, Canadian and German law. Finally recommendations are made for the revision of the law in South Africa in respect of robbery. It is suggested that concept legislation, which addresses all the facets of robbery, be considered. Although an intensive study of the historic development to the crime was also made in order to reach an informative conclusion, it is not discussed in this paper.



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Evaluation of the current legal position The common law crime of robbery has developed to such an extent outside of Roman-Dutch law that it presently may be defined as the theft of property by intentionally using violence or threats of violence to induce submission to the taking of it from another (Burchell, 2005). In other words, robbery is thus theft by violence.

From this study it is clearly evident that this definition of the crime can no longer be regarded as adequate. There is a need for the development and adaptation of the definition to include, for instance, all forms of violence, even anticipated violence, as well as the use of violence or threats of violence before, during and immediately after the theft. The reason for this assumption is discussed later in more detail. The first question which should really be asked is whether the crime of robbery still justifies its existence in South African law.

Right of existence in South African law The first question, as has already been said, is whether the crime of robbery still has a right to exist in South African law. The English author on law, Ashworth (Ashworth, 2003), is of the opinion that a radical solution, for the confusion which exists as to when robbery has taken place, could be to strike the crime of robbery entirely from the books of law. Prosecutors will then have the choice only between a crime of theft with or without a charge of one or other crime of violence, such as assault. Another solution suggested by this learned writer, is that the crime of robbery should be subdivided so that the use of minor force or threats of violence be met with a lighter sentence than robbery where serious violence or firearms are used (Ashworth, 2003).

What is of great concern is the indication of a tendency among criminals in South Africa to commit more aggravated robbery than common robbery, which is an indication of more violence being used. According to the crime statistics released by the South African Police Services, the frequency of reports of the crime of robbery, for the years 2007/2008 and 2008/2009 are as follows (SAPS website, 2010):

2007/2008 2008/2009

Aggravated robbery 118 312 121 392

Common robbery 64 985 59 232

Total 183 297 180 624

The crime statistics of certain categories of aggravated robbery is as follows:

2007/2008 2008/2009

Carjacking 14 201 14 915

Truck hijacking 1 245 1 437



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Bank robbery 114 102

Robbery of cash in transit 395 386

Robberies at residential premises 14 481 18 438

Robberies at business premises 9 862 13 920

A further aspect which deserves attention when considering the right of existence of the crime of robbery, is the legal interests which should be protected. In the event of robbery there are various legal interests of the victim that could be affected in some way or another by the perpetrator, namely the rights of a person to property (Section 25, Bill of Rights), freedom and security (Section 12), human dignity (Section 11) and privacy (Section 14). It is thus a unique combination of fundamental rights, exclusive to the crime of robbery, which requires protection. In the light of the intention and ethos of the Constitution (1996) it can surely be expected of natural persons to respect these fundamental rights of fellow citizens.

Because of the abnormal increase in the occurrence of the crime of robbery in South Africa and the combination of fundamental rights that requires protection, it is concluded that that the crime of robbery still has the right to exist in South African law. It is, however, suggested that serious attention be given to the definition of the various forms of robbery. It will make the duty of the state to protect the fundamental rights of all persons who reside in South Africa, easier to implement.

In respect of the legality of the crime of robbery, there exists confusion in the courts regarding the degree of “violence” which is required to constitute such crime, in other words whether “force” or “violence” is intended in the definition of the crime of robbery.

The conclusion is that the crime of robbery does have a right to exist in South African law. This complies generally with the requirements of legality, but can by means of legislation be made less vague to dispel any uncertainty in this regard. To date the legality of the crime of robbery has not yet been contested on constitutional grounds. It will certainly be interesting to see what the courts will do when a person who is convicted of robbery, after committing a “snatch theft”, possibly contests the constitutionality of the definition of the crime of robbery on the grounds that such definition is vague and embarrassing and does not comply with the legal requirements as set out in the Constitution (1996) and that he has thus not enjoyed a fair and reasonable trial.

The constitutionality of the crime of robbery In this study an evaluation of the constitutionality of the crime of robbery is made. The fundamental values which are protected by the existence of the crime of robbery, are the victim’s right to human dignity, privacy, freedom and the security of person and property. All these values warrant protection and thus the existence of the crime of robbery in South African law is justified.



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This gives rise to the question as to whether the crime of robbery, as it is presently defined, may be contested on constitutional grounds and more specifically on the grounds of the principle of legality.

With regard to the crime of robbery legal uncertainty exists in respect of the degree of violence that is required to constitute the crime of robbery. “Snatch theft” as well as anticipated violence, where the perpetrator uses violence from the outset with the intention of eliminating possible resistance by the victim, is relevant to this discussion.

On being charged with the crime of robbery the accused could submit that the common law crime of robbery, in its definitive form, also contravenes the accused’s fundamental rights to freedom and security of the person as well as his right to equal protection as respectively set out in sections 12 and 9 of the Constitution. Thus, should an accused in one case of snatch theft be convicted of robbery because the court finds the degree of violence to be sufficient to constitute the crime of robbery, and another accused, in a separate case of snatch theft, is convicted of theft only due to the court finding that the anticipated violence is not sufficient to justify a conviction on a charge of robbery, then the first accused’s rights, as set out above, have been contravened.

Where the constitutionality of the crime of robbery is challenged the court could consider the following aspects. The court may, possibly, regard the present definition of the crime of robbery as being wide, but then further find that there is no doubt regarding the nature of the actions that constitute robbery. The author is of the opinion that this argument will not be valid. The mere uncertainty as to what degree of force or violence is necessary to constitute the crime of robbery results, especially in the case of snatch theft, in there being doubt concerning the nature of the action which constitutes robbery.

The question furthermore arises as to exactly what the unlawful actions of the perpetrator must be to justify punishment as robbery. Should the object be snatched, and the courts decide that this action alone is sufficient to constitute robbery this can, in the present culture of crime in South Africa, be considered as a boni mores justification, as the perpetrator anticipates resistance and the victim expects more intense violence. The unlawful actions to be punished are violence, however slight, and the removal of the object. Should the force which is present with snatch theft not be regarded by the courts as sufficient to constitute the crime of robbery, and the action is to be regarded as theft only, it will be in conflict with the legal conviction and belief of the community. The unlawful behaviour which is punished will then be the depriving of the object only. The violence which is used will go unpunished.

Should even the slightest degree of violence be sufficient to constitute the crime of robbery, the author is of the opinion that such an approach will not be that unacceptable or distant from the legal convictions of the average person as to justify a revision of the definition of the crime of robbery. When there is certainty as to the degree of violence required to constitute the crime of robbery, the inclusion of snatch theft, in other words the use of anticipated violence, will be in accordance with the legal convictions and beliefs of the community.

The conclusion drawn by the author is thus that the definition of the crime of robbery is regarded as inadequate. Serious attention must be given to the codification of the various forms of the crime of robbery and there should be a specific inclusion of snatch theft as a manifestation of robbery.



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Sentencing for robbery The author agrees with the prescribed discretionary minimum sentences incorporated in the new Criminal Law Amendment Act (2007). There is at least now provision for consistency in the imposing of sentences for serious crimes such as murder and robbery with aggravating circumstances.

The writer believes that the commission of the crime of robbery, in any form, is serious. In the present culture of crime in South Africa the courts are obliged to take a firm stand against the perpetrators of this crime. There may, however, be circumstances where a lighter punishment may be considered, such as with juvenile offenders. The question that the court must ask itself when considering an appropriate sentence in the case of, for instance, a juvenile offender, is whether there is a possibility of rehabilitation and whether it is in the interest of the accused, and the community, to send a young person to prison where he may possibly receive further “training” from more experienced and hardened criminals during his period of imprisonment. The possibility may arise that a youthful offender, after serving his sentence, may return to society a more practised and more dangerous criminal than he was before his incarceration.

The South African Law Commission (2000) makes recommendations that a distinction be made between the different degrees of crime by adapting the sentence accordingly and that sentences should thus be prescribed. The writer agrees with these suggestions and proposes that they be implemented. It is a step in right direction.

The crime of robbery in the comparative law perspective After considering the crime of robbery, as defined respectively in the legal systems of England, Canada and Germany, the following aspects are identified with the intention of reforming the approach to robbery in South African law. Attention is given to the differences which exist between other legal systems and South African law. It is noted that, in certain respects, there are little or no differences. Firstly the differences regarding the element of conduct is discussed, namely violence, threats of violence, the element of theft and liability for common purpose. (Behaviour which constitutes aggravating circumstances is highlighted).

In specific circumstances reference will also be made, from time to time in this discussion, to the element of intention. Secondly the variances in the element of culpability are discussed and, similarly, here and there, overlapping references to the element of conduct are made. Finally attention is given the treatment of snatch theft as a form of robbery in all the examined legal systems, the recognition of a crime of robbery-like extortion in other legal systems, and their treatment of the crime of attempted robbery.



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The element of conduct The application of force England

The force exercised must be employed to, at least, overcome or prevent a possible or real resistance against the removal of the object (Smith (1997); Smith & Hogan, 2002). The violence can be directed at any person, but cannot be directed at property (Herring, 2004). It must be used immediately before or during the theft and with the intention of completing the theft (Griew, 1995; Smith, 2002). Where the theft is already complete when the force is exerted, there can be no question of an intention to use violence to commit the theft (Smith, 2002).

Regarding aggravated forms of robbery, no specific mention is made in legislation of types of aggravated robbery. During November 2005 the “Sentencing Guidelines Council” furnished creative guidelines for sentencing in respect of various aggravated forms of robbery, but, at the time of publication of this work, these guidelines had not yet been implemented. Canada

In the case of common robbery, violence can take place after the theft has been committed, but the force must be directed at ensuring that the object is retained, or to overcome or prevent possible resistance to the theft. The use of violence to escape will not constitute robbery (R v Malzfewski, 1987). A violent act which takes place after the theft will constitute the crime of robbery only when it occurs immediately after the theft. Where a period of time elapses between the theft and the violent act, the incident will not constitute robbery (R v Daughma, 1089). The violence must include more than a mere shove or an unexpected grabbing or snatching, but does not have to be directed at the victim of the robbery. It may also be directed at property (Section 343(a)).

In the case of aggravated robbery, in the form of wounding or personal violence, the force must accompany, or be employed immediately before, or immediately after, the theft (Section 234(a)). The force required to constitute these forms of aggravated robbery, must be more than a mere technical assault. The degree of force, envisaged in this case, necessitates that the perpetrator specifically injures, strikes or slaps the victim, or subjects the victim to some form of personal violence (Section 343(a)). The violence, in this case, must be directed at the victim of the robbery only.

A further form of aggravated robbery is created where the perpetrator commits theft while in possession of a weapon or a replica of a weapon (Section 343(d)). It is not necessary that the weapon is used during the robbery. The carrying of the weapon must be related to the theft. To obtain a weapon after the commission of the theft, in order to facilitate an escape, will not constitute robbery.

Germany

In the case of common robbery, violence includes any totally physical use of direct or indirect violence, as a physical act of coercion against the victim to overcome resistance or unexpected opposition (Section 249). It is not required that the perpetrator must actually exert force, as long as there is a physical reaction to the act of violence (BGH, 2002). The violent act must be



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exerted against the victim of the theft(Küper, 1986; Heinrich, 2006). The act of violence must furthermore take place before or during the theft, but before completion of the theft. The violence must be directed at making the theft possible, thereby eliminating or preventing possible resistance (Heinrich, 2006; Kindhauser) .

In the case of armed robbery the minimum requirement is that the weapon must be carried during the theft (Section 250). A further form of aggravated robbery is the causing of health impairment such as serious disability. In the latter event the danger is not only pertinent to the victim, but includes any person who may be uninvolved or even a co-perpetrator.

A more serious form of aggravated robbery is where the perpetrator uses the weapon during the robbery, but does not necessarily cause severe injuries (Section 250(2)). The danger must be the result of the violent behaviour of any of the parties to the robbery.

Robbery with fatal consequences is also dealt with, in legislation, as a specific serious form of robbery (Section 251). The death of the victim of a robbery, a co-conspirator or a bystander must at least be the result of reckless behaviour, and there must be a causal nexus between the violent deed and the death of the person as this is seen as a crime of consequence. In an event such as this the violent act may take place before, after or during the act of theft, or even during an attempted escape ( Kindhaüser).

A further form of robbery is where violence is employed, after the theft, with the intention of retaining the stolen entity (“Räubischer Diebstahl”) (Section 252). The violence is not limited to the victim of the theft and can also be directed at a third party. There must, at least, be some continuity the theft leading to the consequential escape.

Robbery by extortion (“Räubischer Erpressung”) (Section 255) embraces a form of robbery where the perpetrator employs direct or indirect force to the body of the victim with the intention of coercing the victim to submit, and to hand the thing to the perpetrator as a consequence of the violence or threats of violence.

The crime of robbery by assaulting the driver of a motor vehicle, comprises the application of force or threats of violence in relation to the life, body or freedom of choice of a driver, directed at the driver or a passenger of a vehicle (Section 316a).

Threats of violence

England

The perpetrator must have the intention to cause a person to experience fear. This incitement, causation or occasion of fear may be employed against any person who is present at the scene, and does not need to be directed at the victim of the theft. Where it is the intention of the perpetrator to incite fear in the victim, it is not a requirement that the victim should, in fact, be scared (Section 8(1)).

Canada

Provision is made for threats of violence against a person or property to represent an alternative source of liability in the crime of robbery (Section 343(a)). It is not adequate for fear to exist



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without threats being made. Where a threat is made with the intention that such threat should incite fear, it is not necessary to prove that fear, in fact, existed. All the surrounding circumstances are taken into account to find whether sufficient threats of violence are present.

Germany

The threat to commit violence can be directed at the robbery victim, or another person who may be present at the scene (De Wet, 1975; Schönke & Schröder, 2001) . Where a weapon is coupled with the threat to commit violence, the victim must notice the weapon and be aware of its existence. With regard to assault with intent to rob the driver of a motor vehicle, the assault is defined in such a manner as to include any threat of violence directed at an object, in respect of which a person has lawful interest, and also the assault of a passenger, whether the threat directed at another person is careless (“gleichgültig”), intentional or unintentional (“ungewollt”).

Theft and the removal of property England Brief possession, even when such possession does not give the perpetrator exclusive control of the property, is considered as sufficient to constitute the theft element of the crime of robbery (Smith, 2002). It is important to specify, in each instance, at what specific stage the act of theft took place, in other words, whether the theft has been completed, as robbery will not be constituted where the violent act is committed after completion of the theft.

Canada Theft is committed when the property is moved or when the perpetrator begins to make arrangements to move the property. The intention to permanently deprive the owner or possessor of their ownership or possession of the property is not a prerequisite for the commission of the crime of theft. The intention can be to merely deprive the owner temporarily of his ownership of the property (Section 322(1)(a)).

Germany This legal system requires an intention to deprive the owner permanently of the property for the perpetrator’s benefit or the benefit of a third party as well as the intention to misappropriate the property for self or a third party (Heinrich, 2006). In this definition misappropriation has the same meaning as in South African law.

Liability based on common purpose England It appears that English law also recognises the doctrine of common purpose, however, a person who takes part in a robbery in progress cannot automatically be seen to be an accomplice. The intention of the participants in the robbery must be the same. A participant who does not have the same intention to commit the crime of robbery and, for example, only steals property while



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the other perpetrator is incidentally in the process of assaulting the victim with the intention to steal, will not be convicted of the crime of robbery (Griew, 1995).

Canada Common purpose is applied here, but extends it a bit further by making specific statutory provision for an alternative ground for accountability, where a person, notwithstanding the presence of common purpose, cannot be convicted as an accomplice. This extends the accountability of the perpetrator and other involved parties to crimes outside the original intended crime. This includes other crimes committed while the original intended crime is in process, where the additional crime is a probable consequence of the original crime (Greenspan & Rosenberg, 2006). Germany Robbery committed by a group is seen as an aggravated form of robbery. There must be common purpose, notwithstanding the fact that all the members of the group are not aware of the details of the manner in which the crime is to be committed (Section 250(1)(2); Schönke & Schröder, 2001.

The element of culpability England English law prescribes that the required element of dishonesty must be satisfied in the case of theft (R v Ghosh, 1982). The jury must decide whether the circumstances of the case, including the perpetrator’s motives and belief, indicate that he acted dishonestly in accordance with the criteria of the standards of reasonable and ordinary people, and then decide whether the accused was aware of the fact that his actions were dishonest, measured against the standards of ordinary people (the reasonable man). This test actually entails a subjective element – not the accused’s own standards of honesty, but his awareness of the standards of ordinary persons. Should the accused thus believe that his behaviour or actions are not dishonest in accordance with the standards of ordinary people, then he is not acting dishonestly. It is, however, not necessary to prove that he had the belief or conviction that he had the right to recover the property in an aggressive manner, but only that he had a sincere belief that he had a right to the property. The perpetrator must thus believe that he had a “right to deprive” and not also that he had a right to remove the goods in a certain manner (Smith, 2002).

Canada The intention requirement here is substantially the same as in South African law, save that the intention to deprive a person temporarily of property is also regarded as sufficient intent to constitute the crime of robbery.

Germany In the case of aggravated robbery, by causing a person severe health damages, the principle of dolus eventualis provides sufficient intent. In the event of robbery with fatal consequences the death can be caused intentionally (“vorsätzlich” or dolus eventualis is sufficient), or in a grossly



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negligent (“Fahrlässig”) or reckless (“leichtfertige”) manner. It would appear that recklessness will include gross negligence in circumstances where the community would expect that the necessary care should be taken not to cause a person’s death. The culpability requirement, with regard to this crime, is thus that the perpetrator must at least have neglected the duty of care in his actions (Heinrich). The perpetrator must thus have caused the death of the victim through his own flippancy or irresponsibility in the specific circumstances, or by not exercising the required care and respect for another’s life ().

In the case of robbery-like theft the perpetrator must have the intention to use force, after the theft, to retain the stolen property, and not to effect his escape (Joecks, 2004; Tröndle, 2004; Kindhäuser).

The treatment of snatch theft as a category of robbery in other legal systems

England There is also division in English law regarding the question as to whether robbery could have been committed where the victim offers no resistance. The slight force employed by a pickpocket, for example, appears inadequate to constitute robbery (Phillips Walsh & Dobson, 2001; Ashworth, 2003; Card, 2001).

Canada It would appear that a reasonable amount of force is required to constitute the crime of robbery. The mere unexpected grabbing of an object does not represent force, as is required in the crime of robbery. A mere bumping of the victim in the process of grabbing a handbag, or where the victim is off balance when her handbag is snatched, are not sufficient forms of violence. It would naturally be a different matter if the victim is shoved hard enough to fall to the ground.

Germany Where a handbag snatcher grabs a handbag from the grasp of an unsuspecting victim, it is not seen as violence against the person, and thus does not constitute robbery. Where a victim resists the grabbing, the ensuing force exerted to gain possession of the handbag would be sufficient to support a charge of theft. There will also be sufficient violence to support such a charge where the victim clutches the bag so tightly that it is necessary for the snatch thief to employ vis absoluta to gain possession of the bag (Joecks, 2004; Wessels, 1993).

The treatment of robbery by extortion in other legal systems

Germany A specific crime of robbery by extortion is created, which is founded on the concept of extortion by violence, or by threats of violence, to influence the victim to release or hand over the property. This crime is committed as soon as the perpetrator succeeds in persuading the victim



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to relent, as the result of the use of violence or threats of violence, and the victim then, of own volition, hands over the property to the perpetrator.

Attempted robbery

England

Provision has been made for a serious form of theft namely: assault with intent to commit robbery (Section 8). Any assault with the intention to commit robbery will, necessarily, constitute attempted robbery, although there is no reference in literature or case law to the crime of attempted robbery. There is, however, a distinction between the sentence periods for robbery, and assault with intent to commit robbery. This crime requires the Crown to prove all the elements of assault, as well as the intention to commit robbery.

Canada Attempted robbery is equated with robbery as it constitutes the crime of “assault with the intent to steal’ (Section 343(c)). A person can manifest his accountability for robbery in three possible ways: a) where intentional violence is used against the victim, either directly or indirectly, without his consent; b) where the perpetrator attempts or threatens, by his behaviour or gestures, to use violence against the victim, where he has made the victim believe, on reasonable grounds, that he is actually empowered to carry out these threats; and 3) by begging or by attacking someone else, or hinder such person while carrying, or having in his possession, a weapon or a replica of a weapon.

Common assault is a requirement here, and the degree of violence that is required ranges from a tap on the shoulder, to distract the victim and remove the wallet from his pocket, to the actual physical hitting or kicking of the victim. It is also possible to commit robbery without the actual use of violence, in other words, by making use of gestures or actions, which succeed in creating a belief in the victim of the possible application of actual violence.

Where assault can be proved, a further element, namely the intention to steal, must also be proved. The reason for the commission of violence is fundamental, although the degree of violence is not. Thus there exists a possibility of accountability for robbery, in circumstances where nothing is stolen. It is irrelevant whether the perpetrator was successful in completing the theft or not, as long as there was an assault with the intent to steal. This article prescribes that the victim of the assault, and the victim of the intended theft, must be the same person.

Value assessment of the comparative legal study

The value that accrues to the comparative legal study, undertaken here, is that recommendations and suggestions are made in respect of robbery as a crime in all its guises.

This comparative legal study shows that, in other legal systems, a distinction is made between the various forms or manifestations of robbery for purposes of sentence. It would appear that, in these legal systems, more accent is placed on the different forms of robbery and aggravated robbery with a view to the imposition of an appropriate sentence.



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Presently, South African law distinguishes between three different forms of aggravated robbery, namely: 1) when the carrying of a firearm, or other dangerous weapon, is involved in the robbery; 2) when serious injuries are caused; and 3) when threats of serious injury, by the perpetrator or his accomplice, are directed at the victim before, during or after the commission of the crime (Section 1 of the Criminal Procedure Act, 1977). Vehicle hijacking is also addressed separately, and is thus itself an aggravated circumstance which justifies the minimum sentence.

It is recommended that the crime of robbery, as it presently exists, should be extended to include, for example, grabbing- or snatch theft, and circumstances where the perpetrator uses violence, or threats of violence, to escape from the scene of the crime, as punishable forms of robbery.

It is further recommended that the crime of robbery, as it is set out in legislation, should be identified and rated according to the degree of severity for sentence consideration. Presently, there is the common law definition of the crime of robbery, and then separate legislation in respect of minimum prescribed minimum sentences (Section 51 of the Criminal Law Amendment Act, 1997).

Reference is therefore to the possible manifestations of robbery and not to the possible sentences which may be appropriate.

The proposed manifestations of robbery, in order of aggravation and severity, are as follows:

1) Common robbery, where the violent act consists of only a minor application of force, such as a jostle or the snatching of an object, or the threat of such slight violence. The violence or threats of violence must, at least, comply with the requirements set for common assault. The violence, or threats of violence, may also be directed at a third person, but that other person must be in the vicinity of the victim at the time. Illustrations of such events are where the perpetrator threatens to injure or kill the victim’s baby should the victim not hand the property to him, or where a third party intervenes to prevent the robbery, and the perpetrator then exerts force against this third party. Snatch-theft can resort hereunder, but pick pocketing cannot, as it does not suggest or involve any degree of violence.

2) Robbery, where violence or threats of violence are employed to escape from the scene of the crime. This crime will intercept the problem which is experienced with regard to the moment violence is employed. It is presently arbitrary to differentiate between violence which occurs before, immediately after or during the act of theft. As expected, it must be a requirement that the violent act, which is used to effect the escape, and that used in performing the prior act of theft, shall form an entity. A perpetrator shall not be convicted of robbery where for instance, on the day following upon the day on which he committed the theft, he uses violence to escape from the police who attempt to arrest him for such theft.

3) Robbery, committed while the perpetrator is in possession of a firearm, any other dangerous weapon or a replica of a weapon, before or during the robbery. It is not a requirement that the weapon should be used before, during or after the act of theft, the perpetrator must simply have the weapon in his possession before or during the robbery. It should furthermore not be a requirement that the victim must be aware of the weapon.

4) Robbery committed during housebreaking or vehicle hijacking. Vehicle hijacking is included in this category, notwithstanding the fact that it is already seen, in South African law, as



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robbery with aggravating circumstances. This category concerns itself with the further protection of a person’s right to privacy. During the commission of a robbery within a person’s residence or place of employment, or during the hijacking of a person’s vehicle, a serious violation of the victim’s right to privacy takes place. Over and above the normal legal interests which requires protection, such as a person’s right to undisturbed possession of goods, and a person’s right to physical integrity and life, it can also be argued that the victim’s right to privacy can be serious violated. Where the victim is robbed inside private property, such as his home or the building where he does business, then certainly there is an obvious serious violation of that victim’s right to privacy. A person who finds himself within a motor vehicle, experiences the same feelings of privacy as he does when he is at home, or at his place of business. Thus it can further be argued that a person’s right to privacy is equally violated when he becomes the victim of a hijacking.

5) Robbery committed by two or more perpetrators, acting jointly, or robbery where a firearm or another dangerous weapon is used, or robbery, where serious bodily injuries are caused to anyone before, during or immediately after the theft. This could also include the causing of serious injury to an accomplice in the robbery. This manifestation of robbery shall include all the circumstances and forms of robbery as referred to above.

In the event, where the death of a person is caused before, during or after the theft, the perpetrator will also be charged with murder or culpable homicide, and it will then not be necessary to identify further forms of robbery. This will otherwise result in the perpetrator being punished twice for causing the death of another person.

Threats of violence, directed at a third person, should constitute the force element of robbery. For example, where a perpetrator threatens to kill a baby unless the father, or the person whom the perpetrator wishes to rob, hands him the property. It is not necessary to require that the third person must fear the threat, as the baby or the child may not be aware of such threat. What is required is that the third person should be at the scene, to comply with the provision that the threat must promise immediate violence. It should not be a requirement that a special relationship should exist between the victim and the third person. It is possible that an occasion may arise where the perpetrator grabs a child, who may inadvertently be at the scene, and threaten to injure this child unless the victim hands him the loot.

It is interesting to note that German law requires that the perpetrator must have the intention to deprive the victim permanently of his property, for his own benefit or the benefit of a third person, as well as the intention to receive and exercise ownership of the property for himself or a third person. In South African law the intention requirement is satisfied even where there is an intention to deprive the owner permanently of the property, to the benefit of a third party, and there is thus no need for any amendment of the application of the law in this regard.

It is, however, recommended that, where threats of violence are directed at the victim, it should not be required that the victim must have experienced fear, but only that the perpetrator had the intention to instil fear in the victim.

It would appear that most legal systems accept that, where a pickpocket removes property from the person of the victim, without the victim becoming aware of such manoeuvre, then no degree of force has been exerted, and thus the deed does not constitute robbery.



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The problem is actually that, where the perpetrator grabs the property from the grasp of the victim, there is no certainty as to whether that action constitutes robbery or not. There is a general acceptance of the decision in Mogala (1978) where the doctrine of preventing or overcoming an expected or potential violent act was recognised (anticipatory violence). Justice Rumpff correctly found that a snatch thief foresees potential resistance to the removal of the property, and thus proceeds to eliminate the victims grasp of the object by proceeding with a quick and forceful snatching of the bag.

The decision in Salmans (2006) appears to be more acceptable than that in Mati (2002), in that in Salmans it was found that the grabbing or snatching action in itself constitutes a violent action. It is suggested that any degree of violence, which is sufficient to constitute assault, is sufficient to support a charge of robbery. It may be the slightest degree of force and it does not have to result in injuries.

The grabbing of a cellular telephone from the grasp of the victim, still represents a degree of violence, and the element of force required in the crime of robbery is thus satisfied. There must be consensus with the argument that it is irrelevant whether the act is referred to as “force” or “violence”, as it is a physical act, directed at the person of the victim, and thus satisfies that element in the definition of robbery. It can also, however, further be argued that any snatch thief would be prepared, and have the intention, to use a greater degree of force where he is not successful in gaining possession with the mere swift snatching of the object. The intention of the perpetrator, is to use force to ensure that he gains possession of the object. The degree of force to be employed, thus depends only on the reaction and resistance of the victim.

In Canadian law there exists a crime styled ‘assault with the intention to rob or steal’. It appears thus that attempted robbery is classified as a specific crime. The question is whether attention should be given to the creation of a similar crime in South African law? As attempted robbery is sufficiently recognised in South African law, it is suggested that a need to create a crime of ’assault with the intention to rob or steal’ does not exist.

Concept Legislation In view of what has been said above, and the possibility that robbery may be constitutionally challenged on the grounds of the legality of the definition of the crime, the following concept legislation, wherein the various manifestations of the crime of robbery are specifically defined in statute, is proposed. Here only new definitions for the different manifestations of the crime of robbery are proposed, and it is suggested that the recommendations of the South African Law Commission, in respect of new sentencing structures and guidelines, be applied to these proposed levels of robbery. The author is in favour of the recommendations of the Law Commission, that crimes should be categorised according to the severity of the respective crimes and that courts, in accordance with the sentencing guidelines, retain a discretion to impose an appropriate sentence, from the alternative choices prescribed for that specific category of crime.

(1) Robbery simpliciter Robbery simpliciter is the theft of property by the unlawful and intentional use of violence or force, without the use of weapons, against any person in the immediate vicinity of the victim,



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before or during the act of theft, to take property away from another person, or threats of violence or force, without the use of weapons, against any person in the immediate vicinity of the victim, to persuade the possessor of the property to concede to the removal of the property, or with the intention to instil fear in the victim.

(2) Robbery with forceful escape Robbery with forceful escape is the theft of property by the unlawful and intentional use of any force or threats of any violence, against any person, after the act of theft, to escape from the scene of the robbery or to retain the property, where the act of force, or threats of violence, form an entity with the robbery and constitute a solitary continuous action.

(3) Armed robbery

Robbery with aggravated circumstances is robbery committed as referred to in (1) or (2) above, but where the perpetrator is in possession of a firearm, dangerous weapon or a replica of a weapon, before, immediately after or during the robbery. (4) Robbery committed during housebreaking and hijacking This is robbery as discussed in (1) or (3) above, but where the robbery is committed within a private dwelling or place of business or where a vehicle is hijacked.

(5) Robbery with severe aggravating circumstances

Robbery with severe aggravating circumstances is robbery committed as in (1) or (2) or (3) or (4) above, but where the robbery is committed with accomplices and/or where firearms or dangerous weapons are used and/or serious injuries are inflicted on any person before, during or after the act of theft.

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Documents

Deidre Joubert, Vaal University of Technology, South Africaopenaccesslibrary.org/images/PRV201_Deidre_Joubert.pdf · The first question, as has already been said, is whether the crime